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Saturday, June 30, 2012

For What Should the Word "Right" Be Used?

Several commentators, such as Joe and Jim, have been puzzled about my use of "a right," feeling I am perhaps being overly restrictive. Well, then, let me give some background to explain my thinking here.

Historically, a right was something of which, if denied, the party suffering the denial had means of redress against the denier. The King had the right to all the game in the New Forest, and should his right be denied, the denier could be prosecuted for poaching. Farmer Giles had the right of way through Farmer Maggot's fields to get to market, and should Farmer Maggot block that right of way, Farmer Giles could sue him. The Archbishop of York has the right to ten percent of the proceeds from all sales of ale in his see, and any brewer who fails to pay up may be fined.

The scope of these rights expanded in the Angloworld, in the 17th and 18th century, and things like the right to freedom-from-arrest while sitting in Parliament and the right to freedom of the press were asserted in different times and places. Although these things were often less specific than earlier rights they still follow the same template: X cannot be blocked from doing A or forced to do B by Y, and if Y does not heed this disability, X has means of redress against Y.

But soon, rights language was used to talk about things that do not fit that template at all. In doing so, I believe we have paid the price of our discourse has been muddied without any compensating gain.

Let us imagine that you are very concerned about children in the developing not getting enough education. You can express a vague, general concern about the matter: "It's a real shame these children do not get more education." That's not really an action plan or much of a commitment, but at least it is honest. But you might go further: you might lobby some particular government to make K-12 education free and mandatory, you might endow an educational foundation to build schools in Sri Lanka, or you might become a teacher in Botswana.

Alternately, if you really only have that originally mentioned vague, general concern, but want to appear as if you are a very serious person with great commitment to a cause, you can angrily declare "Every child in the world has the right to a free K-12 education!" You might even hold a sign up to that effect outside the UN for an hour one Saturday.

There is no particular entity that, by this declaration, anyone can sue should they not have a K-12 delivered to them for free. There is no particular entity that, by this declaration, is now legally obligated to provide this benefit. It is, in fact, no more efficacious in actually getting anyone an education than was the original, vague concern.

A declared "right to revolution" is, I suggest, a similarly empty right. Its real core of meaning is an assertion that "There are certain circumstances in which it is not wrong for citizens to rebel": it is a denial of the doctrine of passive obedience. But put into the language of rights, this sound principle has an element of nonsense mixed in: who, exactly, is one going to sue if one's right to revolution is denied?

What I suggest is that rights talk of this latter variety can be replaced, with a gain in clarity and no loss of moral oomph, with expressions that do not strain the original meaning of "a right" beyond the bursting point. If someone declares that "Every adult has the right to a job," they mean one of two things (or perhaps something else concrete resembling these two things that I haven't thought of), or they are merely posturing:

1) They may mean that every adult has the right to seek employment how and where they will, meaning concretely, perhaps, that a state law banning blacks from teaching can be struck down by the court, or that no town may restrict the entry of job seekers from outside the town.

2) They may mean that every adult who cannot find work elsewhere must be hired by the government, and can sue the government should it fail to offer a job.

If either 1) or 2) are meant, I think it is much better to say those things than to simply to declare "a right to a job." And I think that generally, if neither 1) nor 2) are meant, what we are witnessing is just a display of being a very serious, caring person for the sake of the display, with no real idea of how this purported concern is to be turned into action.

21 comments:

  1. I'm a little busy right now, but I would like to say that I would certainly distinguish between "revolution" and "rebellion". I don't know what Oxford would say, but I've always looked at revolution as a complete overthrow and/or change of the current political structure, whereas I see rebellion as keeping that structure in tact. Certainly, I do not favor either due to the implication of violence, however I do think that rebellion is a right in response to the governing authority's restriction and/or eradication of certain established rights. Revolution, on the other hand, represents an imposition upon others (it's a change to the entire social order), which certainly cannot in any way be construed as a right, because it most assuredly would restrict or eradicate the established rights of others.

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  3. Gene, thanks. Let me think about this.

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  4. Gene,

    IMO, there is really no dispute here; you're just talking past one another. You are referring to legal rights while the others are talking about natural rights. http://en.wikipedia.org/wiki/Natural_and_legal_rights

    If the federal government were to stop you from responding to this post, you could sue and win, because you have a legal right under the First Amendment to express your views. If the First Amendment were repealed tomorrow, you would no longer have that legal right. But you would still (at least *arguably*) have a natural right to express your views. You may, like Bentham, regard the idea of natural rights as "nonsense on stilts," but that is a separate question entirely.

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    1. Not quite, Mike: I am questioning whether using the word "rights" as in "natural rights" makes sense.

      By the way, Mike, thanks for being able to disagree with me in an adult manner: it is quite a contrast to "unknown" back in the other thread.

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  5. Also, even if the concept of natural rights is philosophically without merit, often an insistent *assertion* of such rights will lead to legal recognition, and create judicially cognizable claims based on such rights. Arguments based on principles of "natural justice" and so on still have a place in courts even today (w/r/t equitable claims), so the distinction between a legal right (what you call a "right") and a natural right (what you call just muddying the discourse) is not so black-and-white.

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    1. Ah, Mike, we theorists care not a wit for such practical matters!

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  6. I was partly responding to your contention that to declare something to be a right is "no more efficacious" than to simply express a vague concern. You may be a theorist, but questions of efficaciousness are very much practical matters.

    And I don't think your point is correct. Rather, IMO, the more vigorously people argue that X is a right, the more likely the legal system will eventually come to recognize X as an actual right. If William Lloyd Garrison had said "Gee, it's a shame that black people are enslaved" instead of "Wherever there is a human being, I see God-given rights inherent in that being," somehow I don't think that would have been quite as efficacious at inspiring the abolitionist movement. ;)

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    1. Fair enough, Mike: I did introduce "efficacious," so I can't punt on it now. What would be wrong with an abolitionist saying "Slavery is a great evil!"

      The Bible, the Koran, the Buddhist scriptures, etc are able to pack a lot of moral wallop all without any rights talk at all.

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    2. Nothing would be wrong with saying that slavery is a great evil. I find your criticism of "rights talk" to be curious, though. You're essentially wagging your finger at those who depart from the "original meaning" of the word "right." But even if your historical point is correct, language changes over time. Many, many people over the past several centuries have spoken of *natural* rights, in a sense quite distinct from "legal cause of action." People generally have little trouble understanding what they mean, and a cursory check of dictionaries suggests that their usage is a valid one. So what's the problem?

      Elsewhere, you have criticized constitutional originalists for pursuing a mythical "original meaning" of various constitutional provisions, but it seems like you're just being a "rights" originalist here.

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    3. 'You're essentially wagging your finger at those who depart from the "original meaning" of the word "right."'

      Really, Mike? After all this discussion, *that's* what you think I'm doing?!

      "But even if your historical point is correct, language changes over time."

      Mike, this sentence smells! It stinks! There is verily an odor to it! (All smell words which originally had no negative connotation.) Do you see I have a linguistics feed at the top of the blog, and link to Language Log at the right? And you really think I'm not aware that language changes?

      I'm not complaining about the modern forms of rights talk because they are *new*. I am complaining about them because they don't make sense.

      "People generally have little trouble understanding what they mean,"

      I suggest that is not true at all. People have suggested there is a right to a living wage, a right to freedom of contract, a right to marry whomever you want, a right to protect the version of marriage you like, a right to do drugs, a right to a drug free neighborhood, a right of workers to own the means of production, a right of capitalists to own the means of production, a right to a good education, a right to affordable health care, a right to wander, a right to forbid trespassing... I could go on, but you get the point: it looks to me like people have no clue what they are talking about in this regard.


      " and a cursory check of dictionaries suggests that their usage is a valid one."

      Mike... are you really suggesting we can answer philosophical questions by checking dictionaries?

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    4. I knew you were aware that language changes, which is why your post surprised me. Remember, you were the one who brought up "original meaning" initially, not me. If original meaning is not relevant to your argument, then why mention it? That comment, coupled with the amount of space devoted to the history of the term "right," made it seem like you were indeed complaining about those who "strain the original meaning of 'a right' beyond the bursting point." Your post reminded me of a (toned-down) dissent from Justice Scalia; hence my remark.

      "I suggest that is not true at all. People have suggested there is a right to a living wage, a right to freedom of contract, a right to marry whomever you want, a right to protect the version of marriage you like, a right to do drugs, a right to a drug free neighborhood, a right of workers to own the means of production, a right of capitalists to own the means of production, a right to a good education, a right to affordable health care, a right to wander, a right to forbid trespassing... I could go on, but you get the point: it looks to me like people have no clue what they are talking about in this regard."

      Gene, you're starting to sound a little bit like a logical positivist now. One could similarly argue that the term "God" is useless, because there are so many different contradictory conceptions of it. But the fact that a term has many different meanings and/or is often misused doesn't render it devoid of cognitive content. There is a philosophy and jurisprudence of natural rights that scholars, legal theorists, and philosophers have discussed and debated for centuries. You may not think much of their enterprise, but that doesn't mean it's meaningless or nonsensical, or that none of them know what they're talking about.

      "Mike... are you really suggesting we can answer philosophical questions by checking dictionaries?"

      Well, the title of your post is "For What Should the Word 'Right' Be Used?" That sounds like more of a linguistic/usage question than a metaphysical one. For such questions, I do think consulting dictionaries can be helpful.

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    5. I knew you were aware that language changes, which is why your post surprised me. Remember, you were the one who brought up "original meaning" initially, not me. If original meaning is not relevant to your argument, then why mention it? That comment, coupled with the amount of space devoted to the history of the term "right," made it seem like you were indeed complaining about those who "strain the original meaning of 'a right' beyond the bursting point." Your post reminded me of a (toned-down) dissent from Justice Scalia; hence my remark.

      "I suggest that is not true at all. People have suggested there is a right to a living wage, a right to freedom of contract, a right to marry whomever you want, a right to protect the version of marriage you like, a right to do drugs, a right to a drug free neighborhood, a right of workers to own the means of production, a right of capitalists to own the means of production, a right to a good education, a right to affordable health care, a right to wander, a right to forbid trespassing... I could go on, but you get the point: it looks to me like people have no clue what they are talking about in this regard."

      Gene, you're starting to sound a little bit like a logical positivist now. One could similarly argue that the term "God" is useless, because there are so many different contradictory conceptions of it. But the fact that a term has many different meanings and/or is often misused doesn't render it devoid of cognitive content. There is a philosophy and jurisprudence of natural rights that scholars, legal theorists, and philosophers have discussed and debated for centuries. You may not think much of their enterprise, but that doesn't mean it's meaningless or nonsensical, or that none of them know what they're talking about.

      "Mike... are you really suggesting we can answer philosophical questions by checking dictionaries?"

      Well, the title of your post is "For What Should the Word 'Right' Be Used?" That sounds like more of a linguistic/usage question than a metaphysical one. For such questions, I do think consulting dictionaries can be helpful.

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    6. P.S., I *know* your philosophy is very far removed from logical positivism.

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    7. Mike, more anon, but a brief reply:

      "if the original meaning of right is not relevant, then why mention it?"

      My notion was that there is a core coherent concept the use of which has been over-extended. History should not control usage, but it may guide it!

      By the way, I am not impervious to the idea that "natural rights" talk makes sense: I am deeply sympathetic to many of the ideas that natural rights theorists have forwarded. But I remain to be convinced: which is why I sincerely appreciate your efforts to convince me!

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    8. "There is a philosophy and jurisprudence of natural rights that scholars, legal theorists, and philosophers have discussed and debated for centuries. You may not think much of their enterprise, but that doesn't mean it's meaningless or nonsensical"

      That doesn't mean it does make sense, either! Phlogiston theory was well developed and had many serious proponents, but it turned out to be rubbish.

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  7. Gene, what you're saying here seems consistent with Scott Martens' argument against the coherence of "Freedom From" as a concept. Do you agree?

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    1. Jim, I haven't had the time to check out your link, but I will make the time soon!

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  8. "If either 1) or 2) are meant, I think it is much better to say those things than to simply to declare "a right to a job.""

    BTW, if someone means 1) by declaring that everyone has "a right to a job," they are arguably correct by your own definition (at least in the U.S. and I would presume most western countries)! A state law banning blacks from teaching *would* without question be struck down by courts, and even private employers for the most part can't refuse to hire someone based on race, gender, etc.

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  9. Jim, on an initial reading, I think you are right, but it will take time to think this through. It took me about 20 years to arrive at my current thoughts about rights, so give me another 20 and I'll be back to you again.

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  10. So would this mean that the use of the word "rights" in the phrase "property rights" is out of place?

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