No man is an island, entire of itself.
Each is a piece of the continent, A part of the main. …
Each man’s death diminishes me, For I am involved in mankind.
Therefore, send not to know for whom the bell tolls,
It tolls for thee. —John Donne
The rights of man come not from the generosity of the state, but from the hand of God. —President John F. Kennedy Inaugural Address, January 20, 1961
With the world becoming increasingly divided into civilizational ‘large spaces’, (the BRICS* group); sovereign states ‘going it alone’, (e.g., Hungary, the United States); and long-established alliances breaking up under the weight of heavy-handed globalism, (e.g., the European Union [EU], the North Atlantic Treaty Organization [NATO]), the new buzzword of the age that is arising more than ever in political debates is the notion of human rights. This is especially salient in Europe, where “lawfare” and weaponized instruments in the hands of government elites are being increasingly used to suppress speech and disenfranchise citizens from having a say in the affairs of their societies. With these developments in mind, we need to revisit the notion of having inalienable rights, especially as expressed in the notion of natural rights and human rights. As I shall elaborate below, having inalienable individual rights is a meaningless abstraction, unless those rights can be expressed through civil society – through lawful institutions set up for that purpose.
* BRICS is the product of a number of nations that banded together, to form a multipolar world to counterbalance the ‘hegemony’ of the United States and “the West” (Europe and North America). It is an intergovernmental organization formed in 2001, and comprises ten countries—four of which are large, civilizational states – Brazil, Russia, India, and China. Diplomats of the BRICS countries meet annually at formal summits to coordinate policies.
The most basic of human rights should facilitate free expression. The very notion of citizenship** requires participatory expression. Participation applies not just to expression in the political milieu, but also to the entire civil society. As a citizen, one belongs to a place. In ancient Greece, the philosopher Aristotle identified that place as a polis, a ‘city.’ Aristotle, within his own lifetime, saw the multitude of independent Greek city-states become submerged in the Macedonian empire of Alexander the Great. In modern times, instead of the Greek city-state, a multitude of small nations have their own challenges against absorption into a large nation. As a multipolar world is taking shape as we speak, e.g., BRICS, blocks of smaller nations are banding together under some common set of values. This grouping of ‘like’ nations into ‘blocs’, constitutes a separate civilization,*** in a world of civilizations – each operating in its own spheres of influence.
** Citizen refers to an individual person who is legally recognized as a member of a national polity. A body of citizens constitute a people. Peoples belong to distinct, demarcated geographic areas, sometimes referred to as the state, to others as the nation, and to still others as kingdoms, republics, and empires. Under all the foregoing, each citizen has rights, but also obligations. [From French cite, ‘city’; citoyen, citizen.]
*** Civilization is an organized culture encompassing many communities, often on the scale of a nation, geographic region, or a people bound by some sense of shared values and vertical aspirations towards that which is boundless. Civilizations also have a temporal and normative dimension. They are described by historians as reaching a certain stage of development, such as the Bronze Age; or to describing a system of social, political, or technical development. [From Latin cīvīlis, cīvis, citizen]. See also ‘civic’, [from Latin cīvicus, cīv(is), citizen.]
RIGHTS AS RIGHT
A right is an entitlement – a privilege – possessed by an individual, that is protected against interference or interruption by others, so that one may enjoy the practice of that right, freely and undisturbed in its exercise, subject only to limitations of the moral law and ordinary common sense. A right inheres in a person, qua person. It is not bestowed by the state. For example, a right to freely speak on issues of the day enables salient issues to be discussed and talked about, in which various viewpoints can be aired and heard. However, even this right has limits. Under certain circumstances, the right to free speech does not include the freedom to wrongfully libel and slander another.
Rights, as I shall elaborate below, broadly and necessarily consist of two fundamental concepts – justice and fairness. In one sense, rights are just and fair in that they are usually considered appropriate, correct, fitting, and proper. This is often manifested through conformance to law or morality. In another sense justice and fairness requires rectifying an unfair or unjust condition. This is what lawyers refer to as “making one whole again,” or, more colloquially, “putting things right.”
When the justice system tries to ‘put things right,’ it recognizes that individuals can make claims upon society for denial of something that belongs to (or is possessed by) them, because of their nature. This ‘something’ is due to a person by custom, precedent, or tradition. For example, humane treatment due to the accused, is supported by moral principles; whilst the convicted is expected to make reparations or amends to right a wrong.
Thus far I have discussed rights as an entitlement, a due, a claim – that can be made on others and on society. When a right has been “taken” from an individual, the “wronged” individual has the prerogative to take lawful action to redress and rectify the harm or loss, by seeking reparations or restitution from another’s ‘unjust enrichment’. And if the “taken” right involves a crime, the police power of the state takes on the responsibility of securing justice for the victim through legal proceedings in criminal court.
Finally, there are a whole set of ‘rights’ totally “qualified” by the harm they produce. These are injustices that arise from asymmetrical economic relations – the primary injustice being that of usury. Usury is a vice that is also a capital sin, in that it begets other sins and vices, such as debt slavery, overcharging, and extortion. By qualified, I mean to say they are beyond good and evil – that such ‘rights’ are neither positive, nor negative. Rights that are positive, and those that are negative, are discussed below.
POSITIVE RIGHTS AND NEGATIVE RIGHTS
Distinction. Positive rights allow us to make claims against ‘others’; negative rights protect individuals against infringement and encroachment of personal rights. Another way to express the difference is that positive rights are those rights characterized by and described as ‘please do good things for me’, whilst negative rights are those rights characterized by and described as ‘do not do bad things to me’. Positive rights presuppose the existence of negative rights, which serve as the basis upon which a foundation of positive rights can be discerned, discovered, and established. The basic negative rights are protections of your life, liberty, and property from harm by others. Without life, liberty, and property, one has neither being, nor freedom, nor possessions. Negative rights ensure protection against threats to life; against infringement of one’s exercising rights to speak and worship, and against theft or seizure of personal property.
Negative rights restrain other individuals against personal intrusion and restrain state power against government overreach—limiting or outright forbidding the taking of actions toward or against rights held by the individual. In other words, negative rights are based on the freedom from coercion—by your neighbor or by the state. It requires others to abstain from interfering with your actions, and serve as guarantors for protections of your life, liberty, and property from harm by others through damage or theft. Negative rights include the right to not be hurt by others, and the right to express your views without censorial, burdensome interference. To secure these ‘negative’ privileges, a contrary duty requires that negative rights, such as the right not to be killed, implies a contrary right to life. Also, the right to possess, control or dispose of property, precludes one invading or trespassing upon the peaceable enjoyment of another’s personal property.
Negative rights are ‘negative’ in that they impose limits on one’s liberty. To enjoy a negative right imposes a contradistinguishing duty to refrain from, and not interfere with, the negative rights of others. This amounts to a right to privacy – the right to be left alone – with a corresponding duty not to intrude.
Positive rights give one the right to make claims against another person, institution, or the state for a good or service deemed essential for personal well-being. It requires the ‘other’ to perform a duty or act in a certain way. They are general rights given collectively to a category of people, fulfillable only through government action. Positive rights are based on coercion, the most obvious one being the right to tax, to fund, for example, K-12 education, in which no general substitute is available. It is usually the default mechanism for educational provision.
Positive rights, unlike negative rights, do not per se protect rights. A positive right is, invariably, a collective right. It ordains to institutions a duty, enacted in law, the responsibility to provide a specified ‘good’. A positive right is not necessarily a natural right discernible through ‘right reason.’ It need not be normative in the sense of a public policy goal. A positive right is akin to positive law, which is deductive and statutory—unlike natural law, which requires repeated trials to demonstrate a truth claim.
Positive Rights are invented; negative rights are discerned through the natural law and right reason. A positive right is a right to something, a claim upon society to fulfill that right. Positive rights can be seen operating in entitlement programs; they (beneficiaries, clients) make no claims upon the rights of individuals, but through the collective taxing power of the state. Instead of directly coercing taxpayers, the revenue generated amounts to a political redistribution of power and resources to those without the power to bargain for benefits for themselves.
A polity needs to recognize, within bounds, the negative rights one needs to secure before positive rights are enumerated. For example, if a child lives in an environment of insecurity, such as crime out of control, or environmental conditions that are harmful to public health, the right to an education will not be secured under such chaotic conditions. Unless negative rights are secured, there can be no positive rights.
INDIVIDUALISM AND INDIVIDUATION
As generally understood, human rights are considered to be that dignity that is possessed by an individual, apart from any social unit of norms or mores. To talk of individual rights as a mere possession, without any attempt to exercise those rights, reminds me of the parable of the ‘unfaithful’ servant that buried his one talent in the ground, without attempting to do anything. The servant gets excoriated by his ‘master’, lambasting the servant for his indolence and unwillingness to exert himself.
By ‘exercising’ rights, one takes on responsibilities, either out of a sense of duty or desire for rewards—as the “second servant’ in the parable has done in doubling the values of his talents. The first servant lost everything by not exercising his right to the one talent. The second servant, faithful and diligent, created value for his master.
The first servant is, and remains as, an individual who did not ‘express’ his talent in civil society through doing something useful, i.e., individuating with his one talent to set himself apart from the herd. The second servant applied her many talents to circumstances at hand, individuating herself separate from the crowd in doubling the value of her talents. Here she is exercising her “right” to growth, learning, and mastery.
There is also a type of person akin to the cowardly servant. It is the rootless, deracinated self, who rejects the past, and therefore must labor to construct her own identity, and choose her own values, independent of any formative institutions, such as the family, tradition, or custom. Without recourse to a particular tradition, forming values and a vocabulary of rights and responsibilities, time is wasted as arrested development. The ground upon which such a person exercises any rights, is not the terra firma of impervious hardpan, but the pervious soft soil that washes all away. Scrapping inherited first principles to develop one’s own does not facilitate human flourishing individuating into a sense of self.
Individuating outside a freely given and inherited tradition leads to isolation. In overcoming isolation, there is a set of other rights characterized as those that are possessed by individuals as a social mammal. The primary means of coming to know one’s rights, and exercise them in civil society, is through the most basic unit of society – the family. In belonging to a family, an individual (an ‘undivided’ entity) is identified by her role (position) in the family. As she ‘individuates’, she becomes known by the mask (persona) she wears, which distinguishes her from the rest of the family. She ‘individuates’ into a personal identity distinct from the rest of the family. She is no longer an individual who has to labor to construct her own identity. She becomes, as it were, a person.
HUMAN RIGHTS
The history of human rights had its genesis in the Greco-Roman world. Its best-known advocates were Seneca and the Stoics. After a long interregnum of decay, multiple invasions brought new faces and cultures into what had been the Roman Empire, changing customs from paganism to Christendom. Medieval schoolmen reinterpreted the Stoics in light of scripture through exegesis and dialectic. The Early Modern Period, and later, the Age of Enlightenment, oversaw a gradual shift from the authority of scripture to the notion of natural rights. Natural rights, it was thought, could be derived from natural law. Starting with natural law as an assumption (an untested belief in the power of the mind to shed scales of superstition), the philosophs believed that natural law could provide us with the ingredients that would not only ground their justification of natural rights, but as universal rights, applicable everywhere in every age.
When news of Nazi death camps became visible for all to see, it was very apparent that universal rights were too important to be left to interpretation by national governments. In response to this, one of the first actions taken by the newly-formed United Nations (UN) was to adopt the Universal Declaration of Human Rights (UDHR) in 1948. The UDHR serves as the basic law—the foundation of all international human rights law.
To specify what rights to be included in UDHR, the UN drew up two international covenants – the International Covenant for Civil and Political Rights; and the International Covenant for Economic, Social and Cultural Rights. Together they constitute the International Bill of Rights.
Civil rights consist of free speech, religious practice, the right to vote to elect officials, and to be secure and free from harassment against governmental overreach and persecution.
Political rights will vary from society to society, depending upon institutional strengths, social capital, citizen participation in making policy, and selection of rulers, directly or indirectly, by election, sortition, or by consensus.
A populace endowed with a strong sense of possessing abundant civil and political rights, empowers them to organize and take action to secure additional human rights. These additional rights include economic rights to necessities such as potable water and shelter; the peaceful possession of personal property; the right to sell one’s labor or goods under market conditions to the ‘highest bidder;’ the right to collective goods, such as education. The second additional right comprises social rights that are generally accepted under international law, such as equal protection under the law. and finally, there exists a category referred to as cultural rights—the right to preserve religious, ethnic, and one’s cultural heritage, including their unique forms of cultural expression.
Universal Human rights are not given by the state, nor can they be taken away by the state. They are inalienable, i.e., they cannot be taken away, except according to due process.
Human rights are indivisible and interdependent. They cannot be parsed out in a pick and choose matter, or through selective enforcement. Progress in civil and political rights are a priori, and can facilitate exercise of economic, social and cultural rights. Similarly, violating economic, social and cultural rights can negatively affect civil and political rights.
States, broadly speaking, have two main responsibilities under international law: first, they must refrain from interfering with, or curtailing, exercise of human rights; and second, they are responsible to protect and shield their subjects against human rights abuses—whether by external or internal actors, or by organs of the state itself.
An overall conclusion to be drawn from history is that with a world population of seven billion, there is no one way, no one path that can conflate a multitude of propositions on human rights into a single, workable definition of universal rights. No one size fits all. Varying climates, customs, traditions, histories, networks of nepotism, hierarchical structures, level of economic development, institutional strengths, and political stability – make it virtually impossible to agree on what ought to be universal. Perhaps this is where man needs to be humble – to recognize that attempts to universalize humanity can be deadly to identity and to the autonomy of cultures. An identity is shaped both by individual choices and a cultural milieu. Culture, meanwhile, is shaped by a people, by the state, and by guardians of culture. Culture does not exist in a vacuum. It manifests in hierarchy. Not only do hierarchies exist in every culture and society, but also hierarchies of rights exist in every society. These cultures, or cultural groupings, have rights, as well. They have common denominators that can rank order cultures according to ‘rights’ criteria. The rights of nations, indigenous peoples, religious bodies, etc., will be discussed in a future post.