Are Rights Harmonious Or Conflictual

 A long note to a friend as part of a longer exchange:

Thanks for your fine, thoughtful and fulsome response Phil. 

I absolutely agree that stressing good faith dialogue, respecting the opinions and analyses of others, being empathetic about them, tolerating diverse opinions and so on are all to the good and necessary. There is 100% no difference between us here.

But then we divide. And the issue is substantive. Are all rights compatible so as to be ultimately harmonious in the sense, as you quote Young, of being “indivisible, interrelated, and interdependent” or are they as I tried briefly to suggest inherently at logger heads—generically, liberty vs equality? 

But before I go further, I wouldn’t want that issue to be sidetracked by any arguments from temperament, mine, yours, anyone else’s. There’s a philosophical question that needs to be addressed on the intellectual merits. Whether I’m disputatious, likely, and whether you get Olympic gold for equanimity, unlikely, have to be beside the point. As well, neither of our preferences for whether exchanges should be robust, even sharp elbowed or peaceful and beatific bear on the question.  

Young and you may think that with effort and imagination we can reconcile rights, whatever their source. And you along with him seem to assume the conquerable disparity is simply between natural rights and positive rights. That has you both overlooking that rights are always pitted against each other in concrete situations regardless of their source or category.

I don’t know the law of Ireland but both the American Bill of Rights and the Canadian Charter of Rights and Freedoms identify along with other natural rights, freedoms of expression, assembly and religious belief and the right to petition for grievance. 

Others include what as a term of art are called the rights of  “natural justice,” the right to know the accusation against you, the right to confront your accuser, to cross examine, to plead in your own defence, to an impartial decider. 

Others include principles which flow from the idea of the rule of law, that the law is to treat those similarly situated equally, and that no one is above the law. 

It takes no imagination to see how these rights rub up against each other incessantly and interminably, and aren’t so much harmonized in case after case as solved by (sometimes even arbitrarily) deciding what right/value/principle ought to be preferred over another in a given set of circumstances. 

An example: the state wants to tax me more so as generally to redistribute wealth. That ooh infringes my liberty, my right to the fruits of, say, my labour. Otoh, it conduces to greater equality. What are the limiting principles here, if any? How does this opposition get harmonized? Does it ever? Or is the answer, as I think it is, that in this instance we will tax more and in another instance we will tax less, at the inescapable goring of someone’s ox.

Another example: pro choice versus pro life. If you can harmonize body autonomy and the right to life, I’ll move to Ireland and worship at your feet as a disciple of a modern day Socrates. 

As you know as well as I, the examples are endless. Whenever do either policy decisions or judicial determinations or even settlements short of adjudication not involve the clash of the serious assertions of right?

What would Young say about these examples? Do they countermand his thesis of rights as “indivisible, interrelated, and interdependent” 

I’m not sure I see what you mean by “abstract victories” and even if I’m able to construe that meaning, I’m not seeing how it bears upon our central issue. Nor do I see what single issue obsessiveness has to do with it, whether coming from left or right. 

Now, to be clear, I do agree that Young is reacting against the totalitarian assertion of the unassailably superior correctness of certain values, ie, his notion of a fixed hierarchy of rights, and of course we’re both with him on that. But, again, we depart after our standing on common ground on the intellectual goods I’ve just referred to in my second  paragraph of this note. 

For you and him it seems to follow from our common rejection of the rights screeching monopolists that the alternative is an ultimate harmoniousness of rights. But it’s exactly that that I say is misconceived. My alternative is to recognize what will be an inevitable, in fact inhering, conflict in rights but with the noted intellectual goods being brought to bear in sorting out the conflicts for the most hopefully reasonable resolution of which right predominates in any given set of circumstances. 

A few final, maybe repetitive, comments: the remaining few short paragraphs of your note seem to say in essence that in the harmonizing of rights, let’s stop all the militancy and that a “status quo of fundamental freedoms should be developed, rather, through processes of analytical research, narrative, education and reflection, that include dialogue.”

Respectfully, while what you say is highly desirable, I want to suggest it misses the precise target. It rather shows a conflation of highly desirable civil exchange and the philosophical question of whether all rights can be harmonized as though the former is the answer to the latter. This reasoning is circular: it’s premise is all rights can be harmonized; it then says if we only strip out the rancorous, obsessive assertion of superior rights, if we can engage in high minded exchange, we can arrive at what we’ve premised, the harmony of all rights. But whether all rights can be harmonized is the very issue between me and Young and you and that harmonization is assumed rather than argued for or demonstrated.