The Nature of “Rights”
Right / Rights – “(adj) – (1) in accordance with what is good, proper, or just; (2) in conformity with fact, reason, or some standard of principle; (3) most convenient, desirable, or suitable. (noun) – (4) a just claim or title, whether legal, prescriptive, or moral; that which is due to anyone by just claim, legal guarantees, or moral principles; (5) that which is in accord with fact, reason, etc.; the state or quality of an instance of being correct. (synonyms) – equitable, fair honest, lawful, accurate, true, proper, appropriate, suitable. (antonyms) – wrong.”
This definition is filled with numerous emotionally loaded words. Notice especially the synonyms and antonyms listed. The definition clearly transmits the emotional message that “Rights are Good“. And by association, to deny anyone their claimed rights must therefore be bad. Politicians, demagogues, and others who use oratory to sway the minds of people, are well aware of the emotional charge carried by this word. People are sensitized to the emotional message in this word, especially in the western world, where the battle for “Rights” has been long, hard, and never ending. The immediate inclination of most people, upon hearing this word, is to jump to the defence of anyone whose “Rights” might be infringed. After all, the absence of a “Right” must be a “Wrong”, and no one likes a “Wrong”, because “Wrongs are Bad”, aren’t they?.
But what are “Rights” anyway? Everyone uses the word, and frequently too. The newspapers and news broadcasts are full of stories of people who are claiming that someone’s “Rights” have been, or about to be infringed. But do you really understand what is being referring to when the word is used? Can you distinguish oratorical abuse of the concept from a valid claim for a right? I suspect that most people who use the word in political or moral contexts are not even aware of the dictionary definition quoted above. And I am certain that the various print and broadcast news reporters either haven’t the vaguest conception of what is meant by “Rights”, or egregiously and intentionally abuse the concept. From my own quite unscientific survey, most people do abuse the word, and sometimes excessively so. The word always seems to get invested with meanings more emotional than semantic.
To properly employ the word within the philosophy of Evolutionary Pragmatism, I am in this chapter going to develop a very concrete and specific understanding of the meaning of the concept of “Rights”. When this chapter is done, I think you will find that this very specific definition fulfils all of the senses of the word provided in the dictionary definition quoted above. But I also believe that you will find that the concept of “Rights” as defined within Evolutionary Pragmatism will have a much firmer foundation, both logically and morally. It is my hope that you will find use for this more “well defined” concept of “Rights” in understanding and frequently seeing through the inflated and all too frequently bogus claims of the multitudes who bemoan the infringement of some individual or group’s “Rights”.
From the dictionary definition quoted above, it is evident that there are two separate contexts within which the word has some meaning. The definition of “Rights” in the Legal sense initially appears to be a relatively simple and straight forward concept by comparison to the vague fuzziness of “Rights” in the moral sense. So I am going to expand upon the concepts of “Legal Rights” first. This approach will allow me to clearly separate legal rights from the more commonly used and abused context of “Moral Rights”. And as you will see, properly defining the concept of “Moral” Rights will depend in a very intimate way on a comprehensive definition of the corresponding “Legal” right.
Legal Relationships
In 1919, Wesley Hohfeld published a treatise examining the underlying principles of legal reasoning (Hohfeld, Wesley Newcomb, 1919, Fundamental Legal Conceptions as Applied to Judicial Reasoning. Ed. Walter Wheeler Cook. New Haven and London, Yale University Press). Among other excellent ideas, this work presents a solid foundation for the discussion of rights, both legal and moral. The material that follows is based upon the reasoning laid out by Hohfeld, although because my interest here is limited to a discussion of Moral Rights, I will be extracting only certain relevant pieces of his more broadly ranging analysis of legal arguments.
Hohfeld realised that the legal system is but a complex system of formally established rules that apply to a set of agents (either individuals, aggregates, or conceptual entities like corporations). And among the various sorts of rules that any legal system contains, is a subset of rules that has the function of regulating or directing the behaviour of the agents to whom they apply. One way in which they accomplish this function is to stipulate what those agents are required by law to do, or alternatively, what they are forbidden by law to do. Although there are important differences in the implementation and purpose of rules which prescribe certain behaviour, and those which forbid certain behaviour, what prescriptions and prohibitions have in common is that they impose restrictions or constraints on those agents to whom they apply. In order to simplify the presentation that follows, I am limiting this discussion to those rules which affect the relationship between any two agents. The rationale for this limitation I hope will become evident once we shift the analysis to Moral Rights. So please bear with me if what follows here appears to be a small subset of the realm of jurisprudence.
In the absence of all rules, any behaviour contemplated by some agent would be implicitly permitted. So it is logical to begin an analysis of the impact of rule systems on relationships with a discussion of restrictions. Hohfeld called these restrictions “duties”. A duty can be either a positive restriction (a prescriptive rule – that something must be done), or it can be a negative restriction (a prohibitive rule – that something must not be done). In all known systems of rules governing human affairs, the rules generally define prohibitions, with prescriptions being the exception. This is probably because there is an unstated implicit permission assumed by all agents subject to those systems of rules, that holds that anything not specifically prohibited is permissible. And this implicit assumption works because the various rule systems that have developed to govern human affairs have their genesis in an environment where there were relatively few people. In a sparsely populated tribal environment, individuals can do largely as they please. It is only when an individual’s choice of behaviours begins to disrupt the collective welfare of the tribe as a whole, that restrictive rules need to be created. And these rules will naturally take the form of prohibitions against the disruptive behaviour that warranted the rule in the first place. It is possible to imagine a system of rules, and an environment in which such a system operated, where the underlying implicit rule would be prohibitive. In other words – all is prohibited unless specifically permitted. But this is not the kind of rule system encountered in the realms of human affairs.
From analyzing the nature of the restrictions and constraints that prescriptive or prohibitive rules place on the agents to whom they apply, Hohfeld identified three distinctly different types of relationships between any two agents. Further, these three different kinds of relationships are related one to the other in a particular way. Where “Anne” and “Bob” are any two agents to whom the rules of the system apply, and “Q” is some particular behaviour that is either prescribed or prohibited by the rules of that legal system, Hohfeld decomposes the impacts of the prescriptive and prohibitive rules into “Liberties“, “Duties“, and “Claims“. (Why this table is labelled “First Order” will become apparent shortly.)
First Order Hohfeldian Legal Relations
| Anne has a liberty with respect to Bob to Q. | Bob has no claim against Anne that Anne not Q. |
| Anne has a duty to Bob not to Q. | Bob has a claim against Anne that Anne not Q. |
A duty is some behaviour “Q” where the rules of the system prescribe that under some specified set of conditions, behaviour “Q” is prohibited. In other words, under this specified set of conditions, it is illegal for Anne to undertake “Q”. For example, under the conditions of normal social relationships, Anne has a duty to not kill Bob (a prohibition). And under the conditions of normal commerce, when Anne buys something, Anne has a duty not to avoid paying the sales tax (a prescription reworded as a prohibition). In this particular example, the object of the duty (“Bob”) would be the rest of the population who benefit from the collection of the sales tax, rather than just Bob. Note that the form of the duty in the table includes the negation. This is done to emphasise that in the normal situation, the rules that will define a duty will be prohibitive. And as you can see by the example cited, any prescriptive rule can be re-worded as a prohibition.
A claim is a duty as perceived from the point of view of the object of the behaviour “Q”. The subject and the object of the corresponding duty are reversed, but the content is the same. Thus if Anne has a duty to Bob, then Bob has a claim on Anne. If Anne has a duty to not kill Bob, then Bob has a claim on Anne that she not kill him. If Anne has signed a purchase agreement with Bob, then Bob has a claim on Anne that she makes the agreed payment, and Anne has a duty to make the agreed payment. Note that one cannot have claims to do something, only that others do something.
A liberty is the opposite of a duty. It has the same subject and object, but has the negated content of the corresponding duty. Anne has a liberty to undertake some behaviour “Q” when the rules of the legal system do not prescribe “Q” or do not prohibit “Q” under these particular conditions. Anne has the liberty to choose to undertake “Q” or not undertake “Q”. Someone has a liberty to do something or not do something only if there is no duty to do it or to not do it. Or alternatively, only if someone else does not have a claim that they do it or not do it.
The liberty that I might have to do some particular thing “Q” is only a half-liberty. The other half is the liberty that I might have to not do that particular thing. If I have the liberty to both do and not do that particular thing, then I have a full-liberty with respect to that particular thing. And I have an absolute liberty if I have that (full) liberty with respect to everyone. For example, within the normal conditions of social relationships in most Western democracies, I have the half-liberty to say anything to you I wish, and the half-liberty not to say anything at all. In other words, I have the full-liberty to say or not say anything I wish. And in this example, because of the rules of the particular Nation-State in which I reside, I can assert that under the normal conditions of social relationships in my country I have the absolute (full-)liberty to say or not say anything I wish to anyone. This is the legal essence of the principle of “Freedom of Speech” as encoded in the Bill of Rights.
The lack of a claim on your part is more than just the expression of my liberty from your perspective. The rules that establish my liberty do not generally address my liberty directly. After all, establishing a law that says I have the liberty to do something is neither prescriptive nor prohibitive. The rules establishing liberties generally take the form of denying claims. As an example, in the normal course of social relations in many Western democracies I have the liberty to practice what religion I choose. But the rules that establish that liberty are framed so as to deny that you have any claim to infringe that liberty, and a duty not to infringe that liberty. Only rarely will the rules of the system explicitly specify the liberty. The only place where one occasionally sees such explicit definitions of liberties is in constitutions or bills of rights. And even here, the rule does not define the liberty clearly, only lays out a general principle. It is left to the details of specific duty rules to establish the clear definition. A bill of rights might establish that all citizens have the “Freedom of Expression”. But the definition of what that means, and how it impacts the members of that society is left to the more detailed rules of prohibition and prescription. The relevant rules are not the ones that specifically establish the liberty in the first place. It is not the granting of my liberty to do something that imposes the constraints on your behaviour, it is the prescriptions, prohibitions, and denial of your claims that I do otherwise that imposes the constraints.
Of the three First-Order Hohfeldian relationships (liberty, duty, and claim), a duty is generally considered a burden while liberties and claims are generally considered advantages. And when “Rights” are discussed or claimed, they too are generally considered advantages. So we can now begin to understand “Legal Rights” in terms of Hohfeldian legal advantages. But they are more than simple ‘bare’ advantages of liberties and claims. They are “protected” advantages. The rules of the legal system that establishes “Legal Rights” do more than simply define a liberty or claim. Legal Rights are established by complex packages of rules that also define duties on everyone else not to interfere with the Rights involved. For example, the rules establishing the right to “Freedom of Speech” define more than just the absolute liberty I might have to express myself as I might wish to. They also define packages of duties by prohibiting others from all sorts of possible interference in that liberty, as well as packages of claims that define how and under what conditions I can exercise that liberty. And the legal right to vote in public elections involves all sorts of rules establishing additional claims I have on others to assist me in voting. This introduces a second level of Hohfeldian relations. Hohfeld decomposes the impacts of changing the prescriptive and prohibitive rules that define “Liberties”, “Duties”, and “Claims” into the Second Order Relations of “Powers”, “Liabilities” and “Immunities”. Where “Anne” and “Bob” are the same two agents to whom the rules of the system apply, and “R” is some set of rules defining a First Order Relation between “Anne” and “Bob”.
Second Order Hohfeldian Legal Relations
| Anne has a power over Bob to affect R. | Bob has a liability to Anne‘s affecting R. |
| Anne has a disability with respect to Bob to affect R. | Bob has an immunity against Anne‘s affecting R. |
Anne has the power to affect some First Order Relation with Bob if the rules of the system permit her to change one or more of the rules that define the liberties, claims and/or duties that constitute that First Order Relation. Bob’s view of the power that Anne has over their relationship is called a liability. It is difficult to give meaningful examples of these Second Order Relations in terms of individuals. But the United States Congress has the power to change the rules that govern the Income Tax reporting duties of US citizens. And US citizens have a liability insofar as the local Zoning Commission can change the zoning laws affecting any duties that are associated with real estate ownership.
The opposite of a power, is an immunity. Bob has an immunity against Anne’s changing their First Order Relation if the rules of the system prohibit Anne from making such changes. From Anne’s perspective, she has a disability with respect to her First Order Relationship with Bob. For example, in many Western democracies Bob would have a liberty to practice whatever religion he chooses, and he also would have an immunity against Anne’s affecting that liberty. And if the rules are such that Bob has such an immunity with respect to everyone else, then Bob has an absolute immunity. Immunities are the Second Order equivalent of claims. Like a claim, an immunity held by one person imposes restrictions on the behaviour of others.
Legal Rights
At the First Order level, liberties and claims can be regarded as advantages, with duties regarded as disadvantages. A duty imposes constraints on the holder’s freedom of choice. It implies a legal rule prescribing or prohibiting some behaviour. Liberties are the explicit freedoms, and claims are duties that may be imposed on others. At the Second Order level, powers and immunities are advantageous, while liabilities and disabilities are disadvantageous.
A “Legal Right” can therefore be defined as a package of Hohfeldian legal advantages. From the preceding discussion we can identify two types of “Legal Rights”. There are Legal Rights whose package of Hohfeldian advantages has as a core a particular liberty, and Legal Rights whose package of Hohfeldian advantages has as a core a particular claim. Rules of the legal system define the terms of the Right, and the circumstances under which it applies. And other rules in the associated package establish the legal duties, powers, immunities, and disabilities that form the protective periphery of a Right, preventing others from infringing on the basic core liberty or claim. Consider as an example, the “Right to Council” held by the accused. This is a “Claim Right”. The rules involved have established that the accused has a claim to be represented by council. And it imposes a duty on the Police organisations to provide that council. The United States Supreme Court has further established the peripheral rules that the accused has an immunity against anyone changing the validity of that claim.
The holder of a Legal Right is the beneficiary of duties, liabilities, and disabilities imposed on others. The interests of the holder of the Right is the justification for the restrictions imposed on others. A system of rules establishes “Legal Rights” to the extent that the Legislative Component of a government wishes to protect the interests of its citizenry under specified circumstances.
To the extent that the legal rules, or decisions based upon them (as in the English system of Common Law), are written down, a claim for a Legal Right can be justified on documentary evidence that everyone can examine. There may be differences of opinion on the interpretation of just what is meant by what is written, and there may even be conflicts between different parts of what is written. But no one can dispute the evidence that there is some form of written basis upon which to justify the claim to a “Right”. The justification of claims to Legal Rights is, therefore, an empirical process.
Suppose some individual of some society makes a claim that a particular liberty or claim is a “Right”. Lets say that Anne says that she has a “Claim Right” to an apple pie every Sunday. And suppose this claim is disputed by another member of this society, say Bob. Then Anne and Bob (or more probably their lawyers) both examine the body of written documentation or oral tradition for an interpretation of the rules that supports their own opinions. If either side to the disagreement cannot find such evidence, then their opinion is labelled as “wrong” in accordance with the definition quoted at the start of this essay. On the other hand, if both sides should find evidence, or interpretations, that support their divergent opinions, then an appeal is made to a neutral third party, such as a Judge of a local Court, who is given the responsibility of judging which of them has the stronger evidence, or more consistent interpretation, from the record. One of the primary functions of the Judicial Component of any system of governance is to mediate just such disputes. And the more formal the system of governance, the more formal and structured is the system of Judicial mediation. As an example, the Supreme Courts of Canada and the United States have been given the responsibility for making such judgements when the dispute involves interpretations of the writing in, and past decisions based on, the Canadian and American Constitutions.
In some societies of course, both ancient and modern, the laws and any decisions based on them, are not written down. In these cases, the appeal for justifying evidence or interpretations, must be made to members of the society with long memories. This is, in fact, the basis of the concept of the “Tribal Elder”. The “Elders” of any society are usually regarded as those in whom the responsibility rests for remembering the tradition of decisions made based on the laws of the society. It is to the Elders that appeals are made to justify claims for legal “Rights” in such societies. The Elders remember what has gone before, and render their judgements based on that remembering. All societies have Elders, but their legal influence varies inversely with the degree to which the laws and legal decisions of the society are written down. And the term “Elder” does not always indicate relative age. In many such societies, it is indeed the aged who have the longest memories for such things, thus the origin of the term “Elder”. But there are other societies where the memory of the laws and legal interpretations is passed along in other ways than the written form. One ancient method is the “apprentice” learning from the “master” about the culture, social etiquette, and traditions of a society, by way of stories, sagas, myths, and legends. In such a situation, there is no necessary connection between the term “Elder” and the sage’s age.
Do not be fooled into thinking, from the foregoing that Elders exist only in primitive tribes without writing. All societies, however modern or ancient, have Elders. Do you belong to a social club? Do you know someone who does? Social clubs have Elders. And, as described above, their legal power and influence is in inverse proportion to the extent of the social club’s written legal structure. Most social clubs have a rather skimpy rule-book, and no documentation for the decisions based on interpretations of that rule book. The memory of the finer interpretations, and the resolutions of conflicts in the written rules, rests with the “Elders” of the social club. The “Elder” might be the member who has been around the longest, or the member who does not hesitate to exercise influence, or the member who makes it a business to seek out and collect the anecdotal memories of other members of the club. The “Social Gossip” is frequently among the Elders of most social clubs.
“Legal Rights” are the province of the legislators, lawyers, judges, and elders of the social organisation involved. Every social organisation, no matter how large or small, incorporates the legal structures that support “Legal Rights”. When there is a disagreement over what is, or who has, a “Legal Right”, there is always a well recognised methodology and structure, within every social organisation, for resolving the conflict. It is so well recognised, and works (generally) so well, because both the methodology and the structure are so well exercised by the members of the society. For whatever reason, it appears to be impossible for two or more people to live together in harmony, without a system of laws (written or otherwise), and a process for resolving conflicting interpretations of those laws.
Moral Rights
With a sound understanding of what constitutes a Legal Right, I can now provide the Evolutionary Pragmatist concept of a Moral Right. A particular Right, either a Claim Right or a Liberty Right complete with accompanying periphery of duties, powers, and disabilities, is a Moral Right if and only if the protected interests that is the equivalent Claim or Liberty can be justified within some system of morality. If the Claim or Liberty can be shown to be logically deducible from and consistent with the fundamental premises of that system of morality, then the Right can be regarded as being a Moral Right from the perspective of that system of morality. Otherwise, it cannot.
With this definition in mind, it now becomes possible to group the excessive public claims for “Rights” into three categories. There is the smaller category of those claims for “Legal Rights”. These are claims for protected interests based on an empirical appeal to the established rules of the Legal System. I think you will agree that this category holds the smaller proportion of public claims for Rights. Most such claimants will readily admit that there is no established law to which they are appealing. If there was, they would not be making so much public noise. They would be talking privately to lawyers, and prosecutors, in order to get their rights enforced. They are instead very noisily claiming that there should be appropriate law, even if there is none. They are claiming “Moral Rights”. They are making a claim that their interests should be protected based on an appeal to some system of Morality.
These claims we can broadly classify based on the system of Morality that is being appealed to. The smaller proportion, again, can be grouped as those claims based on the principles of a specific system of Morality. A claim for a Moral Right based on the underlying principles of Christianity, Evolutionary Pragmatism, or Satanism as simple examples, would fall into this category. As would a claim based on the interpretation one of the religious standards of morality. But most people do not possess a clearly defined system of Morality, or have a sound enough understanding of the principles of the system of Morality that they profess to adhere to. What moral principles most people have developed, they have acquired by osmosis from their environment. Even in those situations where the system of morality involved is one established by divine command (i.e. a religious morality), most professed adherents have not developed anything more than an osmoticly collected understanding of the principles involved. So most claims for Moral Rights are not based on a foundation of moral principle.
Instead, most claims for Moral Rights fall into the larger category of claims based on the appeal to “Social Standards”. If you recall from the essay on Different Kinds of Ethics, social standards forms the foundation for those systems of ethics called Cultural Relativism. And the two most serious problems of such systems is that there can be no objective standard that can be used to judge one set of moral principles as better or worse than another set, and it is impossible to accurately determine just what the relevant social standard is because no two social groups within whatever society from which the standards are supposed to be derived will have exactly the same opinions on the matter.
As a consequence, it becomes merely a matter of opinion as to what the appealed to Social Standards actually are, and whether or not a claim for a particular Moral Right can be justified. I remind you that it is a corollary to the First Axiom of Evolutionary Pragmatism that Philosophy is more than merely one man’s opinion. So from the perspective of Evolutionary Pragmatism, all of the claims for Moral Rights that fall into this last and largest category, are spurious. They are totally unjustified, whether or not they could be, or appear to be reasonable, or appear to be desirable. Claims for Moral Rights based only on what some orator claims is according to some undefined Social Standard, are merely hot air intended to confuse and misinform.
An Example
Let’s re-visit this line of reasoning again, but with a specific example. Suppose I were to claim that “I have a Moral Right to Freedom of Speech”. (It matters not which particular Moral Right is used as the basis of this discussion. I am using Freedom of Speech only because it is a familiar and frequent claim.) I am making a claim that, based on the moral standards and principles of some specific system of ethics, it is proper and correct that I should have this freedom, prerogative, and privilege. I do not make this claim based on an interpretation of the laws of our society, because that would make it a claim for a legal right. I make the claim that our common philosophical system says that it is proper and correct for me to have this privilege. Now let’s assume that we share a common system of ethical standards, and suppose that you disagree with my claim, and believe that I do not have a “right” to Freedom of Speech in some circumstance. Lets say you object to my dissemination of pro-Abortion materials. How are we to resolve this difference of opinion? If I am serious about my claim, I am going to attempt to convince you that our common philosophical system can indeed be interpreted to grant me my right to Freedom of Speech. You, on the other hand, are going to dispute my interpretations, and attempt to find alternate interpretations that negate my claim to this right. When I make my statement “I have a right to Freedom of Speech”, you are going to say “On what philosophical grounds or ethical basis do you base that claim?”. You are asking “Why?” And when you make your counter statement that “You do not have a right to Freedom of Speech”, I am going to say “On what philosophical grounds or ethical basis do you deny my claim?”. I am also asking “Why?”
Through each iteration of this discussion between us, we will both be making statements of philosophical reasoning in an attempt to justify our own positions. And we will both be repeating the question “Why?” at each step. By successive iterations of this process, we will both be forced, in the end, to an appeal to the basic axioms of our mutually held philosophy. On the assumption that our common philosophy is indeed common to the two of us, the set of axioms upon which our philosophy is based, will also be common. We now find ourselves in a situation where I am demanding my “Right” based on an interpretation of a basic axiom. And you are denying me that “Right” also based on an interpretation of a basic axiom.
We are now at a position where one of two things can happen. First, we can assume that the axioms upon which we are founding our arguments are self-consistent, or not mutually conflicting. In such a case, our disagreement must lie in the processes through which we develop our own interpretations. This process should, in theory, be based on a system of proper logic that is common to the two of us. If either of us has made an error in the logic process, that can be one of the first means of resolving our conflict. If you can demonstrate that my interpretation of the basic axiom is incorrect because I have made a logic error, you will have demonstrated that I do not, in fact, have a moral right to freedom of speech in the specified circumstances.
If both our logic processes are sound, the difference in opinion must lie in a difference in understanding of the facts of Reality, or in a “hidden” assumption that one of us is making (or a conflict in the “hidden” assumptions that we both are making). Exploring the reasoning process, and examining the factual understanding upon which the reasoning is based, is the second means of resolving the conflict. If I can demonstrate that you are missing some factual evidence from Reality, or have a misunderstanding of the functioning of Reality, I can demonstrate that I do, in fact, have a moral right to that freedom of speech.
I have described these two approaches as if they were simple and straight forward. But of course, they generally are not. Regressing the philosophical arguments back to basic axioms, can be an extremely difficult process. Only in part because most people do not have a clear understanding what the basic axioms of their system of philosophy are. Ensuring that the system of logic employed is sound, and not full of erroneous deductions, or gaps in process, is also extremely difficult. The English language is so full of flexibilities and multiple meanings, that really understanding what is being said can be quite a challenge. And getting mutual agreement on what facts from Reality are being appealed to, can be an even more labour intensive activity. Even if everything else works smoothly, our discussion could founder on our different interpretations of evidence presented by Reality. While, in principle, such a disagreement can be resolved through the processes of experimentation, in practice this may not be feasible for any number of reasons.
All of this difficulty is what makes philosophical arguments at once so fascinating and so frustrating. But all of this difficulty is based on the assumption that the basic axioms upon which we have founded our separate interpretations, are not mutually conflicting. If we have each based our interpretation on a different axiom, and our logic processes are sound, and our understanding of Reality is mutually acceptable, then we have two mutually conflicting basic axioms within our system of philosophy. We have demonstrated that the implications inherent in one axiom, are in direct conflict to the implications inherent in another. Within such a system of philosophy, our disagreement over whether or not I have a moral right to anything, cannot be resolved. Or at least, cannot be resolved based on philosophical argument. Perhaps I get my “moral rights” merely because I carry a bigger stick than you. But that isn’t Philosophy.
The self-consistency of the basic axioms of a system of philosophy is extremely important, if that system of philosophy is to be useful in resolving conflicts. Only if disagreements of the sort described here, can be resolved by mutually acceptable processes, can the system of philosophy be said to “work”. For adherents to a particular system of philosophy, mutually acceptable processes will include exploration of logic processes, and exploration of factual understanding. But if the system of philosophy is not self-consistent, if it displays mutually-conflicting basic axioms, then these mutually acceptable processes will not work. An appeal will have to be made to methods outside of the system of philosophy. And the most common of those is, unfortunately, “Might makes Right”.
Of course, and unfortunately, if the two of us do not share a common system of philosophy, the basic axioms upon which we have been founding our positions will almost certainly be in conflict. And the “Might makes Right” rule will again be applied. This is the basis of Power Politics, and is, unhappily, why War is so prevalent in human history. One of the most important contributions that Philosophy has made to human history, is its role as an alternative to Power Politics. Establishing a common set of philosophical beliefs in a social organisation, is the foundation of organised religions (both formal and pseudo). And organised religions have been one of the more important cohesive and pacifying forces in human history. Their role in fostering violent conflict between social organisations is the subject of another essay, but their role as a socially cohesive force cannot be denied. Most early social organisations beyond the basic tribe, were based on and supported by the development of organised religions. And most of the early developments of social structures were made by and for the glorification of those organised religions.
It is the very essence of every religion, that it sets down a common set of philosophical principles. These principles are, moreover, assumed to be common to all adherents to that religion. With such a structure of common principles established, it becomes easier to resolve conflicts in the arena of Moral Rights by discussion rather than Power Politics. It is one of the great advantages of a “State Religion” that it establishes a set of basic philosophical principles which are assumed common to all citizens of the state. The resolution of social conflicts become much simpler with such a basis. In a social organisation with many religions, resolving social conflicts can consume much more time and effort. A prime example of this difference, can be seen in an examination of the differences in Soviet and American judicial systems. In the Soviet system, because all citizens are assumed to adhere to the “religion” of Marxist-Leninist communism, the justice system reflects the philosophical belief that the greatest good for the greatest number has precedence over, and is indeed an essential part of the good of the individual. In the American system, because there is no common philosophical basis other the legal writings of the Constitution, justice and jurisprudence is mired in a swamp of legalities. If you examine the workings of the American system of jurisprudence, you will see that its primary focus is a search for legal correctness, rather than any philosophical concept of “Truth” or “right”.
Moral Rights within Evolutionary Pragmatism
The definition at the start of this chapter, says that a “Right” is that which is “in accordance with what is good, proper, or just; and in conformity with fact, reason, or some standard of principle”. The Third Axiom of Evolutionary Pragmatism says that “The continued survival, and successful proliferation of our Gene-Pool over the long-term, is A Good Thing”. With this basic principle upon which to base all discussions about Moral Rights, an interesting conclusion can be immediately deduced. Within the philosophy of Evolutionary Pragmatism, Moral Rights exist only within the context of the gene-plasm of the individual, and within the context of a particular situation. Evolutionary Pragmatism is an “Objectivist – Situational” system of philosophy. This is a short-hand term for a system of ethics that maintains that the Moral value or worth of a particular action is dependent on the situation, and that the moral value can be determined by an appeal to objective frame-work. That Evolutionary Pragmatism is “Objective” results from the First Axiom about the nature of Reality. That is it “Situational” results from the consequence of the Third Axiom about the definition of Good. The “Successful proliferation of our Gene-Pool” is the goal. How to achieve that goal will depend on the circumstances in any situation. Evolutionary Pragmatism admits of no generalizations, no “higher rules” that transcend the current circumstances.
If Evolutionary Pragmatism is Situational, it is also intensely personal in orientation. How then can we use the principles of Evolutionary Pragmatism to morally justify a Right? Rights, by their very nature, will apply universally to all individuals within the scope of the moral system. How then can we resolve the conflict between a very personally oriented system of Ethical standards, and a very universal system of protected interests? The only Moral Rights that Evolutionary Pragmatism could justify would seem to be those that can be applied equally to both sides in an environment of genetic competition. I have a morally justifiable claim to a “Right” under the current circumstances, if my claim is in the best interests of “The continued survival, and successful proliferation of my Gene-Pool over the long-term”. But the best interests of my gene-pool, need not be the best interests of your gene-pool. So what may be a Moral Right for me, may not be for you. Even granting me the Moral Right that I claim may not be in the best interests of your gene-pool. How do we resolve this conflict? Are there any morally justifiable rights within the philosophy of Evolutionary Pragmatism?
The key concept is the recognition that not all situations that involved a Reasoned Choice with ethical repercussions take place in an environment with calm and controlled emotions, and with full and fully understood information on the probable consequences. In fact, a little introspection will draw you to the inescapable conclusion that most ethical choices we make, that are supposed to be “Reasoned Choices” are in fact made in the flood of one or more emotions, under pressures of time, and in circumstances where our understanding of the current situation may be incomplete or faulty, and were we have only the vaguest of notions what the likely outcomes would be of the probably incomplete list of alternatives we are examining. In fact we readily recognise our limitations in this area, by adopting ethical heuristics or rules of thumb. The rule of thumb “Do not tell a lie”, is a useful heuristic because it tells us that in absence of clear indications to the contrary, past experience (possibly of others) tells us that telling a lie is probably not a good idea. Our personal system of Ethical standards consists mainly of sets of rough and ready rules of thumb of this kind. Simple rules that we have learned work well in most situations. We can use these heuristics not just to simplify our decision making processes, but also to limit our errors.
Recognising that the human ethical decision making process is potentially very error prone, especially under circumstances of high emotion, limited time, or limited knowledge, is the first step in recognising the true usefulness of Moral Rights within the philosophy of Evolutionary Pragmatism. The second step, is the rather obvious recognition that the Evolutionary Pragmatist conception of Moral Rights is purely social in nature. Given the rather lengthy and detailed discussion above that defined Moral Rights as morally justified parallel to Legal Rights, this might seem overly repetitious. But I think it needs to be particularly stressed. Many systems of philosophy, including Christianity, permit and promote the conception of “Moral Rights” that stand on their own, independent of circumstances. One such popularly espoused concept is the “Right to Life”. This concept is erected to stand on its own, as a guiding principle to the individual as well as to the social group, and to condemn such varied activities as execution, abortion, and suicide.
So, within the philosophy of Evolutionary Pragmatism, I have a morally justifiable claim to a “Right” under the current circumstances, if my claim is in the best interests of “The continued survival, and successful proliferation of my Gene-Pool over the long-term”. But by thinking of the resulting Moral Right in terms of an ethical rule-of-thumb that can be applied in social situations under poor decision making conditions, changes the impact. With this idea in mind, the question is no longer “What Moral Rights can you admit that I have, and I claim to have, in an environment of genetic competition?” The question instead is “What constraints on our personal freedom of action can we both tolerate as likely to be in our individual best interests in the long term, in order to minimise erroneous ethical decision making under conditions of haste and ignorance?’
In other words, the focus of Evolutionary Pragmatism is not on the “protected interest” side of the analysis of Rights, where most other philosophies focus. It is instead on the “constraints” side of the analysis of Rights. Each Moral Right that is granted to some individual, imposes moral duties, immunities, and disabilities that constrains the activities of every other individual within the scope of that moral system. Evolutionary Pragmatism doesn’t ask “What protected interests can we each grant to the other that would be in our individual best interests”, but instead asks “What constraints in your behaviour would I like to pay for with equivalent constraints in mine?” This turns the entire philosophical analysis around. It changes the discussion from a seeking out of mutually beneficial situations in an environment of genetic competition, to an individually focused analysis of cost-benefit trade-offs. And it provides a powerful ethical basis for Moral Rights within the ethical principles of Evolutionary Pragmatism.
Lets take an example or two. Consider the “Right to the Freedom of Speech”. Is this morally justifiable within Evolutionary Pragmatism? The proper question to ask is – “Am I willing to give up my freedom to interfere with your ability to say what you choose, in return for imposing constraints on your freedom to interfere with my ability to say what I choose?” When asked on this basis, most people would readily say “Yes”. It is after all a small constraint on my freedom of action, in return for a potentially large constraint on your freedom of action. So, on balance, it would appear that within Evolutionary Pragmatism the ethical heuristic “don’t interfere with another’s freedom to say what they choose” is a morally justifiable rule of thumb. This one was a simple one. Lets attempt a more difficult one. Consider the “Right to Life”. Again, the proper question should be “Am I willing to do whatever is necessary to ensure your continued life, in return for constraints that demand that you do whatever is necessary to ensure the continuation of my life?” When asked in this way, most people will pause. It is a very open-ended question, and lends itself to all sorts of extremes. If they answer “Yes” at all, most people will wrap their affirmation in all sorts of limitations and caveats. This is a sure sign that a simple “Right to Life” cannot be morally justified. And while it is possible that such a right could be constructed with suitable limitations and caveats, a complex definition of such a right would defeat the purpose of an Ethical Heuristic.
Summary
In summary, a “Moral Right” consists of an ethical rule-of-thumb that grants to all members of the society a particular claim or liberty, and all of the associated rules that constitute the protection of that liberty or claim. Such Rights are morally justified as being in the “best interests” of the individual members of the society. A “Moral Right” is a properly constituted equivalent of a Legal Right that may or may not already exist in law, that can be morally justified according to some specified system of ethical principles or standards. A morally justified Right within the philosophy of Evolutionary Pragmatism is a set of constraints on the individual’s behaviour that is acceptable to the individual because of the more desirable constraints that such a Right would place on others. Such constraints are accepted as generalised rules-of-thumb because of the recognition that most situations involving decision making also involve emotional stress or imperfect information. It is judged that the application of the rule-of-thumb will tend to result in fewer errors in the long run.