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.