There are many reasons why the discourse of “rights” has become so prevalent over the past several decades. Some is due to the understandable and traceable jurisprudence here in the US around the idea of the protection of the individual. Some is due to the crystallization of the fight for social justice captured in the “civil rights” movement. Some is due to the amorphous concept of “human rights” which gained currency globally following WWII and as a lever to crack open the Russian empire in Central Europe in the ‘70s and ‘80s. More fundamentally, the term “rights” draws on the concept of “right-and-wrong” which has been deeply embedded in most global religious and other ethical systems for centuries and the increasing awareness of the continuing distance between moral standards and social practice.
When framed in this way, it’s hard not to want to be on the side of the angels and champion “right” and “rights.” So, while I aspire to sainthood myself, I won’t denigrate “rights;” but I will express concern with how the term has come to be used and some of the problems that have resulted.
The first point to be made is constitutional: the political philosophy which underlay the Founders’ ideas in Philadelphia in 1787 was to limit the scope and power of the federal government. The flip side of that perspective—the protection of individuals from governmental intrusion—was secondary. We can see this in the fact that the famous Bill of Rights (there is that word again!) was added to the original document as an additional constraint on federal governmental powers. For example, the 1st Amendment reads: “Congress shall make no law….” Indeed, it wasn’t until the 14th Amendment (1867) was definitively determined by the Supreme Court to constrain states (Duncan (1968)) that most of the famous litigation of the 20C built the roster of “rights” (ranging from Miranda to Citizens United) with which we are familiar. Starting a revised US Constitution with an Article I centered on citizens would be attractive. Still, historically speaking, the original premise didn’t start with the individual.
Second, “rights” in fact come in all sorts of flavors. There were moral rights and legal rights (e.g. property and contract) long before there were constitutions and the rights they created. The first arise out of human relationships, the second from a set of social norms, and the third from a more formal agreement (i.e., a “social contract”) among a group of people to carry on a society and conduct a politics together.
What is frequently missing from most discussions of rights, especially of the legal/constitutional variety, is something that is logically fundamental and socially problematic: there can be no right without a responsibility; or, to preempt a semantic discussion: there can be no right/privilege/power/immunity without a corresponding duty/responsibility/liability/limitation. In practical terms, if I have a “right” to control my body, then you have a “duty” to avoid hitting me. If I order a burrito and give you $10, you have a duty to give it to me.
These are examples of ordinary legal rights which seem pretty obvious. Things become more complicated when political/constitutional rights are involved or, even more, when “human rights” are invoked.
This is because inherent in the duality of rights and responsibilities is the need for someone to weigh, evaluate, and enforce. Rights and breaches of rights must have consequences or they are just words. In social settings, such as families, clans, villages, communions, and countries, a parent, elders, or other group fulfill this function. In larger groupings, as we are familiar, an essential function of the state is to adjudicate and resolve disputes about rights. Both domestic legal and constitutional rights carry the implicit promise of respect, enforcement, and responsibility on the part of society as a whole. Constitutional rights, in particular, represent a duty on the part of the state (as the functioning crystallization of its society) to ensure such rights are protected by both action and limitation of state action. Even in non-legal settings, a religion or social norm may provide for some judgment and consequences. Indeed, defining characteristic of international society is the absence of a sovereign with enforcement powers over the constituent states.
“Human” rights have to exist logically prior to the establishment of states (which may create their own internal “civil” rights). As a result they are necessarily aspirational, propositions which some (most) endorse, but which don’t actually exist as rights since there is no one with a direct responsibility to fulfill such rights and no one to enforce them. Much of international law in the 20/21C has wrestled with this problem and various mechanisms (e.g., war crimes tribunals, formal international courts) have approximated these functions, at least insofar as there is direct or communal enforcement power behind them.
The problem of rights domestically is different. There are many examples of rights being abridged or trampled upon; and, to that degree, the difference from the international environment is only one of degree. But more fundamentally, the frame of the debate about “civil” rights (by which I mean more than those based on race/gender/etc.) has been about expanding and enforcing them without doing the necessary work of ensuring the broader societal consensus accepting the responsibility. Campaigns for the right to health care or education, for example, usually devolve into debates about governmental budgets and the conversation about the moral nature of society which endorses or elides such rights usually gets cursory treatment. Since the power (money) usually lies with those who thereby have access (e.g., to health and education) without the need for a formal legal claim of “rights,” there is a hole in the moral structure of society that doesn’t get talked about and which impedes the resolution of rights claims.
There are further issues, particularly the question of whether rights reside in the individual or in a group (defined, e.g., by nationality, race, or sex). Historically, it is unsurprising that many of the debates have been sponsored by particular groups and have sought status for that group (claiming a particular “right”), without embracing the larger question of the extent of societal responsibility. The stories of women’s suffrage and the ERA, as well as of the Black “Civil Rights” movement (in both the 1860s and 1960s) are complicated by their struggles to gain their own status and making the political judgments about their stances about similar rights for other groups. The result is a historical hodge-podge.
More focus on the social aspects (i.e., the inclusion and responsibilities for society as a whole) and less on the formal/legal aspects would likely get us to a better place.
When framed in this way, it’s hard not to want to be on the side of the angels and champion “right” and “rights.” So, while I aspire to sainthood myself, I won’t denigrate “rights;” but I will express concern with how the term has come to be used and some of the problems that have resulted.
The first point to be made is constitutional: the political philosophy which underlay the Founders’ ideas in Philadelphia in 1787 was to limit the scope and power of the federal government. The flip side of that perspective—the protection of individuals from governmental intrusion—was secondary. We can see this in the fact that the famous Bill of Rights (there is that word again!) was added to the original document as an additional constraint on federal governmental powers. For example, the 1st Amendment reads: “Congress shall make no law….” Indeed, it wasn’t until the 14th Amendment (1867) was definitively determined by the Supreme Court to constrain states (Duncan (1968)) that most of the famous litigation of the 20C built the roster of “rights” (ranging from Miranda to Citizens United) with which we are familiar. Starting a revised US Constitution with an Article I centered on citizens would be attractive. Still, historically speaking, the original premise didn’t start with the individual.
Second, “rights” in fact come in all sorts of flavors. There were moral rights and legal rights (e.g. property and contract) long before there were constitutions and the rights they created. The first arise out of human relationships, the second from a set of social norms, and the third from a more formal agreement (i.e., a “social contract”) among a group of people to carry on a society and conduct a politics together.
What is frequently missing from most discussions of rights, especially of the legal/constitutional variety, is something that is logically fundamental and socially problematic: there can be no right without a responsibility; or, to preempt a semantic discussion: there can be no right/privilege/power/immunity without a corresponding duty/responsibility/liability/limitation. In practical terms, if I have a “right” to control my body, then you have a “duty” to avoid hitting me. If I order a burrito and give you $10, you have a duty to give it to me.
These are examples of ordinary legal rights which seem pretty obvious. Things become more complicated when political/constitutional rights are involved or, even more, when “human rights” are invoked.
This is because inherent in the duality of rights and responsibilities is the need for someone to weigh, evaluate, and enforce. Rights and breaches of rights must have consequences or they are just words. In social settings, such as families, clans, villages, communions, and countries, a parent, elders, or other group fulfill this function. In larger groupings, as we are familiar, an essential function of the state is to adjudicate and resolve disputes about rights. Both domestic legal and constitutional rights carry the implicit promise of respect, enforcement, and responsibility on the part of society as a whole. Constitutional rights, in particular, represent a duty on the part of the state (as the functioning crystallization of its society) to ensure such rights are protected by both action and limitation of state action. Even in non-legal settings, a religion or social norm may provide for some judgment and consequences. Indeed, defining characteristic of international society is the absence of a sovereign with enforcement powers over the constituent states.
“Human” rights have to exist logically prior to the establishment of states (which may create their own internal “civil” rights). As a result they are necessarily aspirational, propositions which some (most) endorse, but which don’t actually exist as rights since there is no one with a direct responsibility to fulfill such rights and no one to enforce them. Much of international law in the 20/21C has wrestled with this problem and various mechanisms (e.g., war crimes tribunals, formal international courts) have approximated these functions, at least insofar as there is direct or communal enforcement power behind them.
The problem of rights domestically is different. There are many examples of rights being abridged or trampled upon; and, to that degree, the difference from the international environment is only one of degree. But more fundamentally, the frame of the debate about “civil” rights (by which I mean more than those based on race/gender/etc.) has been about expanding and enforcing them without doing the necessary work of ensuring the broader societal consensus accepting the responsibility. Campaigns for the right to health care or education, for example, usually devolve into debates about governmental budgets and the conversation about the moral nature of society which endorses or elides such rights usually gets cursory treatment. Since the power (money) usually lies with those who thereby have access (e.g., to health and education) without the need for a formal legal claim of “rights,” there is a hole in the moral structure of society that doesn’t get talked about and which impedes the resolution of rights claims.
There are further issues, particularly the question of whether rights reside in the individual or in a group (defined, e.g., by nationality, race, or sex). Historically, it is unsurprising that many of the debates have been sponsored by particular groups and have sought status for that group (claiming a particular “right”), without embracing the larger question of the extent of societal responsibility. The stories of women’s suffrage and the ERA, as well as of the Black “Civil Rights” movement (in both the 1860s and 1960s) are complicated by their struggles to gain their own status and making the political judgments about their stances about similar rights for other groups. The result is a historical hodge-podge.
More focus on the social aspects (i.e., the inclusion and responsibilities for society as a whole) and less on the formal/legal aspects would likely get us to a better place.
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