| badgenome said: It's worth nothing that the Declaration of Independence is not a governing document, but life in that context a negative right. It means that you shall not be deprived of your life. If it were a positive right, society would be obligated to keep you alive no matter the cost. This is pretty obviously not what the founding fathers advocated or practiced. Pursuit of happiness is also a negative right. You are to be left to your own devices to pursue your own happiness, so long as you do not infringe on the rights of others. I'm not arguing that people don't claim everything under the sun as rights, and of course if you are arguing that you have a right to everything under the sun, then people's "rights" will come into conflict. But as positive rights are almost always an infringement on negative rights, which are the most basic rights (and I'd argue the only real rights), they ought to be discarded altogether. If we're not willing to do that, then they must always be secondary to negative rights. Legal matters, not ethical ones, are the jursidiction of the courts. Sometimes the legally correct decision is also the ethically correct one, but very often it is not. So I'm not really sure where you get that. |
Several things:
* The Declaration of Independence and the preamble, show intentions, or purposes in mind of the Founding Fathers, and why to even have a Constitution, rules of law, a society with law enforcement, and norms they would likely agree would fit in upholding a view of a social contract, if they were with Locke.
* The discussion here is about ethics, right and wrong, etc... NOT governance. If governance issues help clarify this, that is fine, but whether or not something involves with governance, is an entirely different issue.
* The lines between negative and positive rights get blurred, when people attempt to exercise them. Like the pursuit of happiness and life, can come into conflict. One can say that both are negative rights, but when my attempt to act to fullfill my happiness runs into an area without sufficient resources, someone is going to have to yield here and their pursuit will be restricted.
* If rights are seen as inalienable, and not given by governments, then rights can be infringed upon by other entities besides governments. This is made mention before the discussion goes into people merely being free, because there is no government to stop them.
* Laws are shaped and model by values and ethics, and a reflection of these. All laws are a reflection of some ethical state desired to be upheld to maintain states in society that individuals wish to live in. Because of the ability of said laws, combined with taxation, law enforcement, and so on... have an ability to maintain certain states, entities in society will gather around these states and attempt to make their ideal state from an ethical standpoint, come to pass.
* PETA was made mention, because of their mission, and their stating they are an animal rights organization. Their framework for protecting animals is framed in the context of rights for animals. And they also use other things besides legistlation. I could got through numerous other advocacy groups, and the lions's share of them argue from a basis of rights, to plead their cases. That is because of the dominance of rights as a focus for ethicals in Western civilization.
Well, I will close here by putting up a video below showing likely what you are trying to say in a fairly clear manner (It also shows the person arguing duty is not created without positive rights), and then a link to a discussion on rights, and arguments on the limitations and issues with rights-based ethics.
The video:
And the article:
http://plato.stanford.edu/entries/rights/
http://plato.stanford.edu/entries/rights/#7
You have the Marxist argument, but also those of communitarians:
Communitarians (Taylor, Walzer, MacIntyre, Sandel) sound several of the same themes in their criticisms of contemporary liberal and libertarian theories. The communitarians object that humans are not, as such theories assume, “antecedently individuated.” Nozick's “state of nature” theorizing, for example, errs in presuming that individuals outside of a stable, state-governed social order will develop the autonomous capacities that make them deserving of rights. Nor should we attempt, as in Rawls's original position, to base an argument for rights on what individuals would choose in abstraction from their particular identities and community attachments. There is no way to establish a substantive political theory on what all rational agents want in the abstract. Rather, theorists should look at the particular social contexts in which real people live their lives, and to the meanings that specific goods carry within different cultures. This criticism continues by accusing liberal and libertarian theories of being falsely universalistic, in insisting that all societies should bend themselves to fit within a standard-sized cage of rights. Insofar as we should admit rights into our understanding of the world at all, communitarians say, we should see them as part of ongoing practices of social self-interpretation and negotiation— and so as rules that can vary significantly between cultures.
These kinds of criticisms have been discussed in detail (e.g., Gutmann 1985, Waldron 1987b, Mulhall and Swift 1992). Their validity turns on weighty issues in moral and political theory. What can be said here is that a common theme in most of these criticisms—that prominent rights doctrines are in some way excessively individualistic or “atomistic”—need not cut against any theory merely because it uses the language of rights. Ignatieff (2003, 67) errs, for example, when he charges that “rights language cannot be parsed or translated into a nonindividualistic, communitarian framework. It presumes moral individualism and is nonsensical outside that assumption.”
As we saw above, the language of rights is able to accommodate rightholders who are individuals as such, but also individuals considered as members of groups, as well as groups themselves, states, peoples, and so on. Indeed the non-individualistic potential of rights-language is more than a formal possibility. The doctrine of international human rights—the modern cousin of eighteenth century natural rights theory—ascribes several significant rights to groups. The international Convention against Genocide, for example, forbids actions intending to destroy any national, ethnic, racial or religious group; and both of the human rights Covenants ascribe to peoples the right to self-determination. Such examples show that the language of rights is not individualistic in its essence.
And there is criticisms of rights from a language usage standpoint:
7.2 Critiques of the Language of Rights
The language of rights can resist the charge that it is necessarily complicit with individualism. However, critics have accused rights talk of impeding social progress:
Our rights talk, in its absoluteness promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations…. In its insularity, it shuts out potentially important aids to the process of self-correcting learning. All of these traits promote mere assertion over reason-giving.
Glendon (1991, 14) here draws out some of the detrimental practical consequences of the popular connection between rights and conclusive reasons that we saw above. Since rights assertions suggest conclusive reasons, people can be tempted to assert rights when they want to end a discussion instead of continuing it. One plays a right as a trump card when one has run out of arguments. Similarly, the ready availability of rights language may lead parties initially at odds with each other toward confrontation instead of negotiation, as each side escalates an arms-race of rights assertions that can only be resolved by a superior authority like a court. One line of feminist theory has picked up on this line of criticism, identifying the peremptory and rigidifying discourse of rights with the confrontational masculine “voice.” (Gilligan 1993)
It is not inevitable that these unfortunate tendencies will afflict those who make use of the language of rights. As we have seen, it may be plausible to hold that each right is “absolute” only within a elaborately gerrymandered area. And it may be possible to produce deep theories to justify why one has the rights that one asserts. However, it is plausible that the actual use of rights talk does have the propensities that Glendon suggests. It seems no accident that America, “the land of rights,” is also the land of litigation.
Another deleterious consequence of rights talk that Glendon picks out is its tendency to move the moral focus toward persons as rightholders, instead of toward persons as bearers of responsibilities. This critique is developed by O'Neill (1996, 127–53; 2002, 27–34). A focus on rightholders steers moral reasoning toward the perspective of recipience, instead of toward the traditional active ethical questions of what one ought to do and how one ought to live. Rights talk also leads those who use it to neglect important virtues such as courage and beneficence, which are duties to which no rights correspond. Finally, the use of rights language encourages people to make impractical demands, since one can assert a right without attending to the desirability or even the possibility of burdening others with the corresponding obligations.
Criticisms such as O'Neill's do not target the language of rights as a whole. They aim squarely at the passive rights, and especially at claim-rights, instead of at the active privileges and powers. Nevertheless, it is again plausible that the spread of rights talk has encouraged the tendencies that these criticisms suggest. The modern discourse of rights is characteristically deployed by those who see themselves or others as potential recipients, entitled to insist on certain benefits or protections.
Describing fundamental norms in terms of rights has benefits as well as dangers. The language of rights can give clear expression to elaborate structures of freedom and authority. When embodied in particular doctrines, such as in the international human rights documents, the language of rights can express in accessible terms the standards for minimally acceptable treatment that individuals can demand from those with power over them. Rights are also associated with historical movements for greater liberty and equality, so assertions of rights in pursuit of justice can carry a resonance that other appeals lack. Whether these benefits of using rights language overbalance the dangers remains a live question in moral, political and legal theory.
