"Natural rights" vs "legal rights"

[xiphias]

This is one of those things that underlies a lot of my thinking. I'm not posting this because of any particular thing that's going on, but because it's a general concept that is basic to my philosophy and understanding of the world, and I wanted to just put it down here so I can point to it later, and so that people can help me refine it and see if it makes sense.

I believe that one problem that we have in all sorts of political conflicts is that the word "rights" has two different, basically unrelated meanings. You've got "rights" which are things that are intrinsic to beings, and then you have "rights" which are things that societies legally grant to entities for pragmatic reasons.

There are several names for this first category of rights -- "natural rights", "intrinsic rights", "human rights", "God-given rights", "inalienable rights". The second category probably has multiple names, but I only know them as "legal rights." The term "civil rights", in modern usage, is another word in that first group, but, annoyingly, in some pre-modern works, the term is used to mean "legal rights", the OPPOSITE of its current meaning.

Societies, through their governments and legal systems, grant legal rights. They can make up whatever legal rights they feel are useful and pragmatic, for whatever reason they want; they can change them when they feel it's reasonable to do so. Natural rights, however, are NOT granted -- they are intrinsic. Well, if you're theistic, you can think of them as "God-granted"; if you're a Deist, you might say that they are "endowed by their Creator" upon people. But they're NOT granted by governments or by societies. Legal systems merely recognize and protect natural rights -- they don't create them.

It's simple to enumerate legal rights -- they're whatever a society says they are. You list 'em, you write 'em down, there you go. Of course, there are going to be arguments and conflicts about their application, but their basic existence is simple and unambiguous, written down in literal black-and-white.

Natural rights, on the other hand, are confusing. Philosophers and theologians can argue about them endlessly -- but the idea is that they're trying to discover and encapsulate a thing that actually exists independently within the nature of the Universe.

(This is an idea which is easier to conceptualize by people who are in some way theistic, but which some atheists also hold. And, incidentally, the fact that it's easier to fold into a theistic view of the universe than an atheistic view is why some theists assume that atheists must be inherently immoral -- they believe that the belief in the existence of an objective morality MUST include the belief in God, because, for them, they ARE inexorably linked. Nonetheless, the vast majority of atheists I know DO believe in the recognition and protection of natural rights, so I am aware that they ARE separable.)

So, the question that one wants to raise here is, "So, what ARE those natural rights?"

It seems to me that the most fundamental natural right is "the right to self-determination." I think that most other natural rights flow from that center.

"The right to self-determination" includes "the right of control over one's own body," "the right to believe as one chooses," "the right to associate with whom one wishes to," "the right to have the apparatus of the government and society to treat you on your own personal merits rather than assumptions about your category", "the right to express one's opinions as one chooses". Then there are things which MIGHT be part of this, but I'm somewhat less sure of: "the right to own property and to do whatever one chooses to do with it." In my mind, this IS a "right", but "property" is a bit of an undefined term. For instance, I don't believe that "land" is, itself, "property" in a natural rights sense. I believe that "the right to own land" is a legal right that we, as a society, have decided is useful.

Some cultures define "the right to basic health care" to be a part of self-determination -- illness and injury prevent a person from acting as who they are, and therefore society has a responsibility to support people's ability to be who they are, by jointly combating those things. Personally, I don't agree with that -- to me, I think that having help mitigating the actions of an uncaring Universe is a natural right, but I DO think that it OUGHT to be a legal right.

Societies exist for two main reasons, I think: to form groups which have the ability to protect natural rights, and to form legal rights which, indeed, do mitigate the actions of an uncaring Universe. That we have no natural right to be protected from disease, famine, misfortune, and the like, but that a fundamental purpose of having a society in the first place is to provide that protection to one another. And that the establishment of legal rights is an excellent way to ensure that.

Edited to Add a discussion question: Let me paraphrase the question that people who are afraid of atheism ask: as a lot of you don't believe in the existence of an external, objective morality which exists independent of human thought, and yet, you value the same moral and ethical points of human dignity that I do -- for you, how did you come to value those things? You perceive right and wrong at least as strongly as people who believe in objective morality; you act at least as justly. Why?

Comments

[metahacker.livejournal.com]

I think I agree, overall, but I always found the idea of inalienable / natural rights to be really duplicitous. These rights emerge from the society that names them: they are the aspirations of that culture for things that they wish to impose as rights on those within and around them. (And yes, I said "impose" rights, because the exercising of pretty much every right has some impact on other people.)

Folks like Jefferson did some good PR in claiming self-evident truths and inalienable rights...but they're not universal. They were, and are, a product of the society that shaped the thinkers that wrote them down. I could say the same thing about the Ten Commandments, or other behavioral guidelines ascribed to God or other unassailable moral authorities, snapshots of the cultural milieu in which they were either created or transcribed, depending on what you believe.

So: I don't think there's a unique set of these rights. The universe doesn't care about you. People do: and so we go out and form a society together, and together define what is and isn't acceptable. It's really awesome that we have been more or less able to do this; let's keep doing it without needing to resort to some external authority.

[thnidu.livejournal.com]

I agree: there are no "natural rights".

[(Anonymous)]

I agree.

I'm a Euclidean Philosopher and Empiricist; I believe that if Jefferson's language were made consistent with modern usage it would read something like "We hold these principles to be logical axioms"

(In fact I've heard that text-books on Euclidean Geometry in the period used the term self-evident to describe axioms, and experts have speculated the term was used in the Declaration to resonate with the concept of logical thought).

However, I would say the axiom was imposed / created by Jefferson, a human, rather than being a 'natural' effect of the universe.

As an Empiricist, I observe that natural rights exist because people talk about them, and there is a surprising consistent set of them which persists across a surprisingly wide range of diverse cultures. Most likely this is evidence that humans are animals with instincts like Chimpanzees.

C.

[wcg.livejournal.com]

Societies exist for two main reasons, I think: to form groups which have the ability to protect natural rights, and to form legal rights which, indeed, do mitigate the actions of an uncaring Universe.

Marcus Porcius Cato wrote, over 2000 years ago, that families join together to form societies, in order to protect each other from those things which they can not, on their own, overcome. While Cato the Elder would, no doubt, dismiss the concept of natural rights as the right to starve to death, he would agree with you in principle.

[Disclaimer: I do not endorse Cato the Elder's opinions in general.]

[querldox.livejournal.com]

Possibly different way of putting it/looking at it: Negative rights and positive rights.

Negative rights are those which amount to saying "The government can't do this". So the First Amendment is a set of negative rights; the government can't do anything against free speech, freedom of religion, etc.

Positive rights are those for which the government must take some sort of action to accomplish. So, for example, universal health coverage sans direct payment of ones health care costs is a positive right, as the government must do numerous things to have that happen (regulate insurance, doctors, possibly patients and healthy people, etc.).

[xiphias.livejournal.com]

For myself, I don't find that a personally enlightening distinction to draw. I mean, we can state that a government that takes too many positive actions fails in the direction of fascism; a government which takes too few fails in the direction of anarchy. But I don't see the must/must not distinction as being particularly useful, especially in a federal system like the United States in which an over-arching government may sometimes need to take active steps in order to prevent a lower government from taking active steps that they mustn't, or oughtn't take.

[fatpie42.livejournal.com]

Putting forward my two cents on the atheist response (since you seem to think this is a conundrum for atheists)...

I'm going to pick out the terms "intrinsic" and "legal" for this distinction you've proposed.

First I'd like to hone in on the part of the discussion where you ask which rights are intrinsic and which are legal. Clearly believing in a God doesn't make this distinction that much easier. There may be religious sources to draw from, but those can often have their own legalisms often conspicuously specific to a much older period of history. What's more religious sources can sometimes miss rights which we now view to be intrinsic.

Religions often have concepts which they cannot really explain, but which believers feel help to explain some aspects of our lives or condition. No one has seen a soul, for example. And when we start to try to work out the logistics of a soul which holds all of our personality traits and the like, it becomes problematic when we come across people who completely change as a result of physical damage to the brain.

Naturally I'm not trying to enter into a big debate about the nature of the soul here and this argument will no doubt be old and boring for you. What I'd note though, is that atheists have their own explanation of the soul. When we speak of the soul we are talking about those most essential parts of us that give us our identity. While the atheist may assert that these are all in the brain, are fragile like the brain and disappear upon our death (though not necessarily as belief in God is not required for belief in an afterlife), they still have a similar idea of traits that are of utmost personal significance that might be described as the "human spirit" or "the deepest recesses of the soul". This may be taken rather more metaphorically, but then that's where the line blurs as these terms are often metaphorical for religious believers too.

To tie this somewhat back with my previous point, being religious doesn't really make the contents of the soul any more obvious. Theists and atheists alike may differ to some extent on what aspects of themselves are the most important to their identity and sense of personal worth (though there may also be a lot of agreement too, of course).

The soul is invisible, God is ineffable and morals are complicated. Even within a singular religious group there will be a great deal of disagreement on these things. And the same is true of intrinsic rights. Heck, it's not really a religious concept. Relatively modern figures such as Locke first developed the concept of intrinsic rights. It might be said to have its roots in religious thought, but the specific concept itself is far more recent.

[fatpie42.livejournal.com]

Continued...
So how is anyone supposed to work out which things are intrinsic rights and which are not? (Let's ignore the idea that the worship of an all-powerful, all-knowing, eternal God is in complete conflict with the idea of self-determination for the moment.) I think the reason you pick self-determination or "autonomy" as the most important right is because it's the minimum requirement for having ANY kind of freedom. I'm not sure you've chosen it because you needed God to tell you that freedom is a good thing. I think you've chosen it because YOU think freedom is a good thing and you recognise that most other people do too.

I'd also note that atheists will have no problem with the idea that freedom is important for human rights. Nietzsche, who was widely (though perhaps unfairly) criticised as a nihilist, asserted that all people are moved by the "will to power". The idea being that anything anyone does whether aggressively or passively is to assert their own power drives. Even self-sacrifice is done as an expression of one's own ideas, values or passions and, to that extent, still gains something for the person who sacrifices his or herself. This is a bit of truism since it's often been noted that it's practically impossible to do something with no selfish motives behind it without being entirely irrational. However, I think Nietzsche's intention was to undermine the common condemnation of "power". What's important is how you use that power. The idea of looking at power drives and seeing where the true motivation lies has (ironically, considering Nietzsche's misogyny) been a very handy tool for feminists.

Working out which rights are intrinsic, isn't about working out whether there's an invisible part inside us that qualifies what we are allowed. Even if there were such a part of us, it's inaccessible to us and therefore gives us no idea what intrinsic rights ought to be. In the end, we as human beings have the task (or you might say are "entrusted" with the task) of deciding what things are vital to all human beings. Theists and atheists are in the exact same position.

That said, a lot of our intrinsic needs are actually pretty obvious. Go to any charity and the basic intrinsic needs of human beings are often spelled out because so many people in the world are missing them. These translate into the right to clean food and water, the right to free speech, the right to shelter, the right to an education, the right to a fair trial. Having recognised this as a purely human invention I have no trouble asserting the right to a fair trial as "intrinsic", yet it is undoubtedly a "legal" right. In fact all "intrinsic" rights will be reflected in the "legal" rights if the law of the land is worth anything. You might assert something more basic like "the right for evidence to be fairly considered by peers before guilt is assumed" but this still sounds somewhat legalistic.

Some cultures define "the right to basic health care" to be a part of self-determination -- illness and injury prevent a person from acting as who they are, and therefore society has a responsibility to support people's ability to be who they are, by jointly combating those things. Personally, I don't agree with that -- to me, I think that having help mitigating the actions of an uncaring Universe is a natural right, but I DO think that it OUGHT to be a legal right.

I'm afraid I must disagree with you about the right to basic healthcare. It seems to me that the American system already recognises the right to basic healthcare. If someone without health insurance goes to the ER they aren't turned away. That is because they have a right not to be left to die. There are charities providing basic healthcare to people around the world, not because their laws are no good, but because they do not have enough doctors or medical professionals within the country to cater for the basic healthcare of their population.

[xiphias.livejournal.com]

The point that the United States recognizes medical care, to SOME extent, doesn't touch on the question of whether we do so because we consider health care to be an intrinsic right or a legal right. Obviously, letting people die is not something we are comfortable with, but did we choose to grant a legal right because of that, or did we recognize an intrinsic right?

In general, what I worry about when we DON'T have a concept of an external objective non-human-centric morality (a concept which I, again, consider to be orthogonal to the concept of the Divine, and also orthogonal to the concept of a soul) is that we might end up defining ALL rights as legal rights. And I'm not comfortable with that.

If we define all rights as legal rights, then societies may, if they so choose, do whatever the heck they want. Of course, societies DO choose to do whatever the heck they want, but, if we don't have a concept of a non-culturally-based morality, I feel like we start to lose the capacity to judge whether a society's actions are right or wrong.

I see this as being related to the question of "scientific inquiry vs. philosophical inquiry (including theological)". Scientifically, we can study the question of whether a certain set of actions is congruent with a specific society's mores and norms. Scientifically, we can study the question of what future we expect for a society, based on its specific mores and norms.

But science does not approach the question of whether that trajectory is good or bad, whether those norms are congruent with questions of right and wrong. "Right and wrong" aren't the domain of science -- science asks questions of "is and isn't". Science studies the physical universe, which doesn't have a concept of morality. Morality is a metaphysical concept, not a physical one, and therefore can be approached philosophically.

There have been attempts throughout history to apply methods of scientific inquiry to morality, going all the way back to Aristotle, with various degrees of success. I really admire Jeremy Bentham's work, for instance. The methods of scientific inquiry have to inform our moral and ethical decisions, since we have to understand a thing to judge it, and to predict the expected results of our actions to choose our actions. But once we have an idea of what the thing is, once we have an idea of what the expected results of our actions might be, we have to apply something ELSE to judge what is "better".

And I don't see how one does that without reference to some sort of universal "better". Bentham tried to find the absolute minimum set of axioms to work with: "pain is bad" and "pleasure is good" -- but we can't prove axioms, and, indeed, my personal morality doesn't always align with those ideas -- the notion of self-determination as an absolute good is not always congruent with Bentham's axioms.

I acknowledge that I cannot KNOW whether my assumptions of what are and are not universal goods are correct. But I worry that, without a notion of the existence of universal goods, you can't hold onto a notion of intrinsic rights.

[fatpie42.livejournal.com]

Perhaps I'm missing something here. Naturally I don't think science and morality are the same thing, so you can leave aside that issue. I'll just note that I think Plato's "Euthyphro problem" has always made it clear to me that a divine-command theory of morality (i.e. that God makes morals what they are) does not work and I'm disinclined to say that without God defining morals, science is going to fare any better.

If we define all rights as legal rights, then societies may, if they so choose, do whatever the heck they want. Of course, societies DO choose to do whatever the heck they want, but, if we don't have a concept of a non-culturally-based morality, I feel like we start to lose the capacity to judge whether a society's actions are right or wrong.

I'm not sure about your reasoning here.

Societies choose to do whatever they want, but they don't do so randomly. They debate and there is actually a rational (albeit non-scientific) basis for that debate.

The philosopher Peter Railton notes that moral goods are actually based on non-moral goods. That someone needs something in order to live or that being denied something will make them unhappy is nothing to do with morality, but it is individual needs and desires that moral goods are based on. Railton asserts that morality can be deduced from what everyone would want if they were fully informed and rational (and asserts that this system needs to include as many types of persons as possible, so naturally it has to be regardless of gender or location and perhaps even regardless of species).

Now naturally this formula is rather impractical as it is pretty much impossible to work out. (So if you want to insert God as the supreme moral expert, here's a neat point to do so. Though I think his proliferation of that expert understanding seems to be limited.) But it does make clearer what we are trying to aim for with moral debate and discussion.

Yes, morality is decided by a culture but it is through debate and discussion. Where a culture isn't currently providing women with equal rights they generally develop their own native women's rights movements when female voices are allowed to be heard. Cultural relativism is not an argument against progressive voices, since you don't need imperialist interference for cultures to develop their own progressive movements.

But on the issue of the distinction between legal and intrinsic rights, it seems to me that an intrinsic right cannot be recognised as such by a culture if that culture refuses to back it up legally. If all government collapses, I still think the right to "basic" healthcare will remain intrinsic. That is why many charities feel obligated to go to countries where there is little infrastructure and provide basic healthcare for them.

You dismiss Bentham, but he was one of the major figures to start asserting that rights were "universal". You can't generally find that in religious texts. Sikhism is probably the only religion that explicitly asserts male and female equality. In order to assert their will to power, minority groups needed a voice and thankfully we have reached a stage where giving minority groups a voice is increasingly valued.

It seems that God could not overcome patriarchy and now, as you know, there are some religious figures who want to use God as an excuse to keep patriarchy in place. But we don't need a God in order to recognise universal goods. We just need to listen to people.

[fatpie42.livejournal.com]

Just to clarify on this bit:
Cultural relativism is not an argument against progressive voices, since you don't need imperialist interference for cultures to develop their own progressive movements.

I'm not a cultural relativist. I'm referring to the argument such figures will use, that progressive attitudes are just us forcing our morality imperialistically on other cultures. I think that attitudes like feminism, for example, are simply encouraging society's to listen to the needs of women in their culture and if a society truly does so, they'll find their own society's women will come to pretty similar conclusions anyway. - Just clarifying.

[thnidu.livejournal.com]

"Let's ignore the idea that the worship of an all-powerful, all-knowing, eternal God is in complete conflict with the idea of self-determination for the moment."

Not if that Entity allows its sapient creatures to choose their own actions.

My own beliefs are pretty vague. Sometimes I'm sure that a God exists, sometimes the opposite, and most of the time I'm agnostic. I don't preach (except to missionaries who try to impose themselves on me ). But I do believe that you've made an error here with regard to what many people do believe.

[fatpie42.livejournal.com]

Naturally there is a lot of scope for debate on this point, hence why I suggested we ignore the issue for now. However, just as it was suggested that God makes concrete the intrinsic rights for human beings, so does an all-knowing God make concrete the future choices of human beings too.

If God's knowledge of human beings doesn't affect our destiny, does it leave our intrinsic human rights as an open question too?

[interactiveleaf.livejournal.com]

I'm afraid I must disagree with you about the right to basic healthcare. It seems to me that the American system already recognises the right to basic healthcare. If someone without health insurance goes to the ER they aren't turned away. That is because they have a right not to be left to die.

I think you have a few basic factual problems in this idea, and a few definitional ones.

Basic factual problems first: People without insurance or other ability to pay are turned away from the ER all the damned time. I understand that there's a myth in the US that hospitals treat people regardless of ability to pay, but that is simply not true. Or more accurately, it is only true if the person in question is suffering from an immediately life threatening condition. The law on the matter (EMTALA, passed as part of COBRA legislation) very specifically says that hospitals may not turn away people requiring emergency healthcare, regardless of ability to pay.

On the other hand, if you show up at a hospital with a fever, an elevated white blood count, and a possible abscess, you may very well be sent home.

And even if you do show up with a legitimate emergency condition, don't do it in Massachusetts. Or Colorado Springs. Or just don't bother to have any expectations about what "care" will look like.

If you just want some numbers instead of specific cases, try here.

The definitional problem is that "basic" healthcare isn't what the law requires, or what people ought to be going to an ER for in the first place. That's what a GP is for, and the more people who end up using the ER as a substitute for an actual family doctor, the more people who will be turned away, for financial and other reasons.

[fatpie42.livejournal.com]

The law on the matter (EMTALA, passed as part of COBRA legislation) very specifically says that hospitals may not turn away people requiring emergency healthcare, regardless of ability to pay.

On the other hand, if you show up at a hospital with a fever, an elevated white blood count, and a possible abscess, you may very well be sent home.

Ah... You can see my confusion though, right? The latter case you describe sounds like a bit of an emergency to me.

Out of interest, the other year I was brought into hospital with an inflamed appendix. They decided I should stay at the hospital and that there should be an appendectomy as soon as they could fit one in. If they hadn't done that operation, I'd be dead.... I was going to ask whether that would count as an emergency in the US and then I looked at those links. Ugh!

I suppose it's all awkward for me to understand because in the UK emergency hospital care and family doctor care are both covered by taxes. That means that no one is left to die. I'd say that "not being left to die" was probably a more intrinsic right than, say, "access to painkillers for a headache". Y'know?

[xiphias.livejournal.com]

(since you seem to think this is a conundrum for atheists)...

No, no -- I think this is a conundrum for people who don't believe in an external morality, regardless of whether they believe in anything "Divine" or not -- the two concepts are separable. I'm saying that people who are afraid of atheists conflate them. Me, I know people who believe in objective morality, and not in a god or gods, and people who believe in a god or gods but not in an objective morality.

Actually, there are many pantheistic religions which are incompatible with a belief in a single, unitary objective morality.

[maggiebloome.livejournal.com]

Actually, most people's instinctive morality does not come from their intellectual understanding of the nature of the universe. Theists and atheists alike developed an idea of "fairness" as small children and rationalised it later, so it honestly doesn't make much difference.

Personally, on an intellectual level, I DON'T believe in "natural" rights in the sense that they are not granted by human beings, like those ordinary legal rights. There are just legal rights which are optional to a functioning society (contract law) and legal rights that make our society functional and preferable to living alone in the woods (free speech).

That is, I take the consequentialist approach that treating some rights as inalienable leads to a better outcome than not doing so. The reason I consider it a better outcome, of course, is probably because someone told me about the golden rule when I was four and gave me a biscuit.