Rights and the Precept of Charity

In his e-book Phrase and Object, W. V. Quine describes the issues that come up when one is making an attempt to translate a completely unfamiliar language. Among the many concepts he raises in his dialogue is that when making an attempt to translate what somebody is saying, one ought to make use of the precept of charity, by which Quine meant we should always assume “assertions startlingly false of the face of them are more likely to activate hidden variations of languages.” In case your translation implies your interlocutor has stated one thing patently absurd, you must assume that one thing has been misplaced in translation moderately than assume you’re talking with a idiot. And Quine factors out that this isn’t restricted to translating from unknown languages – the identical drawback can come up “within the home case” because of “linguistic divergence.”

I strive, nevertheless imperfectly, to use this concept when speaking to different folks. And just lately, I questioned if such a “linguistic divergence” may, if correctly accounted for, assist me type a extra charitable understanding of how some folks speak about rights. 

The view in query has been described by Michael Huemer because the Legalist View of rights. (Of be aware, in that paper Huemer is speaking particularly about property rights, however the identical view is usually taken about rights extra typically.) As Huemer places it, within the Legalist View, 

This can be a line of thought I’ve heard in varied kinds through the years. Its proponents will usually say “Rights exist solely to the extent that they’re established by a society and/or enforced by the state. To talk of one thing that has no social enforcement behind it as a ‘proper’ is a confusion. If it’s not upheld and enforced by a state or by society, then it’s not a proper.” 

Now, this line of thought has at all times struck me as, in Quine’s phrases, startlingly false on the face of it, as a result of it has moderately absurd implications. For instance, I take it as on condition that slavery represented the best institutionalization of human rights violations in historical past. However on the “rights solely exist when enforced by a state” view, slavery wasn’t a rights violation in any respect. If rights solely exist if a state (or sufficiently sturdy social conventions) acknowledge and implement them, then it merely follows that at any time when and wherever slavery is enforced by the state and thought of typically acceptable by residents, no enslaved particular person experiences any violation of their rights – as a result of genuinely they’ve none. On this view, the notorious Dredd Scott choice declaring that African Individuals “had no rights which the white man was sure to respect” wasn’t a grave error – it was an unambiguously factual assertion (at the least on the time). In case your principle says slavery doesn’t violate anybody’s rights so long as society approves of it and the state enforces it, you want a greater principle. 

Or so it at all times appeared to me. However I now surprise if, maybe, there’s a hidden distinction of languages, or a linguistic divergence, that may forged this in a distinct mild. I just lately recalled a forwards and backwards from the remark part on this weblog on the character of rights from a couple of years again (sure, I can keep in mind issues like this however can’t normally keep in mind when my sibling’s birthdays are!). One commentator defended a legalistic view of rights, saying that if one believes “rights exist and might be ‘negated’ even when the social context clearly doesn’t acknowledge these rights, then I gained’t agree with that little bit of the argument. There are various rights that I believe societies ought to create and defend; however they don’t exist earlier than the society goes and does that.” 

However I noticed from one thing else the commenter stated that possibly his view could be salvageable. Additionally mentioned in that submit was the Loving v Virginia case that overturned bans on interracial marriage. On the legalistic view defended by this commenter, one must say that such legal guidelines, earlier than they had been struck down, didn’t violate anybody’s rights. And this commenter accepted that implication – though he additionally added his perception that “the Lovings *ought to have had* the suitable to marry.” Nonetheless, earlier than the courtroom rulings had been issued, they’d no such proper. 

So right here’s my suggestion that may bridge the hole. This commenter affirmed that he believed the Lovings ought to have had the suitable to get married. This in flip entails that it was flawed for the state to forestall them from getting married. Effectively, saying “it’s flawed for the state to forestall folks from X” is, to folks like me, merely what it means to say folks have a proper to X. If I say “folks have a proper to free speech,” I’m saying that it’s flawed for the state to forcibly silence folks from talking. It’s a prescriptive declare, which in flip permits us to judge what sorts of legal guidelines are acceptable or inappropriate. On this view, legal guidelines and conventions might be rights violations. By this different definition of rights, saying “folks have a proper to free speech” is a descriptive declare, and as such it might be true or false relying on the legal guidelines and conventions in any given society. Thus, on this view, legal guidelines and conventions can’t violate rights, as a result of “rights” merely means “no matter is acknowledged and enforced by legal guidelines and conventions.” 

Think about, then, when this commenter additionally stated “There are various rights that I believe societies ought to create and defend; however they don’t exist earlier than the society goes and does that.” That is affirming the view that there’s one thing on the market, current previous to and independently of social enforcement, and that exact one thing should be protected and acknowledged. To the extent that society or the state ought to defend these items however doesn’t achieve this, that could be a failing and must be corrected. To folks like me, that prior factor is what we converse of after we speak about rights, and what we imply after we say rights exist previous to and independently of being formally acknowledged and enforced by the state or social conventions. This commenter and I each agree that there’s one thing current previous to state coverage and social conventions that prescribes what such coverage and conventions ought to be. It’s simply that I name this prior current one thing “rights”, and he doesn’t.  

As an extra instance, right here’s one other thought experiment Huemer affords within the beforehand cited paper, the place I toss in a further caveat:

On this thought experiment, the hermit is just not underneath the jurisdiction of any authorities, nor are there any reigning social conventions. Nonetheless, it appears apparent that you’d be doing one thing flawed to the hermit if you happen to carried out these acts. And I believe nearly everybody who accepts the legalist view of rights, if pressed, would acknowledge that it will be flawed to do these items to the hermit. Effectively, the wrongness of these actions is, to folks like me, merely what it means to say the hermit has property rights right here and that you simply’ve violated them. When you agree that it will be flawed to do these items to the hermit, then you definately agree with the substance of what folks like me imply after we say the hermit has rights even within the absence of the state and social enforcement, even if you happen to would describe the scenario with a distinct vocabulary. 

My level on this submit is to not argue that one definition of “rights” is the objectively right one, or that one is pragmatically superior to the opposite. (I’ll come again to that time in a future submit, however let’s desk it for now.) My level is solely that it’s doable a lot of the disagreement about whether or not rights exist previous to or independently of the state might merely be turning on a linguistic divergence over what the phrase “rights” is supposed to designate.