What are Rights for? Where do they come from? Including 2nd Amendment

Great Debates
21

And where do they come from?

Blackstone’s Commentaries, an authority on Anglo-American legal theory, describes the right to bear arms as one of the auxiliary rights created by society to safeguard the absolute rights of security, liberty, and property; safeguarding those absolute rights is, in his opinion, “the principal aim of society”.

Tl;dr version

“[T]he constitution […] established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. […] THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.”

Quote in full context (click to show/hide)

FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

THE absolute rights of man, considered as a free agent, endowed with discernment to known good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually fumed up on one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in a us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives, up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV, which forbade the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that favoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II, which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr. Locke has well observed) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

[…]

THE absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigour of our free constitution has always delivered the nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has fettled to it’s proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.

[…]

THUS much for the declaration of our rights and liberties. The rights themselves thus defined by these several statutes , consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.

I. THE right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. […]

II. NEXT to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct ; without imprisonment or restraint, unless by due course of law. […]

III. THE third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. […]

IN the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,

  1. THE constitution, powers, and privileges of parliament

  2. THE limitation of the king’s prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. […]

  3. A THIRD subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. […]

  4. IF there should happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances.

  5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

~Max

22

That is not quite accurate. Wile and ability are often at least as effective as strength. Smaller creatures are not always at the mercy of larger ones.

23

People have rights simply because they exist. Rights are not granted by the government, the collective, or anything else. On preview, pretty much what @Roderick_Femm said.

24

That is -a- point of view @D_Anconia, but it get back to first causes, and generally a philosophical (or deist) approach. The issues with most such approaches, in that rights are native and not derived from the social compact, is that it implies someone is the ultimate arbitrator of those rights.

Which is where you get into the weeds. Because many people then associate the ultimate source of those rights with a religious or philosophical source that are fixed in stone (often literally) forever. Thus rights cannot change or adapt as the societies that depend upon them do.

25

Regarding the previous two posts:

First, I would like to emphasize that natural rights are not the only factor that societies use to figure out how to regulate themselves. When billions of people are living in close proximity, there are also social needs that must be addressed, and to do so often means all members of the society voluntarily abrogating some of their own natural rights to some degree. This is how we get taxes, public education and social welfare, among other things.

The friction point clearly is for the society to decide what social needs must be resolved this way, and to what extent those natural rights must be abrogated to relieve those social needs.

Natural rights do not then cease to exist, they are voluntarily set aside by the society through mutual agreement*. Natural rights are discoverable through logic and reason; they are a fact of existence and don’t change. The things that change and adapt over time are those social needs mentioned above and how much members of the society are willing to set aside their personal natural rights to pursue them. Social needs are not the same as natural rights. There is no natural right to an education, or roads, or food to eat. The society needs at least some of those things to function, and the society has to decide which ones they need, how much they need them and how much of their personal natural rights they are willing to set aside in order to achieve them.

*This setting aside of personal natural rights can occasionally go too far, although one measure of a society where it has gone too far is one where people cannot express freely their opinions or their choices on these subjects; this means that giving up their rights was not a freely chosen option.

I am persistently using the term “natural rights” in this thread to emphasize the distinction between actual rights and the kind of social needs that lots of people are inclined, inaccurately, to call “rights.”

26

Of course this is your assertion. Your axioms include the idea that there is a hierarchy of rights, so of course it’s no surprise you can state it’s a fact they exist.

I believe there is no hierarchy of rights, with a certain subset that is magically fundamental.

27

As for my answer to the OP. Rights are the connective tissue that bind individuals to society and society to individuals. This tissue is a collection of written and unwritten “rules” that outline what an individual can expect to be able to do as a member of that society.

28

Would you be so kind as to present this, or at least an example of this, path of logical discovery so that we can understand the derivation of natural rights?

29

Magic and logic are rather different.

The advantage of the framework that I have outlined is that it allows for a meaningful definition of natural rights, and for a reasonable discussion of what and how much society’s needs might outweigh them. It also allows for a continuing evolution of the latter as societies change, without abandoning the concept of natural rights altogether.

The path starts with defining the nature of a fully sapient species, and what conditions are necessary for a member of that species to express and experience that nature. Some philosophers have included the rights to life, liberty and property among these conditions. In parallel is the principle that something cannot be a right for one member of that species that steps on the rights of another member of that species. This is the principle of equality of rights among all members of the species.

Let’s consider, for example, the right to life, which means (to me at least) the right to not have my life taken away unless my own actions have deprived me of that right. It costs nothing to anyone not to murder me if I meet that qualification. It does not step on any of their rights not to murder me. They may leave me alone at no cost to themselves.

On the other hand, if I say that the right to life includes that I must be fed by others if I can’t feed myself, then that does cost someone else something (food not being magically available) and therefore does step on their right not to have their possessions taken away. If the society decides that the hungry must be fed (which is a reasonable position to take) then the society should be recognizing that this need supersedes the absolute observation of individual natural rights, and that those rights still exist even when they are not fully exercised.

This is a bare bones beginning. I don’t think I have the ability to draw the line clear and unbreakable from the beginning to the end. What I want to present here is the concept that individual natural rights exist, and that the needs of any human society also exist, and those needs will have some conflict with some individual natural rights to some extent. From that we can have a fully open and rational discussion about where to draw those lines. As conditions change over time, so can the position of the lines.

This concept seems to be very objectionable to some. To them I would like to say that it cannot be true that someone else’s right to be fed or housed is an absolute claim on me, my time and my resources. I don’t want to live in a society where hungry people are dying due to lack of food. I also don’t want to live in a society where the needs of that society are so onerous that my life must be dedicated more to supporting other people than to supporting me and my family.

30

This is a very long way from correct. Every person imposes a cost on society (everyone else). We are all in nominally constant competition for te resources needed to survive/be comfortable. The cost of one individual murdering another is imposed by society, not by nature, and may either be lower or higher than the cost of leaving that other person be.

Rights are abstrached in a theoretical vacuum – we do not live in a vacuum but in an environment where every little thing we do (or do not) has an effect on one or more other persons. The quaifications you have included (“… unless my own actions …”) show quite clearly that the overall dynamism of the system make mathemathical-type reduction nonsensical.

And then there is your constriction of rights to a species. Nature itself shows that this tack is folly.

31

I am addressing human rights because the rights of other species are not really part of this debate, based on my reading of the OP.

This supposes a zero-sum situation. Resources are not static, they are created, occasionally by chance, but mostly by people. Before human action, most resources are only potential. There are some natural resources that are limited, such as land, although what kinds of land are usable to create value has certainly expanded over the centuries. Lots of people are able to live and thrive without owning any land, but I do think that careful attention needs to be paid to how land has been acquired. Water can be a limited resource in some areas, which is why the disposition of water also needs close scrutiny. Clean air is generally not a limited resource, as long as no-one is permitted to pollute it. Sunlight is pretty much beyond our control, but it can be affected by climate change, so it is a legitimate concern. Most of the things we think of as resources to support us and make us comfortable, however, are made by people.

First, you seem to be ignoring the cost to the individual murdered, which is my primary concern. To say that you might get something if you murder me is not the same as saying that it costs you nothing not to murder me. I hope you are not saying that there is a legitimate loss/gain calculation that can be made about murdering someone, that society should recognize. That is definitely a society I wouldn’t want to live in.

32

Except bears. They have the right to bear arms.

33

And this why debates on morality are so difficult. The axiomatic set is not only difficult if not impossible to agree upon in some cases the fact of its existence is denied. :frowning:

It’s also in our self interest to advocate for the rights of species other than our own. We might not always be the supreme intellect on the planet.

34

It is, yes, not a zero-sum game. It also is a zero sum game. The manifold vectors of reality are very non-binary and poorly described with simple syllogisms or neoliberal glibertarian boilerplate nonsense. Resources like iron, water or arable land are finite and have practical limits that all the technology, effort and inventiveness in the world cannot overcome, at least when deadlines and profitability are applied.

In the end, it is the rat’s nest of social and economic pressure and influence vectors that give rise to the need for a flexible structure of rights and responsibilities to help us navigate its complexity. And, as reality resists and confounds almost all attempts at imposing binarism on it, the more rigid the structure, the less effective it is.

35

If this is your characterization of what I have written, I congratulate you on its impenetrability and lack of meaning. And the word “glibertarian” is a first for me.

I can almost agree with this, but the difference is crucial. In my opinion, the structure of rights is static, while the needs of society are changeable and often in opposition to the structure of rights. I say this not to denigrate the needs of society, but only to preserve the recognition of natural rights even when they are being partially or temporarily set aside.

The issue of responsibility is something else again. To whom am I responsible, and why; and is that responsibility a positive one (i.e. I am responsible to do things) or a negative one (i.e. I am responsible to not do things) or both? I am much more likely to recognize or agree with a negative responsibility than a positive one. If I choose to vote for supporting food for the hungry because it makes a better society that I would actually want to live in, that is one thing. If the basis is that I owe it to the hungry to feed them, that I am responsible to solve their hunger, that is a very different proposition that is likely to lead to a society I don’t want to live in. And it is both unnecessary and undesirable as an “influence vector” to get the hungry fed.

36

I agree. When I hear people brag that we have the oldest continuously used constitution, to me that sounds like bragging that you have the oldest car on the road. So… liable to break down and leave you stranded at any moment? :wink:

A very interesting question I agree. Perhaps for another day.

37

What does it mean for a “natural” right to not be man-made? Does it imply belief in a Creator who defined said natural rights? Or do you see a non-supernatural origin for natural rights?

38

Right. I don’t see how natural rights that aren’t defined but us humans can make sense without a belief in a Creator, and even if that guides your (general your) moral beliefs I don’t think it is how we should run the United States of America.

39

Sure, I don’t think this conflicts with my definition. Rights are stories we tell each other, but different people can tell different stories, and the set of stories that ends up running the show is the one with force backing it up.

And of course, that our society values rights is a lucky break for us. A society whose central story is “the gods put us here so we could make human sacrifices for them every day” will not end up valuing rights, nor would one whose central story is “we all have a role to play, be it peasant or king; play it well and you will be rewarded in the next life”. Or at least, the rights they end up valuing will be very different from us.

40

Do you think guns in 2022 America protect security, liberty, and property? Does society allowing guns safeguard these rights?

If you believe it does, does it do so for everyone, or only for specific people? At what cost does it come?

In 2022 America do you believe guns are a net benefit, when viewed from the perspective of all Americans’ security, liberty, and property?

And to focus away from the guns, do you agree with Blackstone? Why or why not?