Rights Are Often Wrong

This started out as a post about gun rights, but as I thought about it, I realized that post wouldn’t make much sense without a more in depth talk about rights.  So, I’m going to attempt my first ever two part post.  This one will deal with rights in general and the next one will deal specifically with guns.
Talk of rights gets very confusing very quickly for a variety of reasons, but mostly because people mean different things when they talk about rights.  Some talk about human rights, some talk about political rights, some talk about property rights, etc.  And within each of those, people have differing opinions about whether rights are positive or negative, who or what the rights apply to, and even whether rights are somehow real or merely a human construct.  All of these differences makes using rights as the basis of a broad argument nearly impossible.  However, in many parts of the world, the legal and political systems are based, at least partly, on rights.  This means that people are forced to use rights in their arguments if they want to engage in legal and political debate.  So, what are we to do?
The most tempting answer is we need to define our terms*.  Philosophers love to define things.  We’ll just get a panel of philosophers together to hash out the definitions, get everyone to agree to those definitions, and then we’re off to the races.  Unfortunately, it doesn’t work that way.  As much as the history of philosophy, going back thousands of years, is full of attempts to clarify issues based on definitions (some would even say that the discipline started this way), it is not a really fruitful method.  While it is important for thinkers to define their terms as they will be using them in a particular piece, that is not the normal way that definitions work.  Even if we could get a group of philosophers to agree on definitions, there is just no way to get everyone else to adopt those definitions or to keep them static.  And since the point of this would be to engage in real world political and legal issues, a static definition used only by philosophers isn’t helpful.
Another answer that many find tempting is what I will call the scientistic answer.  This is when people try to answer a non-scientific question with a scientific answer.  These people come in two camps.  One camp, the Platonist camp, assumes that rights, and other concepts, are real entities that can be discovered and studied.  To the best of my knowledge, no one has yet discovered these entities.  I’m happy to keep an open mind and learn from them if and when they are discovered, but for now we don’t have anything to study.  The other camp, the physical sciences camp, believes that we can use biology, neurology, physics and chemistry to discover what rights really are and how they work.  This is a problem on several levels.  The most obvious one is that it runs afoul of Hume’s Is/Ought problem (For the non-philosophers, this is simply that there is no logical way to get an ought from an is).  Rights are oughts.  They are saying that a person or entity should or should not act in a certain way.  But, science, like biology, only deals with what is.  There is no way to bridge that gap. There have been people who think they can bridge the gap, like Sam Harris.  But, every attempt I have seen is committing the naturalistic fallacy (explaining the good by reducing it to natural things like pleasure).  Another problem with the physical sciences camp is that they are committing the appeal to nature fallacy (assuming that what is natural is good and what is unnatural is bad).  Following this line of reasoning quickly becomes absurd.  Rape and murder are natural, after all. So, in a way, these camps are really one since the physical sciences have nothing to study unless the Platonists are right.
There is always the option of looking at rights strictly from a legal point of view.  If the US Constitution guarantees a right to free speech, then Americans have a right to free speech.  If the UN’s Declaration of Human Rights says that everyone has the right to paid holidays, then anyone who lives in a place that has ratified the Declaration has that right.  The problem with this way of looking at it is there isn’t room for debate.  It becomes like a speeding ticket.  Either a right was violated or it wasn’t and a violator should get the proper punishment.  This is fine for actual court cases, but not higher level arguments.  Simply looking at what rights are guaranteed in a certain jurisdiction and assuming those rights are justified closes off discussion.  These arguments aren’t about what the US Constitution says, but rather what it should say.  We aren’t debating what the UN Declaration of Human Rights says, we want to know if the things it says are good.
So, what are we to do?  Should there be a moratorium on arguments involving rights?  I don’t think so.  What I do think is people need to follow some ground rules when having these arguments.  First, all parties must adhere to the principle of charity.  Simply put, we should always assume the best from our opponent’s argument.  Second, don’t quibble about small details.  Rights are a big subject, so lets all look at the big picture rather than getting bogged down and off track because of small matters.  Third, be pragmatic whether you believe in Pragmatism as a philosophy or not.  If these were merely academic matters, it would be fine to try for perfection.  These issues affect real people, so try to find workable solutions.  Fourth, and this one should go without saying, keep an open mind.  If we are unwilling to learn something new and change our opinions, there is no point to engaging in an argument.  So, unless a person is willing to lose the argument, that person shouldn’t bother arguing.
I’ve been talking about rights here, but these ideas apply to most any abstract concept.  Things as far apart as beauty and justice can both benefit from similar views.  At the very least, we can all strive to make the conversations more civil so that we can actually progress.
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*Since I’m writing about how to argue about rights when we can’t agree on what we mean by rights, I do not say what I mean by rights.  But, anyone reading this might be curious.  So, I believe that rights are means to political ends.  They are real in a very specific sense, but not in the sense that most people mean when they use the word real (see Popper’s views on the First, Second and Third Worlds to get a general idea).  In other words, I take a fairly Utilitarian view of rights.  The right itself is not as important as the reason for guaranteeing the right.
As this is just a blog post, not a formal paper, I did not do any research specifically for this and do not have a bibliography or citations.  But, I can tell you the authors that helped shape my opinions.  Some by making points that I agree with and others by being way off base, but all of them helped.  Plato, Aristotle, Augustine, Hobbes, Locke, Rousseau, Hume, Kant, Jefferson, Madison, Franklin, Paine, Hegel, Bentham, Mill, Emerson, Thoreau, James, Dewey, Oakeshott, Russell, Dubois, Popper, Friedman, Rand, Keynes, Arendt, Rawls, Nozick, Nussbaum, and Sen.