What's Wrong about Rights

Legal rights are, generally, most useful and beneficial.  What we think of as rights is a relatively new development in the law.  The concept of legal or human rights (as we understand them now) seems to almost leap forth in the 18th century, from somewhere.  Perhaps that wretched fellow Rousseau played a part in this, perhaps there was something more complicated involved. 

We don't see it much (or at least I don't) in ancient times in the West; I'm not certain we see it at all in the East.  Roman law is vast, but beyond the view that certain people are due certain things by virtue of their status--e.g. a Roman citizen being due an appeal to the emperor--individual rights don't factor large in the days extending from the Twelve Tablets to Justinian's Codex.

I've read that the concept of rights has its basis in the idea of natural law.  I question this, though.  Natural law certainly appears in Roman jurisprudence and may be said to be a factor, even a very important factor, in ancient philosophy, particularly in Stoicism.  But if Natural Law engendered the belief that we are endowed by Nature or Nature's God with certain inalienable rights, in my opinion this occurred long after Natural Law had been conceived.

While Stoicism certainly anticipated the idea of a "brotherhood of man" and so recognized the worth of each person by virtue of the possession of a part of the Divine Reason, and its maxim that we should live according to nature indicates that nature provides us with rules which should govern our conduct in life, I don't see this as equivalent to the belief that each person has certain rights.  Indeed, the concept of rights as we understand it seems foreign to Stoicism.

We say we have a "right" to something when we believe that we are or should be free to do something or possess something.  We have a claim to it; we are entitled to it, to the exclusion of anyone else.  Stoicism teaches us that things beyond our control are indifferent.  It urges us not to disturb ourselves with them, not to seek or desire them.  What else is the claim to have a right to property but a claim that one is entitled to something beyond our control?  Epictetus tells us not to be disturbed even by the loss of a loved one, or disturbed no more than by the loss of a favorite cup.  It would be bizarre for a Stoic sage to maintain that he is entitled to anything, even to his own life.  Nature/God will determine when we die and how; we should be prepared to die, but our death is one of the things beyond our control  It's in the nature of a gift, a natural part of life.

Stoics tout the freedom one has from others and other things, but that freedom derives from the recognition of that which is indifferent to us and our own self-discipline.  The Stoic has no conception of a right to be free; one can be free even if in prison, as one maintains sovereignty over that which is truly in one's control.

For my part, I believe the only rights we have are those recognized by the law, that is to say, legal rights.  Certainly those are the only rights which are enforceable.  Legal rights, though sometimes conceived of as possessory, in fact result from restrictions imposed particularly on governmental power.  We have no right of free speech, for example, in the law.  We have the First Amendment, though, which prohibits the government from restricting free speech.  Legal rights therefore often exist purely because the law prohibits certain conduct by others.  I can speak freely in the sense that the government is unable to prevent me from doing so.

When we speak of rights outside the law, whether we call them natural rights, inherent rights, god-given rights, we purport to refer to what has application only if protected by the law.  We treat them as if they are legal rights, though they are not.  We claim to be entitled to certain things or entitled to do certain things by virtue of non-legal rights.

It seems to me that when we employ the concept of rights in ethics, we take an idea which has a beneficial function in the law and employ it where it has no function at all or a negative function.   Rights are something we have or claim.  Our interest in them is selfish.  We don't see rights as creating duties to others.  If we have the right to do and think what we wish, even if that right is qualified so that our right to act and think may not be used to harm others, we may do as we please even if we are cruel, envious, uncharitable, craven, contemptible, gluttonous, miserly.  We may be utterly unworthy, and are not only free to be so but have every right to be so.

In other words, we have the right to be wrong, bad, immoral as long as we don't infringe directly on the rights of others.  This is an ethics which sanctions, if it doesn't actually encourage, the disregard of the suffering of others.

I've always been a proponent of civil liberties, and still am.  Legal rights are essential to our freedom and so vastly significant in the law.   But rights seem a poor thing on which to base a code of morality.

As Flies to Wanton Boys

The belief in a loving deity, one that created the universe and we humans, one that is good, one that responds to prayers, intervenes in the universe and our lives, has always posed a certain difficulty to any thinking person.  The difficulty arises from the fact that a thinking person cannot help but feel that the universe is in some respects, perhaps in many respects, not good at all.  Bad things happen.

Most importantly as far as we're concerned, bad things happen to us.  Those bad things are not necessarily caused by other people, and so it can't be said that some person or persons are to blame.  The blame for natural disasters, if it's appropriate to speak of blame in connection with them, clearly must lie with something more than human, or at least other than human.

The "Problem of Evil" as it has been called necessarily arises in regard to this belief.  Why would such a God allow evil things to exist, to happen?  There have been several responses to this problem.  One has been to respond as does Shakespeare's Duke of Gloucester in King Lear, and to maintain that there is no such God, and there is instead a God or gods for which we are nothing more than flies are to wanton boys, and who kill us for their sport.

Another response is to ascribe the evil of the world to a supernatural being such as the devil.  This doesn't do much to address the issue, though, if that being is subject to God; a lesser being.  Then the question simply becomes why does God let the devil cause evil?  If such a being is claimed to be an equal--a kind of rival--to a loving God, God isn't necessarily responsible for evil directly or indirectly.  However, in that case God isn't all-powerful, either, and God's omnipotence is something most believers revel in; so, this Manichean approach isn't favored by most.

Then there is the option which posits that we are the cause of evil.  Perhaps we brought it into the world, or Adam and Eve did, and we are tainted by their Original Sin.  This approach isn't entirely satisfactory, though, as it doesn't account for the evil (suffering) which results from natural disasters.  But there are some, of course, who think we cause those as well, usually by being bad in some fashion.  Sexual misconduct seems preferred as a cause for hurricanes and fire from the sky, but in any event we act wrongly in some sense and God punishes us through manipulation of natural forces, and such punishment is just.

A kind of catch-all or what perhaps may be called a default response is that what we perceive as evil isn't evil in fact.  It is actually good for some reason we're too dense or limited to comprehend, but is manifest to God.  Thus there is no "Problem of Evil" as there is no evil.  There is merely the working of God which will eventually, perhaps in a time so far distant as to be beyond the insight of humanity, result in good.

There is a problem even with this latter response, though, and that is probably a consequence of the fact that what we tend to think of as "good" is what would be good for us humans, i.e. what we perceive to be good.  What good, so to speak, would what God may have determined is a good result for the universe do us if it is millennia or millions of years in the future, when we may not even be around as a species?

Perhaps we can get around that problem by believing the universe was made just for us or with us being utmost in God's mind.  In that case, what is ultimately good must be good as far as we are concerned.  Or perhaps we can claim that once dead, we become immortal, and will experience and benefit from the ultimately good outcome of the universe.

Clearly, the belief in a personal God possessing human characteristics or concerns regarding fate, good and evil, results in complications of this kind.  The more speculations and arguments are required to explain or justify what happens in life from such a perspective, the less justifiable such a belief becomes, it would seem.  Or the more mysterious life and the deity become.

Perhaps the recent popularity of Stoicism as a quasi-religious view is in reaction to the manifold machinations required to make sense of the universe given belief in a personal, human though superhuman God.  A God immanent in the universe wouldn't necessarily create the universe for a particular purpose or end.  Being immanent in a universe of unimaginable size, such a God wouldn't have peculiarly human concerns or desires and wouldn't be concerned in any particular sense with humanity.  But as a part of the universe ourselves, we participate in God and by exercising our reason, our peculiar ability, we act in accord with our nature and that of the universe.

Such a belief at least prohibits us from thinking ourselves flies to wanton boys, and other things.

Mencken the Prophet? Democracy and the Moron

Hearken to the words of H.L. Mencken, the great Sage of Baltimore:

“As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.”

I suppose some would say that day has already come and gone.  I'm uncertain about that, but if it has not one can make a good case that it will, soon enough. 

Mencken had little or no faith in democracy, as may be expected from a lover of Nietzsche.  Democracy was for Mencken what Christianity was for Frantic Freddie, I believe; that is to say, an institution the purpose of which is to impede and restrict as far as possible the "superior man."  Mencken's regard for the preening Nietzsche, that relentless purveyor of exclamations, pronouncements and rhetorical questions, was his great fault in my opinion.  But in a way his elitism was understandable then and still is now. 

Ultimately, in politics and other things, we get what we deserve if not what we want.  So if elect a moron we will most certainly deserve him.  Are we destined to elect one?  Was Mencken right about democracy?

The question whether democracy is a desirable form of government has been asked for quite some time.  Democracy was of course rejected by Plato.  He preferred that we be led on a grim, dreary death-march to perfection, unfettered by art and amusement, grouped in closely regulated ranks separated one from the other though we would be able to advance if we show promise in our steps, perhaps even attaining, eventually, the ranks of the Guardians marching before us.

An enlightened despotism has been the dream of many intellectuals, and was even for a time at least favored by such a friend to liberty as J.S. Mill.  As I recall, he thought that this happy dictatorship would represent a stage in our development.  Our ignorance and brutish character would be limited while molded by a despot or despotism of an elite until that glorious day when we would be able to think for ourselves.  Then, I think, we might be able to vote, even, though certain votes would count for more than others.

There have been relatively few democratic nations over time; perhaps there have been none, really, since the days of the Greek city-states.  Even God's favorite country, the United States, is not a democracy, nor was it intended to be one.  It is a republic.  The Founders didn't want a true democracy, fearing the tyranny of the majority, fearing more the mob, the common folk.  They would have been horrified by universal suffrage. 

So, Mencken wasn't right, strictly speaking, to think of this nation as a democracy.  The shrewd lawyers and merchants, and rich farmers, who created this nation were careful in their efforts to make certain that there would be no democracy so long as the Constitution and institutions they created persevere.  The fabled checks and balances we learned of in school (or learned of once, in any case) are there not only to limit the powers of any one branch of our government, but also to prevent majority rule.

Thus we may take heart from the fact that the moron we may be fated to elect as president won't be entirely a moron unleashed.  We may want the moron to have the power to ignore Congress and the courts and, perhaps more importantly, the special interest groups who carry politicians around in their pockets like Don Corleone, but much as we would like this to happen  (or think we do), it will not.  The moron may think it will happen, being a moron, but that won't make it so.

Someone like Mencken may say that republic or not, we elect morons at all levels.  Our representatives are morons as well as our President, or will be.  And so our judges will be morons.   The ascendancy of morons is inevitable, eventually, whenever election outcomes are based on majority vote.

Well, that may be.  But in that case we'll tire of the morons, and start all over again, running through the various forms of government.  Perhaps democracy is a kind of end of government.  It may lead to chaos, which will lead us to impose an autocracy, thence to an oligarchy, and etc.  We will be a phoenix rising from the ashes, then burning, then rising again.

On the Threshold of a Scream

Sinclair Lewis wrote that when fascism comes to America, it will be wrapped in the flag and carrying a cross.  Pictures of supporters of Donald Trump, their right hands raised in response to his surprising request that they swear to support him, tend to bring fascism to mind.  And references to the fact that it can happen here are being made in the media, some pundits also echoing Lewis in doing so.

I suppose that it's inevitable that fascism be contemplated during this freakish presidential election.  The electorate of our Great Republic seems determined to raise hell this time around, and is doing so with considerable success.  It's hard not to be disappointed and frustrated given the venality and dullness of our political elite, but there are signs that more than disgust in our politics is involved.  Anger, hatred and fear are pervasive, and on such things demagogues--and fascists--have thrived.

It's difficult to say whether fears of fascism are justified.  It's understandable to fear the worst when the worst of us is so much on display.  If what we see is or will develop into fascism, I doubt it will be of the ostensibly militaristic kind which thrived in the 20th century.   I doubt the U.S. will engage in wars of conquest.  We're already involved in military action around the world in any case.  Wars of retribution would be more likely, but those wars would probably only involve an increase in the actions we're already taking; more bombings, more drones, perhaps more "boots on the ground" but no great military actions.

Lewis' prediction of what fascism would look like here is more likely.  Americanism and naive Christianity, certainly.  But the factors of money and race will be involved as well, I hazard to guess.  Money simply because it's needed to accomplish anything, race because the America that many and the supporters of Trump particularly envision is very white (like his supporters, I suppose).  No peculiar peoples live there, or if they do they're quiet, undemanding and certainly not as well off as white folks.  They pose no threat, in other words, to those white.

The American form of fascism may not be racist strictly speaking, however.  I think the long struggle against racism here has had such success that it will be difficult for government to openly prefer one race to another on a national scale.  The whiteness of it would be more cultural than racist.  People would for the most part like the same sort of things, do the same sort of things, and those who do not would not be welcome.  People would learn American English and use it exclusively, go to church, be patriotic in a righteous and simple way, mind there own business, distrust foreigners, not ask questions about the American Way of Life.

Still, though the Republican Party may be descending into chaos, I don't think our nation is quite as chaotic as I think would be necessary in order for fascism to prevail.  Nor do I think we've reached the point where a person or group would be able to make the unilateral decisions required to dominate the federal government or the states.  We have something of a commitment to democracy here; certainly more of a commitment than Germany had before Hitler, or Italy had before Mussolini.  Also, we're jealous of our rights.  We hate to see others share them, of course, but also hate to see them restricted.

We've probably become too diverse too accept even a culture of whiteness on a large scale, however, if we define that as WASP or working-class whiteness. 

Unless fear overwhelms us and we're willing to waive our rights and the law for the sake of security, we should be safe from fascism of the 20th century variety.  Perhaps a kinder, gentler fascism might take hold, gradually.  Just what that would be is unclear.