In 1651, Thomas Hobbes has published his Leviathan, one of the main point of the story was to oppose the idea that subjects are superior to their sovereigns. He thought that this kind of thinking would eventually lead to the civil war. In his famous view of the State of Nature, he says that everybody has the right for everything, and that is the reason for competition appearing. Everyone is afraid of the people around them and that is the state called diffidence. When such a condition is true it would inevitable lead to a constant state of actual or potential war. The only way for the people out of this situation, is to give up their right on nature to a common power, thus replacing freedom with the security that provides civil community.
Nowadays, state of nature theory is not as popular a it used to be, but at the same time most of us still are accepting the idea of universal human rights. Therefore, we take liberal political theory to clarify the notions of rights, which are not influenced by the norms or laws of society, life in the civil society could be just as poor, nasty, brutish and short (if not solitary) as in Thomas Hobbes’ infamous State of Nature.
In this essay, I would like to argue that rights are necessary but they are not the same as freedoms as claimed by Hobbes, they are rather compensation for the loss of freedom. I would also like to argue that civil society couldn’t really replace a hypothetical Stare of Nature, although it can coexist with it, and the diffidence according to that theory guarantees our rights in the society we live in. In other words we can both be members of society obeying its rules and be individuals trying to achieve our own interest.
Before discussing further the issue of rights, I think it is important to take quick look at the theories of the good, since a theory of rights is virtually impossible without some notion of good from which to work from. Like Hobbes, I shall work on the assumption that what is good is equivalent to what is desirable.
Theories of the good can be split into 3 categories: those that assume something is good because it is desirable, those which assume that goodness is a property inherent in certain things, and those which apply some other criterion by which we judge both desires and objects as good. I have argued elsewhere that only the first of these views provides an adequate account of the word “good.” This view can be summarized as follows:
For some person good is when it is desired in itself or it indirectly helps to realize a desire.
Something is morally good if it is correspondent with the good in general; it is the results of some person’s actions and involves several people.
For other theories there is a risk to considered partial in their judgment of good (this is the case with moral intuitionism) or make the definition of good more complicated by attaching not the desire but some specific desirable things, like happiness, pleasure or anything else. I we want something strongly and for sure, it is very common to attach the desire to the general idea of good and to disagree with people that do not share this idea. However, all we have done here is to move the desire up one level; that is, we not only want it, but want others to want it. I may desire freedom more than anything else, and I may also want other people to desire it as much as I do. However, even if they do, all this does is make freedom a moral good; it does not say—yet—that freedom is an essential part of the good, since this valuation of freedom is still, like all values, dependent on desire. Even if all sentient beings throughout the universe were so created as to value freedom more than anything else, we could say with confidence that freedom is good, but would not say that good is freedom.
We can find a good illustration of the problem in the Thin Theory of the Good by John Rawls that was fairly criticized for being not thin enough. Rawls take a number of goods that he thing are universal and self-explanatory to provide a blueprint for just society. But it is enough to watch Discovery Channel to understand that those goods are not even close to be universal with the acceptance of money. Whatever the merits of Rawls’ “original position” method, it needs an even thinner theory of the good in order to be workable. The account provided here, I think, has the merit of being so thin in terms of moral good as to be virtually anorexic, while at the same time being sufficiently accommodating to include whatever relative goods arise from the circumstances under consideration.
However this concept has its own problems. Since good is very much dependent on desire in this case, we are forced to accept a kind of preference utilitarianism, but originally it is the system that has well-known flaws. The problem actually is that “the needs of the many outweigh the needs of the few,” as Mr. Spock put it. In a situation where there are two alternatives, x and y, and two out of three people prefer x, then the third person will never get y. In other words, we have a tyranny of the majority.
The best way to avoid tyranny of the majority is to establish a set of certain rights that cannot be violated. Here comes the question where would such rights come from? If their source is some kinds of external non-utilitarian source we are faced with the dilemma. If they do meet our utilitarian standards, they would not have been accepted, but if we judge them on utilitarian grounds and find them wanting, then they either they cannot be good, or we need to find another, non-utilitarian standard of good. In theory it is possible but not quite practical. We would have to come up with the rule that there are 2 goods, one of which is more important that the other. There would also be a need in creating a third rule of judgment to explain why one of the goods takes precedence over the other.
We could also attempt to bring together our theory of rights in accordance with utilitarian structure, or just base our utilitarianism on the theory of natural rights. The first approach is more-or-less what John Stuart Mill argues for in On Liberty. Mill is, of course, famous for both his utilitarianism and his liberalism; the problem he grapples with is how to make a liberal theory of rights square with his prior commitment to utilitarianism. From a practical point of view his arguments are quite convincing; he demonstrates, for example, how in the long term the happiness of all members of society is served by allowing the free expression of ideas, however unhappy their expression may make some people in the short term. From a theoretical perspective, however, there is something lacking. It may be true that, in general, societies have benefited from freedom of speech, but this does not make it inconceivable that a society could exist where the opposite were the case. Mill himself offers examples of specific circumstances where freedom of speech may be curtailed, so it is no great jump, in theory, to a society where circumstances dictated that freedom of speech in general was not conducive to the public good. In fact, some proponents of so-called “Asian values” use this argument; from this perspective freedom of speech may well be good for Western societies, which collectively value individual freedom, but there is no reason to apply it to Asian societies, which have different priorities. Utilitarian arguments for human rights inevitably come up against this problem, since such rights are necessarily relative to the circumstances which make them desirable, a point to which I shall return shortly.
The other way to is to base a limited utilitarianism on the rights that already exist; it definitely requires some explanation for existence of those rights. State of nature theorists have grappled, largely unsuccessfully, with this problem; Hobbes, for example, proposes a “Right of Nature” to take any action which furthers ones own survival, then almost immediately contradicts himself by saying that while we may kill, injure and plunder to further our security, we should never break a contract. Locke is even less successful because he takes his Law of Nature from the theological ideas that do require some sort of explanation. Where Hobbes, Locke et al. perhaps go wrong is to suppose that rights exist prior to contracts. If a state of nature were to exist, it would start from a position where no one had any rights, rather than where they had unlimited rights, or rights limited only by a “Law of Nature”. In contracting, what people give up are not rights but desires, or rather, certain actions, which might lead to their fulfillment. If the desire to live in a society over-rides certain desires, which might make such a society impossible, we have contracts, and lose some autonomy in the process. Rights, then, are not lost, but gained; in a sense, a right is a compensation for lost autonomy. What a right does is protect us from some of the undesirable consequences of opting into society. If we accept a hypothetical state of nature in which people agree to come together, we might imagine them saying “OK, I’ll go along with the ethical calculus for the most part, but there are some things which you can’t interfere with.” These may include the rights to life, liberty, or wide-screen televisions; the hard question is to determine what should or should not be a right.
If rights are based on some kind of contract we can be certain that they are contingent because different people dealing with various situation will end up contracting to various things. In a world where rights are changing on a daily basis, where society does not have a state or a standard of social behavior, this would give any theoretical problem, however once we live in a civil society there comes up a need to make rights and duties formal. The problem that we deal with is that there are individuals in every society that will not accept the list of right, they may choose for themselves which ones to keep and which ones not.
What would people do in the situation when the standard rules of society do not correspond their own desires and values? Such people would have no legal or moral defense against their society, but similarly, society would be defenseless against them. Such people would have no legal or moral defense against their society, but similarly, society would be defenseless against them. Obviously society does not have to keep its people captive this is done only in most repressive regimes, where people were prevented from emigrating. A popular solution to this problem is to declare some rights absolute, universal and immune from State or social interference, while others are relative and may be granted or refused by whatever authorities exist. The State may not arbitrarily deprive us of life, for example, but may choose whether to give us the right to a wide-screen television.
This approach has two problems. One is that it has to have non-contractual rights, just like I said before. The existence of universal rights is the ground for humans simply being born and has to have some kind of standard to justify them. In its turn this fact implies that there is some version natural law existent. I accept the possibility of natural law, which does not limit moral judgments to be merely social and individual considerations. We would do well not to rely on natural law as the basis for social and political institutions, if only because it is so hard to agree on what exactly it is. It is perhaps ironic that the great proponents of natural law, from Cicero through Aquinas to Hobbes and Locke, are in general agreement that it is a set of principles, which anyone may derive by reason from nature.
This gradually leads us to the second problem, which says that unless there is an acceptable way of choosing the absolute rights, the idea of human rights itself is not credible. If one person taken randomly was to come up with a list of human rights, he could include a right for any sexual orientation becoming officially accepted but not the right to limitless accumulation of wealth.
Hobbes actually offers a possible solution. In his version of the state of nature, everybody is equal because the weakest person in the community is able to kill. As William Burroughs put it, “No one can command life, but anyone who can pick up a frying pan can command death.” This results in “diffidence”, i.e. a state where everyone is afraid of everyone else, and it is one of his principle arguments for the necessity of government, since otherwise anyone who is afraid of his or her neighbors may be tempted to launch a pre-emptive strike on them. In practice, however, the real problem with stateless societies tends to be not perpetual war but excessive social conformity. In such traditional societies, people are “diffident” not of each other as of individuals, but of the collective wrath (including the wrath of gods, ancestors and so on); Leviathan is more effective as a common myth than a “common power”.
However in civil society the diffidence principle can be a guarantee to prevent state oppression. I people’s desire are continually suppressed, some day they can become loaded cannons that can engage in any type of unsocial behavior and violence.
Put another way, we might see civil society, not as coming after the state of nature, but as coexisting with it. The vast majority of human interactions rely on nothing more than goodwill and rational self-interest; contracts, rights and coercive institutions simply exist as a backup when these relations break down. It should therefore be a prime concern of this civil superstructure that at the very least it does not make people more inclined to anti-social behavior than they would have been in its absence. Organized terrorism and disorganized crime, however regrettable they may be, are symptoms of social malaise more than they are causes. It therefore is to the advantage of any society not to oppress anyone too much, or at least not to let him or her think that they are oppressed. Of course no society can ensure that all its members are content. It can, however, take steps to assure that very few reasonable people are placed in a position where they would declare war on the society of which they happen to be a part, and that where people do rebel against the laws and norms of society, the result is positive, or at least not too bloody. Even if absolute human rights prove to be theoretically untenable, it is possible to determine a minimal set of rights which are applicable under almost all conditions, and a rough benchmark for such rights might be that if they were not granted under conditions where it was practical to grant them, a significant number of rational and well-meaning people would opt out of society, or make war on it. We obviously would not include the right to wide-screen televisions here, since if all societies are capable of providing them, and not many people number them amongst their most important desires (let alone values); conversely we might include the right to health care (where available), since health is pretty high in most people’s priorities, and whatever standard of health care a society is capable of providing, it should be capable of allocating it according to need, rather than to, say, skin color, religious beliefs or the ability to pay.
Finally, no matter what rights are given by society we should remember that a right is a not perfect approximation of freedom. A person that lives outside any type of society is totally free, because only obstacle to achieving his or her goals would be physical not social. Any kind of social contact produces situations where freedom is restricted by other people, and where a society reaches a certain degree of complexity, it becomes necessary to formalize the limits to which this restriction may be tolerated, but we may argue that the more formal rights a society possesses, the more potentially repressive that society is. We do not argue for the right to sneeze, because no society attempts to stop people sneezing, and we would be right to be worried about the kind of society in which it would be necessary to assert such a right.
Nowadays it is generally assumed that given the normal conditions, anyone has the right to take his own life. When we say right in this example we actually mean that contracts of a just society should keep the interference away from realization of the particular wish. It is debatable whether the suicide is bad, of course it generally causes grief to the associates of the person, but the only absolute arguments against it are not consequentiality. Locke, for example, echoes the traditional
Judeo-Christian view in saying that our bodies are the property of God, and thus only God may decide when they should cease to exist. However, I am dealing here with a minimal set of interpersonal ethics, which could form the ground-rules for a society in which individuals may have radically different desires and beliefs.
We have a question here as to what would we do if our friend was going to kill himself in front of us. Naturally we would try to stop them, but this way we would violate the right to kill them. How are we going to justify our actions?
One of the extreme ways to justify our actions would be to use opt out clause mentioned above: in the situations where the strongest desires of individual are suppressed the contracts are voided. A less extreme alternative is to assume that, at the moment of deciding to kill themselves, they are not in fact acting on their strongest long-term desire but are “under the influence of” a strong but transient desire. Such would be the case if alcohol or some other drug, reacting to some traumatic event or suffering from a temporary or treatable mental illness, influenced them. If, acting on this assumption, we were to stop them, we might be playing God, but this might also be justified by the circumstances. If we are mistaken, and the person really desires to kill him or herself they will doubtless find the opportunity to do so later, and we will have only caused them a temporary inconvenience; conversely, if we are right, we have saved them from a terminal error.
This second case study is considerably more problematic. Beggars in Spain is a novel which examines the possible consequences of genetic engineering: if some people are genetically enhanced in ways which make them vastly more productive (in this case, they have no need to sleep), are they morally obliged to support less able humans? The general answer given by the genetically enhanced is a resounding “no”. The “sleepers” who make up the majority of the population cannot compete effectively with the sleepless, and thus become increasingly dependent on handouts which the sleepless are increasingly reluctant to provide; according to them, society is based on mutually beneficial contracts, and those who have no benefit to contribute are sub-moral “beggars” who deserve nothing. When the sleepless finally secede from the USA, they state in their declaration of independence that “all men are not created equal.”
In terms of classical (and neo-) liberalism, the sleepless are in the right. People have an absolute right to the fruits of their labor, and if that means the less able starve, that’s just tough. Given that this is the dominant ideology these days, it is an extremely worrying scenario; genetic engineering of this kind may still be some years in the future, but even now the disparities brought about by natural genetic differences and, even more so, by differences in education and access to technology, are enough to make such a scenario real. If we do indeed have an absolute right to the fruits of our labor, and we happen to have the skills to survive in the information age, why on earth should we care about some unappealing Third World / urban ghetto unproductive who want to live off our taxes?
There are two objections to this position. The first concerns the view of (in)equality the sleepless propose. Much ink has been spilt on the question of whether people of different genders, races or whatever can be equal, but here we are provided with a very obvious and inescapable inequality: the sleepless are not only more productive, they are also healthier and more intelligent. However, this, like the debates concerning less glaring inequalities of ability, ignores the essential point, which is that inequalities in talents are of no significance whatever; real moral and political equality consists in regarding everyone’s desires as equally important.
This does not mean that all desires are equal, however. Not only is strength of desire important, as we saw before, but the degree to which the fulfillment of one desire will lead to the fulfillment of other desires needs to be taken into consideration. If we put ourselves in the position of a parent with two children, who has enough resources to put one of them through medical school or buy the other a sports car, we would surely chose the first option, no matter how much the other child wants to drive a Ferrari. It is not that the desire to be a doctor is better per se, but that in fulfilling that desire, the child will ultimately fulfill the desires of many people to have better health.
We have now come some way from the simple desire-based ethics proposed at the start of this paper, which is only to be expected, given the complex theoretical and practical problems raised by actual human societies. If the result seems to be an uneasy mixture of utilitarian and contractarian ethics with a dose of anarchism thrown in, I would argue that this is inevitable because these paradoxes are inherent to human society: people desire utility, justice and freedom in varying proportions. To summaries the argument, we can say the following:
- Good depends on desire.
- Moral good depends on a balance of individual desires, including values and empathic desires.
- Contracts are sometimes necessary to formalize relationships of benefit and obligation.
- Rights are dependent on contracts, and are a compensation for the loss of autonomy involved therein.
- Individuals start from a position of autonomy, and may return to it whenever the existing contractual system frustrates their most important desires sufficiently.
- Consequently, certain minimal rights may be supposed to exist in any worthwhile society.