So far, we have looked at a Theory of Culture, and then various tests to its validity, including the Right to Life. We have concluded as a result of this study that Inalienable Rights do not exist in any positive sense. At least in the real world, rights exist only to the degree that a culture grants said rights.
From this point, what follows is pure speculation and wishcasting. Admittedly, I am doing so based upon a solid model, but all this means in reality is that the speculation is theoretically provable (or falsifiable, depending on which side of that particular philosophical nit you pick).
The Founding Fathers had no idea of the Leviathan they were creating. The intention was merely to bring the quarreling states together for purposes of defense and foreign affairs, and to coordinate efforts which required a national scale, such as providing for a postal service amd a national currency.
But one of the things about markets (and politics is a market, albeit a very inefficient one) is that over time they do tend to favor greater efficiencies, especially of scale. And one of the rules of economy of scale is that regularity and predictability must be present to take advantage of the efficiency. Thus we see two trend lines beginning in Medieval Europe and then rapidly growing through the Rennaissance and into the Enlightenment. First, the size of states grew larger, incorporating growing and often diverse populations. At the same time, the complexity of the legal system grew. Things which were once regulated (if at all) by custom became covered by Guilds. These later gave way to Statutes of the King, which were in turn supplanted by legislative management. Finally, a permanent beaurocracy was created.
One aspect of regularity and predictability that the states did not intend to create was "rights" for individuals. I think it is safe to say that until the Declaration of Independence no state or would-be state had ever recognized such rights willingly. Power for the individual meant less power for the King, or so the thinking went. One of the great leaps forward of the Enlightenment was to recognize this as a logical fallacy: Power is not a zero sum game, and by ceding power to the people (or some component of the people) the government could vastly increase its own authority over time.
Increased freedom brought about increases in the things people care more directly about: More food, sex, leisure, etc, at least as measured by the sum total of people enjoying these things. And hence the paradox I have mentioned earlier but not discussed: The more personal freedoms grow, the more they are constrained by government regulations. The more regulations, the more power government has also, and hence the more power to interfere with those freedoms. It's an interesting circle.
There are two ways to take this state of affairs. First, it will always be in the interests of some "Faction" (in the Federalist 10 sense) to use the regulatory power of the society to increase its own position at the expense of others. This happens all the time through the political process. Just look at how Federal spending changes in the US according to whether a Democrat or Republican is President.
The second approach is to take the view that maximum freedom for all individuals will bring the maximum return in terms of meeting the culture's wants and needs. Loosely speaking, this is the Libertarian philosphy. In a sense, this was Bentham's position, and it underlays Marx's arguments as well, as has been pointed out in the comments to prior posts. Marx' logic, of course, was that to lead to a state of true freedom, an intermediate period would be required. He didn't use the term "Philosopher Kings" to describe his Dictatorship of the Proletariat, but it is clear he had Plato in mind.
I see no particular reason to distinguish between a Dictatorship "of the Proletariat" from one "Not of the Proletariat." The extremes of either approach are unattractive, in the sense that for the majority they suppress the very freedom which is helping to generate the abundance.
Before I continue, I need to knock down a major fallacy that often bogs things down at this stage of the argument: Cultural evolution is not a continuum, nor does it have any intelligence of its own. There is the idea in most racist writings (for instance) that some cultures are superior to others. This is no more true than the scientific theory that a human is a higher order of being than a sea anemone: All we can say is that both are exquisitely adapted for their current ecological niches. Just as biological evolution is best viewed as a bush, rather than a tree, social evolution likewise is best viewed as cultures adapting in different ways to different circumstances and environments. There is no plan or order to any of it, and certainly not an over-riding intelligence directing developments.
Culture is not a moral agent. Our society is not superior to hunter-gatherers because we have perfected the cheese-flavored microwavable snack. In many measures, the hunter-gatherers have the best of it. In most studies by anthropologists, hunter-gathers work less, eat a healthier diet, and get more sex than the average American. Most of them have never even heard of Britney Spears or Ann Coulter. There are downsides, too, such as a lack of dental care and the inability to mitigate natural disasters or the aggressiveness of neighbors. Still, the pursuit of happiness is available equally in both.
That being dealt with, I also need to address another problem that my whole argument seems to raise, which is this: If I define rights functionally, ie, as the package of behaviors which a given culture permits, how do I avoid the trap of legal positivism? The topic has not been raised so far in this series, but I am hugely critical of legal positivism elsewhere on the blogosphere, particularly on DuWayne's brother Ed Brayton's Dispatches from the Culture Wars.
About.com gives a pretty good definition:
Legal positivism is the legal philosophy which argues that any and all laws are nothing more and nothing less than simply the expression of the will of whatever authority created them. Thus, no laws can be regarded as expressions of higher morality or higher pinciples to which people can appeal when they disagree with the laws. The creation of laws is simply an exercise in brute force and an expression of power, not an attempt to realize any loftier moral or social goals.
My argument against this is not that the statement is incorrect: I agree wholeheartedly that this is how law has operated for most of human history. Rather, my complaint is that it is incomplete, failing to take into account ideas of political philosophy and government -- and also religion -- that have been around since at least since the Sixth Century BCE, the time of Gautama, Confucius, and Pythagoras.
Yes, cultures are mostly shaped by economic forces. But ideas matter, too, and have consequences. At the margins they may be powerful forces themselves. For instance, I have no doubt that the Arab population was under great stress and perhaps greatly wanted to sweep away Byzantine control of Egypt and the Near East. Yet it took Mohammed and the idea of Islam to set the flood in motion (Note: There are historians who dispute this and argue that Islam only became a factor after many of the conquests were complete; I'm not convinced). Likewise, it is pretty clear that Buddhism was initially a reaction to overpopulation in the Indus valley and the resulting deforestation and ecological crisis. But the ideology clearly played a part, too, shaping the responses that the culture adopted.
My second objection is that the definition of legal positivism has another flaw: It assumes that because cultures are not moral agents, that we cannot make values-laden statements about them. This is preposterous. No, we cannot make statements such as, "That law is unjust because it violates the right to free speech." No such right exists. But we can make the statement, "That law is counterproductive because it infringes on free speech and free speech brings the following benefits to the culture:" with a list to follow. In other words, there would be no particular reason to favor free speech in the abstract if free speech did not bring tangible benefits to society. And many cultures have put restrictions on speech for precisely this reason: They see no benefit to it.
This approach also allows us to apply a framework to ideas which challenge liberty. I am a free speech absolutist, for the most part, and strongly oppose efforts to ban "hate speech," for instance. In general, it is best to oppose bad speech with better speech. However, if it could be shown that "hate speech" (however defined) has absolutely no utility to the overall culture, that would be a strong argument as to why it should be banned. A very similar argument, for instance, lies at the restriction on speech known as copyright: We guarrantee a writer exclusive rights to her work for a period of years in order to encourage new works to be produced.
This, then, is the solution to our paradox of power: As cultures become more complex. it is always in the best interest of the overall society to allow greater freedom, if not to all, at least to a certain class. Cultures evolve freedoms because greater freedoms allows for more good things, both materially, and increasingly, idealistic. I need to add that Marx was correct, religion is, indeed, a commodity, as much a part of a culture's happiness as many material components. And one very hopeful sign in the "New Atheism" of recent years is the understanding that a wholistic worldview that focuses on more than the self is compatable with atheism. Sam Harris seems ahead of the pack here.
I haven't read Mill's On Liberty in over 20 years. If I am recreating a lot of his arguments, I fully acknowledge the debt here. I am sure I also owe a great deal of my argument to Milton Friedman, Christopher Lasch, and my favorite professor at UNC Asheville, Bill Sabo. I've thoroughly enjoyed working on this series, and haven't had this kind of intellectual thrill in a long time. I imagine I'll be back to visit Inalienable Rights soon. Thanks to all for your patience, your comments, and just caring about the topic to begin with. Blessings.
Kurt A. Ehrsam