In a pure democracy, there’s always the danger that a majority will pass laws that harm a minority (or vote against laws that benefit a minority), and the minority will have no recourse. Suppose, for example, I decide it would be a good idea if all the people whose last names start with a vowel have to give all their candy to the people whose names start with a consonant. If the Consonant people are in the majority, they could all vote for such a law (Why not? Free candy for them!), and the Vowel people wouldn’t have enough votes to oppose them. What recourse would they have?
Here are some I can think of:
#1: Appeal to the Consonants’ sense of fairness or justice or “natural rights” or something like that: convince enough of them that voting against the Candy Law is the Right Thing To Do, even though it doesn’t benefit them personally to vote against it.
#2: Offer some sort of political compromise: You vote against the Candy Law, and we’ll give you something in return.
#3: Convince the Consonants that, in some big-picture or ultimate sense, the Candy Law really would be bad for them. The kind of society it would produce, or the side effects it would have, would not be good for the Vowels or the Consonants. (Maybe this overlaps some with #1).
#4: Threaten some kind of reprisals (protests, boycotts, violence, etc.) if the Candy Law is passed.
This has implications, not just for a “civil rights” issue like same-sex marriage, but for all sorts of other issues: taxation, and allocation of resources, treatment of special-interest or special-needs groups (like the disabled or the elderly), “smokers’ rights,” etc.
Perhaps a psychologist, then. The structure of our immune system has precious little to do with our rights, but our ability, for instance, to feel pain does. It would be an interesting discussion, but a hijack, to consider what parameters of intelligence determine what rights are inherent. I’ve often wondered about ethical discussions in cartoon universe with intelligent animals. The Lion King kind of touched on this, with Mustafa explaining why it was ethical for the lions to eat intelligent antelopes and zebras. And then we have Sherman’s Lagoon on the other side of the ethics.
I think the interesting discussion is the source of rights. I think I pretty much agree with you about how they are secured - which rights should be secured is another matter. In a sense, the Federalist papers and the Bill of Rights would be equally as relevant as the Constitution itself. The Federalist papers are the justification (like the Declaration) while the rights themselve were secured by a democratic vote. By that time the discussion had developed enough so that securing these rights was definitely the majority opinion.
OK, I see what you’re getting at. I was thinking more of an evolutionary biologist, who would be concerned with understanding the behavior side of human nature in light of our evolutionary past (someone like E.O. Wilson). But an evolutionary psychologist would be good, too.
I don’t follow the distinction between securing rights and deciding which rights should be secured. We secure them be deciding, collectively, that they are rights.
Even the most “activist” SCOTUS justice, when trying to determine if something is a right or not, starts with the Constitution. If rights are indeed derived from some source other than the people themselves, then we would set up some sort of learned tribunal to determine what those rights are and then tell us. Now, that might be a workable system, but only if those learned men were picked by the people, or their representatives-- in which case they could be dumped if the people disagreed with them. I just can’t see how you can disconnect the determination of rights from the democratic process without inviting potentially disasterous results. Can you?
Several. But chiefly that there is no such thing as a natural right that could not be better described as merely a characteristic. How could anything more than that be reliably derived from human behavior - unless, maybe, you introduce a creator and knowability thereof. I agree with your earlier statement that “but rights are secured by men, not given by God” because of my atheist bias. Also my bias against the idea that humans hold some special role in the universe and the idea of natural rights being universal caused me to stumble over your intelligent ants having different natural rights.
While understanding where our nature comes from is interesting, I’m not sure I agree that it has much to do with rights. If we had been created 6,000 years ago (or got dumped by aliens here) which of our rights would be forfeit? If we created a reasoning entity, perhaps a duplicate of humans, who could pass the Turing test, wouldn’t that entity have rights also? I’ve never understood the theist’s position that because God created us he has the right to squash us at will. The power, certainly, but not the moral right.
But if rights are inherent in some sense, then they cannot spring into being the moment the 50% + 1 voter votes for them. That’s when they become effective, sure. The Constitution buffers our rights, making it harder for them to be taken away - and added as a side effect - which is anti-democratic in the sense that a simple majority can’t quickly remove rights once given. However, as we’ve seen in the past six years, rights can effectively vanish if those in power don’t want to enforce them. Has our right to privacy really vanished because it is no longer secured as well as it was? Didn’t the right not to be enslaved exist before it was secured?
As a practical matter, it is as if the right did not exist until it is secured - but I have a hard time believing right spring up willy nilly, as opposed to existing until being recognized by our logicians and ethicists.
“Why We Don’t Vote on Civil Rights”. From the Religious Coalition for the Freedom to Marry, “a group of more than 700 clergy, congregations and faith-based organizations from 23 faith traditions, including the United Church of Christ, the Episcopal Church, the Unitarian Universalist Association and Reform Judaism.”
I’m just trying to emphasize that logic alone isn’t capable of determining human rights. You need to take into account that we are Homo sapiens, not Sapient Species X. So you take what we know about our species, and then use reason to determine what natural rights are-- ie, what type of social organization fits us as a species.
OK. Describe the system that you would like to use to determine what rights we have. I’m seriously interested in seeing how it might be done without the use of some type of democratic system. Let’s say that you have fully convinced yourself that “X” is a right. What does that mean if you are unable to convince anyone else?
You’re not going to get me to argue that human rights don’t stem from us being human. But there are surely rights that stem from our being sapient, and that all sapient entities would share them.
If I were a theist I’d answer - ask God. There are a couple of stages. The first is that there are rights that are inherent, even if no one knows them. Say we had the ability to copy our minds to another entity. We might see a right for the owner of the mind to control where it goes - but that right is meaningless to discuss until the capability exists, but is still inherent.
Moral philosophers, in whatever guise, argue for the determination of rights based on their existence. If they were totally uninfluenced by biases and environment, that might be good enough, but in reality they are not a totally reliable determiner of rights, so we’re thrown back to democracy in some sense. But not all are created equal - legislators, who don’t get elected solely on this, vote on rights, and Supreme Court justices get big votes. Where rights are voted on, as in initiatives, it is not clear that there is a lot of logical and ethical thinking involved.
In an ideal world all moral philosophers would agree, but in our world we stumble around rights.
But to get back to my original point, Jefferson and those who influenced him were clearly talking about inherent rights, since many of the injustices he lists were lawfully ordained. The signers might have called George III a tyrant, but he wasn’t by any modern meaning of the word.
And surely are some rights that we have which wouldn’t apply to all sapient species. That’s my only point-- you cannot use reason alone to deduce rights-- which is what you said earlier. You need to use empirical facts about H. sapiens to make a complete set of rights for us.
Lawfully ordained, but not democratically ordained. And men of that time all thought we had been created in some sense and that we were, not to be too obvious about it, “endowed by [our] Creator” with rights. But I don’t believe in a creator, so I don’t accept that I was given my rights by any extra-societal entity. Which brings us back to the question of how one determines what a right is. Each of us must determine that for ourselves, and so we must either agree upon what those rights are or accept that some group will impose on us its idea of what those rights are. There are no other choices.
Agreed. I think it could be reasonably argued that the DoI was a justification after the fact for those who had already made up their minds to break free from Britain.
Only in one instance-- every state has to have the same number of senators, and that can’t be voted away. But other than that, the amendment process is restricted only by our own collective conscience. It has to be a super-majority (2/3 of both houses of Congress and 3/4 of the State legislatures), but that’s it.
Ah. No argument about that - the evolutionary psychologist could provide the facts which the ethicist could base their fdetermination of rights on.
Not democratically elected by our standards, but neither was our Senate later. Still, far from an absolute monarchy. While I agree with you about the Creator, Jefferson, as a deist, was talking more about nature’s god, and I think one can argue that the rights come from our characteristics, not direct intervention by a deity.
Individual determination of rights without a logical or factual basis has some problem. We saw in the thread about the gay pride parade in Jerusalem that one faction felt they had the right to march, while another felt they had the right to keep the first from coming near them. So I agree that we must have someone adjudicate these rights, and this someone must have some basis for determining rights, and we’re right back where we started.
That’s its clear purpose. I think Paine’s essays convinced a lot of people also. That and the developing war made independence politically possible.
Natural rights describe duties that should be respected under all circumstances. “I believe that no one should ever be enslaved, even in circumstances where it is legal” is synonymous with “I believe freedom from slavery is a natural right”. Natural rights derive from the same source as any other “shoulds” whatever that may be. The phrase “natural rights” suggests that such rights are found in “nature,” i.e., that they can be derived objectively from some combination of empirical science, reason, and/or revelation. However, such is not necessarily intended by use of the term “natural rights”, although some prefer to use terms such as “human rights” to avoid such a mistaken inference.
Natural rights are sometimes described as “inalienable” because they describe what should be true, regardless of whether governments or individuals recognize it.
Civil rights describe duties that have been recognized in law. In the United States, freedom from slavery is a civil right. It may or may not be derived from a natural right to liberty (which would include freedom from slavery). Under current US legal theory, some laws (particularly those of the Constitution and the Bill of Rights) may imply certain civil rights without actually enumerating or defining them.
Whether marriage is a civil right depends on whether such a right is implied by existing laws. There is at least one school of legal theory which claims that under the Bill of Rights all truly natural rights (that is, ones that can be shown objectively) are de facto civil rights to be recognized by the courts. I believe that this is a minority opinion which has not been endorsed by the Supreme Court.
Whether marriage is a natural (human) right is a matter of philosophy and/or opinion, and apart from the position just described, has no more weight in legal matters than any other philosophical stance.
It’s amazing how many people are willing to consider destroying the legal institution entirely rather than allow it to be shared with same-sex couples. That, in the midst of rhetoric about marriage being “under attack” by “the homosexual agenda” and having to be “saved” from it.
It’s that sort of ignorant bigotry wrapped in the self-righteous guise of “majority rule” that the Constitution exists to defend against. The concept of fundamental, inalienable rights, not subject to override by transitory public opinion, isn’t in opposition to democracy, it’s what makes democracy work.
The basic question is how can we recognize a human or natural right. Given that, a secondary question might be what to do with it. For instance, access to health care might be considered a civil right in some societies, but not a natural right, and the revocation of this right, whatever you feel about it, would not be an indication that the society is inherently immoral. If you considered freedom from slavery a natural right, a society legalizing slavery would be much worse than one removing the right to health care.
Since we can’t really tell the difference, it is quite reasonable that there is no consensus about if the legal system can or should treat these rights differently.
So which side is trying to destroy the legal institution? Why not leave it the way it has been for hundreds of years and deal with ways in which gays couples are discriminated against in favor of married couples?
There are a couple of stages. The first is that there are rights that are inherent, even if no one knows them. Say we had the ability to copy our minds to another entity. We might see a right for the owner of the mind to control where it goes - but that right is meaningless to discuss until the capability exists, but is still inherent.