The Rights of a Mouse
Human beings, by their nature, have identified – and accepted – the criteria by which we learn the truth of nature. We are, therefore, free to make mistakes. Few would argue with the conclusion that we sometimes get things wrong, but ubiquitous others would reject the idea that we ourselves have made up the rules for telling the difference between right and wrong. But even in the simplest cases, we cannot pass the credit to external nature or to God. We learn, for instance, that we cannot cause our bodies to pass through solid objects, like closed doors. Nature dictates that doors must be opened before passing through them, but what we learn from the nature of doors and other solid objects remains exactly nothing until we make in our minds (or our minds make for us) a rule to be obeyed. It is conceivable that we might forever continue bumping into doors. That’s what rocks do; they just keep on bumping into each other, never quite realizing there’s anything wrong about it (which, of course, there isn’t...for rocks).
If all lessons were as easily learned as the lesson taught us by collisions with closed doors, questions of right and wrong would perhaps never come up. But difficult cases do come up, and one of the reasons they do traces to carelessness in the way we use the word “right.” We know that it is right to open doors before walking through them, but when we elevate the rightness of that practice into a “right,” as in “I have the right to open doors before walking through them,” we’re talking nonsense. If I am healthy and human, and the door can be opened, I have the power to open the door. I can turn the handle and pull (or push, as needs be). But when I equate my power to act with a natural right I set myself up for a gross set of errors. Rights come into being when two or more creatures agree to restrict their power. In a state of nature, as imagined by Hobbes and others of his ilk, nothing like rights would exist, only powers. Acts of agreement must take place before the word “rights” has any meaning.
In the case of humans, we may, in a state of nature, have possessed the power to acquire and keep property, but we clearly, in that state, would have no right to property, since someone stronger than ourselves may have the power to take it from us. Without some sort of agreement, and the means to enforce it, the stronger human could do as he pleased with impunity. Rights would not exist, only powers.
It may be argued that in a state devoid of formal agreements regarding rights, those possessing property have the right to defend it. But what in this case we have referred to as a right is in fact only a desire. The very act of possessing property implies a desire to keep the property. A Neanderthal may possess a favorite club, and desire to keep it, but our Neanderthal has a right to his club only after he and those similarly inclined have expressed their desires, and agreed among themselves to respect each others’ property. Rights are what others must respect. In the state of nature, the only respect you and your property will get is that which your power commands. Until we reach agreements establishing rights, what we are prone to treat as “our rights” is nothing more (or less) than the feeling we get when we encounter obstacles to the fulfillment of our desires.
Imagine a man, Freddie, who possesses a gun and feels that he has the right to possess it. Another man, Adolph, has a bigger gun and feels that he has the right to possess Freddie’s gun in addition to his own. The conflict between Freddie’s and Adolph’s “rights” comes about because they’ve used the word “right” wrongly. If we say that Freddie and Adolph both desire to possess Freddie’s gun, the conflict disappears. Freddie’s right to his gun becomes evident only when Freddie and Adolph have agreed between themselves (or both live in a community that has agreed) to recognize the rights of property. Otherwise, “might makes right.”
But even in the great western democracies, the notion that “might makes right” is not dead. It appears in one of its sneakiest forms when the winner of a gubernatorial or presidential election claims that, on the basis of his victory, he has a “mandate” to put his pet theories into effect. With the entire might of the state now at his disposal, he feels the laws of the land that stand in his way can justifiably be changed. This might be the case if his victory were of landslide proportions and if he had made his intentions clear during the election campaign, especially if his intentions were singular. But if he ran on a platform of many issues – which is normally the case – it is quite likely that nowhere near a majority of the electorate approved of every one of his proposals, perhaps none of them. But no matter. He now feels he has a mandate...and might makes right. Such claims are to be especially feared when the normal checks and balances of democratic systems have been mitigated by one party’s domination of all branches of the government. The diffused might of a republic then becomes the concentrated might of an autocracy.
This is not to say that an elected official must never seek to implement his ideas. It is to say that the use of terms like “mandate” should be treated as propaganda, nothing more than an official’s attempt to ascribe to his ideas a power they may not possess. If such a claim were not intended as propaganda, it should be treated as a prosecutable usurpation of power.
To bring the matter of “rights” closer to home, consider the Bill of Rights as detailed in the United States Constitution. We’ll take the first of them as the one containing the most fundamental of the rights established by that document.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The lead words, “Congress shall make no law,” are often taken to imply that the various rights enumerated in the First Amendment were always and ever natural rights, and that the amendment aims only to protect those natural rights from Congressional interference. To demonstrate the error in thinking that way, let’s look at the first right mentioned, religion.
We can grant that in a state of nature certain individuals may experience religious feelings which they desire to express in a ritualistic manner. And we may grant that other individuals in that same state of nature may desire to express their religious feelings differently. So long as the parties find no cause to interfere with each others’ rituals or beliefs, no question of rights would surface. All would have the power to fulfill their religious desires. But when one party decides that another party’s rituals are wrong and decides to do something about it, the question of rights may come up. If their society has not evolved to the point where agreements are possible, the parties may simply fight it out. Might would prevail, and the development of legal rights would remain a non-starter. But if we assume a more developed community, the parties – after a few brawls – may come together and reach some sort of “religious rights” agreement. They may decide either to permit only one practice or to permit (or deny) them all. Great Britain, from which most of the original settlers of the American colonies emigrated, had formalized an agreement in which only one form of religion was to be practiced. That agreement did not sit well with many of the citizens of that nation, and some of them left precisely because they felt their religious desires were being unfairly restricted. They did not like the rights agreement their government had imposed.
But religious rights for Brits did not exist before the Reformation. No one had seriously questioned the right to be a Catholic for several centuries, but the right to question the authority of the Roman Church had been warmly suppressed on many occasions. The right to practice a religion other than Catholicism came into being (permanently) only when the ideas of Martin Luther, John Calvin and other protestors won the day. Following Henry VIII’s separation of Britain from the Catholic church, Brits could have established a liberal religious rights clause in their body of law. Instead, they cast aside that possibility in favor of a one-religion policy, in effect, establishing rights exactly as they had been established in the past, merely substituting the Anglican faith for the Catholic.
America’s founding fathers, well aware of the turmoil religion had brought about in the mother country, had to decide what to do about religious rights. They opted to say in their constitution that the government of the United States was not going to get involved in religious matters, that they were going to leave it up to individuals to decide which, if any, religion they wished to practice. The right to absolute religious freedom for American citizens thus came into being in 1791 when the First Amendment to the Constitution – along with nine others – was ratified into law. The American courts have decided that, by implication, the First Amendment obliges the United States government to assure that no one tampers with any citizen’s religious desire, or their desire to be non-religious.
Similar analysis of the other rights protected by the First Amendment would reveal similar histories, each of them coming into being out of the evolution of agreements, some of which succeeded, most of which failed. That the American agreement – as reflected in its constitution – has succeeded as well as it has, traces to the fact that the orderly structure created by the American Constitution multiplies the people’s power to satisfy their desires. Within the broad confines of that structure, everyone has the freedom to desire what they will. In the state of nature we could fulfill our desires only to the extent of our individual power to do so (or to the extent of our power to create and maintain cooperative order). In a constitutional government, where the full might and power of the state protects and promotes legal cooperation among people, desires can be more easily satisfied.
More meaningful questions concerning the evolution of rights come up when we take seriously the possibility that the so-called state of nature might never have actually existed. Had the Hobbesian state prevailed on earth, would it not be true that none but the powerful would have survived? How would rights have come into being if the strong were always in charge? To answer these questions, I would need more space than I wish to take (for free) on this particular morning.
Hmmm. Perhaps my decision to abstain from taking advantage of "free stuff" moves in the direction of an answer. I'll give this some thought.
If all lessons were as easily learned as the lesson taught us by collisions with closed doors, questions of right and wrong would perhaps never come up. But difficult cases do come up, and one of the reasons they do traces to carelessness in the way we use the word “right.” We know that it is right to open doors before walking through them, but when we elevate the rightness of that practice into a “right,” as in “I have the right to open doors before walking through them,” we’re talking nonsense. If I am healthy and human, and the door can be opened, I have the power to open the door. I can turn the handle and pull (or push, as needs be). But when I equate my power to act with a natural right I set myself up for a gross set of errors. Rights come into being when two or more creatures agree to restrict their power. In a state of nature, as imagined by Hobbes and others of his ilk, nothing like rights would exist, only powers. Acts of agreement must take place before the word “rights” has any meaning.
In the case of humans, we may, in a state of nature, have possessed the power to acquire and keep property, but we clearly, in that state, would have no right to property, since someone stronger than ourselves may have the power to take it from us. Without some sort of agreement, and the means to enforce it, the stronger human could do as he pleased with impunity. Rights would not exist, only powers.
It may be argued that in a state devoid of formal agreements regarding rights, those possessing property have the right to defend it. But what in this case we have referred to as a right is in fact only a desire. The very act of possessing property implies a desire to keep the property. A Neanderthal may possess a favorite club, and desire to keep it, but our Neanderthal has a right to his club only after he and those similarly inclined have expressed their desires, and agreed among themselves to respect each others’ property. Rights are what others must respect. In the state of nature, the only respect you and your property will get is that which your power commands. Until we reach agreements establishing rights, what we are prone to treat as “our rights” is nothing more (or less) than the feeling we get when we encounter obstacles to the fulfillment of our desires.
Imagine a man, Freddie, who possesses a gun and feels that he has the right to possess it. Another man, Adolph, has a bigger gun and feels that he has the right to possess Freddie’s gun in addition to his own. The conflict between Freddie’s and Adolph’s “rights” comes about because they’ve used the word “right” wrongly. If we say that Freddie and Adolph both desire to possess Freddie’s gun, the conflict disappears. Freddie’s right to his gun becomes evident only when Freddie and Adolph have agreed between themselves (or both live in a community that has agreed) to recognize the rights of property. Otherwise, “might makes right.”
But even in the great western democracies, the notion that “might makes right” is not dead. It appears in one of its sneakiest forms when the winner of a gubernatorial or presidential election claims that, on the basis of his victory, he has a “mandate” to put his pet theories into effect. With the entire might of the state now at his disposal, he feels the laws of the land that stand in his way can justifiably be changed. This might be the case if his victory were of landslide proportions and if he had made his intentions clear during the election campaign, especially if his intentions were singular. But if he ran on a platform of many issues – which is normally the case – it is quite likely that nowhere near a majority of the electorate approved of every one of his proposals, perhaps none of them. But no matter. He now feels he has a mandate...and might makes right. Such claims are to be especially feared when the normal checks and balances of democratic systems have been mitigated by one party’s domination of all branches of the government. The diffused might of a republic then becomes the concentrated might of an autocracy.
This is not to say that an elected official must never seek to implement his ideas. It is to say that the use of terms like “mandate” should be treated as propaganda, nothing more than an official’s attempt to ascribe to his ideas a power they may not possess. If such a claim were not intended as propaganda, it should be treated as a prosecutable usurpation of power.
To bring the matter of “rights” closer to home, consider the Bill of Rights as detailed in the United States Constitution. We’ll take the first of them as the one containing the most fundamental of the rights established by that document.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The lead words, “Congress shall make no law,” are often taken to imply that the various rights enumerated in the First Amendment were always and ever natural rights, and that the amendment aims only to protect those natural rights from Congressional interference. To demonstrate the error in thinking that way, let’s look at the first right mentioned, religion.
We can grant that in a state of nature certain individuals may experience religious feelings which they desire to express in a ritualistic manner. And we may grant that other individuals in that same state of nature may desire to express their religious feelings differently. So long as the parties find no cause to interfere with each others’ rituals or beliefs, no question of rights would surface. All would have the power to fulfill their religious desires. But when one party decides that another party’s rituals are wrong and decides to do something about it, the question of rights may come up. If their society has not evolved to the point where agreements are possible, the parties may simply fight it out. Might would prevail, and the development of legal rights would remain a non-starter. But if we assume a more developed community, the parties – after a few brawls – may come together and reach some sort of “religious rights” agreement. They may decide either to permit only one practice or to permit (or deny) them all. Great Britain, from which most of the original settlers of the American colonies emigrated, had formalized an agreement in which only one form of religion was to be practiced. That agreement did not sit well with many of the citizens of that nation, and some of them left precisely because they felt their religious desires were being unfairly restricted. They did not like the rights agreement their government had imposed.
But religious rights for Brits did not exist before the Reformation. No one had seriously questioned the right to be a Catholic for several centuries, but the right to question the authority of the Roman Church had been warmly suppressed on many occasions. The right to practice a religion other than Catholicism came into being (permanently) only when the ideas of Martin Luther, John Calvin and other protestors won the day. Following Henry VIII’s separation of Britain from the Catholic church, Brits could have established a liberal religious rights clause in their body of law. Instead, they cast aside that possibility in favor of a one-religion policy, in effect, establishing rights exactly as they had been established in the past, merely substituting the Anglican faith for the Catholic.
America’s founding fathers, well aware of the turmoil religion had brought about in the mother country, had to decide what to do about religious rights. They opted to say in their constitution that the government of the United States was not going to get involved in religious matters, that they were going to leave it up to individuals to decide which, if any, religion they wished to practice. The right to absolute religious freedom for American citizens thus came into being in 1791 when the First Amendment to the Constitution – along with nine others – was ratified into law. The American courts have decided that, by implication, the First Amendment obliges the United States government to assure that no one tampers with any citizen’s religious desire, or their desire to be non-religious.
Similar analysis of the other rights protected by the First Amendment would reveal similar histories, each of them coming into being out of the evolution of agreements, some of which succeeded, most of which failed. That the American agreement – as reflected in its constitution – has succeeded as well as it has, traces to the fact that the orderly structure created by the American Constitution multiplies the people’s power to satisfy their desires. Within the broad confines of that structure, everyone has the freedom to desire what they will. In the state of nature we could fulfill our desires only to the extent of our individual power to do so (or to the extent of our power to create and maintain cooperative order). In a constitutional government, where the full might and power of the state protects and promotes legal cooperation among people, desires can be more easily satisfied.
More meaningful questions concerning the evolution of rights come up when we take seriously the possibility that the so-called state of nature might never have actually existed. Had the Hobbesian state prevailed on earth, would it not be true that none but the powerful would have survived? How would rights have come into being if the strong were always in charge? To answer these questions, I would need more space than I wish to take (for free) on this particular morning.
Hmmm. Perhaps my decision to abstain from taking advantage of "free stuff" moves in the direction of an answer. I'll give this some thought.
posted by Benedict S. at 9:45 AM
5 Comments:
Debates over basic issues of fairness are familiar to many of us and are
critical to the advancement of society. Over the years, various communities
have waged long and vigorous battles for equality. It was through the
perseverance of individuals, their communities and their allies that
previous movements for rights were won.
Rights and power! Power is natural! Rights? Another social invention
to segregate what is allowed violence and what is not! Again those who want to live by a certain code have no authority to
impose that on entire earth to disrupt rights and the natural course of actions.
of actions.
I like your aplliance of the word "violence." Rights are established by states and the states are authorized the use of violence to protect the rights of those who have subscribed to them. Excellent comment, anon.
Anon-two. Ah, I see now. Your mention of "rights" and "anon two" in the comment you made to the next blog led the poor mouse astray. I see clearly now ... or at least as clearly as it is permitted a mouse to see.
Many of the world's problems derive from attempts to broaden the community of people who have subscribed to a particular set of rights. Those who left the religious environment of Great Britain for the open environment of the New World were successful because their desire for religious freedom (by which they originally meant, to worship in their way and their way only) was at long last tempered by a more rational view. They were able to see that any establisment of religion was bound to create resistance. I would not go so far as to say they were operating in a Zen sort of way, but that was the effect in any case.
Nevertheless, we see modern religionists reading the rights clause as if it were saying the opposite of what it says. The slogan, "This is a Christian nation," occurs more frequently than it ought if the words of the constitution were comprehended.
A similar mistake is evidenced in the notion that democracy can be exported. This one is compounded by the overseas belief that Islam can be exported, or that it ought to be. Until the world catches the disease of liberty, the once miraculously caught by the founding fathers of this nation, we had best defend ourselves "against all enemies." But we do not in making that defense do ourselves any good by adding to the outrage.
I occasionally in the past have seen inklings of reason making their way onto the human stage, but then along comes some damn fool politician, seeking Hegelian recognition, and off we go again into La-la land. Maybe we ought to just beat our plowshares into swords and have done with it.
Anon Two: Promoting democracy has long been a staple of U.S.
foreign policy for the compelling reason that democracies
rarely wage war on each other. But unready or unwilling governments have generally (if
not always) been pursued through "soft" measures, through
diplomatic persuasion, example, commerce and cultural
exchange, not military attack.
War is now seen as an equally valid tool.
Or, as Max Boot, a neoconservative analyst at the Council
on Foreign Relations, has infamously put it: "The notion
that you can't export democracy through the barrel of a
gun is simply wrong. We did it in Germany, Japan and
elsewhere."
The Founders, at least the ones who seemed to count did not give religion a lot of thought, especially when they created
this government. Aside from making sure there would be the "potential" of religious freedom, it just was not a matter in their thoughts. There is no link between the
Bible, either the Christian version or Jewish version, and the founding
documents of this nation. The Founders were creating a civil government, a government of this world, and those that did give religion much thought
claimed that it was not of this world.
Yes,beating our plowshares into swords is an excellent idea.
The Weimar Republic and democratic ideas were alive in Germany before the second great war. Can't speak for Japan w/o a bit more thinking...which is not in the cards for me this morning.
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