The concept of human rights, if not centered on some grounding principle, is a mere patchwork of inharmonious preferences that incoherently tribalizes people into a Babel* of mutual incomprehensibility. The defense of human rights needs a foundation of some substantial bedrock standard other than feeling or believing that some rights, or some people, are more important than others. Without a bedrock principle of rights for a people**, a single people often descend into factions of incoherence. Thus, the bellwether of human rights gets reduced to ‘soundbite’ ephemerides of shouting factions, to see who can yell the loudest and the longest in the contemporaneous peanut gallery. This is neither advocacy nor argument, but emotivism. Policy and reason get supplanted by raw emotions and feelings. There is no authority, secular or religious, as a fallback option. Without the notion of citizenship and belonging to a single people, or polis, society is stripped of legitimacy, and therefore is empty of meaning.
*Babel was an ancient city (cf. Babylon) mentioned in the Bible. The “Babelonians” endeavored to build a tower to heaven in a presumptuous attempt to reach the divine kingdom. For such hubris, God confounded the many builders by sowing confusion among them through the laying on of multiple, mutually incomprehensible languages among them. Babel’s attempt exemplifies pride goes before the fall. We are witnessing in our own day how international organizations are unraveling due to attempts to homogenize small, fissiparous peoples and nations into an unwanted, larger whole. Increasingly, interstitial peoples and small nations are unwilling to surrender their sovereignty, values, and identity to international bodies akin, in their view, to a modern Babylon of harlots, pushing agendas antithetical to, and detested by the enslaved peoples of the earth.
** As I have discussed in a previous post, (see Aristotle’s Impact on The Wisdom Tradition), the German language makes fine distinctions in reference to the individual qua human being or person; and to collectives of individuals—belonging, crowds, gatherings, etc.—which have nuances in meaning relevant to discussing rights possessed by ‘a people’, or by peoples, in general.
The German word Volk is probably the best-known English translation into German for people. Volk, however, refers specifically to people in a crowd, a populace; it also associates a people of a nation, often identified with an ethnos of a shared history, language, and sense of the sacred. In contrast, its English cognate, folk, refers simply to the common people of a society.
Volk is considered a particular spirituality associated with a group from which an individual forms his character and thoughts that constitute his being. If one becomes a naturalized citizen, then she is part of the Volk. Volk generally divides people into groups of culture, history, descent or language. The population of citizens is a Volk (i.e., das deutsche Volk). Volk never refers to a single person, but rather to the “common people”.
Another word for people is Bevölkerung. It is usually translated as ‘population’. It is used in reference to the resident population of a region (i.e., the European Union) or, more commonly, refers to all people temporarily residing in the nation, and includes refugees, migrants, and others unassimilated into the body politic.
Besides Volk, there is another German word related to Volk, that is, Leute. Like the English word folk, Leute is a collective noun, referring generally to people, especially to the common people, but not to specific groups of people, like the Volk. Leute, for example, can refer to a group of random people of different nationalities at a sports event. Leute may also refer to “intimates”, when talking about family or friends, such as Meine Leute.
Like Volk, Leute cannot refer to a single person. However, if there are two or more individuals constituting a Leute, each individual is designated as a Mensch. A Leute, is collectively, a set of Menschen. While Leute refers to a group of Menschen, a group of Leute, all which belong to a certain ethnic background, is related to the Word “tribe”. [see my previous post Families of Nations, which discusses collectives of persons beginning with the family, then civil society, followed by the formation of alliances, confederacies, etc., that rise to the level of a governing state or regional hegemon.] Mensch is more frequently used in its plural form as Menschen. When talking about Menschen, it is persons, not individuals, that appertain to its real meaning. The word Menschen properly refers to the individual as a person or human being. Individualism connotes freestanding bodies in isolation, apart from phenomenal society. Menschen consist of the beings belonging to the species Homo Sapiens Sapiensis.
Human rights assume that a person belongs to a larger group, a distinct land area, as a son of the soil. He belongs somewhere. That somewhere, is a place, or polis. It makes one a citizen of, and subject to the rules, promulgated by the ruler, in a hierarchy of obligations. The subject citizen owes something to the ruler. That something is allegiance to the state, and deference to the cosmic and moral order. These twin concepts—allegiance and deference—imply compliance with custom and obedience to law. Obedience, in particular, requires much more than following orders, which I shall discuss below.
In Plato’s dialogue Crito, the title character, in his “Speech of the Laws,” argues that obedience to the Law is the greatest good. Socrates agrees with Crito, but adds that obedience is more than compliance with rules and following commands. His version of law presents obedience in a different light. In obedience to law, he is in agreement with the law. But this agreement constitutes something more. It is a promise. With this promise, he makes an argument for obedience because of his agreement to live his life in subject to Athens’ laws. After all, Athens did not force Socrates to live in its precincts. Socrates was free to leave at any time. By choosing to stay in Athens with full knowledge of how the laws functioned, Socrates promised obedience to the laws. For obedience to be transmogrified into allegiance and deference to those same laws, it must involve more than conforming to custom and submission to rules. Obedience must comprise a readiness to respond, strengthened by considered behavior in his duties as a citizen, such as exercising the voting franchise; and obedience through considerate behavior by responding to others as a good neighbor.
Even in the most peaceful and orderly societies, living under a set of good laws, conflicts invariably ensue. Many conflicts arise between two parties over contesting, lawful rights. In some cases, the right of the individual may conflict with the right of a community, institution, or incorporated entity. All of the foregoing may and often have a conflict of rights with the state, but more often, among each other. The question to ponder and the issue at law when these conflicts arise is ”Who has the better claim?” For to judge a right as better than—or higher than—another right, requires rank ordering—from absolutely essential to moderately desirable—in a hierarchy of rights, rights that include not just human rights at the level of the individual, but also the rights of institutions, communities, and the state to defend culture, customs, traditions, and, in general, their “way of doing things.” After developing an understanding of a hierarchy of rights, then I will discuss whether a rank ordering of rights can be developed for a diversity of institutions constituting society.
HIERARCHY OF RIGHTS
Rather than simply attempting to rank human rights by some self-serving list of my own personal preferences, it would be worthwhile to understand what are those “goods,” i.e., rights, that are, a priori, necessary to live the good life.***
*** The American philosopher Willard Van Orman Quine (1908–2000) casts doubt on terms by which many philosophers and the “common man” use everyday language in tailored circumstances. He criticizes the overuse of such words as “good”; “the good”; and “goodness”, etc., because it has too many meanings in everyday discourse to be useful in clarification, analysis, and synthesis. “Good” is burdened with too many meanings to have real meaning, making it unsuitable for technical use, because it lacks “precise boundaries’’.
One way to imagine the scope of rights in a hierarchy is to envision a pyramid. You may remember such a pyramid from one of your college courses, likely from one of your humanities and social science courses, likely sociology or psychology. The pyramid was likely a depiction of Abraham Maslow’s Hierarchy of Needs—from the most absolutely essential to absolute fulfillment, which I will discuss below.
Starting at the base of the pyramid lies the foundation. It is the ground floor. Like all ground floors, the entryway has a directory, as it were, providing direction or guidance on how to ascend the pyramid. At this level lies the broadest categorization of rights that are, as it were, rooted in the soil. The foundation upon which all rights is based is the right to life. It is the bedrock upon which other rights rest. At the entryway of life, the most absolutely essential needs are biological, such as food and water. After our basic biological needs are met during our early years, a child looks to parents, sometimes to other relations, other times to neighbors—to protect her from danger or harm. From this attention she receives, the child is enveloped in a web of safety, finding stability and security in a predictable world. The “glue” that supports and holds the child in a web of safety is love—through social interaction and a sense of belonging that teaches her that the world is not a scary place and that there are people that she can “count on” in life. With a strong sense of personal worth that arises from belonging to a family and socialization with peers, she learns to value herself, her choices, and that of others out of respect for ‘the other’ and his choices. This is what Maslow refers to as esteem needs. With self-esteem comes the recognition that she ‘has what it takes’ to ‘actualize’ her being through a process of personal growth, fulfillment, and realizing her potential. Absolute fulfillment tops the pyramid, which narrows to a pointy peak, suggesting a rarefied and relatively rare achievement. Maslow refers to this as self-actualization, which is equivalent to the Zen satori of “knowing thyself” through realization of one’s many talents and potential.
Thus far I have talked about not just the rights of individuals, qua individual. A right, here, can be seen and summarized as to what is needed not just for a human being, but for human flourishing. All human flourishing is social in nature. i.e., we cannot “get on” in life without the support of others. This support comes not just from personal interactions, but through institutions, religious bodies, societies, and historic memory associated with “wisdom traditions.” (See previous post on Aristotle’s Impact on The Wisdom Tradition.) These “rights” belong to individuals in a corporate character, which often conflict with liberal notions of human rights. How to sort through this quagmire is discussed below.
RIGHTS OF INSTITUTIONS
While recognizing that individual human rights are important to a free society, they are not, as enlightenment thinkers have held, to be the pedestal upon which a society of human flourishing can be constructed. Believing that individual rights are trumps, they establish institutions that bypass civil society, in which the state relates to the individual – through offering Hobson’s choices, contracts, and entitlements, without the botheration of any “troublesome” intermediary institutions of civil society. This formulation of human rights is a deadly danger. The assumption that Enlightenment thinkers and their modern counterpart—Western liberals, take as a first principle is that autonomous individuals may freely choose their moral life. In reality, human beings do not choose their moral life. Everyone’s life is shaped by others, especially through “intermediary institutions.” Reality is that an individual is more than a human being; he is a social being. His tutelage into becoming a social being begins within the primary institution of society—the family. A family is thus a unit of liberty, intermediate between the minor child and the state. It has been held by the United States Supreme Court**** that liberty excludes any general power of the State to standardize its children. A standardized “one size fits all” form of compulsory education ordered by the state is an unreasonable interference with the liberty of the parents and guardians to direct the upbringing of the children. Parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable teachers and places. More importantly, the court cannot trump the rights of the family as an institution. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
**** Pierce v. Society of Sisters (1925)
Institutional rights. The rights of institutions in society are defined by the norms they propagate and the ethical responsibilities they uphold. These institutions, such as families, schools, governments, and businesses, play a crucial role in shaping the rights and duties of individuals within their communities. They establish and enforce norms that dictate what is considered right and wrong, guiding the roles, behaviors, and responsibilities of individuals.
The rights of these institutions are not only about protecting individual freedoms and ensuring equality but also about maintaining social order and ensuring that individuals’ rights and duties are respected. Institutions like the family, government, and education system have specific roles, norms, and expectations that function to meet the social needs of society. They are interdependent and continually influence one another, playing vital roles in the functioning of society and the lives of the people that inhabit them.
The ethical dimensions of social institutions, including human rights, contractual obligations, and the production of collective goods, are essential for understanding how these institutions operate on an ethical level. They establish and enforce norms that shape our collective understanding of justice, fairness, and moral conduct.
Institutions that do not respect moral values may lose their legitimacy and fail to function properly. Rights and duties are essential elements of any social institution, defining the relationship between individuals and institutions and reflecting the moral obligations that individuals owe to each other within the context of the institution.
SOVEREIGNTY
What belongs to a sovereign, by virtue of his office, entail “sovereign rights” and “rights of sovereignty.” They are not the same thing. The word “sovereign” is a much-used and abused concept in the discussion of human rights. It has been applied not only to the nation-state in its inherent authority to rule, but also to distinctly powerful heads of state, such as King Louis XIV of France, in his own self-description: “L’État, c’est moi”; “I am the state.” But the King of France, in the person of Louis XIV is not sovereignty itself, i.e., he cannot possess sovereignty, because sovereignty is a concept associated with an office of authority and power, not a person. Only a person, not an office, is considered the sovereign that rules.
A nation’s sovereignty derives its authority through identifying the governing authorities with the legal right to exercise power over a defined territory and population, coupled with and recognized by other sovereign states in their legitimacy to rule. Sovereign rights are a country’s specific entitlements or privileges. They are neither inherent nor granted. They come into being usually through negotiation, and sometimes through war. It may be partial or total. For example, a nation has sovereign rights over coastal waters up to twelve nautical miles. It is treated similarly to its land territory, such as sovereignty over its air space and its underlying seabed and subsoil. Beyond twelve nautical miles, a coastal nation has exclusive rights – not sovereign rights – to marine resources up to 200 nautical miles. When sovereign jurisdiction overlaps in shared international waters, sovereign rights to marine resources need to be negotiated through treaty.
Sovereign rights are the parts, the enumerated powers of sovereignty itself, and by implication, the sovereign. Sovereignty is the system of complete authority consisting of all elements interacting within the whole of a state’s jurisdictional control. The whole, i.e., sovereign, sovereignty, cannot be reduced to the sum of the sovereign rights of the parts. The delegation of certain sovereign rights to an external entity does not dilute the state’s sovereignty.
In some cases, non-state actors act as sovereigns in the void of governing authority. They “rule” by tribute and violence in a lawless environment characterized by “trafficking” of all sorts, from drug cartels to “the black market.” ***** They are all sovereign, in the sense that they are self-governing and independent of outside authority.
***** This is a common feature of “failed states” with a weak or non-functioning central government that can maintain order and enforce its writ. To wit: Afghanistan, Mogadishu, Somalia, Haiti, etc. Competing and regional warlords usually fill the vacuum, extorting tribute in a state without functioning governance—a Hobbesian state of nature.
SOVEREIGN RIGHTS OF PEOPLES
Contrary to the popular assumption held by ruling elites and much of the population in western societies, individual rights is not the trump card that settles the matter of who has priority in debates on human rights. Most non-western societies—and increasingly many of the nations of “The West”—especially in Eastern Europe, do not accept liberal (i.e., libertarian) values that glories in the unchallengeable rights of the sovereign individual. Liberalism is not a neutral ideology that claims to be a nonideological, objective referee that can adjudicate rights talk in every society. Liberalism is, in fact, not neutral in its assessments. Liberalism is itself an ideology. It is a belief about the individual person that reflects what scholars refer to as the unreconstructed self.
In liberal societies, the individual is unacknowledged and diminished, reducing him to an anonymous, indiscernible element. A fortiori, it makes him vulnerable to the influence of institutional power that manipulate him into acting on the agendas of self-serving, powerful elites. Without the protection of the institutions of civil society, esp. the family, the individual’s ability to bargain and to evaluate options is wholly asymmetrical in resistance both to mass movements and large commercial enterprises. That is the reason for a multitude of intermediary institutions, to guard against the individual in a liberal society getting crushed out of existence by larger entities. The ‘denuded self’ is thus left to succumb to the ravages of a mass democracy’s authoritarian tyranny. Carl Jung noted this tendency in his own time, speaking out against this power as prevalent in the West, as a threat paralleling the growth of communism. *** ***
*** *** The Undiscovered Self, by Carl Jung (1957)
The reckoning of the rights of institutions that clash with individual rights will hinge on who has the better claim to sovereignty. Institutions by their very nature are instituted to cocoon the isolated individual against other institutions that do not necessarily have the best interest of the individual at heart. Some institutions are characterized as authoritative, such as religious bodies. They make claim for the individual’s allegiance, furnishing him an identity comprising custom, historical memory, and tradition. They subsist in a hierarchy of values consisting of collective and communal rights in matters of culture and sovereignty. More on that below.
The end of history setting liberal, individualistic democracy as the unchallenged victor over all collective ideologies appears to be premature. Some scholars from non-western societies have promoted the sovereign right to be different. It is referred to as sovereign democracy. They distinguish a sovereign democracy from a liberal democracy as holistic, hierarchical, and, in its essence, constitutive of shared values. Only nations, peoples, and subcultures can claim the mantle to sovereignty. Liberal democracy, in their view, is, at best, only a form of partial sovereignty, as it consists of political parties organized around partial interests, for the purpose of attaining power. A political party that attains power through a democratic process need not govern by consensus, for it is assumed that majority rule does not require that winning parties consult or take into account the whole of the people, i.e., the nation. The nation, as such, assumes continuity with the past and with generations yet to be born. Rather than seeking consensus, political parties that attain power will seek to impose its will on the entirety of a society. Parties that lose elections are effectively disenfranchised.
Sovereign democracies, on the other hand, struggle against what they see as the cultural imperialism of the west. Their sovereignty consists of a metaphysical understanding of a society of shared values, whether secular or religious. Thus, they emphasize the right of the culture over and above the rights of the individual that is part of that culture. They challenge the universal pretensions of the West. Their sovereignty supports a genuine, “true pluralism” in differentiation – the right to be different – in culture, civilization, and society structured around a hierarchy of values, distinguishing them from Western mores on economics, liberalism, and ‘rights’.
Although there is much overlap, the sovereignty of peoples is distinct from the sovereignty of the state. A sovereign democracy has a sovereign right to guard and protect the nation—its people and its values—in holding steadfast to its multigenerational narrative found in its historical memory, and as expressed in its customs, traditions, and values. Lesser Institutions, in a hierarchy of a nation’s institutions, such as domestic dependent nations ***** **, ethnic, language, and religious minorities have institutional rights as subcultures within a national polity. Their relation to the state will vary, according to their own sovereign right to be different.
***** ** See Cherokee Nation v. Georgia (1831), United States Supreme Court case, on the rights of non-sovereign nations.
DEMOCRACY AND SOVEREIGNTY
During the days of the Roman Republic and in medieval Europe, the practice of democracy had its true genesis. In order to have a share in governing, an individual had to be part of a legal group. The right to participate in political, as well as economic life, belonged only to societies. Neither was open to the isolated individual.
The jus civitatis, or right of citizenship, did not take effect, except by the enrollment of the citizen in a craft, or in an officially recognized corporation. Here, democratic constitutions represent interests, not individuals. This precludes the practice of election fraud – the blind force of numbers causing attempts to ‘doctor the votes’.
In the next section, we turn to the state as custodian of aggregate rights, in the long-running battle of culture vs. individual Rights. We shall see that a strong, self-confident Culture constrains individual rights in a system of ordered liberty. Thus, culture’s ‘central idea’ of ordered liberty justifies authoritarianism through culture.
NATIONAL SOVEREIGNTY – RIGHTS OF THE STATE
The word state has a multitude of meanings, even when limiting its application to political philosophy and governance. I use the term state to mean, as written in the Second Amendment to the United States Constitution: “A well-regulated Militia, being necessary to the security of a Free State, …” The word state, as used here, neither refers to the nation-state, nor to a state as a political subdivision of a larger national whole. Rather, a ‘free state’ is assumed to be a polity of persons, residing in, and belonging to an area of jurisdiction which bestows on its citizens a number of privileges, including the delegated right to respond to defend themselves against insurrection and rebellion—with armed force, if necessary—when the “regular”, social order could not provide for this, which was fairly often. This presupposes that before one can talk about human rights, there must be a state of nature that consists of peace and order. It is this type of polity that defines the scope of the second amendment. [See my earlier posting, Toward a More Perfect Union: Two Views of Church and State, which distinguishes nation-states, federal states, states in a confederacy, and other governing terminology, such as states’ rights, state powers, etc.]
In reference to the people of a free state, the right of first response, and the higher authority of the local and state government—all such freedoms and authorities derive from “the people” as referenced in the raison d’être for the electoral college. [See my earlier posting, WHY THE ELECTORAL COLLEGE?, which list and delineate the advantages of the electoral college as a representative polity of a free people, rather than a collective tally of individual citizens.]
States have certain rights that may supersede and compete with the rights of individuals and institutions subsidiary to the state. In a world of over 200 sovereign state entities, there will not be universal agreement on what rights a state may possess over and against the sovereign individual, as well as other ‘civilizations”. We are entering a new epoch in which one set of human rights does not pertain to all. Instead, it is a world of “civilizational spaces” consisting of regional approaches, often encompassing dozens of nations in its civilizational sphere, bordered by other civilizations.
This effectively puts an end to globalism and international bodies that can trump national sovereignty. The sovereign is once again in charge. True sovereignty precludes compliance with international organizations, such as GATT and the WHO. Moreover, sovereignty returns to nations the right to structure its way of governing and organizing its polity; its means of choosing its rulers; the organization of its economy; its rules on granting asylum and discretion on protecting its border; and its right to enforce its laws within its borders.
RIGHTS IN CONFLICT
Human rights assume that certain “conditions of existence” have precedence over civil liberties and constitutional rights. These “conditions” precede and are a priori to the state. For one cannot live by bread alone; nor can one exist without food and shelter. These rights belong to a person, as of right, in his sovereign individuality. As a sovereign individual, he grows in maturity and level of understanding to attain a higher type of human right—to participation in society. We participate in society as citizens. Citizenship itself is a substantive human right. It reflects a belief in the intrinsic value of some aesthetic, ethical, or philosophical ideal, that facilitate human flourishing.
A human right is an expression of a value. It is attached to our human status as normative agents. However, tensions may arise as two seemingly “equal” human rights are in direct conflict. We witness this dilemma in the controversy between the First Amendment right to a “free press” and the Sixth Amendment right to a “fair trial”. Justice requires a free press to ‘watchdog’ judicial processes. But justice also requires the persons held in custody for capital crimes be judged in accordance with the facts and applicable law, without undue publicity and sensationalizing.
The press’ watchdog role is not without limits. Justice permits the press in its role to disseminate news. A citizen may exercise her right to speak at a forum. But a forum has procedures on the exercise of that speech, for example, at the podium into a microphone. She does not have the right to use a megahorn to express her views, or to speak out of turn, in ways that are injurious to public life. Being an activist to actively break up peaceable assemblies is no right at all.
Enumerated substantive rights, as in the first and sixth amendments above, are subsidiary rights derived from universal rights, for example, liberty in the former, fairness in the latter. Rights clashing is not the exception, but more often the rule. This requires adjudication to order rights in a hierarchy. This will not be a smooth process. To do this is a process of tradeoffs, keeping in mind what justice requires and what justice permits—but esp. what justice requires.
With Rights come responsibilities. Rights, whether substantive [the right to keep and bear arms]; or procedural [due process] involve correlative duties. For every right, corresponds a responsibility. It puts limits on the expression of the individual, and limits the power of the state. They are in a mutual and necessary relationship to each other. The nation has rights, distinct from the sovereign individual and the sovereign that rules. Under a system of liberal democracy, the ‘rights” agenda prioritizes the individual, dismantles and converts the Volk, the family, civil society, and institutional subsidiarity into parties and factions, which not only alienates citizens from each other, but also tears the social fabric, that national sense of belonging.
Should we then enact a ‘schedule of rights’ to separate the wheat from the chaff? To reduce human rights to a statutory inventory, list, or table is too precisian and formal. It reduces the human person to the sum of her rights, with an emphasis on legalism and compliance, rather than the ascent to ‘right’ livelihood, living by obligations toward others by being a good neighbor, or by aspiring to something higher. Let each nation and every institution choose to order goods and rights according to standards of human excellence, respecting that other societies and institutions in their infinite variety will choose to be different.