"The framers of the constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty." ~ Justice William O. Douglas
Functional Rights: The Elephant in the Parlor
Exclusive to STR
June 2, 2009
Part I: Rights are not'
'Rights' is a very confusing word, because it has been thrown around so often in so many ways and by so many people with different motivations. Almost everyone has a slightly different idea of the word "rights." So it is valuable to nail down a definition of what we are actually talking about. We must be aware of the differences between rights, liberties, responsibilities, opportunities, guarantees, contracts and privileges. Many people use rights interchangeably with some or all of these other words, but the word rights can represent something that is both unique from those other words, and universal to humanity. In order to do that, we first discuss what rights are *not*. Notably, a functional definition of the word 'rights' is not any of those other words, but something that is often related to, in conjunction with, or the foundation of those other words and their importance, thus the confusion.
Rights are not privileges. A privilege is something that someone else grants to you. They retain final control and decision over what kind of access, the duration, and the nature of the privilege. Importantly, the grantor of the privilege must also be the owner of what the privilege gives access to. I cannot grant you the privilege of entering someone else's home. It is not mine to grant. I don't own the home. But for my own home, I have the right to choose who to allow in my home, and what behavior they will engage while there. If they fail to abide by the terms of the privilege, the privilege is revoked, and I toss them out on their butt. Many people seem to believe that privileges are rights, that a right means someone else dictates who, what, when, where, and why of access. Privileges are not rights, because they are an invitation, voluntarily offered, and voluntarily agreed to, rescindable at any time by both parties. If you accept the privilege of entering my home on my terms, and come in only to find you despise me and my house, you leave. You decline the privilege at any time.
Rights are not contracts. A contract is an agreement between two entities to exchange goods or services within certain rules. Both parties agree to the rules, agree to the exchange, and then participate in the exchange. While it is possible to contract for the protection to exercise a right, the rights themselves are not contracts. So, for example, if I own a car, and that car is representative of my rights, the car does not cease to exist because I don't have a maintenance contract on the car. The contract doesn't define or create the car. The contract merely is a method of exchanging service. Likewise, rights exist whether anyone agrees to any exchange of goods and services for those rights. The right doesn't cease to exist simply because no one has promised it. To this end, the Bill of Rights is not a contract. It does not promise an exchange of services between government and citizens. It supposedly offers some protection to exercise rights. But it does not create them itself. It's just a piece of parchment.
Rights are also not guarantees. This one confuses many people because the Constitutional Bill of Rights was supposedly written as a "guarantee" that the government will do or not do certain things to people in the course of its duties. But a guarantee is an extended contract agreement. It is a promise of restitution should the guarantor fail to uphold his side of an agreement. When you get a guarantee on a product or service, the seller is making a promise that if the product fails, it will be replaced at their expense. Rights are not guarantees because they are not contracts either. The Bill of Rights does not promise any restitution if a right is violated, although the Constitution does provide for a method of seeking it. Restitution and compensation are aspects of contract, not an aspect of a right itself. Most importantly, the Bill of Rights cannot replace a right taken away. It did not create them to begin with, and thus cannot replace them. It's just a piece of parchment.
Rights are not opportunities. This is easily demonstrable but noting that every person has the right to defend themselves from violent attack, but that does not mean every person will have the opportunity. Likewise, every person has the right to enter into an agreement to buy a widget, but that does not mean a widget will be available to buy. Many people believe that everyone has a 'right' to food, clothing and shelter, and that by calling it a right, food, clothing, and shelter will always be available at every opportunity to provide it. What this really means is that no one can be denied the opportunity to seek food, clothing, and shelter, but no amount of words or even rights can ensure it will actually happen. Opportunities are really just the starting points of contracts. Opportunities are the openings people seek and find to engage in agreements and exchanges. The right to seek opportunities is inherent in each individual. There is no guarantee the opportunities will actually exist.
Rights are not responsibilities. Responsibilities are a voluntarily agreed obligation. When one enters into a contract to exchange goods or services, you take upon yourself responsibilities. Your responsibilities are to fulfill your aspect of the agreement. When you fail to fulfill you obligation, the agreement is breached. While people have the right to accept responsibilities, the responsibilities themselves are not rights. If the responsibilities are unacceptable, each person has the right to reject the contract, and by extension the responsibilities of the contract.
That eliminates all the aspects of contracts and agreements that are often confused as rights. Now we get meaty.
Rights are not really liberties, either. This one is tough because liberties in and of themselves are incredibly nebulous. Functionally, a liberty is a behavior or activity that is universally respected within a culture. Ideally, the Bill of Rights should be called the Bill of Liberties, as in, "these are the behaviors and activities that are universally respected within our culture, and we've written them down." Liberties vary from culture to culture, and even within subsets of a culture. Liberties are far more social constructs than they are governmental edicts, although they often overlap. In our culture, determining one's own marriage partner is a liberty. Seeking education is a liberty. Procreation is a liberty. Choosing and participating in a religion is a liberty. These are often confused as rights because the seed of any liberty is a right. In essence, a liberty is a right that has been publicly proclaimed and recognized within a society. Thus while all liberties are rights, not all rights are liberties.
Rights are not 'freedom from'' The most egregious misuse of the word 'rights,' however, is the idea that a right is a 'freedom from'; that a person has a right to be 'free from' second hand smoke, or 'free from' having to see homosexuals. These are not individual rights, but a sneaky way of re-labeling restrictions on other people's behavior preemptively. Many people are attracted to the idea because it is a way of eliminating many of the annoying behaviors of other people while still standing on the moral truncheon of 'rights.' But it is a dangerous place and a misrepresentation of rights. Simply replace the target of the 'freedom from' with something not so politically correct, and the truth of this stance becomes apparent. No one, for example, has a 'right to be free of those coloreds,' or a right to be 'free from those fatties,' or 'free from those automobiles.' When the target of a 'freedom from' is changed, it's easy to see it is not a right, and not a freedom, but an unjustifiable restriction on other people. It is a preference shrouded in a righteous mask.
And rights are not grants. They are not presents that one human can give to another wrapped in paper and ribbon. Governments are made of up humans, and if one human can 'grant' another human rights, then those two humans are no longer equal. One has more 'rights' over the other, by the fact that he can add or remove rights at will. Regardless of how this authority is derived, either by force, or declaration, or Immaculate Conception, or even popular vote, the idea that one or more people can create or deprive another of rights destroys the concept of rights as a valid political concept. There are, of course, many people who love nothing less than to destroy rights as valid political concept, because the idea of rights being universal, ubiquitous, and utterly equal is destructive to the people who would control others at any cost. When each person has the same core equality as any other person, it is far easier to question and challenge those who would order others around. Free people should never have the question, 'By what right have you done this?' far from their lips.
In Part II, what rights really are!
Scarmig has been active in libertarian, anarchist, and atheist movements since 1999. He is married with children living somewhere in the Texas Hill Country, and is also a moderator in the Strike The Root forum.
Functional Rights: The Elephant in the Parlor
A one sentence truth gebl'ht to four-thousand words.