The grounding of natural rights
A recent reading of Leo Strauss’s Natural Right and History, an expansion in book form of lectures delivered at the University of Chicago has me thinking about the question of how we can ground the concept of human rights in a democratic society.
For Christian nationalists and their ilk, this is an easy task. Rights come from their god, and it is the duty of human governments not to infringe on those rights—especially such rights as rejecting taxation and committing violence against abortion providers, if contemporary politics is any guide. There is some debate as to whether non-Christians—or even non-fundamentalist Christians—have these rights, and the general idea of what a right is can be vague, but advocates of this school of thought are clear on the origin of rights.
For many in the political center and the left, rights are essentially a contractual agreement. The Constitution says that we have freedom of speech, so we do. Said document does not protect ownership of AR-15s by name, so that is not a right. Abortion is also not specifically mentioned, but surely we can agree that it should be interpreted as being there. This is mocked as the government giving us rights, but an accurate characterization of the point of view is to say that the parties that joined together under the document in question gave each other a list of permissions, subject to future revision.
As much as the right wing loves to quote the Declaration of Independence in support of their stance, this notion of rights as agreement by participants has some merit even in that act of conception of this country. After a bit of preparatory preamble, the world is informed that we hold a set of truths to be self-evident. Hold, not prove and not propose for debate, but hold. Which is to say, these are not in fact self-evident to everyone, but are some foundational axioms that we will choose as the basis for everything that is to follow.
That being said, the Bill of Rights in the constitution that eventually did follow makes no such concession. Rights are simply treated as something that exist, no matter where they may have come from, and as the Ninth Amendment clarifies, the ones enumerated are not a comprehensive list.
Very well, but the origin or the grounding of rights remains a matter of dispute, with one party saying that rights are whatever we say they are and that we can say something else if we wish, and the other party insisting on a divine source for rights, but only for what they say are rights. I.e., the “we can ban guns and legalize abortions” vs. the “God wrote on our hearts that AR-15s are protected, but forget about pot and birth control” positions.
This is an unsatisfactory state of affairs, especially since voters keep electing narrowly divided governments that swing from one absolutist formulation to the other. What we need is a grounding that does not depend on the sort of partisanship that is appropriate for team sports, but not for government.
The first step in that is to consider what rights are in essence. Is it my right to use marijuana, to own a cannon, to dump motor oil in the river, and so forth? How am I to know if I cannot say what a right is?
Rights address the question of choice. If I am able to do X, ought I be able to do it without interference from anyone else? If I smoke a joint in my own home, not allowing the fumes to get out and not operating heavy machinery around other people, is that a matter of public concern? If I have an AR-15 in my possession, but do not point it at others and refrain from firing rounds off at random, what then?
There is much to debate here. Firing rounds down a city street is an obvious threat to others, as is dumping petroleum in the city’s water supply, and even the possession of nuclear weapons can pose an unjustified risk to one’s neighbors—what if they leak or if one’s cats stick paws into the mechanism—but the pressing question at the heart of many of these arguments is over the potential for harm. Should we be able to have the opportunity to do certain kinds of harm, even if we promise never to carry out such acts?
Advocates for one side of a given right will say yes, while the opposition insists that the risk is too great. But the grounding of rights—of what a right actually is—themselves gets lost in the present partisan brawl.
This is a subject that I must return to in the near future. For the present, my concern is to show that whenever we are debating the subject of specific rights, it is worthwhile to ask for each participant’s definition of the category, rights.