When Exactly Did the Idea of Rights Go Off the Rails?JULY 5, 2019
It has lately become common to think that liberalism as a political theory is in crisis, but in fact the notion is nothing new. Liberalism has been, or has been thought to be, in crisis virtually from the moment of its origin. While various focal points might be identified, because liberalism is at its center a political theory of rights, a crisis in our understanding of rights must lie at or near the center of the problem.[1]
Let’s start not with any of the big-name liberal political theorists, but with a figure who impressed the rights issue upon the popular imagination with a clarity and simplicity no mere intellectual could rival. Credit for this achievement goes to Detective Harry Callahan, as played by Clint Eastwood in the 1971 movie that made his character at once an American hero and anti-hero. At a crucial moment, Dirty Harry, through clenched teeth and squinty eyes, responds to a district attorney’s objection to the interrogation methods he has applied to the suspect in a particularly vile crime. Says Harry: “Well, I’m all broken up about that man’s rights.â€
There, tersely expressed, is our crisis about rights. Detective Callahan said more than he knew. In his own way, he really was broken up about rights. In related ways, so are we. Our understanding of them is fractured, and at least in part due to that fracturing, we see an increasing disdain for rights, in different sectors of the population in their different ways—a disdain indicative of a certain kinship, like it or not, with Clint Eastwood’s flinty detective.
The Turbulent History of Rights
The career of the idea of rights has been a rollercoaster ride: a sharp rise followed by a steep plunge, then another sharp rise—but this one featuring some harrowing turns, raising riders’ fears that the car at any moment might go hurtling off the rails.
The sharp initial rise came in the 18th century. Although historians of political thought (notably Brian Tierney, Richard Tuck and, with a different emphasis, Michael Zuckert) have traced the origins of rights language deep in the Middle Ages, the idea of rights appeared on the political scene in a sudden burst of glory in the revolutions in America and France. The underlying political philosophy is best epitomized in the American Declaration of Independence, but the larger significance of this turn of events is perhaps best captured in the Gettysburg Address, wherein Abraham Lincoln implicitly characterized the United States as the Moses of nations, a new nation that would convey a new moral law to humankind. Thus was conceived the natural rights republic.
Even as the ink was drying on the Declaration, however, powerful lines of criticism were forming. The first was theoretical: The idea of natural rights lacked a solid philosophic foundation, argued later modern thinkers, because the new science of nature rendered untenable any claim of a grounding in nature for moral principles. David Hume, radicalizing a strand of argument supplied by John Locke, the preeminent natural rights philosopher, set the critique in motion with his observation that no Ought-proposition can be inferred from an Is-proposition.
Further lines of criticism, practical and moral in character, are also traceable to a current of modern philosophy. We can assess the truth of a given moral proposition, Niccolò Machiavelli contends, not by that proposition’s correspondence to the intrinsic natures of things, but only by that proposition’s effects. It follows that rights can only be rights if they produce the right results. Rights properly understood—whether they are claimed to be natural rights, or properties of all humankind, or only civil or political rights that are conferred with membership in a given political society—must produce beneficial outcomes for the entire class of those said to possess them...
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