Chapter 3

Rights and their basis

With that said, let me state what I think a right is (it is the traditional Scholastic definition, whose meaning, however, is to some extent modified by me), and then restate more at length what I mentioned in Chapter 6 of Section 4 of the third part 3.4.6 about what the actual basis of rights is.

A right is a moral power to do something.

It is a moral power in the sense that a right does not necessarily imply the physical capability to perform the act, but merely these two things: (1) It is not morally wrong for you to do (or attempt to do) the act in question, and (2) no one may morally stop you from doing it.

For instance, if you own a piano, you have a right to play it, whether you can actually play the piano or not. If you sit at the keyboard and start tapping out notes, then this action on this piano is not morally wrong (supposing no one else's right is violated by, e.g. playing it at three in the morning, as I mentioned in discussing act and situation in Chapter 7 of Section 1 of the fifth part 5.1.7), and that "no one has a right" to try to prevent you from playing it.

Essentially, then, the definition of rights above means that non-interference with the acts in question is a moral obligation of everyone. I have never understood how moral relativists can assert that morality is a purely personal matter (and therefore I only have moral duties if I think I do) and in the next breath assert rights and get very angry with those who violate rights, even when those people assert that they think they're behaving perfectly morally. Moral relativists, as I said in Chapter 3 of Section 1 of the fifth part 5.1.3, universally demand non-interference as a moral duty incumbent upon everyone, whether they recognize they have this duty or not.

Obviously, there is a lot of fuzzy thinking going on in this area; and so we had better be very clear what we are saying and that we have some factual basis for it. If a right imposes an obligation on everyone else (and therefore restricts everyone else's freedom to act), you can't just claim a right whenever you happen to feel like it.

But before getting into that, why can we claim rights at all?

And here is the reason I gave in Chapter 6 of Section 4 of the third part 3.4.6. The basis of rights as such is the fact that we are persons. That is, that we are free, self-determining beings (selves) who are in a situation where (a) our self-determination can be affected by the actions others take in determining themselves and (b) our own actions in determining ourselves can affect others' ability to determine themselves.

I will get into why this self-determination establishes rights in general in a moment. But let me remind you of what I said in that same Chapter 6, that a human being is a self even when he is not actively choosing (exercising his self-determination) and even when he is not at the moment capable of doing so, such as when asleep or knocked out, and that this includes people in so-called "permanent" comas, because some have come out of them--which indicates that they were the same as knocked-out people and hadn't changed their nature as human (which nature is a self-determining one), but simply couldn't, because of the injury, manifest it. And of course, the unconscious state of the fetus is a coma from which he very shortly emerges, and so he is a self also. But since humans in these states obviously can be interfered with (e.g., they can be killed), they are persons. Hence, a human being is a person for his whole bodily life. After death we lose our rights by default, so to speak, because, though we are selves in that we are still self-determining (albeit in equilibrium) and persons in the sense that those we care about are within our consciousness as objects of our eternal knowledge and happiness (or, I suppose, misery), we can't in fact be interfered with or affected in any way by anybody's actions.

So (a) rights are based on our nature as self-determining beings who can be interfered with by others' self-determining acts, and (b) since we have this nature from the moment of conception and being organized as human, we have rights from that moment until the blessed moment when we can't in fact be interfered with.

Now then, the reason why this self-determination is the basis for the obligation not to interfere with anyone else's right to act is this: In the first place, I am not a self-determining being if I cannot determine myself in practice. Self-determination doesn't mean wishful thinking; it means being able to make yourself into what you want. As I mentioned, our self-determination is limited by our genetic potential; and so we can't make ourselves into anything we want (this is the basis of what is morally right and wrong, as I said in Chapter 6 of Section 4 of the third part 3.4.6 and Chapter 4 of Section 1 of the fifth part 5.1.4); but if all you can do is imagine yourself as different and wish you were different, then this is a purely mental exercise, and choice is determination of the whole person, not just the mind.

Secondly, I cannot determine myself in practice if I can be interfered with from outside. Now some of this interference is not preventable, given our fallenness and the world we live in; because viruses don't recognize that they're interfering with us when they give us polio or influenza, and tigers don't seem to have an instinct that says that we are not to be looked on as tasty tidbits. But you can't tell a tiger, "Bad kitty! Leave me alone," because he can't understand you or even choose to do so even if he saw you were averse to what he was doing. The non-human world has no self-control (in the sense that we do); and therefore it is going to do what it is going to do, and all we can do is foresee dangers and keep out of their way.

But, thirdly, the human (and angelic) world is different, because these objects are selves, and can choose either to interfere with my self-determination or not to interfere with it. Here I can point out to these others that self-determination implies not being interfered with and that they as self-determining want no interference with their self-determining acts; and therefore, it is inconsistent with them as self-determining persons to use their self-determining acts in such a way that they interfere with others' exercise of their self-determination.

That is, if you don't want others interfering with you, then you can't interfere with others; otherwise, you give them grounds for interfering with you whenever they can get away with it, or whenever it is to their individual advantage.

Conclusion 1: It is the personhood of those with rights that is the basis of their rights, not their "equality" with others.

To use "equality" as the basis of rights is to build them on a very shaky foundation. You either have to say, based on this, that we are all in fact equal, and fly in the face of the evidence of the manifest inequality in people (in what verifiable sense is a person in a "persistent vegetative state" who can only breathe the "equal" of Einstein at his peak?), or you have to try to make everyone "equal" by reducing everyone to the lowest common denominator; or finally, you have to define "equal" as "qualitative sameness" by using the phrase that the person on the respirator is "just as much a human being" as Einstein--in which case "greater" and "less" are simply defined into meaninglessness, which means "equal" also is.

Further, if you take this last alternative (which most people who talk about our "equality" as humans do), what do you do if some extraterrestrial person steps out of his flying saucer and starts talking to us? He clearly wouldn't be "the same" as we are, and might be ten times as intelligent as the best of us (which from my experience wouldn't be all that difficult); and so he's neither the same as nor equal to us. Then does he have rights, and more importantly, do we have rights against him? Only, now, if we're "just as much a person" as he is. So even though we're not the same in nature, and his nature is essentially superior to ours, you would have to say that we are "equal" in the mere fact that we are both persons, and persons have rights.

In other words, "equal" as the basis for rights supposes a property all those beings share, even though they are unequal in every other respect: the property of being self-determining and related to others. And they don't even have to share this property equally in order to be "equal" in this sense, because children have rights even though they aren't as self-determining as adults; and people who are unconscious have rights, though clearly they can't determine themselves at all at the moment.

What all this amounts to is that, in order to base rights on "equality," you have to define "equality" in such a way that it has nothing to do with equality, but in the mere fact that a self-determining being is self-determining.

And, of course, if you do base rights on equality, then there are these disputes about its being permissible to kill people who aren't "really equal" to anyone else, using the equivocation of the term (or rather attempting to use it in a meaningful sense) as Hitler did toward the beginning of the last century and we were doing at the end of it (prating about "the quality of life" and "life as a value") to excuse the most horrendous acts of wholesale slaughter of human beings by self-righteous human beings.

Jefferson was not God, and wasn't even a very good philosopher--not that he pretended to be. But be that as it may, when he wrote that it was "self-evident" that "all men are created equal," what he meant by that is that there are no natural classes, in the sense that you are one of the upper class "by blood" and have rights that the lower classes don't have. We have rights, he thought, because we are human, not because our parents were dukes or earls.

And this is true, but not because we are human, but because every human is a person. Jefferson was right in saying (following Locke) that rights are not based on belonging to some group, implying that those outside the group don't have them; but he was wrong if he meant that this implied that we are all equal, or that rights are something that is inherent in the humanness of humans as such (which would exclude non-human persons).

It follows from the fact that rights are based on personhood that

Conclusion 2: Non-persons such as animals do not have rights.

The reason why we shouldn't exercise deliberate and gratuitous cruelty toward animals is not that they have rights against us, but more or less on the grounds that the ancients held for not doing harm to other people: if you do so, you are "lowering yourself" beneath the level of one who can sympathize with others. There can be no kind of reciprocal agreement with animals, and rights imply reciprocity: I'll let you alone if you let me alone.

Those who take our moral obligation toward animals as grounds for assigning them rights don't realize the implications of what they are saying. If dolphins have a "right" not to be caught in tuna nets, so do tuna. If dogs have a right not to be poisoned, so do rats, cockroaches, and spiders. If dogs have rights, then they certainly have the right not to be neutered (which is, after all, a violation of their nature as reproductive), or for that matter, to have their sexual activity restricted against their "will." The only way you can do anything which would restrict the exercise of a right of a person is in defense of an equally serious right, as we will see; which means that you can't tie a dog up unless you have reason to say that the dog will violate someone's right if let loose.

Generally speaking, those who claim rights for animals don't have any real reason for doing so; it is either that "they're just like us," which allows them to exclude inconvenient things like lizards and worms and maggots as not being like us; or that they're furry and cute, which also allows for excluding tuna and barnacles and wasps.

If you're going to say that animals have rights, then they can't just have the rights you want to assign to them; the whole point of rights is that, since they impose obligations on everyone, then it can't be the "everyone" who assigns the rights to those who have them, or there would be precious few assigned. (Besides, in this case, if there is a "consensus" that animals--or Blacks, or fetuses, or women--don't have rights, then they don't have them.) No, it has to be the beings that have the rights who can demand that everyone, even those who don't think they have them, respect them, and can do things like put in jail those who aren't willing to do so. Hence, if animals have rights, they have all the rights that we have as human (life certainly, physical integrity, freedom, etc.), and not just the right not to be tortured or maimed. But I know of few "animal rights activists" who would be willing to grant all of them in practice.

But of course, the real question is what you would base the rights of animals on, and there is nothing that allows us consistently to say that they have them, because in fact they aren't persons and aren't self-determining, and so wouldn't know what to do with their rights if they had them, because they have to follow the strongest drive at the moment anyway.

Therefore, given that they don't have rights, people can use them, make slaves of them, confine them, neuter them, cut them open alive, and so on if they have a valid reason for doing so. These acts violating the natures of the animals don't have to be necessary, in the sense that they are an act blocking some kind of attack on oneself or other persons, but simply justifiable as hypothetically necessary for some purpose. If, for instance, you want to find out what makes one gerbil live on a 20-hour day cycle when the other ones live on a 24-hour day cycle, then you can breed this gerbil with others to find out if his "biological clock" is genetically determined; and if you have reason to believe that the timing mechanism is some small area of the brain, you can excise this area and transplant it into a normal gerbil to see if the normal one will shift his length of day. The knowledge to be gained provides a justification for the violation of the animal's integrity; the researcher is not being gratuitously cruel, and the assumption is that the operation is made under sedation, and as little damage is done as possible consistent with fulfilling the goal of the research.

Any damage that is done or pain that is inflicted that could have been avoided and the end still gained is then gratuitous cruelty, and damages the one who inflicts it by making him callous to the pain his actions cause, not because the animal has a right not to have the damage inflicted. In the latter case, no gain, however great, could justify any damage done. You can't balance off a moral evil with a human good.

But there is another conclusion we can draw also from the fact that rights belong to persons:

Conclusion 3: Non-existent beings, such as future generations, have no rights.

When we talk nowadays about the despoiling of the environment and the effect it has on future generations, we hear that we are "violating their right to a decent place to live." But we don't even know whether there will be any future human beings to live on this planet, so how can "they" have any rights against us? It seems fairly clear that you can only have your self-determination interfered with if you exist; and what are now imaginary people (possible human beings) don't have rights.

If possible humans had rights, then every sperm and every ovum (which is certainly more concretely a "possible" human being than that abstraction called "the people living in the twenty-second century"--forgive me if you're reading this in the twenty-second century, but you're pretty far into the imaginary realm as I write this) has a right to live and develop into a human being with a "decent life style." And since rights imply obligations on everyone, then everyone has a positive obligation to preserve and nurture every sperm or ovum he can protect.

But the fact is that a sperm, as not being a person, cannot have its self-determination interfered with, for the simple reason that it has none. The fact that it is potentially a person doesn't really count for any more than the fact that the carrot you are eating will become part of you, who have rights; and in that sense it is potentially a person also. Those who attribute rights to fetuses on the grounds that they are potential persons have no grounds in fact for attributing the rights to them, any more than six-year-olds have the right to drive a car on the grounds that they are "potential" drivers.

Now we do have an obligation to future generations to see to it that they have a decent place to live; because it is likely (unless we mess things up further) that there will be such people, and we are able to foresee the future and the effects that our actions will have. Thus, to do things which would make the world of the twenty-second century uninhabitable means that we would be willing to do damage to those people who would be likely to exist at the time, should there be any.

In other words, the grounds for our not damaging these hypothetical people is not that they in fact have any rights against us, but the fact that we can't know that there won't be people who will be harmed by what we do and have reason to believe that there will be people affected by our actions. In that case, to choose the action based on the doubt is immoral, analogously to saying that you didn't know the gun was loaded.

To make the principle involved here something closer to home, a man who chooses to drink and then drive home, knowing that the drinking will impair his ability to drive and make him a menace, is willing to kill people, because he knows that this is what can happen from the course of action he is taking. If he gets home without actually killing anyone, he's just lucky, and it's not his fault. So even though there isn't actually anyone killed, the man is morally speaking guilty of murder (supposing he has consciously been aware of this possibility when he made the choice to drink at that time), because he said, "If it happens, so be it." Obviously, the person he didn't kill doesn't have any rights claim on him; but he is morally guilty nonetheless. In the same way, even though future generations don't have any actual rights against us, because what doesn't exist can't possess rights; still, we have to act in the same way as we would if they existed and did have their fundamental rights, or we would be willing to do them damage if and when they do exist.(1)

The third thing that we can conclude from the fact that rights are based on personhood and imply mutual respect of rights is the following:

Conclusion 4: No one has a right to do anything that violates any right of anyone else.

Since rights by their very nature impose the obligation to respect them on everyone else, it follows that it contradicts what it means to have a right if you claim a right to do something that violates someone else's right. As the proverb goes, "Your right to swing your arm stops short of my nose."

But aren't there rights that are more important than others, so that my exercise of my important right supersedes your exercise of your insignificant one?

No. No right is superseded by any other right; if it were, then it wouldn't be a right at all, because the person who had the "greater" right could simply ignore it, and then in what sense would one have the moral power to do the act in question, when it could be stopped by someone else? One person's having "more important rights" than another would also assume that "importance" is something objective, and there are no grounds for such an assumption, as I said in Chapter 2 of Section 7 of the fourth part 4.7.2.

Of course, it is true that when rights come into conflict, then morally speaking, one person must yield the exercise of his right when that yielding will do him less damage than the other person's yielding the exercise of his right, using the Principle of the Double Effect I discussed in Chapter 7 of Section 1 of the fifth part 5.1.7. Thus, if you are in my way, I can't knock you down to get to where I want to go, just because I have a right to walk on the sidewalk. If I yield to you, no damage is done to me except inconvenience and a certain loss of time; if I knock you down, physical damage is done to your body. Similarly, I can't morally shoot a robber to keep him from taking my wallet; I could only shoot him to keep him from killing me.

But here it isn't that one right yields to the other; it's that you can only keep the damage to the other out of your choice if the damage done to you by not in effect violating his right is greater or at least equal.

Hence rights are absolute. They do not even yield to other rights, still less to some concept of "greater good" or "higher importance."



1. Note, by the way, that if we do leave a polluted environment that kills people, they don't have any rights claims against us, because (a) they couldn't protect themselves against what we are doing, because we'll be dead and our actions will be irrevocable, and (b) what they would be confronted with is a state of the environment, not the action of a human being; the fact that it is an effect of the actions of previous generations is not really relevant. It is this claiming redress from past generations that is part of the "reverse discrimination" problem nowadays, as if the present generation of Whites must somehow make restitution for damage done by our ancestors, when we had no hand in the violation and therefore couldn't have prevented it if we wanted to. This is not to say that, insofar as Blacks are now having their rights violated by actions Whites are now performing, this inequity cannot be reversed.