History of "rights" and "person"
Let us, then, look at rights; and first let us see how the concept of rights arose and developed up to where it is at the present day.
First of all, rights were not explicitly recognized as such in ancient times(1) until the political accident of the empire of Rome. It has always been recognized, of course, that there are certain things you can't do to people, and certain things you have to let them do; but the ancient world was much fonder of the close analogy between human beings and animals than we are, even in our post-Christian era. We give lip-service, even in the scientific realm, to being only highly developed primates; but we don't really believe it. The ancient Chinese, Indians, and Greeks believed it. Hence, you train people the way you train animals. Plato, in the Republic, more or less explicitly says this, by developing the structure of his society from observing what is done with guard dogs (and the way he approaches it, the analogy is not simply illustrative, still less a metaphor); and he even talks about "breeding" his upper class members the way hunting dogs are bred--and there is no hint of anything untoward about the comparison. The whole notion in the ancient world of metempsychosis is impossible unless there is a continuum of life from the lowest to what happens to be at the top; and so the ancients were even more Skinnerian than B. F. Skinner, and thought that we were animals to be trained.
Now, as to recognizing that there are things you can't do to people, this was something that was not because of some special "dignity" that everyone had, but simply an extension of what we today recognize with respect to animals. It is demeaning to yourself to torture, maim, or otherwise harm animals, not because they have any rights, but because you are destroying in yourself the ability to empathize, which is one of a human being's higher acts. Hence, it wasn't because each person was "independent" or a "self-creator" that you didn't do them harm or even kept from interfering with them; you didn't do them harm because you didn't want to lower yourself below the beasts (who only harm to meet necessities), and you didn't interfere with them when and to the extent to which interference was counterproductive. As even St. Paul says in Colossians, "Parents are not to push their children too hard, or they might give up." This doesn't really recognize the right of a child to be self-determining as far as possible (though it's certainly consistent with it), but that if you do take over too much of their lives, you'll have rebellion rather than obedience.
We must remember, as Stoicism shows, that the ancient world regarded everyone as really a slave. We are, they thought, all slaves to the universe, and to what we today would call the laws of nature; and some of us also happen to be slaves to other people. Neither Jesus nor any of his followers had any real problem with slavery, because none of them was thinking in terms of rights or self-creativity. People who read this into the Bible (for instance, who construe its term "justice" as our meaning of the term, when in fact it is what we now mean by "virtue") are projecting our own mentality backwards onto a way of thinking that just wasn't there--though much of it, as I said, is implicit in what was actually written.
Now then, the concept of jus (which is, of course, the Latin basis for the word "justice," and is what is translated as "right") came about in this way: The Romans had conquered the whole civilized world, with all of its cultures and religions and nationalities. In order not to make everything rebellious occupied territory, something had to be done to make these foreigners think of themselves as Romans; and so the practical-minded Roman government decided to offer and even sell honorary citizenship to people who had no connection to Rome by blood. There is an amusing passage in Acts where the Roman commander questions Paul about his citizenship. "'Tell me,' he said [to Paul], 'Are you a Roman?'" 'Yes,' he said. 'My citizenship cost me a lot of cash,' said the commander. 'Well I was born one,' said Paul."
It was at this point that the persona, the actor's mask I talked about in Chapter 6 of Section 4 of the third part 3.4.6 in discussing the origin of the concept of "person," began to be used referring to people. Someone who held the privileges (because that was what they were, rather than "rights") of Roman citizenship wore the "mask" of being a Roman, whether he was actually one or not. Thus, the "personhood" of the person was a legal fiction, in pretty much the same way as the corporation is for legal purposes a "person" who can be sued and so on. The "person" then had the privileges, but also the duties of a Roman, just as if he were a citizen by birth. In all countries up to this time, you were either a citizen (if you were born into the nation) or a resident alien (what we used to translate as "guest-friend"), or a barbarian merely tolerated, or more likely enslaved by the citizens.
So "rights," (what Roman citizens had) were originally privileges granted by the government to those who were not really citizens--of course, the citizens had these things by birth, not by law, and so it was only later that "rights" began to be applied to them too, since in fact what they could do was what the honorary citizens could do "by right." It's interesting that the original notion of doing something "by right" (because of the laws, not because of your birth) is exactly the opposite of what we think of in saying that we are doing something "by right"--because what we mean is that we are doing it just because we are the human being which we are and not because of some law in our favor.
As I mentioned, in the early days of Christianity, this notion of the "mask" was taken over to deal with the fact that there was only one God, but that he had three distinct names, and to put the mystery of the Trinity into some kind of linguistically manageable form.
But of course, the notion of the person carried with it the notion of rights; and since, as was clear as early as Paul's letters (which were, as I said in Chapter 4 of Section 3 of the fifth part 5.3.4, the earliest Christian documents), we somehow "became" this Prince who was the true Son of God (i.e. not a sort of "legal" son as might be implied by the notion of his being another "person"), then we more or less became "honorary Jesuses," the way the foreign citizen became an honorary Roman. We were, as Paul said, adopted sons.
But with the taking over of "person" into the Theological realm, applying primarily now to God, the whole notion of personhood and its consequent rights changed. It was seen in medieval times that we derived our personhood from our identification with God through Jesus, and not really from law; and it was therefore something conferred upon us by God himself, who let us share his own reality.
But God's reality, as a Trinity, was a kind of "social" reality, though much more intimate than a society of distinct beings. Hence, the belonging to the Christian community, which was "one body" in the sense Paul talked about it, living one life, was seen as a special kind of unity among Christians; and this unity extended in some kind of analogous way even to the rest of mankind as potential Christians and as "called" to the community.
Not surprisingly, then, the notion of "rights" now had to do with this essentially social relationship, but a social relationship based on the unity we had with God; and hence, our "personhood" came from our "belonging to" the community which was God's body, and thus our rights depended on our "dignity" as God's children.
In this way, then, "natural rights" superseded mere legal rights conferred from government; but they were still connected with our belonging to a society rather than anything we had as independent of one another.
With the breakup of the Christian community by the Protestant reformation, it was no longer clear where we got rights against each other; because for both the Protestants and the Catholics, the members of the other group were infidels or apostates, and out of communion--and hence, scum to be eradicated. Small wonder that Christians did to each other what they did in the name of Christianity at the time, because your whole dignity and all of your rights were thought not to be yours by your natural existence, really, but only by reason of your belonging to God's people--and the ones on the other side didn't belong to God's people and were his enemies. Consequently, they had no rights, and were little more than animals, however much potentially they might be persons.
A lot of this was more the practice of the times than the theory. By then some very sophisticated thinking had gone on, and it was recognized that in theory non-believers were entirely (because of their immortal souls) different from "brute" animals, and that God's "ultimate purpose" for every human being was sharing his life by contemplating him in heaven; and so every human being had the dignity that this destiny conferred upon him, even if he wasn't actually a believer at the moment, and didn't explicitly belong to the People of God.
Still, rights were derived from the sharing of God's personhood; and so it is perfectly understandable to find the people who didn't make hair-splitting distinctions putting into practice the exclusion from personhood and rights of the people who were outsiders. After all, "Let him be anathema!" which meant, "Take his name off the list of Church members!" was the equivalent of "Send him to hell!" in most people's minds--and that notion has carried over even to the present day.
But the Reformation actually planted the seed that grew into our present concept of rights as something inherent in us as independent rather than as members of something. Luther's breaking away from the Church (or his being kicked out of it) and his notion of direct contact with God through the Bible and not some hierarchy deciding what you were to believe, oriented people's minds in the direction of individualism. This also led to a reawakening of interest in physical investigation, rather than a kind of "Theologizing" à la St. Thomas of the writings of the ancients like Aristotle who reported their empirical investigations. Soon, discrepancies were found in what had always been held as fact, and so now there were both Theological and secular reasons for not trusting tradition or listening to what some body of rulers (who didn't do any investigating) decreed were the facts. The whole world began to move to Missouri.
But then, what to do with society and rights? Especially now that kings like Henry VIII were declaring that they were the head of the Church in their country, and were declaring that, since they ruled by divine right (which had been conceded by the medievals), they had the right to put order into what had become the religious chaos which was making a bloody hell of their countries.
Enter Thomas Hobbes. His task could be said to have been the establishment of the divine right of kings without getting into Theological disputes. Hence, instead of basing his concept of society on analogy with the Trinity (which was now in dispute, and was certainly not something the "show me" mentality could establish philosophically--though it was taken for granted that the existence of a Supreme Being was empirically verified), he did a "gedanken experiment" and supposed an initial "state of nature" in which there was no society, and everyone (unlike Aristotle's natural gregarious state of human animals) was on his own.
Since nothing belonged to anyone, everything belonged to each one; and this led to his famous "war of everyone against everyone else," where life was "solitary, poor, nasty, brutish, and short." (That has a ring to it, doesn't it?) People finally realized that this was no way to live, so they got together and decided to give up all their rights to the "sovereign," whose basic job was to keep everybody from trying to kill and rob everybody else. But individuals now had no rights of their own, not even religious ones, and were granted them by sufferance of the sovereign.
Unfortunately, this justified all kinds of tyranny, since by it the king could do what he wanted with his subjects, and no one could complain; and the kings of England proceeded to demonstrate in practice the implications Hobbes left undrawn.
John Locke, the father of modern rights theory, then supposed a different "state of nature" and "social contract." His idea was that each person in a state of nature was gifted by his Creator with independence, a right basically to his self: his own life and liberty, and a right consequently to whatever he transformed by his work. In this way, he was able to assign "natural" name-tags on the things of this world (it was yours if you worked on it) and avoid the Hobbesian universal conflict.
But of course, since people did infringe upon the rights of others, a social contract was necessary, in Locke's view, to protect the rights of the people; so they got together and appointed a sovereign, who governed with their consent and at their sufferance; they as a whole retained the basic power that Hobbes said had been given up, and were able to depose a sovereign who governed contrary to their will or violated their inherent rights. It was this, of course, that formed the basis of the American Declaration of Independence.
Notice that, with Locke, the social relationship is now derived from the economic one; exactly the opposite of what was held before the Renaissance. We are independent "by nature," and in order to preserve and protect this independence, we form a society with this function, not with the function of doing what is "good" for us or giving us benefits.
We will see in subsequent chapters that I think this function of civil society is in fact the correct one, but the foundation I would put it on is different from Locke's. For me, as I have said, notably in Chapter 10 of Section 5 of the first part 1.5.10, there is no objective meaning to what is "good" for a person, and therefore it is up to each person to define what is "good" for him for himself (by making choices). The only thing that can be objectively determined, as I said in Chapter 3 of Section 7 of the fourth part 4.7.3, is damage or harm to a person (using the notion of dehumanization and the "zero" established for humanity in that culture). Hence, the only thing that government can legitimately do is see to it that no harm is done any citizen; it has no business deciding for itself what people should be doing with their lives or what benefits they ought to have.
Note, by the way, that if what is good for a person is something objective that could be known, Locke's view of government as merely protecting the rights of citizens collapses. Presumably, wise people could know, on this condition, what is good for a person better than he can know for himself; and so if government is by experts in "goodness-theory" (as it certainly should be in this case), why should government stop at merely protecting people from damage, and not go on to "protect" them from missing out on greater benefits by ignorantly choosing lesser ones?
This paternalistic notion of government has always been with us, even in our own country; it is assumed that the people in Washington know better what is good for the poor than the poor themselves (the poor ignorant clods); and so they proceed to dump over their heads things that have in fact guaranteed that they will stay poor generation after generation. This is not to say that there aren't ignorant clods among the poor (often created by government's messing with education); but this still doesn't mean that someone else knows better what is good for these people than they do, because there is simply no meaning to what is good for them beyond the goals they freely choose. Where you draw the line between preventing damage and forcing someone to do what is alleged to be "objectively good" for him is not, as I have said in Chapter 3 of Section 7 of the fourth part 4.3.7 and Section 2 of the fifth part 5.2, easy to find; and so we do need value theorists at least as consultants in government; but value theorists who think with their intellects and not their emotions, especially not with that condescending emotion called "compassion."
But to return to Locke, even though he hit upon something that was profoundly true about human nature, and which is, upon my analysis, the primary aspect of what it means to be a human being, his notion and Hobbes's about a "state of nature" where everyone was on his own is simply impossible, and not just in practice but in a sense in principle.
Both Locke and Hobbes suppose that there are adults in this state of independence from everyone else. But how did these people ever get to age five, let alone to adulthood? If everyone in a "state of nature" is independent of everyone else, then obviously infants and young children are just as "on their own" as adults are--with the result that there are no adults, because the kids all starve.
And this ignoring of children in thinking of the foundation of rights has persisted to the present day. John Rawls's book A Theory of Justice, where "justice" is defined as "fairness," bases it on the "principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association" [Italics mine]. The idea is that rational people would see that this "original position of equality" would be most likely to advance the good of each one. Rawls makes it clear that "this original position is not, of course, thought of as an actual historical state of affairs, much less as a primitive condition of culture. It is understood as a purely hypothetical situation..." Rights are assigned on the basis of this initial equality, because if you're rational you'd agree that here's where you're most likely, in this uncertain world, to get where you want to be.
All well and good, but what do we do with the children and the idiots? Are children to be regarded as equal with children initially, or as equal with everyone? That is, are children to be allowed not to educate themselves if they see no point in it, just as adults are not to be forced to get Ph. D.'s if they don't want to? Should children be allowed to smoke and drink and have sex, in the sense that adults think it is a violation of their rights if these things are forbidden? And the same questions can be raised about idiots.
If rights are based on this agreed-on fiction of equality for everyone at starting, then obviously either only those who made the agreement have the rights (which Rawls rejects--understandably, because you can't renegotiate the contract every generation), or everyone is to be initially equal and to have the same rights, whether they are in fact equal or not, because that was the agreement: irrespective of individual differences, everyone is to be treated, initially, as if equal. It would logically follow that children would have to be given the same rights as adults--which would once again mean that there would be no adults. Children can't compete in a quid pro quo relationship, and would starve; and they must be forced to do things which adults must not be forced to do, precisely because they can't be expected to understand the consequences of their acts.
The point of all of this criticism is that to base rights and society on independence refuses to recognize that, though we are basically self-determining, we are not really independent. We must, as I said, receive uncompensated service from others, and must for a time at least be forced to do what we don't see the point of and don't want to do.
That is, Aristotle was right: human beings are by nature social animals, and need each other to live; and hence, we are not these atoms that happen to connect with each other as Hobbes and Locke and even Rawls suppose.
I don't want this critique to lose sight of the fact that the "independence" these people stressed is a slight deviation from what is a very basic truth about human beings: that we are self-determining; and a very basic truth about reality: that goodness is not something objective, even though harm is. It is when they try to derive society (or even rights) from some kind of free agreement among people and suppose therefore that it is not rooted as much in being human as "independence" is that they make their mistake. Both the self-determination and the interdependence of human beings are ineradicably given in human nature, the first in our nature as spiritual and the second in our nature as living bodies which have to maintain a super-high energy level in the face of an often hostile environment. The difficulty that social theories and rights theories have come across in trying to derive one of these relationships from the other is clear evidence to me that the two are distinct from one another.Next
1.Though of course, they existed, generally as something you "earned" or "were worthy of."