Rights claims and titles
But even though I have already been able to say quite a bit, it is not enough to establish rights in general on the personhood of those who have them. If self-determination and therefore progress toward freely-chosen goals were all there was to the story, then since any act we deliberately perform is something that fits into this category, we would then have a right to do anything we pleased. But since rights restrict the activities of others by creating in them the obligation not to interfere, then the others can't do whatever they please--which contradicts the fact that they are self-determining also.
That is, there has to be something more to a rights claim than, "I want to do that" to offer to someone who wants to do something that prevents me from doing what I want to do; because he can also say, "But I want to do this other thing, and therefore, you can't do what you want." To give an example, suppose Johnny wants to play with a toy that Jimmy wants to play with; but it's not one that both can play with at the same time. If the fact that Johnny chooses to play with it establishes that he has a right to play with it, then this prevents Jimmy from playing with it; but Jimmy has exactly the same claim as Johnny, because he wants to play with it.
If your right to do something stops when it violates anyone else's right, then obviously neither of them has any right to play with the toy, and so it just has to sit there unplayed-with, and since both have rights to do something, then neither can in practice do it. But that is absurd. A right is supposed to confer a power, not an impotence.
And of course, the boys' mother solves the problem by decreeing, "Johnny, you can play with it now, and in an hour, you'll have to let Jimmy play with it." But she couldn't do this if Jimmy has a right to play with it now, because she'd be violating his right on the grounds of the "greater good" of their harmonious relationship.
Thus, the claim of a specific right must be based on something more than mere personhood and self-determination, or conflicts could not justly be resolved. I have already given a hint as to what the solution to this is above in discussing why rights are not superseded by "more important" ones; the answer lies in the damage done when exercising a right that conflicts with another one.
But before I spell this out further, let me state that, since rights are based on self-determination:
Conclusion 5: Any person must be allowed to do whatever he chooses, as long as (a) he is capable of making a rational choice, and (b) what he does does not come into conflict with anyone else's right.
A person, as the one who by his choices creates what is "good for him" must not be forced to do what anyone else thinks is "good for him." Hence, he must be allowed to do what he pleases with himself; which means that he has the right to do what he pleases with himself.
This extends even to doing himself damage--even severe damage, even killing himself--if he knows what he is doing and is in fact carrying out his free choice (i.e. if he isn't either psychotic or neurotic, according to the definitions given in discussing the sense faculty in Chapter 5 of Section 2 of the third part 3.2.5). That what he is doing to himself is immoral under these conditions is true; but beyond informing him of what this means and implies for the whole of his life, no one may morally prevent him from doing with himself what he pleases--as long as no one else is harmed by it. If he chooses to drink himself to death, and he has a wife and children who depend on him, then his actions will in fact do them damage, and he can be prevented from carrying out his choice. But if no one else is affected by it, then he can do what he wants; otherwise, he is not a person but a slave.
Of course, it is rare that any human action has an effect on absolutely no one but the agent; but it might not do any meaningful damage to another person, in which case, the agent must be let alone to do it. There are some things, like taking drugs or reading pornography, that society can legislate against, even though, in a given individual case, the harm the person does to himself may not spill over onto others; but if the practice is allowed, then damaging effects on others can occur from those who do not have enough self-control to contain their violence to others to mere fantasizing, for instance. But we will see this when we talk about society and its right to demand a certain amount of uncompensated service from its members in order to achieve its common goal. But even in this case, society has to establish more than just a prima facie case that actual damage to others beyond the agent is likely if the practice is not forbidden by law, not a case that if the law is passed, people will be less likely to harm themselves. I find it difficult to justify, for instance, laws mandating seat belt use by people in automobiles (and I say this as a person who always buckles his seat belt as soon as he gets into a car). Neither society nor anyone else has any business forcing a person to do what is "good for him" or to avoid what is bad for him.
But all of this evades the issue of how specific rights that warn other people, "Leave me alone in this!" can be claimed. And the answer is that a person can claim a right to do a specific act if he can show that damage to his present existence will come from not being allowed to do it.
"Damage" in this case is to be taken to mean "Some contradiction of the person's present reality."
This is, as I warned in talking about dehumanization in Chapter 3 of Section 7 of the fourth part 4.7.3, a bit broader than dehumanization itself, because damage is done to me as a licensed driver in Ohio if I am prevented from driving a car, because it contradicts the contract I entered into with the State of Ohio when I passed my driving test and paid for the license. Clearly, this agreement, as I said in that chapter, does not have anything to do with my humanity as such; but it is a real aspect of me as a concrete individual--and in fact as a concrete manifestation that it is a real relation, I have in the little slip of plasticized paper that is called my "driver's license."(1)
Conclusion 6: The basis of any claim to the right to a specific action is some aspect of the person's reality which would be contradicted if he were not allowed to perform the action.
First, to clarify something before we go on: When I say the "right to a specific action," I include in this the right to avoid having to do something as well as the right not to have some action performed upon me. So the "action" also includes "reaction" to some other person's action, and does not necessarily mean getting up and doing something. I might have the right to "just sit there" without interference, if, say, I am sitting on a park bench. Even "doing nothing" is some kind of act of mine (because to do absolutely nothing would be to go out of existence); and so specific rights can always be stated in reference to what it is they permit as if it were an action.
Now then, a definition:
The title to a right is the aspect of the person which would be contradicted if the action were prevented.
Thus, if you are going to claim a right, you have to show that you have the title to it: that there is something about you as you make the claim that would be damaged if you were not allowed to perform the act you claim the right to perform.
It cannot be that you merely want to perform that act, or that the act is one of your goals. We do not have the right to achieve our goals, as I said in Chapter 3 of Section 7 of the fourth part 4.7.3; we simply want to achieve them, however important the achieving may be to us.
And the reason that we can't claim a right to achieve our goals is that if we could, we would be restricting others' present activity on the basis of our future reality which does not now exist. We would be like the "future generations" which supposedly have rights against us. Why should a person lessen his own reality so that I can enhance mine? I showed above that if rights could be claimed on the basis of what we wanted to do (which is another way of saying on the basis of what we wanted to be), then nobody would have the right to do anything that conflicted with what anyone else wanted to do.
I said that if you are going to claim a right, you have to show your title to the right. This should be obvious, because when you claim a right, you are ipso facto imposing an obligation on others to let you alone; and they need evidence that their actions must be restricted before they could rationally think they had to restrict them.
Conclusion 7: The title to a right must be something that others can observe, so that they can know that the possessor actually has the right.
This does not mean that we have to go around carrying little papers--though this is necessary in some cases, as with a driver's license, or the certificate of title to an automobile if you want to sell it. But, for instance, it is observable to others that you are a living being and that you can't act if you aren't alive; and so that fact itself is a title to your right to life. The fact that you have eyes is your title to the right to see. The fact that you are a human being is your title not to be enslaved (because even those who are not sophisticated would know that human beings are like themselves, who have a right to liberty, without necessarily observing the personhood of a person as such).
The point, really, is that the title has to be some objective, discoverable fact about yourself which shows that your reality (including some relation of yours to another object) is contradicted if the act you have a right to is prevented. Sometimes it is incumbent upon the possessor of the right to establish that he has the title; sometimes he doesn't have to do this, and the burden of establishing that he doesn't have the title is upon the person who would prevent the act in question.
Why this last? In the case of rights whose title is our common humanity, then a given human being does not have to prove that he is "really" human and therefore has the right, say, to life or liberty; the burden of proof is on those who would deny it to him. For instance, a hundred fifty years ago, liberty was denied Blacks in our country on the grounds that they looked different from "us," and therefore (as some said) "obviously weren't human." The slave owners held that if the Blacks were to claim the right to be free, they had to prove that they were human; but this was a sophism. In order to deprive them of freedom, the owners would have to prove that they weren't human. The same thing happened with the Jews in Hitler's Germany. There were "scientific" theories at the time that the only "real" humans were Aryans, and that Jews were a different species, and consequently were like animals--or rather, were animals. But how could a Jew have proved to the Germans that he really was a human being? The same is happening with human fetuses today. It need not (though it can be) proved that they are human beings; if they are to be killed, it is enough that there is a doubt whether they are or not, because to be willing to kill someone who might be human is to be willing to kill him if in fact he is human, and morally speaking this is to be guilty of murder, and it would be so even were the thing you killed not a human being, as we saw in discussing an unclear conscience in Chapter 6 of Section 1 of the fifth part 5.1.6.
But in cases like the right to drive a car or the right to vote, where a person might have it or might not, and there is no presumption either way, then it is the task of the person who claims the right to show the title proving that he has it, because he is the one who is making demands on other people.
Before getting into the various kinds of rights, let me say a few words about who we have rights against.
In one sense, we have rights against everyone, because no one may morally violate them; but it is a little silly to say that I have the right against someone in Nepal not to be locked out of my house, because it is physically impossible for him to lock me out of my house.
Conclusion 8: We have rights against the people who in practice can violate the right.
It might seem a little otiose to draw this conclusion, but it isn't as superfluous as it might seem. For instance, at the time I am writing this, over forty million Americans have been killed in the most barbarous way in the abortion mills of our country since the Supreme Court passed its infamous decision--and I know this, and have not done any more than said and taught that it is wrong and must be stopped, and voted against those who support abortion. Am I guilty of violating their right to life? No, because (a) I am not conniving in the violation, either by supporting abortion actively, or by not doing anything at all to oppose it; and (b) there is in practice nothing more that I can do that would be likely to save any more lives. Hence, since I am in practice powerless to stop the killing, none of the fetuses has a right against me not to be killed.
That is, the fact that I am a member of a community which is violating a right does not mean that the people in that community whose rights are being violated have a claim against me personally, as long as I am not part of the conspiracy to violate the right.(2) But in order to establish this, I must do something in opposition to the violation.(3)
But the question of who the right is against becomes clearer when we talk, not merely about others refraining from doing damage, but others' having positively to do something in order to prevent damage.
For instance, my children had a claim against me and my wife for their support until they reached adulthood, and not against my neighbors nor against the city nor the country. The reason for this, obviously, is that we caused them to exist, knowing that they would need support for a long time; and so we are the ones singled out by our acts of sexual intercourse to be the ones against whom the claim of support is directed.
Similarly, a person who enters into a contract with another person has a right against that person to its fulfillment, and not against anyone else. In general, when a right involves the fact that someone else must actually perform an action helping the claimant, then the one or ones who must perform the action must be specifiable. No one has a right to have everybody in the world help him, if for no other reason than the fact that not everybody in the world would be in a position to be able to help him.
The current imputation of guilt to those in affluent societies for the miseries of those in poor societies is based on this false idea that those whose rights are being violated have claims on those who cannot in practice prevent the violation (though in theory they might be able to do it). It makes for a comfortable kind of situation: we can all wallow in guilt-feelings for living a decent human life when others can't, while at the same time, being guilty of everything, we are not specifically guilty of anything; and so, like Mrs. Jellyby in Bleak House, we can ignore our own children's real rights against us while we deplore the starving in Borioboola Gha.Next
1. The license, strictly speaking, is actually the permission to drive, or the right itself; the paper is, as we will see, my title to the right.
2. This is the fallacy in the position of Blacks of the present day who are demanding "reparations" from those whose ancestors deprived them of freedom two hundred years ago. In spite of their not having the chance that White people have had because they nor their ancestors were never discriminated against, if the discrimination is not going on now and by people whose actions can be pinpointed as violating the present Blacks' rights, they have no claim on anyone.
3. In the case of present-day Blacks, what happened to their ancestors is not relevant to rights claims. White people need not do anything today to repudiate those violations or "make up" for them, because they had no hand in the violation, and cannot in practice correct the violations that actually happened, since they were over long ago.