Few concepts are more ubiquitous in our political vocabulary today than rights – human rights, civil rights, equal rights. It is a widespread concept even in non-Western thought about politics, let alone Western. We could try to reject the concept, but that would require great effort, intellectual as well as political – for it would necessarily be reactionary, an innovation through conservatism. A literal conservatism would have to accept the idea of rights, given how intricately woven it is into the fabric of our political discourse. We cannot do without it lightly.
Yet few concepts are also so difficult to defend. Rights-based arguments often get nowhere, because the rights asserted are typically in obvious diametrical contrast: the fetus has a right to life, the pregnant woman has a right to control her body, now what? Rights are typically supposed to be something different from utility; they are not the sort of thing one can trade off and weigh. (That is the role they play in the thought of John Rawls, for example, where protecting individual rights takes “lexicographic” priority – that is, always comes first – over maximizing the welfare of the worst off.) So when competing rights are asserted, too often it leads not to reasoning but to combat. Sometimes the combat is judicial, as over the rights declared in the American Constitution; but those only happen to be the rights articulated by one country’s laws at one point in time. The force of the concepts of civil rights or human rights can only derive from them being something higher, truer, than what happens to be one existing state’s law.
Probably the most widely accepted list of rights around the world is the United Nations’s Universal Declaration of Human Rights, which holds the Guinness Book‘s record for world’s most translated document. The Universal Declaration enumerates a list of rights without ever specifying what exactly a right is, let alone any reason someone might have for believing that anyone has them. And it would seem that this is by design. Jacques Maritain, in the introduction to a document specifically intended to explain the creation of the Universal Declaration, quotes a meeting where “someone expressed astonishment that certain champions of violently opposed ideologies had agreed on a list of these rights.” The response: “Yes, we agree about the rights but on condition that no one asks us why.” The emphasis is in the original. Maritain adds, “That ‘why’ is where the argument begins.” He reiterates the point a number of times: “So long as minds are not united in faith or philosophy, there will be mutual conflicts between interpretations and justifications” – but “agreement on a joint declaration is possible, given an approach pragmatic rather than theoretical…”
Over and over, this is the rationale publicly given for declarations of rights: pragmatic efficacy, conflict resolution. Rights talk seems to work. It seems, in general, to get governments to treat people more humanely and make them more free, which I agree is a good thing. But rights talk creates problems at least as large as those it solved. For one thing, as already noted, when there is no room for asking why, there is no rational way to resolve disagreement. If I say I have a given right (say, the right to the necessities of life at taxpayers’ expense, or the right to refuse to employ those whose political views offend me) and you say I don’t, we are stuck; reason-free declarations like the Universal Declaration provide us with no guidance. I may myself hold these truths to be self-evident, but that doesn’t mean they are evident to you.
For another thing, whether rights talk works has no necessary connection to its truth. What does this mean for those of us who care about truth? Have rights campaigners been effective by talking about things that just do not exist? Is talk of rights simply an effective lie? Are there really no such things?
Alasdair MacIntyre thinks so. The passage where he makes the claim is so elegantly and deliciously pugnacious that it is worth quoting in its entirety:
[T]here is no expression in any ancient or medieval language correctly translated by our expression ‘a right’ until near the close of the middle ages: the concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400, let alone Old English, or in Japanese even as late as the mid-nineteenth century. From this it does not of course follow that there are no natural or human rights; it only follows that no one could have known that there were. And this at least raises certain questions. But we do not need to be distracted into answering them, for the truth is plain: there are no such rights, and belief in them is one with belief in witches and in unicorns.
The best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns: every attempt to give good reasons for believing that there are such rights has failed. The eighteenth-century philosophical defenders of natural rights sometimes suggest that the assertions which state that men possess them are self-evident truths; but we know that there are no self-evident truths. Twentieth-century moral philosophers have sometimes appealed to their and our intuitions; but one of the things that we ought to have learned from the history of moral philosophy is that the introduction of the word “intuition” by a moral philosopher is always a signal that something has gone badly wrong with an argument. In the United Nations declaration on human rights of 1949 what has since become the normal UN practice of not giving good reasons for any assertions whatsoever is followed with great rigor. And the latest defender of such rights, Ronald Dworkin (Taking Rights Seriously, 1976) concedes that the existence of such rights cannot be demonstrated, but remarks on this point simply that it does not follow from the fact that a statement cannot be demonstrated that it is not true (p. 81). Which is true, but could equally be used to defend claims about unicorns and witches. (After Virtue, pp. 69-70)
It is worth noting how MacIntyre begins here with a historical and linguistic point, and moves from there to the philosophical ones. The linguistic point matters; it is certainly true and relevant that the concept of “having a right” is far from universal, at least before the past century. (And when it comes to establishing universals, the 20th century doesn’t count. Nearly every language now has a word for email – and that word is usually “email” – but that doesn’t make email a universal human phenomenon.) It is quite remarkable how many states signed the Universal Declaration when their local languages didn’t even have an indigenous word for rights as such. (Of course there are indigenous precedents for many of the practical precepts expressed by the Declaration – say, that a government should provide a basic standard of living to its citizens – but in many places, nothing that could be translated “X has a right to Y” except as a recently coined back-translation to make the modern Western concept of rights make sense.) So it is easy to think, as MacIntyre does, that the concept of rights was simply made up alongside the modern West, an invention of modernizing thinkers from Ockham through Grotius to Locke.
Easy, but not quite right. The history of the idea of rights is quite complex, and in the coming weeks I want to explore it in more detail – in order to help explore whether rights really are one with witches and unicorns.
[EDIT, 1 Jul ’15: This post seems to be attracting a great deal of traffic – from Reddit, I think – and for some reason WordPress hasn’t been doing pingbacks properly, which makes it harder to see the followup posts where I did explore the idea of rights in more detail. So I’d like here to welcome new viewers, and invite you to have a look at those followup posts: The history of rights (I), The history of rights (II) and Reasons for rights.]