fbpx

When Exactly Did the Idea of Rights Go Off the Rails?

It has lately become common to think that liberalism as a political theory is in crisis, but in fact the notion is nothing new. Liberalism has been, or has been thought to be, in crisis virtually from the moment of its origin. While various focal points might be identified, because liberalism is at its center a political theory of rights, a crisis in our understanding of rights must lie at or near the center of the problem.[1] 

Let’s start not with any of the big-name liberal political theorists, but with a figure who impressed the rights issue upon the popular imagination with a clarity and simplicity no mere intellectual could rival. Credit for this achievement goes to Detective Harry Callahan, as played by Clint Eastwood in the 1971 movie that made his character at once an American hero and anti-hero. At a crucial moment, Dirty Harry, through clenched teeth and squinty eyes, responds to a district attorney’s objection to the interrogation methods he has applied to the suspect in a particularly vile crime. Says Harry: “Well, I’m all broken up about that man’s rights.” 

There, tersely expressed, is our crisis about rights. Detective Callahan said more than he knew. In his own way, he really was broken up about rights. In related ways, so are we. Our understanding of them is fractured, and at least in part due to that fracturing, we see an increasing disdain for rights, in different sectors of the population in their different ways—a disdain indicative of a certain kinship, like it or not, with Clint Eastwood’s flinty detective. 

The Turbulent History of Rights

The career of the idea of rights has been a rollercoaster ride: a sharp rise followed by a steep plunge, then another sharp risebut this one featuring some harrowing turns, raising riders’ fears that the car at any moment might go hurtling off the rails. 

The sharp initial rise came in the 18th century. Although historians of political thought (notably Brian Tierney, Richard Tuck and, with a different emphasis, Michael Zuckert) have traced the origins of rights language deep in the Middle Ages, the idea of rights appeared on the political scene in a sudden burst of glory in the revolutions in America and France. The underlying political philosophy is best epitomized in the American Declaration of Independence, but the larger significance of this turn of events is perhaps best captured in the Gettysburg Address, wherein Abraham Lincoln implicitly characterized the United States as the Moses of nations, a new nation that would convey a new moral law to humankind. Thus was conceived the natural rights republic. 

Even as the ink was drying on the Declaration, however, powerful lines of criticism were forming. The first was theoretical: The idea of natural rights lacked a solid philosophic foundation, argued later modern thinkers, because the new science of nature rendered untenable any claim of a grounding in nature for moral principles. David Hume, radicalizing a strand of argument supplied by John Locke, the preeminent natural rights philosopher, set the critique in motion with his observation that no Ought-proposition can be inferred from an Is-proposition.

Further lines of criticism, practical and moral in character, are also traceable to a current of modern philosophy. We can assess the truth of a given moral proposition, Niccolò Machiavelli contends, not by that proposition’s correspondence to the intrinsic natures of things, but only by that proposition’s effects. It follows that rights can only be rights if they produce the right results. Rights properly understoodwhether they are claimed to be natural rights, or properties of all humankind, or only civil or political rights that are conferred with membership in a given political societymust produce beneficial outcomes for the entire class of those said to possess them.

One version of this reasoning is Detective Harry Callahan’s. For Harry, rights can only be rights if they enable the good guys to prevail; to the degree that a given rights-claim shields bad guys from the proper consequences of their badness, the claim cannot hold. Another version, eliciting greater sympathy among academics, traces to Jean-Jacques Rousseau and Karl Marx as well as to American Progressivism, and yet is remarkably similar to Harry’s. Natural rights as affirmed by classical, Lockean liberals cannot be real rights, according to this critique, since they yield the wrong results by enabling other classes of bad guys (propertied elites, capitalists, robber barons, malefactors of great wealth) to dominate various classes of innocent little guys (proletarians, laborers, would-be entrepreneurs, the average and forgotten man). Natural rights are said to be democratic and universal only by abstraction. John Dewey complained that “our institutions, democratic in form, tend to favor in substance a privileged plutocracy.” 

Over time, this charge of the partiality of purportedly natural rights issued in a still more radical and sweeping objection: The rights doctrine in its classic form is worse than oligarchic, it is altogether nihilistic. Natural rights, so called, cannot be real rights, now because they are destructive of civic obligation and are in the most profound sense dehumanizing. The representative bearer of these rights, the “bourgeois” who repelled first Rousseau and then Friedrich Nietzsche, was denounced as not only selfish and exploitative but as the very exemplar of moral declinethe figure who made security and comfort the overriding human priorities and thus portended the disappearance of genuine virtue or nobility from human civilization. 

The Present Crisis

Battered by these objections, the rights idea plunged into disuse for a time. Its second rise came after and consequent to World War II, as the enormity of the atrocities perpetrated above all by Germany persuaded world leaders to recommit to the securing of rights as a primary end of government. That is to say, the postwar revitalization of the rights idea as “human rights” was a reaction to an urgently felt practical need. It did not come pursuant to a theoretically satisfying response to the objections the idea originally elicited. Although the numerous human rights conventions adopted in the postwar era by the United Nations embody attempts to address the main practical (social democratic) line of critique cited above, these attempts rendered the rights idea far more problematic, both theoretically and practically, than was previously the case. 

The problem of theoretical foundations is greatly exacerbated in the human rights conventions.  The Universal Declaration of Human Rights (1948), as French philosopher and UDHR drafter Jacques Maritain acknowledged, represents a “practical agreement among men who are theoretically opposed to one another.” The patchwork solution was to ground human rights in a concept of human dignity, which we see in the Declaration’s Article 22: “Everyone . . . is entitled to realization . . . of the economic, social, and cultural rights indispensable for [one’s] dignity and the free development of [one’s] personality.”

The entire enterprise depends, then, on the idea of human dignity, which the Declaration fails to clarify or substantiate. This failing, as Michael Zuckert has observed, poses “a serious hindrance to identifying what follows from or is properly implied by such dignity.” 

From this primary difficulty, a second closely follows: If we lack a clear understanding as to why anyone is entitled to any rights, we must also lack a clear idea as to which rights are properly ours. If all have rights to goods deemed indispensable to their dignity and to the free development of their individual personalities, and if dignity and personality are conceived of as indefinite—thus as indefinitely malleable—then the result must be the removal of any limiting principle in the specification of human rights. Human rights must become capable of endless proliferation. So we find in the 1948 Universal Declaration, in addition to the civil and political rights entailed by the original natural rights idea, an array of “economic, social and cultural rights” including, among others, proclaimed rights to work, to just remuneration, to rest and leisure, to social security, to marriage, to education, and to participation in cultural life. 

If these, why not a host of others? In subsequent conventions, United Nations agencies have declared human rights to such basic goods as food, water, clothing, housing, health, and peace, along with more specialized goods including child care, Internet access, publicly funded higher education, protection against climate change, internationally assisted economic development, and more.

The trouble with all this is summarized in an observation by Thomas Hobbes: Where everyone has a right to everything, there can be no justice. Rights-claims cannot proliferate indefinitely without at some point becoming self-negating. The conflict among proclaimed rights in the realm of political economy has long been evident, and today’s familiar controversies on campus and in the courts, pitting the rights of speech, religious freedom, and association against identity-group recognition and claims of invidious discrimination, all provide additional corroboration of this point.

These conflicts expose a contradiction at the core of the lately ascendant ideas about rights. As demands for rights expand and intensify, and as the house consequently divides more sharply and angrily, a rights-claimant is shown ever more clearly to be a divided self, at once radically autonomous and radically dependent. 

In one aspect, the self-as-autonomous aspires to be radically free—a self comprehensively dissociated and unencumbered, rootless, formless, natureless, indefinitely self-creating, and in the end a creature of present impulse or idiosyncrasy (a caricature of Socrates’s caricature of the democratic man in Plato’s Republic). Yet in the other aspect, the self-as-entitled to all the goods requisite to freedom so conceived, appears as utterly needy and dependent on society, both for material support and, still more problematically, for psychic affirmation. In the fractured logic of human rights claims as they have developed since the close of the Second World War, an ethic of entitlement yields aggressive assertions of identity and demands that that identity be recognized, even as an ethic of autonomy dissolves the stability and continuity of self upon which the very possibility of identity depends.

It Was Not Doomed from the Beginning

Surveying, from our present position, the troubled historical trajectory of the rights idea, we may be tempted to conclude, with some prominent conservatives, that the present deformation of rights was fated from the beginning. It is a temptation we should resist. That the rights idea proved susceptible to partisan distortions does not negate the soundness of the original idea. Such distortions are inevitable in the course of political life; the causes of faction are sewn in the nature of man. As America’s Founders repeatedly observed, the most wisely founded of republican orders nonetheless require frequent recurrence to their fundamental principles.

The Founders were astute political thinkers, well capable of identifying weaknesses in the argument for natural rights. They were strong proponents of natural rights and no less firm in their rejection of doctrines of conventionalism, of low and narrow egoism, and of radical human autonomy. They saw no incompatibility but instead a salutary interdependence between natural rights and civic and moral virtue. 

It is possible, in the final analysis, that they were mistaken in these convictions. Yet it is incumbent upon conservatives more than anyone to conserve all the worth in our inheritance that can be conserved. If we are to judge the rights idea by its effects, let us take a fair view of those effects. The natural rights republic that the Founders bequeathed us has yielded not only material prosperity but also liberty and a record of recurrent, spirited defenses of it, including hard-earned triumphs over some of the worst tyrannies in human history. It behooves us not to renounce that inheritance rashly but instead to consider their arguments with the greatest care, anew.

[1] This essay is adapted from the author’s presentation on a May 23, 2019 panel, “Launching Liberalism: Liberalism’s Foundations and Our Current Political Crises,” which was part of an event at Notre Dame University held in tribute to Professor Michael Zuckert on the occasion of his retirement. An expanded version of the argument may be found here.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 05, 2019 at 10:02:33 am

I especially liked the linkage of "radical rights - dependency" - a two sided coin of *base metal*, of course, even if one refuses to recognize both sides of the coin.

I offer, instead, a different coin: "rights - obligations". It would appear to be made of more precious metals and is more enduring.

read full comment
Image of gabe
gabe
on July 05, 2019 at 10:26:19 am

A key thing that has been missing, is a feeling for the way in which, as Schneewind noted, 17c and 18c ideas about natural jurisprudence had in the background the idea that claims about rights had to fit into an overall conception of how society would function. This was typically thought to be providential - in the sense that, once we worked out what rights people needed to have, in order to discharge God-imposed duties, then God had so arranged things that the overall social order which resulted would function well. Those of us who don't have this kind of faith in God, would need to take up the intellectual task of developing ideas about rights in such a way that action on the basis of them would produce good overall outcomes. The problem is that champions of rights today are typically not aware of the existence of this issue - let alone having any ideas about how it is to be addressed.

read full comment
Image of Jeremy Shearmur
Jeremy Shearmur
on July 05, 2019 at 11:37:26 am

The solution might be to reintroduce an idea from democracy as understood in antiquity. Namely, a citizen’s relationship with his government includes both rights and obligations.

Since Hobbes and Locke, the focus has been entirely on the citizen’s rights. But Aristotle emphasized a citizen’s obligation to practice virtue. A little virtue now and then would go a long way toward solving the current problem of too much focus on entitlement and group rights. Group rights, of course, are the grist of fascists and fascist wannabes. I could name names . . .

read full comment
Image of Brad Lyerla
Brad Lyerla
on July 05, 2019 at 12:38:59 pm

. . . .Rights preserve individual human dignity of people without reducing the human dignity of another. This is natural law and is self-evident. Humans are able to understand these without any special instruction or any book.
.
. . . .. . . . We hold these truths to be self-evident, that all men are created equal, that they are endowed [ ...]
. . . . . . . . with certain unalienable Rights; Among these are Life, Liberty and the pursuit of Happiness.
.
. . . .This declaration was an attempt to explain dignity more explicitly before the term dignity had developed much beyond religion. See as begins on https://johnsonsdictionaryonline.com/page-view/?i=591
. . . . . Dignity could be described by the right to live, do what one wishes in order to be happy. This is very close to the Declaration of Independence quoted above and would be relevant around this time of year.

1. There is no unalienable right to be married but a culturally senile SCOTUS protected this as Liberty instead of Dignity. (This was correct originalism but there is no individual right to get married, as this requires two.)
2. There is no unalienable right to abort. A culturally senile SCOTUS protected this as the right to privately decide and this was proper for a while but the expiration of this individual right was not adequately defined.
3. There is no unalienable right to look at free porn online but this was alleged by dishonorable Jimm Larry Hendren and an Eighth Circuit panel. This improper free speech holding is caused by the Reno v A.C.L.U. (1997) mistake.
4. The unalienable right to free individual speech was violated by the Citizens United (2010) mistake and Honorable Antonin Scalia apologised to me for this on February 26, 2015.

read full comment
Image of Curtis J. Neeley Jr.
Curtis J. Neeley Jr.
on July 05, 2019 at 12:56:22 pm

Oh, God, yet another academic bloviating on natural rights and invoking the reverend founding fathers.

As Gabe said, rights necessarily imply duties. As I say, rights can only be granted by the near unanimous consent of the governed. Natural rights identified enforced by the judiciary, bureaucrats or academics without reference to and over the objections of the governed is merely an exercise in tyranny.

read full comment
Image of EK
EK
on July 05, 2019 at 14:19:28 pm

I see the idea of rights as much older than you seem to suggest. The most foundation of our rights (the embedded in the U.S. in the Due Process Clause of the Fifth Amendment), comes from article 39 Magna Carta in the 13th century. And even this was not truly the origin of the idea of rights. Many of the rights we hold today (the right to vote, to stand for trial, to make contracts, to sue) are rights under the Roman Republic. So many of these ideas are 2000 years old.

There was a shift in the idea of rights. But that was the notion of where rights come from. Prior to this it was the King, Emperor, or government which gave the individual rights. It was the idea that rights came not from man but from God that fundamentally changed a lot of the idea of rights. And I don't mean this as a religious idea. In many ways the foundation of these ideas were built by Saint Thomas Aquinas, who really introduced the idea of natural law as distinct from revealed (or religious) law. While Aquinas didn't really focus on the natural rights aspects, it was a foundation piece for the idea of natural rights that kept natural rights from being religious rights.

But the idea of natural rights itself really started with the Levellers after the First English Civil War (by people such as John Lilburne, Richard Overton, and William Walwyn). The political movement called the levellers were born out of complaints against King Charles I. If rights come from the government, then the government cannot violate them, it can merely revoke them. But the levellers saw that there was something far more fundamental going on invoking the ideas of natural law by Aquinas. Sadly, Cromwell jailed the Levellers and established a religious government.

Locke appeared after the English Civil war and became very popular as someone who rejected the absolute power of the monarchy, but in many ways his arguments were very similar to the levellers before him. These ideas lead to the English Bill of Rights of 1689 which in many ways is the precursor to the American Bill of Rights. And it is true that American was founded based on these natural law principles.

The idea of consequentialism, that the ends justifies the means, has been around for a very long time. Both Aristotle and Aquinas discussed it. And probably the most well-known consequentialist is Machiavelli, long before the idea of natural rights even existed. These are not new ideas that formed to criticize natural rights, nor do they show that natural rights lack solid philosophic foundation. John Stuart Mill justified natural rights on the basis of utilitarianism, that natural rights leads to the best outcome.

I’m well aware of what Hume thought, but that doesn’t make him right. Ought can be derived from Is. It is usually demonstrated like the following: If you wish to build a house that doesn’t fall over you ought to do X. It is the nature of reality that determines what X is, and from that nature you can determine what you ought to do to satisfy the constraints of reality to meet your objective. We have objectives about society as well, and these objectives are constrained by the nature of reality.

It isn’t the idea of natural rights that “plunged into disuse” due to these criticisms, but that the progressive movement that arose in the early 20th century rejected natural rights. It saw rights as granted by government to the people, and as such could be expanded by government as it saw fit. As the progressive movement came to dominate the American government, the idea of natural rights did fall into disuse in America. But that doesn’t mean the idea was wrong, just that it was rejected at that time by the political leaders that were in power.

But yes, the progressive movement than had quite a problem in how to respond to Nazi Germany. If rights are given by government, they can be taken away by government. So what made the Nazi regime wrong under the idea of only positive rights? It is this that lead to the The Universal Declaration of Human Rights, by which the progressive movement tried to establish positive rights for all people, established not by any one government, but the coalition of all governments through the UN. Notice though, that it was still the idea of government granting you rights that was at its foundation. And there is the problem, as you suggest, why these rights and not others? Is there ever any end to “rights” when they are selected by man? How can all those “rights” ever be satisfied?

But these are not new ideas. They are the same ideas of the Tudor monarchy of absolute supremacy of the government. That rights are created and set by government. It is the same idea of positive rights under the old Roman republic.

I would go beyond just “not to renounce that inheritance rashly,” but to accept and embrace the idea of natural rights that our Founders saw and Abraham Lincoln brought forth. Only then can our government be truly a just and fair one.

read full comment
Image of Devin Watkins
Devin Watkins
on July 05, 2019 at 14:42:28 pm

If all political thought is but a commentary and exposition of Plato's philosophy then all discussion of human rights is but a commentary and exposition of Locke's. Locke's assertion that, as creatures of God, we have a right to "life, liberty, and property" was a defense against the state obligating the state only to provide a secure environment for humans to exercise those rights to provide for their own needs as their skills allow them.

read full comment
Image of George de Tarnowsky
George de Tarnowsky
on July 05, 2019 at 18:48:32 pm

Devin:

Glad you caught the fallacy of "ought" cannot be derived from "is".
What an insipid assertion.

read full comment
Image of gabe
gabe
on July 06, 2019 at 12:19:00 pm

It is worth noting the intellectual buffet which prominently features Hume, Locke, Rousseau, Marx, Machiavelli and Hobbes et al fails to note what Thomas Jefferson, as the foremost advocate of natural rights, brought to the table. It is almost as if Professor Myers was intentionally subjecting readers to a test of reason…for a reason.

One need only deeply consider the “Laws of Nature and of Nature’s God” as an actual scale rather than mere words to be debated. Few recognize that Jefferson’s aversion to religion but his adherence to the pure instruction, the Torah, explains his cut and paste bible and reflects an understanding of our Creator as an ineffable intellect providing a baseline of absolutes by which all things were to be measured. It is only in the context of an actual plan history makes sense; the uncommon sense of God guiding mankind.

“Secular historians live scrupulously, morally, righteously by the law of historical method but that method leaves us in vast darkness. It tells us that there are facts but does not tell us what they mean....We cannot take an honest view of human history unless we acknowledge God’s work through human kind in history." Arthur Link

read full comment
Image of Adler Pfingsten
Adler Pfingsten
on July 06, 2019 at 15:20:59 pm

LONANG was used by the ff's before TJ came around. All three of his idols wrote LONANG was Jehovah.

read full comment
Image of Oft
Oft
on July 09, 2019 at 08:34:22 am

Why is there no mention of Nozick here or no mention of the debate between moral realism versus the emotive theory of rights?

read full comment
Image of F. E. Guerra-Pujol
F. E. Guerra-Pujol
on July 09, 2019 at 14:10:59 pm

Nozick is primarily discussing issues primarily at a higher level building upon Locke and the foundational theories of rights. Also much of the discussion is about the history of the idea of rights, and Nozick's influence is only in the 20th century. I very much agree with Nozick, but he built upon the foundation of others.

read full comment
Image of Devin Watkins
Devin Watkins
on July 17, 2019 at 10:41:25 am

I liked the article, very interesting the information that you share with us.

read full comment
Image of Mary
Mary
on July 24, 2019 at 06:23:50 am

[…] Detective “Dirty Harry” Callahan said more than he knew when he expressed the idea that “I’m all broken up about that man’s rights.” — Weiterlesen www.lawliberty.org/2019/07/05/when-exactly-did-the-idea-of-rights-go-off-the-rails/ […]

read full comment
Image of When Exactly Did the Idea of Rights Go Off the Rails? – Kon/Spira[l]
When Exactly Did the Idea of Rights Go Off the Rails? – Kon/Spira[l]
on July 25, 2019 at 16:06:58 pm

The author and commentators taken one with another have confused 1. the determination of the Right, 2. the interpretation of this its determination and(with) 3. the realization of this Right (of its determination and interpretation).

You all guys headed by Peter C. Myers mistook them for each other.

1. The determination of the Right is the Idea of the Right;

2. The interpretation of this its determination is the numerous conceptions (notions) of the Right;

3. the realization of this Right (of its determination and interpretation) is the "visual representation" of the Right (e.g. at-trial procedure, etc).

These are all self-contained and self-existent descriptions of our reasoning. you must not have them mixed up. Here, You droped or misadjusted the logical connections between them.

1. To quote from it, "that rights can only be rights if they produce the right results". It completely wrong. He twisted up the story. Peter C. Myers got mixed the determination of the Right over its this realization, and/or vice versa. Therefore, the interpretation, as
the difference between them, is misconstrued (misunderstood). "That rights can only be rights" applies to the determination of the Right; "if they produce the right results" is represented by the realization of the Right; They both are not supposed to be in the same sentence. logically incorrect

2. To quote from it, "Thomas Hobbes: Where everyone has a right to everything, there can be no justice". Same logical error.

3. French philosopher and UDHR drafter Jacques Maritain acknowledged, represents a “practical agreement among men who are theoretically opposed to one another.” WRONG. No more than Defective Metaphysics.

4. "Another version, eliciting greater sympathy among academics, traces to Jean-Jacques Rousseau and Karl Marx as well as to American Progressivism, and yet is remarkablysimilar to Harry’s. Natural rights as affirmed by classical, Lockean liberals cannot be real rights, according to this critique, since they yield the wrong results by enabling other classes of bad guys (propertied elites, capitalists, robber barons, malefactors of great wealth) to dominate various classes of innocent little guys (proletarians, laborers, wouldbe entrepreneurs, the average and forgotten man)."

5. "The patchwork solution was to ground human rights in a concept of human dignity, which we see in the Declaration’s Article 22: “Everyone . . . is entitled to realization . . . of the economic, social, and cultural rights indispensable for [one’s] dignity and the free development of [one’s] personality."

6. "The entire enterprise depends, then, on the idea of human dignity, which the Declaration fails to clarify or substantiate. This failing, as Michael Zuckert has observed, poses “a serious hindrance to identifying what follows from or is properly implied by such dignity."

7. and so on and so forth
8. …

The content of the topic is of no complying with its Idea. The Article is kinda the ragpicker's disease. That’s it!
What a oldie!

Have a nice day....

read full comment
Image of Lucifer6th
Lucifer6th

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.