"There is no fury like that against one who, we fear, may succeed in making us disloyal to beliefs we hold with passion, but have not really won." ~ Judge Learned Hand
Functional Rights: The Elephant in the Parlor, Part II
Exclusive to STR
June 4, 2009
Part II: Rights are'
So what are rights? If there are none of these things, functionally, despite what anyone might claim, then what are they? How do they function in daily life? How are they exercised inalienably by every person everywhere that has ever existed, regardless of the government that claimed authority over them?
'Rights: Not granted or protected by any state, God or magical hoodoo monster. What we call rights are reciprocal agreements negotiated on the fly between individuals. They are not granted, but claimed and defended. Otherwise they do not exist.'
It's that middle sentence that is the key. 'Rights are reciprocal agreements negotiated on the fly between individuals.' Reciprocal means that the agreement is equal both ways. On-the-fly means they are adjusted to compensate for individual priorities and needs at any given moment. And they must be between individuals.
How does this definition work in the real world?
When you are walking down the street, you are exercising a set of rights. You claim a new space, and relinquish an old one. When you see someone walking towards you on a collision course, what happens?
Usually, both of you dodge, feint, indicate or otherwise try to avoid a collision. But there is a complete rights negotiation, agreement, and fulfillment with every interaction.
You take a step, laying clam to a space.
He takes a step, laying claim to that space. Direction and momentum indicate future claims to a conflicting space.
You acknowledge his claim of his right to walk down the street.
He acknowledges yours.
At that point, you have a reciprocal agreement with each other. You have a functioning 'right.' He has claimed the right to walk down the street and you have acknowledged it. In return, he has acknowledged your claim.
Now, you begin negotiating. He indicates that he will avoid the conflicted rights by stepping to his right. You negotiate that you will step to your right. You indicate this through body language, change in direction and momentum, or even verbal words, such as 'Excuse me!' Each of you negotiates while you are walking past each other how to exercise your equal, reciprocal right peacefully.
And then when you get the point where your agreement is fulfilled and each is able to pass peacefully through successful negotiation, there's a good chance you will smile, say thanks, laugh, or indicate a measure of success to each other.
This successful negotiation cannot happen unless each of you recognizes and respects the other's claimed right.
So what happens in our street-walking scenario if one of the parties does *not* reciprocate? What if your claimed right is denied?
You claim your right to walk on the street into a space.
He denies your claim, by not acknowledging your claim. You know this because he does not begin negotiating. He doesn't change direction or momentum, doesn't slow down, doesn't indicate he acknowledges your right in any way. At this point, you have several choices. Most of us, in this situation would abdicate the right to *that* space at *that* time and move to a different spot. The right to walk down the street has not been taken away, nor is your claim to it invalidated. But the conflict must be resolved. It was *not* resolved respectfully, because your claim was not reciprocated, but it was resolved without violence. If you are unable to avoid a conflict, the chances are good there will be angry looks, words, and potentially violence. Shoving through you into the space you had claimed is an act of violence. You could choose to defend your claim, which would mean resisting his attack in some way, perhaps verbal, physical, or psychological. Some people will even deal with this conflict by denying yet another person's claim to space, by pushing *them* out of the way in order to avoid the brute that is about to step on them.
But all of this pushing and shoving is not a function of rights. It is conflict resolution. Conflict is what happens when an individual's claimed rights are not acknowledged and reciprocated. Follow this through to *any* interaction between individuals. When their claimed rights are not reciprocated and acknowledged, conflict of some kind ensues.
When you are in your home, you claim several rights, including privacy and property. You indicate these by closing and locking windows and doors. When someone denies your claim, and actively seeks to violate your claims to privacy and property, they break in. You then resolve the conflict by whatever means you have prepared and are willing to use. Many people will simply let the property and privacy go at the moment and hope to employ someone for retaliation against the person who violated the claims later. Some will use tools to defend their claimed rights immediately. Others use various deterrents such as multiple locks and barking dogs--warnings that the claim will be defended violently if necessary, but still offering the opportunity to resolve the conflict peacefully.
How does this work between regular people and the enforcers of law who carry with them the magical justification of 'authority' backed by lethal force? When an officer pulls behind you, he's already indicating to you, by the nature of the literal signs on his car, that he may decide to deny the right to travel that you have claimed and exercised and are peacefully negotiating with all the drivers around you. When those lights start flashing, he has indicated that he intends to actively deny your claim. The reason you feel that knot in your stomach is because the moment those lights flash, you have entered conflict resolution. Your right has been denied and you are now in conflict with someone who may have a socially acceptable reason to do violence to you.
Now, your right to travel still exists to all those other people on the road. If you manage to resolve the conflict with the officer to a point where he restores his acknowledgement of your right to travel (at some cost, possibly) those other drivers each will acknowledge your claim. And your right to travel exists with all of them concurrently. In fact, it existed with all of them the entire time, it is only the officer who has denied the right and entered into conflict with it. His denial of your right is no different than if any other person were to deny it. Denying the claim to a right is exactly the same no matter who does it. The difference between a police officer denying your right and a carjacker is the execution of the conflict. The claim has been denied by either one, just the same. The difference is the conflict, the consequences, and social acceptability of how that conflict is resolved and the motivations for it.
Which leads to an interesting revelation about people in society; that it is acceptable to violate another person's claimed rights in defense of one's own. This is a concept that is universal to all higher life forms on this planet. Animals defend themselves when threatened or attacked. People do too. It is a natural, instinctual function of creatures interacting that violating a claim of life and property may result in violent defense and reprisal. It's important to note that, from an individual's point of view, in no case is defending against an attack unethical. Other individuals or groups of individuals may not agree, but to the individual, defense against aggression no matter what the reason or motivation is not wrong. Rights are reciprocal agreements between individuals.
Individuals may represent groups. They may stand together and speak a common sentiment. Any agreement reached between a group and an individual must necessarily become individual reciprocal agreements between each of the group members and the person. This is because each of the group members is also an individual and may, at any time, choose to deny the agreement or claim to rights. So even in the face of group demands or group claims to rights, rights are *still* reciprocal agreements between individuals. This may not be a thousand contracts signed, sealed and delivered, but simply setting an expectation against personal worth within the community that actions will not be taken to deny certain claimed rights. And therein lies the birth of 'liberties'; a claimed right that is publicly acknowledged and reciprocated by individuals in the community or society.
Conversely, a community or society may be actively hostile to certain rights, even if those rights are reciprocated and acknowledged by the individuals involved. For example, two men may acknowledge their right to choose a sexual partner, and may voluntarily enter into an agreement to be partners with each other. They have the right, because they have claimed it, reciprocated it, and exercised it. The community may not have agreed that choosing a sexual partner of the same sex is a liberty. That does not mean the right doesn't exist, only that many individuals in the community have denied or refused to reciprocate the right and may be hostile to the exercise of the right.
What is powerful about this functional definition of rights is that when an individual refuses to reciprocate a claimed right, they also deny that right for themselves. By refusing to reciprocate to other people the right to choose a sexual partner, they rescind any claims to their own right to choose a sexual partner. If they can dictate to others who can be partners, it can be dictated to them. This is ethically consistent and required if the individual does not want to be hypocritical about their rights. Making this known and public is vital to building a community on respect and peaceful interaction instead of domination and authoritarianism.
One of the sticky points people have when discussing philosophies of freedom and rights is the place of children. There is the desire to give liberties to children as rights, and opposed to that is the desire to protect children against any and all harm. Rights can be dangerous, particularly when rights break down into conflicts. Not to mention, simple interaction with the world is dangerous for those who are incapable of navigating it. Parents or guardians have the role trying to manage the balance between the rights their children claim, the liberties the guardians will grant, and the capabilities of the child.
There is some thought that rights and abilities are separate, that it is possible to grant rights to an individual incapable of exercising them. A person might announce that they support a man's right to have a baby, even though such a right is impossible to exercise. In the real world, that is just sophistry, a bit of mental masturbation. There are no rights a person can claim that are worth anything if they can't be exercised. It is simply impossible to claim the right to shoot a gun if you have no hands to hold it. And this is another reason why rights are not granted but defined by the individual, because it is the individual that will negotiate with other individuals how to exercise their right. No other individual is as qualified to make those negotiations.
Or at least, that's how we approach adults. As children are constantly developing, their capabilities are also developing. What cannot possibly be a right one day, can be a right the next, simply because the child has developed the capability. They understand rights at an instinctual level, and their entire childhood consists of building skills and using those skills to claim, exercise and defend rights. When a two-year-old insists, 'I dress myself!' and throws a fit when you try to oppose her, she is claiming the right. The function of the guardian is not to deny the right, but teach the child the skills to exercise it, and the best ways to utilize it in social settings. The guardian may instruct which clothes are appropriate for which situations, and let the child experiment. As the child learns, the guardian backs off, leaving the right to the child to exercise. And thus is born not only the ability to claim and exercise independence, but the seeds to respect other people's claims to right.
And this happens all through childhood, and indeed all through our lives. It is the guardian's job to teach the physical, mental, spiritual, and social skills to successfully exercise rights that the child defines for himself. So when a child expresses the desire to go across the street, we don't say 'no' unless that child has demonstrated they do *not* have the skills to exercise the right with a reasonable amount of safety and responsibility. If they do, if they know the rules and understand the risks, it is a right that should be respected. If they don't, then it is a right to be achieved, which is different than one overtly denied.
And therein lays the razor thin line that the guardian is always walking. It is a balancing wire trying to figure out exactly when a child has the capabilities to exercise a right and when they need more training. It's very unique and personal, not just for each child, but for each right they are attempting to claim. Guardians sometimes fall, sometimes fail, but those are also teaching lessons. Part of exercising rights is also exercising responsibility for failures and mistakes. Guardians, by exercising their right to raise a child, accept the responsibility for teaching how to take responsibility and correct mistakes and failures.
So children are not wholly adults, with all rights we tend to recognize in others, but they are not right-less either. They are on a learning path, a continuous graduation from the simplest of rights to the most complicated and dangerous. It is a path we are all on, every day of our lives. There is always some new right to find, to discover, and to reciprocate in others. There are new skills to learn, new abilities to explore to exercise old and new rights in better ways. Because rights are individual and subject to personal expression and exercise, they are constantly fluid, shifting and changing.
We each have the choice, every day, to decide if we will expand rights and freedoms in our community by reciprocating other people's claims or if we will deny rights and create conflicts. Neither way is a silver bullet to a good community or social harmony. There will always be rough patches, people who are trouble, and the potential for violence. Those never change because they are endemic to humanity. So each of us chooses to weather those threats and keep and maximize rights and liberties, or to destroy them in search of safety and control. Above all, rights are an individual endeavor. Each person claims, exercises, reciprocates, and defends the rights they hold dear. It is the foundation of civilized society to recognize the intrinsic value of each individual, and by extension the value of the rights they claim.
''Rights are reciprocal agreements negotiated on the fly between individuals. They are not granted, but claimed and defended.'
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, Part II