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Rights and Justice

 
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Joseph Milne



Joined: 17 Apr 2008
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Location: Herne Bay, Kent, UK

PostPosted: Fri Feb 13, 2009 10:37 am    Post subject: Rights and Justice Reply with quote

Rights and Justice

It strikes me that one of the problems we confront in trying to understand the laws of economics and the nature of society is the present confusion between rights and mere legal claims. We see more and more legislation that attempts to secure rights, yet one of the consequences of this is that different rights start to conflict with one another. So we begin to think of “minority rights” or special rights for specific groups, institutions or members of society.

In all of this there is a sense that rights must be grounded in universal truths, which must be so if rights are not merely arbitrary conventions, yet it becomes unclear which rights really are grounded in any universal truths or principles. So unclear is this now becoming that shareholders are beginning to believe they ought to be compensated when their investments fail (the shareholders of Northern Rock for example). How can there be a “right” to a return on taking a gamble based on usury?

I wonder then where it might lead us to ponder the real nature of rights and if we could formulate any universal principles upon which they would rightly be founded. I wonder, for example, which formulations we would agree are founded on universal truths or principles in the “Universal Declaration of Human Rights” of 1948? Here is the UN link: http://www.un.org/Overview/rights.html

I think one of the difficulties in raising these questions lies in clearly making or observing the distinction between universal principles and specific rights. For example we might agree that all men are equal and therefore that all are equally entitled to access to what nature freely gives. Yet when such a broad formulation is applied it must be adapted to particular times and circumstances, and there is then the possibility that the particular adaptation gets taken to be the universal principle. Once this confusion enters there is then the further possibility that rights become reduced to mere legal claims and the basis for abusing the law, such as in The Merchant of Venice.

Clearly a claim upon the law cannot be founded upon a true right if such a claim involves an injustice of any kind. So universal right and justice must wholly correspond with one another. A real right therefore cannot involve disadvantaging another person, or an institution, even though we now see instances of this commonly.

Therefore it seems that the question of the nature of rights involves the question of the nature of justice, and how either may be discerned in the nature of things.

I make no claim to knowing the answers here! I am merely thinking aloud and inviting others to think aloud too, in the belief that grappling with these questions is in itself a worthwhile undertaking.

Joseph
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Michael Shepherd



Joined: 07 Dec 2007
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PostPosted: Fri Feb 13, 2009 12:26 pm    Post subject: Reply with quote

I recall many marches and demonstrations against injustice; for justice; and for 'rights'; I don't recall any marches in support of duties...

I'm not an economic thinker; but I also recall Leon MacLaren saying 'Men have only one right : to work.'

I come fresh from having read with great respect about 'dharma' on the newish 'Hindupedia' website; which makes me wonder if we have our moral hierarchy all askew -- and that beyond human edicts and laws, 'righteousness' reveals duties to all others; and that 'rights' are only revealed as flowing from those duties or obligations..

I cannot take that further in economic terms; but I offer the thought as very relevant to Joseph's posting above, and would welcome discussion..
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Joseph Milne



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Location: Herne Bay, Kent, UK

PostPosted: Sat Feb 14, 2009 8:17 pm    Post subject: Reply with quote

Dear Michael,

Thank you for widening the whole question. We are certainly in a difficulty these days over the ground or principles of rights or duties, and consequently about how they may be related.

There are reasons, however, for the present concern for rights which extend back to the Enlightenment social philosophers, such as Hume, John Stuart Mill and Lock. They sought to find ways of establishing the well-being of society following the collapse of the religious understanding of social duty, and the loss of the understanding of the tradition of Natural Law. The language and way of thinking of “rights” emerged as the only “secular” way of formulating the best principles for society. The conception of rights remained the last vestige of any sense that human society was part of the natural order of nature, which was the ground of the tradition of Natural Law stemming from Aristotle and the Stoics and absorbed into Christian thought.

From these philosophical struggles of the Enlightenment (there were strongly conflicting schools of thought) emerged a parallel reflection upon the principles of jurisprudence, and here the question of individual freedom becomes the central concern – freedom within social order. It is from this reflection that Blackstone comes, and eventually the formulations of the American Constitution and Bill of Rights.

And it was through the application of the principles of rights the eventually slavery was abolished, founded upon the notion of human equality.

It may well be that there is a deeper way in which to understand the foundations of law and ethics. I believe, for example, that Aristotle’s “virtue ethics” springs from a deeper source than our modern understanding of rights. Nevertheless one has to acknowledge that the desire for justice is always essentially good and grounded in an intuition of the real nature of things, and in our times this expresses itself in terms of rights. People believe that rights are rooted in self-evident truths.

The realm of duty is not so self-evident, given the preconceptions and history informing our age, although Kant proposed duty as the basis of ethics. However, he located duty in the human will, as opposed to reason or Natural Law, and it proved to be solipsistic. That is to say, one did one’s duty regardless of its consequences upon others. It contained the seeds of the individualistic morality that was to emerge much later – of each person following their private conscience and their own private moral codes.

Perhaps one conception from the pre-enlightenment which still holds its power is what was called the Golden Rule – to treat others as you would wish them to treat you. That appears as plainly just. It also recognizes universal equality, and grants freedom to all. However, it takes as given the desire for justice, the recognition of equality and the granting of freedom because it arises from an unspoken assent to the essential goodness of being or existence. It belongs to the Aristotelian understanding of nature (physis) as oriented towards the Good. Thus it makes sense only in a world in which the Good is an essential quality of all things.

But this idea is no longer part of our modern conception of Nature, or even of humanity, and it no longer informs positive law or modern formulations of human rights. It is very clear, for example, that this element is missing from the Universal Declaration of Human Rights of 1948.

It is precisely because Nature is no longer regarded as essentially Good, but rather as a mere resource for human use, that we have these present problems of the environment. This is reinforced by the notion that human society is itself outside Nature – an idea than comes with the same Enlightenment philosophers who grappled with the question of rights.

I think it is very important to understand this context. It shows why the questions of economic justice are dealt with in the ways they presently are, and why they are limited. Yet, on the other hand, we should not forget that our most treasured modern freedoms come from there too and are vigorously defended by our tradition of common law.

But it is also clear that a system based solely on formulations of rights does not meet the greater questions of Justice which now confront us. And when the self-evident-truth aspect of rights begins to fade from view, then we see that arbitrary kinds of claims start to be made upon society and its institutions in the name of rights. For example “animal rights” campaigning. Thus rights start to become compulsions and impositions and curtailments of freedoms. Justice itself is no longer the moving force of these new claims, but rather anger against supposed injustices.

Perhaps what is needed in trying to distinguish real rights from arbitrary claims is enquiry into the full implications of any right. For example, you suggest that the only right man has is the right to work. This right is stated in the first clause of Article 23 in the Universal Declaration of Human Rights:

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

For this right to be enacted there would need to be equal access to the land and an understanding of the Law of Rent as demonstrated by Henry George. That is the economic implication of this right, and so long as there is private ownership of land there cannot be “free choice of employment” or “just and favourable conditions of work”. So, although this right is declared as universal and applicable to all as a basic human right, its implications are not understood in practice. So it remains merely an aspiration, although a true and good one. And it may well follow that every other universal right is contained as a seed in this single right.

It appears also to follow from this that, even though a declared right be just and self-evidently true, its implementation depends upon its true and full practical implications being understood by society generally. And that seems to indicate that any society can be just only to the degree to which it can grasp and articulate the principles it founds itself upon. In other words, a right cannot merely be claimed, it needs to be understood both in principle and in its implications.

Joseph
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Michael Shepherd



Joined: 07 Dec 2007
Posts: 1395
Location: London, UK

PostPosted: Mon Feb 16, 2009 12:02 pm    Post subject: Reply with quote

Joseph

If you're agreeable, may we widen this discussion even further, to take in Ian Mason's oration, and the example already partially discussed, of Ecuador's 'rights of nature' laws -- as this is an actual reference point ? And since you are studying Natural Law with a view to a book ?

Marsilio Ficino, taking a lead from Plato, Aristotle, Aquinas and others, declared that 'all things naturally seek their own perfection.'

So rivers just want to be the best river they can be... trees, to be what trees should be and do... even stones, as Eckhart says, wish only to conform to divine will and to be perfect stones..

So Ecuador's rivers wish to remain free; above all, free of oil pollution; trees, to play their part in the purification of earth by rain; peasants to scratch a living from the earth.. and all this, without mentioning laws, responsibilities, duties, or rights !

The 18th century philosophers -- even the 1948 Bill of Human Rights -- didn't know the pressure of reality in climate change or huge population expansion. Yet local husbandry knew to keep rivers clean for the survival of fishing, and to plant a tree for each one cut down..

Natural law doesn't seem so far away in theory; only in malpractice.. And 'law' is a dangerous word : behind Natural Law is Nature itself; to be observed to see its own laws. Why should Ecuador need to pass a Bill of Rights for Nature, except to awaken minds, when observation should provide the answers ?

Michael
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Joseph Milne



Joined: 17 Apr 2008
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Location: Herne Bay, Kent, UK

PostPosted: Wed Feb 18, 2009 10:07 am    Post subject: Reply with quote

Dear Michael,

Thank you for raising these wider questions. As I said earlier, I make no claim to have the answers and feel this whole question needs to be carefully reflected upon.

One thing I do think is important, though, is to examine the shift in Western thinking which lost contact with Nature and Natural Law. It is quite clear that a deeper dimension of reality fell out of view in the Enlightenment, which broke with Natural Law and regarded Nature no longer as the provider of life, but as a mere passive resource to be put to human advantage and plundered.

It is true that the older communities held the earth in reverence – for example the North American Indians or the Bushmen of the Kalahari desert. But their reverence for the earth, and their intuitive understanding of the natural laws, had no defenses against the onslaught of private land ownership that swept across the great continents under the new rational ideology. Actually, at the heart of the so-called rationalism lies an iron willfulness that arrogantly swept any arguments aside.

One of the great insights of the ancient world, as you mention, that dies out in our Western culture in that period was the notion that all things tend towards their good and collectively to the good of the whole, and ultimately to God. This is nature’s fundamental law of being – law in the true sense of an innate quality of being as such.

But now we live in a time when the world or Nature is regarded as having no purpose or meaning in itself. That is the idea that prevails in the sciences, whose attitude rules, regardless of the magnificent things discovered. And the relationship between man and God becomes merely retributive, with God residing outside Nature. And so the problems created by technology are regarded simply as further technological problems to be tackled by technology.

If the laws of being can no longer be discerned in Nature, then neither can the laws of society or civilization. Man stands adrift from any natural context or role within the natural order. Individuals may sense an underlying unity between man and Nature, but the cultural consensus does not, and the most influential thinkers maintain this rift.

So the question of the laws of Nature and the natural laws of human society are connected, inextricably connected. It follows from this that merely mitigating pollution or trying to stave off global warming is not enough. What is needed is a revision of our understanding of the nature of human society, and what it really means for humanity to flourish. So it is not merely a matter of cutting down, but rather of living in a completely different way which is in harmony with nature as a matter of course. If we really lived in harmony with Nature we would never need to think of pollution or global warming or starvation.

This touches on Ian’s mention of the meaningless jobs that so many have to do in the wealthy countries. All this soulless work we see everywhere is against human nature and diminishes the dignity of man. Yet most of this work has come about through the private monopoly of the land, and most people are working to make others rich while remaining able to provide only the basic necessities for themselves. The awful tragedy of this is that many never have the slightest chance to discover and realize their innate gifts and talents – which is to say their gifts to offer to society and our creator. This is the hidden poverty of the wealthy nations – and we wonder why the youth protest on the streets or fall into drugs. From the natural law perspective these things are the inevitable consequences of living contrary to the laws of Nature. The power of human creativity and love of making and nurturing are stifled and so manifests as a distortion, as crime.

As Ian says, what is needed is a cultural change, a change in what is held to be of value and most true, and then a full articulation of value and truth. It is not enough to follow a feeling or intuition in this matter, as so many environmentalists do. What prevails is not intuition but what is said and collectively accepted. And for this reason, if for no other, the “laws” of nature and of human community need to be clearly discovered and expressed so that they inform the common conception of nature and society.

I do not therefore distrust the word “law”. It is not an enormous leap to begin to see that Nature is lawful. The big leap is to begin to see those laws are intelligent, purposeful and part of a greater mystery of being which includes human nature and society. It is connecting Nature with society that offered the key to the ancients, while in our time any suggestion that society has a nature is right out of court in the academic world of anthropology or the social and political sciences.

It is this inability to connect society and Nature that leads to the idea of giving rights to the environment. The very act of such “conferring” contains within it the central notion that is wrong in the first place – that man owns nature and can therefore confer anything upon it. The truth is the reverse: Nature is conferring life to man. I appreciate that many say that the result may be a good one, even if it is intellectually flawed. That may well be so. Nevertheless, unless the real nature of rights and law are properly grasped and formulated, we flounder around with good will while the great mechanistic ideology, with all its vested interests, forges ahead regardless. The real change that is needed is in thought and understanding – this is what our circumstances call out for, and that too in Natural Law calling us.

Joseph
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Joseph Milne



Joined: 17 Apr 2008
Posts: 326
Location: Herne Bay, Kent, UK

PostPosted: Fri Feb 27, 2009 10:13 am    Post subject: Reply with quote

There was an article I read some time ago which struck me as a valuable approach to the question of the nature of human rights. It was "On The Rights Of Man" by Frank Dupuis. There is a rather badly scanned version on the web, so I attach a corrected version here.

Joseph



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