Talking About Rights

Key thinkers and thoughts on the notion of human rights:

Given that all we seem to hear about today is rights talk (‘I have a right to this, I have a right to that, etc.’), and hardly any talk about our responsibilities, it is fitting to take a few moments to offer a bit of common sense and clear thinking on this matter.

There are various rights: human rights, civil rights, sexual rights, social rights, privacy rights, economic rights, etc. They keep mushrooming, with folks demanding the right to abortion, to homosexual marriage, to “change” their sex, to have free health care, to stay illegally in another country, and so on. We need to step back and see what exactly we mean when we call for various rights.

Of course the notion of rights and related legal and political matters go back many centuries, and there are complex and overlapping discussions to be had about all this. To help me out here I simply want to refer the reader to four important books penned in the past 40 years on this, and share a few quotes from each one. Ranging from more general thoughts to more specific issues, they provide some important introductory food for thought.

Nigel Biggar, What’s Wrong with Rights? (Oxford University Press, 2020)

A wide-ranging work examining rights from moral, legal, political, philosophical and theological perspectives.

‘A human right’ is a kind of natural right, since it is a moral claim that is supposed to be grounded in human nature or, more exactly, in the constant dignity that is the possession of every human being. Talk of human rights became increasingly common after the Second World War in reaction against the idea that the only rights that exist are those posited by a particular legal system—and that where, say, Nazi law in Germany denies legal rights to German Jews, the latter simply have no rights. Gainsaying this, the idea of human rights asserts that German Jews, alongside African Americans and Chinese Uighurs, possess certain moral claims even where positive legal systems deny them.

 

When human rights are said by advocates to be ‘universal’, what is meant is that they should find the same or similar legal expression in every political society. Such an assertion is contested by Asian and African critics who regard human rights as more Western than human. I shall argue that rights are universal in the more limited sense that the phenomenon of a more or less legal right (probably) appears in every society, though which rights are granted, and how securely, will vary according to cultural and political circumstance.

 

Finally, ‘an absolute right’ can be one that is unconditional, subject to no qualifications. In particular, the Hobbesian natural right, existing in a state of nature where there is no moral law, is absolute in the sense of being immune to any qualification by moral duties. More generally, any right whose definition incorporates conditions is absolute in the sense of pre-empting further qualification. What is usually meant by ‘an absolute right’, however, is different and more interesting namely, a right against a kind of action supposed to be intrinsically wrong, which, therefore, must always be granted and may never be suspended. The paradigm of an absolute right is that against torture. (p. 9)

And this:

The alleged rights of personhood are the most prominent candidates for the status of natural rights. Closely related to these are those political rights supposed to stem from the view of human beings as free and equal persons—rights such as those to political equality and participation. Since these assume a settled, political context and are therefore positively legal, what talk of ‘natural rights’ refers to here is not rights in a state of nature, but legal rights justified by the goods of human nature. I myself accept that all persons are equally dignifed by responsibility for defending and promoting what is good in the world under created or given moral law. That was not a view held by Aristotle, Nietzsche, or the Nazis, but it is one generally shared by Christians with other humanists. From this equality-in-responsibility, certain principles of political justice follow: for example, that any polity should be so arranged as to defend and promote the human flourishing of all of its members, as far as fairness and prudence allow; and that therefore any just polity will provide means for the perceived interests of all citizens to be taken into account in the making of law and policy. If that is what we mean by it, we could say that all citizens have a natural right to ‘political participation’. However, ‘political participation’ is highly indeterminate and raises a host of controversial questions, to which a quarrelling variety of answers could be given, each more or less reasonable in terms of a different set of historical and cultural circumstances…. (p. 127)

Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (The Free press, 1991)

Our rights talk, in its absoluteness, promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations. In its relentless individualism, it fosters a climate that is inhospitable to society’s losers, and that systematically disadvantages caretakers and dependents, young and old. In its neglect of civil society, it undermines the principal seedbeds of civic and personal virtue. In its insularity, it shuts out potentially important aids to the process of self-correcting learning. All of these traits promote mere assertion over reason-giving. (p. 14)

Again:

The American rights dialect is distinguished not only by what we say and how we say it, but also by what we leave unsaid. Each day’s newspapers, radio broadcasts, and television programs attest to our tendency to speak of whatever is most important to us in terms of rights, and to our predilection for overstating the absoluteness of the rights we claim. Our habitual silences concerning responsibilities are more apt to remain unnoticed. People for the American Way expressed surprise when their research revealed that our nation’s young people are well aware of their rights, but “fail to grasp the other half of the democratic equation,” which the researchers defined as “meeting personal responsibilities, serving the community, and participating in the nation’s political life.” Yet it is hardly astonishing that the survey results reflect the relative proportions of attention generally accorded in public discourse to rights and responsibilities. (p. 76)

And another:

The strident rights rhetoric that currently dominates American political discourse poorly serves the strong tradition of protection for individual freedom for which the United States is justly renowned. Our stark, simple rights dialect puts a damper on the processes of public justification, communication, and deliberation upon which the continuing vitality of the democratic regime depends. It contributes to the erosion of the habits, practices, and attitudes of respect for others that are the ultimate and surest guarantors of human rights. It impedes long-range thinking about our most pressing social problems. Our rights-laden public discourse easily accommodates the economic, the immediate, and the personal dimensions of a problem while it regularly neglects the moral, the long-term, and the social implications. (p. 171)

Thomas Sowell, Civil Rights: Rhetoric or Reality (William Morrow, 1984)

In this volume Sowell focuses on civil rights matters – mainly relating race and sex – looking at things like affirmative action programs and the like.

In short, statistical disparities are commonplace among human beings. Many historical and cultural reasons underlie the peculiar patterns observed. But the even “representation” of groups chosen as a baseline for measuring discrimination is a myth rather than an established fact. It is significant that those who have assumed that baseline have seldom, if ever, been challenged to produce evidence.

 

The civil rights vision focuses on groups adversely affected in statistical disparities. Here the relationship between discrimination and economic, educational and other disadvantages is taken as virtually axiomatic. But if this apparently obvious proposition is taken as an hypothesis to be tested rather than an axiom to be accepted, a very different picture emerges. Groups with a demonstrable history of being discriminated against have, in many countries and in many periods of history, had higher incomes, better educational performance, and more “representation” in high-level positions than those doing the discriminating. (pp. 19-20)

And this:

Those who carry the civil rights vision to its ultimate conclusion see no great difference between promoting equality of opportunity and equality of results. If there are not equal results among groups presumed to have equal genetic potential, then some inequality of opportunity must have intervened somewhere, and the question of precisely where is less important than the remedy of restoring the less fortunate to their just position. The fatal flaw of this kind of thinking is that there are many reasons, besides genes and discrimination, why groups differ in their economic performances and rewards. Groups differ by large amounts demographically, culturally, and geographically – and all talk of these differences have profound effects on incomes and occupations. (p. 42)

One more:

The battle for civil rights was fought and won – at great cost, many years ago. Like any fundamental human achievement, these rights cannot be taken for granted and must be safeguarded. But civil rights are not protected or enhanced by the growing practice of calling every issue raised by “spokesmen” for minority, female, elderly, or other groups, “civil-rights” issues. The right to vote is a civil right. The right to win is not. Equal treatment does not mean equal results. Everything desirable is not a civil right. Nor are the institutions or methods that produced civil rights likely to produce all the other things required to advance minorities, women, or others. (p. 109)

John Witte, The Reformation of Rights (Cambridge University Press, 2007)

The subtitle of the book informs us of the direction of this work: “Law, Religion, and Human Rights in Early Modern Calvinism.”

Human rights, we often hear, were products of the Western Enlightenment—creations of Grotius and Pufendorf, Locke and Rousseau, Montesquieu and Voltaire, Hume and Smith, Jefferson and Madison. Human rights were the mighty new weapons forged by American and French revolutionaries who fought in the name of political democracy, personal autonomy, and religious freedom against outmoded Christian conceptions of absolute monarchy, aristocratic privilege, and religious establishment. Human rights were the keys that Western liberals finally forged to unchain themselves from the shackles of a millennium of Christian oppression and Constantinian hegemony….

 

Whatever the philosophical and theological merits of these respective positions might be, the historical readings and narratives that support them can no longer be sustained. A whole cottage industry of important new scholarship has now emerged to demonstrate that there was ample “liberty before liberalism,” and that there were many subjective human rights in place before there were modern democratic revolutions fought in their name. We now know a great deal more about classical Roman understandings of rights, liberties, capabilities, powers and related concepts, and their elaboration by medieval and early modern civilians. We can now pore over an intricate latticework of arguments about individual and group rights and liberties developed by medieval Catholic canonists, philosophers, and theologians, and the ample expansion of this medieval handiwork by neo-scholastic writers in early modern Spain and Portugal. And we now know a good deal more about the immense contribution of the Protestant reformers to the development and expansion of the Western understanding of public, private, penal, and procedural rights. The Enlightenment, it now appears, was not so much a well-spring of Western rights as a watershed in a long stream of rights thinking that began more than a millennium before. While they certainly made their own original and critical rights contributions, too, what Enlightenment philosophers contributed more than anything were new theoretical frameworks that eventually widened these traditional rights formulations into a set of universal claims that were universally applicable to all. (pp. 20, 23)

[2007 words]