Where Do Rights Originate?

When viewed through the lens of justification, we find the notion of rights warranted by different arguments in the pre-modern, modern, and postmodern eras. Pre-modern positions—meaning those in place before the Reformation—made no mention of rights other than those anchored in custom, sometimes enshrined in written or unwritten constitutions. Besides the authority of tradition, these rights find their warrant in an originally pragmatic balance of interests. They legitimized “rights” we might find repugnant, such as the absolute power of the paterfamilias over his relatives in ancient Rome or the seigniorial laws authorizing noble privileges in feudal Europe. Like all warrants based on authority, these relied on the trust of the parties involved. In challenging traditional authoritarian justifications, the Reformation upset ancient notions of rights and required a modernist reiteration of their source. The result was the social contract justification rooted in reason, but as the theory began in an effort to justify existing governmental structures in the work of Thomas Hobbes, it was forced to defend traditional notions, at least initially. So Hobbes in Leviathan imagined an irrevocable contract granting the king absolute power. Like all modernist efforts, this one rapidly cannibalized itself, subjecting the contractarian position to repeated revisions through the efforts of Locke, Rousseau, Jefferson, and more recently, Rawls, resulting in new versions of the contract at odds with earlier notions. These modernist efforts based on reason (see “Modernism and Its Discontents) were subject to attacks in the twentieth century thought revolution called postmodernism. Social contract theory was ripe for such attacks, but postmodernists found less support for rights theory in their own schema than modernists found in theirs because postmodernists justified law by cultural consensus at best. Also, they were deeply suspicious of aggregation of power. The resultant postmodern version of the social contract envisioned a purely conventional arrangement without moral content and implied a continual abuse inherent in the nature of authority. This sanctioned whatever arrangement served current cultural interests, yet postmodernists also expressed deep concern about the tyranny of the majority and the powerful, particularly when coupled with institutions they despised: capitalism, imperialism, and modernism itself (see “Postmodernism Is Its Discontents“). The result was an incoherence regarding the origin of rights coupled with dissension about their nature and number.

The current confusion about what constitutes rights and what warrants our claims to their existence is understandable. Originally seen as the product of social custom and pragmatic accommodation, their nature was transformed by modernist thinkers into individual possessions either retained or traded away to political institutions through some prehistoric social contract, in the process transforming them into purely civil and formal endowments of the state, subject to revocation by the state (see “Why Invent a Social Contract?“). Foremost among this incarnation of rights was total liberty, regarded by social contract theorists as the birthright of each individual in the state of nature. This prized personal possession is not, however, inalienable, as Jefferson maintained, for it is traded for security by the enactment of the contract. Indeed, it enables the contract. Forfeiture of the right of absolute freedom is the fuel that powers government in the social contract schema. No wonder contract theorists view liberty and freedom with such totemic admiration and regard government power versus liberty as a zero sum game.

Their view is hogwash. Social contract theory is a convenient fiction that legitimates government as deriving its just powers from the people, but nothing in the theory guarantees that the contract will produce justice. It simply enshrines the will of the majority, whatever that will mandates. Its fairy tale picture of autonomous man running wild and free through the jungle evoked horrors of rapine in Hobbes and nostalgia for the noble savage in Rousseau, but only sighs from the historian who knows such libertarian freedom could never have existed in a world of families, clans, villages, and elders. I will concede that Locke may have used the state of nature metaphorically. I have discussed the dangers of metaphor in another context (see “The Problem of Metaphor in Religion“), but even granting every benefit of every doubt, a metaphorical reading of social contract must fail. Locke says every person accepts the contract the moment he accepts legal authority. He trades some autonomy for security by accepting law. But this argument changes the game. We do not enter society from a state of freedom. We are born into it and our individual will has nothing to do with its perpetuation. We are not free to reject whatever political arrangements we are born into. We face the complex of law as brute fact. Where can we hide from positive law? Where is even a metaphorical state of nature for us to find refuge and failing that recourse, how can a contract between individual and state be replicated? Let us stipulate that the original social contract did not imagine individuals entering the contract but rather the majority, but even if others also choose to reject the present political arrangements, how can the theory claim that we are giving up anything by revolting against the present system? We are not born in a state of freedom, so what do we give up to endorse a new arrangement? This is not a contract but a revolution, and in such cases, we are forced to define rights in whatever terms the majority chooses. Regardless of whether we regard the state of nature as historical or hypothetical, social contract theory rejected the traditional authority of rights and replaced it with the vox populari. Contracts could be altered or abolished by the will of the people. Rights derive from contracts dictated by the general will. From the Reign of Terror to the Great Cultural Revolution, modernism produced only the conviction that rights, like laws and governments, are ephemera, arbitrary and the product rather than the determinant of laws.

So which is it? Are rights derived from pragmatic arrangements sanctified by ancient custom or from constitutions and legal compact? Are they cultural artifacts? Do they reside in the individual or in the social group to which she belongs? Do they come into being with the social contract? If not, when and where do they originate? In all of this confusion, where can we find anything whatsoever inalienable about our rights?

I think it makes no sense to discuss rights from a contractarian or postmodernist perspective because neither the social contract nor the legal positivist warrant for laws underpinning these positions can enumerate or legitimate rights. Nor can they arbitrate whether rights should take precedence over law or custom. So we see the ludicrous confusion over champions of human rights like Mandela, Walesa, and Gandhi being charged as criminals for breaking positive law in their cultures or condemned as radicals for challenging custom. We see postmodernists torn by their wish to respect cultural values—preeminent in their schema—attempting to respond to female genital mutilation in Somalia or honor killings in Egypt. Despite this confusion, we also hear loud proclamations demanding civil and human rights. On what grounds and by what warrant are these demands made? The U.S. Constitution has been altered twenty-seven times. The first ten revisions are The Bill of Rights. Its purpose is to protect citizens from the abuse of power by the state. But how can we determine what is or is not abuse? Why specify these rights and not others? Are these enumerated civil rights the sum total of human rights? Can rights evolve over time and if they do, who decides that? From what fount of knowledge does the majority determine that women were not entitled to the vote in 1918 but were entitled in 1920? It is tempting to say that we as a nation grew wiser over the years, but by what standard do we judge that increase? After all, we thought it wise to remove the right to drink alcohol in 1919 but then to restore it in 1933. If rights come and go so capriciously, how can we know at any moment the proper nature and limitations of rights? How can we defend them if we cannot answer these foundational questions? Pre-modern versions of rights rooted in custom and sanctioned by authority seem as antiquated as chain mail and tonsures today. Modernist versions rooted in the myth of the state of nature and some storied prehistoric compact can only find rights in popular will and the constitutions that follow, subject to revisions and revocations based on majority rule. Postmodernists can find no support in their schema for rights beyond convention and culture. Their attachment to subjectivist morality and experiential rationality forbids any universalist pronouncements about rights.

It seems none of the justifications for law can lay a firm foundation for the concept of rights. Perhaps we will have better luck if we begin with ethical rather than political systems. That requires a digression from the political to the personal in a search for the basis of rights in one of the correspondentist systems of ethics (see “Three Moral Systems). I confine this discussion to correspondentist systems because these provide warrants open to public inspection suited to any enlargement of private morality to the public square (see “Belief in the Public Square). Duty ethics makes no distinction between obligations to those we love and those who are strangers and so requires we treat all by the same standard of justice. Christianity reverses that equation, requiring that we treat all with equal love, never mind what they are due. Both systems require that we extend our private moral stances into the public sphere. Both suffer from what might be called a surfeit of duties, for neither allows the individual the resources to satisfy the proper needs of self or those in an inner circle of love, urging the sacrifice of those needs to some larger duty. These systems do not specifically enumerate rights nor do they embed any essential element of their ethics in rights. Neither is compatible with the pragmatic outlook of utilitarianism, which elevates individual desire as summum bonum. Utilitarianism imagines that our subjective preferences somehow average out to real goods when aggregated, though why that should happen is never explained any more than Adam Smith could explain why the invisible hand aggregates to the common good. While utilitarianism certainly allows for a polity to enshrine rights in its constitution, it does not require it, nor does it root the notion of rights in any soil deeper than the popular will of the present moment. A culture that attempts to accommodate Christian, duty, and utilitarian ethics would certainly find no grounds to enshrine rights, but then it would also find no consensus for positive law either (see The Axioms of Moral Systems).

A very powerful argument in favor of virtue ethics is its seamless progression of scale from the individual to her immediate social environment to her larger civic community that distinguishes clearly our duties to those we love from our public responsibilities, thus allowing a working distinction between public and private morality (see Toward a Public Morality”). If one is searching for an ethical system that works, she could do little better than to find one that integrates all relationships and justifies moral obligation with the same warrant. And only the political arm of virtue ethics recognizes the preeminence of rights. It is functional natural law theory.

I summarized the essentials of the private moral theory elsewhere (see “A Virtue Ethics Primer“), so I will only focus on the political implications of that private system here. Virtue ethics is based on our moral duty to flourish as persons, to fulfill our nature, to meet our needs. Though an ancient moral system, it accommodates modernist emphasis on universal reason and closely examined experience very well. The development of moral and intellectual virtue is central to that effort and constitutes virtue ethics’ core. Our primary moral duty is to satisfy our own needs. It would be immoral for us to rely on others to satisfy these needs for us, provided we can act so as to meet them on our own. But some kinds of needs simply require the cooperation of others, and these contributive needs involve seeking economic, social, and political goods in associations. Our first instinct when faced with these needs is to turn to those we love for assistance, but many of these require large-scale responses that cannot be satisfied by the bonds of love. These have always required negotiation with strangers.

Unlike social contract theory’s specious state of nature, virtue ethics sees humankind as political by nature. We have always lived in association with others. Simply looking after children and cooperating to fulfill our needs are inherent human activities requiring families, clans, villages, and societies. But this extension from the instinctive associations of love to the more fraught relations with strangers requires a shift in focus, a moral reorientation, for justice must move relationships with strangers as love must move those with family and friends (see “The Moral Bullseye“). And justice, what is due, cannot be derived instinctively because we magnify our own interests. That distortion works with those we love: we often put their needs ahead of our own or turn a blind eye to their deficiencies as they do to ours (I grant this is an ideal often abused in practice as feminist critiques argue, and so must also clarify that justice must form the baseline of family life when the duties of love are abrogated; the source of that entitlement being the source of all rights: human dignity based upon felt preferential freedom).

But justice requires a more formal adjudication of claim-rights and exemption-rights, duties clearly articulated and mutually accepted. This constant calculation of what is due is difficult and exhausting in the flux of family life, so the instinctual urge to love is abetted by the difficulties of configuring justice in intimate situations. Fortunately, our relations with strangers once we enter the public square are amenable to such calculations. As rational beings, humans deserve a say in how these common and contributive needs may best be met, and in that right to participate in meeting needs, we find the common source of political rights. We find the same operative conditions in the arbitration of retributive justice, now clarified by criminal statutes, and in distributive justice, an arena that has been attenuated by the axioms of contractarian theories and one that awaits a clear articulation in contemporary society. In truth, the question of just distributions of social goods is a central preoccupation of political discussions today, but its problematic nature is unlikely to be understood much less resolved so long as we distort the bases of political affiliations. No contract is needed to produce or protect what is due and no contractarian system can deliver human rights. As these have always protected a human need, their existence is fundamentally inalienable. Just as robbing me of food does not eliminate my hunger, so robbing me of political participation fails to stymie my need for it. I need it to flourish. Therefore, it is my right. We use the term “human rights” for a good reason. Everything humans need to flourish constitutes a human right, for without these things, we cannot be fully human. Our civil rights are a means to satisfy human rights that individuals cannot satisfy for themselves or in association with those they love. They protect our need to participate in political decisions relevant to our own flourishing. No constitution can grant or remove any rights. It can only recognize them, for they supersede laws and constitutions, existing morally prior to any formal recognition in law and remaining whether recognized or not. This is the nature and source of political rights.

All sorts of misunderstandings and exaggerations can follow from this single, self-evident truth. Fundamentally, each human need is also a human right, that is, we have a right to accrue the things we need. But as mentioned, most of our needs are entirely our own obligation to satisfy. We have a need for friendship and love, but no one can be compelled to meet that need even though we cannot entirely satisfy it by our own efforts. On the other hand, no state or person can block our efforts to satisfy it, say by means of false imprisonment or total isolation. We have a need for meaningful work, but in cases of widespread economic deprivation, that need might not be met for many persons. Such was the case during the Great Depression, wherein failures in the economic system of the industrialized nations led to a generalized frustration of this need. In cases of famine, many will suffer from a failure to meet their nutritional needs (for more on distributive justice, see “Economic Justice). In plagues, they will suffer a deprivation of their health needs, and so on. In each case, a need exists that cannot be met. Rights are violated, but unless a few hoard the means to satisfy the general needs of the citizenry, no blame can be assigned. Still, such widespread deprivation indicates a failure of the social, political, or economic order to do its job. These institutions were created and exist to satisfy these needs, or to put it more precisely, to facilitate their satisfaction. Endemic failure indicates need for systematic reform. It is also possible to see other desires as needs, or to confuse the means of satisfying real needs for the needs themselves. Rich countries encourage this confusion as a means of promoting materialist excess. We may desire a luxury automobile. No one needs it. An automobile is a means to an end. Mass transit may be equally effective in some areas. We need sanitation to facilitate health. No one needs a spa bath. Just as a superfluity of food frustrates the need it should satisfy, so a superfluity of desires obscures the real needs that arise from our final cause as human beings. These needs have always been the same, everywhere and always. Their constancy is, in fact, one means of identifying them. We know them by their presence in every culture and every age. That they were so long frustrated is one reason we celebrate the heroes and heroines of human and civil rights who help procure them. We see Anthony and King engaging in civil disobedience, Mandela destroying public property, Walesa stalling the Polish economy, and we recognize their adherence to a higher law than the positive laws of their nations. We recognize in the Thirteenth and Nineteenth Amendments the recognition of something basic and true, a bending of the arc of history toward justice, defined as giving to each what she is due. We are due the satisfaction of our needs. That is our right.

I should mention one human need that still goes wanting even in the rich democracy that is the United States. It is illegal to turn anyone away from an emergency room. Why is that? Shouldn’t people pay for the services they purchase? And shouldn’t that service be priced in accordance with free market principles? If you have followed my argument, I think you will agree that the answer is “no.” Our need for health is as self-evident as for other physical goods. For that reason, health care, not merely treatment of injuries or emergency illnesses, is a human right. Because it is a non-negotiable need, persons cannot simply walk away from its satisfaction if the price is too high. Health care cannot operate according to the laws of supply and demand because the demand cannot be ignored or minimized, negotiated or withheld. Therefore, there must be an adequate supply. Like most of our economic needs, we should satisfy this one to the degree we are able, but hoarding health care is as immoral as hoarding food in a famine or water in a drought. I suppose it is only the vested interests in the vast machinery of profit-seeking health care that blind us to this truth, one that the rest of the world seems to understand with little effort. But since the right to health care imposes a claim-right on citizens, a case can be made that in the case of a shortage, the rules of fairness should govern access to health care just as it would cover access to food in times of famine. Rationing health care is a necessity for two reasons. First, half of every health care dollar in the U.S. is spent on persons in their last year of life. This expense is an effort to postpone death and can only be justified in a for-profit business, not in one in which all share the financial burden, which brings in the second need for rationing care: evaluative decisions about all of health care today are made by persons invested in profiting from them rather than in a broad public interest, thereby diffusing and misdirecting the expertise and empirical skill that ought guide medical decisions. Fairness is not synonymous with justice, but in cases of a generalized scarcity of resources to meet a just need, fairness seems the default means of deciding, and so it ought to direct universal health care in these times of general scarcity.

Virtue ethics places primary responsibility on the individual, so we can have no delusions that political institutions can substitute for what individuals and families should do on their own. The principle of subsidiarity recognizes that the most efficient source for satisfying human needs is the human attempting the task. If circumstances or scope hinder the moral agent from satisfying it, she can be expected to turn to a circle of intimates for its satisfaction. These are instinctual and entirely natural choices.  Still, through poor choosing, mischance, accident, age, or infirmity, many people do not or cannot meet their needs and have no recourse but to seek assistance from the larger community, from strangers. I wish to emphasize this is something we all do for our contributive and retributive needs, so the request is not an unnatural one. Contemporary notions of class, race, gender, and privilege add weight to the argument that some of this need is created by the society being asked to correct it. Still, we are faced with difficult decisions as a community when confronted with this common situation that distinguishes distributive needs from contributive and retributive ones. First, are we as individuals obligated in justice to act to meet the needs of strangers? Our personal obligation to individual strangers is to avoid hindering their efforts to satisfy their own needs except in regard to contributive and retributive needs mentioned above. Of course, our duty to those whom we love is different, for here we go beyond what is just. And I need not add that the Abrahamic religions regard our individual obligation toward strangers as active in charity. But these absolutist correspondence moral systems say nothing about rights. They see our duty to be through the religious communities we participate in. This phrases the duty as an act of love, essentially moving strangers into the circle of intimacy that invokes a more comprehensive scope of duties, but it hardly regards such acts of charity and duty as the right of the needy for assistance. Even if it could be phrased as such, the source of such a right would be dogmatic religious authority rather than the stranger-writ-large that is the state, and given the broken condition of authority in today’s landscape, it is doubtful that sufficient resources could be marshalled to meet the need. Additionally, the nature of the need is global while the response must be local or at least deeply limited. Victims of natural disasters find a laudable response from religious groups moved by temporary need, but that same need continues on a world scale regardless of catastrophe and is never satisfied despite the stated duty of religion to do so. The nature of empathy allows charitable impulses to ebb and flood with one’s own attention, the result being that even the needs of one’s own fellow citizens are never satisfied (see “Empathy: A Moral Hazard).

Persons who feel competent to satisfy their own needs with the assistance of the subsidiarity of intimates and in political affiliation with government find it difficult to understand their fellow citizens’ failures to do the same, and so they may be tempted to harsh judgments justifying deprivations on the grounds of relative fairness. It requires the wisdom of Solomon and a deep awareness of the networks of support that facilitate our own success to counter the pernicious myth of the “self-made man” who arises from the state of nature, wins the capitalist rat race, and the eovercomes the indifference of strangers to satisfy his own needs. The realization that we are not free agents can be eased by denying the false premises that oppose it. We have always lived in community, and we have to. We rely on the support of those we love and on strangers for a portion of our needs even in the best of worlds. Needs are non-negotiable human rights and being deprived of their satisfaction is literally a denial of what is due, of justice. Fairness is not an accurate gauge of justice. These realizations of claim-rights are balanced by others imposed upon ourselves by our preferential freedom and the human dignity it entails. While love actively satisfies distributive justice, government can only facilitate the satisfaction for citizens who still have to do the heavy lifting for themselves. The student attends public school provided by her community, but she must educate herself by her own intellectual effort. The young single mother gets public assistance, but she must use it to satisfy her family’s needs. I emphasize economic security as a need being met by government, but that is a distortion in two senses: first because it is only one need government satisfies and secondly because we only see the disbursement and not the need its recipient must satisfy by her own efforts.  The community applies thresholds of eligibility for assistance that allow its members to satisfy their needs. The economic threshold in America is called the poverty line (see “Economic Inequality“).

This is obviously a huge topic and deserves a deeper analysis (see “Natural and Political Rights“). My central argument is that only functional natural law provides a clear understanding of the origin and nature of rights, removing discussions of distributive justice from universal charity, empathy, and fairness — all variable and incalculable–  to universal human needs, which are knowable. By extension, only functional natural law regards the minority, even a minority of one, as having inalienable rights that no power of the majority can ever supersede. As opposed to the fetishistic worship of liberty and resentment of the power of government that marks social contract theory—I would be a libertarian too if I subscribed to the theory—and in contrast to the thoughtless defense of cultural values embraced by postmodernist adherence to positivist law, virtue ethics finds in social institutions the means of satisfying those needs that individuals cannot satisfy for themselves. Those efforts in that context define our civil rights. The project of government is to deliver justice: to each her due. Our civil rights are also our civil and political needs. In satisfying our other needs, we exercise our rights, products of our human nature and not of custom, constitutions, or positive law. These are human rights.

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