Society/Culture Rights. What are they? Where do they come from?

[Number37]

No, chaining someone up in 500BC was not an affirmation of the rights of all men to be free, it was a reflection of the fact that at that time a person had the right to own another human as a slave and treat them as a piece of their property.

A slave in 500BC did not have the same rights a person today currently has and I think anyone who makes that claim needs a serious reality check. You are talking pure nonsense.

If you don't chain them up, they run away. Whether you own them or not.

That's what the chains are used for. Denying their right to freedom.
Now I own you is the same BS as marital consent. A social construct to usurp an individual's rights.

Of course it's nonsense to you, you don't think anybody has any rights unless somebody gives it to them.

 

[Geelong_Sicko]

Inalienable means they cannot be taken away from you by other humans. This is clearly not true. If you believe in concepts like god, souls, afterlife however who endows you with rights, then whatever other humans try to do to you won’t matter in the long run.

True enough. I was getting the meaning of the word 'inalienable' mixed up. Happy to stand corrected on that

 

[Gethelred]

So they weren't equal?

If SS couples were equal to other couples and other couples had the right to marry, then so did SS couples.

By the time a law, any law, changes, we've long ago accepted whatever is being enshrined by that law.

If you read cases, many, if not all, of the cases where the law changes the judge will make statements to effect that it's time to reflect reality.
Often in those cases the judges will weigh up whether it is them or the parliament that needs to change the law to reflect reality.

Often judges will come up with all sorts of BS rationalisation for failing to change the law to reflect reality.
There was a case in England about someone inheriting the tenancy of social housing. A person could inherit the tenancy as long as they were 'family'.
A couple took in a child, looked after her for years, but never officially adopted her. Family was defined as spouse, child etc.
The judges were pondering the question of whether or not an officially adopted child who nonetheless had lived as family for many years, met the definition of family.
One of the judges said 'it would be an abuse of the English language' to say such a person could be classed as family.

The point is that it's BS, IMO, to suggest rights only start once enshrined in law.
Technically, yes. But IMO, that doesn't mean they didn't exist prior to being enacted into law.

Consider why we do not have a Bill of Rights.
Consider whether we would have more rights if we were to enact a Bill of Rights.
Would a Bill of Rights simply codify our existing rights or would we be getting new rights?

View attachment 844033

That question poses a legal argument, in which you're disputing a) the existence of rights in common law (basically, the rights as allocated by precedent, that can be overruled by legislation sometimes, but not always) and/or b) whether or not a right needs to be outlined completely (legally speaking) before it can be considered a right.

Just because the language is (frequently) unclear within legislative frameworks - of which the common law is one - doesn't entail that the decisions made by it are not binding. I would welcome a recognition of common law protections within a bill of rights, but that does not immediately connotate that these protections (rights) are not enshrined in legislation already.

In summary, your argument has failed somewhat; you are not 'creating' new rights, as these rights have existed and shaped since the time of the first decision which established the precedent; ergo, those precedents comprise the social creation of those rights. Prior to being shaped in this way, those rights did not exist.

 

[RobbieK]

If you read cases, many, if not all, of the cases where the law changes the judge will make statements to effect that it's time to reflect reality.
Often in those cases the judges will weigh up whether it is them or the parliament that needs to change the law to reflect reality.

The "reality" that these judges are trying to reflect is the fact that it would be a position held by the community that the law should be different to how it currently is, not that the law is different to how the law currently is.

In the case of rights, they would be making a judgment that the community holds that the currently excluded group should have the right they currently do not hold, not that they currently have that right but the law doesn't reflect that.

The point is that it's BS, IMO, to suggest rights only start once enshrined in law.
Technically, yes. But IMO, that doesn't mean they didn't exist prior to being enacted into law.

Now, I never said that it being enshrined in a formal law was the only way that a right could exist. I have made the point from my first post that a right requires a community to make a decision that the right exists and to create some sort of institution for enforcement. In the modern world that will almost always involve some sort of formal legal process, but it does not have to.

So, a right can exist before it is formally enacted in to law, but only if there is some other institution in place that secures that right. In the case of the things you brought up - Native Title, Same Sex Marriage, Marital Rape - that was not the case.

That's not what you are saying, though. You are saying that rights are some sort of eternally existing concept, such that a slave in chains in 500BC has the same rights as us today.

Consider why we do not have a Bill of Rights.
Consider whether we would have more rights if we were to enact a Bill of Rights.
Would a Bill of Rights simply codify our existing rights or would we be getting new rights?

We don't have a Bill of Rights because a Bill of Rights is not the only form of legal institution that exists to secure rights.

Would we have more rights if we were to enact a bill of rights? Maybe, it would depend on the content of the Bill of Rights. If it only codified our existing rights it wouldn't change things... but you do realise that our existing rights are all established by our legal system in common law principles and formal legislation, yeah?

 

[Geelong_Sicko]

Let's go back to 500BC before there was written laws bla-bla-bla.


Did a person back then have the same rights as a person today, to for example, not be chained up and used as a slave?
I'm going to say yes.
Chaining someone up is a acknowledgement that they have a right to be free and that you are using chains to deprive them of that right, is it not?

There really are no inalienable rights. That can only be if there truly WERE forces outside of humanity running the show. Many believe this to be the case but I don't.

All human rights are created, asserted, and defended by human agency alone. Same with the concept of justice. All administered through human agency. Or relegated to the realm of those other-worldly deities - only with particular humans to administer on 'their' behalf if we ourselves choose that option.

I believe, firmly believe, in a wide range of fundamental human rights, many of which were only realised through bitter struggle against an existing status-quo throughout our history as a species. Someone always dominates. Someone always subjugates. Rights disappear unless there are people with a knowledge of what is right, what is wrong, and what is just. They disappear unless there are enough people to stand up and FIGHT for them.

 

[RobbieK]

If you don't chain them up, they run away. Whether you own them or not.

That's what the chains are used for. Denying their right to freedom.
Now I own you is the same BS as marital consent. A social construct to usurp an individual's rights.

Of course it's nonsense to you, you don't think anybody has any rights unless somebody gives it to them.

If a slave owner in Rome chained a slave up it wasn't because they had a right to run away, it was because they could run away. They had legs, they could run.

So, we return to your conflation of natural right with natural capacity, which renders the word right more or less meaningless: you have a right to do the things you can do and no right to do the things you can't.

Of course, if a slave did try to escape, exercise this "right to freedom" you believe they had, they would be punished, possibly with death.

The institutions of the law at this time did nothing to guarantee a right to freedom. Indeed, they did the opposite, they recognised and enforced the slave owners right to treat slaves as property. The idea that a slave had the right freedom is a nonsense.

That the slave should have had a right to freedom is not in question. But by the logic you are expressing in this thread, if that slave in 500BC had been a homosexual and had a partner they would have also had the right to have that relationship recognised as a same sex marriage despite the fact that would not be something given any sort of institutional support anywhere in the world for another 2500 years.

 

[Number37]

That question poses a legal argument, in which you're disputing a) the existence of rights in common law (basically, the rights as allocated by precedent, that can be overruled by legislation sometimes, but not always) and/or b) whether or not a right needs to be outlined completely (legally speaking) before it can be considered a right.

Just because the language is (frequently) unclear within legislative frameworks - of which the common law is one - doesn't entail that the decisions made by it are not binding. I would welcome a recognition of common law protections within a bill of rights, but that does not immediately connotate that these protections (rights) are not enshrined in legislation already.

In summary, your argument has failed somewhat; you are not 'creating' new rights, as these rights have existed and shaped since the time of the first decision which established the precedent; ergo, those precedents comprise the social creation of those rights. Prior to being shaped in this way, those rights did not exist.

(A) There are existing rights that would go from being implied to explicit. (eg free speech)
(B) There are existing explicit rights.
(C) There are also other rights that would be new.


In relation to;
(A) a BoR would simply clarify.
(B) no real change
(C) there is really no end to the possibilities.

There has been lots of discussion in the decided cases about whether we can/should interpret the law on the basis of, for example, the Universal Declaration of Human Rights. Justice Kirby was always keen on going down that path and did so in a number of judgments (albeit minority dissenting judgments).

These rights are NOT a part of our laws. They are rights, however, that even the highest courts in our judicial system recognise as not being rights in our system that possibly could, or should be, rights in our system.

 

[Number37]

There really are no inalienable rights. That can only be if there truly WERE forces outside of humanity running the show. Many believe this to be the case but I don't.

All human rights are created, asserted, and defended by human agency alone. Same with the concept of justice. All administered through human agency. Or relegated to the realm of those other-worldly deities - only with particular humans to administer on 'their' behalf if we ourselves choose that option.

I believe, firmly believe, in a wide range of fundamental human rights, many of which were only realised through bitter struggle against an existing status-quo throughout our history as a species. Someone always dominates. Someone always subjugates. Rights disappear unless there are people with a knowledge of what is right, what is wrong, and what is just. They disappear unless there are enough people to stand up and FIGHT for them.

I agree with 99% of what you say.
The difference we have is that I don't think rights disappear based on who is in charge. In practice, sure, victors make the rules.
I also don't think rights or natural rights have to be inalienable to be natural rights.
The concept of inalienable is moot. Clearly rights can be taken away even if they are inalienable....because the victors get to make the rules.

 

[RobbieK]

I agree with 99% of what you say.
The difference we have is that I don't think rights disappear based on who is in charge. In practice, sure, victors make the rules.
I also don't think rights or natural rights have to be inalienable to be natural rights.
The concept of inalienable is moot. Clearly rights can be taken away even if they are inalienable....because the victors get to make the rules.

If the right is inalienable, it can't be taken away. That is the definition of inalienable. If a right can be taken away, that proves it isn't inalienable. Your use of language is a mess.

How can a natural right that is not inalienable exist? Either a natural right has always existed and will always exist at all times in nature, or it doesnt... in which case, you would need to explain how a natural right that previously did not exist could come to exist in a way that is not through a form of social construction.

 

[Number37]

The "reality" that these judges are trying to reflect is the fact that it would be a position held by the community that the law should be different to how it currently is, not that the law is different to how the law currently is.

In the case of rights, they would be making a judgment that the community holds that the currently excluded group should have the right they currently do not hold, not that they currently have that right but the law doesn't reflect that.

At the beginning you said you agreed with Bentham.
Bentham is very clear that unless, and until, a law is passed, there are no rights.
He held that position because he argued that parliaments (representatives of the people) were best placed to decide what rights to bestow on its people.
A convoluted way of saying people get to choose what right is important to them at any point in history.

I don't completely disagree with that notion.
I am merely suggesting that those rights which we don't use right now, don't cease to exist.
We do not magically reinvent them when needed, they're just there like thousands of rolls of toilet paper you bought in panic at the onset of the coronavirus.

 

[Number37]

If the right is inalienable, it can't be taken away. That is the definition of inalienable. If a right can be taken away, that proves it isn't inalienable. Your use of language is a mess.

Well derr.
There are no rights that are inalienable because rights get taken away for all sorts of reasons.
We don't have any inalienable rights. Calling rights inalienable is moot. Didn't I say that?

 

[M Malice]

I would like to see a list of these inalienable rights bestowed on the human race by the supposed creator that can't just disappear.

 

[RobbieK]

I am merely suggesting that those rights which we don't use right now, don't cease to exist.
We do not magically reinvent them when needed, they're just there like thousands of rolls of toilet paper you bought in panic at the onset of the coronavirus.

What kind of existence does a right that has neither formal nor informal institutional support have?

It is an idea. A concept. A potential. A hypothetical.

It doesn't actually exist, though, as a real and current right.

Let's use one of the examples from earlier, same sex marriage.

A same sex couple prior to legislation of Same Sex Marriage who wanted to get married did not have the right to marry each other. The idea that they could get married existed. The idea that maybe they should be allowed to be married existed, that it was unfair or unjustifiable that it wasn't possible. The idea that this should be a right they held existed.

But it was not a right that existed. They could not get married.

You want us to believe that this couple had the right to be married, even when they didn't. That is incoherent. It is meaningless.

Well derr.
There are no rights that are inalienable because rights get taken away for all sorts of reasons.
We don't have any inalienable rights. Calling rights inalienable is moot. Didn't I say that?

Please answer the question I asked, then:

How can a non-inalienable natural right exist?

 

[Number37]

You want us to believe that this couple had the right to be married, even when they didn't. That is incoherent. It is meaningless.

You just need to open your mind.
Yes they did have a right to be married, even if they TECHNICALLY didn't have that right.

If it's a social construct, then why can't same sex couples socially construct a marriage before a parliament enacts legislation?

If you cohabit with someone for long enough, you don't need to go through any formal process to have your relationship recognised as akin to being legally married.

It would be ridiculous to say that the social construct of being married only happened once you went through the marriage ceremony.

 

[Number37]

Please answer the question I asked, then:

How can a non-inalienable natural right exist?

You're side tracked and misrepresenting what I said.

I am for natural rights.
Inalienable rights, I'm not to fussed about. Moot. IMO

 

[RobbieK]

You just need to open your mind.
Yes they did have a right to be married, even if they TECHNICALLY didn't have that right.

This is meaningless. They "technically" didn't have the right because they didn't have the right.

If it's a social construct, then why can't same sex couples socially construct a marriage before a parliament enacts legislation?

If you cohabit with someone for long enough, you don't need to go through any formal process to have your relationship recognised as akin to being legally married.

It would be ridiculous to say that the social construct of being married only happened once you went through the marriage ceremony.

The social construction of legitimate homosexual partnerships mirroring the form of heterosexual marriage existed long before the Same Sex Marriage legislation was passed. Homosexual couples were indeed living in relationships that were akin to being legally married before they had the right to marry.

But the right for homosexual couples to marry each other did not exist until that legislation was passed, because in our society to be married is a legal status and without that legislation such a legal status for a homosexual marriage was not recognised.

 

[RobbieK]

You're side tracked and misrepresenting what I said.

I am for natural rights.
Inalienable rights, I'm not to fussed about. Moot. IMO

Explain to me what you understand a natural right to be.

If a natural right isn't inalienable that means that natural rights do not exist for all people at all times. I would like you to explain to me how natural rights come to exist if that is so.

 

[Number37]

Explain to me what you understand a natural right to be.

If a natural right isn't inalienable that means that natural rights do not exist for all people at all times. I would like you to explain to me how natural rights come to exist if that is so.

It's a bit of a fuzzy concept that requires a little bit of open mindedness.

Rights, legislated rights, aren't as categorical as you think they are. IMO.

Our Constitution gives us all the rights we have, but it also opens the door for them to be taken away on a whim.

We mainly see that in times of war, but occasionally we see it at other times. Like when Johnny Howler suspended the Racial Discrimination Act.

 

[quotemokc]

Why don't lions have sex with tigers?
Is there some sort of unwritten rule between lions and tigers about this?

Primarily because they don't live in the same places.

Liger - Wikipedia

en.wikipedia.org

 

[RobbieK]

It's a bit of a fuzzy concept that requires a little bit of open mindedness.

Please, can you at least attempt to give me a definition?

Right now you sound like this:

Rights, legislated rights, aren't as categorical as you think they are. IMO.

Our Constitution gives us all the rights we have, but it also opens the door for them to be taken away on a whim.

We mainly see that in times of war, but occasionally we see it at other times. Like when Johnny Howler suspended the Racial Discrimination Act.

In my first post in this thread I said this:

It would be really nice if there were fundamental rights that all individuals had that protected them and allowed them to live a free and happy life.

But this simply doesn't appear the case. History is full of examples of rights only being as good as the strength of the institutions put in place to protect them. It is full of examples of people being stripped of rights, often by the very institutions that were supposed to enforce them.

So, the existence of rights is precarious, they are only as good as a community's continual willingness and ability to maintain them, and that is why this discussion matters. Rights are not something to take for granted. To say a right exists is to say that it exists within a particular social context, and it only exists within that context if there are institutions in place that protect it and enforce it. They can be taken away. They have been taken away. They are contested and that contest is constant. I have a great distrust for the powerful institutions that we have created in order to create and enforce the legal systems that protect our rights, but unfortunately without those institutions we also have no means of ensuring that the rights we have fought for are protected. It is important for us to acknowledge this reality, to not be complacent that rights are something that will always be there to protect us.

So I have no idea why you think you need to tell me that our legal rights can be taken away.

That's my whole point. They can. So let's not pretend that we have some sort of natural set of rights that no one can take away from us. Let's have our eyes open about what really gives us our rights and let's be prepared to fight so that we don't lose them.

 

[Number37]

Please, can you at least attempt to give me a definition?

Right now you sound like this:





In my first post in this thread I said this:



So I have no idea why you think you need to tell me that our legal rights can be taken away.

That's my whole point. They can. So let's not pretend that we have some sort of natural set of rights that no one can take away from us. Let's have our eyes open about what really gives us our rights and let's be prepared to fight so that we don't lose them.

I'm comfortable sounding like that.
My POV is fuzzy and vague and little contradictory and not easily definable.

I don't believe there is a definitive answer about rights. Even when it is black & white, it still isn't black and white. (An example I gave you was the HC reasoning in relation to Natural Justice).

We can have a discussion about contract law and rights and if you were familiar with the topic you would acknowledge that even when it is black and white it isn't necessarily black and white.
It is one of the shortcomings of the 'law'.
The law is required to give black and white answers to complex problems and it can't always do so.
The suggestion that rights reside exclusively in the domain of the law of the day/land is IMO not grounded in reality.

Something for you to consider...Judges make law/rights almost as much as parliaments in common law systems.

 

[RobbieK]

I'm comfortable sounding like that.
My POV is fuzzy and vague and little contradictory and not easily definable.

Yes, it is totally incoherent. There isn't any point engaging with you any more.

 

[Number37]

Primarily because they don't live in the same places.

Liger - Wikipedia

en.wikipedia.org

A lion and deer.
A buffalo and ape.
A rhino and buffalo.

Take your pick of any 2 animals.

 

[Power Raid]

What are rights? Where do they come from? What does it mean to say that a right exists?

Some people here believe in natural rights. What does this mean? It is the belief that rights are in some way inherent to our existence, that these rights are pre-social, something that we have simply by virtue of existing. These natural rights are universal, not reliant upon a particular culture or government, and are something that can never be taken away from us, they are "inalienable". Some consider natural rights and human rights to be synonymous.

You can see this position advocated in a number of recent discussions in comments like the following:









You can trace the idea of natural law and natural right through the history of western philosophy and theology. You can see it in Stoicism, in the development of Christianity, both Catholic and Protestant, to the Age of Enlightenment and the American and French Revolutions. In contemporary political theory, it can be found in discussions of human rights and within right-wing libertarianism.

But there is also a current in philosophical thought that holds the idea of natural rights is fundamentally misguided. You can look to 18th century thinkers like Rouseau, Hume, Bourke, and Bentham for the beginnings of a criticism of the idea of natural rights and the counter argument that fundamentally rights are a question of law, not nature. Bentham famously declared that natural rights were "nonsense" and that natural, imprescriptible (inalienable, unable to be taken away) was "nonsense on stilts".

Personally, I'm inclined to agree with Bentham. I think the idea of natural rights is fundamentally problematic for a number of reasons.

For me, the main issue is that it makes no sense to talk about rights as existing pre-socially. In the state of nature there is no notion of right, there is simply the capacity of each individual to fend for itself. Here might is equal to right. In order to escape this "solitary, poor, nasty, brutish, and short" life (how Hobbes described the state of nature) we form communities, we create a "common power" (again to quote Hobbes), a state, a government, a law, in which to mediate a peace between otherwise warring individuals. Before we create this society there simply are no rights. It is therefore up to the society to determine what the rights are within it. This means that these rights can be changed if the society decides to do so.

If we return to some of the quotes that I began the thread with, we can see that a common claim that has been made (one that reflects the current use of natural rights within right-wing libertarian circles) is that a right can not involve a claim against another person, due to the requirement that a right be inherent to a pre-social individual. Well, I don't see the pre-social individual possessing any rights at all. I also don't see why a society can not make a decision to implement a system of rights which imposes obligations on others to behave in a particular way. Such a right is not necessarily illegitimate.

If you are going to disagree with any of that, then I would need you to tell me what the source of these rights is. Where do they come from? What is stopping them from being taken away from us?

Some people might be inclined to say that these pre-social rights are given to us by God. I don't find that convincing. Some might say that there is some sort of "natural law". I don't think this helps us, because the only natural laws that we have (say, the law of gravity, the laws of thermodynamics...) are simply the description of an observed phenomenon, and I think we end up where we did in state of nature where any natural law only describes the capacity of an individual in nature, and we end up with the conflation of might and right.

I'd welcome proponents of natural rights to answer these questions and convince me otherwise.

In part I welcome it because it would be really nice if there were fundamental rights that all individuals had that protected them and allowed them to live a free and happy life.

But this simply doesn't appear the case. History is full of examples of rights only being as good as the strength of the institutions put in place to protect them. It is full of examples of people being stripped of rights, often by the very institutions that were supposed to enforce them.

So, the existence of rights is precarious, they are only as good as a community's continual willingness and ability to maintain them, and that is why this discussion matters. Rights are not something to take for granted. To say a right exists is to say that it exists within a particular social context, and it only exists within that context if there are institutions in place that protect it and enforce it. They can be taken away. They have been taken away. They are contested and that contest is constant. I have a great distrust for the powerful institutions that we have created in order to create and enforce the legal systems that protect our rights, but unfortunately without those institutions we also have no means of ensuring that the rights we have fought for are protected. It is important for us to acknowledge this reality, to not be complacent that rights are something that will always be there to protect us.

In Australia we don’t have a positive instrument providing rights like a Bill of Rights.

Our rights are enshrined though in the constitution by providing limited power to the government.

 

[The Speaker]

I agree.

But he is not correct to say that in the absence of inalienable rights then there are no such things as rights.

You can call them 'rights' if you want. As others have pointed out, in the absence of inalienable rights, every supposed 'right' we have can easily be taken away by someone with enough power to do so. To me, that makes them entirely illusory, and impossible to argue for having if they don't already exist, because how can one say they have the right to anything if someone stronger than them says otherwise?

For a right to truly exist, it must exist in all circumstances. If there is a right to freedom, and there is a government preventing freedom, then something greater than the government must have granted that right, so that people can fight for it as a right, as something they deserve. Otherwise, it's simply a desire - a good desire, but a desire nonetheless.

Number37 has discovered the difficulty of this, because natural rights are essentially God-given, inalienable rights, with God removed from the picture, leaving behind a creator-shaped hole.