We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.So wrote Thomas Jefferson in the Declaration of Independence. We were taught in school that these words are beautiful, but today I regard them as dishonest or lazy, depending on whether or not Jefferson was aware of the problem with them.
If you and I are arguing about something and I reply, "It is obvious that I am right," I have added nothing to our dialog. I may as well have said, "I declare victory." If Jefferson--so often a golden-tongued hypocrite--was not consciously engaging in a debater's trick, he was taking an intellectual short-cut, using a tautology: "It is true because....it is true."
How can there be "self evident" rights? Jefferson was writing under a British system which did not recognize the rights that he described, and which was the legal government of the colonies until they succeeded in separating themselves and forming a new one. Had Jefferson written, "We want the following rights," he would have been making a simple, clear statement easy to understand. Language allows us to construct phrases which are grammatically correct but which do not mean anything (or do not mean what they appear to). Does the statement "We hold these rights to be self-evident" in fact mean anything more profound than "we want them?"
Jefferson's and the other framers' views on natural rights were derived from John Locke's highly influential Second Treatise of Government, first published anonymously in 1690. In Chapter 2, "Of the state of nature", Locke describes the "state of nature" in which men exist before forming governments:
....a state of perfect freedom to order their actions and dispose of their possessions and persons as they see fit, within the bounds of the laws of nature, without asking leave or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of nature and the use of the same faculties, should also be equal one amongst another without subordination or subjection....
The state of nature has a law of nature to govern it, which obliges every one; and reason, which is that law, teaches all mankind who will but consult it that, being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions....
Permit me an "aha!" Is not this prose exactly the kind Hume was thinking of in his famous condemnation of deriving an "ought" from an "is"?
In every system of morality which I have hitherto met with, I have always remarked that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a god, or makes observations concerning human affairs; when of a sudden I am surprised to find that instead of the usual copulation of propositions is and is not, I meet with no proposition that is not connected with an ought or an ought not. This change is imperceptible, but is, however, of the last consequence. For as this ought or ought not expresses some new relation or affirmation, it is necessary that it should be observed and explained; and at the same time that a reason ought to be given for what seems altogether inconceivable, how this new relation can be a deduction from others which are entirely different from it.
Now note what Locke did: In the state of nature, "all the power and jurisdiction is reciprocal" and therefore all men "should also be equal one amongst another without subordination or subjection...."
And he does it again: "The state of nature has a law of nature to govern it" which teaches that "no one ought to harm another".
Locke's view of the state of nature is more placid than that of Thomas Hobbes, who believed that all men begin in a state of war of "every man, against every man." Locke by contrast could imagine men living together "according to reason", that is, peacefully, "but without a common superior on earth with authority to judge between them" (Chapter 3, "Of the state of war").
OK, lets watch Hobbes conjugate an ought from an is.
To this warre of every man against every man, this also is consequent, that nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice, have there no place. Leviathan, ch. 13
Seeming to say that there are no natural rights, just a state of chaos before government. In the state of nature, "Force and Fraud" are the two cardinal virtues; "there be no Propriety, no Dominion, no Mine and Thine distinct."
But then we make the rough transition to Chapter 14, "Of the first and second Natural Lawes, and of Contracts":
The Right of Nature, which Writers commonly call Jus Naturale, is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereto.
"Rights" language, as these two philosophers illustrate, is among the trickiest of human concepts: it is an area in which we all think we know what we are talking about when in reality we have no idea. Hobbes starts by saying that in a state of nature, there is no Justice, no property, etc., therefore no possible founding of "rights"; but in his next chapter he appears to say that without human rulebooks (criminal laws, laws of property) we each should have the right to do whatever preserves our life and our enjoyment.
Hobbes (and many others) seems to me to confound three concepts: what we physically can do; what we desire, which may be different; and what we ought to do, which again may be entirely distinct from the first two categories.
Looked at this way, Locke and Hobbes commit very different versions of Hume's fallacy. Locke reverse engineers the way things are from the way he believes they ought to be: people should be peaceful and respectful of one another, and therefore are this way in a state of nature, which exists only because they lack a common judge. Hobbes goes in the other direction and elevates the way he believes things are (nasty and brutish, constant war of all against all) to a moral imperative, that we (ought to) have a right of mutual destruction until we adopt rules which say otherwise.
What we physically can do
This seems to me to be the single most dangerous foundation for a claimed "right", as we have the physical ability to do all the things we make rules against (there would be no point in banning them if we couldn't do them.)
If we regard rights as a human-generated rulebook, not engraven in the fabric of the universe, we can analyze many circumstances in which the rule-makers must mediate between conflicting interpretations. For example, our courts answer questions like the following every day: Does your right of free speech trump my right of privacy? In this scheme of things, rights are a binary switch, and the rulemakers simply decide which way to set the switch. If you have a right to do something, I have an obligation to respect it and not to interfere with it. It would be illogical to say you have a "right" to do something which I have a "right" to prevent.
But this is exactly the case in the Hobbesian state of nature. I have a "right" to kill you if you get in my way, but you have an equal "right" to kill me. If I am stronger and I succeed, your family nonetheless has a "right" to take revenge, and so forth. ("An eye for an eye," said Gandhi, "makes the whole world blind.")
But if we think strictly in terms of language, what do we add by speaking of "rights" in this context? When we are speaking of human rulebooks, it is much easier to answer that question. A right can be defined as a rule which protects you in taking an action and prevents me from interfering with it.
But in a Hobbesian state of nature, the word "right" seems to be stripped of any content not already contained in the word "can". Compare these two statements:
In a Hobbesian state of nature, I can kill you.
In a Hobbesian state of nature, I have a right to kill you.
There is no meaning communicated by the second statement not already contained in the first. But there appears to be. I have written elsewhere that the word God is often used as a semantic stopsign, meaning simultaneously "Stop asking questions" and "I have won this argument." The word "right" is used similarly. People frequently use it in a context where it has no other possible meaning, like a child at the dinner table proclaiming angrily "I have a right to speak!"
I have a pet cockatiel named Chandler, who lives in a cage and eats a seed and pellet mixture. I let him out of his cage for about an hour a day. Does it make any sense to you, if instead of saying that Chandler eats seeds, I say "Chandler has a right to seeds"? Does he have a "right" to his cage, or to be let out of it? If "Chandler has a right to seeds" has no more meaning than the statement "Chandler eats seeds", why does "man has a right to self defense" mean anything more than "men defend themselves"? The answer can only be in a tautology, a prejudgment of our conclusion: that there is something special about man which dictates that natural rights exist (essentially because we want them to.)
This is why rights language is not only fuzzy but dangerous; for many of us the word "rights" communicates an imprimatur of moral authority, causing us to behave respectfully even in contexts where it is completely meaningless. Like an automobile, we should never buy a right until we have looked beneath the hood.
In Language, Truth and Logic, Alfred Ayers concurs that not only rights language but that of morality in general communicates far less than it purports to:
[F]undamental ethical conceptions are unanalysable, inasmuch as there is no criterion by which one can test the validity of the judgments in which they occur....[T]hey are mere pseudoconcepts. The presence of an ethical symbol in a proposition adds nothing to its factual content. Thus if I say to someone, "You acted wrongly in stealing that money," I am not stating anything more than if I had simply said, "You stole that money." In adding that this action is wrong I am not making any further statement about it. I am simply evincing my moral disapproval of it. It is as if I had said, "You stole that money," in a particular tone of horror, or written it with the addition of some special exclamation marks.
In a debate with gun rights people year before last, I rapidly discovered that they all believed that the right to bear arms was a natural right, engraved in the fabric of the universe, and merely affirmed, not created by their beloved Second Amendment. For these people, Locke and Hobbes are living philosophers (and more particularly Hobbes, I think.)
The concept of natural rights was used by many of my gun rights correspondents both as a club and a credit card on which to charge up selfishness. Club: "I have a natural right to self defense, so therefore I win this argument," was the gist of many of the messages I received. Credit card: When I proposed that we sit at a table together to make a rulebook about guns, accomodating the interests of those who do not want them along with those who do, many people responded: "My natural right to bear arms trumps your desire not to have guns around. Therefore there is no basis for discussion."
You hear in such debates not only that it is "natural" for us to defend ourselves but that animals are equipped with claws, horns and teeth to do so. Somehow this fact, that people and other animals defend themselves when endangered, is extrapolated into a "right."
Twenty years ago, I watched fascinated in a park in Athens as a male tortoise encountered a female. He rushed at her, biting at her neck and forelegs, while she desperately tried to escape. Finally, she gave up and withdrew her head and limbs into her shell, and he mounted her from behind. Five years ago (the month the first issue of the Spectacle was published) I stood on a beach in the Galapagos and watched female sea turtles congregating in the shallow water. A biologist explained that the females enter the shallow water during mating season to escape the males who are unable to force themselves on them if the water is not deep enough. It seems general that in many turtle species the females derive no pleasure from copulation and do everything they can to avoid it. The actions of the males if performed by humans would be characterized as rape.
Rape is physically possible; if we derive natural rights from anything which can be done in a state of nature we could just as easily say there is a right of rape as to claim there is one of self-defense. Yet in our society we lock up anyone who acts on this belief. But I challenge anyone who believes there is a natural right of self defense to explain to me why there is no right of rape.
Here is the answer: We believe there is a natural right to do anything which we think should be permitted (or mandated) under a human rulebook. Anything which should be forbidden under a human rulebook therefore cannot be a natural right, even if it is physically possible and can be justified by the same arguments used to support the idea of natural rights.
What we desire
This is just another way of saying that we like to believe that our desires are greater than ourselves; that what we want is necessary, that there is no choice, that the universe has dictated that we must pursue it.
One of the functions of our legal system is to analyze acts of violence to determine whether they involved acceptable acts of self defense ("justifiable homicide"). If a man attacks me with a knife and I shoot him in reasonable fear of my life, I will not be held legally responsible. But there is a chasm between the reality of self-defense, which involves a legally acceptable choice to kill rather than die, and the familiar statement, "I had no choice. It was him or me."
Like natural rights, the concept of necessity is used as a debaters' trick, to win arguments before they have begun. If it was "necessary" to kill the man who attacked me with the knife, is it similarly "necessary" for me to kill and eat the other denizen of a lifeboat? After all, if I do not, I will die, so in that sense it is either "him or me".
Note the similarity to the natural rights discussion? In a state of nature, I can kill and eat the other passenger; I want to, because I desire to survive; and therefore I should have a "natural right" to do so.
The nexus between desire and rights is a highly interesting one. On the one hand, we want to believe we have a right to that which we desire, so we appeal to ideas like necessity or natural rights to justify it. On the other, there is the form of panic I have referred to as the Dostoyevsky fear: if morality is based simply on our desire for a rulebook then it it is founded in quicksand ("Without God, everything is permitted"). As one correspondent pointed out to me, without God, the statement "I like a moral system" is indistinguishable from "I like ice cream". (Actually, I don't believe these two statements are equivalent, even without God.)
It is a by-product of the human mess that we wish to project both our desires and our prohibitions (read "human rulebook") outside ourselves. We justify our desires by viewing them as universal mandates, but we are also frightened by the idea that the things we are drawn to, but which feel wrong or otherwise terrify us, are prohibited only by fragile human rules.
In both cases, we are abdicating our responsibility as free agents. We can choose not to eat meat or bear arms even if humans have done so since the time before language. We can choose to make rules protecting homosexual marriage even if they contradict the rules allegedly given by God in the Old Testament.
What we ought to do
While deriving "rights" from physically possible acts or our own desires shortcuts moral debate and human freedom, projecting our own rulebooks onto the universe is equally insidious (and usually more subtly expressed than the crude language used by proponents of these other beliefs.)
Lets look at Locke again:
[R]eason, which is that law, teaches all mankind who will but consult it that, being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions....
While I would not allow Hobbes to guide me down a blind alley, because of my distrust of his ideas, Locke could easily get me in all kinds of trouble, because he wants what I want: peace among humans. But he has committed the same fallacy as the more brutal Hobbes. A Hobbesian says, I want your property, therefore I have a right to it; but a Lockean says, I want peace, therefore we all have a right to it.
The theme of three thousand years of human moral discourse has been the attempt to plant moral rules on some firmer foundation than our own freedom. God, Jesus, Platonic forms, pure reason, categorical imperatives, genetic rewards for altruism, all come to the same thing: the fear and loneliness inspired by human freedom.
One of the more interesting things you learn about in law school is the evolution of human custom into law. Codes based on custom and practice, like the Uniform Commercial Code, tend to sparkle with common sense, and are easy to apply. I ship you goods "freight on board": they are my legal responsibility until they are on board your ship. I send them "cost, insurance, freight": they are your responsibility from the moment I accept your order.
Now imagine the spectacle of an assembly of businessmen and lawyers, tasked with creating a uniform commercial code, trying to derive their rules from the behavior of lions or bears or of humans in a state of nature. Even if they were trying to base their legislation on the old and new Testaments they would find these "precedents" to be of partial help, and rather contradictory. Instead, we all acknowledge that the act of legislating is (and should be) an exercise of determining the rules we want and which make sense from a practical standpoint.
Next, imagine the even stranger spectacle of this assembly weeping and wailing, and abandoning its work, because it has determined that there is no natural rule-set, engraved in the universe's fabric, to determine who has the responsibility for freight which is destroyed between the warehouse and the boat.
The natural rights debate leads us down a false road. The energy spent in arguing which rules exist should better be spent deciding which rules we should make. The "perfect freedom" Locke described "to order their actions and dispose of their possessions and persons as they see fit... without asking leave or depending upon the will of any other man", does not dictate the existence of rights; instead it leaves us perfectly free to legislate them.
I prefer this freedom, which seems to me simple and clear: we are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don't tell me it offends the universe.
Locke fell into a swoon;
The Garden died;
God took the spinning jenny out of His side.