Posted on 02/20/2007 5:05:56 PM PST by tpaine
Rights and Freedom
Most rights entitle their holders to freedom; indeed holding a right can entail that one is free in one or more of a variety of senses. In the most general terms, the active incidents; - the privilege and the power; - entitle their holders to the freedom to act in certain ways. The passive incident; -the claim and the immunity; - often entitle their holders to freedom from unwanted actions or states.
We can be more specific. A privilege-right makes it holder "free to" in the sense of non-forbiddenness. A government employee with a security clearance, for instance, has a right that makes him free to read classified documents. One can be free in this "no duty not to do it" sense without having the physical ability to do what one is free to do. You may be free to march in the parade, even when both your knees are sprained. The actions you are free to do in this sense may or may not be possible for you, but at least they are not disallowed.
Someone who has a pair of privilege rights; - no duty to perform the action, no duty not to perform the action; - is free in an additional sense of having discretion over whether to perform the action or not. You are free to tie your left shoe first, or not, as you like. This dual non-forbiddenness again does not imply physical ability. A rightholder may be disallowed neither from performing nor not performing some action, but this still does not mean that she actually can perform the action that she is free to perform.
In contrast, the holder of a power-right does have an ability. This is the normative ability to exercise authority in a certain way (Sumner 1987, 28). This normative ability confers freedom in a different sense. A judge is free to sentence a convicted criminal to prison. The judge is not merely allowed to sentence the prisoner: her power-right gives her the ability; - that is, the authority; - to do so. Her right makes her free to sentence in a way that non-judges are not free to sentence.
As for the passive rights, many claim-rights entitle their holders to be "free from" the physical interference or surveillance of others. Other claim-rights entitle their holders to be free from undesirable conditions like hunger or fear. Immunity-rights parallel claim-rights at the next level up: immunity-rights make their holders free from the authority of others, and so free from conditions like tyranny or exploitation.
A legal system can be seen as a distribution of these various types of freedom. Any legal system will set out rules specifying who is free to act in which ways, and who should be free from the unwanted actions of others. A legal system will also determine who has the authority (and so who is free) to interpret and enforce these rules.
More generally, a political constitution can be seen as a multi-level structure of rights that distributes authority over rules of conduct in a distinctive way. A democratic constitution, for example, may give voters the power to elect legislators, who have certain powers to enact laws, which the judiciary has certain powers to interpret, and the police have certain powers to enforce. The facts about who should be free to do what within any legal or political system, as well as the facts about who should be free from which actions and conditions, will be expressible as a complex set of layered rights.
Rights and Reasons
Rights as Trumps
Though there is disagreement over the function of rights and the history of rights language, all agree that rights have special normative force. The reasons that rights provide are particularly powerful or weighty reasons, which override reasons of other sorts. Dworkin's metaphor is of rights as "trumps" (Dworkin 1984). Rights give reasons to treat their holders in certain ways or permit them to act in certain ways, even if some social aim would be served by doing otherwise. As Mill wrote about the trumping power of the right to free speech: "If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be in silencing mankind" (Mill 1851, 20).
Dworkin's metaphor only requires that rights trump non-right objectives, such as increasing national wealth. What of the priority of one right with respect to another? We can keep to the trumps metaphor while recognizing that some rights have a higher priority than others. Within the trump suit, a jack still beats a seven or a three. Your right of way at a flashing yellow light has priority over the right of way of the driver facing a flashing red; and the right of way of an ambulance trumps you both.
This metaphor of trumps leads naturally to the question of whether there is any right that has priority to absolutely all other normative considerations: whether there is an "ace of rights." Gewirth (1981) asserts that there is at least one such absolute right: the right of all persons not to be made the victim of a homicidal project.
For such a right to be absolute it would have to trump every other consideration whatsoever: other rights, economic efficiency, saving lives, everything. Not all would agree with Gewirth that even this very powerful right overrides every conceivable normative concern. Some would think it might be justifiable to infringe even this right were this somehow necessary, for example, to prevent the deaths of a great many people.
If it is permissible to kill one in order to save a billion, then not even Gewirth's right is absolute.
Thus, - our right to own and carry arms is a privilege-right, not to be infringed.
"-- In contrast, the holder of a power-right does have an ability. This is the normative ability to exercise authority in a certain way. --"
Thus - our right to private property [our home as our castle] empowers us to exercise authority to keep others out.
"-- What of the priority of one right with respect to another? We can keep to the trumps metaphor while recognizing that some rights have a higher priority than others.
This metaphor of trumps leads naturally to the question of whether there is any right that has priority to absolutely all other normative considerations: whether there is an "ace of rights."
Gewirth (1981) asserts that there is at least one such absolute right: the right of all persons not to be made the victim of a homicidal project. --"
Thus, our privilege-right to carry arms ["-- the right of all persons not to be made the victim of a homicidal project. --"] in self defense, would certainly trump the right of a business property owners power-right to exercise authority to keep armed customers & employees out.
"-- A legal system [Our Constitiution] can be seen as a distribution of these various types of freedom. Any legal system will set out rules specifying who is free to act in which ways, and who should be free from the unwanted actions of others. --"
Our Constitution is clear, we should be free of unwanted actions of others to infringe upon our right to carry arms is.
-- Nothing is said about a property owners power-right to exercise authority to keep armed customers & employees off of his business property.
Thus, - our right to own and carry arms is a privilege-right, not to be infringed.
"-- In contrast, the holder of a power-right does have an ability. This is the normative ability to exercise authority in a certain way. --"
Thus - our right to private property [our home as our castle] empowers us to exercise authority to keep others out.
"-- What of the priority of one right with respect to another? We can keep to the trumps metaphor while recognizing that some rights have a higher priority than others.
This metaphor of trumps leads naturally to the question of whether there is any right that has priority to absolutely all other normative considerations: whether there is an "ace of rights."
Gewirth (1981) asserts that there is at least one such absolute right: the right of all persons not to be made the victim of a homicidal project. --"
Thus, our privilege-right to carry arms ["-- the right of all persons not to be made the victim of a homicidal project. --"] in self defense, would certainly trump the right of a business property owners power-right to exercise authority to keep armed customers & employees out.
"-- A legal system [Our Constitiution] can be seen as a distribution of these various types of freedom. Any legal system will set out rules specifying who is free to act in which ways, and who should be free from the unwanted actions of others. --"
Our Constitution is clear, we should be free of the unwanted actions of others to infringe upon our right to carry arms is.
-- Nothing is said about a property owners power-right to exercise authority to keep armed customers & employees off of his business property.
Freedom from hunger, a right that imposes a performance obligation on others.
secretagent wrote:
Freedom from hunger, a right that imposes a performance obligation on others.
I agree, -- 'freedom from hunger' is not a right.
The article is worth reading though.. Here's more on claim-rights:
"-- 2.1.2 Claims
A contract between employer and employee confers on the employee a right to be paid his wages. This right is a claim:
A has a claim that B; -- if and only if B has a duty to A.
The employee has a claim that the employer pays him his wages, which means that the employer has a duty to the employee to pay these wages. As seen in the definition and the example, every claim-right correlates to a duty in (at least) one duty-bearer.
Not all claim-rights are created by voluntary actions like signing a contract; and not all claim-rights correspond to duties in just one agent. For example, a child's claim-right against abuse exists independently of anyone's actions, and the child's claim-right correlates to a duty in every other person not to abuse her. This example of the child's right also illustrates how a claim-right can require duty-bearers to refrain from performing some action. --"
A distinction between negative and positive rights is popular among some normative theorists, especially those with a bent toward libertarianism. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. A right against assault is a classic example of a negative right, while a right to welfare assistance is a prototypical positive right (Narveson 2001).
Since both negative and positive rights are passive rights, this division cannot capture all rights. Privileges and powers cannot be negative rights; and privileges, powers, and immunities cannot be positive rights. For example the right to enter into a binding agreement, and the right to veto a bill, are neither negative nor positive.
Read this stuff very critically! It is the result of over 100 years of Academic attempts to redefine the words used by the Founding Fathers to create this nation.
For example:
"Freedom" is redefined from "freedom from government constraint" to "freedom from want".
"Right" is redefined from "Congress shall make no law, and right to self defense" to "right to quality education, or right to an abortion".
No where will you see the words that describe that the Government is the only institution that is allowed to use violence to enforce its edicts. Without that reminder, the words "freedom" and "right" become floating abstractions with no grounding in reality.
"-- A legal system [Our Constitiution] can be seen as a distribution of these various types of freedom. Any legal system will set out rules specifying who is free to act in which ways, and who should be free from the unwanted actions of others. --"
Our Constitution is clear, we should be free of unwanted actions of others to infringe upon our right to carry arms.
Read this stuff very critically!
I have.. And I've used some of its conclusions to reinforce some of mine.
It is the result of over 100 years of Academic attempts to redefine the words used by the Founding Fathers to create this nation. For example: "Freedom" is redefined from "freedom from government constraint" to "freedom from want".
Read the entire linked article. Its long, and I don't see any such 're-definition'.
"Right" is redefined from "Congress shall make no law, and right to self defense" to "right to quality education, or right to an abortion".
Nope, I don't see those quotes either. Where do you?
No where will you see the words that describe that the Government is the only institution that is allowed to use violence to enforce its edicts. Without that reminder, the words "freedom" and "right" become floating abstractions with no grounding in reality.
You lost me again. -- 'We the People' can use violence to enforce our liberty, and we can authorize our various levels of governments to do so.. -- Nothing in the article disputes that fact that I can see.
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