by Martin Butler
Recently I read an article which included the idea that nature can have rights, something I have to admit I had not come across before, despite a keen awareness that nature needs protecting. I discovered that this is a well-established point of view – there is a lengthy Wikipedia page on the topic. I found this rather odd – it seemed a misplaced use of the concept of a right. But it made me reflect that in the modern world the possession of rights is one of the few ethical ideals that is taken seriously wherever you happen to be on the political spectrum, so it’s understandable why those who want to protect nature might adopt the language of rights.
From the right to bear arms to transgender rights, rights matter across the board, having an authority that religious commandments, the claims of ‘social justice’, and other varieties of moral prescription seem to lack. The idea that we have rights is an unquestioned certainty, but rights are also often a source of considerable conflict in the modern world. Which rights do we actually possess? Do animals have rights? How can conflicting rights, which are presented as fixed, be reconciled? Do some rights automatically trump other rights? If so, how could a hierarchy of rights be devised? The language of rights, it seems, very quickly leads to dogmatism and impasse. Jeremy Bentham certainly had no time for rights:
Natural rights is simply nonsense: natural and imprescriptible rights, rhetorical nonsense – nonsense on stilts.[1]
He wrote this in an essay entitled “Anarchical Fallacies; being an examination of the Declaration of Rights issued during the French Revolution”(1796). Interestingly, Bentham’s arguments have something in common with Karl Marx’s and Edmund Burke’s critiques of rights – and these two philosophers are at opposite ends of the political divide.
The notion of a ‘na
tural’ or ‘inalienable’ right was very much to the fore in the revolutionary documents of the late 18th century in both France and the US. The second article of the Declaration of the Rights of Man published by the French National Assembly in 1789 states, for example, that:
The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression.
In the context of the times this was a powerful idea, and a central plank in the attempt to move away from societies based on aristocracy, monarchy and privilege by birth. It posits that rights are universal, no matter who you are or who your parents are.
Bentham’s argument is essentially that there are no such things as natural imprescriptible rights because any attempt to specify such rights – such as the ones listed in the second article of the Declaration of the Rights of Man – ends in absurdly vague, and so ultimately meaningless, claims. Natural rights derive from the idea of human beings existing in a state-of-nature prior to any political association, an idea central to much political philosophy in the 17th and 18th century, Hobbs, Locke and Rousseau being the key figures. These rights are natural because they are pre-social, and are assumed to arrive with us at birth like arms and legs, quite independently of any society we might belong to. Bentham claims, however:
…there are no such things as natural rights – no such things as rights anterior to the establishment of government – no such things as natural rights opposed to, in contradistinction to legal: that the expression is merely figurative; that when used in the moment you give literal meaning it leads to error.[2]
The concern here is that if we allow that there are no natural rights, then human beings are open to exploitation and mistreatment without any moral restraint. Without the recognition of natural rights, what stops societies sliding back towards barbaric practices? But this concern is based on a confusion. The motivation for the assertion of universal natural rights during the 18th century was the development of what we might call an enlightenment moral sensibility and the accompanying culture which developed around it. It is a sensibility which, in theory at least, gives all human beings a deep moral significance from birth. Kant’s focus on human rationality, autonomy and dignity is perhaps the most sophisticated expression of this sensibility, although ultimately it has its origins in Christianity.[3] Identifying ‘natural rights’ is simply one way of articulating this, but it is clearly not the case that these rights were discovered (as natural laws are discovered), and that this discovery provided a justification for enlightenment morality. Rather a changed moral sensibility was the basis for the assertion of rights. The argument then is that asserting the existence of natural rights is secondary to the enlightenment sensibility and as Bentham claims, ‘leads to error’. It is not the core of what it is to embrace the values of the enlightenment.
Even if we accept this part of the argument, we might still want to claim that identifying rights is a useful way of instrumentalising our moral sensibility. Giving a specific list of rights puts flesh on the bone of our enlightenment morality. This might well be true if we have in mind clearly defined legal rights; entitlements given as part of a society’s laws, which may well change depending on circumstance, without pretending they are absolute and eternal. Bentham systematically goes through the purported natural rights of ‘Liberty, Property, Safety and Resistance to Oppression’ and shows that without any clear legal definition they mean very little. But if given legally, we have to admit that the exact definitions will involve limitations, or ‘bounds’ as Bentham puts it. And this will be a matter of judgment, and some societies will judge in a different way to others. But if it’s all a matter of legal definition, in what sense are these rights ‘natural’ or ‘imprescriptible’?
In vain would it be said, that though no bounds are here assigned to any of these rights, yet it is to be understood as taken for granted, and tacitly admitted and assumed, that they are to have bounds; viz. such bounds as it is understood will be set them by laws. Vain, I say, would be this apology; for the supposition would be contradictory to the express declaration of the article itself, and would defeat the very object which the whole declaration has in view. It would be self-contradictory, because these rights are, in the same breath in which their existence is declared, declared to be imprescriptible; and imprescriptible, or, as we in England say, indefeasible, means nothing unless it exclude interference of the laws.[4]
It could be argued that this is of historical interest only since we no longer talk of natural rights. As regards rights language this is no doubt true, but nevertheless our concept of a right does retain some of the absolutism implicit in the natural rights of Bentham’s day. And it is this which leads to the dogmatism and impasse mentioned earlier. We see this in the abortion debate; is this debate really best conducted in terms of a conflict of fixed rights? The language of rights makes issues appear simple when they’re not – gun law(in the US) and gender law are obvious topical examples. What we want are good laws that reflect nuance and the myriad complex factors which exist in a modern society while retaining the spirit of enlightenment morality described earlier, not laws that slavishly attempt to reflect some fixed set of absolute and abstract rights.
I find it hard to disagree with the conservative philosopher Edmund Burke, another critic of the Declaration of the Rights of Man, when he says:
…the liberties and the restrictions vary with times and circumstances, and admit of infinite modifications, they cannot be settled upon any abstract rule; and nothing is so foolish as to discuss them upon that principle.[5]
An obvious example is for the increasing need for laws to take into account the effect of human activity on the environment. Introducing the idea that nature has rights that can be pitted against the rights we have as human beings just seems an absurd complication. Can’t we simply say that a number of liberties which have in the past been taken for granted might need to be restricted for sound environmental reasons. It is not a question of some ‘abstract rule’ concerning rights but simply the need to acknowledge that ‘liberties and… restrictions vary with times and circumstances’. A society’s laws need to be sensitive to the overall consequences of individual entitlements, but the trouble with rights is that they have no room for consequences. It might seem reasonable on an individual level to have the right to drive any car you choose, but if the consequence of this right is that many individuals choose to drive heavily polluting cars, surely that right should be questioned. And this would surely be the way to respect the enlightenment principle that every human being has deep moral significance since it is human beings who suffer from the effects of pollution, including those yet to be born.
In the area of human rights the fact that consequences play no part can be a strength. It can act as a bulwark against governments that seek to operate on the principle that the end justifies the means. Ex-judicial methods for dealing with crime, for example, might produce quicker results, but clearly violate the ethic that all human beings have a deep moral significance. Although the notion of human rights can be traced back to the natural rights of the 18th century, Bentham’s attack on rights, strictly speaking at least, would not apply to human rights today, since they are supposed to be clearly defined within international law. (The 1948 UN Universal Declaration of Human Rights) They purport to go beyond mere abstract pronouncements, although Eric Posner’s recent critique of human rights echos some of Bentham’s points:
The central problem with human rights law is that it is hopelessly ambiguous. The ambiguity, which allows governments to rationalise almost anything they do, is not a result of sloppy draftsmanship but of the deliberate choice to overload the treaties with hundreds of poorly defined obligations. In most countries people formally have as many as 400 international human rights – rights to work and leisure, to freedom of expression and religious worship, to non-discrimination, to privacy, to pretty much anything you might think is worth protecting. The sheer quantity and variety of rights, which protect virtually all human interests, can provide no guidance to governments.[6]
In any case it is not clear that international law can impose human rights on a country if the enlightenment moral sensibility mentioned earlier is not part of the culture, or at least is not in line with the moral assumptions of the 1948 UDHR. If the government of a society, and perhaps the culture more generally, want to adopt practices inconsistent with human rights legislation then it will, whatever international law states. If you read the constitutions of some of the most oppressive states you will often find grand claims about rights and equality. In fact these constitutions are often used as a fig leaf to cover up the reality of what goes on in the society. As Posner puts it:
The language of rights, untethered to specific legal interpretations, is too spongy to prevent governments from committing abuses and can easily be used to clothe illiberal agendas…[7]
We should remember that in 1776 the US declaration of independence spoke of ‘inalienable rights’ to ‘Life, liberty and the pursuit of happiness’ despite the widespread acceptance of slavery and the death penalty. And the Declaration of the Rights of Man drafted at the onset of the French revolution didn’t prevent The Terror.
A key feature of the concept of rights is that it is deeply individualistic, a point noted by Karl Marx:
None of the so-called rights of man, therefore, go beyond egoistic man, … that is, an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community.[8]
The very idea of pre-social rights, or natural rights, means that society is seen as an arena for competing individuals, and, increasingly, competing identity groups, all with opposing interests. But as Marx claims:
It makes every man see in other men not the realization of his own freedom, but the barrier to it.[9]
And if we give rights to animals and nature then these too need to be added to the mix. Of course some people, often those with power, can and do interfere with the liberties of others, so surely protection of ‘rights’ is important? This was presumably the purpose of UDHR. But if we frame society simply as a battle between competing private and sectional interests, a kind of war-of-all-against-all but with rights, then we betray the motivation behind the universalism and enlightenment humanitarianism which was the inspiration of the ‘rights of man’ in the first place. Marx’s point is that because we are deeply social beings, our wellbeing, and human fulfilment more generally, should be understood as something we achieve through the societies and communities in which we live, not despite them. And here he does not mean merely though using others as a mean to fulfil our own individualistic desires (e.g. contracts), although his will always play a role. Rather than regarding Human communities, which after all are not optional, as an unfortunate inevitability from which the individual, ‘withdrawn into himself’, needs protection through the assertion of a set of absolute rights, we can instead fully respect the dignity of the individual through the construction of social arrangements which in themselves foster well-being. A society where natural or absolute rights are centre stage reduces to a zero-sum game. If asserting your rights means advancing your interests to the detriment of my interests and my rights, then we end up merely with a power battle, but with an added element of moral self-righteousness which, I fear, is what we often see today in the age of social media. The assertion of a right is not in itself an ethical or political argument. We need ethical arguments that are genuinely universal in the sense that they can gain traction with the broad interests of the whole society rather than simply the promotion of particular or sectional interests. There are, for example, good ethical and political arguments for a non-discriminatory society to allow protest and free expression within certain limits, to care for the weak, guarantee fair trials, and so on, and it follows that such a society would be better for the well-being of its members. Laws which aim to guarantee these societal bench-marks don’t need to be framed in terms of absolute rights, they are simply good laws.
The argument usually heard at this point is that we are sacrificing ‘the individual’ to the interests of the group. But this is misleading to say the least. The group is composed of many individuals, it’s not as if there is some anonymous and all powerful collective that threatens to overwhelm the heroic individual – as is often portrayed. Of course societies can be taken over by an oppressive minority who claim power in the name of ‘the people’ or some other ideological fiction, but this is simply a failure of democracy, and an assertion of individual rights is not going to remedy this failure any more than the UDHR protects the citizens of states that use extra-judicial methods despite pretending otherwise.
Rights can also of course work the other way round. Powerful individuals can use them to their own advantage and at the expense of the general interest. The sacrosanct status given to some rights can mean that even if the consequences for society in general are clearly negative, the mystique attached to rights means they must never be interfered with. This is becoming more of an issue with some of the tech giants and the exploitation of the internet. There’s a feeling that the rights of free expression and the free market have the status of natural rights, even if this is not the language in use today. The internet, like the crisis with the environment, presents a whole new set of circumstances and our liberties and restrictions should surely vary accordingly, as Burke indicates. The matter “cannot be settled upon any abstract rule”. There’s even a feeling that such consequences as growing inequality just need to be accepted, no matter the cost in individual well-being, because dealing with them would mean tampering with some set of individual rights that, like religious commandments, can never be questioned.[10]
None of this means adopting a crude Utilitarianism, as Bentham does, where we aim to maximise the total quantity of happiness in a society. Rather, it means taking seriously the idea that all human beings have deep moral significance, which takes us closer to Kant’s ideal of a Kingdom of Ends. It means conceiving of a society where what we will as individuals could, in theory at least, be willed by all individuals – although even this is too simplistic.
We must remember that we don’t live in a steady-state society in which we can rely on a fixed and time-honoured set of ‘rights’, which will work within society as they always have. Many of the rights we have accepted as part of the furniture of society are beginning to seem quite out of step with the challenges we face. Wealth inequality will just keep on growing, as will environmental degradation, unless we realise that we really do need a radical reassessment of the current moral landscape of ‘rights’. Overall consequences cannot be ignored, as we have seen. And this doesn’t mean slipping towards a form of authoritarianism, quite the reverse. It means staying true to the enlightenment moral sensibility, which was the inspiration for natural rights in the first place.
I do not think for a minute that we will ditch the language of rights since it is deeply embedded in the western culture, but I do think we need to question the high moral tone that has attached to the idea of a right. And we need to realise that the rigidity attached to this idea, rather than facilitating a more civilised way of life, can actually be a barrier.
***
[1] p 53, Bentham, J., (1796) Anarchical Fallacies; being an examination of the Declaration of rights issued during the French Revolution. Available at: https://is.muni.cz/el/1423/jaro2016/POL478/um/Bentham_-_Anarchical_fallacies.pdf
[2] Ibid, p52
[3] Siedentop, L., (2014) Inventing the Individual: The Origins of Western Liberalism. Penguin – Random House
[4] Ibid, p56
[5] p60, Burke, E., (1790) Reflections on the Revolution in France, Oxford World Classics, 1993, Oxford University Press
[6] Posner, E., (2014) The Case Against Human Rights. Available at: https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights,
[7] Ibid
[8] Marx, K., (1844) On the Jewish Question; 1. Bruno Bauer. Available at: https://www.marxists.org/archive/marx/works/1844/jewish-question/
[9] Ibid
[10] Wilkinson, R., & Pickett, P., (2009) The Spirit Level: Why Equality is Better for Us All. Penguin Books