A couple of posts back I made a claim that seems to have upset a few people, namely that Rights (as we generally use the term) are legal constructs, not something inherent in nature, even though we talk about them as if they were.  One criticism, quite correctly, pointed out that one of the bases of the Enlightenment was a recognition that human rights emerged out of a clear understanding of Natural Law, and that civil law was necessarily grounded in that understanding.

True, that is how we formulate it.  And it may well be that there is, somewhere, a fundamental natural basis on which we build our moral and legal houses.  But it is not nature from which it is derived in the sense of the physical universe in which we exist—clearly we order our social systems more often in contravention of nature than in imitation—but Nature in the sense that Spinoza and possibly others like Kant and Hegel understood the term, namely reality as we perceive it in respect to our condition.  This is in some ways an abstruse and complex concept and contrary to popular usage it is not common sensical or self-evidently apparent.

Why do I say that?  Because we are still arguing over what it is we’re trying to describe.

One of the elements of criticism leveled at me was a spirited defense of the manifest truth of such things as the Declaration of Independence.  My own argument was only that, while we seem to have accepted the moral injunctions of the Declaration, we are still trying to put those concepts into practice through law because we can’t agree on a common meaning.  This has been the case since Day One of our Republic.

…all men are created equal…

Great.  Wonderful.  But what does that mean in practice?

It’s one of those phrases that would seem to be so self-evidently true that it requires no further explanation and should automatically be regarded by all as obvious and put into immediate practice.  Never mind the obvious failures to prevent avaricious and corrupt people to flout such a principle, it has been the case that even people of good will and social conscience have simply not agreed on the supposed self-evident meaning of that phrase.

Simply put, which men?  All men?  What about women?  Or, at the time it was written, slaves?  What about people in other countries?  What does this mean in terms of resources?  Equal how?  Does this make it incumbent on us to guarantee equality, even for those who apparently are incapable of the unstated but quite real consequent responsibilities?  Should some be held back in order not to tip the scales of social justice unfairly?  And what about those who simply reject that formulation?

If you think this is an academic issue, remember that in the early Republic, not only were slaves and women held to be inferior to “men” but men of property were implicitly and in practice accorded greater rights than those with nothing—like the vote.  Nor did this begin to change until Jacksonian Democracy start the erosion of social privilege in matters of politics.

Kant, among others, claimed that liberty was based on the free will and its unimpeded exercise and that free will was a product of Reason.  Reason, however, as a necessary aspect of nature, that all humans possessed.  I am not indulging hyperbole when I point out that Reason is a rare commodity, exercised seldom, and usually poorly, and needs nurturing in order to be of benefit to the individual.  Humans possess a cleverness, a proclivity for pattern-seeking and its concomitant capacities for problem-solving at possibly the highest level of any creature on the planet.  But I think it fair to say that this is not what Kant meant by Reason.  He meant the ability to indulge abstraction and thereby project imagination onto a landscape and formulate conceptions not immediate evident.

Sorry, but I do not believe that is a skill people are born with.  It is a potential, a latent capacity which must be seeded, cared for, fed, and grown.  It is not, by definition, “natural” in the way I think many people conceive the term.  It is only natural in that it is something humans as a species have a potential ability to practice, but we do not necessarily grow up with it.  The pattern-seeking which seems to be hardwired into our brains is generally taken as reason, especially when it produces useful results in environmental manipulation and social construction.  But it ultimately lacks the purely abstract aspect that leads to what we can honestly call ratiocination.  It does not lead to philosophy.

And it is out of philosophy that any concept of Rights emerges.

I confess here that this is a rather scary proposition.  Historically, humans base their law on a concept of Higher Order Morality, the assumption that there is an authority above our own which requires certain normative standards.  God, in other words.  A Law Giver.  It is presumed that human law is a reflection of this higher law.  Over time that higher law has morphed into what, during the Enlightenment, became codified as Natural Law.  It is reassuring to believe that we aren’t actually all on our own.

But even Kant, intuitively or otherwise, seems to have sensed that we are, ultimately, on our own.  In his 1784 essay An Answer to the Question: What Is Enlightenment? he states in the first paragraph:

“Enlightenment is man’s emergence from his self-imposed immaturity.  Immaturity is the inability to use one’s understanding without guidance from another.”

In other words, maturity, as pertains to the ability to reason, is the point at which we stand on our own, without the crutches of dependency on authority-qua-authority.  By definition, this would include assumed Higher Order sources of law.

Given the diverse and ever-conflicting nature of civil discourse and the constant disagreement over what is morally defensible within a liberal framework (and by liberal I do not mean its current defamed definition, but the traditional meaning of Liberty of the individual to act as he or she will free of arbitrary constraint) obviously we have no clear, definitive explication of what that Higher Order Law might be.

We’ve been creating it on our own all along.

Before I am accused of claiming that a concept of individual rights has no basis in moral reasoning, it is equally obvious that it does.  Common human needs and aspirations are clearly universal and the consequences of oppression are equally obvious across all systems.  This much can be seen and understood and that pattern-seeking creature that is the common condition of all humans can here demonstrate a universal sense of good and evil, right and wrong, beneficial and destructive.  We learn, over time, what will or will not secure a beneficial social environment, at least in its basics.

Abstractions can clarify as well as obfuscate this, which too-often is diminished by such terms as common sense or natural law.

What Thomas Jefferson wrote and what the Enlightenment-besotted Founders then tried to put into place is an abstraction intended to guarantee freedom of action by barring arbitrary restrictions.

You will note, please, that in the initial draft of the Constitution, there is no mention of these ideals.  The Articles that form the principle body of our Constitution is a legal framework and no more.  The Bill of Rights was an afterthought, a demand by those opposed to Federalism and fence-sitters without whom ratification would have been impossible.  And even in the Bill of Rights there is no reference to the kind of natural law argument on which many people assume the legitimacy of said system of rights.

Which all begs the question as I originally phrased it—if “natural law” is so obvious and so “right” why has there been any need to continually wrestle with meaning and intent?  Why would there ever have been the need for a Civil War, 13th and 14th Amendments, and for the purposes of my prior essay, a 19th Amendment?

Because it is neither obvious nor is it an inevitable recognition that “all men are created equal.”

In the 1970s, an Equal Rights Amendment struggled for ratification and was defeated by people who, without the need to demonize them, simply disagreed with its stated principles.  Many, while willing to admit the core principle of the amendment as valid, worried over the legal ramifications of its enactment.  Ultimately, two things can be said about its defeat.  One, that we do not all agree on what Equality means or to whom it applies.  And Two, that if you can deny a right through legal mechanisms, obviously you can only grant it through the same mechanisms.

So when I said that, contrary to our cherished prejudices, Rights are legal constructs, this is what I meant.  Each of us, individually, can choose to act according to our own conception of rights and this need not be based on legal constructs, but as a society it is absurd to talk about self-evident rights outside a legal framework.  Rights, on that level, are consequent upon law, and we say what that is.

Which means we should be a bit more alert about them than we usually are.  Rights are gained and lost all the time and often, if they don’t affect us directly, we don’t even notice.  We rely too much on this idea that our rights are based on some vague Higher Order—Natural—Law and therefore are self-evident and, in the phrasing of Jefferson, “unalienable”, but this prized chestnut means little in the face of a determined effort by some to rewrite the codes for the rest of us.

Thank you for your attention.

Published by Mark Tiedemann