Saturday, February 14, 2009

A Question of Rights -- Part 1

Here is a Miriam Webster dictionary definition of a "right".

2: something to which one has a just claim: as a: the power or privilege to which one is justly entitled b (1): the interest that one has in a piece of property —often used in plural (2)plural : the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature 3: something that one may properly claim as due

Here is a link to an online legal dictionary that parses out several variations on the idea of "rights".

The general principle of a “right” seems simple enough: a right is a justly entitled privilege or power. The law does not create rights but acknowledges them as naturally existing. But what are the boundaries of our "justly granted privileges"? For legal purposes, those things not explicitly forbidden in law are considered in the realm of "just privilege".

Just because something is or should be in the legal realm of "just privilege" does it also mean that it is also good? Different people can be asserting that something is a "right" with very different ideas of what is good and how goodness relates to the law. To help bring more precision
to this question, I am going to offer my own vocabulary of “right” to help parse this out.

It is possible to believe that something must be legally within the realm of "just privilege" because it is fundamentally good and proper. I will refer to this as a "right of design", which is a legal right that is derived by working backward from a best use of our human design.
My right to vote is an example of a “right of design” which is derived from my naturally endowed rational powers, which are generally good to exercise.

It is also possible to believe that something should be legal within the realm of "just privilege" not because it is good but because it is impractical to use the law to stop it. I will refer to this as a "right of utility". In the realm of legally allowed “just privilege” a “right of utility” touches the realm of design only the very limited sense that a free person needs to be able to make bad choices in order for that person to have freedom. A right of utility works backward from what is merely impractical to enforce.

I have the right to get drunk in the privacy of my home. This is not a good use of design, since it is better of me to not get drunk even in the privacy of home. However, as the era of Prohibition taught us, it is not practical to make a law against it. Making a law against getting drunk at home would cause more problems than it would solve and be too intrusive to try to fix, so the right to get drunk at home is a right of utility as is the right to hit myself with a hammer.

It is this vocabulary of rights that I think will aid in our debate over hot button topics. It will reveal that there are several debates rolled into one:

DEBATE A) Those who believe that the issue involves a right of design vs. those who believe the issue would make something legal that is wrong and should not be made legal. These two parties are at fundamental odds with each other.

DEBATE B) Those who believe that the issue involves a right of utility only vs. those who believe that what is at stake is a right of design. These two parties have agreement on what should be legal but have different ideas of what is fundamentally good.

DEBATE C) Those who believe that the issue involves a right of utility vs. those who believe that the issue should not be a right at all. These two parties have some agreement on what is good but do not agree on how the law should be applied.

Very often in a hot button issue, the debate A) is front and center, but the debates B) and C) are equally important, even if they go on behind the scenes. Having this vocabulary will help organize what is being debated by whom.

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