As the economy begins to slightly improve, the nation has
surprisingly refocused itself on social issues. I say surprisingly because
while there has been growth in the economy, this growth has been very weak and could
easily collapse given another external shock. Regardless, the main issue in the
news has been the Obama administrations kerfuffle over mandated insurance
contraceptive coverage and the Catholic Church’s subsequent revolt.
I urge you to google a few news stories on the issue, but if
you are too lazy to do that, here is a quick summary:
As a part of Obamacare, employers now are mandated to
provide contraceptive coverage in their insurance plans. To this the Catholic
Church, particularly the bishops, have objected, arguing that forcing them to
provide an insurance plan that allows for contraceptives is wrong, since it mandates
them to pay for something that is against their religious beliefs. A tentative compromise
has been reached, with the contraceptive provisions now being offered free of
charge, relieving Catholic organizations from directly paying for the
contraceptives. Yet, the compromise is a peculiar one, since the main objection
the Catholic Church had, paying for contraceptives, hasn’t really been
addressed. The payment is now indirect, rather than direct.
That’s not what I want to talk about, though. I think a more
interesting discussion is the language and use of the words “right” and “rights.”
I am not feigning ignorance, but I really have no idea as to what constitutes a
right. Or rather, I think I understand what a large portion of society means
when they say something is a right, but I don’t understand the justification
for this definition.
Allow me to explain, using this article as a basis.
In the article, Mr. Sharpton asserts that access to
contraceptives is a right. He builds his case by stating over and over
again that access to contraception is a right, therefore it should be
unabridged. Never mind the fact that the issue that Catholics have is not over
whether women should have access to contraceptives, but whether they, the
Church, should be mandated to provide these contraceptives. No, what is curious
about this article, and the general line of argument it seems to represent, is
this: as long as you claim that something is a right, then you have the
rhetorical high ground and it is now the job for your opponent to argue why
this right should be limited. Given that the American populace is pretty keen
on rights, whatever they may be, this argument usually works since people,
perhaps for the best, are hesitant to curtail rights.
But the rhetorical employment of rights to justify and defend a policy is a
curious event; one which I think is becoming more and more common. Twenty years
ago, few would argue that gays had a right to marriage (an aside, but it is
interesting to note that it was only recently, within the last fifteen years or
so, that the gay community has come around to gay marriage. See Andrew Sullivan
and his efforts on this front for more information). Now it is increasingly commonly
accepted that a right to gay marriage exists. This also applies to areas such
as animal rights, abortion rights, transsexual rights, birth control rights,
immigration rights, and discrimination rights. My point isn’t that these rights
are bad. I’m holding off on value judgments for this essay. My point is instead
that there seems to be an increasing amount of rights now coming into
acceptance.
Rights are fluid and seem to change with the shifting social
mores of society. Given this, why should we hold them to such esteem? From where
do rights gain their value? Why should we pay special heed to rights? If there
is this fluidity towards rights, can rights go out of existence? If we as a
society can create new rights, can we also destroy old ones? I do not see why
not.
I think there are four different arguments for what I am
going to call the legitimacy of rights. By legitimacy, I mean why rational individuals
should respect rights and protect them both as a society and as a democratic government.
Here they are:
Rights as duties: This comes from the deontological ethics
of Kant and others. In such a theory, rights function as the correlative of
duties. If someone has a duty to do something, then someone has a right to
expect it. Accordingly, if no one has a duty to provide you with something,
then you have no right to expect it. Such an understanding of rights is pretty
alien to our American understanding. Since I know the least about this
conception of rights, I’m going to leave it alone and let someone more knowledgeable
than I tackle it. We can put it aside at the moment, given its irrelevance.
Rights from God: This is the traditional Lockean conception
of rights, which is what our constitution is based off of. Since all men are
the property of God, and are endowed with certain properties as a result of
their being property of God, men are limited in what they can do to one
another. You have the right to liberty since I, as a man, do not have the privilege
to violate the property (i.e. you) of God. This I think is the most internally
logical and consistent, yet it has a critical weakness. It presupposes the
existence of God. Take away a widespread cultural religiosity, with a shared common
culture and therefore a shared understanding of common rights and the whole
thing falls apart. Rights stemming from God only apply if you and I agree that
God exists. If we take away that commonality, we have nowhere to go.
Rights stemming from Dignity: This is what you have when you
take God out of the equation. Human beings have fundamental rights, it is argued,
because they have dignity and worth. A variation of this argument states that
since human beings are the only creatures with reason, they should be valued as
such. Essentially identical in its formulation to the second conception of
rights, it replaces God with man. The result though, is critically different. A
different conception of where rights come from (God vs. Man) leads to obvious
differences in the types and categories of rights. I think this too is pretty
weak. What external force or metric gives human beings dignity? To give
something dignity, this qualification or judgment must be external from the
actor that is under consideration. I cannot say I have dignity. Others must say
first that I have dignity, only then do I possess it. Likewise with humanity.
We cannot just declare that we have dignity, and therefore now do we possess
it. It’s meaningless to say so. The variation of this argument, dealing with
reason, is equally problematic since it is quite obvious that not all human
beings have equal use of reason. Babies, the elderly, and mentally deficient
people are all lacking in their faculties of reason. Would we say that they
have less rights resulting from that? If we were consistent with this theory,
we would. But such judgment would run counter to people’s moral intuition, and
rightfully so.
Rights stemming from convention: Here we have what is essentially the modern
understanding of rights. Under this conception, rights are fluid, coming and
though it is never said but can be presumed, going. Rights come into being by
two ways. Either a majority of a society agrees that something should be a
right, or the intellectual, political, or moral leaders of a society deem that
something should be a right. Gay marriage came into being through the latter
method, but is now being ratified by a pro-gay marriage majority. Such an
understanding of rights removes their sacredness. Even the weak understanding
of human rights as resulting from dignity gives rights a level of sacredness,
of respect. If rights are social conventions, albeit important and essential
social conventions, where do they get their sacredness from? Why should I pay
any attention to rights, especially if other social conventions are being violated?
Rights devolve from something externally recognized, and thus tangibly real,
into a mere rhetorical tool. What rights are recognized is dependent upon pure
and total power. The political realm becomes a battlefield, with each
ideological side struggling to define their preferred policies as rights. If
they can do so, they win the debate, since few are willing to openly advocate the
abridgement of a right.
There is
another concern. Traditional rights, such as freedom of speech, freedom of
religion, etc are no longer sacrosanct. People that believe in rights as highly
dignified social conventions presume that society inevitably and inexorably
moves towards progress, with an ever widening societal understanding of rights.
But is that really the case? Must, does, society always move towards progress?
Does the arc of history always bend towards justice? I don’t think that’s the
case. I think it is an assumption, and a dangerous one at that.
So where does that leave us? I don’t know. I like rights, and I want to see
them justified, but I don’t see how one does that without an external objective
shared morality or understanding. I pose this not as an argument, as I have no
side to advocate. Rather, I write all of this as a question, a desperate plea
that someone out there can offer me a sound and internally consistent definition,
defense, and justification of rights.
Thanks for reading this!!!! I hope I was clear and not babbling too much :D
