The nature of rights

2 January 2010 by Jennifer

Are rights real? If so, what kind of real?

It’s possible I’ll be writing more about rights in the coming weeks, so I thought this could be a sort of foundation. It’s based on something I wrote back in May, in a discussion on one of the home ed lists.

To get a bit ontological…

The way I see it, the language of rights is a way for humans to communicate about what they feel/think/believe is most important.

Rights aren’t tangible things. They are facts like money is a fact.

If you have an apple in your hand, then even if everyone else disagrees with you about what an apple is, you can still eat it. Yum!

If you have a ten pound note in your hand, but everyone else disagrees with you about what money is, then it may not actually be a ten pound note any more – just a piece of paper.

Invention/creation

Humans haven’t always thought in terms of “human rights”. At some point someone invented that language, in order to convey something they felt/thought/believed was important.

After that, there were lots of conversations and negotiations and even fights, as people often disagreed but sometimes eventually agreed, until we have the metaphorical landscape we inhabit today. The ideas we have now of rights are the stories which people agreed on: perhaps usually because they seemed congruent with other stories we (some of us) value highly, like about the immanent value of humans.

Insofar as they are “real”, rights are real like money. Enough people agreed, such that in many situations you can treat them as real.

But because rights aren’t measurable like you might measure the dimensions of an apple, it’s not likely that everyone will agree about exactly what they are and where they come from.

(I think “human rights” do resonate with some partially hard-wired human capacities for empathy and fairness – at least in non-psychopathic humans – and one might hypothesise that that’s precisely why people have worked so hard to create/describe and uphold them. But e.g. some people would justify human rights by “that of God in everyone”, others wouldn’t.)

And people’s ideas of what rights exist can change.

In the field of “human rights” now, there might be somewhat of an illusion of stability: people have managed to achieve a “Universal Declaration”, so there’s a temptation to construe anyone falling short of it as “wrong” or “backward”, rather than the consensus as still evolving. But it’s clear at least that there isn’t universal agreement.

Holding and upholding

So, when we say we “have” rights, or talk about “having the right” to do something or other, in a way that’s only a convenient shorthand for our relationship with “rights”.

When we speak of “Upholding” or “Asserting” rights, that is i.m.o. more descriptive of the nature of them.

The US Declaration of Independence doesn’t say “These truths are quite obviously self-evident, as any fool can see, and there couldn’t possibly be any argument about it”. It says “We hold these truths self-evident.”

I.e. the people who signed it made a commitment to live their lives congruent with what they were saying. Like saying “This is where we make our stand”.

(Of course it was only white men they meant were created equal. It took other people later on to stand up for the equality of a lot of people they left out, and that process isn’t finished yet.)

That’s how rights come/came into existence. People spoke them into existence and upheld them over time, through language and action – sometimes paying high prices to do so, including death.

(“Uphold” in French is soutenir, from a Latin root also giving us “tenacious”, “tenacity”, “sustain” and “maintain”. Soutenir can also be translated “to defend”. Looking up the French, I also found tenir bon – “to hold one’s ground”.)

Legal rights

Legal rights are a subset of rights, having gone through a particular kind of argument to incorporate them into the legal system. But usually rights don’t get written into law until they’ve been at least partially accepted through non-legal avenues and conversations.

One way to put it is that the law is one of the main structures for holding our society’s current agreements about rights.

Often what we mean by “having a right” is “most people agreeing, plus a law”.

But laws can change. “Have” never means “Have and will always have, guaranteed”.

A precious inheritance

That’s my view of what rights “are”.

That’s in no way to say that human rights aren’t important.

I put in that disclaimer because sometimes people think it necessary to somehow prove them innate &/or God-given in order to justify them. That’s one story among many; personally I think that they’re important whether or not they were human-created, and certainly it’s taken human courage to activate them even if they were somehow innate in the first place.

It is to say that rights are more fragile and more in need of active upholding than they might sometimes seem to be. It is to say “Where we have this precious inheritance of agreement, which people worked so hard to create, don’t lose it by failing to recognise that its existence is maintained by people upholding it.”

To speak is to create

And in debating the nature of rights (such as for instance “children’s rights” and “parents’ rights”), I think it’s important to recognise that this conversation itself is part of creating and upholding the rights we speak into existence.

Because of the nature of rights as language-based, every time you talk about them, you’re also taking part in a tiny increment of creating or maintaining them – or altering/demolishing them (e.g. when you say someone “shouldn’t have the right to…”).

In other words, any conversation about rights isn’t just an analysis of what is. It’s also part of creating what could be and what shall be.

Linky index…
The nature of rights
Invention/creation
Holding and upholding
Legal rights
A precious inheritance
To speak is to create