Who Has Rights?
You’d think that a writer like me who regularly dives into controversy — everything from O.J. Simpson to Roman Polanski, guns to God, PETA to petroleum — would get a wide range of hate mail. But I’ve probably received more email on one subject — two articles I wrote years ago in opposition to animal rights — than any other subject I’ve tackled.
The American Revolution was fought over rights. The Declaration of Independence says “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Rights were so important to Americans who fought the Revolutionary War that when a strong federal government was proposed to be created by the new constitution, the necessary support required a promise that a Bill of Rights would soon be added.
A couple of centuries and some decades down the road, and rights are still the main event of American politics. Do unborn babies have rights? What about animals and trees? Is there a right to health care? To education? Is there a right to get married? Do minorities have rights that majorities don’t have?
When one word is used so many different ways, it gives you a sense that people are using the word without having a common understanding of what a “right” is.
I’ve spent years reading various different theories of what rights are, in the moral sense, the legal sense, the political sense, and the common sense.
I’ve read all sorts of theories about where rights come from. Jefferson, in the Declaration of Independence, takes a faith-based position: that rights come from God.
Utilitarians such as John Locke suggested rights are a useful idea needed to secure the greatest good for the greatest number.
Ayn Rand, who believed in morality but not God, worked hard to use Aristotelian axioms and deductive logic to come up with a God-free metaphysics in which rights can be derived from the Law of Identity.
Politicians often regard rights like the kings of old did — handing them out as favors to their supporters.
In my articles on animal rights I probably used the word in a sense not often understood anymore, since I was using the word in the context not of legalities or politics, but as part of a theory of moral accountability.
I suggested a new definition of rights: that a right is the moral authority to act without prior permission of another, and that as a consequence, rights could only be held by moral actors who could be held singly responsible for the consequences of their actions. If any legal concept was to be applied it was that of mens rea. Only a being capable of criminal culpability could be regarded as having rights — and in my view, vice versa.
So, of course, the challenges began. Are you saying that babies don’t have human rights, so it’s not murder to kill them? What about the mentally deficient and those suffering from dementia? If they don’t have rights can we also kill them? Then of course — ironically enough — those right-wingers who argue that unborn babies have rights use pretty much the same logic as left-wingers who argue that animals and trees have rights.
And of course the questions about marginal cases come up that reminded me of an old George Carlin routine about Catholic kids questioning their parish priest, “Fadda, fadda, if I’m supposed to come to church on Sunday but we was on the International Dateline …”
You get the idea.
Look. All I’m looking for is a use of the word “right” that makes sense and has some logical balance to it.
It doesn’t make sense to me that a thirteen-year-old girl can be subject to a law which forbids her from consenting to sex, deprived of the legal ability to enter into binding contracts, own or rent property in her own name, buy a pack of cigarettes, and decide whether or not to attend school — with no possibility of legal emancipation — but the second she’s suspected of a heinous crime she can be tried as an adult at the whim of the same judge that would never consider granting her any rights accruing to adults.
It’s hypocritical. Such double standards make a mockery of justice — which is based on equity under the law — and a law which regards someone so capriciously is not law at all but established tyranny.
So my solution is simple. If you can’t be held fully accountable for your actions, you need a keeper.
Or to put it another way: if you’re not grown-up enough to be trusted with a gun, you need a keeper.
And the keeper — of the fetus, or the animal, or the tree, or the mental incompetent — is the one who is held responsible for the well-being of his charge, and for any liabilities resulting from its doings.
It’s one of the reasons I’m so absolutely enraged that officers and enlisted personnel of the United States Army were disarmed at Fort Hood, left defenseless when attacked, just as if they were infants. If you can’t trust your own army to be armed — and in the name of the English language please notice that the word arm starts the word army — why even have one?
Before I’ll debate the question of whether a gorilla, parrot, fetus, or even idiot should have rights, I’d like to debate the question of whether those we trust to defend our country have any.
That is not a marginal case.