The Right To Have Rights

by Astra Taylor on March 6, 2018

Last month The Right To Have Rights, an edited collection I contributed the afterword to, came out with Verso. Crooked Timber’s own Corey Robin was kind enough to provide an endorsement for the book, which he called “a marvelous deconstruction of a vexing concept, and a wonderful new way of doing theory.” Not bad!

The book’s form is indeed unique – each of the collaborators takes on a portion of Hannah Arent’s now famous phrase from The Origins of Totalitarianism “the right to have rights” (interestingly, the provocative formulation was initially overlooked by readers and not something Arendt lingered on or made much of). Stephanie DeGooyer tackles “The Right,” Lida Maxwell examines “To Have,” Samuel Moyn reflects on “Rights,” and Alastair Hunt addresses the implicit question, “of Whom?”

I’ll just say that writing the afterward was a real treat, mainly because I had never had the chance to deeply engage with Arendt before (I had read a few chapters, essays, and excerpts here and there and seen both of the recent movies about her released by Zeitgeist Films, but that was about it). Though I was glad to have an excuse to dig in, my contribution is a rather unorthodox (and not very Arendtian) reading informed by my reporting on the refugee crisis in 2015 and my ongoing economic justice work.

Building on the main contributions, I look at the way people’s citizenship rights are being undercut in an age of globalized capitalism and how neoliberalism and ethno-nationalism are dangerously entwined. As an activist, invoking rights can become a kind of reflex or habit, and sometimes (if I’m honest) a substitute for other kinds of argumentation and imagination, so it was also good to have an occasion to step back and ponder what we’re really talking about when we talk about rights or make entitlement claims. I’m not about to dismiss rights as nonsense upon stilts or bourgeois individualism run amok, but I emerged from this project more critical than when I began. I will certainly be more deliberate (and hopefully more forward-looking or even out there) in any rights demanding effort I’m part of as a result.

In honor of the book’s publication, I asked each of the contributors to share some thoughts in response to the same prompt. I asked them to reflect on what, if anything, grounds rights and whether we might need to start thinking about rights in new ways. Their replies are below.

I’d be curious to hear others reflect on the same prompt in the comments should inspiration strike.

The question of how rights might be recognized and fulfilled is a far more interesting and difficult question than what rights are in themselves. We tend to think of rights as the sacrosanct property of certain subjects: the right of individuals to bear arms, the right of citizens to vote, or the right of human beings to life itself. But rights are not inborn properties. If they were, we would never have to exercise a demand or make a claim for them. As much as we can assert a right, there must be a larger communal body that feels obliged or compelled to assume the burden of making sure we can enjoy this right. The question of how we might compel individuals, corporations and states to take up a responsibility for the rights of others is the question we should be asking. – Stephanie DeGooyer

We tend to think of rights as self-evident, as grounded in our equality as human beings. But that ground, historically, has been shaky: claims about who is truly human have served to exclude, disenfranchise, and license mass violence against marginalized peoples. Arendt alerts us to the shakiness of the ground of rights, and shows us that the way we can stabilize it is not through appeals to morality, but rather through political action and staging of rights. We “have” rights like we “have” a party or a conference: we have to collectively stage, enact, and demand that we all be treated as individuals capable of claiming our rights. We – as collective political actors – are the constantly changing, yet crucial, figures that give rights-claimers a ground to stand on. – Lida Maxwell

Arendt’s reflections remind us how little has been done to guarantee rights, especially for outsiders to existing states—as well as insiders whose protections are increasingly precarious, and risk becoming outcasts in their own lands. It remains true today that too many people, as Arendt observed, are driven to assert their “humanity” — or have others assert it for them — in the absence of any grounds for rights. – Samuel Moyn

Human beings, we say, are born with rights. But rights are not really a function of anyone’s biological make-up: they are things we can enjoy only as members of a political community made when individuals act together in concert. Historically when individuals have joined communities, it often came as a big surprise to existing members. A telling mark of the quality of our political communities is whether we reject or welcome those who, because they are rightless, need to become members. – Alastair Hunt

{ 26 comments }

1

J-D 03.06.18 at 9:05 am

I’d be curious to hear others reflect on the same prompt in the comments should inspiration strike.

Since you ask:
When I read the question ‘What grounds rights?’ I am prompted to frame this question: ‘Are rights the kind of thing which can be, or should be, or need to be grounded?’
When I read the question ‘Do we need to start thinking about rights in new ways?’ I am prompted to frame this question: ‘What are the different ways that people have already thought about rights–the old ways, with which any new ways would have to contrast?’

I also think it’s interesting to look at the Universal Declaration of Human Rights and notice that it includes some sentences which use the word ‘right’ and some which don’t. For example, what is the relationship between a sentence like ‘Everybody has a right to own property’ and a sentence like ‘Nobody shall be arbitrarily deprived of property’?

2

Phil 03.06.18 at 9:18 am

Hunt’s point is crucial, I think, but it raises other questions – specifically, what to do about the frontier between “rights-bearing subject” and “bare life”, beyond agreeing that it’s currently excessively policed. I wrote something touching on this a few years ago, sparked off by a paper of John Gardner’s:

I think Gardner’s distinction between the immorality of torture and the wrongs which can be understood in terms of allocative justice is valid and powerful, although not quite in the way that he uses it. What I think it points to is the ways in which people can be reduced to something below the status of personhood – through torture or brutalisation, but also through homelessness, institutionalisation or becoming a refugee – and the powerlessness of the language of justice to address these very basic, fundamental wrongs. If the law is about justice, and justice is defined in terms of the correct adjudication of competing claims among autonomous individuals, how can it address – how can it fail to overlook – those people who are shut out of the game entirely, by being denied the status of person in the first place? And if the law can’t be invoked, what can?

3

Thomas Beale 03.06.18 at 12:45 pm

I find it a bit surprising that the notion of grounding (human) rights in human nature is really questionable. Certainly attempts have been made to dehumanise certain groups within humanity for the purpose of diminishing their rights, but nearly all such attempts are easily shown to have no grounding themselves, and thus be arbitrary (the question of rights for the worst monsters in prison or in court in The Hague might be the exception).

Rights can be, and I would say must be, grounded in non-contested aspects of reality, and it is therefore essential to determine which ones; otherwise any claimed right is unlikely to withstand claims for satisfaction if underlying reasons cannot be greed upon.

Take the UNDHR – the first five articles can be grounded in human nature – they pretty much are a function of being conscious biological organisms; 6-12 can only be grounded in a society with a legal system, which might sound uncontroversial, but a cursory inspection of the legal systems of the US, Europe, the Islamic world will show otherwise; grounding 13-16 requires the notion of nation state, which might be approximately commonly held; 17 requires a notion of private property, which starts to look arbitrary as soon as particular claims are investigated; 18-20 assume a notion of freedom of mind which is clearly linked with the idea of liberty with respect to self and thus more solid; the later articles can only be grounded with an extensive set of assumptions about how societies and nations operate with respect to individuals – health systems, education systems, union protection of workers, holidays and so on.

Whatever particular rights are grounded in points to the kind of entity whose obligation it might be to fulfill them. The problem of the stateless refugee illustrates how difficult this is to achieve when there is no authority above the nation state. It might seem to imply that all rights, whether core human rights, or rights to law, education, etc, are in fact political.

A practical measure for getting away from this situation might be to slice up the UNDHR into appropriate pieces, and concentrate on how humanity might satisfy at least 1-5, or perhaps 1-12 unconditionally.

4

Anarcissie 03.06.18 at 2:52 pm

Thomas Beale 03.06.18 at 12:45 pm @ 3:
‘…Take the UNDHR – the first five articles can be grounded in human nature – they pretty much are a function of being conscious biological organisms….’

I don’t see how that can be correct. Many communities of humans have practiced inequality, war, execution, slavery, torture, terror, and so forth, all theoretically prohibited by the UNDHR, for centuries with relative success. Some, which I need not name, are continuing to do so. Apparently being conscious biological organisms does not prevent some humans from thriving while doing these things.

5

Thomas Beale 03.06.18 at 3:08 pm

Anarcissie @4
‘grounding’ does not mean that such rights are realised, just that there is a theoretical/philosophical justification for them. The more solid the grounding (just as for any terms that refer, within any narrative or assertion), the closer to unassailable such rights may be, and therefore the stronger the arguments for acting so as to realise them for those for whom they have been taken away.

Consider a concrete example – globalised trade. Instead of talking about tariffs or other such nonsense, nations and companies could simply refuse to trade with entities that violate well-grounded human rights, typically slavery-like work conditions. That could be legislated for. When very justifiable rights (ones we might consider ‘inalienable’) are mixed up with only weakly justifiable ones, as per the UNDHR, which does not even make the basic distinction of ‘human’ and ‘civil’ rights per Arendt, you get prevarication, paralysis and inaction. And slavery and torture.

6

Mike Huben 03.06.18 at 3:15 pm

“The question of how rights might be recognized and fulfilled is a far more interesting and difficult question than what rights are in themselves.”

I agree, but perhaps in a very different way than was intended. I take a strongly reductionist view. Natural rights don’t exist: they are nonsense on stilts. I view rights as enforced claims (legal rights.) Most people instead consider moral rights, which are desires not reality. The struggle to create legal rights that match moral rights is the “far more interesting and difficult question”, but it also begs the question of which moral rights: moral rights claims multiply like angels on pinheads.

For more on rights as enforced claims, see: A Positive Model Of Rights/a>. I’d welcome criticisms.

7

Astra Taylor 03.06.18 at 10:02 pm

J D — interesting reframing.

Phil, just FYI Hunt specifically expands the analysis to include non-human animals.

And Mike, the nonsense on stilts take has something appealing about it. I’m still working out my view.

8

J-D 03.06.18 at 11:59 pm

Astra Taylor
Intoxicated by the heady wine of your praise, I am stimulated to offer some other thoughts.

The words ‘right’ and ‘rights’ are commonly used in phrases such as ‘human right(s)’, ‘legal right(s)’, ‘natural right(s)’, ‘moral right(s)’, and ‘economic right(s)’. The fact that these different phrases exist and are regularly used suggests that they don’t all mean the same thing; on the other hand, the fact that the word is used in all those phrases suggests some connections or associations. What might that tell us about rights? Also, when phrases like those are translated into another language, does the word ‘right’ (or ‘rights’) translate into the same word in the translation of each phrase and, if not , what possibilities might that suggest?

Suppose I told you a science-fiction story about interstellar explorers on two broadly similar planets, both with sapient inhabitants, but where the inhabitants of one had rights and the inhabitants of the other did not, and the explorers don’t initially know that. What sort of investigations do you imagine the explorers might undertake in order to figure out whether the inhabitants had rights; or, if that question (and perhaps even my initial description of the scenario) doesn’t make sense to you, what might that failure to make sense tell us about rights?

9

F. Foundling 03.07.18 at 2:29 am

Thomas Beale 03.06.18 at 12:45 pm, 03.06.18 at 3:08 pm

So, by and large, scrap the socialist-type rights and keep only the liberal-type ones, because you only consider the latter to be basic and justified (and following from human nature), and you think that the latter unduly detract attention from the former. Well, I happen to find both to be basic and justified (and following from human nature), and many, as pointed out above, have found and still find neither to be all that basic and justified. The question is whether your view, or mine, or theirs gets the most political support in self-governing entities (the UN included) – and in that sense rights are, indeed, political, whatever our views about human nature might be. Certainly, the ‘right to rest and leisure’ and ‘the right to food, clothing, housing and medical care’ are as grounded in human nature as can be.

I also disagree with the suggestion that some rights unduly detract attention from others. Affirming, say, workers’ right to rest and leisure does not hinder, say, the enforcement of the right not to be held in literal slavery (which is not all that common anyway); if anything, denying people the right to rest and leisure and the right to free choice of employment does get us quite a bit closer to slavery-like conditions. So does, slightly less directly, denying the right to form and to join trade unions and, indirectly in a narrow sense and directly in a broader sense, the right to take part in the government of one’s country.

A further common argument is that socialist-type rights, while affirmed in theory, are not being consistently enforced in practice anyway. This is a problem with the practice, not with the theory; not to mention that the same holds true of the liberal-type rights, yet somehow the conclusion that they *can’t* or maybe *shouldn’t* be enforced isn’t made.

10

J-D 03.07.18 at 3:48 am

Thomas Beale
I wonder whether you have perhaps mixed up two separate issues.

The concepts of security of person and insecurity of person (Article 3 of the UDHR) can be meaningful for sapient beings in general. The concepts of equality before the law and inequality before the law (Article 7) can only be meaningful in the context of legal systems. The concepts of nationality and deprivation of nationality (Article 15) can only be meaningful in the context of nation-states. The concepts of choice of employment and protection against unemployment (Article 23) can only be meaningful in the context of particular economic systems. Statements like these are true; and they can be agreed by people who reject entirely the notion of ‘rights’ and regard all talk of rights as nonsense and gibberish, so it’s hard to tell how they shed any light on the concept. Knowing that the concepts of employment and unemployment are grounded (if that’s the right word) in particular economic systems doesn’t help much in figuring out how (if at all) the rights (if any) of the employed and of the unemployed are grounded, if at all, or whether they’re the sort of things that are, or can be, or need to be grounded.

11

MFB 03.07.18 at 7:55 am

Rights are not inalienable. At the moment the South African government is dismantling some trade union rights, for instance, with the tacit complicity of the trade unions, because the latter (and the former, of course, but one expects that) are corrupt.

The real problem, therefore, is not only to acquire rights, but also to sustain them. You do not have a right to have rights. You negotiate and struggle for rights. This is, more or less, what Maxwell was saying in the original post.

The problem with having some kind of super-entity which decides what our rights are is that unless that super-entity is completely compliant with all the wishes of those people over whom it has authority (which is inconceivable) is that the super-entity, be it government or corporation or international agency (or, for that matter, sexual partner) is liable to be corrupted by self-interest. Such agencies wish to take away rights, usually under the pretense of granting them rights. Hence the abuse of “responsibility to protect” over the last couple of decades.

12

john c. halasz 03.07.18 at 8:02 am

Arendt, following her teacher Heidegger, would have been what is now called an anti-foundationalist, hence her resort to the locution “the right to have rights”, (having personally experienced the fate of a stateless person, stripped of accustomed rights). Hence there can be no appeal to 17-18th century doctrines of “natural rights”, still less to “human nature”, as if that were a solid substantial thing, rather than something that is socio-culturally structured, thus historically variant. Rights are legal-political institutions, – (hence again “the right to have rights”, which points to the inaugurating or instituting of any system or conception of rights),- thus always bound up with systems of power. (There’s a very real sense in which they take away your freedom to grant you your rights. If you’ve ever been arrested, you know how that feels). Arendt then went on to develop her conception of public-communicative power as invested in the public sphere, though a rather one-sided conception of power. Since in her conception, “action” is closely tied to public-political speech and speech is said to be the opposite of violence, she rejects or evades the notion of sovereignty as violent domination, even as coercive force must back up any enforcement of rights.

13

MisterMr 03.07.18 at 11:20 am

My opinion, based on my reading of Marx’s “on ‘the jewish question'”:

In ancient societies, people had a “duty-based” concept of morality, where duties were linked to social roles, but when the caste-like structure of ancient societies ceased the concept of morality became “right based”.

A duty based concept of morality is something like this: A is a woman, thus her job is to raise kids and do housework, and if she doesn’t she is a bad woman because she is going against her duties, B is a farmer and his God-given role is to till the land, C is the king and his God-given role is that of being a just ruler etc.

But in modern societies those roles are not easily accepted, because everyone is supposed to be equal, at least in terms of rights, and you can’t therefore build “roles” to which confer duties, so duties become just the other side of someone else’s right (so for example a kid has a right to be raised properly, which implies a duty from his parents).

This egalitarianism comes from the rejection of “aristocracy” in the late renaissance and the modern era, which did lead to the idea that all man are equal, but since this theory was championed by the rising bourgeoise this definition of equality of rights did not reach the economic realm (all man are created equal but everyone with a different pocket). From this limit arises the difference between “equality of rights” VS “substantial equality”, or “equality of opportunity” VS “equality of outcomes”.

The difference between civic rights and human rights in my opinion is spurious, because it arises from the fact that the bougoise revolution did not completely swipe out the “ancient” way of thinking (yet), so what happens is that we don’t yet have full “equality of rights” and therefore we still distinguish between citizien and non citizien.

But the “substantial equality” problem arises again because, in pratice, my rights are your duties, so if I have the right to, say, al living wage job, you have the duty to provide me with one, if I have the right to express my opinion you have to give me the means to do it and so on.

14

Thomas Beale 03.07.18 at 12:15 pm

F. Foundling @ 9
So, by and large, scrap the socialist-type rights and keep only the liberal-type ones, because you only consider the latter to be basic and justified (and following from human nature), and you think that the latter unduly detract attention from the former.

I didn’t suggest scrapping anything. It’s just that some prospective rights are grounded by more basic aspects of reality – basic rights as the right to be treated as equals, the ‘right to life, liberty and security of person’, ‘freedom from slavery’, ‘freedom from torture’ and so on can be grounded via an objective examination of the nature of the human as a conscious, self-aware biological organism that experiences pain (related arguments for non-human animals can also be made, as is well known). Although the UNDHR was authored by complete amateurs, its first 2 articles are a rough attempt to say this.

Claimed rights that can only be grounded in far more complex assumptions about reality, such as the existence of social security, education etc, don’t really belong in the same list, not because they are not important but because they rely on a pile of contingent assumptions about how societies are structured that can relatively easily be evaded by societies that violate such rights (typically for particular groups – the poor, certain castes, certain religions etc). It’s really pretty hard to justify slavery and torture, but not that hard to justify the lack of ‘necessary social services’ or even the right of asylum, for those that want to.

Some systems of rights don’t rely even on an assumption of grounding in mind-independent reality. The Cairo Declaration on Human Rights in Islam is grounded in religious rhetoric, and constant referring out to the Sharia law. As a result, articles 10 and 19 are interesting, to say the least.

Naturally I don’t disagree with the basic sense of the claim that there are (arguably) no rights without law, legal systems etc. It’s just that it isn’t a very interesting question, and the existence of legal means of enforcement and adjudication does not constitute the grounding of prospective universal rights, other than those dealing with the right of recourse to and equality before the law. In any case, the fact that the breaking of lesser laws to obtain more basic rights in particular cases – e.g. invasion to rescue hostages, victims of torture – is widely tolerated does show that the law argument isn’t absolute.

15

Anarcissie 03.07.18 at 12:55 pm

Thomas Beale 03.07.18 at 12:15 pm @ 14 —
Slavery and torture were regularly justified by religion and philosophy for thousands of years, almost up to the present time. (E.g. Aristotle.) I would like it if you could make your concept of the ‘grounding’ of rights more concrete; you seem to imply something more than mere opinion or preference, but its material reality has not been revealed.

16

Shirley0401 03.07.18 at 1:11 pm

MFB @ 11

You do not have a right to have rights. You negotiate and struggle for rights.

This feels true to me, and I think people’s misunderstanding of this creates real roadblocks to both protecting established rights and establishing new ones. Even the “natural rights” that rely less on direct activity of others (what I get to mean the ones we could generally call passive, like the right to life or the right to practice one’s preferred religion) are hardly guaranteed. A positive case constantly has to be made for them, or they can slip away pretty quickly. But I think it’s easier for a lot of people to assume, as long as the rights that matter to them are largely respected most of the time, that they shouldn’t have to be fought for. Which is a kind of complacency, and dangerous.
Thomas Beale @ 14

It’s really pretty hard to justify slavery and torture, but not that hard to justify the lack of ‘necessary social services’ or even the right of asylum, for those that want to.

I’ve probably seen both slavery and torture justified in the past year, and I’m not even looking for it.

17

steven t johnson 03.07.18 at 1:39 pm

Mario Bunge observed that all rights can be stated as duties. The right to life is the duty not to kill people, to be simple. I would suggest that if you re-frame questions about rights as questions about duties, but the results don’t really make much sense, then there is something wrong with the concept. Is “the duty to have duties” meaningful? It seems to me the only way to suggest that being human in practice means taking part in society, because no one survives alone. Even the rare hermit depended on others as an infant. I would conclude that rights depend upon the society, which means complex issues of specificity. The validity of universal rights is proportional to the universality of a society, that is, polity, economy, history.

There does seem to be another issue, the presumption of moral equality of people. It is a longstanding tenet of philosophy, religion and law that some people are better than other people. Sometimes this is an individual determination, as when a trial convicts a person and punishes them. But very often the inequality is conceived as a group characteristic. Virtue ethics is all about acknowledging the superiority of some, and charging the common with the duty to imitate their models. The Confucian sage is perhaps the most influential historical example.

In practice it appears the paragon of virtue is covertly an idealization of convention which is itself molded by the needs of the powerful. This seems inadequate. Worse, dully empirical investigation has never, in centuries, managed to prove that that any group has measurably less virtue than any other. Or, an equally necessary proposition derived from the fundamental thesis, that any allegedly superior group is less exempt from lapses from virtue. Or even that virtues is transmissible to later generations by any means, also a requisite proposition. Nonetheless, philosophy, religion and law have found it easy to ignore mere facts, preferring logical validity or other ways of knowing. Plus of course, many (most?) religion, philosophy and law do not acknowledge the possibility of social science discovering laws of society in the first place.

If I were to draw conclusions, I would think that rights/duties that are not applicable to all within the jurisdiction are based on a false premise; that any right that cannot be expressed as a duty for all is a liberty or privilege for some; that any duty that cannot be expressed as a right is an oppression. I’m not sure this is very useful.

18

Thomas Beale 03.07.18 at 2:31 pm

Shirley0401 @ 16
I’ve probably seen both slavery and torture justified in the past year, and I’m not even looking for it.

When I say ‘justified’ I’m not talking about the typical ramblings of a CIA ignoramus, I’m talking about logically reliable and complete arguments that rely on ontological and metaphysical foundations. Nothing is ever uncontestable of course, but the mainstream press ‘justifications’ of slavery and torture, such as they are would not survive examination of a Logical philosophy 101 student.

Anarcissie @ 15
Well ‘grounding’ is a philosophical term and can have several related meanings. You can look up Bolzano’s logic, also ontological and metaphysical grounding in the Stanford Encyclopedia of Philosophy to get an idea. The essential idea is that ‘grounding’, understood as a relation between two propositions says that one is grounded by the other if the latter one has the status of a foundational assumption of the grounded one. I’m using it in the sense that claims such as human rights claims or propositions must firstly contain terms that uncontestably ‘refer’ to uncontested ‘referents’ (e.g. ‘asylum’ is a reference, what does it actually refer to in reality?) and that secondly, if a proposition (e.g. humans should be free from torture) can be more simply grounded, i.e. relies on a smaller hierarchy of truths than some other claim, e.g. that humans have a right to holidays, or political asylum, then the former kinds of claims are more ‘basic’, rely on fewer contingent assumptions and are thus likely to be more easily accepted by more people, societies etc, than the more complex ones.

19

Johnny 03.07.18 at 10:32 pm

I’m with Mike. Surely there are no rights without law. What is considered “natural” at any one point in time is so culturally specific… every single assumed right in modern times has been distinctly unassumed across vast expanses of time and space in human history. Not disputed. Not conceived of. And if that’s true, “moral rights” is meaningless. Only totalitarians would not accept a discrepancy between what they would like to see happen in life… and what the majority would like to see… and what should be law. Tobacco smoking? Lying? If we try to legislate the right not to be lied to… in general, as opposed to perjury or breach of contract or whatever… we are in trouble. So then it’s either in law or it’s not a right. Which takes us to considering whatever it is that leads to adaptive, inclusive, progressive legal processes. But what determines which of the things which are desirable should become legally enforceable? Some horribly incalculable mix of democratic process, constitutionality, mores and maybe even the advance of knowledge. I don’t see how you can lay down rules for the rules… In response to Stephen, I would say “the duty to have duties” is very real for me personally. Having and fulfilling a sense of duty is an inescapable, and wonderful, part of what it is to be human… but I agree it would be super hard to pin down how that could, or should, be generalised.

20

john c. halasz 03.08.18 at 1:57 am

Thomas Beale @ 18:

From the article on Bolzano, ( whom I’ve never heard of before): ” His logic is based on the abstract concepts of propositions and ideas in themselves (an sich), which are independent of thought and language.” What is that? Platonism or Scholastic realism? All I can say is “oh, dear”.

” ontological and metaphysical grounding… The essential idea is that ‘grounding’, understood as a relation between two propositions says that one is grounded by the other if the latter one has the status of a foundational assumption of the grounded one. I’m using it in the sense that claims such as human rights claims or propositions must firstly contain terms that uncontestably ‘refer’ to uncontested ‘referents’…”

Do you understand that “uncontested referents” which “uncontestably refer” are not available, and hence “ontological and metaphysical grounding” is neither possible nor necessary, “nonsense on stilts”, to borrow a phrase? Further it is doubtful that a “logic” oriented towards cognitive truth claims about objects in the external world can simultaneously serve to justify normative claims, such as rights, which don’t empirically exist in the external world. You seems to be stuck in the quick-sand of archaic, outmoded metaphysics, while thinking your floating on air.

On the other hand, Mike Huben @ 6 and Johnny @ 19 are just propounding the hoary old doctrine of “positive law”. This is different, but I think related to the liberalistic illusion that law is an autonomously self-regulating system, separate from power relation, and thus bestows its normative contents disinterestedly on the broader society. I tend to think of law, though not devoid of normative contents acquired thoughtfully and historically, quite cynically as a codification of extant relations of property and power, along the lines of the old American realist school of jurisprudence, and its relation to “justice” is often quite adventitious. I think that the extensive U.S. carceral system is as good an example as any of “the rule of law”. So I think there must be normative resources within broader political society, which can supplement, contest and transform legal systems. It’s just that they can not be derived from some prior foundation in imagined nature or formal deductions or procedures.

That rights are “inalienable” simply means that they can’t be bought or sold, (contrary to neo-liberal doctrine), and that their violation doesn’t doesn’t imply their non-existence. Since “alienation” is originally a term from property law. To declare them as “self-evident”, let alone endowed by the Creator, is just a performative speech-act. (It was discussed on another recent thread that “alienation” in a psychological or existential sense only gained currency in the early 19th century, though the notion had obvious antecedents with Rousseau. Marx combined the two senses in claiming the alienation, i.e commodification, of labor or, better, labor-capacity, was at the root of a broader alienation in political society).

Arendt, having grown up in his native city and having studied him since she was barely past puberty, was a Kant aficionado, so it was tempting to appeal to “humanity” as a basis of rights. But let’s remember what that Kantian notion of “humanity” amounts to. For Kant, the entire phenomenal world was strictly deterministic, in Newtonian fashion, and thus other human beings were likewise mechanical entities. Human freedom was entirely noumenal and the only evidence for it is the painful constraint one feels in submitting oneself to the moral law, which is identified with autonomy, every other human motive being deemed “pathological”. Thus the only basis for respect for the other is as a similar author of the moral law, otherwise not in evidence, which one imposes on oneself as autonomous, (an odd duplication of self as equal to oneself). A thoroughly solipsistic conception. Fichte in his interpretation of Kant attempted to bridge this gap by the notion of “Anerkennung”, recognition, at least among “non-dogmatic” autonomous individuals. That was further developed and much expanded by Hegel in the so-called “master-slave dialectic”, (which among other implications, was a critique of social contract theories, from Hobbes to Rousseau), into “der Kampf um Anerkennung”, the struggle for, (over, about) recognition. To my mind, that’s at least as good a basis as any for thinking about rights as a product/outcome of broadly political conflicts and struggles.

21

Thomas Beale 03.08.18 at 2:39 am

john c. halasz @20
Do you understand that “uncontested referents” which “uncontestably refer” are not available,

You are misquoting. Unintentionally, one hopes.

and hence “ontological and metaphysical grounding” is neither possible nor necessary, “nonsense on stilts”, to borrow a phrase?

Since you are analysing mangled nonsense, I think you are probably the main generator of further resultant nonsense….

Further it is doubtful that a “logic” oriented towards cognitive truth claims about objects in the external world can simultaneously serve to justify normative claims, such as rights, which don’t empirically exist in the external world.

Sure they can, just as any states, events and relations that may be reliably observed in nature may be used to justify or disprove claims about those entities. From a scientific realist point of view, it’s not much work to show that a right to not be tortured (or the moral intention behind it) may be grounded in empirically demonstrable causal relation between torture and suffering. That’s the essential basis of e.g. Singer on animal rights.

The fact that ‘rights’ are concretely artefacts of legal/political frameworks is obvious, but not conceptually interesting. It is of course a non-trivial problem to solve practically.

You seems to be stuck in the quick-sand of archaic, outmoded metaphysics, while thinking your floating on air.

Now you have lost me.

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john c. halasz 03.08.18 at 3:03 am

@21:

Sorry, no, I didn’t “misquote”. That was just copy/paste.

23

Johnny 03.08.18 at 6:16 am

I’ll cheerfully admit to being “liberalistic”. Maybe even “hoary”. I’m not sure what I was saying suggested an autonomous and self-regulating process… Being empirically inclined, I do think consideration of the process itself (“the how” of real world processes) is absolutely intrinsic to what “the what” should be. I’d agree that the risk of that kind of approach is entrenchment of existing privileges (current patterns of ownership) and prejudices (on the prison system, the documentary 13 makes a lucid case for the War on Drugs being the race war by other means, in an unbroken line of continuity back to slavery). I would just say I don’t think we have found a better way to “run” it. “Natural law” rests on a shaky analogy (like economics trying to pretend it is a natural science)… there can be natural law because there are Laws of Nature. But in fact it is debatable that there are Laws of Nature. A law of nature is, when you think about it, a metaphor. Who made the law? Who enforces it? Who is punished for not obeying it, and how is punishment determined? It’s quite possible that in the next decade or two “laws of nature” will be supplanted as a paradigm in scientific research by something more like “norm” or “habit” (An example: now that we have been observing the speed of light for close to a century, it has become clear that it is not an exact constant. It varies, so far within miniscule ranges, but varies none the less. Plus: the scope of Einsteinian relativity has been more closely defined to be not applicable under all circumstances. So maybe sometimes some things can move faster than the speed of light.) This is just an example. But if there are no “laws of nature”, where does natural law borrow its clothes from?

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Aaron Lercher 03.08.18 at 4:18 pm

J-D points to prior practices of making rights claims. This makes a lot of sense.

Another framing, compatible with J-D’s, is to point out that ethicists distinguish between “normative ethics,” in which one argues that this or that is morally correct, from “metaethics,” in which one addresses questions about the status of moral discourse, such as whether its claims can be true or false, or what counts as adequate justification for such claims.

One can bleed over into the other, as when metaethical ideas seem to be required for normative ethics, and vice versa. So metaethical questions about a “right to have rights” might force conclusions about rights, and vice versa.

Two earlier theorists I’d praise are Judith Jarvis Thomson and H.L.A. Hart. Thomson, in her 1990 Realm of Rights, starts with a framework that would answer the puzzles J-D poses about which sentences in the UDHR specifically refer to rights and which don’t. The basic idea is that all rights claims can be analyzed in terms of Hohfeldian claim-rights. This is pretty standard, although Thomson develops it in exquisite detail.
https://plato.stanford.edu/entries/rights/

Hart distinguishes between natural rights and rules by which rights can be altered or introduced. His 1955 essay “Are there any natural rights?” is a good reference, although his 1961 book The Concept of Law is his main work. This is helpful, although one might object that neither Thomson nor Hart tells us how to answer burning questions about the rights of immigrants, disabled people, or many other cases where we need strong arguments. Martha Nussbaum’s 2006 Frontiers of Justice, among her many other writings, takes on these questions.

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Mike Huben 03.09.18 at 2:43 am

john c. halasz @20

On the other hand, Mike Huben @ 6 and Johnny @ 19 are just propounding the hoary old doctrine of “positive law”. This is different, but I think related to the liberalistic illusion that law is an autonomously self-regulating system, separate from power relation, and thus bestows its normative contents disinterestedly on the broader society.

It’s plain to see you badly misunderstand or misrepresent me. My link clearly explains legal rights as power relations. That’s what enforcement is.

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john c. halasz 03.10.18 at 12:27 am

@25:

Nope. You said you were reductionist and you were right! I checked your link and you explicitly cited Bentham, pretty much the founder of positive law doctrine or legal positivism. The more modern exponents were Hans Kelsen and H.L.A. Hart, mentioned above. What is right about that doctrine is its rejection of any grounding of law in some imaginary account of prior nature and its differentiating law from morality. But in treating law as an entirely autonomous system subject to its own logic, such legal positivism, (the law is the law and nothing more can be said about it beyond its factitious existence), evades the entire question of the sources of law and of the norms it might encode in broader political and generative processes concerning power (and its concentration and redistribution), authority and legitimacy. That might be all encapsulated in the constitutional paradox of the constituting/constituted power. (Since Kelsen was a Neo-Kantian, I suppose he must have located the source of law in the transcendental subject, for what that’s worth). Law is a means of resolving conflicts, (though scarcely the only such means or way), and it is a truism that laws must be enforced (or enforceable, since badly drafted laws are self-defeating, invite their own disrespect), which is to say, that they ultimately require coercive force (not power) to back them. And, of course, those who adjudicate legal disputes are likely recruited from those near the top of hierarchies of power and invested with their authority by such power. But any system of law must have its source in some sort of sovereign power, as what legislates and promulgates the laws, and partly exercises its power thereby, (often enough resulting in the attempted juridification/bureaucratic reification of all social relations, resulting in “democratic deficits”). That’s one of the problems with “international law”: there can be no global sovereign. But the simple appeal to positive law just evades or ignores all these question about the “nature” of sovereign power and the strange alchemy of the state as the organized monopoly of legitimate violence, whether one offers a weak “positive” account of legitimation such as Max Weber’s, as the passive consent of the governed, or insists like Arendt on a strong account, as the active assent of the governed.

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