Tag Archives: law

The history of rights (I)

15 Sunday Mar 2015

Posted by in Analytic Tradition, Greek and Roman Tradition, Morality, Politics, Vedas and Mīmāṃsā

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Is the concept of (human) rights a modern conceit, as Alasdair MacIntyre thinks? To answer that question, it helps to look at the premodern roots of the concept of rights in some detail. The French legal historian Michel Villey has probably done more than any other to help us understand the historicity of the concept of rights – to recognize that the idea of a right as we understand it today is not a human universal, but has a specific history. (Unfortunately, few if any of Villey’s works have been translated into English; even the Wikipedia link above is French only.) Something like Villey’s work probably underlies MacIntyre’s understanding of the history of rights. Still, if we examine the similarly pioneering work of Cornell historian Brian Tierney, we will see that Villey’s claims are at least somewhat overstated, and MacIntyre’s even more so.

The etymology of the English word “right(s)” goes back very far – it is shared not only with German and Dutch Recht but with the word ṛta from the Sanskrit Vedas, denoting the cosmic order underlying the world. But what’s most important in the history of “rights” and related words is not the words themselves but the underlying concept, the one that comes to be expressed in modern European languages as droit, derecho, Recht, rights. That concept begins as a word which is not etymologically related to the modern European words, but which those words all translate and which is the root of modern European thinking about them: Continue reading →

What’s wrong with rights

01 Sunday Mar 2015

Posted by in Foundations of Ethics, Morality, Politics

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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. Continue reading →

Pro-choice humility

09 Sunday Dec 2012

Posted by in Certainty and Doubt, Humility, Morality, Politics, Roman Catholicism

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A little while ago on Skholiast’s blog, Elisa Freschi pointed to an argument from Nicholas Shackel attacking the “pro-choice” position on abortion. Shackel objects deeply to the following claim from the US’s newly elected Catholic vice-president, Joe Biden:

I accept my church’s position on abortion…. Life begins at conception. That’s the church’s judgment. I accept it in my personal life. But I refuse to impose it on equally devout Christians and Muslims and Jews…I just refuse to impose that on others.

As Shackel notes, such a position is hardly unique to Biden. Forms of this position are very common; in many Western countries, they may even be the most common. It is the position one could reasonably call “anti-abortion but pro-choice”. And as far as Shackel is concerned, such a position is ignorant or worse. Continue reading →

Can collectivities be virtuous?

24 Sunday Apr 2011

Posted by in Action, Buddhism, Christianity, Epistemology, Foundations of Ethics, Humility, Philosophy of Science, Politics, Social Science, Virtue

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There’s been a great discussion going on in the comments to last week’s post on humility and science. This week I’m going to focus on only one of the themes mentioned, which takes us in a different direction from that post but is interesting in its own right.

My post recounted Carl Sagan’s claim that although “religions” claimed an ideal of humility, science was actually more humble; I argued that the two were in fact very similar. A comment from Ben acutely pointed out something I had been missing, a way in which Sagan was right that the tradition was different. Sagan, Ben points out, is defending “not the humility of individuals, but the humility of the whole tradition.” Science as a whole is able to admit when it is wrong, in a way that Christianity and Buddhism are not. In a following dialogue, Ben and I agree that science maintains an institutional humility that “religious” traditions do not, though those other traditions likely do a better job of promoting individual humility.

Other commenters took issue with this agreement, however. If you follow the comment threads on this site with any regularity, you will know that Thill and Jim Wilton do not usually agree on very much. But this time, they unanimously condemn the point shared by Ben and myself: “There is a category mistake here,” says Thill. “Traditions cannot be said to be humble or arrogant. Only individuals can be said to be humble or arrogant.”

And this is a question that well deserves further philosophical exploration. Can an institution or a tradition possess a virtue? Can a government be courageous? Can a corporation be honest? Can a tradition be humble? Continue reading →

How not to conduct interreligious dialogue

03 Sunday Apr 2011

Posted by in Christianity, God, Islam, Judaism, M.T.S.R., Modern Hinduism, Politics, Truth, Vedānta

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When I taught an introductory religion class at Stonehill, one of my favourite texts to teach was Jon Levenson’s Commentary article, “How not to conduct Jewish-Christian dialogue.” Levenson’s article is a critique of Dabru Emet, a brief statement made by four professors of Jewish studies. Dabru Emet emphasizes the commonalities between Jews and Christians: they worship the same God, seek authority from the same Hebrew Bible, and accept the moral principles of that text.

Levenson responds: wait a minute. For Trinitarian Christians (the vast majority today and for most of Christianity’s history), Jesus is God in a fundamental sense; but for a Jew (or Muslim), to say that a man is God is an idolatry that drastically compromises God’s fundamental oneness and uniqueness. While the content of the Tanakh – the Hebrew Bible as understood by Jews – may be mostly the same as that of the Old Testament, they are read in a very different light. To understand the Tanakh, Jews turn to Mishnah and Talmud; to understand the Old Testament, Christians turn to the New. As a result, the stories of the Hebrew Bible unfold very differently in each – they are even placed in a different order, so that the Tanakh culminates with the rebuilding of the Temple in Jerusalem, while the Old Testament ends with a prophesy heralding the “coming of the Lord.” And this isn’t just a matter of arcane scriptural study: it affects one’s ethics, one’s idea of the good life. Jewish ethics have been traditionally focused on following God’s laws and commandments as revealed in Torah, Christian ethics on following Jesus’s example – or even more so on faith in him and his saving grace.

Now my interest in Levenson is not in the particulars of Jewish and Christian traditions, since I identify with neither tradition. Rather, what I deeply appreciate is his criticism of Dabru Emet‘s method. Such documents, Levenson argues, “avoid any candid discussion of fundamental beliefs,” and “adopt instead the model of conflict resolution or diplomatic negotiation.” Continue reading →

Of constitutions and the Constitution

20 Wednesday Oct 2010

Posted by in Greek and Roman Tradition, Politics, Protestantism, Roman Catholicism

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Good news this week: after a difficult, expensive and often harrowing process, I had a successful interview with the American immigration service, so I am now a legal permanent resident of the USA (holding a “green card”). While we waited for the interview, I was reading my notes on James Doull‘s Philosophy and Freedom, and realized it had given me a much better understanding of the country in which I have settled.

One of the more curious features of American political conversation is Americans’ attitude toward their Constitution. In American politics, the Constitution is a scripture, a sacred text; and I do not mean this at all metaphorically or analogically. The Constitution literally is a scripture, for it has the most important hallmark that a scripture has: while the meaning of the text is endlessly debated, the text itself is universally regarded with great reverence and respect. Both of the warring sides of American politics accuse the other side of disrespecting the Constitution (the language used is typically stronger than “disrespecting,” often involving bodily functions of some variety). Some might argue that the Constitution is not a scripture because it is not “religious,” but this is already to beg the question; I have yet to find an adequate reason to distinguish between the “religious” and the “non-religious,” or reasonable way of classifying the two.

This attitude toward the Constitution has perplexed me since before I arrived in the country. Continue reading →

The problem of bad and the problem of good

01 Wednesday Sep 2010

Posted by in Analytic Tradition, Christianity, Early and Theravāda, Foundations of Ethics, God, Greek and Roman Tradition, Metaphysics, Roman Catholicism, Vedānta

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In my previous discussion of Christine Korsgaard’s prologue to The Sources of Normativity, I left out one significant feature of the story she tells of Western philosophy. This is the reason – related to the basic account of excellence of obligation – why Christianity proved philosophically more powerful than Greek thought.

On Korsgaard’s account of Greek metaphysics (à la Plato and Aristotle), goodness is a feature of reality, one more fundamental in a sense than the particular physical objects that appear before us. Perfect form is more real than imperfect matter. This is true whether, with Plato, those forms exist in a world apart from matter, or, with Aristotle, they exist within matter as its potential and telos.

But if that’s the case, Korsgaard notes, then the logical question is: why aren’t things perfect already? We normally think of theodicy – the problem of suffering and responses to it – as primarily a problem for Abrahamic traditions. If God is omnipotent and omnibenevolent, it’s hard to see how there can be suffering in the world (though it’s less hard to see how there can be evil). But broaden the question a bit – make it “the problem of bad” – and it appears elsewhere too. For Śaṅkara’s Advaita Vedānta, in which reality is pure knowledge, it’s a conundrum to think how there can be so much ignorance.

And Korsgaard seems to provocatively suggest that the Christians were better equipped to handle the problem than the Greeks – connecting to her account of how an ethics of excellence was superseded by an ethics of obligation. Continue reading →

“On the grounds of religion or belief”

20 Wednesday Jan 2010

Posted by in Morality, Politics

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Found an interesting news article from last fall in the Manchester Guardian: British employers, a judge has ruled, are forbidden from discriminating against employees because of their environmental convictions. The case in brief: employers at London’s Grainger real-estate company mocked one employee’s devotion to remedying climate change, even taking steps to provoke him – in one case ordering him to fly to Ireland just to deliver a BlackBerry his boss had left behind. Eventually, he was fired – and a judge says he has a case. The relevant 2003 British labour law, indeed, is worded to prohibit discrimination and harassment on the grounds of “religion or belief.”

Generally, such a law strikes me as overdue. I’ve long been uncomfortable with the idea of giving legal protection only to “religious” convictions, for the idea of “religion” so often tends to obscure more than it clarifies. Aside from the obvious difficulties in classification (does the term “religion” apply to yoga exercises? To meditation? To brushing our teeth?), the term leads us to ask the less important questions, about differences between traditions rather than within them. For these intellectual reasons I suspect it’s a category we’d be better off without, if we could be.

But here the problems with “religion” are more than intellectual. On what reasonable grounds can we proclaim that this man’s refusal to fly on frivolous grounds is less serious, less important, less well considered than, say, a Jew’s refusal to eat pork? I disagree with politically activist views that see commitment to environmental or social causes as our fundamental moral duty; but then I disagree with much of the Qur’an’s moral teaching as well. Anti-discrimination laws are specifically designed to protect those with whom we disagree. Either the law should protect all deeply and sincerely held beliefs, irrespective of their “religious” status, or it should protect no such beliefs at all.

(No post this Sunday, as I’ll be out of town, as well as starting a new semester.)

Medicine as ethics

01 Tuesday Sep 2009

Posted by in Biology, Early and Theravāda, Flourishing, Food, German Tradition, Happiness, Health, Judaism, Politics, Psychology, Roman Catholicism, South Asia

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In After Virtue, Alasdair MacIntyre once said that “it is the lawyers, not the philosophers, who are the clergy of liberalism.” That is, in modern societies – liberal in the broad sense – it is lawyers who do the work, and have the status, once given to the medieval European Christian priesthood.

On this point I think MacIntyre is half right – or perhaps three-quarters right. He is quite right to note the low status that the modern West accords philosophers; but he overemphasizes the role of lawyers, because his concept of the good is (to my mind) overly political. Lawyers do play the role of medieval clergy as the rulers’ intellectual assistants in determining what a good state will be in practice. When it comes to the good life itself, however, the intellectual heavy lifting is done by a very different group: namely doctors, and medical researchers. It is medicine, not law (and certainly not philosophy), that plays the greatest role in telling moderns how they should live.
Continue reading →