Monday, March 22, 2010

Unalienable Rights: Unenumerated or Innumerable?

Where did they start?
Where do they end?
by Tom Van Dyke


And no, one's nose has nothing to do with it, so don't even go there.

At the passage of the Patient Protection and Affordable Care Act, Speaker of the House Nancy Pelosi said:

"In doing so, we will honor the vows of our founders, who in the Declaration of Independence said that we are 'endowed by our Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.' This legislation will lead to healthier lives, more liberty to pursue hopes and dreams and happiness for the American people. This is an American proposal that honors the traditions of our country."


Now, before anyone starts feverishly typing away on their comment before reading any further, this here American Creation blog is not about current issues, especially Dems vs. Reps. I warn y'all in advance, I'll delete anything that smells of Red State or Daily Kos.

[Although such folk have already stopped reading and started commenting. But I say this for the record, and for the regulars who know how we do things around here.]

This isn't about the health care thing, but it is about "rights." And "liberty," and the Founders and their understanding of both, since Speaker Pelosi brought up the subject. And her partisan opponents are arguing "rights" and "liberty" and the Founders in support of their position.

[Oh, go find your own link for the last bunch. It ain't very hard.]

In another forum I participate in, we're discussing the philosophical or even theological foundations for the idea of "rights" atall. Liberty, pursuit of happiness, the whole megillah. The Founding, Locke, the ancient Greeks, natural law, the moderns, Kant, Rawls, what have you.

We do a good job around here of discussing principles at arms-length from the issues, so I thought I'd take a chance with questions designed for clarity there that might be helpful here:


---Are all rights "natural," or are some political, civil, or "human"?

---Are rights innate or negotiated for in a contract with the state?

---Are rights innate or a matter of merit?

---What is the state of nature? What of liberty in the state of nature?

---What is the state of nature if man is a social animal [social "being," if we
prefer]? What becomes of liberty?

---What is liberty?

---If a social animal, and one incapable of self-sufficiency until age 5 or 7 or
so, what is his reciprocal obligation [duty?] to fellow man? To fellow man's
material estate? To fellow man's liberty? To fellow man's soul [if any]?

---By what right does one man rule another? Is man his brother's keeper?

---Are the laws of nature and the "natural law" the same thing?

---Is liberty a natural right?

---If so, is it limited by the social animal's duty or obligation to "society"
or the state?

---Or is "At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes of personhood were
they formed under compulsion of the State." [?]

---Does "personhood" exist? Is there a "dignity of the human person"? Is that
dignity innate, or is it an assertion of a "convention"? Are "conventions" the
product of "social contract," and therefore by definition, arbitrary?

---Are positive laws [conventions, contracts] subject to validation first by any
higher laws [law of nature, "natural law"] or simply coeval laws [reason,
reasonableness], or, as the US Supreme Court answers, a blend depending on the
occasion where one "fundamental" right is in conflict with another: strict scrutiny, intermediate scrutiny, rational basis, and so on.

---What rights are absolute? All, many, some? Are all rights the same, civil rights, political rights, natural rights, human rights?


"Rights" is the most confusing and ambiguous word of our times. I thought we might seek a little clarity. It's the undercurrent of pretty much every post on this blog.

And this blog has been an oasis on the internet from the ignorant and partisan grenade-throwing, so I hope we can trust us with this---the questions underlying the questions. No bashing Obama or Pelosi or Beck. Use their arguments if you will, but leave them out of it. And no bashing Congress and the procedures about how the bill got passed. That's about politics, and about legalities, not about principles.

So, the genie's out of the bottle. But we've done a great job of managing Jeannie so far around here. Let's test our wheels. Let's test how 2010 matches up with 1776 and 1787.

41 comments:

Brad Hart said...

Well, Tom, I think you bring up some EXCELLENT questions. It's funny; this very thing has been on my mind as of late. As you point out, both sides believe the founders are in their corner. Both appeal to "life liberty and the pursuit of happiness" as well.

So how do we slice away the fat from this "unalienable rights" bone and get to the real meat? To be honest, I don't know if we can. I'm not trying to sound cynical here or discard your argument entirely; I'm simply stating that I think there are too many issues at play. Having just finished watching the movie, "21" (an excellent movie about card-counting) I believe there is too much "variable change" to actually get at an answer here.

Let me illustrate what I mean:

The founding generation understood "rights" as something that wasn't a blank check to all. One's status, race, gender and, to a certain degree, religion all played into how rights were administered. Sure, the whole "Tabula Raza" thing sounded nice and all (and I am sure many did see beyond the stereotypes of their day) but the logistics of right-granting were too entrenched. In the 18th century, Blacks were never going to be given the freedoms they have today, nor were women or certain social "classes." The rhetoric may have sounded nice but when the rubber met the road, prejudice had too much power. It was going to take time.

So enter the variable change. Once you change the rules of the game (i.e. granting rights to certain groups, breaking down old bias barriers) you've opened an entirely new sack of potatoes. The rhetoric may be the same but the logistics of "right-granting" is totally different.

Ok, it's late and I am at work, so I apologize if this reads like a long rant. I didn't really have time to organize my thoughts, but I wanted to get this out there because I think this is an important topic. Hopefully it will fuel some future posts!

Naum said...

Utterly impossible to translate 18th century culture and context to a 21st century world.

Pure folly to apply definitions in a "concordist" fashion.

"Right to life/liberty" in technological 21st century is essentially and entirely an economic affair in stark contrast to where it has much more to do with force/compulsion and land in a mostly agrarian world with a dash of mercantilism.

King of Ireland said...

"Utterly impossible to translate 18th century culture and context to a 21st century world.'

Things undoubtedly change but history also repeats itself. I have done some posts about Toffler's "Third Wave" and am in process of reading "Revolutionary Wealth."

There is no doubt that many ways of thinking are obsolete and going to be more so sooner than most think. But since History repeats itself we dare not through out the baby with the bathwater.

The "Third Wave" is upon us and if we do not all want to become the peasants of the "First Wave" we better damn well sniff out what parts of this "change"(not Obama but the larger trend going back to the 50's toward a knowledge based economy) is really a sophisticated merantilism masquerading as Capitalism.

Gladstone's thesis of the emergence of modernity requires a "Free people sovereign over
limited state." I personally feel that if this is lost in the "Third Wave" it will be to our peril. Thus, Tom asks some monumentally important questions about the history of rights that I hope has an impact on the future of rights.

Laci the Chinese Crested said...

The concept of rights was confusing to even the founders, although I think they would be more conscious of society's needs than the modern day libertarian (even amongst the more radical whig factions). Remember that Democracy to their minds was what we would call anarchy.

For example, the Militia was not like the concept some people currently entertain, but a group of people who were under the control of the government: whether the king's or the rebel legislatures. They were not armed bands responsible to no one(despite the criticism). People in the Eighteenth century weren't into mob rule.

I think one of the problems with rights was that the founders had a more civic minded attitude than the selfish attitude of an Ayn Rand.

Remember that Public Education was something which the founders held in high regard. I would add in Speaker Pelosi's favour, the establishment of Pennsylvania Hospital "to care for the sick-poor and insane who were wandering the streets of Philadelphia."

(I have a nascent post called Whig or Tory which sort of touches on this post and the purpose of this blog as well).

Oprah said...

These are important questions, Tom, that you raise. These, I think, are some of the same questions the founders themselves pondering during the founding of the country. I'll bite my tongue on the Pelosi comment. Thomas Jefferson's Notes on a State of Virginia share many of his own opinions about these questions. I wonder how we'd answer these questions today as it appears many people just don't think like this anymore. I think people would sooner ponder what's on the dollar menu than the answer to these questions.

mickster said...

I think if something requires someone else's time or talents, then no one has a 'right' to it. I dont it makes a difference whether its the 1700's or 2010.

Healthcare requires the time and/ or talent of another individual.

Rex said...

I recall reading that the notion of individual rights belongs to the Enlightenment. I think that the issue of rights belongs to a discussion of law. To be sure, we can argue whether there ought to be a justification for law beyond the pragmatic one of whatever works. I am not familiar with anything since Rawls that adds much to what he offers.

The investigation of the meaning of nature goes back to ancient times. Recently the discussion of nature has taken a turn, since philosophy of science continues to stumble over conceptualizations that were long taken for granted and now prove unjustified. When it comes to claims about what is "real," most classical edifices came tumbling down.

My most recent effort has been to comprehend the implications of what philosopher Ted Toadvine tells us Merleau-Ponty's philosophy of nature might mean. Put too simply but not irresponsibly, M-P says that the real is ambiguous. We sense and do at least two conflicting things at the same time when we perceive experience.

On one hand, I interpret that to mean that we no longer can claim support of the Absolute. On the other, I interpret it to mean we are reduced to pragmatism in material matters (what M-P calls the "visible"), doing the best we can, and reduced to solitary satisfaction in matters of meaning (what M-P calls the "invisible") doing the most artful or beautiful we can.

What sort of theory and praxis of natural rights might that give rise to? The good as both beautiful and true? Individual freedom dependent on communal cooperation? People educated to the need to justify their lives? Distinctions between having an advantage and taking advantage? Belief that virtue is and must be its own reward? Common sense religion that acknowledges what is self-evident? All of the above and more.

Tom Van Dyke said...

Rex runs into what I see as inherent limitation of such subjectivity, even while it claims a "pragmatism." Utilitarianism can give us some advice what is materially "good," but in rejecting any notion of the Absolute or even the "real," we reject the possibility of the "good" as the foundation of a nation or society.

The answer is always "it depends." Which is fine for a philosopher-king who is empowered to play his wisdom on the fly, but provides no foundation for a society's ethos as a continuity, or even for law itself, since even the law [or principle] need not always apply.

----Messrs. Hart and Naum supply a rather class-struggle view of history that's popular in university history departments, but even if valid, yields only a cynicism if not nihilism about what might constitute a just society.

We must note that sexism and racism aren't peculiar to the Founding milieu, and indeed persist in many or most places and societies even to the current day.

Within a few centuries of the development and actualization of the concept of "rights," they were extended in America to all. That they were denied to some at first tells us nothing about where we should go from here now that rights are recognized as universal.

---The King of Ireland looks at economics, indeed to some problems of corporatism and, by extension, its intertwining with politics, which also alarmed Adam Smith. But this is a different problem. I did slip in an argument I found in Vattel about the interdependency of social animals that I think is a powerful argument for modern liberalism-communitarianism.

However, although this touches on "economic justice," it ignores "economic liberty," liberty being part of the question here, and of great concern to the Founders.

For, starting with the Pelosi quote [and the arguments of her opponents], we cannot invoke the Founders without invoking all of their concerns.

Unless we wish to join the university-style cynicism which simply makes everything a "struggle," that "'justice' is in the interest of the stronger" [be it the elite or the proletariat], and we have advanced absolutely nowhere in the 2500 years since Thrasymachus makes that argument in the opening chapter of Plato's Republic.

It has been all for nought---the stronger commands the weaker, the stronger commands the law itself. All this talk of the Founders is insincere; window-dressing. We do not attempt to apply their principles, we dismiss them as irrelevant or insufficient.

But in favor of what, instead?


Laci touches on some key historical realities of the Founding era: that anarchy was unthinkable [Europe had had several bouts of it]; that mob rule was frightening; that the continuity of "society" had some place in the discussion of individual rights, since without a functioning society to protect them, there are no rights in any practical or real sense.

For the "state of nature," at its nastiest and most brutish and short, is a state of war. And without a coherent and consensus view of "rights" in a society, none are protected: liberty must yield to "rights," rights are only subjectively prioritized, all must yield to power.

And so this state of war is what we're staring at, where no rights or principles are protected. All fall before power, and Thrasymachus was right afterall.

So, what's your favorite on the dollar menu, Oprah? I like the wraps.

Rex said...

My current hero, Emerson, was often criticized as tending toward the nomological, which I understand to be reliance on natural law more than either authority or consensus. So I understand that I also might appear to be an ideological anarchist. Except that, as also in Emerson's case, he said, to paraphrase, "Go and see for yourself. I have every confidence that you are capable of seeing as much as I see. I do not appeal to mystification nor to the idols of history. The truth is available at firsthand."

Tom writes what seems to me to be a non sequitur at the end of his latest: "(…) since without a functioning society to protect them, there are no rights in any practical or real sense. (…) so this state of war is what we're staring at, where no rights or principles are protected(…)."

I admit to doubts at times that we have "a functioning society," but rule of law has not been abandoned yet, at least not completely. Since our legal system fits Tom's "state of war," (before a judge and jury) I assume what he means by not "protected" is the absence of appeal to God as judge and jury built in to the system of law.

While I do not recall the Platonic dialogue referred to by Tom, I do recall from my study of THE REPUBLIC (a marvelous combination of comedy and sophisticated theology) that Socrates eventually admits that ability to recognize "the Good" is a gift from the gods.

Is that what would satisfy you or what you require Tom?

Laci the Chinese Crested said...

I'm seeing talk of utilitarianism and Emerson, both 19th Century thinkers. While useful for understanding the thoughts of today, we have to think in terms of late the 18th Century Enlightenment mentality.

I think of the founders shock if they heard all the talk of rights without responsibility, and worse

DEMOCRACY!

Oprah said...

So, what's your favorite on the dollar menu, Oprah? I like the wraps.

Personally, the caramel sundaes do it for me!

Laci, what do you mean the founders would be shocked at democracy? That's what they were aiming for (a democracy where the elites held power, imho). If you mean a democracy without responsibility, then I agree with you there. But I think there was a responsibility to others, as well as to one's self. De Tocqueville called this the tyranny of the majority, if I remember correctly.

Pinky said...

.
The idea of rights....
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Most interesting.
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My reading tells me that the word, rights, evolved in its usage from the idea that it connoted power. The right to something was the power one had over it.
.
"That's right nice of you."

"That's powerful nice of you."

I remember my parents and grandparents talking about the idea that might makes right.
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But, Tom won't allow us to talk about how rights end at noses. Even though that is precisely where they are brought into question.
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The poster's rights here end at the click of someone's delete button.
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Freedom is given as in you give me freedom to do such and such.

Liberty is taken as in I take my liberty to do such and such.
.
.
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Tom Van Dyke said...

Well, Rex, I always thought Plato cheated by using theology at the end of a philosophical discussion.

But then again, he found no other way around the problem, and neither did Jefferson, in the D of I.

But no, that's not what I was getting at. What I was getting at is that if we're to invoke the Founders, our conception of "rights" must have some continuity with theirs.

As for no functioning society-no rights, this was a truth unearthed by Hobbes, and the various anarchies [Europe's Anabaptist controversy, for instance] showed that a breakdown in social order is the worst of all outcomes. Hence "ordered" liberty and not liberty for its own sake.

[The state of nature as the state of war is also a Hobbesian truth; although the Enlightenment tended for a rosier view of man's nature, we see that the Founding [see federalist 10, separation of powers, etc.] ended up shying away from man's goodness.

As for Emerson, his belief in any "natural law" would be a leftover from the 18th century, and not "modern." As for his

"Go and see for yourself. I have every confidence that you are capable of seeing as much as I see..."

another writer long before had said,

"Prove all things; hold fast that which is good."

...a very Socratean sentiment.

And if the Founders' sense of "rights" was nomological [and it was], then times and circumstances do not change it, as Hamilton quotes Blackstone

This is what is called the law of nature, "which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times.

To say that the Founders are obsolete is to take their notions of "rights" and liberty as hollow shells, and fill them with whatever we wish.





Emerson

Pinky said...

.
The Nature of Rights at the American Founding and Beyond, edited by Barry Alan Shain; http://www.amazon.com/Nature-American-Founding-Constitutionalism-Democracy/dp/0813926661
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Page 53/54:
"'When I say that a right is vested in a citizen,' declared Justice Chase in Calder v. Bull (1798), 'I mean that he has the power to do certain actions.'
...
"Achieving a definition of a right did not resolve the question of limits or appropriate ends. How many rights were there? What exercise of power could legitimately be called a right? Locke and the moral philosophers popular in Revolutionary America were of little help here, for they did not attempt to compile an authoritative catalog of rights."
.

Tom Van Dyke said...

Pinky, do you mean

Unalienable Rights: Unenumerated or Innumerable?

Where did they start?
Where do they end?

Good questions. However, we can start with the nature of rights, which can tell us something about them. The other questions were designed to restate the questions of "rights" that have been asked for all man's history, from the classical to the modern.

Joe Winpisinger said...

I think a case can be made that economic liberty leads to economic justice or possible economic liberty is economic justice!

King/Joe

Pinky said...

.
I've made two posts that relate to the nature of rights, i.e., powers.
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The discussion of rights can be convoluted and confusing the more one tries to define their nature.
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Rights, as a concept, evolves. What was a prerogative or a privilege can grow to be a right in practice. America is watching such an evolution in health care which is being turned into a formalized institution as we live and breathe. That's what Shain is saying to me.
.

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Rex said...

I'm glad you are not looking for additions or improvement to Plato. The Good as gift of the gods I understand to claim that it is self-evident. All the rest is commentary.

On the topic of rights, I insist that only insofar as we can find in the founder's documents a discussion that qualifies as on the topic of the nature of nature can we reach the self-evident or the unalienable. Yes, begin with the question of the nature of rights but then move to the nature of nature.

I am aware of that as Hegel's most lasting contribution: the core is a negation of a negation. While his PHILOSOPHY OF RIGHT (1820) bears more directly on the topic, it did not have a direct influence on the founders. To ignore his methodology today, because it is post-founders, turns history into something merely quaint, unfortunately.

PS. The utilitarians had little regard for the notion of rights. I do not recall that those I have read attack the idea; they just do not need it.

Tom Van Dyke said...

Absolutely, Rex. But instead of using the Founders as window-dressing, if we've thrown over the Founding for Hegelianism, let's just be honest about it.



The Constitution represents the attempt of its authors to establish a government that would secure unalienable rights even against the depredations of future generations. But Hegelians believe that, until we reach the end of History, "enduring" rights exist only to be negated by future generations. Thus, Wilson wrote, "Justly revered as our great constitution is, it could be stripped off and thrown aside like a garment, and the nation would still stand forth in the living vestment of flesh and sinew, warm with the heart-blood of one people, ready to recreate constitutions and laws."

This statement represented more of a wish-fulfillment fantasy by Wilson than a sincere expression of his reverence for the Constitution. [Woodrow] Wilson certainly did not revere the Founders--appeals to their views were nothing more than "Fourth of July sentiments" that "perspicacious men" should "derid[e]." Wilson himself derided what he referred to as the "Newtonian" underpinning of the Constitution, stating that the Founders "constructed a government the way they would have constructed an orrery--to display the laws of nature." Disputing the applicability of fixed laws (other than his own) to History, Wilson wound up opposing the concepts of limited government, separation of powers, and checks and balances.

Since the Constitution could not officially be "stripped off and thrown aside," Wilson endorsed the emerging, Darwinian-inspired theory of a "living Constitution." For Wilson, this did not mean creatively applying original principles to situations the Framers had not imagined: It meant negating those principles whenever they stood in the way of the march of History, as manifested in the latest promising idea.



I for one am not yet willing to use the Founding as an empty vessel to be filled with whatever suits our fancy, but that's a political question. But I think the first thing is to realize what we're doing. If our study of religion and the Founding is to be of any value, at least it's in knowing what we are throwing out with the bathwater.

Tom Van Dyke said...

Pinky, as our presumably resident Shain expert, I'm not sure you're getting him totally.

His thesis is certainly between "radical individualism" of our modern age and its "radical communitarianism," all argued under what Mary Ann Glendon calls "rights talk," which is usually formal, legal, and abstract. [And, as we have seen here, in its subjectivity and "diversity," inconsistent, incoherent and historicist: we shall invent a new baby to go with this new bathwater.]

I'd think the evidence Shain presents for a communitarianism-on-the-ground in the Founding era [as opposed to our cold and sterile readings of theorists like Locke] agrees with Glendon:

"Buried deep in our rights dialect is an unexpressed premise that we roam at large in a land of strangers, where we presumptively have no obligations toward others except to avoid the active infliction of harm. This legalistic assumption is one that fits poorly with the American tradition of generosity toward the stranger, as well as with the trend in our history to expand the concept of the community for which we accept common responsibility."

We see Hobbes' state of nature/war in there, and the shallow "nose" argument, but contradicted in reality by Franklin's establishment of the Philadelphia Hospital in the 1750s, which we should note was a function of private charity, not government.

And so, I'm not arguing libertarianism here, or exactly a Tea Party vision of political liberty, but neither am I letting Nancy Pelosi off the hook for invoking the Founders for what are clearly not Founding principles.

In fact, I'm not arguing anything here because I haven't made up my mind---except that our legalistic abstractions today of "rights" are nonsense talk, because in the end, this "right" conflicts with that "liberty" and vice-versa, and nowhere do we acknowledge the "rights and duties" to the community that the Founding era of Shain and Glendon [and the Philadelphia Hospital] clearly saw.

Neither do we seem to recognize that all "communitarianism" need not be a function of government, for as we see in the "atomization" of society, our physical needs are not met by our fellow man in community, but are "rights" owed us by the government---making our "fellow man" and the "community" completely irrelevant. We are all free-floating atoms, whose "rights" are owed to us by the universe.

This was not the Founding view.

Pinky said...

.
I'm sure you realize, Tom, that most of what passes for Founding Era talk by the "conservative" politicians of our day is built on myth. Our ancestors would have called it rabble rousing.
.

Rex said...

Tom,

My point regarding Hegel was simply about the need for the doubled focus, in this case the nature of nature. I am convinced that is necessary to get past triviality. Yes, it is a post-founders' conclusion. Until entering into an examination of the meaning of "nature," its significance likely is obscured.

From the quote you sent, which I had not seen before, it seems that Wilson was as badly advised on legitimate interpretations of Hegel as he was on the changes taking place in his world. I do not demean him, since we are doing little better in our own world.

It has been such a long time since I have read the Federalist Papers, I have lost all capacity to discuss them in an informed manner. I do believe, however, that if it is your view of history to search for an essence to words or, more unlikely, a single or fixed explanation of events, you have a mighty hard row to hoe—whether in political science or in religion,. The traditional notion of "facts of history" has given way to recognizing that it all depends on where you stand. Similarly with the meanings of history. As with real estate, its location, location, location.

Tom Van Dyke said...

That's epistemological nihilism, Rex. I shall not surrender to it.

And whether or not Woodrow Wilson understands Hegel correctly is as immaterial as whether the Founders understood the "real" Locke.

The fact is that many today agree with the sentiments there of what Wilson said. You find that tolerable or even desirable; so be it.

I simply say it is not the Founding and no amount of sophistry can tie that to the Founders: here we have Wilson explicitly rejecting the Founders. That is the point, and those who follow in Wilson's view of "rights" must acknowledge that.

And actually, I'm finding the "communitarian" view of rights at the Founding a more interesting lead, and one that might satisfy both those who want to be faithful to the Founding and those who want to pitch it.

Daniel said...

The language of "rights" may be an Enlightenment construct, but the notion that individuals have a claim to be treated in certain ways is ancient. These rights are not all enforcable by law. Most are conveyed by familial status: the right of a child to its mother's love, the right of parents to honor, or (later) the right of a child to an inheritance.
Legal rights? Sometimes. Self-evident? Yes. Positive rights? Mostly.

During the period of the Bronze Age collapse, in the Mediterranean and the Middle East, there was a concept that travellers and strangers had a claim to hospitality. With only vague exceptions, this was not black letter law, and with a state of near-anarchy, there was no enforcement, but it was recognized as favored by the gods or God.

I'm not sure we can draw a direct line from these sorts of rights to the rights envisioned by the Enlightenment, which were more negative. They did not create a claim on someone else, but rather limited someone else's (government's) claims on the individual. But that earlier vision is important in connecting the dots to religion and to Wilson's notion of positive rights (which was a dramatic break with the Enlightenment view).

Daniel said...

Rex,

Bentham and the utilitarians who followed his thought had little regard for rights, I agree. But J.S. Mill was also a utilitarian and he defended negative rights on utilitarian grounds. His conception of rights was similar to the Enlightenment's, although he went farther in his vision of liberty than any Enlightenment thinker I am aware of.

Pinky said...

.
I just picked up a new book, http://www.amazon.com/Science-Liberty-Democracy-Reason-Nature/dp/0060781505

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Maybe I'll learn something. Who knows?
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Rex said...

Daniel,

You are correct that my comment about utilitarians missed the mark.

What I meant to say was that while utilitarians are very concerned about human rights, they base their decisions on a calculus, summarized vaguely as "the greatest good for the greatest number."

That means that if what you believe is good for you does not correspond to the calculation, you are out of luck.

In the context here of "unalienable rights," that is what utilitarians do not acknowledge. Individual rights give way to the greater good.

Daniel said...

Rex,

Put that way, I think we are in agreement. By their nature, "utilitarian" and "inalienable" don't mix well. Mill's insight is that liberty is essential to the process of determining the "good", and this may be the corrective that is needed to the problem you pose.

Tom Van Dyke said...

Interesting that this keeps leading back to deity, which again was something I didn't have in mind atall: none on my list of questions touched on it, and I used the vocabulary of political philosophy.

But, per this discussion, it is Jewish tradition that God chose Abram [Abraham] as father of the chosen people for his hospitality to strangers in the desert.

Daniel, there was a Greek myth of Zeus and Hermes being turned away from every door except that of Baucis and Philemon, who were rewarded for their hospitality.

http://www.ils.unc.edu/~sturm/storytelling/cuecards/baucisandphilemon%20%28Katie%20O%27Connor%29.html

It does seem to me that the existence of the myth indicates that hospitality to the stranger was not routine.

And even the Roman emperor Julian the Apostate and the 19th century Enlightenment apologist WEH Lecky were obliged to recognize the power and pervasiveness of what can only be called "Christian charity."

http://www.ccel.org/ccel/schaff/hcc4.i.vi.ix.html

[That one is well worth a read.]

I don't think we've drawn any "positive" right for the stranger to receive hospitality at the good man's home, or a "right" to charity. That would take all the virtue out of offering it.

And I don't believe we've tried to make a real link from the Founding to the current legislation.

As for the Enlightenment getting credit for "rights," I'm not there yet. Certainly we can give Locke credit for developing the theories of property, though.

”The state of nature has a law of nature to govern it, which obliges everyone: and reason which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions…“

But again, this is a negative, not a positive right. Neither Locke nor Jefferson's "pursuit of happiness" require anything from one's fellow citizens.

This isn't to say that the current legislation is a bad thing. Societies, depending on what they consider to be virtuous, might choose to help the weak and helpless. And I happened to find Vattel's argument persuasive in a philosophical way, and I've been looking for a place to slip it in since I ran across it.

However, it seems "rights talk" is completely inapplicable here, and since nobody has picked up that cudgel, that's part of the common clarity I was seeking.

[Speaking from a utilitarian viewpoint, surely many or most of the sick, not to mention the old or born-imperfect, should be permitted to die, let's face it.]

Pinky said...

However, it seems "rights talk" is completely inapplicable here, and since nobody has picked up that cudgel, that's part of the common clarity I was seeking.
.
huh?
.

Tom Van Dyke said...

What can I say, Pinky? You've been reading and quoting Barry Shain of pritnear a year now, and I've learned more from it that you seem to have.

Keep up the good work, although your new book looks less promising, crediting to "science" what might be credited to Protestantism, if not the "other" Bacon---Roger, not Francis.

Daniel said...

Tom,
I was thinking of Paris' demand for hospitality from Menelaus. In the Odyssey Odysseus invokes Jove in asking for hospitality. And Telemachus is in a bind because his mothers' suitors abuse the hospitality which the suitors demand. The prophets (and I believe the Levitical law) call for hospitality.

Tom Van Dyke said...

Thx, Daniel. I've done a lot of work on what got us to the Founding, can't tell you much about the theories that came after.

If you read the Homer, the Greek mind is almost totally alien to us, as alien as Jefferson found the Qur'an, which is why he said he dropped his study of it.

That's why I argue we are the product of Aristotle-through Aquinas-through Protestantism. Homer is pre-philosophical Greek.

In the Greco-Roman real world [except for the Stoics, who find their way into Christian thought via natural law], "virtue" was individual, a glorification of the man himself. Only a total victor could forgive his enemies, not a loser [executed] like Jesus.

Paris would require hospitality as natural "right" as a fellow nobleman, not as some guy off the street. Honor honors honor, an aristocratic thing. Only the honorable merit honor.


This is not the same as "created equal, endowed with rights, blahblahblah."

The term in the ancient world is "magnanimity." This accrues to individual virtue, but not to what the prophets counseled [again, we're back to God, even if under natural law].

And the Christian command is not only "Christian charity," but indeed to "bless those who curse you."

This is nonsense to the "natural man." To kill those who curse you, "to crush your enemies, to see them fall at your feet -- to take their horses and goods and hear the lamentation of their women."

Oh, if only we hadn't been so castrated by Christianity. Those were the good ole days. Oh, how I long to hear the lamentation of their women, Daniel. Music to any real man's ears.

Rex said...

Let me suggest another approach to, a place to begin for, an exploration of the meaning of American human rights and liberty. The premise would be that the authors of the DoI and the Constitution, while the founding documents, drew upon existing traditions traceable to such groups as the Puritans of Massachusetts Bay.

I mention that because I have read, though not studied, and admire Colacurcio's study titled GODLY LETTERS: THE LITERATURE OF THE AMERICAN PURITANS. There he painstakingly examines the central existing documents from the first generation of New Englanders.

Briefly reviewing his comments indexed under "Election," since presumably the earliest political right is that of the vote, I found myself awash in a discussion of the Calvinist doctrine of limited, as opposed to universal, salvation. Of interest in our discussion is that Roger Williams and John Cotton disagreed most violently (fortunately limited to verbal disagreements since Williams was allowed to slip out of the hands of Mass Bay authorities) over Williams' "Free Grace" and Cotton's "Election by God."

The political difference is that for Mass Bay only church members (those who were able to justify their membership among the saints) were allowed to vote. For Williams, church and state must be separate, since no one other than oneself could be certain one was saved.

Might one think of that disagreement as a station on the way from the rejection of divine right to the acceptance of universal suffrage? As we all know, it took until the granting of the vote to women in the first half of the 20th Century for the right to vote to become universal (qualified still by age and currently also in some states by criminal history).

Is it not in the right of citizenship that we find the most universal expression of human rights?

I suspect we can easily still find disagreement among us when it comes to election by God. We may also find disagreement about the meaning of citizenship understood as granted by a covenant of law. Our Mass Bay ancestors also observed both those dimensions.

Might it be that election by God is the basis for the insistence upon the preservation of Christian political identity? So that we have yet to resolve finally the John Cotton-Roger Williams argument?

Tom Van Dyke said...

Rex, I would submit that women were seen as different, not lesser. "Political rights" are not the definition of equality. Tocqueville in the early 1800s sees the un-enfranchised [non-voting] American wife as every bit her man's equal, and treated that way.

In the eyes of that era, "political" rights were not seen as synonymous with "human" rights, or if I may ring an ancient bell, "the dignity of the human person."

I think we miss this one through 21st century eyes, which is why Tocqueville's 19th century eyes are of great value. In fact, he reported that unlike Europe, the American woman was not put on a remote and irrelevant "pedestal" to sit and be admired and kindly invited to shut up about the affairs of "men."

Abigail Adams was seen as a "person," not an icon on a pedestal, not an irrelevancy in John Adams' life. Dolley Madison, etc.

We must not look at the American woman simply through the eyes of 21st century power politics, but through the "society" of that time. I daresay the women of that time demanded a say in how her household would vote. The 19th century American woman was one tough broad.

As for Calvinism's "elect," I think the even the Puritans dropped that one very early as unworkable, and Roger Williams was not quite the 21st century man that modern hagiography makes him out to be.

I do think the hole in the Barton-type arguments is how quickly the Mayflower types abandoned their theocracy. They shouldn't even go there, as it tends disprove their point.

As Jim Babka has written, they seem to gravitate to absolutely their weakest arguments about a "Christian nation." The rapid collapse of Puritan theocracy in the New World doesn't even need Roger Williams to pop the bubble. It collapsed of its own weight, or its lack of critical mass, either way.

Is it not in the right of citizenship that we find the most universal expression of human rights?

As Tocqueville answers per the above [and the passages are easy to find], no. The American woman was every bit the equal of her [voting] man. You can't keep a good [wo-]man down.

Political rights are not synonymous with human rights.

Daniel said...

"If you read the Homer, the Greek mind is almost totally alien to us"

Yes. It is amazing to read Homer -- "virtue" seems like a good and noble concept, but when you get down to the details, our there are amazing differences in our concepts of "virtue." The differences are also broad enough to put "self-evidence" into question, it seems. Once we have to ask "self-evident" to whom, and the answer is not to a person of uncorrupted intellect, we admit a fundamental problem with the pursuit of natural law.

In this sense, however, I am a Hegelian. I do not believe we are free of our history, even from the Bronze Age Greeks. The Bronze Age notion of virtue is part of who we are, including in its brutality.

Rex said...

So, are you saying that "separate but equal" is a legitimate interpretation of the founder's intentions? I think not.

True, if there is anything "unalienable" it is one's own race or sex. But in fact that is not coorelate with "rights."

Rex said...

Tom,
You write, "Political rights are not synonymous with human rights."

In the American context, except for universal salvation, then, political rights are always more inclusive than any other version of 'human' rights. Did not the founders shift from divine right of royalty to divine right of human beings? I am aware of no attempt to justify a Christian basis for human rights coordinate with, say, the UN Declaration of Human Rights. Jesus may have died for all us sinners but only those who willingly avow that are saved (i.e., entitled to human rights) right?

Daniel said...

Rex,
I think the Founders, at least some, recognized that divine rights exceeded those granted by the U.S. Legally, slaves were granted no rights, but a natural right, or divine right, of liberty was denied.

Tom Van Dyke said...

Jesus may have died for all us sinners but only those who willingly avow that are saved (i.e., entitled to human rights) right?

Well, I'm not going there, although admittedly some state constitutions did (i.e., protecting the rights of only Christians).

And slaveholders had a big conundrum about exposing their slaves to the Gospel: according to Old Testament law, slavery wasn't prohibited, but a Jewish slave had to be freed in the Jubilee year. So if the slaves became "Christian," there was a theological problem, not to mention a financial one! More here:

http://www.jubilee-centre.org/document.php?id=51

[The essay also covers much of what Daniel touches on about "natural rights."]

But before it sold out to worldly interests, the Roman church had it right, that all men could become Christian, and therefore had natural rights. My man Francisco Suarez

http://www.newworldencyclopedia.org/entry/Francisco_Su%C3%A1rez

argued against the rape of the New World in De Bello et de Indis , and at least at first, this was the official view of the Vatican.

But I find that America's unique history of slavery and race tends to gum up the works rather than be any magic key to understanding "rights." What we know is that John C. Calhoun said that all men are created equal is "a self-evident lie," but Mr. Lincoln's view ended up prevailing.

As for the UN Declaration of Human Rights, I don't know if its foundations hold, because indeed, these rights are disgrounded from God in that brilliant European post-Christian way.

Ironically, it was heavily the work of yet another [neo-]Thomist, Jacques Maritain

http://plato.stanford.edu/entries/maritain/

...the logic being that rights are rights, and universal outside any religious scheme. However, once we cross into positive rights, and inevitably into a conflict between My Right X and Your Liberty Y, we can get an irresolvable ethical conflict: it's one thing to respect another man's liberty to do what we think it's evil, quite another to be required to fight for it or subsidize it. And it's not just the Thomistic scheme of ethics that prohibits cooperation with evil.

Rex said...

"John C. Calhoun said that all men are created equal is 'a self-evident lie.'"

I am grateful to legendary Bill Buckley of National Review, even while he may (I don't recall) been a fan of Calhoun, made clear that equality does not mean identity. (It was in his verbal tussles with feminists the subject came up.) So, yes it is a lie if equality is taken as identity.

What is self-evident is that a paper dollar and a silver dollar will purchase equally, even while they do not look alike. Since the prevailing attitude is that equality is to be interpreted as "before the law," it is Calhoun who is hoisted on his own petard.