We use the term rights far too promiscuously. Can we find any difference between natural rights and human rights or between whatever those mean and civil rights? We then argue about specifics without comprehending the meaning of the term we are using, its origin or limits. Worse, we can’t seem to find any justification for the demands we base on such terms beyond our own opinions. If, for instance, I charge that some governmental action violates my “right to privacy,” I am still faced with two questions. We ought to ask what the proper limits to the right are, but only after clarifying the nature and source of that right in the first place.
You might respond that privacy is specified in the Constitution or some other piece of positive law. Taken as a rule, we would then seek the basis of rights in founding documents granting civil rights. But the Bill of Rights makes no mention of “privacy,” so any search for its meaning would require some creative work, perhaps in the language of the Fourth Amendment. So far so good, but it is unlikely that a clear understanding could emerge solely from implications and connotations, as has been demonstrated by innumerable split decisions of even the highest courts in the land. Such parsing of the original intention of the framers — or perhaps our own current ones — and relevant precedent are properly the work of experts, so you might think such work beyond the competence of ordinary citizens (see “Expertise“). But it is ordinary citizens who are given the right to change that language and those rights by amendment, so any effort to defer to the experts in defining rights bumps hard against the thirty-three times the people’s representatives of the U.S. sent changes and additions to ordinary citizens for their approval. Seven of these were rejected and twenty-seven approved. Beyond majoritarian caprice, what anchors those rights that ordinary citizens or their citizen representatives choose to enshrine in positive law? Any reading of The Federalist Papers will reveal how speculative, debatable, and theoretical even the revered Bill of Rights was in its language and content, how controversial and even arbitrary its protections. The American founders looked to English law and theory for inspiration, but the civil rights they finally adopted are quite distinct from the British model and from all prior constitutions as well. Considering the intensity of the debate about adding an enumeration of rights to the Constitution, not to mention those options government chose not to include and others later added by amendment and considering the politicization of the judiciary, we might consider the actual rights we’re granted to be a pretty piece of luck…. or high-flown nonsense (see “Foundations of the Law: An Appetizer”).
But if positive law is merely intended to be a consensual distillation of a society’s most important values, then we ought not begin an analysis of rights with the civil variety. That is where we would end. Though disputes about civil rights continue, the debate quickly widens to broader philosophical outlooks. Liberals seem obsessively focused on rights protecting individuals from tradition– they seem very attached to the Fourteenth Amendment–while some conservatives question the whole notion of rights, unless one mentions the Second Amendment. The exercise has the air of “how many angels can dance on the head of a pin” because it hangs on the skyhook of positive law, ignoring the essential question. Forget any particular argument about a particular right. Consider the reductio ad absurdum that rights are whatever we decide them to be. Whether that “we” is the majority, or tradition, or judicial fiat hardly matters. For if rights are reversible by political or social desire, if they have no deeper root than whatever arbitrary and fickle source we choose to legitimize them, they can never be appealed to as a warrant for foundational protection, and they carry no more legitimacy than an alternative or than positive laws that violate them. Gay marriage rights advocates can respond to those who defend traditional marriage that they favor a new tradition. Should their opponents argue that the states should have decided the issue in their legislatures, the reformers can point out that federal law now rules. Custom replaces custom. Law replaces law. Current values win. Was it the will of the revered founders of constitutional democracy that rights be worth less than the parchment they were written on? When they are so reduced in their power to endorse public goods, what foundational power can rights exert to shape public morality?
This realization produces an incentive to go deep but its intractability drives us to go shallow. In a search for a “higher authority,” we have already seen how experts and history confound our hopes. Some will argue with our founders that some rights are given by God, but their nature and extent are more homiletic than actual. There is a good reason for religious congregants to tread lightly on the divine origin of rights for three reasons. First, congregants appealing to religious authority exhibit an unwavering trust in the truth and goodness of whatever commands they receive, yet their surrender of moral agency cannot blind them to the simple truth that other congregants trust other authorities. It is a peculiarity of religious authority that it can provide no valid reason why one authority ought to be preferred to another when conflict arises, and these are precisely the moments when an appeal to rights would be necessary (see “The Fragility of Religious Authority”)And that must hobble the appeal to sovereignty that law requires (see “Premodern Authority”). Of course, given the axioms of moral commitment at work today, it is far more likely that individuals will prefer their own truths to any dogmatic authority and their own beliefs to trust in others’ judgment, which poses a different but equally intractable problem for rooting our rights in the divine: if we believe some sacred text’s truth, we must resolve its mysteries to our own satisfaction. (see “Knowledge, Trust and Belief”). Revelation is intensely personal and cannot be used in itself to justify a moral claim on another (see “Religion and Truth”). This is the authority problem in miniature, for beliefs are founded not upon trust but personal desire which is difficult to impose on a believer in other divine truths. And religionists face a third crippling problem: the source of their moral system is absolute, and even if rights were to be conferred, they would be reversible. The system they admire does not confer rights; it imposes duties. This is easily explained by the justification that structures religion’s moral universe.What could be more sacred than the “right” of a father to protect his family? Yet the Bible denies that right to Abraham. What defense are our rights against an angry God’s will? Ask Job or Jonathan Edwards. Rewards for good behavior are promised but as undeserved gifts rather than guaranteed prerogatives. This arrangement works with co-religionists as well as with God. Muslims are obligated to give alms. Recipients could never claim a right to receive them. While the authority of a divine command seems both unquestionable and unavoidable, the interlocutor who interprets the command must, after all, be only human and subject to all the pragmatic lures and contingencies of earthly accommodation. Consider the innumerable exceptions to the clear command “thou shalt not kill.” When the duty is so easily fudged, imagine the fragility of the rights that God’s agents might grant to congregants. It seems that any effort to root rights in the soil of religious belief is bound to fail, and so it has over the millennia of rule by religious authority.
Historically, the mushiness of such efforts has been recognized, but the alternative is no better. As thinkers in the seventeenth century found themselves forced to abandon authority as the basis of all truth and goodness claims, they sought a replacement axiom for public morality. This movement is modernism. But the nature of these replacement warrants for goodness claims was fundamentally different from authority. The new warrants were individual means of knowing truth and goodness, and so the locus of moral power shifted to the individual. The primary challenge was to reestablish a foundation for social order in the wake of the bloodbath that was the Protestant Reformation, so early modern thinkers focused on finding some means to justify law without relying on authority (see “Modernism’s Midwives”). Their search was channeled by the ad hoc intellectual tools they had at hand to replace the timeless traditions of authority. Theorists settled on two replacements over the course of two bloody centuries: universal reasoning about the root of political affiliation based on an examination of individual experience. But this solution was twisted by the dismal conditions of its origins, for the cultural climate of war of all against all had formed the basis of these intellectuals’ experience. It is understandable that they cobbled together the justification they chose, but that makes it no less regrettable (see “Why Invent a Social Contract?”). They fabricated a function for law out of whole cloth, one that gave due deference to the individual. More than due deference. The social contract theorists, born into a tradition of absolute authority now in chaos, chose to give absolute power to the individuals who now could rise out of the ruins and create a state from nothing more directive than their individual will and nothing more permanent than majority desire.
Now this myth, perpetuated through the last three centuries in all of the variations that reason and generational experience could bring to it might have done little harm had it been taken as seriously as the Hellenistic Greeks took Mount Olympus. The sad truth, though, is that it was appealed to as a real source of government legitimacy, interrogated as a blueprint for both legal power and individual resistance to it. And as its greatest theorist, Thomas Hobbes, made very clear, it provided no space for any rights not written into the contract. The results have been truly corrosive to our own times (see “Alienation of Civic Affection”). The imaginary and almost instantaneous shift in individuals’ relation to authority has in theory made it contingent on their sanction but in practice has made it responsive only to what majorities approve. Later contractarians were so insistent on the necessity of government’s moral neutrality that they utterly rejected any natural moral commitments beyond those that persons carried from the state of nature into civilization, those written into the original constitutions empowering government. Scarred by the peculiar intractability of wars over competing religious authority and throwing themselves upon the fiction of the state of nature, they left all defenses of natural rights to the terms of the original agreement. This sterile refusal to protect any natural rights beyond the most inarguable human capacities led the historian Leo Strauss to charge in Natural Right and History that the Enlightenment could not defend any conception of rights at all. This disconnect between the origin myth of government in theory and in practice was reinforced by the utilitarianist rejection of rights as “nonsense upon stilts” as well as its utter reliance on majoritarian will. It is not an exaggeration to claim that modernist theories of government not only could not defend rights but in theory and practice rejected them.
The postmodern revolution of the twentieth century only stirred up more muck. Thanks to its suspicion of all institutionalism, persons now are reluctant to engage trust at all and so give governmental authority only a wavering sanction and only when they approve of its decrees (see “Postmodernism Is Its Discontents”). Again, this forfeiture of trust and inconsistent endowment means in practical terms that nothing beyond majority will can act to resolve dispute, and postmodernists regard that expedient as coercive and hypocritical defenses of entrenched power. But our present moral disarray can provide no axiom of commitment to underwrite a clear majoritarian decree, so that in practice all efforts are both tenuous and reversible as temporary alliances shift (see “The Axioms of Moral Systems”). No wonder Americans look to the Constitution as the ultimate fount of rights, at least when they are not piously repeating Jefferson’s pitiful enumeration of those more fundamental. Life, liberty, pursuit of happiness? Could anything be more vacuous? If these, the only nonpolitical “rights” most Americans can name, are so vague as to offer no hope in settling moral conflict, what can replace them? And if they are more directive than I think they are, why are they not enshrined in the Constitution?
It is possible to argue for a rights theory from a modern perspective that rejects contractarianism while it embraces the universal reasoning on individual experience that are the root axioms of the modern experiment. It necessarily must begin by rejecting contractarianism as a fatally flawed experiment in modernist cannibalism whose torturous foundations in the Reformation must distort any government built upon its premises (see “Modernism and Its Discontents“) . Rather than build all positive law upon the clear fiction of an imaginary state of nature and an artificial association of free agents — a lie cannot support itself much less all the machinery of government — it can be built upon real self-evident truths that every citizen must endorse whatever their axioms of moral commitment.
This can be done by finding the intersubjective reality hiding in the plain sight of differing individual experience. It requires that you dig deeper into your universal experience of freedom, allowing you to define both the origin and nature of natural and human rights without appealing to external authority, without surrendering to the general will of whatever political system you happen to live under, and without championing divisive and competing interests, either group or individual. In other words, a proper understanding of rights requires that you seek what is common to all persons’ experience rather than what is different for each. It relies entirely on an a priori capability that no person can deny and that all know they possess. What grounds natural rights is the felt natural freedom of persons to recognize goodness options in experience (see “Our Freedom Fetish“). Your mind cannot help structuring experience so as to allow choices to present themselves to your reasoning at every moment of consciousness. This natural freedom requires for its functioning only the basic reasoning structures of the mind, so the natural rights that enable it are the most elemental requirements of freedom. Jefferson’s little list is illustrative of these very basic requirements of choice.
But natural freedom only sets the table for your goodness preferences by preconsciously presenting you with a banquet of options for each processed experience. Because it is both universal and utterly pedestrian, you might ignore this endlessly repetitive sequence that dominates every moment of your attention, but a focused attention will demonstrate that it is natural freedom that presents you with the option of reading the next sentence or doing something else in the moment when you reach the period at the end of this sentence. You do not have to summon natural freedom. It is always there, mining each experience for the potential goods we can secure without our conscious attention. Yes, we must have life, senses, and the mental capacity to see the gift our understanding gives us, so these most basic rights are necessary but only as prerequisites for the real feast of preference, of actually choosing from among these choices the one we think better or less bad.
We must tap some reasoning process of preference, of distilling goods from raw experience as we pursue our own flourishing by whatever metrics we use to chase it down (see “Truth and Goodness Do a Dance”). This preferential freedom is the great responsibility of the human person, calling us to choose well with full awareness of the duty to our own fulfillment that it imposes. This is the great claim-right that morality exerts upon our nature. It conveys a dignity to human freedom that allows us to claim our human rights, those needs whose gratification allows us to live fully human lives. These human needs that are synonymous with human rights are definable, limited, universal, and non-negotiable (see “Needs Anchor Morality“). And one of them justifies government.
If you have followed the story thus far, you might be justifiably suspicious of any set of needs handed down, as it were, from on high. Why accept them on anyone’s authority? What about modernist warrants of universal reason and individual experience and the autonomy of the individual that allows each to choose for herself? That is a fair question, but its answer merely relocates an appeal to your own reasoning to justify common human needs rather than sacred dogma or cultural tradition. I have always objected to the truism, “Well, everybody’s different.” That is surely true in regard to their tastes and desires. But both reasoning and experience tells me that at a deeper level, everybody is the same, and just as that fundamental shared nature imposes common nutritional needs on us all, so too does it grant us a common reasoning faculty to make sense of varied experience and communicate it to each other. We have abundant proof of that contention, from ordinary language’s ability to communicate differing experience to mathematics’ claim to universal logic. But perhaps we might find sufficient proof by examining the ubiquity and power of simple choice in each of our lives. The mental operation of recognizing options, weighing them, and choosing the best or least worst must always be profoundly rational (see “The Tyranny of Rationality”). This is the nature of moral autonomy, a peculiarly human process that relies on reasoning about experience for its power. It defines our humanity and shapes culture and government as conduits for fulfilling the needs it identifies.
Notice that the kinds of needs I am talking about are distinguishable from other human desires by their unique nature. They are invariably universal, transcultural, and timeless and they conduce to flourishing. They are also incommensurable, all being necessary for functionality, while being at the same time mutally reinforcing. Though they facilitate the satisfaction of other desires, they also form ends in themselves: we want them for their own sakes. Since they derive from the species-specific nature of the human being, they have always existed in every culture for every person. Their satisfaction is necessary, for failure substantially diminishes a complete human life. That does not mean, unfortunately, that persons invariably pursue their satisfaction successfully, for identifying their instantiation in the helter skelter of ordinary life requires both thoughtfulness and persistence and often a temperance to resist more immediate desires. It also requires a prudential and hypothetical arbitration of true goods so as to recognize both their incommensurability and their urgency in daily experience. Though they present themselves variably as experience reveals their presence to natural freedom and though we seek to respond to them idiosyncratically, true needs cannot be ranked or ordered or long neglected, which means the prudential arbitration of preference must frequently say no not only to unwise desires but also quite needed ones in favor of others more necessary at the moment. Who hasn’t had to push through work when tired or study when called to play? This pursuit of the totum bonum, the real goods that accrue to good choosing, is the essence of the universal moral system first sketched out by Aristotle over two thousand years ago called virtue ethics (“A Virtue Ethics Primer”). While you might think such a span of time and such a diversity of cultures might produce a list of needs too lengthy or too general to be of much help, the opposite is true once you strip away the cultural instantiations that we frequently mistake for the needs themselves. You could compile a list for yourself in short order by applying the criteria listed above. The totum bonum of human flourishing you might compile would look much like these:
Bodily Goods: health
Economic Goods: economic security
Goods of “the Soul”: love (of others), awe
Intellectual Goods: knowledge, skill, judgment
Political Goods: justice
Character Goods: temperance, courage, prudence
Let me anticipate your objection. If these are supposed to be universal, transcultural, and timeless human needs, then why are they not universally accepted? Why these and not others?
My answer must begin with admitting that people value all sorts of pursuits, but then they must admit that many of these pursuits are contradictory and self-refuting, and therefore impossible to fulfill as a totality. It seems most of us simply cannot get out of our own way. If we are indeed homo sapiens, “wise men,” then wisdom must consist in ordering our lives so as to get what we think good as much as possible, and that entails having some sort of moral framework that lends consistency to our efforts. The goal of any ethical system is to find the Goldilocks position on the spectrum of human desires, neither ignoring nor surrendering to the temptations of what we do want while also establishing enough directive force to justify what we should want. Of the three universalist systems that appeal to close reasoning about experience as their warrant, one, utilitarianism, fails because it elevates what people do desire, making their varied choices the supposed object of morality. This effort is self-defeating (see “The Problem of Moral Pragmatism”). The second system, invented at the same historical moment, fails because it overcorrects. Duty ethics pays too little attention to motivating persons to pursue its rigorous conception of moral obligation (see “Three Moral Systems”). Only the third, virtue ethics, gets it right, but its problem lies in according to its values sufficient directive force to convince skeptics that these are the goods they should value, rather than the varied desires modernism’s founders conceded to, especially in this postmodern epoch that views any moral system as an abuse of power (see “What Do We Mean by ‘Morality’?”). So in looking at the list of needs posted above, we should ask a simple question: why these and not others?
I think the list works because it meets the definitional criteria of “needs.”
First, it is truly universal. In opposition to the contemporary denial of a common human nature, it takes a species-specific human telos as an axiom. It hardly matters whether such a directive force is divine or evolutionary. We are driven to seek certain goods, some instinctually and some by reasoning about our experience. The satisfaction of these needs conduces to proper human functioning in just the same way as a nourishing diet conduces to health. The effort is a lifelong pursuit marked by intricate individual and cultural variations and confused by a rich variety of often competing desires. Through most of human history, human flourishing was stymied by widespread scarcity and inequitable distributions of the requirements for its satisfaction, though the absence of opportunity did not diminish the need at all. For advanced countries, the problem has more recently been the opposite: a cultural emphasis on the power of private desire to define private goods, a surfeit of satisfactions, often produced in response to materialist and pragmatist values that falsely equates goodness and desire.
That introduces the second strength of this enumeration: properly pursued, these goods in themselves are not contradictory. This is a factor in their incommensurability and also in their mutuality . Whether a beneficent creator or a ruthless struggle for survival instilled our needs, we should not think them in conflict with each other. We cannot appeal directly to our desires for verification of their moral value because such an appeal would drive us to choose one over another, but that is not true of our needs, whose proper gratification involves no inherent conflict. The need for skill, for instance, moves us to professional activities and to recreational ones that service our need for health and ought to be developed most assiduously in the development of one’s intellectual goods.. The need for love moves us to friendships that satisfy a fundamental need while also lending subsidiarity to our other efforts in times of trouble. Some of our needs are instinctual in their demands but rational in their degree of satisfaction. Try staying awake for twenty-four hours and your need for health will drive you to sleep. If only all needs were so obvious! Instead we are faced with instincts we are forced to deny: aggression, tribalism, egotism. So even the most pressing instincts that call us to satisfy animal needs must be inspected by reason and arbitrated by judgment. Our “higher needs” require a more careful exercise of reason to experience. It is temperance, the disposition to resist desires that are toxic, that makes us close that bag of chips in pursuit of health rather than gratify our desire to gobble it all down, courage that quells fear and moves us to unfamiliar opportunities, and prudence that balances our efforts so that no need lacks its satisfaction.
I must clarify the point I made above about what constitutes “proper gratification” of our needs, for admittedly we might gratify any need to excess. How do we determine that? We realize it when our pursuit of one need interferes with the satisfaction of others. Prudence is a very old-fashioned word for what is now often termed “life-balance.” It is this element of rational arbitration of not only our vicious desires but even of our admirable ones according to circumstance that gives virtue ethics great moral and directive power. Prudence acts as a secondary operation of reason, though. It does not operate upon determinations of truth, of grasping the reality of the situation we face. That is a prior act of discriminatory reasoning that mines an experience for options. This presentation of a perceived reality to reason ought to operate upon a set principle, an act of severance, that delays any operations of preference. For prudence must always concern preferential freedom, the weighing of options that can only come after natural freedom presents them to consciousness. Consider prudence the application of categorical reason to undistilled experience, the interpretation of unique context to considerations of desire and duty, to needs and wants, to love and justice. These categorical considerations must always act upon a prior determination of truth in experience, and it is only their operation that distinguishes a competent preference from an arbitrary one. Indeed, it is the mastery of fitting undistilled experience into such categorical boxes that we gain the habits that power virtue ethics. It is important that the act of severance operates independently of preference, for we are naturally moved toward our instinctual and animal desires that put them in conflict with higher needs, requiring an active rational commitment. That necessary endeavor to pursue a virtuous action even when difficult requires the development of courage.
These specifications demonstrate the list’s final advantage: far from conflicting, these goods are mutually reinforcing. We use our defining human trait, our reasoning about experience, to build an understanding of what it means to live full lives and what detracts from that effort. Through repeated thoughtful endeavor we form our character so as to habituate ourselves to good choosing. This is the human quest, practiced through all cultures over the course of human history. We can deny that quest but we cannot avoid it. Virtue ethics confronts it by requiring an intellectual virtue wherein reason comprehends the desirability of needs and moral virtue wherein will masters the habitual disposition to want them. The constant demand on our reason to recognize and our will to control our preferential freedom is simplified by the cultivation of habit, whose development underwrites the essential morality of preference. Even innocuous choosing reinforces or erodes habits, whether consciously attended or ignored. Again, preferential freedom becomes either the tool of virtue or its consistent enemy.
We are morally obligated to seek all of these things because they are true goods. That is what makes them the essential human needs. The moral burden for their satisfaction falls almost entirely upon the moral agent herself. The clear exception is the mingled duty and desire of loved ones to assist the effort as they are able. This may be the very definition of love: actively helping intimates to meet their needs. Strangers are morally obligated to abstain from hindering that pursuit (see “The Moral Bullseye”). They exert a claim-right upon other strangers to allow them to satisfy their own needs, thus prohibiting theft and bodily harm, pollution and prejudice. But that same space provides an exemption-right to both parties to abstain from being forced to assist in that pursuit as individual strangers.The clear exception to this hands-off policy involves the relation of citizens to their governments. That relationship bears some similarity to the kind of formal exchange of exemption-rights between individual strangers, for government is the ultimate stranger-writ-large. It does not know us and cannot respond to our needs with a caring love. But government bears a resemblance to those we love as well, in two specific ways. Like those we love, it is specifically bound to the citizens who sustain it. It is not at all anonymous and interchangeable like someone we pass on the street but is instead sui generis, one of a kind. Any stranger can sell us the goods we need or obey the stop sign at the corner. It does not matter to us which of the millions of interchangeable strangers engages in the formal relationships we have with them as individuals. But government is not like that. Because it must claim sovereignty in law, it must be singular and identifiable, a will with a face like those we love. We cannot forego it or exchange it for another. Secondly, like family, government satisfies particular needs nothing else can. Our large-scale needs move us to engage in civil government just as our need for love moves us to friendship. Justice regulates these contributive relationships with strangers just as love regulates the relations of intimates. Feminist theorists remind me to observe that even in what should be the combined duties and desires of intimates, justice must be the backstop when love is absent for the simple reason that human dignity demands the satisfaction of needs. But it is necessary to observe that this kind of last resort is hardly a satisfactory substitute, as when families settle their disputes in Family Court. Justice cannot provide what love ought to give. And this is true not only within families but within polities. A thorny issue that contractarian principles has almost ignored is the need for distributive justice. It may be defined as the duty of government to satisfy citizens’ needs when they cannot, needs that other citizens can satisfy for themselves with the aid of subsidiarity. These distributive needs are quite different from the contributive ones that government is established to supply, for they affect only some rather than all. Everyone ought to benefit from a working economy, so questions of just economic distributions are contributive ones affecting all. But persons lacking the resources to meet their own health needs, for instance, appeal to the collective will of strangers-writ-large to assist them when circumstances demand. Polities must assist them when just and necessary (as an example, I have explored the issue of justice in pursuit of economic goods in “Economic Justice”). It is their necessity as well as their universality that confers on these human needs the status of human rights.
Allow me to explore how human rights works in our health needs as an example. It is easy to see health as a requirement for a good life. Yes, we can live without it, but at a critical cost that cannot be repaired by other pursuits. To be fully human requires health. It has always been so in every culture. Its possession is partially a matter of chance but largely within our preferential freedom to pursue or ignore. This imparts a very heavy moral burden on us, for not to seek health is a moral evil. No one has the right to take our health from us. The attempt would also constitute a moral evil.
I have made this example as anodyne as possible both to provide clarity on the relationship of rights to a larger moral system and to distinguish it from the legions of claims persons make that fail to meet the requirements of a right. These claims, all of which are tangential to the true nature of rights, are of four types: associative, foundational, cultural, and intermediate. Call them pseudo-rights or proto-rights or rights light if you wish, but do not mistake them for the real thing. They lack the morally directive force of rights (“These you ought to choose if you wish to flourish!”), or they mistake the part for the whole.
Jefferson’s triad in The Declaration of Independence are not rights in themselves, but are associative with true rights or foundational for their pursuit.
It is true that “fulfillment of our human needs” is but a clarification of “pursuit of happiness.” We have all heard lots of nonsense deriving from the putative “right” to pursue happiness, but that term without further unwrapping is so nondirective as to be useless in resolving moral choosing, much less moral conflict.
A failure of a different sort attends Jefferson’s other two “rights.”
Yes, it is good to have life as a basis for living, no doubt. But “life” is simply associated with the pursuit of our rights/needs as an assumed condition. He might as well have mentioned “the right of thinking” or “breathing,” or other characteristics equally generic. Were we to even try to consider it as the real thing, the existence of a legal death penalty alone would violate this “right.” Remember that depriving one of a right is a moral evil and that it is the existence of actual rights and the universality attending them that legitimizes positive law and directs civil disobedience when positive law violates human rights (see “Preliminary Thoughts on Civil Disobedience: Natural Rights Issues”). Were “life” to be such a right, every citizen would be morally bound in justice to “alter or abolish” the government that violates it with a death penalty.
Jefferson’s terminology and indeed his entirely inconsistent view of the nature of rights stems from John Locke’s equally error-ridden acceptance of social contract theory, which I have previously explained as providing no space for pre-existent and non-political rights and fails to safeguard the rights of minorities. This error taints the culture in regard to Jefferson’s use of “liberty” as a right. It is not. Rather it is a necessary foundation for choosing, something so central to the human person that its exercise literally defines our existence. Seven of the eleven human needs listed above concern directing preferential freedom to moral ends since choosing well is our primary human responsibility. The rights that attend these needs justify education and civic participation and the political order that strengthens them. While freedom is a prerequisite for choosing well, it hardly assures it, so to call it a right is to misdiagnose its role. It isn’t a bad thing to call attention to the preconditions and process of choosing well, the machinery of virtue. But it is a grievous mistake to substitute the beginning for the end. That confusion attends the use of the term “natural rights,” which properly describes these kinds of preconditions for preference. Natural rights attend natural freedoms that set the table for the act of preference whose object is the securing of human rights.
We see a different and more understandable confusion in regard to the instantiation of needs within cultures. The wonderful variety of societies, geographic and historical and tailored to climate or ethnic tradition or fad, may blind us to the universality of the pursuits all cultures endorse. Regardless of what is for dinner, the squid or papaya or noodles must be so digested as to provide the necessary nutrients for the same kind of human body. Hay or nitrogen will not do. It is an understandable mistake that whatever local tradition serves to satisfy a universal human need must be the only means to satisfy it. Tradition alone is no guarantee that the culture has gotten it right, and appeal to cultural consensus, with its easy but diffused stamp of authority, must always bump against the obvious historical truth that cultures both differ and get it wrong (Cultural Consensus”).
This is the error of those who insist on the inviolability of their version of marriage on the basis of tradition (those raising religious objections have a different warrant, though it is in the interests of both justifications that they present them as one). Marriage is one means of satisfying a human need for love. Since homosexual marriage is another way of satisfying that same need, both may be considered as cultural manifestations of a human right. Some might attempt to defend child marriage by the same means, but as that violates health rights and so produces contradiction of other needs in persons favoring it, it cannot qualify as a right for this reason: we identify moral error by seeking conflict among those things we take to be needs; finding it forces us to reexamine our values. Though our needs have remained unchanged since we first walked on two legs, our understanding of their nature is still evolving. Until 1973, opponents of homosexual unions could appeal to the putative expertise of the American Psychological Association to justify their position that homosexuality, like child marriage, was a disordered relational arrangement, but that position has since been reversed. Critics may charge that this reversal impugns the expertise of the APA and treats rights as just another cultural endowment, leading to the common view that “rights” are simply another name for social preference. That charge strikes me as a convincing one, but as it is aimed at the human sciences, themselves wholesale trespassers on the public trust, it denigrates psychology rather more than the concept of rights (see “The Calamity of the Human Sciences”). Cultures and religions change, sometimes for the better, but their obligation to support the satisfaction of our needs remains constant.
Those that oppress women, endorse slavery, exploit or abuse classes or ethnicities or religions are all appealing to either positive law or the diffuse authority of tradition, but these practices fail when challenged as violations of rights. Positive law’s justifications collapse when confronted by the rights they violate since the rights form the moral basis of the law to begin with. And appeals to authority must fail when dissent is taken seriously (see “Authority, Trust, and Knowledge”). Of course, the culture can then appeal to intimidation or coercion, but such tactics are expedients that violate justice and generate disaffection to the degree that they repress rights. There is a reason we say we “hunger” for justice. The metaphor compares an instinctual need to a rational one: neither desire lessens with deprivation; both will always demand satisfaction.
More often, the various political and religious systems endorsed by cultures satisfy the true human needs of their members as individuals. No culture or government is of itself superior unless it more perfectly facilitates the satisfaction of the needs that make it necessary. We see studies of Japanese or Mediterranean diets that boost health in comparison to the American diet that encourages obesity. We may, and do, say that these diets are morally superior because they are nutritionally superior, meaning they better serve a true human need. If we could say the same thing about any religion or political or economic system, we should. We should not say it because it is ours. We hear plenty of boasting on this score: that ours is the best country on earth or that one nation enjoys an exceptionalism that makes it superior. Most persons who make such claims know little about life in other countries, but a recognition of the universality of needs gives us all a true basis for comparison, not only about political structures whose entire purpose is to further their satisfaction but also about economic systems. There seems to me a real flaw in economic metrics that gauge only the efficiency of the means of production rather than its effectiveness in furthering the broad array of needs they exist to satisfy. Current economic measures of success are like evaluating the internal workings of a motor without considering its function. It may be humming along perfectly without doing any of the work it was made for, wasting fuel and delivering nothing but heat and noise. GDP, GNP, and other metrics assure us the machine is running, but no quantitative analysis can guarantee that it is accomplishing its purpose. That judgment, like those that weigh other elements of the social machine, rests entirely on kind of justice the economic system delivers to its participants. No quantitative method can measure this, though the human sciences in their dismal quest for empirical status continue to denigrate human dignity by claiming the power to predict and direct moral preference.
A clear enumeration of needs facilitates more than these broad assessments. We may also use such specifics to test our understanding of a particular cultural practice and the rights affected by it. Privacy “rights,” for instance, are a cultural creation, not a human right. Proof lies in the various cultural practices that increase or decrease the degree of privacy considered appropriate by the culture. The variance forces the admission that privacy is a cultural concept subject to change. It cannot be claimed as a right, though the culture may still choose to value it as an innocuous custom like shaking hands. As much as we might defend such practices from our own perspective, they fail the test of universality that would mark them as real needs. It is these differences that give cultures their character. We say such things define a culture, but what we should say is that they differentiate one from the other. That appraisal only reinforces a realization that a deeper level, all cultures exist to facilitate the same goods for the individuals endorsing them. These goods are the often-invisible bulk of the cultural iceberg, nine-tenths out of sight, while we focus on the one-tenth of difference that we say defines each as unique.
But why cannot cultures also claim needs peculiar to each? Frankly, such an effort must fall victim to the law of infinite regress. “Culture” is not a definitive term as “human being” is. While humans differ in degree but not in kind– we all have, for instance, the same nutritional needs but require relatively minor differences in, say, caloric intake– “culture” is necessarily composite in form. We are soaked in cultures: cliques at the job, clubs after work, hobbies, friends, classes, sports, religious affiliations, websites. Every pursuit and project is a culture, every interest and passion, every skill and association. And each projects some set of values or goods. Every culture contains other cultures right down to the individual. Part of our confusion about the nature of rights involves claims by cultures, subcultures, and sub-subcultures to rights exclusive to their group. But since the only indivisible and yet universal component of any culture is the individual who forms its fundamental unit, isn’t it more appropriate to root rights in her nature rather than some composite corporate nature designed to satisfy some part of it? This claim is supported also by the foundational and associative conditions necessary to identify our needs, for we must use reason and experience to exercise judgment about how to proceed, and these are profoundly individual warrants for our truth and goodness claims. Only our common species-specific nature allows the existence of universal needs and avoids the conflict that the invention of cultural “rights” would create. Imagine that we embraced their existence. How would competition among such “rights” be arbitrated, except by majoritarian vote, and then what would protect a minority culture? But if we root rights in the individual and the universal needs she must satisfy, we find more than sufficient cause to protect the human rights of each individual in a community or polity.
An example of how cultures grope toward this truth is the evolution of the term women’s rights. For all the post-Structuralist confusions and diversity of viewpoints inherent in third-wave feminism, its consensus on degendering and universalizing has moved it in the laudable direction of championing “women’s rights as human rights.” In the worldwide culture wars, the oppression of women by traditionalist societies has rightly provoked the ire of human rights activists who phrase their objections as needs/rights arguments. Champions of children’s and workers’ rights structure their protests against exploitative cultural practices in nearly identical terms.
These signs of progress are shafts of light in a wearying blur that retards progress and promotes moral ambiguity. We are far from a clear consensus of how identity is formed. A fog clouds our vision at the intersection of individualism, culture, and law. Its source is a tripartite historical disagreement discussed at the beginning of this essay. An ancient view sees culture as rooted in traditional community and justified by authority (see “Tao and the Myth of Religious Return). In this model, the individual is the recipient of moral tradition rather than its arbiter. Therefore the institutions of tradition are formative: the transfer of trust that authorizes authority to act as the agent for the individual requires that the authority directs moral choice, not the person who trusts it. As noted above, modernism rejected this view in favor of the moral autonomy of the individual, but it did us no favors in rooting legal power in the fiction of the social contract, thereby placing individuals in opposition to the communities an earlier age had considered their moral superiors and reducing natural rights to just another arbitrary item on that negotiation. In these efforts, the individual only provisionally extends trust to institutional authority, engaging in a yo-yo effort of constant re-examination of the transfer of trust, a monitory practice of active sanction interacting with the authority’s moral choosing. This may be described as an informative interaction between moral agent and the authority she endows with a very tentative kind of trust. The historical arc of this process has eroded that trust as institutional authorities continued to maintain their pre-modernist prerogatives in the face of their own hypocrisies, most obviously in the last years of the nineteenth century (see “The Victorian Rift”).The postmodernist revolution of the twentieth century layered on its own confusions sown by the human sciences over the last century and the self-contradictory theories cobbled together to reconcile them, finding identity created by subculture in opposition to an oppressive sociopolitical power structure (see “One Postmodern Sentence”). The reaction may be called a performative one as postmodernists seek to clarify their utter independence from the power of the authorities they must confront. The manner in which individuals embrace these three poorly understood and contradicting theories of moral identity and culture will dictate their conception of their moral duties and rights vis a vis the larger community. What is clear about this mess is that no cultural consensus can derive from it to guide public morality to a clear articulation of rights.
Using a functional natural rights orientation, though, gives us a basis for judgment. Cultures have practices that may be morally good, innocuous, or malicious. Orthodox Jews avoid shellfish. Vegans avoid meat. Gang members avoid the law. We can easily discern which cultural practices satisfy human needs, violate them, or leave them alone. Community values should encourage the satisfaction of needs through customs for the real good of the individuals composing the community while also distinguishing which needs are solely the individual’s responsibility to satisfy. These distinctions recognize both just and unjust equalities and inequalities that operate within the society and attempt to mediate them, though never with complete success (see “The Riddle of Equality”). Cultural practices that frustrate the satisfaction of needs should be discouraged, for they constitute violations of human rights.
A final error involves mistaking the intermediate means we use to satisfy human needs for the needs themselves. Just as we see manifold cultural routes to their satisfaction, so do we see even more individual means within communities. Some are variable. My need for skill and a moderate level of wealth prompts me to seek employment and the means to travel to my work. How I get there is not the point, so any effective means will do so long as it proves reliable. In my pursuit of health, I attempt to eat well, neither too much nor too little nor the wrong kind. In satisfying this need, I also may choose among manifold options, all of which are matters of taste so long as all satisfy nutritional needs. And so it goes. Merely contemplating all the components of health and our self-regarding obligations involving them is exhausting. Like many needs, however, a societal obligation complements a personal one. A work-week sufficient to develop skill, work in safety, provide a living wage, and allow the leisure to renew commitment is not within our individual power to command, perhaps. So we see laws regulating compulsory education, workplace environment, minimum wage, and length of the work-week. None of these intermediate means to the common end of health, skill, and economic sufficiency is set from outside the culture, but all transcend cultural standards in conducing to the health of workers. We don’t need to think too hard about the working conditions of diamond miners in South Africa or children in Victorian England to see the cultural manifestation of moral evil relative to this need. Similarly, medical care is partially self-administered and partially provided by the culture. It makes little sense to regard such provision as a free market operation: the need for health being non-negotiable, a just society must make it accessible to its citizens regardless of their ability to pay. Medicare and Medicaid in the U.S. are predicated on this recognition. The issue of whether taxpayers should sponsor or correct baneful personal behavior is thorny but soluble (see “Income Inequality”).
The task of meeting human needs is endlessly frustrating and always absorbing. It must occupy our full attention for the very simple reason that we simply cannot help seeing experience as an endlessly forking path. Each fork illuminates a choice presented to us by our natural freedom and requires reason to exercise our preferential freedom to choose the better as we see it. That responsibility is inescapable and difficult, yet everyone who has ever lived has faced it, and so long as we are homo sapiens, we must continue to confront that unremitting sense of felt freedom (see “The Determinism Problem”). Rather than imagine civilization to be merely a convention restraining our barbarity, an understanding of the universality of needs and their satisfaction as natural rights moves us to recognize the true meaning of the common good (see “Two Senses of the Common Good”). And rather than see government as a thief of freedom, we may see it as the bearer of justice: to each her due (see “Natural and Political Rights”).