[Winstonm]

Rights are established by laws. Laws are established by government. It really is that simple.

[mike777]

 PassedOut, on 2016-April-21, 17:00, said:

They do, and I suppose that's why you said a few posts ago that most of them know nothing about American history.

Very true I expect most have little to no idea of who or what the founding fathers are.

[mike777]

 Winstonm, on 2016-April-21, 19:15, said:

Rights are established by laws. Laws are established by government. It really is that simple.

That is the debate and a fair one....see:

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.

[Winstonm]

 mike777, on 2016-April-21, 19:22, said:

That is the debate and a fair one....see:

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.

There is no debate. To see how well protected you are by "natural or even supernatural rights" try swimming the Pacific Ocean alone. While it may be accurate to say we are born liberated, there is certainly no natural guarantee of life or the pursuit of anything. And there really is no guarantee of being born into a culture that values freedom.

It is a nice "sounding" idea, but it is not based on reality. And I doubt Jefferson really thought it true.

[kenberg]

 Winstonm, on 2016-April-21, 19:15, said:

Rights are established by laws. Laws are established by government. It really is that simple.

I am imagining you at an Abolitionist rally, c1850

Abolitionist: These people have a right to be free.

Winston: No, I'll have to disagree with you there, Charlie. Rights are established by law, the law does not allow them to be free, therefore they have no right to be free. The law says they are property, and the law says a man has the right to sell his property, so of course slave owners have a right to hold slaves and engage in the slave trade.

You would probably be booted out of the meeting. Or worse.

If I am in a court of law, certainly my legal rights are what the law says they are, or perhaps what my lawyer can convince a judge or jury what the law says that they are. But ordinary people use the word "rights" all the time in a different way and I do not think that they are in error.

"I have a right to privacy". If I say that, as I would, I do not mean that I have studied federal, state and local laws on the subject, I mean I have a right to privacy, that's that, and the law should protect that right. If the law doesn't, I still have that right and the law is wrong.

I am not just picking here. This matters if you are going to discuss "the right to life, liberty and the pursuit of happiness". Jefferson was aware, it was his point, that the law did not provide for this. Same with "all men are created equal". Surely what he was asserting was a goal. We should work to create a society in which this is true.

And "endowed by their creator" is a manner of speaking, not really different from "Man is born free, and everywhere he is in chains". No, it was not true that everywhere every man was literally in chains. You could explain that error to Rousseau. He probably would not listen. And Jefferson did not believe that the Creator had gone around to each man endowing him with rights, like a fairy godmother with a magic wand. True enough.

I think it is a mistake to dwell on the fact, just as it is a mistake to ignore the fact, that by "men" Jefferson meant "white males" and that he may well have thought some white males were more equal than others. He was arguing that laws should be based on the consent of the governed rather than by royal decree. He and the others pulled it off, and that was no small feat.

I have no problem with observing that the founding fathers had flaws. Major flaws. But they did something, they really did. Dismissing the Constitution as being just a bunch of words is far too dismissive.

In short, the founding fathers were not gods, but they also weren't chopped liver.

[Winstonm]

 kenberg, on 2016-April-22, 06:53, said:

I am imagining you at an Abolitionist rally, c1850

Abolitionist: These people have a right to be free.

Winston: No, I'll have to disagree with you there, Charlie. Rights are established by law, the law does not allow them to be free, therefore they have no right to be free. The law says they are property, and the law says a man has the right to sell his property, so of course slave owners have a right to hold slaves and engage in the slave trade.

You would probably be booted out of the meeting. Or worse.

If I am in a court of law, certainly my legal rights are what the law says they are, or perhaps what my lawyer can convince a judge or jury what the law says that they are. But ordinary people use the word "rights" all the time in a different way and I do not think that they are in error.

"I have a right to privacy". If I say that, as I would, I do not mean that I have studied federal, state and local laws on the subject, I mean I have a right to privacy, that's that, and the law should protect that right. If the law doesn't, I still have that right and the law is wrong.

I am not just picking here. This matters if you are going to discuss "the right to life, liberty and the pursuit of happiness". Jefferson was aware, it was his point, that the law did not provide for this. Same with "all men are created equal". Surely what he was asserting was a goal. We should work to create a society in which this is true.

And "endowed by their creator" is a manner of speaking, not really different from "Man is born free, and everywhere he is in chains". No, it was not true that everywhere every man was literally in chains. You could explain that error to Rousseau. He probably would not listen. And Jefferson did not believe that the Creator had gone around to each man endowing him with rights, like a fairy godmother with a magic wand. True enough.

I think it is a mistake to dwell on the fact, just as it is a mistake to ignore the fact, that by "men" Jefferson meant "white males" and that he may well have thought some white males were more equal than others. He was arguing that laws should be based on the consent of the governed rather than by royal decree. He and the others pulled it off, and that was no small feat.

I have no problem with observing that the founding fathers had flaws. Major flaws. But they did something, they really did. Dismissing the Constitution as being just a bunch of words is far too dismissive.

In short, the founding fathers were not gods, but they also weren't chopped liver.

What I hear you saying is that the ideas in the Constitution are indeed great. I agree and have admiration for those who created the document.

But isn't the basis of the ideas themselves human minds? "By our creator" is a eupheamism for "natural law". Both phrases are meaningless. Both point to a nebulous "other thing" that somehow creates law. Balderdash. Laws, including who is free and who is not, are determined by the society in which one is born and lives. The concept that all men should be born free is an idea from the minds of men - it is a truly good idea and is to be supported - but to believe it is a natural law belies the fact that no human is capable at birth of being totally free. In our childhoods, we are all dependent, not free men and free women.

If we are lucky, we grow into free persons. What determines the amount of freedom we enjoy is place of birth and era of birth. It is only those who have been granted the right of freedom by their society and laws, agents of the minds of men, that get to enjoy freedom as the grow old enough to venture out on their own.

We may disagree entirely with a society that adopts slavery, yet we give a "pass" to the "founding fathers" for being slave owners due to "their times". This is BS. They were slave owners because they believed black Africans were less human than themselves. For many religious Southerners, the Bible was pointed to as endorsing slavery. These ideas seem antithesis to "endowed by our creator with unalienable rights". No, the American idea of freedoms for all came gradually from the changes in society and in laws. We just like to think it didn't. It makes us more "special" that way.

The founders tried their best and did remarkable work. But a rigid reading of the Constitution based on "those times" would have to mean that only white landowners had "unalienable rights". Seems a bit shortsighted.

[Zelandakh]

 kenberg, on 2016-April-22, 06:53, said:

I am imagining you at an Abolitionist rally, c1850

Abolitionist: These people have a right to be free.

Winston: No, these people should have a right to be free but the government is denying them that. That is why we are here and need to fight for a change in the law!

[Winstonm]

 Zelandakh, on 2016-April-22, 09:12, said:

Winston: No, these people should have a right to be free but the government is denying them that. That is why we are here and need to fight for a change in the law!

Bingo.

[barmar]

 Zelandakh, on 2016-April-22, 09:12, said:

Winston: No, these people should have a right to be free but the government is denying them that. That is why we are here and need to fight for a change in the law!

Exactly. The process of enlightenment involves people realizing what rights everyone should have, and then their governments reconciling the laws to be in accord with them.

We have documents like the United Nations Declaration of Human Rights. This isn't a law, since the UN has no legislative powers. It's an agreement written by people from around the globe. But there are many countries that cling to their traditions, and reject some of these rights.

Some rights really are dependent on context. In the Wild West, there was not a very good system of law enforcement. Since people needed to be able to defend their lives and property, the right to arm oneself and enact vigilante justice was considered appropriate at the time. But in a society with an effective police and court system, taking the law into your own hands is considered abhorent, except in cases of necessary self defense ("stand your ground" laws are a controversial borderline).

Some of the rights enumerated in the Bill of Rights really have stood the test of time -- the First Amendment is justifiably honored, but even it has accepted limits. The Second Amendment seems more to be a product of its time, as the FF could hardly have imagined modern assault weapons, but gun enthusiasts and the NRA consider it just as sacrosanct.

[kenberg]

 Winstonm, on 2016-April-22, 11:17, said:

Bingo.

Yes, sure. But if a person says "These people have a right to be free" I don't need the reformulation to understand what he is saying.

And I still think you might get thrown out of the meeting if you insist on such reformulation. Or maybe someone would bring up the many difficulties with the word "should". People should be equal. People should have a right to life, liberty and the pursuit of happiness.
I should go for a walk.


I am losing sight of where this is headed. I should be able to see it.

[Winstonm]

 kenberg, on 2016-April-22, 12:28, said:

Yes, sure. But if a person says "These people have a right to be free" I don't need the reformulation to understand what he is saying.

And I still think you might get thrown out of the meeting if you insist on such reformulation. Or maybe someone would bring up the many difficulties with the word "should". People should be equal. People should have a right to life, liberty and the pursuit of happiness.
I should go for a walk.


I am losing sight of where this is headed. I should be able to see it.

It seems to me important to understand that without government there are no rights.

[barmar]

 Winstonm, on 2016-April-22, 15:08, said:

It seems to me important to understand that without government there are no rights.

That's simply wrong.

There are rights. But there may not be any mechanism to ensure you can take advantage of them. The government can codify the rights and enforce them.

On the other hand, governments have also been known to trample people's rights. And not just the governments that are typically considered oppressive, although they presumably engage in this more than others (that's practically the definition of oppression).

[kenberg]

At least part of this, maybe a lot of it, seems to be linguistic. I think of some rights as intrinsic, even if I accept that this has to do with the society I grew up in. I read recently, I don't remember the details, about some dispute over whether a rapist has parental rights over the offspring, such as whether or not the child can be placed for adoption. What? No he doesn't. If the law says he does, the law needs to be changed.

One could say that he has such rights if and only if the law says that he does. This makes the phrase "legal right" redundant since no rights other than legal rights are recognized as rights.

Of course assuming that that there are rights that precede law can lead to arguments. Sure. But if we were to accept that the only rights are legal rights we still have the exact same argument, we just use different words. instead of saying the rapist has no such right I have to say, as in the reformulation earlier, that he shouldn't have such rights.

But as I write this I realize that it is not completely linguistic. I really mean he doesn't have a right. That is stronger than saying he shouldn't have a right. It's more like: Of course he shouldn't have such a right, are you out of your mind? Or: He has no right to have that right.

"We hold these shoulds to be self-evident" just doesn't do the job.

Anyway anyway, many of us, most of us, would agree that the Constitution needs, at least to some extent, to be interpreted. "shall make no law abridging freedom of speech" was written before the loudspeaker was invented. Before robocalls.

[Winstonm]

 barmar, on 2016-April-23, 10:53, said:

That's simply wrong.

There are rights. But there may not be any mechanism to ensure you can take advantage of them. The government can codify the rights and enforce them.

On the other hand, governments have also been known to trample people's rights. And not just the governments that are typically considered oppressive, although they presumably engage in this more than others (that's practically the definition of oppression).

You have asserted that I am wrong. What is the basis for your position? I am listening and am willing to change my mind. I will set the stage for your retort: a baby is born. It is healthy. The mother does not want the child, places it in a dumpster, and walks off. What are the rights of this child and from where do they materialize? Over to you....

Edit: On further thought I should alter my position slightly: rights come from governments, formal or informal governments (societies).

[Winstonm]

 kenberg, on 2016-April-23, 13:54, said:

At least part of this, maybe a lot of it, seems to be linguistic. I think of some rights as intrinsic, even if I accept that this has to do with the society I grew up in. I read recently, I don't remember the details, about some dispute over whether a rapist has parental rights over the offspring, such as whether or not the child can be placed for adoption. What? No he doesn't. If the law says he does, the law needs to be changed.

One could say that he has such rights if and only if the law says that he does. This makes the phrase "legal right" redundant since no rights other than legal rights are recognized as rights.

Of course assuming that that there are rights that precede law can lead to arguments. Sure. But if we were to accept that the only rights are legal rights we still have the exact same argument, we just use different words. instead of saying the rapist has no such right I have to say, as in the reformulation earlier, that he shouldn't have such rights.

But as I write this I realize that it is not completely linguistic. I really mean he doesn't have a right. That is stronger than saying he shouldn't have a right. It's more like: Of course he shouldn't have such a right, are you out of your mind? Or: He has no right to have that right.

"We hold these shoulds to be self-evident" just doesn't do the job.

Anyway anyway, many of us, most of us, would agree that the Constitution needs, at least to some extent, to be interpreted. "shall make no law abridging freedom of speech" was written before the loudspeaker was invented. Before robocalls.

I am sure we all think of many rights as intrinsic - yet close examination of our ideas show that there is no basis for those notions. The U.S. Constitution is truly remarkable. But not infallible.

[PassedOut]

 Winstonm, on 2016-April-23, 15:51, said:

Edit: On further thought I should alter my position slightly: rights come from governments, formal or informal governments (societies).

Your second formulation reflects my own position a bit better. As years go by, we collectively decide what are human rights. Sometimes we have to drag the government kicking and screaming to recognize those rights. But we can see, if we care to look, a positive direction over the long arc of history.

[Winstonm]

 PassedOut, on 2016-April-23, 16:57, said:

Your second formulation reflects my own position a bit better. As years go by, we collectively decide what are human rights. Sometimes we have to drag the government kicking and screaming to recognize those rights. But we can see, if we care to look, a positive direction over the long arc of history.

My thinking all along has meant to include society as a form of government - but then I realized it needed to be spelled out. Reminds me of Kens post. The obvious is not always obvious.

[barmar]

 Winstonm, on 2016-April-23, 15:51, said:

You have asserted that I am wrong. What is the basis for your position?

I think Ken described it well -- there's a difference between moral/intrinsic rights and legal rights. There are things that are allowed by law even though most agree that you shouldn't do it (many of them are common courtesies that aren't important enough to warrant legal regulation), and there are other things that are addressed in laws even though a significant number of people disagree with them.

My general feeling is that appropriate laws are codifications of the rights people have, but the rights precede the laws. The rights don't come into being as a result of the laws, the laws ensure that we're able to exercise our rights, or prohibit people from taking actions that they don't have the right to.

And there are also many laws that aren't really related to rights at all, they're just about keeping society functioning smoothly.

[Zelandakh]

 Winstonm, on 2016-April-23, 16:03, said:

I am sure we all think of many rights as intrinsic - yet close examination of our ideas show that there is no basis for those notions. The U.S. Constitution is truly remarkable. But not infallible.

Well we effectively begin with the right to do pretty much anything we choose. Like that cave Ugg lives in? Just overpower her/him and take it. Societies remove some of those rights and replace them with new ones. So Ugg's tribe might ostracise you and either drive you away or make life so intolerable that it is not worth staying. The act of governments making laws formalises this process. In effect, governments modify our rights to reflect what works for a society better. So in a democracy it is true that rights come from governments; in an anarchic state not so much.

[mike777]

If we follow the logic that rights are created by governments, then who creates governments that create rights?