Thursday, November 22, 2012

A Bit On The Nature Of Rights

I have just concluded a most interesting discussion with two friends on the nature of rights. 

We reached no meeting of minds at the end. 

It took me some time to find my firm positional footing but it finally came to me just as the discussion was ending. I took the position of a legal positivist. 

If it's of any interest to anyone, here are my concluding remarks:

...If Bentham and Burke, in w
hom I claim no competence, but just going from what you quoted of them, reject natural law, they are left with positive law as the account of what law and rights, as a necessary part of the essential constituents of law, are. Their position is, as I take it, that rights have no meaning save as the state or judicial authority enacts them. 

That's the consequence of Bentham calling natural law, which includes the idea of inalienable rights, "nonsense on stilts." 

On the positive law account of what law, hence rights, are, it makes no difference whether God gives us what we turn into rights or nature does. Until enacted or decided by legitimate authority they are as nothing. 

When speaking of a right to this or that outside of positive law, one speaks rhetorically and metaphorically, but not substantively or "empirically" in relation to rights.

When, as you say, people are asking for a law to be made they are asking for the creation of rights. The source of they want may be up for all kinds of debate, may be a mystery, may be from nature, or from God, or from wherever: from the perspective of what rights are it simply doesn't matter. 

What matters is what they want being made into legal flesh as rights in law. Then and only then does anything we can concretely call a right arise...

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