Friday, September 21, 2007

Rights; Part I

I would like to thank Kurt for writing what will be a series of posts about rights. He does a fine job of introducing himself, so I will be minimal. I have enjoyed Kurt's wry humor and insightful comments, at Dispatches for quite some time. I am really looking forward to reading the rest of this series.

Many Thanks to DuWayne for asking me to write a piece for Inalienable Rights. As he did not suggest a topic, I decided to put together an argument I had been working on anyway, the question of the origin of rights. This may be broadened to include the question of morality (assuming this to be a different subject), or when you get down to it, the structure of societies in general. The question of whether morality must be based upon religious revelation has received a lot of attention in the blogosphere lately (see Balkin, or Volkh or Andrew Sullivan, for instance). My contention is that this formulation has the process backwards, as I intend to show. Unfortunately, this will also show that DuWayne's title is incorrect: There are no such things as Inalienable Rights. As it turns out, this is not as depressing as it seems at first sight.

First, a bit about me. My name is Kurt Ehrsam. I comment on a number of blogs under the name kehrsam (pretty clever alias, I know). I am 43, divorced, and live in the mountains of North Carolina with my 85 year old father. My undergraduate degree was in Political Economy and Foreign Relations, with minors in History, Philosophy, and Biology (I stayed in school a long time). I have a law degree as well, so I will be coming at our topic primarily from an economic and legal approach. I have worked as a lawyer, a car salesman, a teacher, and a Congressional aide, thus single-handedly demonstrating the dangers inherent in a Liberal Arts education.

I was raised in a militantly atheist family, but have somehow ended up a moderate Christian. I attend a Southern Baptist church, but really don't fit into their theology; my ex-wife was a Wiccan priestess, so I speak that language as well. I am moderate in politics and have worked for a number of Democratic politicians and campaigns over the years. I am not a particularly community-minded person, nor am I a joiner, so I often miss out on the local angle of issues. I can be too impersonal, standoffish, or brusque; that is part of the package, too. Hey, I was a lot worse twenty years ago, so I'm working on it.

Let's get to the argument:

Jonathan Haidt writes,

But if you try to apply this two-foundation morality to the rest of the world, you either fail or you become Procrustes. Most traditional societies care about a lot more than harm/care and fairness/justice. Why do so many societies care deeply and morally about menstruation, food taboos, sexuality, and respect for elders and the Gods? You can't just dismiss this stuff as social convention. If you want to describe human morality, rather than the morality of educated Western academics, you've got to include the Durkheimian view that morality is in large part about binding people together.

Wow, menstruation, Procrustes and Durkheim in the same paragraph! I encourage everyone to read the entire essay, by the way. Don't worry, I'll wait for you.

I'd like to start with that question, "Why do so many societies care deeply and morally about menstruation, food taboos, sexuality, and respect for elders and the Gods?" because that is where morality starts, at the level of culture. My contention is that this is an analytical problem, in the sense that we could create a taxonomy of culture showing evolution just as we can for (say) species Canis. For that we will need a few axioms, or at least solid premisses:

1. Humans have basic needs which must be met, such as the need for food, water, and oxygen. Beyond these absolute needs, humans also desire other things, such as sex, prestige, leisure and the desire to see Britney Spears humiliated. Humans may rank these desires differently, such that sex may be elevated to the level of an absolute need, or may be more or less suppressed.

2. The "purpose" of human cultures is to maximize these needs and desires for its members. Elements of culture which greatly contribute to meeting needs and desires (fire is a good example) will be universally adopted by all cultures. Elements which have little impact (clamshell hamburger packaging, for instance) come and go at random.

3. In general, the individual culture is not aware of the decisions it is making. Rather, the choices of individuals are being summed as the general culture. Market forces are thus brought to bear in deciding what elements of culture will be propagated.

4. Culture operates in the context of environment.

5. Culture seeks relative stability. In other words, market forces, over time, will tend towards sustainability of the current culture. If the current culture is unsustainable, culture will gradually recede to a sustainable level. And finally,

6. Culture is defined by the technologies a society chooses to adapt itself to its environment. Technologies are learned behaviors which may be both material (such as agriculture or metallurgies) or social (such as language or religion).

Given these assumptions, it is pretty clear how I am going to analyze most situations: I'll define what technologies are involved, and given the environment, predict whether that increases or decreases the overall levels of satisfaction of some or all of the population. For instance, take the policy of turning Midwestern corn (or cheap European wine) into ethanol. While there is one population in favor of the practice (Midwestern farmers and communities) the negative costs and externalities will eventually lead to the policy being canceled by the rest of society that is currently bearing those costs.

I chose that example because it is a case where an elite adopt a technology based upon their needs, but which conflicts with the greatest good of the overall society. This is often a problem in the short-term. Longer term, the needs of the overall society generally prevail to some extent. There is a widespread assumption in the West these days that new technology will spare us from this type of conflict in the future. This is possible, of course, but current US standards of living are so unsustainable that it will take some doing.

What about Inalienable Rights, then? First, we have to define a moral system as a technology which is adopted by cultures because it provides order and predictability. Let's start with a small society, such as a solitary tribe practicing a hunter-gatherer lifestyle. Their needs for a moral system turn out to be highly complex: They need to minimize intra-tribe conflicts (especially killing), secure personal property (so that it will be created), regulate sex (to prevent inbreeding and for political purposes), and come up with a means by which group decisions can be made and enforced (politics). If other tribes are nearby, issues of trade and intra-group conflict arise.

A look at Leviticus shows us how this works in practice: The Lex Talionis, for instance, marked a great leap forward from the prior practice of inter-family feuds. The moral bounds are highly ritualized, thus ensuring two things: First, morality is taken out of an individual context, such that killing someone is an offense against God, not just the dead man's family. Second, the law becomes highly stable, thus locking the culture into a stable, sustainable form as well. It is, in fact, so stable that we still have people today seeking to invoke Leviticus, despite the fact that the environment and culture are completely different from the First Millenium BCE context in which the law arose.

As cultures get more complex, so does the social technologies necessary to hold them together. Lets take the right of private property as our example. We first come to a major question: Who actually "owns" a piece of real estate? In Western cultures since the age of Charlemagne, the answer has been "The Sovereign," which is to say the King or the state (which may be synonymous). The Sovereign is said to hold "Allodial Title" without restriction; all others hold their title from the Sovereign, subject to four "uses" or restrictions, which are taxation, the police power, escheat and eminent domain. So the individual never fully owns his property; instead, he holds a number of rights which may vary based upon the situation: The more complex the society, the more regulation of the property.

In other words, the "right" to pribate property is nothing more or less than what the society grants for its own purposes. A hunter-gatherer tribe has no use for private real property at all, unless there is some outside agency (for instance, in the 17th Century several Canadian tribes developed ideas of private hunting territories based upon interaction with French fur traders). In a highly complex society such as ours, private property is a necessity, but is hedged about with restrictions and zoning regulations, public rights of way, etc.

Inalienable Rights are thus nothing more than the boundaries beyond which the culture has decided not to go. As cultures have evolved, they have been able to gain more benefits for more people by granting greater individual freedoms, but these freedoms are constrained by a web of ever more complex regulation. The right does not exist outside of the context of the culture.

In Part 2, I intend to analyze the development of a particular right, the right to life, following its definition from earliest times to Western society. In addition, I will flesh out more fully any ideas from here in Part 1 that draw particular attention in the comments. I will probably also comment on the inter-relation between religion, government, and the overall culture, although that may require a Part 3. Cheers to all!


BobApril said...

An interesting analysis, Kurt. Your summary seems to mesh well with Niven and Pournelle's concept in Lucifer's Hammer, that a society grants only the rights it can afford. In the novel, modern society is severely damaged by a comet strike. When the heroes win a battle, they are saddled with prisoners that they can scarcely afford to feed or guard, let alone allow them to be non-productive inmates. Accordingly, they reinstitute slavery, as the best they can afford - and better than killing the captives. It takes a more complex society to produce the extra resources to grant extra rights.

kehrsam said...

Niven does not take the premise to its natural conclusion, of course. Unless the slaves can produce a surplus above their subsistence, they are useless as slaves, except for a few that the leadership might chose to keep as status symbols. The logical conclusion is that they should be eaten, particularly if protein levels are a concern.

So yes, I would argue that rights are purely a social construct, and meaningless when considered in the abstract outside of culture. "Human rights" is a nice phrase, but unless one is a Platonist, in what does it consist other than a particular social context?

This will be pretty much my topic in Part 2, that a fairly straightforward economic analysis will predict what rights a culture will recognize. I've got some thinking to do yet, however.

DuWayne Brayton said...

Oy, now I am going to have to write a full on post about inherent human rights, which may well be a fallacy, but it's a fallacy that I do believe in. In the comments attached to the post that asks for inalienable rights, Erik mentioned the dictionary definition of inalienable and basically came to the same conclusion you do.

I tend to think of inherent rights, as those that transcend society. In the final analysis, those rights only exist so far as the individual can protect them. In conjunction with society, I simply believe that it is not within the purview of society to "grant" them. It can only make the choice to either protect them, repress them or act as a benign force. In reality, most societies do all three of those things, depending on the right.

I am pretty sure that I recall a interview with either Niven or Pournelle, I do not remember which, in which they stated that they wanted to actually put that (cannibalism) in, but were rebuffed by the publisher. It was in one of my old Fantasy & SciFi magazines (of which I used to have several years, into the years when the name changed). But I do believe that they did try to take that to it's logical conclusion. Oddly, I haven't actually read that one. In part, because I do know (whether I am recalling the issue they had correctly or not, it might have been a different book) that the publisher drastically infringed on the planned plot for Lucifer's Hammer. That, and it never looked that exciting. Of course, I absolutely loved Oath of Fealty/ so who am I to judge? (I really, really love the idea of archologies, wouldn't really be keen on living in one, but I absolutely love the concept.)

kehrsam said...

DuWayne: I have a good friend who used to argue, "My rights do not derive from a piece of paper." I agree! We do not gain rights because they are granted by the Constitution. Rather, we gain rights because it leads to a society that is better able to provide the population with food, shelter, recreation, and sex under our current restraints of environment. As I have argued, these rights also come with more qualifications: So be it.

But that remains to be demonstrated. Expect Part 2 around Wednesday or Thursday.

DuWayne Brayton said...

I think that I should be more clear about what I see as inherent/inalienable rights. I define it very narrowly. The right to live, to be free to do as you will, as long as it does not interfere with the rights of others to do the same - most especially the right to do as you will with your own body. This would also include the freedom of speech.

I would like to reiterate that the freedom I speak of, while inherent, is contingent on the ability of the individual to protect those rights. In some circumstances society is, or can be, instrumental in helping to safeguard those rights, in other circumstances, society may well be what the individual must defend their rights from.

I think that there are many other rights that society can and should provide the individual, but as you say, those rights are dependent on the ability of society provide them. But the right to live and be free, are basic, inherent rights. Society cannot give them to us, society can only defend them, repress them or take no action at all. Indeed, such things as universal health care and other forms of social welfare, would be examples of society actively defending our individual inherent rights. Property rights, on the other hand, are a whole different ball of wax. They are not inherent rights by any stretch.

Apologies if I am not being a clear and coherent as I would like. It's been a very long day. I am trying to turn a sow's ear into a silk purse, as it were, repairing extensive water damage to my customers home. A good portion of my brain is focused on several different aspects of making that happen at the moment. Along with the concern of second guessing myself as far as ensuring that the various infiltrations that caused the water damage have been adequately addressed.

BobApril said...


You and Eric both mentioned the right to do as you will with your own body. I'm curious how that interacts in your mind with the existence of a fetus in a woman's body. I admit to seriously conflicted opinions on the subject - hence my support for pro-choice, because I don't feel capable of deciding for someone else. But the definition of "your own body" seems terribly muddled by a fetus, or embryo, or even a blastocyst.

By the way, I strongly recommend Lucifer's Hammer as the definitive end-of-the-world story. Cannibalism is a significant plot point - but only for the "bad guys." That fits with my own personal morality - I might make an exception in desperate circumstances involving already-dead human meat, but I believe it would be more ethical to die of starvation than to kill another person for food.

bullfighter said...

Hi, I am coming late into this discussion, but DuWayne has kindly invited me to comment and/or cross-post, and I am happy to oblige as much as time permits. I'll try to cross-post with a more in-depth discussion, but for now just a few brief comments.

First, DuWayne: there is more than one way in which one can "believe in" rights. You can believe that they are real in some sense, but you can also believe in them as a worthy goal (ideal) to strive for. It is not necessary to believe that rights are inherent or that they "exist out there" in order to believe in them in the second sense.

BTW, that's fundamentally different from belief in God, where the analogy to this second sense is what Dennett calls "belief in belief", but that is not belief in God any more, because the concept of God loses meaning if it does not require existence outside of people's minds.

Now Kurt, your analysis is far superior to any that presupposes real, objective existence of rights in a religious or Platonic sense, but I think it misses a lot of key points. Basically, your arguments are Marxist, and when I say that, I don't mean anything offensive by it. (Unlike most Americans, I have studied Marxism, and have no prejudices about it.) It was a fine philosophy for its time, but I dare say it has not adapted too well to the scientific discoveries of the past 125 years. Like most schools of thought, it deserves to be cherry-picked, its good ideas used, and the rest discarded.

There is a lot to be gained by examinig culture in the framework given by the technological (and thus economic) development, but one can only get so far with explanations strongly limited by historic materialism. (Again, please consider the labels value-neutral; I am simply summarizing your arguments.

BTW, your arguments are at least no worse than those - such as Haidt's - that take anthropological findings about human moral feelings as fundamental facts and don't dig deeper into their origins. (I may be unfair to Haidt, but that's how he came across in the article I think you are referring to.)

The missing part is cognitive psychology and evolution-based adaptive behavior. In "Breaking the Spell", Dennett has a neat and succinct discussion of the development of intentional stance (also known in literature as "theory of the mind"), the tendency of organisms with high cognitive abilities - such as primates and especially humans - to attribute intentions (or a mind) to phenomena around them. This tendency evolves because attributing intentions to both a tiger and the clouds is a far less dangerous mistake than attributing intentions to neither.

Overattribution of intentions, coupled with human imagination and inventiveness, results in magical thinking - interaction with gods (spirits, ancestors, whatever). That's how the morality of taboos and rituals evolves. So, yes, societies care about those, but the underlying "reasons" for that are still based on avoiding harm and getting useful results. ("Reasons" are, of course, not typically consciously derived products of critical thought. You may prefer to just call them "explanations".)

So Haidt is wrong. But your technology-based approach cannot explain these origins of morals. You can do pretty well explaining why taboos and rituals gradually give way to justice and individual rights as technology advances, but unless you can explain how all those factors arise in the first place, you probably won't have all the tools necessary to explain and predict how they'll play out as technology changes.

OK, that wasn't so brief after all... :-)

bullfighter said...

BobApril: I believe it would be more ethical to die of starvation than to kill another person for food.

But what if the survival of your species depended on some of its members eating others? If morality is about caring about more than yourself, wouldn't it be immoral to die of starvation just to uphold your personal principles?

kehrsam said...

Bullfighter: I think we are in 95% agreement, so I will only hit a couple of your many fine points.

1. I am certainly not a Marxist, although I have a great regard for his economics. I also really like the Chicago School, though, so I am hardly doctrinaire. All but one of the professors in the Econ department where I got my undergraduate degree either attended Chicago or were proteges of professors who attended Chicago.

My anthropology knowledge, on the other hand, is entirely self-taught, and my reading list leaned heavily toward Marvin Harris, who definitely is a Marxist. Still, I was thinking of Judge Posner when I was devising this model.

2. You wrote, So Haidt is wrong. But your technology-based approach cannot explain these origins of morals.

My definition of technology includes morals, I probably should have spent more time on that point to make sure it was clear. Morals are another tool societies adopt because they bring benefits over time to the people involved. Precisely how they are initially created is interesting, but I am discussing their function and evolution.

bullfighter said...

Kurt, I didn't mean to imply that you are a Marxist in general; my comments apply only to the text on which I commented. And the idea that social institutions are build on the foundation of technology and economic relations, and cannot be separated from that foundation, is strongly Marxist. (Again, that's more to say that we tend to underappreciate Marxist thought than that there is something wrong with that idea.)

That certainly doesn't mean that you are a Marxist in other areas, such as normative economics. (But, in positive economics, Marx was profoundly influenced by Smith and Ricardo, and the Chicago school is not as far from him as people think. Posner is perhaps my favorite "conservative" thinker - as is Becker, another Chicagoan - but in the basic ideas of how society works they are quite compatible with Marx.)

And I understand that you weren't trying to explain the origin of morals. I just think it is an indispensible task if the rest of the explanations is to be fully consistent.

DuWayne Brayton said...

Bullfighter -

Glad you stopped. Kudos for bringing Marx into the discussion. I agree that too few Americans actually read Marx or have the first clue what he was actually talking about.

I actually have more than one perception of rights, depending on the context of the discussion. Ultimately, I think it dramatically simplifies the discussion of certain rights and their interface with society, to use more fundamental, naturalist language. It certainly is not applicable in every context, but in this, I think it just makes it easier. It is easier to segregate simple roles for society, in relation to the rights being discussed.

I also think it really takes some of the impetus off the individual to justify those rights, rather making society justify it's relation to those rights. This is in part, the arrogant American in me, but I think that it is the role of society, not the individual, to justify how it chooses to deal with rights. Thus it is up to society to justify any and every repression of those rights, likewise (and this is important too, welfare statist that I am) it must also justify doing more than taking a benign stance on those rights.

It ultimately boils down to semantics, but then semantics define reality. I also believe that they are a worthy goal, which I think is actually harder to justify, from the rights paradigm that I am working from. I tend to look at it as the goal being that the lowest social relation to any inherent right, is the benign. The next goal being to find the right balance between the benign and active support in the security of those rights.

BTW, I am currently reading Breaking the Spell and really enjoying it. For interesting contrast, I have lately been ending my evenings with Lovecraft, which comes right after the Dennett. Glad you stopped and look forward to deeper analysis. Also, don't fear coming late to a thread here, if the person you respond to doesn't notice, I'll email them. I get email notices of any comments so I can try to stay on top of them.

bullfighter said...

Thanks, DuWayne. I'll write more about my perspective on rights on my blog sometime in the next few days.

DuWayne Brayton said...

Hopefully, I will have a post up by morning. If not soon, I am working on it. I would love to crosspost your piece here if that is permissible. I give attributes and your site's profile of you with the posting.

bullfighter said...

DuWayne, anything that helps my blog's visibility - even to a few more eyes - is good and definitely permissible. (However, I got distracted blogging about Al Gore today.)

DuWayne Brayton said...

Yeah, I got distracted too, as you could see. I highly recommend joining the blog storm and posting the full article that I did. The more the better.