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Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]
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Samizdata quote of the day From time to time I get into a lot of trouble with my allies because I express skepticism of the value of prescriptive rights, regulation or transparency. In fact am inclined to think (though there may be tactical advantage in their reception in law) human rights are an ornamental distraction from the pursuit of liberty, Gucci belts for those who think buying trousers is disgusting.
One of the reasons we are in such a terrible mess in the UK is that those on the left who used to care about personal liberty became utterly infatuated with the legalism, having been given the Human Rights Act as a pretty distraction, and now spend all their time defending its importance.
– Guy Herbert
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Amen. And to some extent the same can be said of the USA, as I sometimes find it almost impossible to have discussion about liberty with well meaning and impeccably pro-liberty activists without them immediately launching into a constitutional argument (i.e. a legal argument) as soon as they open their mouths.
The US constitution has proven to be a useful tool in limiting state power, albeit a steadily less and less effective one (large parts of the Bill of Rights are a dead letter), but in the end if all ones arguments for liberty hinge on what a legal document says rather than an underpinning universal principle, that creates all manner of vulnerabilities too. Much as I might criticise aspects of Objectivism, the Randoids at least understand that point with absolute crystal clarity.
In the end, it is attachment to un-enumerated rights that really matter the most, the importance of which most of the framers of the US Constitution understood well, but which has since been be lost in the blizzard of legalistic American statism… and something that used to be the very basis of Britain’s unwritten constitution, but which too has been lost, probably forever, under the tsunami of regulatory statism.
In summary: a difficulty in seeing the wood for the trees.
Best regards
Perry – you make an excellent point about un-enumerated rights and the framers. I’ve used that argument many times, since moving to the USA, though with varying degrees of success.
Typically, I cite the preamble to the Declaration of Independence. Typically, the conversation breaks down when my interlocutor, against all grammatical convention, is unable (or unwilling) to accept that “life, liberty and the pursuit of happiness” are examples rather than an exhaustive list.
I’m sure some people on the left ‘used to care about personal liberty’ and maybe some still do, but the left generally hates personal liberty for the masses preferring to tell them what to say, think and do.
I think the “left” ran out of credibility a few weeks into the French Revolution. Liberty on the Left was stifled in its crib.
Perhaps equally important as a “reason for the mess” in both the U K and the U S is the loss of earlier understanding of the direct relation of the concept of rights to, and dependence on, obligations.
This is particularly true with respect to what are called “prescriptive” rights, “entitlements.”
Entitlements require obligations on the part of some to the benefit of others. Those obligations have evolved to require enforcement through the various legal systems, largely because they have not attained commonality through spontaneous response in the social order.
Most, probably all, rights really arise and have practical existence in any social organization only to the extent they reflect a commonality of obligations. E.g., one’s right to freedom of speech or worship is sustained by the obligation of others not to interfere with that exercise – and such right will only exist to the extent the obligation is met. Thus constitutions may say that all have the obligation not to use the instrumentality of government to so interfere.
What has gone missing, or certainly declined, is the commonality of individual recognition, acceptance and performance of such obligations, giving rise to an acceptance of, and dependence on forms of collective enforcement of those obligations necessary to at least a minimal degree of social stability as changes in relationships occur.
RRS:
It seems to me that it happened the other way around: those forms of collective enforcement forcefully (obviously) replaced the social order which included the ‘the commonality of individual recognition, acceptance and performance of such obligations’
If you manage to get born, you have the right to struggle through life as well as your wit and whatever luck you can garner dictate. You also have the right to be thrown off the back of the sled with the cheers of your family in your ears as they cry “Fight the wolves or feed them Grandad, but keep them off the rest of us!”
Everything else is flim-flam being peddled by hucksters with designs on whatever wealth you have.
Having said that, if you feel the need to buy a Bill of
GoodsRights, it is probably better to buy one that has things like “The State shall make no law infringing upon your freedom of speech” in it, rather than one that says “You have the right to as much free speech as you can eat, (as long as the state doesn’t object in which case STFU)”Although the former promise has no more intrinsic worth than the latter, it does give you a clue as to the type of huckster you’re dealing with.
Well said.
My attitude for years has been along the lines of – take these worthless f*****g rights you keep granting me, and stuff them up your a**e. I want my freedoms back.
Alisa:
It seems less likely, if not wholly unlikely that, in an otherwise Open Society (U K & U S), the commonally held sense of individual obligations could be “forcibly” replaced rather than the need for obligation enforcement (previously provided by sufficient commonality of response) generating spontaneous acceptance of collective enforcements.
It would be interesting to review a theory of the nature of such a force that could “forcibly” change the commonally held sense of oughtness in a free society. It has proven impossible to do so for more than short periods in any exchange oriented (commutative) social order.
“In the end, it is attachment to un-enumerated rights that really matter the most…”
At the risk of saying something that’s been said many times before, those who warned a Bill of Rights would be transformed into the assumed totality of citizen’s rights (and a shaky one at that) – rather than simply examples of them – were ultimately correct.
That said – I kinda doubt we’d even have retained the liberties thus far sorta-semi-kinda protected (when the populace and government feels like it) by the Bill of Rights, without it.
RRS, by ‘force’ I do not necessarily mean an entirely external one – and as we well know, our lords and masters are not, and never were aliens anyway. It’s just some humans desiring to control other humans, obligations be damned. While motivations may vary, the desire is always the same.
I almost feel things were better when the left denied the existance of rights (or natural law – for those who dislike the word “rights”).
Since they have decided that they like the idea of “rights” (and not just in the sense of “righs as substantive benefits” – i.e. food, shelter and so on) they have so twisted the discussion as to make the concept of rights a mess.
For example, “I am in favour of liberty – and anti discrimination rights are a vital part of liberty” is now an almost universal position in universities and court rooms.
The idea that liberty is about keeping “the law” OUT of normal life is totally alien to the left.
So we are left with the temptation to do away with “rights talk” altogther, Or to mock it as Burke did in the “Reflections….” making comparisons between the “univeral rights” of the formal documents of the French Revolution – with the “rights of Englishmen” in ordinary life.
But look at all the trouble that caused.
For over a century most writers took the above to mean that Burke was a utilitarian (an idea that would have horrified him).
And some writers (such as President Wilson of the United States) viewed Edmund Burke as a kindred spirit – supporting the idea that the state (which Wilson called society – because, being vile, he made no sharp distinction beteen the state and civil society) evolves through time – with no real limitations on its growth and how it should help and guide people at every turn.
I am not sure that this would have just horrified Burke – being held to agree with the above (as Wilson thought he did) would have been quite likely to have given him a stroke. It is the very “geographical” and “historical” morality that Burke denounced all his life – as if murder, rape or robbery was wrong if done in 18th century London, but fine if one did it India – or if the Romans did it a couple of thousand years ago.
No there is clever way round the problem – one has to to go and say.
No you have got what a right is all messed up – a right is a limitation of state power not an excuse for it.
Nor is a right a collective thing – there is no right to order other folk about, or to a particular political system (as the “right to vote”). Nor is property “held” as long as such ownership “benefits the community” – because if one has to prove stuff like that, there is no real “ownership” at all [some people may notice that a lot of this mess, and other sillyness as well, can be found in the French Revolutionary “Rights of Man” – which like the Human Rights Act looks libertarian till one starts to read it carefully].
Nor can the PRINCIPLE OF JUSTICE (TO EACH HIS OWN) which is the basis of the idea of “right” be anything to do with being nice to people – that is a different virtue (a just man may be as cold as ice – someone who has never been nice to anyone in his life).
Anti discimination (to take an example) is nothing to do with justice – it is about being nice, treating people “fairly”.
And saying “Justice is fairness” shows that someone does not know what “justice” means, not “being nice” but “hands off”.
So it is not really a matter of “let us avoid legal principles” that is the temptation – but it leaves the field fee for misundersantding.
One has to be blunt.
“You leftists have got the legal principles all wrong – now bugger off and leave us alone”.
That is the only way to allow for the “space” in which civil society lives – i.e. in which people can engage in peaceful civil interaction without the state getting involved.
In short only a clear understanding of legal principles (in the sense of what justice, what right, is and what it is not) can keep “the law” (the police and so on) out.
Otherwise the state is involved in everthing – in order to maintain a false understanding of what liberty and freedom are.
In a constant war against “discrimination”, “hate speech”, “unfairness” (as in “unfair dismissial” and so on) and other things that are nothing to do with justice.
Defining terms is important and unavoidable – unless one want to allow the other side to define such terms as “justice”, “freedom”and “liberty”.