Rights

Rights are an important legal concept, and in the interest of justice in an imperfect world sometimes need to be defended, but ethics should guide law, not the other way around. Mutual recognition makes the blunter instrument of unilateral “rights” superfluous for ethical purposes. Kantian respect for others and the Aristotelian spirit of friendship already do so. If we respect others in our actions and treat them in a friendly way, they need not worry about enforcing any putative rights in relation to us. (See also Leibniz.)

If we examine what Hegel called “positive” (actually existing) law, it is often not guided by good ethics as it should be. All too much law is devoted to institutionalizing unilateral privilege (etymologically, “private law”) of one sort or another. We are supposed to be consoled that by the fact that everyone is assigned at least a few privileges, but the whole model of unilateral privilege is ethically deeply wrong.

It is an unsavory fact that the unilateral, unconditional privileges associated with modern ownership and sovereignty historically descend from medieval libertas or “liberty”, or the unconditional right of the Master to rape the peasant’s daughter and generally do as he pleases, with no regard for others. This kind of “liberty” is an ugly voluntarist fantasy associated with what Plato called the worst sort of character, that of a tyrant.

Years ago, I was shocked to learn that the classic modern development of the notion of rights explicitly models all rights on unilateral property rights, making reciprocal rights of people a derivative afterthought. (See, e.g., C. B. Macpherson, The Political Theory of Possessive Individualism.) Hobbes and Locke did this, and specifically on the question of rights Kant and Hegel unfortunately followed suit, even though their views provide resources for a much better, people-first account, based on respect or mutual recognition.

All rights deserving of legal recognition should be grounded in respect. If we respect property, it should be because we respect people, not the other way around.