TeddyKGB said:
How are rights given or taken?
The Declaration of Independence speaks of "inalienable rights" but also states that a government is necessary to ensure those rights. And in any case, they do not seem all that inalienable: I can allow someone to kill me; I can be killed against my will.
It is often said that God can grant rights, but I can be killed against my will nonetheless. God can extract a penance for my murder, but it is a penance for violating God's directive, not for transgressing against me personally.
My thoughts come this far and no further.
I don't think rights are absolute or divinely granted -- as you say, they can clearly be violated. However, I would say they are rationally based on some simple principles of society. Note: the following is an argument that I've developed over time, and this is its current form. It may be very flawed, but if so I'm counting on you guys to point out how and where.
Society, I would think, exists because humans find it convenient, useful, and pleasing to function as a member of a group. That is, the function of society is to confer social benefits on its members, and to the extent it performs its function well, it is "good." Since each member is, presumably, a member by choice (after all, any of us could go live in the mountains as a hermit, and then none of this would apply), I would say that
every member of society deserves exactly the same incentives as every other member.
This is not to say that we will all use those incentives wisely, but if we don't all start out at the same level using the same rules, then what we have is not a society but instead a tyranny (of those with the most incentives) over slaves (those who are denied some or all incentives). That's great for the tyrants, but why should the slaves care to contribute to society for the benefit of the tyrants who deny them freedom? They will not; rather, they will grudgingly labor until the opportunity arises to throw off their bondage and do serious harm to the tyrants. If nothing else, it should be clear that such a society is hopelessly unstable (as expected, history shows that oppressed people will invariably revolt successfully sooner or later; it is no accident that most societies today grant at least some rights to the least of their members).
To be specific, then, the function of society is to confer the proper social benefits on its members to facilitate a fair and equal starting point and set of rules for every member of society, without exception (yes, I know criminals are an exception -- I'll address that later).
Now let us examine the nature of rights. Society sometimes grants its members freedom to perform certain actions, or protection from the actions of others. We call these priveleges "rights." By their nature, a granted right denies a privelege to other members of the group -- either the freedom to prevent certain actions, or freedom to perform actions against other members of society.
It would seem at first glance, then, that rights do not facilitate society's function. A right grants benefits to certain people and denies them to others; if society functions to confer benefits on all of its members equally, then rights both aid that goal and hinder it. For example, if we grant the right to gay marriage, society is giving freedom to homosexuals but denying it to those who consider gay marriage hateful, immoral, or dangerous.
However, such a simplistic examination of rights ignores the fact that the activities permitted or denied are also factors in society's effective performance. A behavior that hinders the goal of equal opportunity for all of society does not deserve a right in and of itself -- it deserves a right only if the alternative would hinder society's goal even more. A behavior that has a neutral effect on society's function deserves a right only if that right does not prohibit a behavior that has a beneficial effect on society's function. A behavior that has a beneficial effect on society's function almost always deserves a right, unless that right would deny an even greater positive effect on equal opportunity. As I think about the various rights we grant or don't grant, it seems to me that they can all be tested this way.
Murder, for example, unbalances the equation: a murderer denies all social benefits to at least one individual (unequally), while denying the right to murder would deny only a single social benefit (that itself constitutes severe social damage) to all members of society equally. It is, therefore, rational to prevent murder in a society of this kind.
The right of free speech is another excellent example. To deny free speech is to severely handicap society; if those in power allow only the speech they agree with, then society can speak out only for the benefits the leaders choose to grant of their own volition. Allowing free speech allows the members of society to publicly tend to their place in society, and denies only the right of a few to shackle society and prevent it from performing its function. It does not deny the right to
aid society in performing its function, nor does it deny any other right (allowing people to
act on their speech may deny many rights, but that is another matter altogether). Therefore, it is rational to grant society's members the right of free speech.
On the other hand, what about the right to post the Ten Commandments in a courthouse or other public structure (public structures being different from private in that those who enter and use a private structure have a private choice to do so or not -- so if you are harmed by a private structure, it is not because your opportunities were unequal but because you chose to forfeit your right to equality)? This right clearly benefits a Christian or Jew; but that's not the question here. Does it facilitate equal opportunity? It does not. Those who believe in the Ten Commandments clearly benefit from this, while those who do not believe in the Ten Commandments are clearly harmed by this. On the other hand, if we deny everybody the right to post their ideology in a public structure that we all must use, then everybody is equally protected (and equally denied freedom to post their ideology, but that's the trade-off of a right). Separation of church and state, then, facilitates the function of society, while allowing special treatment for certain religions hinders society's function. It is rational to require the separation of church and state, then.
If you guys want more examples, just ask and I'll post them. For now, though, I think that's enough to look over. Now, there are a few secondary effects of this reasoning. The most important (and the only one I'm going to address right now) is that it would seem that we cannot punish criminals if we follow these rules, as punishments such as imprisonment, capital punishment, and so forth clearly give unequal opportunity to the one so punished. Criminal sentencing falls into the category of behaviors that hinder equal opportunity; we deserve the right to sentence criminals only if the alternative would hinder equal opportunity even more. Let us see if that is the case, then:
Having created a set of rights and rules that permit society to perform its function as effectively as possible, we would all ideally obey these rules, creating equal incentives for all members and maintaining a state of peace and cooperation amongst ourselves. However, it is a statistical certainty that for any rule we create, there will be at least one human to violate it and damage society thereby. What should we do to prevent this?
I can think of two ways to maintain obedience to the rules of society. We can convince offenders to stop offending, or we can forcibly prevent them from acting in these ways. The first must be chosen, in my opinion (I have reasons for this, but they are much too complex to include here); criminals who choose it are no threat and can participate in society just like anyone else. However, criminals who refuse to choose rehabilitation must be neutralized if we are to maintain society. The alternative is the total collapse of society, unless all mankind becomes enlightened enough to follow social rules by choice. Thus, it seems clear that although criminal punishments are "bad" when judged by the function of society, the alternative is even worse. According to the rules I've outlined above, it is rational to punish criminals in ways that will prevent their inappropriate behavior in the future.
The corollary here, of course, is that punishment is not an end in itself. It should be clear from my arguments that punishment is never itself a good thing; it is, at best, the lesser of two evils. If the primary goal and function of a given punishment is not rehabilitation whenever possible and removal from society when rehabilitation is impossible, then it is bad for society. A criminal should never be punished for the purpose of revenge, but only for the rational benefit of society. Thus, while punishment of criminals reduces society's ability to perform its function, it is impossible to remove this difficulty, and so society can still be said to function as well as possible.
Finally, I'd like to outline a couple of major flaws in my argument (I don't think that they refute the argument, but they are issues that should be addressed).
First, my argument collapses if you postulate an omniscient source of action/consequence pairs. Given that we don't have all information, it would make sense that an omniscient being would know better that we do which actions have good or bad consequences. By postulating such a being, it is possible to completely bypass the rational question of a behavior's effect on society, and claim that a given behavior is "bad" or "good" for reasons we aren't intelligent enough to grasp. However, I reject this reasoning because unless we are omniscient ourselves, we cannot determine that the being in question is omniscient; therefore, we must find these things out for ourselves even if there is a God out there who tells us what is good or bad, until it is proved that said God is omniscient.
Second, one could define "opportunity" in terms of how closely society aligns with your beliefs. That is, if I believe homosexuality is immoral, then I might argue that I am given unequal opportunity because homosexuals get to live in a society that permits their behavior (as they believe it should) whereas I have to live in a society that allows homosexuality (though I believe it should not). With this definition of "opportunity," society denies most incentives to most people no matter what rules it creates. Most people who make this argument are trying to prove that the majority should rule (rather than the most equal opportunity for everyone, they propose the greatest good for the greatest number of people) -- that is, all rules should be made by a straight vote, so that minorities get nothing and majority groups get everything.
But that second argument has a critical flaw: it brings about the tyrant/slave system outlined above, and as I have argued, that system is incurably unstable (because of the slaves' dissatisfaction and tendency to revolt) and counterproductive (because the slaves labor under compulsion rather than by choice) for the tyrants, and for the slaves it is clearly harmful in just about every way.
But here's the neat part! As the beliefs of society converge, the two systems converge. If all members of society believe the same things, then rules based on those beliefs will have a universal good effect and no bad effect whatsoever (and punishment is not necessary because nobody violates the rules). Naturally, it is highly unlikely that all members of society will ever have exactly the same beliefs, but this serves to demonstrate that the inequality of belief-systems stems not from an inequality in society itself, but from disagreement among humans that society really can't remedy.
In short, society is a system created for the benefits it confers on its members. An inequality in these benefits creates instability because society's members choose to participate, and social stability exists by their permission (note that just one member of society can severely damage its stability, e.g., the Unabomber). Therefore, society will ideally facilitate equal opportunity and rules for all members whenever possible, and all "rights" can be judged rational or irrational based on this criterion. Look my argument over, and tell me what you guys think.
