Thinking About Rights Again

"Natural rights" aren't particularly appealing to those of us who think the term "natural" just names an ideological project to render contestable customs apparently inevitable, usually to the benefit of elites. But, needless to say, I think there is still an important place for rights talk, so long as rights are construed as historical rather than natural. I think of rights as part of the ritual artifice of working democratic cultures, and I think it is helpful to keep in view here the etymological connection between right and rite.

Rights are like prohibitions, in that they function as links between the various dimensions of our normative lives. Bans or prohibitions arise out of our moral normativity (morals, from mores, speak to the way in which norms confer the sense of membership or belonging through operations of identification and disidentification), while rights arise out of our ethical normativity (ethics take a form that solicits universal assent and confers legible subjecthood). Political normativity, in turn, takes an ineradicable plurality of human aspirations as its point of departure and the ongoing contingent reconciliation of these aspirations as its end -- but inevitably draws on the forms and experiences of other normative modes to do important parts of its work.

It is true that once we relinquish the futile project to ground rights (claims of universal entitlement) in "nature" they are exposed in their interminable vulnerability to abuse or replacement. But presumably it was our realization that ascribing "nature" to the rights we hold most dear already actually fails to confer invulnerability on them that we are moved to repudiate the notion in the first place. It is difficult to see why we should mourn too much the loss of something we never really had -- and seeing clearly how fragile our rights are only motivates us to better secure them on terms that are actually available to us.

It seems to me we will still want to define a field of entitlements that formally aspire to universality and hence will be less likely to give way under the vicissitudes of politics and culture. Locating rights at the heart of law creates conditions in which the violation of the right threatens the edifice itself, and this does provide for right a real measure of security even if such universality is never actually secured in fact.

Since self-evident truths are self-evident whether they are held to be so or not I have always taken that curious phrasing ("We hold these truths to be self-evident...") in the Declaration to indicate that the focus of the phrase was the connection of that "we" to the rights enumerated thereafter, rather than a grounding of rights in nature or in divinity. That life, liberty, and the pursuit of happiness are self-evident rights is a nonsensical claim, inasmuch as its evidence has scarcely been universally affirmed historically. What matters is the conjuration of a "we" who are defined by their shared assertion that these rights are self-evident to them. These rights are secured by the fact that their preservation is placed at the heart of the polity itself, so that to threaten them is now to threaten more than these rights but the polity itself.

Because rights are not self-evident, not underwritten by natural law nor nature's god, but only by the significance with which we invest them and the devastating costs we manage to connect to the prospect of their overthrow, it is key that we refrain from declaring entitlements a matter of right too lightly, too often, or in cases too prone to ready displacement, else we risk undermining the force of law itself.

Bans run the same risk -- and it is especially reckless to attempt to secure momentary respite from proximate technodevelopmental problems through absolute legal prohibitions, since, needless to say, many of these problems will wither in time (especially whenever they really amount to problems of engineering rather than ethical quandaries), and the prohibition will come to seem absurd despite its formal assertion of universality, and hence legal prohibitions that deserve to remain absolute -- on murder, on torture, on lying under oath -- risk trivialization by association.