Preface for Maundy Thursday

It is very meet, right, and our bounden duty, that we should at all times, and in all places, give thanks unto thee, O Lord, holy Father, almighty, everlasting God, through Jesus Christ our Lord; who for our sins was lifted high upon the Cross, that he might draw the whole world to himself; who by his suffering and death became the author of eternal salvation for all who put their trust in him.

Wednesday, December 12, 2018

An Image of the City, Part IV: An Enumeration of Rights

At this moment the King, who had for some time been busily writing in his note-book, cackled out ‘Silence!’ and read out from his book, ‘Rule Forty-two. All persons more than a mile high to leave the court.’
Everybody looked at Alice. ‘
I’m not a mile high,’ said Alice. ‘You are,’ said the King. ‘Nearly two miles high,’ added the Queen. ‘Well, I shan’t go, at any rate,’ said Alice: ‘besides, that’s not a regular rule: you invented it just now.’ ‘It’s the oldest rule in the book,’ said the King. ‘Then it ought to be Number One,’ said Alice.
The King turned pale, and shut his note-book hastily. ‘Consider your verdict,’ he said to the jury, in a low, trembling voice.
—Lewis Carroll, Alice’s Adventures in Wonderland
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So then, the most essential rights of man, as outlined in my last, may be termed: the jus agnitioni, the right to be recognized as a human being; the jus vitæ, the right to live; and the jus factioni, the right to normal human activity. On hypothesis, all other rights are implications or outworkings of these three most fundamental truths about humanity. But these three ideas are the skeleton—it’s those other rights that flesh out the shape of right. So what are those other rights?

I. Jus Agnitioni

The right to be recognized is, first of all, a right to acknowledgment of one’s humanity irrespective of any other fact about oneself: age, sex, health, practical independence, intelligence, moral rectitude, criminal guilt, ethnicity, sexuality, politics, creed or lack thereof, class, nationality—all of that is secondary and all of it must be treated as secondary by the law, beside the bare fact that: this is a human being. Every human being is, in dignity, equal.

This carries with it a number of direct implications. The two most obvious, the right to live and the right to conduct a normal human life, form their own ‘families’ of rights; many more fall under the umbrella of equality before the law. We may enumerate:
· The right to liberty of thought, conscience, and expression
· The right to liberty of movement and conduct (as limited by others’ rights and liberties)
· The right to one’s merited good name
· The right to privacy and security against unreasonable interference
· The right to equal access to public goods and services
· The right to political participation in one’s home country
· The right to legal redress for injuries
· The right to an impartial trial when accused

These rights themselves may have further implications: for example, the right to be presumed innocent until proven guilty, the right to an attorney, the right to trial by a jury of one’s peers, the right to be tried publicly, and the right to face one’s accusers, may all be defined as instantiations of the right to an impartial trial (since revoking any one of these secondary rights would imperil the right to an impartial trial); or, the rights to liberty imply a right not to be a slave and a right to emigrate. Additionally, what we mean by some of the terms here could be defined with more precision: what, for instance, constitutes unreasonable interference with privacy and security, as distinct from putatively reasonable interference? Nevertheless, without claiming to have defined the jus agnitioni exhaustively, I dare say that these definitions are enough to move forward from.

With one proviso. The jus agnitioni prompts one definite question: given that lots of regimes, groups, and individuals have tried to delegitimize the humanity of certain groups—slaves, Romani,1 the unborn, the disabled, blacks, Jews—on what grounds is the jus agnitioni to be based?

I see no practicable alternative (in an age that is both scientific and scientistic) but to state that human rights inhere in any being that is, by species, Homo sapiens. This can exclude none of the aforementioned target categories, and applies without respect to capacities, origins, or any other quality. It applies equally to the stay-at-home dad, the Nobel laureate, the unborn fœtus, the autistic teen, the widowed mother of five, the comatose ninety-year-old, the penniless migrant worker, and the death row inmate. In other words, it applies to humans as such, not to a specific kind or condition of humans; just like rights are supposed to do.

This has implications vis-à-vis questions like abortion, capital punishment, and euthanasia, among other things. Even if it doesn’t rule them out (which it very well may), it casts them in a particular light: that of dealing with our obligations to a fellow human being, and not solely of the most convenient solution to a philosophically problematic encounter of wills.

II. Jus Vitæ

The right to live is the next most essential, since no other right can be exercised if this right is not preserved. If it is to be applied to Homo sapiens, then—all else being equal—it applies from the moment of conception until the moment of natural death. All else may not be equal: there are situations in which doctors predict confidently that a woman will die if she gives birth, or a man can only protect himself from a serial murderer by killing him first, or a garishly dressed alien can only rescue his interspecies girlfriend from a criminally insane real estate tycoon by sacrificing a junior colleague given to self-destructive cries for attention. But the existence of hard cases does not abolish the fundamental principles of right and wrong, any more than the existence of best solutions for hard cases turns them into easy cases.

Like the jus agnitioni, the jus vitæ carries additional rights in its train, rights to those things that we need in order to live. These include:
· The right to food, drink, and clothing
· The right to housing
· The right to health care
· The right to safe living and working conditions
· The right to fair wages and prices
· The right to self-defense
· The right to seek asylum from violence

The canny reader will have noticed that, while I mentioned safe working conditions and fair wages, I said nothing about a right to work. The right to work is of course intimately connected with these things, but I don’t think it is primarily derived from the jus vitæ. That is because, somehow, bringing work into discussions of the right to life always seems to smuggle in an idea that this right to live is conditional, upon a person’s pulling their own weight. Rephrased, that would mean if a person doesn’t pull their own weight, they deserve to die. As severe as I often am about moral principles, I am not prepared to espouse that view.

Besides this, working, as such, doesn’t really contribute to life. What it does is one of three things: obtain or create the goods necessary to live (harvesting crops to eat, weaving cloth to wear, bandaging one’s wounds, etc.); obtain or create superfluous goods to sell or barter; or obtain wages (whether in kind or in money). Work therefore falls properly under the jus factioni rather than here, and to that I now turn.

III. Jus Factioni

This is almost the same as what Thomas Jefferson expressed by the phrase the pursuit of Happiness, using a classical and Aristotelian understanding of happiness: i.e., well-being, human flourishing, a secure and contented human life. It is a right to those things we value about being alive: personal fulfillment, cultural activity, and pursuit of a calling or craft.

So what do we mean by human flourishing? I think a sufficiently catholic definition would embrace the following:
· The right to work
· The right to contribute to the common good
· The right to recognition of original inventions, discoveries, or creations
· The right to a family
· The right to fairly-acquired personal property
· The right to peaceable association with others
· The right to education
· The right to enter or refuse legally binding agreements

These rights are, naturally, the most difficult to detail, since—as both the medium and the fruit of human activity—they are wrapped up in the autonomy of everybody involved. Whether and how the right to education produces a personal obligation in an educator is, unavoidably, a tricky question to address. I hope to hammer out the hierarchy of these rights in a later post, which should help.

It’s also worth noting that I have specified personal property, which is different from public, private, or collective property. Public property is that which is owned equally by everybody; private property is that which is owned by an individual, but in excess of what they can actually use or enjoy; collective property is that which is owned by a group, like a company or a club, as distinct from an individual (government property is thus really a type of collective property, not public property). Personal property is approximately equivalent to what we call someone’s effects: property they can personally use or enjoy. I’m confident that there’s a right to personal property, but I’m not sure about the others, so I have left them off until I have more time to think.

But all of these rights are the rights of individuals. And individual people always exist in a context, a web of history and relationships that they didn’t choose (as well as others that they did). No Man is an Iland, intire of it selfe, and no society is a vacuum. Any serious theory of ethics and politics must account for the essentially social nature and origin of man—and therefore of every individual. Hence, before moving forward, we must ask what rights society as a whole has, and how they interlace with the rights of the individual.
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1A.k.a., Gypsies. Roma or Romani is, in general, the self-appellation and preferred name of the people; Gypsy is sometimes considered a slur.

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