Toying with the idea of using your text as a send-off in the introduction to law course I teach at the beginning of September to put the start of their journey in perspective. Dunno if 1st year law students at my Fac have the capacity to grasp your text's implications, or just get over the shock from this "subversive" outlook and really start thinking about these issues. They're very young, and very north american. Looking forward to your next essay, maybe I'll get a better sense of how I can spin it.
Last week's essay was a bit of an attempt to do this, but I personally think it's going to take some kind of political/economic earthquake to change our current society into one that realises it has to work collectively if it is to survive. That may happen sooner than we think.
I've had some experience of trying to teach these ideas (although to a somewhat older student body). I've found three things to be helpful. One is to concentrate on ends, rather than means. After all, what are Rights, as texts, actually for? If students demand a first-class university education, I can just issue a statement, or even pass a law, that says all students have a Right to a first class education. Then what? Well, such an education may be a theoretical Right, but it requires resources and commitment if it's to turn into anything useful. To ask "what kind of a society would you like to live in" may be a better approach than "what rights do you want to have?"
The second approach is historical. The vast majority of thinkers before the twentieth century (and some later ones) would have entirely disagreed with our concept of Rights today. Were they all stupid? Who fancies themselves as a better philosopher than Aristotle or Hobbes? Even if you adopt a teleological view of the development of Ideas, you have to recognise that ideas change over time, as a function of power distribution.
Which leads to the third point. In my lifetime deconstruction has gone from being radically new to boringly familiar. Students will have at least some idea of it. But why should Rights not be analysed in the same way, What configurations of power have produced RightSpeak? Who benefits from it? Who is empowered and who is repressed? Why should Rights be the one subject where relativism doesn't apply?
This is great, thank you for your insights, I'm grateful.
Fully agree with all three points. I think the most fundamental is concentrating on ends. Yet, that's flying in the face of everything we do especially in academia now, with focus on building competence and skills while reducing the importance of grades.
Agreed also on the earthquake required for meaningful change. In line with your third point, maybe my students are ripe for the transition from Camu's Mythe de Sisyphe to L'homme révolté, going from absurdist relativism to grounding into morality.
Again, thank you very much, I'll keep your advice in mind.
Thanks. Thought provoking as ever.I was not aware of the Spinoza critique.
You may have read Hannah Arendt’s great commentary on rights in Origins of Totalitarianism. She argues that the only right that really matters is the ability to transact politically to ensure your interests are protected. Abstract rights without that make no sense because they are arbitrary and their protection has often failed. She quotes the existence of all sorts of rights that allegedly still existed under the constitution in 1930s Germany but were all flouted.
Through this logic she ends up agreeing with Burkes critique of universal rights. He argues that rights divorced from context are equally meaningless. Is it good that a Highwayman is free? I cannot know without context. This also points to the importance of history and continuity. The French Revolution literally was an attempt to rethink the world from scratch. Both Burke and Arendt would argue that this can never work.
In our own era this explains too the ideological conflict we are seeing. People who have the woke definition of rights have a similarly defined universalist world view that they want everyone else to “enjoy”. Just as with the French Revolution this is a recipe for internal and external war. Which is what we are seeing.
The woke groups want the world to embrace and promote rights associated with acts that were even illegal just a generation ago even in most western countries. Perhaps the change will come organically but to try to force it across cultures is reckless in the extreme. China and Russia are far more the pragmatists in international affairs right now versus the west, which is ideological. Maybe the west has always been like that, just with different ideologies, but in the past it had power. Which takes us back to your essay. Creating rights is ultimately a power game!
Thank you. I have to admit I haven't opened Arendt in twenty years now. I think she's over-rated, though still interesting. I'll follow that reference up. For the French Revolution, I suppose it has to be said that if you actually block all possibility of incremental change, you are pretty much bond to get violent change. I think the rejection by the Royalists of the 1791 Constitution, which would have produced something like a constitutional monarchy, made this inevitable.
Burke agreed with incremental changes and even praised the American Revolution and the 1688 English Revolution as reflecting ancient traditions. But the series of French revolutions in the 1789-95 period were clearly not that.
From a historical perspective, the ability of England’s constitution to evolve through 1688 and then the various Reform Acts has been contrasted with the apparent inflexibility of French pre revolution conservatives. It is a bit of an Anglo Saxon rendering of history but “flexible conservatism” as practised by the Whigs is one way that society can adjust to new forces without violence.
I read a couple of Arendt’s works this year. Found them tricky but rewarding.
Looking forward to your essay on answers. I think that enabling people to transact politically is a large part of it. But, of course, that is a right in itself that needs to be asserted. At the moment, anyone who disagrees with the approved narratives is being prevented from entering mainstream discourse in the west.
A key point you are making is that "rights" are paradoxical: more rights do not strengthen the individuals, but they simply arm whoever that has the power to assert such "rights" to justify their use of power over others. Beyond some point, creation of more "rights" paradoxically deprive people of "unspoken rights" that happen to be incompatible with them but just lack the power to enforce them. The vaguer (but more universal and "moral" sounding) the rights are, the more useful they are to the wielders if power. This is a paradox that entraps naive Liberalism: the concept of "human rights" probably did more to justify tyranny, death, and destruction certainly what the inventors of the notion could ever have imagined.
The only way to avoid this is to define rights, at least in practice, in a precise and constrained manner without reaching into (necessarily unlimited) moral declarations. This is the role of courts and the legal establishment. Whether this is "moral," it is not clear. The slavery question in early 19th century was kept at bay by treating the right to own and use "property"--in form of slaves--as something open to political debates that would precisely define its limits. Attempts by pro-slavery Supreme Court, among others, to declare it a "right" as often conceptualized today, imbued with moral and universal qualities, doomed the attempts to define its limits by politics. While slavery might be an odious example, it also does serve to illustrate competing notions of "rights," is it something open to politics and debates to constrain it, or is it something universal and unlimited that cannot be debated? The latter notion tends to be popular today and that seems at the root of the problem: wielders of power overreach and abuse, in the faith that the right justifies the might, and in so doing, the original "right" becomes discredited among it's victims. However, the extent of the discontent is not revealed soon enough, as the morality of the "rights" is beyond dispute. Only when the balance of power had swung so far in the other direction does the "debate" start and it can only commence with vitriol and violence for far too much anger was allowed to accumulate. This certainly was what happened with regards slavery in 1850s and the same fate may await a lot of "rights" that many people, especially in positions of power and influence, are sacrosanct. The only way to preserve (many of) them is to stay in contact with the opponents, those who bear the "cost" (in whatever form) and, even if informally, to constrain their practice. But this, of course, runs afoul of the popular notion of "rights," even if they know whom to talk to and are in position to both negotiate and impose limits on themselves and their "allies," which are hard to achieve even if possible.
makes me think of an extreme strand in legal jurisprudence called critical pluralism. You're absolutely right about the "stay in touch", contextualisation in community is essential.
Trying to add to your point, here's from Martti Koskenniemi, The Pull of the Mainstream, 88 MICH. L. REV. 1946, 1962 (1989): "Here is a final paradox: late-modern legal, social, and linguistic theory has taught us that rules, whether extracted from behavior or texts, are of necessity indeterminate. Thinking of human rights in terms of legal rules will extend indeterminacy into those rights as well. The secularization of human rights rhetoric involved in its becoming mainstream, then, may not be the best way to protect human rights. By remaining in the periphery, in the field of largely subconscious, private, moralreligious experience that defies technical articulation, human rights may be more able to retain their constraining hold on
the way most people, and by extension most states, behave."
Fascinating. I think this goes to the distinction I was making between "what should I do?" and "what can I get away with?" Moral norms may have their ambiguities and their imprecisions, but they are a whole lot easier and more effective than detailed rules that can't cover every case. Indeed, there not alternatives in any narrow sense: they're different modes of thinking.
I believe you're right. Maybe some additionnal parallels that again go back to your point: in canadian administrative law, there's this principle that whatever is not specifically regulated, or subject to constrains, is allowed, i.e. the sphere of freedom is defined by opposition to the law's reach.
Might be another manifestation of the dialectic you mention - that switch between what should I do to what can I get away with. Just a hunch, a possibility that appeared reading your post: could it have to do with the process of externalising the arbiter of what's right, from one's conscience to the state with monopoly over force, rulemaking and judicial sanction?
Maybe going a bit too far: in my area of interest, there was this debate in the 2000s, the Pardy-Ruhl Dialogue, about how to best protect the environment. The split was between extreme regulatory inflation on one hand, the kind of hyper-detailed legal frameworks you mention but in this case for adaptive management commensurate with ecosystem dynamics, and on the other hand an intentional, hyper-simplification of principled norms with rules as parsimonious as possible. You go over this in your most recent post I think, I'm convinced simpler is better.
Anyway, thank you very much for your reflexions, stimulating and illuminating, I enjoy reading your blog a lot.
A fine piece, as always. Many thanks. However the concept of rights hails from classical Rome, and an overview of its early history would strengthen, I think, your basic points. A decent alternative to a rights based perspective might be a needs based one, Marxism being an example of it. It has its own problems though. Common sense is too weak a base for such issues, for example it allowed slavery not too long ago.
Good, I eagerly await presentation of the some alternatives. Common sense comes to mind.
My 2c:
When someone starts in on their rights, or some abstract such as The Rights Of Man, I regret the absence of homes for those poor souls mentally unfit for living with the general population. IMO, the word right applies to what is done, or not, rather than to an abstraction owed one or owned by one, such as "my rights." It's all in the practice, not in the theory. A theory is neither right nor wrong, it is a theory. But a practice is either right or wrong. Put another way, everyone has the same rights, all of them, by virtue of being of the same divine origin, so whether one has this right or not is a trivial concern. We all got 'em all. But what we do, now there is where serious concern regarding right and wrong -- not rights -- is possible and even mandatory.
Toying with the idea of using your text as a send-off in the introduction to law course I teach at the beginning of September to put the start of their journey in perspective. Dunno if 1st year law students at my Fac have the capacity to grasp your text's implications, or just get over the shock from this "subversive" outlook and really start thinking about these issues. They're very young, and very north american. Looking forward to your next essay, maybe I'll get a better sense of how I can spin it.
Last week's essay was a bit of an attempt to do this, but I personally think it's going to take some kind of political/economic earthquake to change our current society into one that realises it has to work collectively if it is to survive. That may happen sooner than we think.
I've had some experience of trying to teach these ideas (although to a somewhat older student body). I've found three things to be helpful. One is to concentrate on ends, rather than means. After all, what are Rights, as texts, actually for? If students demand a first-class university education, I can just issue a statement, or even pass a law, that says all students have a Right to a first class education. Then what? Well, such an education may be a theoretical Right, but it requires resources and commitment if it's to turn into anything useful. To ask "what kind of a society would you like to live in" may be a better approach than "what rights do you want to have?"
The second approach is historical. The vast majority of thinkers before the twentieth century (and some later ones) would have entirely disagreed with our concept of Rights today. Were they all stupid? Who fancies themselves as a better philosopher than Aristotle or Hobbes? Even if you adopt a teleological view of the development of Ideas, you have to recognise that ideas change over time, as a function of power distribution.
Which leads to the third point. In my lifetime deconstruction has gone from being radically new to boringly familiar. Students will have at least some idea of it. But why should Rights not be analysed in the same way, What configurations of power have produced RightSpeak? Who benefits from it? Who is empowered and who is repressed? Why should Rights be the one subject where relativism doesn't apply?
This is great, thank you for your insights, I'm grateful.
Fully agree with all three points. I think the most fundamental is concentrating on ends. Yet, that's flying in the face of everything we do especially in academia now, with focus on building competence and skills while reducing the importance of grades.
Agreed also on the earthquake required for meaningful change. In line with your third point, maybe my students are ripe for the transition from Camu's Mythe de Sisyphe to L'homme révolté, going from absurdist relativism to grounding into morality.
Again, thank you very much, I'll keep your advice in mind.
Thanks. Thought provoking as ever.I was not aware of the Spinoza critique.
You may have read Hannah Arendt’s great commentary on rights in Origins of Totalitarianism. She argues that the only right that really matters is the ability to transact politically to ensure your interests are protected. Abstract rights without that make no sense because they are arbitrary and their protection has often failed. She quotes the existence of all sorts of rights that allegedly still existed under the constitution in 1930s Germany but were all flouted.
Through this logic she ends up agreeing with Burkes critique of universal rights. He argues that rights divorced from context are equally meaningless. Is it good that a Highwayman is free? I cannot know without context. This also points to the importance of history and continuity. The French Revolution literally was an attempt to rethink the world from scratch. Both Burke and Arendt would argue that this can never work.
In our own era this explains too the ideological conflict we are seeing. People who have the woke definition of rights have a similarly defined universalist world view that they want everyone else to “enjoy”. Just as with the French Revolution this is a recipe for internal and external war. Which is what we are seeing.
The woke groups want the world to embrace and promote rights associated with acts that were even illegal just a generation ago even in most western countries. Perhaps the change will come organically but to try to force it across cultures is reckless in the extreme. China and Russia are far more the pragmatists in international affairs right now versus the west, which is ideological. Maybe the west has always been like that, just with different ideologies, but in the past it had power. Which takes us back to your essay. Creating rights is ultimately a power game!
Thank you. I have to admit I haven't opened Arendt in twenty years now. I think she's over-rated, though still interesting. I'll follow that reference up. For the French Revolution, I suppose it has to be said that if you actually block all possibility of incremental change, you are pretty much bond to get violent change. I think the rejection by the Royalists of the 1791 Constitution, which would have produced something like a constitutional monarchy, made this inevitable.
That’s the trade off.
Burke agreed with incremental changes and even praised the American Revolution and the 1688 English Revolution as reflecting ancient traditions. But the series of French revolutions in the 1789-95 period were clearly not that.
From a historical perspective, the ability of England’s constitution to evolve through 1688 and then the various Reform Acts has been contrasted with the apparent inflexibility of French pre revolution conservatives. It is a bit of an Anglo Saxon rendering of history but “flexible conservatism” as practised by the Whigs is one way that society can adjust to new forces without violence.
I read a couple of Arendt’s works this year. Found them tricky but rewarding.
Looking forward to your essay on answers. I think that enabling people to transact politically is a large part of it. But, of course, that is a right in itself that needs to be asserted. At the moment, anyone who disagrees with the approved narratives is being prevented from entering mainstream discourse in the west.
A key point you are making is that "rights" are paradoxical: more rights do not strengthen the individuals, but they simply arm whoever that has the power to assert such "rights" to justify their use of power over others. Beyond some point, creation of more "rights" paradoxically deprive people of "unspoken rights" that happen to be incompatible with them but just lack the power to enforce them. The vaguer (but more universal and "moral" sounding) the rights are, the more useful they are to the wielders if power. This is a paradox that entraps naive Liberalism: the concept of "human rights" probably did more to justify tyranny, death, and destruction certainly what the inventors of the notion could ever have imagined.
The only way to avoid this is to define rights, at least in practice, in a precise and constrained manner without reaching into (necessarily unlimited) moral declarations. This is the role of courts and the legal establishment. Whether this is "moral," it is not clear. The slavery question in early 19th century was kept at bay by treating the right to own and use "property"--in form of slaves--as something open to political debates that would precisely define its limits. Attempts by pro-slavery Supreme Court, among others, to declare it a "right" as often conceptualized today, imbued with moral and universal qualities, doomed the attempts to define its limits by politics. While slavery might be an odious example, it also does serve to illustrate competing notions of "rights," is it something open to politics and debates to constrain it, or is it something universal and unlimited that cannot be debated? The latter notion tends to be popular today and that seems at the root of the problem: wielders of power overreach and abuse, in the faith that the right justifies the might, and in so doing, the original "right" becomes discredited among it's victims. However, the extent of the discontent is not revealed soon enough, as the morality of the "rights" is beyond dispute. Only when the balance of power had swung so far in the other direction does the "debate" start and it can only commence with vitriol and violence for far too much anger was allowed to accumulate. This certainly was what happened with regards slavery in 1850s and the same fate may await a lot of "rights" that many people, especially in positions of power and influence, are sacrosanct. The only way to preserve (many of) them is to stay in contact with the opponents, those who bear the "cost" (in whatever form) and, even if informally, to constrain their practice. But this, of course, runs afoul of the popular notion of "rights," even if they know whom to talk to and are in position to both negotiate and impose limits on themselves and their "allies," which are hard to achieve even if possible.
Thank you. That was a very interesting comment, with much of which I agree.
makes me think of an extreme strand in legal jurisprudence called critical pluralism. You're absolutely right about the "stay in touch", contextualisation in community is essential.
Trying to add to your point, here's from Martti Koskenniemi, The Pull of the Mainstream, 88 MICH. L. REV. 1946, 1962 (1989): "Here is a final paradox: late-modern legal, social, and linguistic theory has taught us that rules, whether extracted from behavior or texts, are of necessity indeterminate. Thinking of human rights in terms of legal rules will extend indeterminacy into those rights as well. The secularization of human rights rhetoric involved in its becoming mainstream, then, may not be the best way to protect human rights. By remaining in the periphery, in the field of largely subconscious, private, moralreligious experience that defies technical articulation, human rights may be more able to retain their constraining hold on
the way most people, and by extension most states, behave."
Fascinating. I think this goes to the distinction I was making between "what should I do?" and "what can I get away with?" Moral norms may have their ambiguities and their imprecisions, but they are a whole lot easier and more effective than detailed rules that can't cover every case. Indeed, there not alternatives in any narrow sense: they're different modes of thinking.
I believe you're right. Maybe some additionnal parallels that again go back to your point: in canadian administrative law, there's this principle that whatever is not specifically regulated, or subject to constrains, is allowed, i.e. the sphere of freedom is defined by opposition to the law's reach.
Might be another manifestation of the dialectic you mention - that switch between what should I do to what can I get away with. Just a hunch, a possibility that appeared reading your post: could it have to do with the process of externalising the arbiter of what's right, from one's conscience to the state with monopoly over force, rulemaking and judicial sanction?
Maybe going a bit too far: in my area of interest, there was this debate in the 2000s, the Pardy-Ruhl Dialogue, about how to best protect the environment. The split was between extreme regulatory inflation on one hand, the kind of hyper-detailed legal frameworks you mention but in this case for adaptive management commensurate with ecosystem dynamics, and on the other hand an intentional, hyper-simplification of principled norms with rules as parsimonious as possible. You go over this in your most recent post I think, I'm convinced simpler is better.
Anyway, thank you very much for your reflexions, stimulating and illuminating, I enjoy reading your blog a lot.
A fine piece, as always. Many thanks. However the concept of rights hails from classical Rome, and an overview of its early history would strengthen, I think, your basic points. A decent alternative to a rights based perspective might be a needs based one, Marxism being an example of it. It has its own problems though. Common sense is too weak a base for such issues, for example it allowed slavery not too long ago.
Good, I eagerly await presentation of the some alternatives. Common sense comes to mind.
My 2c:
When someone starts in on their rights, or some abstract such as The Rights Of Man, I regret the absence of homes for those poor souls mentally unfit for living with the general population. IMO, the word right applies to what is done, or not, rather than to an abstraction owed one or owned by one, such as "my rights." It's all in the practice, not in the theory. A theory is neither right nor wrong, it is a theory. But a practice is either right or wrong. Put another way, everyone has the same rights, all of them, by virtue of being of the same divine origin, so whether one has this right or not is a trivial concern. We all got 'em all. But what we do, now there is where serious concern regarding right and wrong -- not rights -- is possible and even mandatory.