In his e book Phrase and Object, W. V. Quine describes the issues that come up when one is trying to translate a completely unfamiliar language. Among the many concepts he raises in his dialogue is that when trying to translate what somebody is saying, one ought to make use of the precept of charity, by which Quine meant we must always assume “assertions startlingly false of the face of them are likely to turn on hidden differences of languages.” In case your translation implies your interlocutor has mentioned one thing patently absurd, it is best to assume that one thing has been misplaced in translation slightly than assume you’re talking with a idiot. And Quine factors out that this isn’t restricted to translating from unknown languages – the identical downside can come up “in the domestic case” on account of “linguistic divergence.”
I strive, nonetheless imperfectly, to use this concept when speaking to different individuals. And not too long ago, I questioned if such a “linguistic divergence” may, if correctly accounted for, assist me type a extra charitable understanding of how some individuals discuss rights.
The view in query has been described by Michael Huemer because the Legalist View of rights. (Of be aware, in that paper Huemer is speaking particularly about property rights, however the identical view is usually taken about rights extra usually.) As Huemer places it, within the Legalist View,
Property rights are in each facet and element depending on government-created legal guidelines. (N.B., property rights are usually not solely authorized but in addition ethical rights; for this reason theft is not only unlawful however unethical. The Legalist View isn’t merely that sure authorized rights are depending on legal guidelines, however that the related ethical rights are depending on legal guidelines.)
This can be a line of thought I’ve heard in varied kinds through the years. Its proponents will usually say “Rights exist only to the extent that they are established by a society and/or enforced by the state. To speak of something that has no social enforcement behind it as a ‘right’ is a confusion. If it’s not upheld and enforced by a state or by society, then it’s not a right.”
Now, this line of thought has at all times struck me as, in Quine’s phrases, startlingly false on the face of it, as a result of it has slightly absurd implications. For instance, I take it as provided that slavery represented the best institutionalization of human rights violations in historical past. However on the “rights only exist when enforced by a state” view, slavery wasn’t a rights violation in any respect. If rights solely exist if a state (or sufficiently sturdy social conventions) acknowledge and implement them, then it merely follows that each time and wherever slavery is enforced by the state and thought of usually acceptable by residents, no enslaved individual experiences any violation of their rights – as a result of they’ve none. On this view, the notorious Dredd Scott choice declaring that African People “had no rights which the white man was bound to respect” wasn’t a grave error – it was an unambiguously factual assertion (a minimum of on the time). In case your principle says slavery doesn’t violate anybody’s rights so long as society approves of it and the state enforces it, you want a greater principle.
Or so it at all times appeared to me. However I now marvel if, maybe, there’s a hidden distinction of languages, or a linguistic divergence, that may solid this in a special gentle. I not too long ago recalled a backwards and forwards from the remark part on this weblog on the character of rights from a number of years again (sure, I can keep in mind issues like this however can’t normally keep in mind what my sibling’s birthdays are!). One commentator defended a legalistic view of rights, saying that if one believes “rights exist and can be ‘negated’ even when the social context clearly doesn’t recognize those rights, then I won’t agree with that bit of the argument. There are many rights that I think societies should create and protect; but they don’t exist before the society goes and does that.”
However I spotted from one thing else the commenter mentioned that possibly his view is likely to be salvageable. Additionally mentioned in that submit was the Loving v Virginia case that overturned bans on interracial marriage. On the legalistic view defended by this commenter, one must say that such legal guidelines, earlier than they had been struck down, didn’t violate anybody’s rights. And this commenter accepted that implication – though he additionally added his perception that “the Lovings *should have had* the right to marry.” Nonetheless, earlier than the courtroom rulings had been issued, they’d no such proper.
So right here’s my suggestion that may bridge the hole. This commenter affirmed that he believed the Lovings ought to have had the suitable to get married. This in flip entails that it was fallacious for the state to forestall them from getting married. Effectively, saying “it’s wrong for the state to prevent people from X” is, to individuals like me, merely what it means to say individuals have a proper to X. If I say “people have a right to free speech,” I’m saying that it’s fallacious for the state to forcibly silence individuals from talking. It’s a prescriptive declare, which in flip permits us to judge what sorts of legal guidelines are acceptable or inappropriate. On this view, legal guidelines and conventions will be rights violations. By this different definition of rights, saying “people have a right to free speech” is a descriptive declare, and as such it could be true or false relying on the legal guidelines and conventions in any given society. Thus, on this view, legal guidelines and conventions can’t violate rights, as a result of “rights” merely means “whatever is recognized and enforced by laws and conventions.”
Take into account, then, when this commenter additionally mentioned “There are many rights that I think societies should create and protect; but they don’t exist before the society goes and does that.” That is affirming the view that there’s one thing on the market, present previous to and independently of social enforcement, and that individual one thing should be protected and acknowledged. To the extent that society or the state ought to defend these items however doesn’t achieve this, that could be a failing and ought to be corrected. To individuals like me, that prior factor is what we converse of after we discuss rights, and what we imply after we say rights exist previous to and independently of being formally acknowledged and enforced by the state or social conventions. This commenter and I each agree that there’s one thing present previous to state coverage and social conventions that prescribes what such coverage and conventions ought to be. It’s simply that I name this prior present one thing “rights”, and he doesn’t.
As an additional instance, right here’s one other thought experiment Huemer provides within the beforehand cited paper, the place I toss in a further caveat:
Suppose you’re exploring a distant wilderness area exterior the jurisdiction of any authorities, if you encounter a clearing containing a impolite hut. The hut seems to have been constructed by a hermit, who’s its solely inhabitant. Since property rights rely fully upon governmental legal guidelines [or social conventions – KC], and none are in pressure right here, you establish that the hermit doesn’t personal the hut. Over his vociferous protestations, you resolve to spend the night time within the hut, eat a few of the meals that the hermit has grown and gathered, after which paint the hut lime inexperienced. You don’t have to do any of these items; you simply do them for enjoyable.
On this thought experiment, the hermit isn’t underneath the jurisdiction of any authorities, nor are there any reigning social conventions. Nonetheless, it appears apparent that you’d be doing one thing fallacious to the hermit in case you carried out these acts. And I believe nearly everybody who accepts the legalist view of rights, if pressed, would acknowledge that it will be fallacious to do these items to the hermit. Effectively, the wrongness of these actions is, to individuals like me, merely what it means to say the hermit has property rights right here and that you just’ve violated them. In case you agree that it will be fallacious to do these items to the hermit, you then agree with the substance of what individuals like me imply after we say the hermit has rights even within the absence of the state and social enforcement, even in case you would describe the state of affairs with a special vocabulary.
My level on this submit is to not argue that one definition of “rights” is the objectively right one, or that one is pragmatically superior to the opposite. (I’ll come again to that time in a future submit, however let’s desk it for now.) My level is solely that it’s potential a lot of the disagreement about whether or not rights exist previous to or independently of the state could merely be turning on a linguistic divergence over what the phrase “rights” is supposed to designate.
