The Source of Rights

Sooner or later I'm going to start giving off the impression that I have nothing nice to say about anything Noah writes at all. But this, I assure you, is just an artefact of the fact that Noah posts so infrequently. If he were keeping up with my 4-a-day average, critical responses to his posts would sink into insignificance as a percentage of the whole I'm sure. ;-)

Noah's most recent is a response to something he read on the Mises blog. I haven't been keeping up with Mises (or Cato) recently, so this was a nice inspiration to start checking it again. In any case, the post Noah is responding to is one by Stephen Kinsella on the source of rights.

Let me start out by saying that I wasn't terribly impressed with Kinsella's post either - and by reason of lots of the same faults Noah found with it. Kinsella presents a forcible, but not very informed, argument for rights as axioms. His homepage says he's a lawyer, so I think we can probably chalk this up to professional bias. In a constitutional legal system, the founding principles do indeed form a kind of analogue to mathematical axioms. It's not a perfect analogy (the US Constitution can be amended, for example, or misinterpreted by the Supreme Court, as it frequently is) - but the idea that there are certain inviolable rules upon which other laws must be founded (or which they must at a minimum not contradict) is in some ways the lawyer's version of an "axiom."

If we're speaking as philosophers, though, I think I would have to agree with Noah that rights can be and in fact are derived. However, it is important to be clear about what we mean by this. "Derived" is here to be taken in some mathematical sense and not in an empirical sense. We do not "derive" rights from the practice of forming societies and testing which ones work better. They are logicially derived from the philosophical idea of the nature of man. This is a crucially important distinction. Anything less than what I guess we might (jokingly?) call a synthetic a priori basis for rights (Kant shifts over onto his left side in the grave) would undermine the absolute character of their nature. It would open the door to justifications of specific violations and to oppotunistic negotiations about their particulars. They would quickly cease to be "rights" in any meaningful sense.

Kinsella's technically ill-chosen 2+2=4 example turns out to be apt. 2+2=4 seems like a self-evident concept in day-to-day experience - mostly because it is one of the first equations we learn, and one that we frequently repeat in conversation, and also one of which we see nearly daily examples (as humans are able to do what an evil book calls subitizing - that is, to immediately grasp the number of objects before us without counting or guesstimating - for numbers of objects less than 6). However, it is, in fact, derived(hat tip Noah for the link, see also here for a direct proof involving 2 and 4.). I believe that rights are similar in our daily experiences. Human beings are more concerned with their own rights than I think most of us are aware. We constantly think about them, invoke them in conversation, etc. We've heard about them (and been in situations where arguments about them come into play - with very real consequences for losing the debate!) so often that we take them for granted - at least here in the United States. Just as few people bother to inquire how we are sure that 2+2=4, few people bother with reasoning out the formal proof that they have, say, a right to self defense. But I believe that there is such a proof.

This is what Kinsella was trying to express in his post. He did a rather bad job of it, but I believe what I wrote above is the essence of his argument.

Now to what Noah thinks. Noah wants to make clear that rights are normative propositions and not axioms:

Putting aside the poor choice of an example of a mathematical axiom, the equation of normative propositions with axioms is, well, just nonsense.

Indeed. No bones to pick here.

Any statement of the form 'one should do X' - that is, any normative proposition - is implicitly incomplete. A more complete version can be expressed as 'one should do X, because X will further Y.' Even more thoroughly, one could employ the ponderous 'one should do X, because X will further the goal Y, which is a worthy and attainable goal, as evidenced by Z and W, and, furthermore, we have good reason to believe that doing X will actually move us toward Y - see V, U, and T.'

Here's where I think Noah runs into a bit of trouble. He's right that normative propositions are implicitly incomplete, and he's right that moral imperatives are normative propositions, but he's confusing moral imperatives with rights. It's also interesting to add, as an admittedly nitpicky point, that he's switched from negative to positive imperatives, and that this is the source of some of the confusion. In the concept of rights to which I subscribe, rights are almost universally (and actually, probably universally - I just thought I'd hedge a bit in case someone in my vast army of clever readers cares to point out something I missed :-) ) negative. In plain English, this means that translated into norms they are all "thou shalt nots." Stealing is forbidden because it undermines the value of property; murder is forbidden because it undermines the value of individual life, etc. When I say that I have a right to my property, the implicit normative equivalent for you is that I'm telling you that you are not allowed to take it or in any way assert ownership (unless I perform some kind of illocutionary speech act which makes it yours). It's not that you refrain from stealing my property because you have some interest in furthering the goal of my owning it! Rather, you have implicitly agreed, by remaining in a society with me, to abide by all the "thou shalt nots" that go with the rights we respect. There is no sense in which another individual can have as a value my personal ownership of my personal property. But he can value my respect for his own ownership of (his own) property. This is the real basis for rights, as we will see below: a mutual agreement to respect (certain of) each other's values.

Since I'm going to be spending most of the semester trashing Chomksy's puerile political writings, let me give him some credit where it's due. In the chapter we covered in class this week, Chomsky manages to say something I completely agree with:

That is, if you suggest things should be reformed in this or that fashion and there's a moral basis for it, you are in effect saying 'Human beings are so constituted that its change is to their benefit.'

I think that's as good an explanation as any of where political norms come from. At least, it gets the two main points right: (1) that rights must be based on a philosophical concept of the nature of man and (2) that normative statements in politics must take as their basis something that applies to all memebers of the society equally.

Probably because of reading too much Laudan, Noah formulates his definition in such a way that all normative propositions in politics can possibly have different goals to which they are attached. Chomsky's closer to the point: there is really only one "goal," and that's to make society function in accordance with common human concerns.

Noah touches on the idea himself in this excellent passage:

Here's a quick, and probably deeply flawed, stab at justifying this one: individual autonomy is a worthy goal because our existence depends on (some measure of) it. I can't take care of my own needs, or pursue my desires, if I must take care of the needs, or pursue the desires, of (too many) others. I can't take care of my own needs, and pursue my desires, if someone else insists he is responsible for them.

(As a personal aside, it's interesting to me that Noah always hedges - "probably deeply flawed" - at precisely those points where I think he's exactly right. He did this about an analogy in an email discussion a couple of months ago too. He came up with a perfectly apt analogy involving American perceptions of China and North Korea as an explanation for "asymmetric distance" in psychology. It was a great analogy, but he apologized for it as soon as he had advanced it.)

I think this is precisely the way in which rights should be justified. Noah can (and no doubt will) correct anything I get wrong here - but just to expound on it a bit, notice that this is a philosophical justification. We've abstracted away from any instance of an individual or the details of his biography. What we do is simply recognize that humans are constituted in such a way that autonomy is a goal they all share. It is related to their survival. This wouldn't necessarily be true of an ant colony, to use an admittedly tired example. But insofar as it is true of all humans, we can expect all individuals to share this concern. Some individuals, owing to their particular biographies, will be less concerned with this than others. Saying that autonomy is a universal value makes no claims on the extent to which given instances of human individuals value it. Individuals who value it less are free to negotiate it against other values that they prefer, I suppose. But even the terms in which I framed that last sentence illustrate the point: it is practically inconceivable that there are instances of normal humans who do not value autonomy to some significant degree. Human action simply is such that it is meaningless without it.

Now - to get back to Noah's point - autonomy isn't an absolute right - but it's an end in which the norms are framed. Thou shalt not violate another individual's autonomy...unless other philosophically grounded concerns (like your right to defend your property, for example) come into play. The source for all of this, I believe, is something like a hypothetical negotiation that all members of a society could have entered into upon its foundation. Not the kind of constitutional convention that grounded the United States, mind you - this is an idealized model. In principle, I only really value my own autonomy, and I would like others to value it as well, but I recognize (if I am rational) that they probably don't. On the assumption that the other individual is a creature like me, I know, however, that he values his own autonomy. We can therefore agree to respect each other's autonomy within an objective framework (in which individual autonomy is universally inviolable, except when weighed against the need to preserve other "universal inviolables").

And this, I believe, is the proper source of "rights." They arise out of concerns that we have independent, rational, philosophical reasons to believe all humans share.

And it is here that I also differ with Noah and Kinsella. Noah accepts Kinsella's speculation that empathy is the basis for rights:

In the end, Mr. Kinsella argues that, if we must choose a source, it's empathy. This makes sense - rights are inherently tenuous and inherently social. My rights hold insofar as others respect them; they can be violated by the unscrupulous and sociopathic with disurbing ease. The empathetic among us are the most likely to respect the rights of one another, as Mr. Kinsella says, almost by definition.

I want to allow for the possibility that I've misunderstood Noah and Kinsella. I agree with them insofar as empathy probably is a source (possibly the main source) of motivation for moral behavior. But it can never actually be a justification for it. This is because empathy is an emotion and as such has to do with the instantiation of a human more than the actual blueprint (I mean this in the philosophical sense and not in the biological sense, obviously). This is an important distinction because I want to leave open the possibility of forming societies with non-humans - which I believe is possible with creatures that share the same philosophical concerns that humans have. It's much the same way that it is often argued that intelligence and language do not necessarily need a human brain, they just need instantiation in something (silicon diodes will do) that can perform the same functions. Empathy may or may not be a trait of such creatures, and it is anyway not a universal trait in humans, nor is it universally strong in those (the overwhelming majority, granted) who do possess it. Empathy motivates people to behave morally in the same way that instinctive desires motivate people to have sex or to eat. But of course, a "defective" person with no hunger drive could eat for purely rational reasons. Indeed, some people (I'm thinking of certain kinds of vegetarians here) do seek to control their natural hunger drive out of ethical concerns. So it is with empathy. It's curiously maybe a sufficient condition for moral behavior, but it is not a necessary one, just as having a hunger drive is not a necessary condition for getting nutrition, though it is certainly a strong motivation to do so.

Empathy is more properly in the sphere of social interaction. I consider politeness and etiquette to be a kind of "shadow morality." It has the form but not the substance of a moral system. One might even crudely term it a "reverse-engineering" of morality by people with no capacity for understanding social morality. Any system of etiquette is a system of norms, like ethics/morality, only these norms are based on emotional satisfaction rather than any philosophical basis. In an ethical system we conspire to maximize people's abilities to fulfill their needs, in a system of customs (Sitten) we conspire to maximize people's self-esteem. A system of customs may be very effective in regulating a society, and it may have the side-effect that people also behave morally (this seems to be the case in Japan), but it is not the same thing as an ethical, rights-based system. Empathy more properly belongs to a system of customs than to a system of rights.