Rights and the principle of charity

In his book Word and object, WV Quine describes the problems that arise when attempting to translate a completely unknown language. One of the ideas he puts forward in his discussion is that when you try to translate what someone says, you lose the principle of charity, by which Quine meant that we should assume that “claims that are surprisingly false at first glance probably appeal to hidden linguistic differences.” If your translation implies that your conversation partner said something downright absurd, you should assume that something was lost in translation, rather than assuming that you are speaking to a fool. And Quine points out that this is not limited to translating from unknown languages ​​– the same problem can arise “in the domestic case” due to “language differences”.

I try, however imperfectly, to apply this idea when I talk to other people. And recently I wondered whether such a “language difference,” if properly taken into account, might help me gain a more charitable understanding of the way some people talk about rights.

The view in question has been described by Michael Huemer as the Legalistic view of rights. (Note that in that article Huemer is talking specifically about property rights, but that same position is often taken about rights in general.) As Huemer puts it, in the Legalist View:

This is a line of thought I’ve heard in various forms over the years. Its proponents will often say, “Rights exist only to the extent that they are established by a society and/or enforced by the state. To speak of something that has no social enforcement behind it as a ‘right’ is a confusion. If it is not enforced and enforced by a state or by society, then it is not a right.”

This line of thinking has always struck me, in Quine’s words, as surprisingly flawed at first glance, because it has rather absurd implications. For example, I take it as a given that slavery represented the largest institutionalization of human rights abuses in history. But from the view that rights only exist when enforced by the state, slavery was not a violation of rights at all. If rights exist only when a state (or sufficiently strong social conventions) recognizes and enforces them, then it simply follows that wherever and whenever slavery is enforced by the state and widely deemed acceptable by citizens, no enslaved person experiences any violation of his rights – because they really don’t have any. From this view, the infamous Dredd Scott decision declaring that African Americans had “no rights which the white man was bound to respect” was not a serious error—it was an unequivocally statement of fact (at least at the time). If your theory says slavery doesn’t violate anyone’s rights as long as society approves of it and the state enforces it, you need a better theory.

Or so it always seemed to me. But now I’m wondering if there might be a hidden language difference, or a language difference, that could cast this in a different light. I recently remembered a back and forth from the comments section on this blog about the nature of rights from a few years ago (yes, I remember this stuff, but usually can’t remember when my brother’s or sister!). One commenter defended a legalistic view of rights, where I say that if you believe that “rights exist and can be ‘denied’ even when the social context clearly does not recognize those rights, then I disagree with that part of the argument. There are many rights that I believe societies should create and protect; but they don’t exist until society does.”

But I realized from something else that the commenter was saying that his position might be salvageable. Also discussed in that post was the Lovingly to Virginia case that overturned the ban on interracial marriage. On the legalistic view advocated by this commentator, one would have to say that such laws, before they were abolished, did not violate anyone’s rights. And this commenter accepted that implication — though he also added his belief that “the Lovings *should have had the right* to marry.” Nevertheless, they had no such right before the court ruling.

So here is my suggestion that could bridge the gap. This commenter confirmed that he believed the Lovings should have the right to marry. This in turn implies that it was wrong for the state to prevent them from marrying. Well, saying “It’s wrong for the state to prevent people from doing X” is just what it is for people like me resources to say that people have the right to X. When I say “people have the right to free speech,” I am saying that it is wrong for the state to silence people by force. It is a prescriptive claim, which in turn allows us to evaluate which types of laws are appropriate or inappropriate. From this view, laws and conventions can be violations of rights. According to this different definition of rights, saying “people have the right to free speech” is a form of “free speech” descriptive statement, and as such it may be true or false depending on the laws and conventions of a given society. Thus, on this view, laws and conventions cannot violate rights, because “rights” simply means “whatever is recognized and enforced by laws and conventions.”

Then consider that this commenter also said, “There are many rights that I think societies should create and protect; but they don’t exist until society does.” This confirms the view that there is something that there are, existing before and independently of social enforcement, and that specifically something must be protected and recognised. As far as society or the state should protects these matters, but does not do so, which is a shortcoming and must be corrected. For people like me, that prior is what we are talking about when we talk about rights, and what we mean when we say that rights exist prior to and independently of formal recognition and enforcement by the state or social conventions. This commenter and I both agree that this is so something existing before state policies and social conventions that prescribe what such policies and conventions are should are. It’s just that I call this rather existing something “rights”, and he doesn’t do that.

As a further example, here is another thought experiment that Huemer offers in the article cited earlier, in which I provide an additional caveat:

In this thought experiment, the hermit is not under the jurisdiction of any government, nor are there any prevailing social conventions. Yet it seems clear that you would be doing something wrong to the hermit if you were to perform these acts. And I think that almost anyone who accepts the legalistic view of rights would, if pressed, recognize that it would be wrong to do these things to the hermit. Well, the wrongness of these actions for people like me simply is what it is resources to say that the hermit has property rights here and that you have violated them. If you agree that it would be wrong to do these things to the hermit, then you agree with the substance of what people like me mean when we say that the hermit has rights even in the absence of state and social enforcement, even if you did. describe the situation using different vocabulary.

My point in this post is not to argue that one definition of “rights” is objectively correct, or that one is pragmatically superior to the other. (I may return to that point in a future post, but let’s raise it for now.) My point is simply that it is possible that much of the disagreement over whether rights are prior to or independent of the state exist, simply has to do with a linguistic issue. disagreements about what the word ‘rights’ should mean.