We are only at the halfway point and already this year has seen global crises and upheavals on unprecedented scales. The year began with ever increasing political tensions as more and more countries grappled with a resurgence of autocratic leadership and ideologies. The pandemic brought all global activity and economies to a stand-still as lockdowns proved the only effective measure for containing and decreasing infection and mortality rates. And in the wake of the killing of George Floyd racial tensions have snapped igniting ongoing protests all over the world decrying the disproportionate and excessive abuses Black people have suffered at the hands of police.
Despite in many ways being very different crises there is a common thread to not only to the nature of their particular struggles but to the focal points of those struggles as well. Amidst all the other consequences and challenges the one constant through everything has been growing and intensifying debates over, demands for, and battles to protect what we perceive to be our rights.
It is a powerful word we all take very seriously but which also gets thrown about a great deal in ways which demonstrate a somewhat distorted, albeit zealous, misinterpretation of what a right actually is.
We tend to treat rights, at least in Western cultures, as some form of existential promise and obligation owed to us by the universe. Whether attributed to fundamental philosophical ethics or religious doctrine we treat and view a right as a sacred thing, a concept and ideal elevated beyond all other concerns.
The idea of establishing protected rights, and the systems to affect their protection, lies at the heart of every national constitution around the world. And the concept of fundamental rights is the primary cornerstone for the rule of law dating all the way back to the first known legal code in 2350BC Mesopotamia. But for the vast majority of our history the power to determine, designate, oversee, and enforce the rights of any particular group or person has rested solely in the hands of those in power.
In our earliest histories that power belonged to the religious or spiritual leaders then eventually passed to the hands of ruling monarchs, though the conflict between religious and secular leadership continues to this day, and finally in modern times for the most part to elected governing bodies.
Belief in the sanctity of human life and the value of personal freedom have been with us all throughout history but even those reforms of Urukagina of Lagash in 24th century Mesopotamia, aimed at fighting both secular and religious corruption and often cited as the first legal code in recorded history, delineated different rules for different groups. Men had certain rights, women had certain rights, children, slaves, rich land owners, priests, the poor and fettered, each group had certain rights.
Urukagina gets credited as being a reformer as many of his decreed rules were aimed at protecting his subjects from corruption, such as exempting orphans from taxes and requiring the rich to use silver when purchasing from the poor whom they could not force to sell if they did not wish to. But the rules were different from group to group.
It wasn’t until the issuing of the Magna Carta in 1215 sparked the development of Humanism as a philosophy during the Renaissance leading to the Liberalism of the Age of Enlightenment that our modern understanding of a right as being something all people were entitled to emerged. Originally written because of a disagreement between Pope Innocent III, King John, and the English barons over the scope and limits of the King’s power the Magna Carta forced the King to relinquish some of his powers, respect certain legal procedures and that his will was also subject to the law, and guaranteed common citizens access to legal procedure (habeas corpus) to appeal unlawful imprisonment.
The Magna Carta was the first legal code placing the rule of law above monarchical leadership and became an essential blueprint for all modern day bills and charters of rights. Humanism born Liberalism championed that rules of law, and the rights they protected, should apply to everyone equally and we have been attempting to pursue that ideal ever since.
It is a lofty ideal and one absolutely worth pursuing but it is important to be clear about the basic truth of their nature. Rights are not things which exist on their own. They are things we agree upon as a society. They are a crucial part of the social contract we all make as part of belonging to a society but they are also a product of that contract. They don’t exist without it.
Whether or not we are successfully or even effectively pursuing this ideal is an entirely other debate, there are still several places in the world which are making no efforts towards genuine equality of any kind. But it is important to note what we are looking at are not cosmically guaranteed primordial rights but rather promised privileges conferred by the society we are a part of.
“Rights aren’t rights if someone can take ’em away.”
George Carlin — 2008
This doesn’t make them any less meaningful or important. It is simply a vital truth of perspective needed to properly tackle the challenges of trying to achieve them. For something to truly be a right, genuinely accessible and protected for all members of the society, we will all have to acknowledge it as part of our collective social contract. We have to understand who the source and participants of that social contract are. The answer is, all of us.
What Are They?
Before we can figure out how to implement and protect our rights we first have to decide what they are. That may sound simple on its face but different people, groups, and ideologies will prioritize different rights in different ways and to different degrees.
Even if we are able to agree on the fundamental concepts of our rights we then have to figure out how they manifest in day to day life. We can declare ‘life, liberty, and the pursuit of happiness’ but what does that mean practically?
‘Life’ may be fairly easy to agree on but what about ‘liberty’? Definitions of freedom can vary drastically from one person to the next, one culture to the next, even one generation to the next. As Jeremy Rifkin points out in his speech ‘The Third Industrial Revolution’ one of the biggest differences between Boomer and Millenial mindsets is their definitions of freedom. Boomers define it as self-reliant independence and exclusivity while Millenials define it by the number of different networks and communities they have access to, inclusivity rather than exclusivity.
And trying to specify a definition of ‘happiness’ is a rabbit hole we could disappear down pretty much forever without exhausting all the possible definitions.
The important point to realize and acknowledge is simply declaring something to be a right does not make it so, nor can it. Before we can pursue or protect them we have to first define them and in order to do that we as a society will have to agree on them.
Who Do They Apply To?
If we want to be generous we could posit we have made a decent amount of progress on attempting to define the rights we feel people should be entitled to, if not necessarily the range of practical examples, but one of the areas all societies are still falling down on is the issue of who those rights apply to.
The idea of a right being a universal human right would make it seem like that question is the easiest to answer out of all of them, everyone. But one doesn’t have to look hard to see evidence of it being the most highly contested question of the lot.
As a species we have a rather lousy track record when it comes to our ability to handle difference. Fear of the unknown and unfamiliar is a natural survival instinct but as societies we have let that fear be weaponized and codified into ideology to the point we have found it completely acceptable for one person to own another.
We may have abolished slavery on an institutional level but the attitudes of divisive superiority clearly persist and any decent look at the epidemic of sexual based human trafficking reveals there are still forms of slavery which modern day people are able to justify and endorse with the help of enough capitalistic distortion.
The simple answer is as long as difference is allowed to be a determination or worthiness there will continue to be imbalances in distribution of privileges within a society.
How Are They Protected And Enforced?
There are two qualifying factors required for a rule to be a rule. We as a society must agree upon it and there must be consequences for breaking it, always for everyone. Our track record on the first is…okay. Our track record on the second is pretty terrible.
As our societies become more complex so too do the scenarios and examples and shades of nuance when it comes to the circumstances and context of enforcing our agreed upon rules. So many aspects of our cultures and technologies grow and develop far, far faster than our procedural system for updating and fleshing out codes of law.
Debates about deterrence, punishment versus rehabilitation, financial influence over quality of representation, and the degree of freedom to litigate could all go in circles ad infinitum however the important fundamental principle to keep in mind is it is not the severity of the consequence which makes it effective it is its certainty.
There always needs to be room for circumstance to potentially mitigate the severity of sentencing but if there are ways for some members of a society to circumvent or avoid consequences for violating societal rules, or be exempted from them entirely, then they are not societal rules. That is a return to a system of monarchical rule and one cannot have both that and inviolable rights.
What Circumstances Supersede?
Part of the trouble with trying to declare something a cosmically guaranteed right is that there will always be the potential for circumstances which will conflict and potentially require precedence.
Instances of large scale war, crisis, or disaster can obviously be circumstances in which conventional societal rules and regulations may need to be superseded. Military drafts, travel restrictions, civilian curfews, emergency relocations, there are any number of ways a governing body may need to take drastic actions in the face of a dire threat.
Defining what constitutes a ‘dire threat’ is another one of those rabbit holes of nuance and interpretation but part of functioning as a society requires understanding that there may, or rather will, be times when decisive action for the sake of the greater good will need to be taken swiftly which may by necessity violate conventional rules.
Our current challenges with the COVID-19 pandemic are a perfect example of just how tangled those grey areas can become. If the virus were much more instantly and pervasively fatal, if it had a 90% mortality rate within the first 48 hours, it is far less likely we would have people protesting over not being able to get a haircut but one thing the vast differences of response even within single nations illustrates is how imbalanced and potentially disastrous purely autonomous decisions about such matters can become.
If decisions about superseding societal rules are completely unchecked and arbitrary not only do they cease to be societal rules, or rights, but everyone potentially affected is also at the mercy of the decision maker’s intentions as well as whether or not they have access to accurate information, relevant expertise, and conscientious council.
We can’t anticipate every possible unknown scenario but if there are going to be times when our rights need to be superseded we need to determine what the process for deciding that needs to look like and then it needs to be enforced with consequence which are certain, always.
This is the other most contentious question when it comes to the issues of rights and freedoms. Many seek to place the original source for definitions of rights in divine hands but according to some estimates there are roughly 4200 active religions in the world today. Obviously certain religions are more prominent than others but which particular set of divine hands get the deciding vote?
Glibness aside, the pursuit of religious dominance has been at the heart of many of the bloodiest wars in human history. If each faith is firmly convinced theirs is the only true faith even if there are areas of overlap in terms of views on fundamental moral principles we are still trapped in a system of having some rules apply to some groups while different rules apply to others.
It’s also not as simple as just excluding all religion from the decision process since religious doctrines remain one of the primary sources for cultural ethics and moral principles.
Having the power of decision with regard to our rights and freedoms placed in the hands of those elected by us to be our representatives is a noble idea, one at the heart of the concept of democracy, but that ideal is only as good as our ability to execute it.
The more disconnected those in governance become from the citizens they are meant to represent, either geographically or financially or socially, or the more corrupted and vulnerable to manipulation the electoral process the more the system slides from communal society towards arbitrary autocracy.
And lastly, who oversees the overseers? A system of governance is only as good as its system of oversight. Rules need to be established and enforced even over those who establish and oversee them.
A significant source of the anger which has filled international streets with protests for weeks now over police brutality suffered by Black people is the sense that not only do societal rights not seem to apply equally to Black people even if that were not the case those who violate those rules seem to be exempt from consequence. Clear evidence of brutality is not met with consequence, either in terms of employment status or criminal prosecution.
If groups are allowed to investigate their own conduct then the process is completely at the mercy of that group’s intentions. On some occasions those intentions will be noble and investigations will be executed in good faith but on other occasions they will not.
Rights require rules which apply to everyone, always. No matter how noble or diligent no entity can truly investigate itself objectively and impartially. Independent oversight is crucial and fundamentally necessary.
Every society is structured around the concept of its members agreeing to abide by shared rules in order to benefit from the protection of shared community. Agreeing on those rules, and their enforcement, can be a difficult and potentially never ending process as our world and lives continue to evolve and change over time.
What we refer to as our rights are the privileges promised to us as part of the social contract we agree to by agreeing to be a member of our society. The equal and guaranteed enforcement of the rules is an inviolable part of the promise.
A great deal of understandable outrage has been directed at rioters engaging in destructive protests. Accusations of looting and burning being violations of the rules, of the social contract, we have all agreed on are valid on their face. But they have been met very accurately and pointedly with the challenge, people being more outraged over broken windows than the killing of an unarmed and handcuffed man is an illustration of how imbalanced the social contract has become.
If rules only apply to certain groups of people they aren’t rules they are expressions of power.
And as Mr. Carlin said, they aren’t rights if someone can arbitrarily take them away without consequence.
(George in his own words from 2008, strong language and very clear opinions about religion)