Tuesday, February 22, 2011

Reframing Rights Language

The language of rights has become the predominant lingua franca of moral discourse in Western democratic regimes. Rights language is powerful language; indeed it is something of a ‘fighting creed’. At its best, it calls for a recognition that access to vital goods is being denied or hindered by agents or agencies that have no moral or political legitimacy to do so. There is strength in rights language. Perhaps for this reason in particular, it has become customary and even instinctive for persons to state their moral viewpoints or make their claims in terms of rights. This is most unfortunate for a variety of reasons.

Rights language tends toward the absolute and uncompromising despite the recognition by policymakers, lawmakers, and those who implement policy that rights claims must be prioritised and balanced with competing claims. Framing moral claims or aspirations in terms of rights does not automatically guarantee their legitimacy nor the capacity for other persons or institutions to meet a need. Such claims are frequently stated in conflictual or adversarial manners, sometimes justified, sometimes not. It is not surprising, therefore, that there is some resistance to an inflation in rights discourse for fear of the adversarial stances and seemingly irreconcilable positions we see in debates—such as those surrounding abortion—being extended to more areas. (Similarly, the adversarial and litigious culture of the United States is not one we desire to see transplanted in any way in Australia.)

The capacity for our society to have coherent moral discussion is in a bad state. Numerous philosophers, social theorists and theologians have provided various diagnoses of this reality in our pluralistic culture which pressures us to create an ostensibly neutral, supposedly ‘secular’ language. Human rights discourse appears to some to be just that. However, it is more likely that our instinctive leap to claim ‘rights’ for all and every moral or political aspiration is not access to a universal moral language so much as an attempted shortcut to getting what we need (or perhaps just want) rather than going through the difficult processes of moral argument and persuasion.

In looking for a reframing of ‘rights’ language, it is not my intention by any means to resist moves to see the poor and marginalised, the victimised or oppressed lose what rights they have or fail to be protected with rights they should have. I desire instead to see processes of deliberation and education that properly grounds rights and really do advance our aspirations to embody the ideals of the Universal Declaration of Human rights in its complex outworkings.

The social dimension of rights needs to be properly elaborated in any discussion. It has been rightly said that discussion of moral and civic responsibilities needs to be increased; though it is difficult to see how well this discussion can be encouraged in an individualistic culture where the assertion of a ‘right’ to ‘do what I like’ so long as ‘I don’t hurt anyone’ is paramount and what ‘hurt’ actually entails is unclear or hotly contested.

What exactly are rights? I suggest that rights are warranted claims on a commitment of a particular society or agency thereof to guarantee particular goods or prevent unfair restrictions to access them. We do not simply ‘have rights’ as ‘individuals’. We have rights in community with others committed to our mutual good. We can legitimately argue that there are rights that all human beings ought to have. In this respect we can call them ‘human rights’. In other words, rights do not trump moral argument or recognition but are their outcome. We recognise there are certain essential goods (such as particular kinds of freedom) that are essential for human flourishing. When we commit to guarantee access to such goods insofar as it is reasonably possible for us, these can be enshrined as rights. However, the process of social recognition should not be subverted by the mere claim of a (novel) right and enshrinement through legislative stealth. The place of cultural deliberation and social recognition must be upheld. If cultural deliberation is subverted through overreliance upon rights language, we actually undermine the discussions of common good required to create or sustain a culture that is truly committed to ‘human rights’.
Such concerns need to be at the centre of any ongoing discussion of the future of rights in our country. Any rush into expanding rights discourse that does not adequately deal with these difficult and problematic issues is ill-advised and may well lead ironically down a path of less concern for each other in our diversity and for those in serious need. Our responsibilities to help others must transcend ‘rights’ and reach for a higher justice. 


Rob Haskell said...

Good thoughts. I appreciate the move to "socialize" rights. But some doubts... I seems like the move has made the grounding of rights even more vague than it was before. Who has rights and what are they? How is this determined according to your definition? Another observation I have is that however you may construe it, society seems to me to be an ongoing conflict (or interaction) of individual wills. I'm skeptical of any approach that doesn't put that front and center. To me the way forward is to discuss the interface of disparate individual rights. This lacks clarity in most modern societies I'm familiar with (US, Canada, some Latin American countries). Most people are only interested in promoting the rights that directly impact them. This is also true of a lot of Christian policy making.

Ian Packer said...

Hi Rob – thanks for the comments.

What I’m attempting to do here is identify what is already going on when something is described as a ‘right’. Why is it given that definition? What does it actually mean? I don’t think particular rights themselves becomes vague in their grounding. But there is an inherent vagueness in talking abstractly.

That’s actually why it is impossible for me to answer your two questions:
“Who has rights and what are they?”
Asked abstractly, I can only say something (mostly unhelpful) like, “Most people who live in a society will have specific entitlements. And they will vary. Some might have none.”

OK. That didn’t help. But, actually, I can only answer that question in a specific location, a specific society. However, I can critique any society asking what rights particular persons ought to have. What are the rights that all citizens or people within certain borders ought to have? Or even, What rights ought all societies around the world grant their members? The Universal Declaration on Human Rights is confused in its philosophical grounding but surely on target (largely) with its list of rights that are appropriate to all human beings.

What I am saying is that rights come out of deliberations on the provision of particular goods within a society. Place an ‘individual’ alone on a desert island and it’s absurd to talk about possessing rights. Rights, in fact, don’t need to be socialised: they are inherently social.

With regard to society: yes, there are conflicts between individual wills but there are also shared goods which make any society possible, whether we have reflected on them or consciously assented to them or not. There are also other questions of power and of social institutions that lift this all well beyond the ‘contest of individual wills’ of liberal political philosophy.

While we should indeed discuss the relationship between different rights, we are hampered in that discussion in failing to recognise that ‘rights’ (which feel absolute) are rooted in particular goods – and questions of the good are more contextual, local and must be ‘graded’ in relation to each other. If we are not clear on what is behind a ‘right’, we are bound to fall back on a clashing of individual wills and the position that Alasdair MacIntyre calls ‘emotivism’.

To claim a right is to make a claim that you are entitled to something. And depending upon what that is, it could be under all circumstances or perhaps only particular circumstances. Entitlement is a social claim. Where does this entitlement arise? A prior commitment by another (whether another person, a social institution, or a person or persons in authority).