Wednesday, June 21, 2006

A Left without Rights?

Thinking aloud here: I may not even agree with this when I reread it tomorrow.

Much of our modern talk about why the world needs to be changed is grounded in the language of rights--Human Rights, Great Ape Rights, Animal Rights, and so forth. The language of rights, in turn, has historically been grounded in conceptions about either Nature or Nature's God. This presents a problem for technoprogressive discourse: Technoprogressive types tend to believe passionately in acting for the amelioration of suffering and the improvement of the state of the world, but also tend to argue that conceptions rooted in valorizations of "the natural" are best discarded for more postnaturalistic ways of thinking. Thus, technoprogressives are among those talking and thinking about problems that most of the world talks and thinks about in terms of "rights," a concept whose naturalism makes it uncongenial at best.

The U.S. Declaration of Independence is perhaps the best text (likely the most frequently employed, at any rate) with which to illustrate some of the derivations of modern rights talk. The introduction speaks of the American people assuming

"the separate and equal Station to which the Laws of Nature and of Nature's God entitle them."

This phrase is far less famous than the preamble's:

"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

In both cases, the rights asserted are grounded in appeals to nature and divinity. The former appeal characterizes attempts to reduce ethics to science, the latter, to reduce it to religion. The Declaration typifies the Deist era--containing glimmers of both medieval theology's twilight and modern scientism's dawn. The text reflects its author: Jefferson famously collated his own New Testament with all the supernaturalism (literally) cut out, and dabbled in the pseudoscientific and scientistic vogue for attempting to reduce the passions to equations like Love + Hate = Jealousy. But it was Franklin, revolutionary, scientist, and one-time muser about something akin to cryonics (involving pickling in port), who pushed Jefferson to replace "sacred" with "self-evident".

The moment when Jefferson's quill scratched out "sacred" for "self-evident" nicely marks the emergence of modern rights talk. Beforehand, Westerners were mostly talking about a Natural Law grounded in Scholastic exegeses of Aristotle and the Bible. The Scholastic tradition that rights descend from Nature's God was an inheritance from the Stoics that the Latin West had picked up from Cicero.

The problems for technoprogressivism of rights grounded in anybody's Flying Spaghetti Monster probably seem pretty "self-evident" to most who'd read this, and I'm not going to belabor them here (anymore than I already have...). But grounding rights in nature just reproduces these problems in a stealthed form--which stealthing is of course awfully characteristic of the last few centuries in a Foucauldian sorta way.

One problem with appeals to nature: The self-evident ain't.

Self-evidence was another Stoic shibboleth, the epistemological gladius with which they fended off the probabilistic Carneadean skeptics of the New Academy and fought their way to an empiricism that they found adequate to ground their ethical assertions. When Franklin replaced sacredness with self-evidence, he was grounding the Declaration in the same sort of presumed common sense. But consensus beliefs that the sun rises in the morning (or that the Earth revolves around it) have to remain, however commonsensical, only provisional if the scientific method is to be true to itself. And in the domain of ethics, scientific study of nature can't even supply such strong probabilities. People don't agree about ethics the way they do about the sun. So appeals to nature tend to just reproduce appeals to God in more secularly respectable language, from the Stoic dictum to "Live according to nature," to the modern homophobe's contention that gay marriage "just ain't natural."

But if technoprogressives can't ground rights in these appeals, can we, should we, still argue from them? Rights can simply be asserted, without attempting to ground the assertion in anything. Or rights can be grounded merely in the fact that lots of people already believe in them. Or rights can be grounded in a sense that we wouldn't want to live in a world without them.

But none of these is immune to even half-serious argumentative attack. So I'm led to ask if the technoprogressive left can find a way to argue without rights, or a different way to talk about rights. Policies can be argued for on utilitarian grounds--regardless of whether people are entitled to X, it would be swell if they had it. Or, rights can be conceptualized as a shared and currently indispensable cultural norm around which political talk coalesces at the interpersonal, local, national, and global levels, but which can be endlessly reshaped by discussion about what the good life and the good society ought to be. In this case, rights, like selves, might be conceived as a kind of narratively necessary fiction, a motif with which to tell each other politically powerful stories about justice.

This is the sort of understanding of technoprogressive rights talk that I'm inching toward. The problem with it is, something like "a woman's right to choose" loses much of its rhetorical strength with a denatured rights talk. So what to do?


Ryan said...

I am completely against the idea of "natural rights," and philosophically against the idea of rights being something other than a human invention.

Generally speaking, I am a utilitarian, and I think of rights in much the same way utilitarians speak of "rule" versus "act" utilitarianism. Rights are those things which society has almost always found upholding to be better for all involved than violating.

I don't really think they need any more justification than that, but then, "what works best" is my philosophy in general.

Tom FitzGerald said...

Your response dovetails with my own instincts: whatever theoretical commitments succor the sick and the starving, fine.

I still wonder how this plays out in disagreements over the nitty-gritty though. It's easy to come to a consensus that murder is bad, just because most people already think that and want to agree with you, but it's harder to argue for something like gay marriage on the ground that it's been tried and found to be better before it had been tried and before "better" (how and for whom?) has been defined to the satisfaction of all disputants.

I still both suspect and hope that your way is the way to go, Ryan, I'm just, as usual, a bit uncertain and flummoxed.

Ryan said...

Well, with an issue like gay marriage, one can at least perform thought experiments. I have yet to see anyone demonstrate any logical, coherent reason why gay marriage would be harmful to anyone, and it would obviously be beneficial to those lesbians and gay men who wanted to marry. In the absence of predicted difficulties, there is no reason I can see not to proceed with the experiment and confirm the hypothesis. And if, somehow, gay marraige ended up irrevocably harming straight marriage, we'd have to form a new hypothesis to test next time...

Ryan said...

Which is to say, I feel that rights and government are a constant experiment of trial and error.

Dale Carrico said...

I agree that "natural rights" aren't particularly appealing to those of us who think the "natural" is just an ideological project to render contestable customs apparently inevitable. But I think there is still an important place for rights talk. I think of rights as part of the ritual artiface of working democratic cultures, and I think it is helpful to think of the etymological connection between right and rite here.

Rights are like prohibitions, links between the various dimensions of our normative lives. Bans or prohibitions arise out of our moral normativity (morals, from mores, speak to the way in which norms confer belonging through operations of identification and disidentification), rights arise out of our ethical normativity (ethics take a form that solicits universal assent and confers legible subjecthood). Political normativity takes an ineradicable plurality of human aspirations as its point of departure and the ongoing contingent reconciliation of these aspirations as its end -- but inevitably draws on the forms and experiences of other normative modes to do important parts of its work.

It is true that once we relinquish the project to ground rights (claims of universal entitlement) in "nature" they become vulnerable to abuse or replacement. But presumably it was our realization that ascribing "nature" to the rights we hold most dear already actually fails to confer invulnerability on them that we were moved to repudiate the notion in the first place. It is difficult to see why we should mourn too much the loss of something we never really had -- and seeing clearly how fragile our rights are only motivates us to better secure them on terms that are actually available to us.

It seems to me we will still want to define a field of entitlements that formally aspire to universality and hence will be less likely to give way under the vicissitudes of politics and culture. Locating rights at the heart of law creates conditions in which the violation of the right threatens the edifice itself, and this does provide for right a real measure of security even if universality is never actually attained in fact.

Since self-evident truths are self-evident whether they are held to be so or not I have always taken that curious phrasing in the Declaration to indicate that the focus of the phrase was the connection of that "we" to the rights enumerated thereafter, rather than a grounding of rights in nature or the divine. That life, liberty, and the pursuit of happiness are self-evident rights is a nonsensical claim, inasmuch as its evidence was scarcely universally affirmed historically. What matters is the conjuration of a "we" who are defined by their shared assertion that these rights are self-evident. These rights are secured by the fact that their preservation is placed at the heart of the polity itself, so that to threaten them is now to threaten more than these rights but the polity itself.

Because rights are not self-evident, not underwritten by natural law nor nature's god, but only by the significance with which we invest them and the devastating costs we manage to connect to the prospect of their overthrow, it is key that we refrain from declaring entitlements a matter of right too lightly, too often, in cases too prone to ready displacement else we risk undermining the force of law itself.

Bans run the same risk -- and it is especially reckless to attempt to secure momentary respite from proximate technodevelopmental problems through absolute legal prohibitions, since, needless to say, many of these problems will wither in time, and the prohibition will come to seem absurd despite its formal assertion of universality, and hence legal prohibitions that deserve to remain absolute -- on murder, on torture, on lying under oath -- risk trivilialization by association.