A DERIVATION FOR THE SAKE OF JUSTICE

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.

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[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 .

HAVE REASON, HAVE RIGHTS

From time to time, this writer feels it is useful to review and perhaps further develop the basic ideas and claims of this blog.  It holds, as its major argument, that civics education should shift from a natural rights-based curriculum to one based on federation theory.  This posting reexamines one of its foundational concepts, that of the natural rights mental construct.

          For those new to the blog, a natural rights view holds that each individual has rights and that that includes the right to make the life choices he/she wishes to make and the right to pursue those choices.  Some writers use the term social-contract theory to designate this construct, but this writer finds that term problematic in that social-contracts can also include various compacts and covenants of a more communal sort such as federation theory.[1] 

The difference between it and federation theory lies in how natural rights promotes a sense of individualism that Charles Taylor calls “atomism.”[2]  What follows is admittedly an extreme version of natural rights.  It provides a slant that promotes the idea, individual sovereignty or a description purely based on the idea that those who believe in this view do so as a trump value.  But if one falls short of this seemingly extreme position, as will be evident from what follows, the whole conceptualization of the construct seems to collapse; this perception takes on an all or nothing rationale.

          The first point to make is:  the natural rights view, philosophically, relies on a utilitarian moral position.  That is, what is moral is what meets the valued ends of most.  Social policy, therefore, should reflect what most people want and that want is defined by self-centered calculations.  This does not predetermine that one cannot hold socially desired ends – such as less poverty in one’s community or nation – but it also does not promote such ends.  That’s up to each person to decide.

Common observations reveal that most seek self-serving ends that relegate concerns, such as for poverty, to be limited to those who are poor.  But one can ask:  can this level of individualism be sustained?  When one says that each is free to determine life choices without any principle or sense of obligation to the society in which one lives, can that work? 

Yes, believers in natural rights do see that each can be called upon to fill roles necessary for societal survival, but that call is conditional.  That is, the call must be within the parameter of it being advantageous to the person being called or emanating from his/her consent.  The sustainability question can be addressed from the demands associated with being human and the basic need of individuals that the social arrangements they inhabit survive.

          Using philosophic thought, to say someone, say A, has the moral (not merely legal) right to do something, say X, commands that A be respected by others.  That is to say, others are bound not to place obstacles on A doing or otherwise enjoying doing X.  But that also means A cannot impose any injunction on others.

          Why?  Because of E, that is, A’s essential property(ies), his/her capacities.  One has the natural right to exercise (do or enjoy) E, therefore, he/sh has a right, X, to do so.  So, for example, individuals have the right to follow a rational life-form; i.e., a right to life and unobstructed pursuit of rationality.  With that, he/she has a right to attain and maintain those objects or other assets – property – to exercise X in seeking E.  This would include beyond a right to life or freedom, a living wage.

          This view of people, rights, and capacities are so central to the natural rights view that society, under such a view, proactively seeks to secure rights and capacities and not be satisfied with merely not placing injunctions in their pursuits.  For example:

It is because men and women are the beings who exhibit certain capacities which are worthy of respect.  The fact that we ascribe rights to idiots, people in a coma, bad men who have irretrievably turned their back on the proper development of these capacities, and so on, does not show that the capacities are irrelevant.  It shows only that we have a powerful sense that the status of being a creature defined by its potential for these capacities cannot be lost.[3]

What warrants this exalted status for all humans; even in cases when E is not fully available as is the case with mentally handicapped people?  Various people have various reasons.

          One claim is the reliance on a belief; that would be the belief in an immortal soul which, in turn, relies on the belief in a deity.  The soul is somehow seen as an extension, on some basis, of that being.  A second claim or fear is that of a slippery slope concern.  That would be if one makes exceptions here and there, who or what determines the limitation of such exceptions?  One can readily see where immoral entities disposed to trample the rights of others by claiming some exception can arise.

Or, there is a vision that sees rationality – or its capacity – as being the crown achievement of existence.  That being able to think rationally culminates the development of this physical realm and deserves a vaulted ranking among those that have it or potentially can get it; that is, those who are human.

          Lastly, there is a self-described realization that humans – by and large – can give consent in forming a social contract.  This among fellow contractors leads to mutual respect and, from that respect, the claim of rights resides. 

Each of these is, of course, questioned and critiqued by those who support federated rationales.  For example, rational thought does not guarantee reasoned conclusions in the formulation and implementation of public policy.  Therefore, there is no guarantee that that, in turn, does not demand obligations and injunctions against X – the unfettered rights – since faulty reason can threaten any social arrangement.  History readily provide evidence to that effect. 

This blog will pick up this argument soon.  Perhaps as soon as the next posting.  This blogger needs to give that some more thought.

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[1] Truth be told, he also finds problems with the term natural rights.  If one is to refer to what is natural, that is limiting what a human sense and behavior are to self-centered desires as is the case with animals (outside instinctual behavior).  He further feels that one can make the claim it is natural for humans to desire social arrangements even with their entailed obligations.  For example, a sense of caring or benevolence toward others seem natural enough.  See Jonathan Haidt’s book, The Righteous Mind, or a summary article (a review) of that book:  William Saletan, “Why Won’t They Listen?”, The New York Times, March 23, 2012, accessed September 30, 2019, https://www.nytimes.com/2012/03/25/books/review/the-righteous-mind-by-jonathan-haidt.html .

[2] Charles Taylor, “Atomism,” in Communitarianism and Individualism, eds. Shlomo Avineri and Avner de-Shalit (New York, NY:  Oxford University Press, 1992), 29-50.  The use of A, X, and E to designate a person, a right, and a capacity in this posting originates with Taylor.

[3] Ibid., 33.