On various occasions this
blog has made the claim that rights, as defined by the natural rights construct,
are derived from federalist rights and values.[1] The natural rights construct does not define them
that way. It holds individual rights or liberty
– generally the rights associated with determining life goals and the right to pursue
them – as a trump value. Also, the last
posting pointed out the claim that people innately have liberty and that that
condition is based on human capacities.
This posting further questions these claims.
In
part, natural rights advocates rely on an approach to equality one can call
equal condition – everyone is equal before the law. This link takes on importance with what
follows. What will be drawn out here is to
further question the implications of the natural rights or liberty argument. Much of that consideration has to do with the
requirements one faces by living in an open society.
Contextually,
this critique reflects federalist concerns that counter natural rights’ assertions. Within a federalist rationale, there is a
definite commitment to ascribe obligations and injunctions upon the entities
making up a federalist arrangement. But,
as presented in this blog, there is one setting – an arena – in which the
natural rights’ perspective should be adhered to; that is in legal courtrooms
and other locations where legal matters are considered and/or decided.
Natural
rights are derived from a necessity associated with the legal requirements
posed by a social/political arrangement emanating from a federated
relationship. So, to start, this posting
begins with the federalist political landscape; that is where a people has formed
a federated arrangement by coming together and forming the governmental
structures of a polity through the provisions of a mutually agreed upon
covenant or compact.
This
formulates the conditions by which governmental and other political intercourse
transpire. In the more specific case,
when the inevitable legitimate claims arise – and they do arise even in the
most congenial of social settings – between or among entities of that arrangement,
those engaged can honestly – or in some cases dishonestly – seek either
retribution or protection of assets.
This is because of some claim a party makes in a negotiation that entails
legal provisions or in a tort action case, or when a criminal charge is made.
Consider
a court action. Courts exist to hear and
adjudicate which side of a legal dispute is correct and what, if any, remedies should
be imposed to make the aggrieved party(ies) whole or as whole as possible. These events are usually not undertaken with
joy. They are antagonistic in
nature. In order for such a system to
work, the assumed disposition between – or sometimes among – the parties is
adversarial.
While
courts usually seek for the parties to negotiate a resolution and avoid the
expenses of administrating a court case, the participants are looking at a
win-lose scenario to transpire. Therefore,
parties go into such a competition with justifiably guarded stances and they do
not approach it by asking: “what’s best for society?”
None
of the parties are likely to think – nor should they think – that way. Even in a federated society, one should in
court cases look after one’s self-centered interests assuming one is not
consciously pursuing an illegitimate end.
What one should aim for is to secure justice as one can best determine
what justice is within the parameters of the case.
With
that, then each party to a legal challenge has the derived right to seek a
self-centered end(s). Why? To advance what history has taught societies best
helps secure justice (a key procedural value in a federalist moral code[2]). That is an adversarial system. So, the view that upholds a natural liberty
option, as a derivative right, is the belief that by doing so it furthers the
aims of justice.
This
posting attempts at further solidifying this claim that the natural rights view
of liberty is a derivative right emanating from a federalist view of rights in
limited circumstances, namely judicial or legal challenges. A natural rights argument follows to point
out how such a view can be interpreted to account for its utilization and, as
such, be a derived set of rights from a federalist perspective.
The
natural rights view is associated with capacities; i.e., the right to do things
one wants and can do. Chief among those
things is the ability to choose: what
one will do next, what one will do this coming year, what one will seek as a
lifestyle including employment, marital status, family arrangements, etc. In terms of such choices, the natural rights
position is that they should be made unencumbered and free of obligations if
one chooses.
Therefore,
no choices, a priori, are better than any others and this right to
choose is a given not a potential to be sought or needing to be defended – so say
the advocates of natural rights. But
there are those who do not agree. They
claim that this line of reasoning is simplistic and lacks a responsible
consideration for what is at stake.
Naturally,
it is attacked by those who would favor autocratic rule – especially of the
totalitarian variety – but it is also at least questioned, if not attacked, by
those who hold republican values as is the case with federalists. Advocates of republican polities favor rights
or liberty, but not as a trump value.[3] They see natural liberty as a derived or
supportive of those constructs’ higher values, such as societal welfare.
One
critic is Charles Taylor. This writer
considers Taylor to be a communitarian. Taylor
points out an obvious precondition for any consideration of liberty when he writes:
… [T]hese capacities can only develop
in society or in a society of a certain kind is a proof that we ought to belong
to or sustain society or this kind of society.
But then, provided a social (i.e., an anti-atomist) thesis of the right
kind can be true, an assertion of the primacy of rights is impossible; for to
assert the rights in question is to affirm the capacities, and, granted the
social thesis is true concerning these capacities, this commits us to an obligation
to belong. This will be as a fundamental
as the assertion of rights, because it will be inseparable from it. So it would be incoherent to try to assert
the rights, while denying the obligation or giving it the status of optional
extra which we may or may not contract …[4]
Or in short, no belonging
– with its obligations – no rights. Given
the realities of human existence, one cannot count on rights being recognized
or respected without ample numbers within a given polity taking on the
obligations that a rights-sensitive society needs to satisfy.
Specifically, individuals are relied upon to satisfy a set
of obligations. Which ones? Well, obligations reflect values such as in
the case when one values a healthy life, one needs to fulfill certain
obligations such as securing food and shelter.
In terms of maintaining a suitable society, one that respects rights,
what values can they be? This blog has
addressed this question by identifying a set of federalist values.[5]
In terms of when it is legitimate to exercise natural
rights in pursuing self-centered interests, that would be in securing justice. Why? A
total answer would probably constitute a whole other argument and another
posting. Suffice it to write, justice is
advanced by an adversarial system where the parties are free to pursue their
interests. Advocacy for those interests
should be allowed to be pursued unfettered as long as the procedural rules of
the proceedings are respected.
[1] For example, see Robert Gutierrez, “Regulated
Condition,” Gravitas: A Voice for Civics, July 18, 2017,
accessed October 2, 2019, https://gravitascivics.blogspot.com/2017/07/regulated-condition.html .
[2] Robert Gutierrez, “A Federalist Moral View,” Gravitas: A Voice for Civics, June 20, 2017,
accessed October 2, 2019, https://gravitascivics.blogspot.com/2017/06/a-federalist-moral-view.html .
[3] The critics might also define liberty differently.
[4]
Charles Taylor, “Atomism,” in Communitarianism
and Individualism, eds. Shlomo Avineri and Avner de-Shalit (New York,
NY: Oxford University Press, 1992),
29-50, 35-36.
[5] See Robert Gutierrez, “A Federalist Moral View,”
Gravitas: A Voice for Civics, June 20,
2017, accessed October 3, 2019, https://gravitascivics.blogspot.com/2017/06/a-federalist-moral-view.html
.
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