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The Language of No Compromise

It’s not often that I come across a book that blows me away in terms of readability and freshness: most have a few good points here and there, leaving me, the reader, curious as to what prompted reviewers to call it a ‘tour de force…’ or describe it as ‘simply a masterpiece.’ The reviews for the following book, however, were modest—the irony was not lost on me when I thought to myself upon finishing, ‘this is simply a masterpiece.’

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Rights Talk: The Impoverishment of Political Discourse by Mary Ann Glendon is an interesting little book—indeed, for a book about such a monumental subject as rights it is comparably small. Perhaps because Glendon goes to work right away and wastes no time with an introduction telling the reader what is going to be argued later at greater length; a style in vogue with academia and journals. Concerning our talk about rights in this country, she begins by claiming that our brand of rights is “set apart from rights discourse in other liberal democracies by its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyper individualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities.”

“Collective responsibility.” Nine syllables that some will only ever hear as four: “socialism.” That’s precisely Glendon’s point. Mere words block us from having fruitful conversations about important and complex issues. It’s no surprise, then, that the use of the phrase “collective responsibility” can both catapult a progressive politician to the fore, while at the same time subject them to such disingenuous caricatures from right-leaning folks in the form of memes about dictators and tyrants. (Though it cuts both ways.) Glendon’s point is that the political landscape is gray, murky, and opaque, but we only ever talk about it as if it was simple.

A more collective attitude seems perfectly coherent and more than necessary as an addendum to our insistence on only talking about rights. Our individual rights are but one half in what Glendon calls our “democratic equation.” The other half—talk of collective or civic responsibility—is all but absent from our rhetoric due to our “near-aphasia” concerning its role.

Characterizing our political discourse—if discourse is the proper term anymore—as impoverished is one thing: it doesn’t take a Stephen Hawking grade intelligence to see that our interactions in the political arena are impoverished, to say nothing of their Hobbesian nature: hostile, short, and usually cruel. Daddy hasn’t let Mommy a word in edgewise concerning the Second Amendment—it’s there, it’s clear, don’t touch it. Boiling this impoverishment down to an evasion of responsibility is a much more interesting observation.

Interesting and mysterious observations often need more justification. I have long railed on about how we need a heavier dose—perhaps a lethal dose—of civility in our conversations, but Glendon takes a different tack. It’s not necessarily civility, but rather the problem is inextricably bound to our historical situation: to be frank, our country’s history, narrative, and founding documents seem to cause such radical fracture and thus such brief and simple political conversations. As is hammered on again and again throughout, Glendon doesn’t push any overt policy or platform, so in a certain breath-of-fresh-air sense, the book isn’t overly politicized. She similarly doesn’t call for a letter-changing construal of our actual documents. Rather, she hopes for a change in our talk and rhetoric about politics in general—a simple shift in how we frame the conversation, she thinks, can mean a world of difference (although her request might be harder in practice).

Quite a sigh for folks who think that how you say something is just as, if not more, important as what you’re saying. The latter point is something that should sit relatively easy with all along the political spectrum, though I realize it may be harder in reality. However, advice and suggestions always sit well with most… that is until the opportunity comes to implement said advice.

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Glendon is a specialist in comparative law, so she’s well-suited to observe that rhetoric in the United States is highly legalistic as compared to other nations. “There is no more telling indicator of the extent to which legal notions have penetrated both popular and political discourse,” she says, “than our increasing tendency to speak of what is most important to us in terms of rights, and to frame nearly every social controversy as a clash of rights.” She goes on to say that “the time honored understanding that difficult and controversial issues should be decided by the people through their elected representatives, except where Constitutional text and tradition clearly indicate otherwise,” is being nudged out in favor of a seemingly quicker and more efficient way to do things. In other words, her implication here is that we seem to be knocking on the Court’s door every time we have a problem.

It’s hard not to agree with her at this point even if one agrees with the outcome of certain recent court decisions. Put another way, anyone who’s thought about the deeper processes at work will soon realize that no matter the good that’s come from certain decisions, the precedent is a potentially dangerous one. The precedent of course being ‘let’s leave it to nine judges to decide everything we find problematic in society.’

I consider myself neither a fear-mongerer nor Supreme Court doubter, but I don’t think one need be either to simply worry about the type of court the highest in the land is slowly becoming: an arbiter not of the constitution but of morals. It is, essentially, another legislative branch. Even unapologetic Constitutional haters like Daniel Lazare worry about this hard turn. Whereas Americans “were formerly inclined to see the Supreme Court as a neutral body devoted to the concept of the law as a force greater than politics, they now see that it as no less baldly political than any other institution in Washington.” It seems likely that our insistence on using legal jargon and “rights talk” rose part and parcel with our viewing the highest court in the land as the ultimate decision making entity in our country. Which, of course, is much easier to digest when the court is overtly political and has a majority of members whose political alignment is the same as one’s own.

Though it is this very notion of legal talk that Glendon thinks is our most dangerous aspect: it “cheapens” the complexity of most issues while simultaneously “foreclosing further communication with those whose points of view differ from our own.” “The language of rights,” she says “is the language of no compromise.” After surveying the superficial problems—perhaps the more obvious ones—Glendon sets the question in plain. Alas, the question she wishes to answer with her exploratory book: “Why does our public rhetoric so regularly gloss over the essential interplay between rights and responsibilities, independence and self-discipline, freedom and order?” Grandiose and pregnant questions, indeed.

Where she wants to get us is to a more “refined rhetoric;” one that “would promote public conversation… keep competing rights and responsibilities in view, helping to assure that none would achieve undue prominence and that none would be unduly obscured.” This, however, is a tall order considering our hair-trigger ability today to say ‘so what?’ or ‘screw em’ to the apparently obvious and backwards views of others. By urging that no view achieve “undue prominence,” Glendon shows herself as moderate or even classical conservative: she believes compromise to be both a political virtue and absolutely essential in a democratic republic. Without it, we have very little reason for hope.

If it were only compromise she were after, the book would have focused more on swindling, backhanded dealing, and a guide to two-faced politics rather than an inquiry into our talk of rights and responsibilities. As she says about her book: “It is not an assault on specific rights or on the idea of rights in general, but a plea for reevaluation of certain thoughtless, habitual ways of thinking and speaking about rights.” This is no small order of business. Her first task is to trace whence all this absolute rights talk came from which she pinpoints in the political philosophy of property rights—the likes of Blackstone, Locke, and so on. Here Glendon rightly points to the rather obvious fact that property rights were never, much to the dismay of believers today, absolute in any sense. Of course they may have been absolute in the letter but were never close to such in spirit. One can bolster this view by surveying the historical literature: “the crucial fact,” Forrest McDonald writes “is that ownership did not include the absolute right to buy or sell one’s property in a free market; that was not a part of the scheme of things in eighteenth-century England and America.” McDonald’s chapter “The Rights of Englishmen” in his book Novus Ordo Seclorum can be read as a historical supplement to Glendon’s criticism of proponents of rights absolutism. She writes:

“Absoluteness [in the law] is an illusion, and hardly a harmless one. When we assert our rights to life, liberty, and property, we are expressing the reasonable hope that such things can be made more secure by law and politics. When we assert these rights in absolute form, however, we are expressing infinite and impossible desires—to be completely free, to possess things totally, to be captains of our fate, and masters of our souls. There is pathos as well as bravado in these attempts to deny the fragility and contingency of human existence…”

It’s hard to deny Glendon’s sober and relatively unbiased assessment of the situation both in light of the actual history and her larger project. The former being that much to the dismay of libertarians and glorifiers of the past, rights were never absolute. As far as the larger project, Glendon simply wants us to realize this so that we may preserve what little societal fabric we have and have more constructive conversations in the political sphere.

Once we ditch our neolithic assumptions about the absoluteness of our own rights, we still have most, if not all, of the work ahead of us. Even acknowledging that our right to property has reasonable limits, we still think of ourselves as individuals with clearly defined borders. Glendon calls this “the lone rights bearer.” At the heart of this tangled mess is the belief that we are singular individuals that come together to form a society—in no way does society come first. In other words, we are all strangers that happened to wander close, so we decided to form bonds. It’s not surprising that we have, for the most part, come to believe society doesn’t impose anything upon us in terms of the way we think about the world. Individuals and society do not form a sort of reciprocal back and forth or symbiotic relationship. Thanks to Hobbes, Locke and others, we have the state of nature thought experiments that lend credence to these individual-before-society views.

Glendon urges us to grab hold of another notion: the idea that “people do not ‘enter’ society; they are constituted in part by society and in turn constitute it.” This is no strange idea, for many thinkers before her have at their most critical wanted to do away with any individual-society schema, and in their more exhausted states wished to simply talk about more exciting things. I find myself in the latter camp. The overblown effect that progressives think society has on individuals versus the radically individualistic view that ‘everyone has a choice’ is one of the more exhausting examples of these black-and-white style conversations.

As Glendon points out, neither view is without harsh implications. The orthodox-individualistic view perpetuates on a deep level the idea that we owe nothing to anyone else (putting aside the positives of this view for a moment), while the progressive-society focused view perpetuates the idea that we owe everything to that thing we call society; that we are but helpless bystanders to society’s will and force. In that sense, then, Glendon is spot on in wanting us to ditch either extreme, because each view leads to some undue focus on one aspect to the exclusion of the other. She says,

“Modern liberal polities require not only a citizenry that is prepared to accept some responsibility for the less fortunate, but citizens who are willing, so far as possible to take responsibility for themselves and their dependents. Conservatives tend to lament deficiencies in the latter area; progressives, in the former.”

In other words, there is no lone-rights bearer outside of the society he or she is apart of, and neither is there only society in which there are lesser, smaller pawns known as individuals who have very little control over their own lives.

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Once Glendon disposes of both the myth of absolute rights and the fantasy of the lone-rights bearer, she explores the relative lack of “responsibility language” in our founding documents and court decisions as compared to other countries. In a quotable line, she opens up this chapter by noting that “the American rights dialect is distinguished not only by what we say and how we say it, but also by what we leave unsaid.” In our system, in other words, good behavior is not encouraged by codified law, but rather, per Mill, are “left to other social norms—custom, convention, and religion.” She notes that our legal system in the United States trains our lawyers to make harsh distinctions between the law and morality—pointing out that it is perfectly legal to pull up a chair and watch a toddler drown in a pool, whatever your thoughts may be about the morality of such a heinous failure to act. This, Glendon points out, is not so in other countries.

Whereas it is true that bystanders who don’t come to the rescue of other stranger-citizens in harm’s way are not punished in any harsh or legal sense, judges have a much easier time conveying a sense of responsibility to the particular person before them, thus navigating the murky waters between ‘what are my rights?’ and ‘what are my duties?’ much better than we do here. Glendon is the first to point out that these types of “bystander” situations are gray areas, and yet other nations do a far superior job in dealing with these gray areas when compared to the United States in which rights are primary and the only focus of the situation. The heavy lifting Glendon wants us to do at this point is to shift our way of thinking and speaking from black and white to the promotion of gray areas—in her eyes, judges can and should show a genuine sense of disappointment in their opinions along with the articulation of the hard laws and rights of the situation. The entire theme of the book is, more or less, the idea that most situations need not be ‘either/or’ but ‘both/and.’ Much to the dissatisfaction of anti-collectivists and radical individualists, this new way of thinking and speaking is hardly a tall order or a slippery slope into the law being a moral guide perpetuated by a few elitists. A judge’s disappointment, Glendon keeps clear, isn’t a legal ruling even though it may have a profound and important role to play.

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Ruminating on this idea a bit more, Glendon, in the chapter “The Missing Dimension of Sociality,” observes that our founding documents, court decisions, and interpretations rarely, if ever, speak of community. For instance, with respect to the contentious issue of flag-burning, Glendon says:

“what was never fully brought to expression in the controversy was the underlying disagreement between those who equate all widely held standards with majoritarian oppression, and those who regard the extension of constitutional protection to flag-burning, child pornography, or sadomasochistic art, as an assault on all the practices and procedures through which a society constantly defines and redefines itself. The maintenance of vital democratic society, a society with a creative tension between individual freedom and the general welfare, requires that a continuing debate take place about just such matters. If political discourse all but closes out the voices on one side of the debate, liberalism itself is at risk. Yet that is precisely what our simple rights dialect regularly does.”

Words like “tension,” “gray,” “complicated,” and other synonymic words appear regularly throughout the book, and Glendon is right to belabor the point. Compared to other relatively homogenous societies, the United States is wildly heterogeneous and struggles to have any overarching and authoritative narrative due to the countless number of cultures and peoples. To say nothing of the harshness and ideological radicalism of competing narratives. In other words, we are fragile (not that other nations and societies aren’t). As Glendon points out, most constitutions were written post-World War II, and along with statements of absolute rights they include many disclaimers and exceptions to those rights as well—most importantly these disclaimers and exceptions always allude to a sense of community or social responsibility involved in the matter. For example, in one nation’s constitution, Article I states that “Property and the right of inheritance are guaranteed. Their content and limits shall be determined by law,” while section two immediately states that “Property imposes duties. Its use should also serve the public weal.” This second half is notably absent from our version in the United States, and it’s safe to say that this would offend even some of the profoundest sensibilities on this side of the Atlantic.

In a particularly clear-headed observation, Glendon notes that it is precisely because our Constitution is much older that that dimension of sociality is notably left out. And it is with good reason; for “in the beginning there was no particular reason for American statesmen to pay special attention to families, neighborhoods, or other small associations. These social systems were just there, seemingly, ‘natural,’ like gravity on whose continued existence we rely to keep us grounded, steady, and attached to our surroundings.” One comes away thinking, ‘of course; why would they talk of sociality and community if they were simply assumed?’ It doesn’t take a soothsayer to predict Glendon’s lament at the loss of community in our society; others such as Nisbet, Oldenbourg, and Putnam have done so at length before. The breakdown of society, she claims, is due to all these fractures among the little institutions; the smaller associations we used to rely on so much in older times. In one sense, I can lament with her; in another, I think we are dealing with no more, no bigger, and no more serious set of problems than any other time in history. Yet there is still something terrifying, perhaps more than other pathologies, about the breaking down of informal social institutions.

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Taking a brief detour around her penultimate chapter about our “rights insularity” as compared with other nations and countries, we find ourselves at a half-hearted conclusion. It is half-hearted because it has no call to action. At least no call that makes us ready to strap on our shield and pick up our swords in any heroic fashion. While Glendon and her requests are moderate, I think at times she underestimates the difficulty of essentially saying ‘we just need to speak differently.’ Bad habits are hard to break—two-hundred year old ones may well be near impossible. Especially when they are myths based upon an unrealistic version of two-hundred years ago.

Aside from some minor disagreements with Glendon about what the role and nature of law ought to be, I find myself coming away from this book somewhat of a cynic. What Glendon wants us to do may be much harder than it initially may seem: feeling a sense of profound hope for restructuring the “public sphere” is soon crushed by the countless real conversations that, even trying to apply Glendon’s points, are derailed almost as soon as they leave the station.

Perhaps we are too set in our ways to turn back; too heavy that even a light touch to the other side of the scale in the name of moderation seems pointless and ineffectual—a Sisyphean task. After all, our talks of rights seems more like a psychological defense mechanism for lack of depth or rigor than anything else.

But for those with a temperate heart like myself, it is much easier to see the call to action. It is, in short, a refusal to take sides. Even more, it is a bold suggestion that we start to talk of responsibility just as much as, if not more than, rights and laws. The boiling down of conversations both formal and informal to ‘well, it’s my right’ is true enough, but it’s to say nothing of interest or importance on the matter. Glendon hopes, I think, that we who believe that there are two halves to our democratic equation—rights and responsibilities—not give up on the latter half. For it is true that this half has no legal foundation and is much more hazy and complex, but, like most intangibles, it is powerful. It is also in desperate need of a revival so that its power to transform can once again be seen.


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Life is like one of those sand art thingies that gets destroyed after it's completed.

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88 thoughts on “The Language of No Compromise

  1. Yeah….so….

    Groups don’t have rights. Groups are collections of individuals. Individuals have rights. And frankly, what “civic responsibility” am I supposed to have? What the “group” decides I should have over my veto? Only as much as I need to reluctantly consent to avoid being thrown in jail or killed. And coerced consent isn’t consent at all is it?

    You want to reduce the hostility? Stop having people tell me and others that my property is subject to the group’s desires, that it’s “democracy” and that I’m the one that should concede. Most of the constitutions where written post WW2. Yes, all in Europe by people who for centuries were subjects, not citizens. There is a difference, and if you’ve ever spent time in those countries, you know what I mean. The perspective is entirely different. And our source documents reflect our unique creation. They should be different.

    I’m happy to have a conversation about civic responsibility….once the “group” agrees to stop eroding my rights and consents to their restoration. ONLY then.

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    • Not writing computer programs to single out certain races for discrimination might be a start.
      (Yes, I know that isn’t you writing them. Other people have different definitions of civic responsibility, that lend more towards “I need the money to get shit done“)

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      • A lot of people agree with the concept that “it takes a village”. I don’t, especially if the village decides that my stuff needs to be confiscated and used by the village for their own enrichment.

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    • So you’ll talk when “the group” gives you what you want first. Ahh yes the Trump negotion strategy.

      But this seems to miss the point of the post. What you want isn’t some neutral starting point. You are asserting that your Rights and vision are correct so everything must follow from that. What you think is the starting point because of your Rights. So Rights end up being the end of discussion not the start.

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      • No, I’m asserting my rights have already been violated and I’ll not talk until it’s reset back to what I already lost. To do otherwise is to accept and agree to losing those rights permanently.

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        • such as? And, more to the point, does at least a substantial minority of the legal profession agree with your constitutional construction of rights violation?

          Anybody can say that their rights are being violated. What gives those statements teeth is other people agreeing.

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          • Well, Francis, you’ve just hit on something I argued here at the Ole OT (it was OG back then), namely, that the appeal to rights Damon invokes is, in my mind, nothing more than an emotional-based grunt effectively saying “this is mine” or “you can’t do that”. It’s dressed up in language a bit, but at root that’s all it is.

            Of course, there are arguments justifying certain conceptions of rights which go beyond the subjectively-determined self-serving emotional insistence that they exist and must be adhered to. And that’s true of certain emotionally-motivated conceptions of constitutional rights, as well. Reasonable people can and do, seems to me, reasonably disagree about what rights the constitution accords.

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          • does at least a substantial minority of the legal profession agree with your constitutional construction of rights violation?

            If I’m reading Damon right, this is non-responsive — he’s not talking about legal rights but natural rights. Just as many progressives would say about human rights, the mere fact that a particular legal body doesn’t recognize it doesn’t mean it doesn’t exist.

            I’d say that neither natural nor human rights “exist” except as shorthand for expressing the areas where one is willing to coerce, but in any case the legal profession has no particular authority to speak about non-legal rights.

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            • KenB,

              I’d say that neither natural nor human rights “exist” except as shorthand for expressing the areas where one is willing to coerce,

              I’m confused. The above claim strikes me as tautological to the conceptions of rights. A right necessarily entails a legitimate use of coercion to enforce. At least, that’s how it seems to me while admitting I might be wrong. Am I missing something?

              And also admittedly your use of the word “willing” throws a wrench in my rights-based gearing…

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              • I mean that someone saying “people have a right to X” is exactly equivalent to “I strongly believe that everyone should have X” and nothing more.

                People who favor rights-talk are usually suggesting that rights have some sort of independent existence and force beyond their own personal opinion.

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                • People who favor rights-talk are usually suggesting that rights have some sort of independent existence and force beyond their own personal opinion.

                  Yes, well said. I agree. At that point the important thing is to make the personal opinion agreeable to others without resorting to outright violence to enforce. Which would just be a Hobbesian state of nature all over again.

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            • Thats kind of what I and others are saying, that rights don’t functionally exist outside of a collective agreement.

              So Glendon’s pushback on rights talk can be thought of as a utilitarian one, where seeing rights as negotiable stances yields a more productive outcome than simply demanding our own conception of them.

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              • OK, i think what’s tingling my nose is that most or all of the rights being pushed back on here are the ones that libertarians care most about and that liberals find inconvenient sometimes. If this is a real philosophical position and not just a tactic, it would be nice to see some pushback on the rights talk common among Team Blue.

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                    • Err, the dig at Team Blue? Why bring “teams” into a discussion with individuals about the nature of rights without desiring to reduce the discussion to ideology and score some points?

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                        • As an aside, instead of wondering if everyone is ok with their sacred rights getting gored, imagine what shared responsibilities would stick in your craw.

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                          • Stillwater’s point below about “free-riding” is another important one when it comes to shared responsibilities.

                            The difference between “shared responsibilities that are important because I need to do this sort of thing for others” and “shared responsibilities that are important because I need others to do this sort of thing for me” is subtle but the former seems to be a lot more sustainable as a cultural attitude than the latter.

                            The go-to example, of course, is the drug tests for welfare recipients.

                            I suspect that the drug test is not there as a punishment. Instead, it’s there as something that makes the feeling of unequally shared responsibility bearable.

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                          • Me personally? The responsibilities that fit with my personal norms are fine for me, and the ones that are imposed on me by a majority without my personal support aren’t so hot. Is it different for anyone else?

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                • fwiw as an official liberal i’d be fine and dandy with less rights talk from libs. Most isn’t’ any better then rights talk from the right that just phrases preferences, desires, policy positions as rights. We would better arguments for stuff with less rights talk. ie: Health care, don’t care about talking about a right to it. Just leads to shouty shouting. We should have uni HC for all sorts of reasons but forget about a Right.

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            • KenB:

              The problem with admitting the existence of natural rights is that it is about as useful as arguing the nature of heaven. It can be amusing for a while but it’s inherently meaningless.

              There are vast expanses of this country that have very little government, because there are very few people. Out there, one has ample opportunity to exercise one’s right to be left alone, pollute, fire guns, be noisy, etc. and there just aren’t enough people around to care how you do so.

              My sneaking suspicion, however, is that the regular libertarians who post here live in a more urbanized setting. They don’t want to leave, they don’t have the popular support to get the legislation they want or the legal doctrines to get the rulings they want, and they refuse to be loyal. That leaves grousing, which is fine. Enough grousing can lead to the popular support to change the law.

              But internet grousing from libertarians about deprivation of rights is really kind of missing the point. Their actual enforceable rights derive from the same body of law that impose the obligations that they are complaining about in the first place.

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              • Do you feel the same way about human rights? When American progressives say that “everyone has a right to health care”, does that have any more force than libertarians’ natural rights for you?

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                • Oh, I certainly hear the power of the language and I recognize the effectiveness of progressives establishing a baseline of positive rights. It echoes Roosevelt’s Four Freedoms, ie the freedom from want and the freedom from fear.

                  But positive rights are also a claim on the checkbook of fellow Americans, many of whom are not at all in agreement with the idea that they are obliged to pay (for example) the health care costs of other Americans.

                  Which appears to be exactly what Glendon was getting at. No, we do not have a right to health care. Instead, health care financing is a collective responsibility.

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                  • health care financing is a collective responsibility.

                    This is also mere opinion — I would re-write it as “Francis thinks that health care financing should be a collective responsibility”.

                    Well, unless you’re just saying that based on our current laws, all taxpayers are assuming some of that responsibility. That’s a fact.

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                    • Francis: “health care financing is a collective responsibility.”

                      KenB: “This is also mere opinion”

                      As literally phrased I largely agree, hedging only in that I think there actually are arguments (perhaps not persuasive to a radical individualist, of course) justifying the view.

                      On the other hand, tho, is this: the fact that health care is expensive and cost-incurring incidents are unpredictable has led to insurance as the predominant mechanism by which healthcare costs are managed. And of course, insurance is based on a model which prices policies on the expectation that a certain percentage of premium-payers won’t file a claim. Which is another way of saying that for the insured, healthcare costs are effectively the collective responsibility of everyone contributing to the carrier’s cash-pool by paying a premium.

                      Now, I think you meant something different in your use of the phrase “collective responsibilities” – something more aligned with a premise used to justify government action, etc and so on. But in principle, it seems to me that people accept the underlying logic of “collective responsibility” pretty clearly as it applies to the private insurance market.

                      So, you know, there’s that.

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          • Let me go all “godin” on ya.

            It was perfectly legal for germany to do what it did to the jews. Was it a crime against humanity? Yes. But we wouldn’t be talking about it if they’d won the war.

            And Frankly, the powers of the gov’t are very clearly spelled out as well as their limitations. Ex: I have a right not to have my property searched without a warrant. That’s not the current practice, because some judge has intervened and “interpreted” the law differently. Ergo, what was very clearly absolute is not not. That’s my rights eroding.

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    • Damon, lots to chew on here. Aggressively. :)

      Rather than rehash our old dispute about the nature of rights, I’ll focus on this:

      You want to reduce the hostility? Stop having people tell me and others that my property is subject to the group’s desires,

      How bout if instead they told you that yours is the logic of a freerider – someone who wants to enjoy the benefits of “collective action” without bearing any of the costs – or that negative externalities aren’t determined by the “group’s desires” but rather by other individuals, folks like yourself, who bear the resulting cost? Do you think mitigating or preventing free-riders and negative externalities are a legitimate use of coercive governmental power?

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      • One other point Damon.

        On a principled level you may think (and I certainly won’t dispute your claim to thinking this :) that you, personally, as a US citizen, are the victim of unconscionably abusive and unjustifiably immoral applications of coercive governmental power. I mean, you have to pay fucking taxes, bro! And abide by “the law”! But when I compare your complaints to the types of problems afflicting most of the ME, the current EU, and latin American countries like Brazil (where 60% of their current sitting senate has been charged with breaking the law) I think your rejection of a state which is anything less than “perfectly non-coercive” is completely irrational. And I mean that empirically. :)

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        • Still,

          Are my issues “first world problems”. Damn f’cking straight they are. If I was living somewhere else I’d probably be packing a AK and and be in some rebel / freedom fighting army. And I’ll be the first person to concede that, as screwed up as this country is, and I actively researched leaving the US and where might be a better place to live, it’s still pretty damn near the top of countries I would want to live. That doesn’t mean that I can’t be pissed off that every day someone is whittling down my freedoms, considers me subhuman for my political beliefs, and makes me want to see things turned around.

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          • Damon,

            That doesn’t mean that I can’t be pissed off that every day someone is whittling down my freedoms,

            I gotta admit that I have a really hard time understanding the logic underlying claims like this. One way to interpret the claim historically: that people like you used to have more freedom than you do now, which just strikes me as absurd. Another way to view the claim ideologically: given an abstract conception of perfect freedom (which includes all the opportunities, access, complexity, mulitplicity of choices, etc etc which comprise our current society) you are experiencing increasing oppression each and every day that passes. Which, again, I find absurd.

            Is there another way to interpret it, one I’m missing (and charitable to the person articulating the view :) ?

            Adding: this comment reminds me of one of the best thing I read Jason K say at this site: something to the effect that all things considered, today is the best day to be alive in the history of humankind. I think he was right, myself.

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      • ” someone who wants to enjoy the benefits of “collective action” without bearing any of the costs” What collective action are we talking about? The collective action the in group wants? If that’s the case, then we are right back where we started. I don’t need to freeload.

        “Do you think mitigating or preventing free-riders and negative externalities are a legitimate use of coercive governmental power?” I’m not sure what you mean by this. Example?

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  2. I can’t think of anything special to say about this post other then it was really good and i agree. Rights talk closes off discussion. It’s more often the end then the beginning of figuring issues out.

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    • Well, rights are, by the conception of folks who invoke them as a weapon, irreducible, immutable, self-evident, sui-generis natural (or sometimes Supernatchrel) properties. Once invoked, their power cannot be disputed. Supernatchrelly.

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  3. “Once Glendon disposes of both the myth of absolute rights and the fantasy of the lone-rights bearer…”

    Interesting how something like this used to be an obvious indicator that the speaker was a capital-R’s Rock-Ribbed Republican, worried about how all those damn criminals kept using the talk of rights as a shield against the authorities taking them out of circulation.

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  4. I don’t think resorting to assertion of rights is by any means irrational in our current political context where bad faith arguments, lawfare, and bureaucratic mission creep are the norm. I actually think it’s a necessary push-back against the more authoritarian and elitist tendencies of the state.

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  5. I think that a big issue is that “rights” is often short-hand for existence and the recognition and also a fight for dominance.

    We live in an incredibly diverse society. One that is much, much more diverse than the original 18th Century United States from the original ratification of Constitution. We are more advanced, more urban, more racially, ethnically, religiously, and sexually diverse. When people talk of their “rights” (including myself), I think it is short hand for “This is who I am and will be and I will not be second-class or subservient for it. This is an immutable part of my core and even if mutable, the mutability is irrelevant. I will not be morally or legally compelled to change it.”

    The problem is that these identities are not compatible some or much of the time and I am not sure what compromise can be made. An obvious example is the Evangelical Christian who believes that his or her religious identity means they should be allowed to exclude LBGT people from their business and LBGT people who obviously don’t want to be second-class citizens in civil or economic life. My sympathies are with LBGT identifying people.

    FWIW, I often find that bigots are gobsmacked when confronted with their bigotry and minorities who refuse to be subservient.

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  6. What is the foundation to the assertion that rights must exist in a balanced equation with responsibilities?

    I hear this a lot, but I’m not sure where it comes from, unless it’s from a certain desire for niceness that I confess that I am personally unable to feel.

    Rights may be balanced by other rights. They may be balanced by the harm principle, if we define harms clearly enough. But to balance a right with an otherwise unchosen responsibility – which means an obligation – which means an abrogation of rights – seems arbitrary in the highest degree. If that’s what she’s saying.

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    • It depends on your conception of citizenship. Some people take the idea of citizenship and civic virtue seriously. It seems to them, and I’m sympathetic to this position, is that if your a citizen of a particular body politic and have a right to participation in that body politic than you have an obligation to see to the well-being of the body politic and your fellow citizens. This makes especially a lot of sense if you rights as something that fellow citizens give each other rather than something that exists naturally in a state of nature.

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      • Naturally, that is in the state of nature, the only right is might. Or more precisely, the emotional, physical, strategic sack to defend or take what you want.

        If people wanna say that reason and evidence determine rights they’re no longer talking about a state of nature.

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        • “Naturally, that is in the state of nature, the only right is might. Or more precisely, the emotional, physical, strategic sack to defend or take what you want.

          “If people wanna say that reason and evidence determine rights they’re no longer talking about a state of nature.”

          This was very far from either Locke’s or Rousseau’s view of natural rights. Indeed, it’s even grimmer than Hobbes (see Leviathan Part I ch 14, and not the parts of that chapter that everyone likes to cite, but rather those that follow immediately afterward): Hobbes’ first law of nature was that all men should endeavor peace insofar as it could be obtained.

          Where did you come by your strange view of nature?

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      • if your a citizen of a particular body politic and have a right to participation in that body politic than you have an obligation to see to the well-being of the body politic and your fellow citizens.

        If you’re a citizen of a particular political order then you have the legal rights and legal responsibilities laid out by the laws of that order. You don’t have any legal obligations beyond what the laws specify.

        If you’re talking about extra-legal obligations as an actually-existing thing rather than just expressing your personal opinion about what people’s attitudes should be, then you’d need to come up with some sort of structure that explains how non-legal rights and responsibilities are determined and then explain why someone who disagrees with you should accept it.

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      • Count me out of that camp, then. If rights are contingent upon the right-holder’s behavior, then they aren’t rights at all. To me, talk of civic virtue and the responsibilities of citizenship sounds like a way to try to justify not respecting the rights of people that we find distasteful by classifying the things they do that we don’t like as reasons to exert our raw power over them.

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      • LeeEsq: This makes especially a lot of sense if you rights as something that fellow citizens give each other rather than something that exists naturally in a state of nature.

        Interesting observation, perhaps made more compatible with the concept of natural rights by substituting ‘yield to’ for the word ‘give’ and dropping the ‘rather than’ clause.

        The obvious analogy is the rules for sharing public roadways, where licensed drivers of equal individual right to use the road are obligated to temporarily yield right-of-way to each other under defined conditions when those equal rights conflict. The yielder isn’t denied the existence or recognition of any right, nor are any violated, nor are any granted to others, even temporarily, but rather chooses not to exercise the right to use a small patch of public roadway until the conflict of equal rights is resolved. Any individual driver can choose to yield or not when a given conflict arises, but if nobody does there will be consequences for all, probably quite negative, so usually self-interest ensures that they are resolved peacefully and efficiently.

        To this view, whether the right to use the road exists naturally in a state of nature or is granted by the State or even each other is irrelevant, and all that’s left to debate is how we might best agree to resolve inevitable conflicts of equal rights, which is the real meat of the issue and the legitimate business of the body politic.

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    • What is the foundation to the assertion that rights must exist in a balanced equation with responsibilities?

      I’d say popular sovereignty. It played a far more crucial role in the development of the Constitution than any kind of rights talk, which seems to be more of a mid-20th Century development.

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    • Articles I, II and III of the US Constitution, plus the Preamble — “We The People”. Also, the 50 State Constitutions.

      Many people, myself included, view the federal and state constitutions as the foundation of self-government among the people. As a collective, we impose responsibilities (laws) on ourselves and so long as those laws don’t violate our rights (as adjudicated by the Rule of 5 [or 4, at least for California rights]) we insist that we all follow those laws.

      In the face of a set of federal, state, regional, or municipal laws you don’t like, you have the usual three choices: Exit, Voice or Loyalty (or, as a friend once put it, Leave / Persuade / Suck It Up).

      Note: As a Positivist, I find the shift over time as to who is asserting their “right” to be free from some obligation to be quite funny. Rights, to me, are nothing more than an exercise of judicial authority over legislative/executive authority. Inevitably, whichever political faction has weaker legislative / executive power suddenly believes in the power of rights, to be interpreted by a judiciary bound by rules of construction that favor that faction. Now, I like our tri-partite system of government, but that’s probably because I was raised in it.

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  7. Excellent writing, as always your form is good and clear.

    Just to paint some contrast here:
    If you were to put the weight of social constructs on one side of a scale and put individual constructs on the other, how do you see this balancing?

    “Glendon is spot on in wanting us to ditch either extreme,”
    Thing is, people are not built this way. Everyone is not born into or ends in the midpoint between individualism and collectivism. People vary, and it would be a awful world if they didn’t.

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  8. Agreed, this is a very well written essay.
    I first ran across Glendon’s book last year in its synopsis form and it influenced me since then.

    This is why I have since viewed rights as a negotiated agreement, rather than pre-existing natural artifacts.

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  9. Dammit, *this* is the time we choose to have this discussion?

    I’ve been saying for a while that the only thing having a bunch of absolute rights are is that people have to find *other* absolute rights to counter them with. And this further means that once stuff gets built, it gets locked in.

    Moreover, the problem appears is that we often have rights as absolutes that, uh, are not really the important ones.

    I would argue that an absolute right to vote would be more useful (With any exceptions in the actual right itself) than a lot of ‘rights’ we have. But we don’t seem to have that.

    Meanwhile we supposedly have an absolute right to bear arms…except, no, we clearly don’t. Owning nuclear arms, for example, is outright forbidden.

    And the less said about the right to ‘privacy’ that gave us abortion as a right, the better. If we have a right to (even just medical) privacy…how are drugs illegal again?

    The term ‘rights’ are just gibberish various political factions use to try to wedge their policies in permanently.

    Hell, look at the 3rd amendment for an example. That was just a stupid pet peeve of the time, and I will point out that there’s an exception for time of war, which is probably the only time the government would even *try* to put soldiers in people’s houses, so the amendment literally does nothing useful at all. (Yes, I’m aware there was a court case won on it a while back. I am also aware that didn’t really accomplish anything, rights wise…if the US government had used any employees *but* soldiers and put them in employee housing, that pretty much would have be the same thing in ‘harm done’ to the residents, but *not* been in violation of the 3rd! A ‘right’ restricting the government from doing something to people if, and only if, they do it while wearing orange hats is not a particularly useful right, even if the government did happen to trip over it once.)

    If I had some sort of magical wand, I would sit down and rewrite the lists of rights from most important, to least important, and they’d all be somewhat abstract, and often have caveats. Like here’s an example of part of the first amendment: (Which would not actually be at the top of the list.)

    People have an unlimited right to communicate to anyone willing to listen to them, and they have a limitable right to communicate in the public sphere where even people who don’t wish to listen may end up hearing them.

    Please note there would also be a line that basically says ‘Rights above here may not be taken away by the courts. Right below here may’.

    But, uh, I’m busy with Dragon Con prep, and will be there all weekend, and cannot actually participate in this conversation.

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  10. The concept of (free males only, of course) rights as something natural and intrinsic is a Germanic tradition that was incorporated into Common Law and, through it, into the Founding Documents. The Germanic custom was for warriors to freely give (and take away) their fealty to a leader, mostly in exchange for bounty. The warrior is like an autonomous contractor. He had gained what he had (including women, beasts, and slaves) in battle, and could at any time take his stuff and walk away. There were no permanent obligations to the group or to the leader.

    The Roman Law (and other legal systems) had a different concept, the res publica (the commonwealth). The commonwealth is a separate entity that encompasses not only every person (women and slaves too) but the land and the cities and the fields. Under the commonwealth you had both rights and duties. Most of the rights were about the management of the commonwealth, and about the relationship between private and commonwealth property. Most of the duties were about increasing and protecting the commonwealth, fighting for it, or contributing to public works like irrigation canals, or city walls, or aqueducts

    Observe that under the Germanic system you couldnt organize the community to engage in large public works, and none were developed. In principle you could convince all the Free Warriors to contribute their slaves, or their food, or their treasure, but in reality you could never overcome the free rider problem. Let someone else build the irrigation system with their slaves. At worse I’ll fight them for the water, at best I’ll get the water for free.

    Ironically, the Holy Roman Empire introduced Roman Law in the original Germanic Lands. Britain, however, remained outside the Roman Law world, and maintained the Common Law concept of inalienable (Warriors’) rights. The Norman Kings tried to counter this concept, bringing in the idea of duties and obligations that Barons had towards the Crown (the commonwealth), From the Magna Carta until the Victorian age a continuous struggle existed between the Crown, asserting that Barons had obligations and a duty of fealty towards the King and the Kingdom, and the Barons asserting their right to freely support, or withhold support (or oppose) the King and the Kingdom. A conflict in which, Tudor Kings notwithstanding, the Barons, later including the landed gentry, were almost always successful. But it was only, and reluctantantly, in the XIX century that the rights of an Englishman Baron were extended from the gentry to the general (male) population. The USA inherited the Germanic conception of rights without duties. Conversely, the almost contemporaneous Revolutionary French constitution includes both rights and duties.

    To me, the USA situation is a historic anomaly. When our society was more homogenous, or consisting of many different pockets of a more homogeneous population relatively isolated from each other, the lack of a political concept of commonwealth could be covered by a social obligation of commonwealth. The Civil War started to crack that model. As we have become less homogeneous, and much more mobile, loyalty to our clan and to our place puts us in conflict with different clans and places that used to be way out of our radar screens. Without recourse to a language of mutual duties towards the res publica, rights are the only tool we have to manage the conflicts. So every group, every place, every individual, assert their inalienable rights against the very similar claims of the others.

    For a short while the Judicial branch allocated the conflicts. But conflicts of inalienable rights cannot be adjudicated without a reference to something else. Otherwise my right to not being fired for being Muslim is in conflict to my right of not interacting with a Muslim person. On a rights only basis, you cannot adjudicate this dispute. Hence any resolution is always illegitimate. After a few decades of this, we have lost our trust in the Judicial system. That’s why the death and replacement of Scalia is so important to both liberals and conservatives. Because no one trusts a judge anymore. We only trust our tribe (until our tribe breaks into the Popular Front of Judea and the People’s Judean Front)

    We are overdue a thousand years in incorporating the concept of res publica, of commonwealth, in our political system. Can we do it? I’m not sure. All I see today, in all sides, is more of using “my” right to create “your” duty, and vice versa.

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    • It’s also important to remember that at the beginning, rights in the US were largely reserved to the elites, who ideally had some sense of noblesse oblige. So it was just the Diaspora of homogeneous communities, but also the extension of full rights to all without either some robust social construct to install that sense of shared responsibility, or some manner of codifying the same.

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    • Although I don’t know how much of that sense is lost, versus how much is just various parties having preferred ways to practice that sense of shared responsibility that others find objectionable on some level. Is the guy who hates paying taxes but who gives generously to charity & donates considerable time volunteering really avoiding shared responsibility?

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    • This is a really interesting counterpoint to @adrian-rutt’s digest of Glendon’s argument. The notion of a res publica may be necessary to implement any meaningful collective action. And if the notion of individual rights, individual autonomy, is culturally alien to the notion of a res publica then we may ultimately have to choose one over the other?

      I question that — because the English were not strangers to Roman law, nor were the Germanic kings. The English never stopped looking back on their own Roman era, and Charlemange and his successors never stopped claiming the mantle of the carriers of the dream of a world united as it was under the Caesars. I agree that the Holy Roman Empire was an overt attempt to fuse the two traditions (and the third, newer tradition of near-universal Christianity, let us not forget) into a new sort of polity, one that could stand toe to toe with the rump of the Empire in Constantinople and which ultimately outlived Byzantium.

      So it seems to me that you’re pronouncing Charlemange’s fusion of Germanic and Roman political structures at least not yet completed. (Not a failure, just incomplete, and currently drifting away from rather than towards completion.) Have I got the sense of it?

      I think you also bypass two other concepts that contribute to our modernism. First, nationalism. The Romans had a larval notion of this, but given examples like Marius, Sulla, Caesar, Octavian, Vespasian, Domitian, and Constantine, we see the great heroes of Rome subordinated the State to themselves, captured and controlled and owned the State, maybe even personally became the state. Not possible in a nationalistic culture, for the nation is enduring and greater than any hero at all. France remained France and Frenchmen remained French under the Kings, the Revolution, Napoleon, and beyond.

      The other thing you gloss over is the work of the Enlightenment philosophers. Baked in to our political constructs are their restatements of individual right — not the rights of warriors but the rights of all men and for a few of them, women too. They recognized if were reluctant to implement abolition of slavery. Ultimately their notion of government was that of the guarantor of those rights. The Framers of the current U.S. government were explicit about their adherence to these notions.

      None of which is to say that this deep historical take on the basic intellectual conflict Glendon comments on is wrong. I think that we need to take the notion of a national identity into account, and the notion of government as guarantor of rights into account, because these are expressions of the synthesis of those deeper cultural notions you discuss.

      And a quibble: weren’t medieval obligations of fealty (at least ostensibly) permanent and indeed hereditary? Yes, I realize in practice this was not ever really a manifest reality, and Kings had to continually shore up their political bonds with their barons and dukes and other local lords. But the oaths themselves were, as expressions of the Germanic law, supposed to be forever, right? Which meant if you did take a shot at the king, you had to succeed, or else it was your head.

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      • Burt thanks for engaging in what was at some point at risk of becoming a college term paper. For the sake of having someone reading it, I skipped a lot of detail in the process from there to here.

        First, your quibble: You are right about medieval obligations being permanent (and queasy hereditary – each new succesor, King or Baron, had to swear them again, the Kings in a global Coronation Oath, the Baron in an individual homage ceremony(*). The important thing is that the oath is mutual. The King undertakes obligations towards the Baron, and failure of the King to fulfill those frees the Baron from his fealty. Eduard II, Richard II (the Apella to) Henry VI, James II, are examples of Kings that -legally- lost the fealty of their Barons, and not just de facto, but de jure.

        Nationalism plays a part, and I’ll get to that in a second, but you seem to forget than from Mario and Sulla to the Severan dynasty, the Romans never shed away the fiction that they were still operating under the Republican constitution. Mario was never anything more than Consul, albeit seven times. Dictators were part of the constitution, and the imperial power was nothing more than the simultaneous -and life long- tribunitian (ability to propose and veto laws), praetorian (judicial) and consular (army command) powers. The problem the Romans had was that a constitution designed to manage a city state could not manage a world wide empire. Caracalla’s extension of citizenship to the whole empire was the true official recognition that Rome was everybody, and is in itself a denial of nationalistic concepts (the Chinese empire, on the other hand, was always extremely nationalistic, perhaps due to the extraordinary homogeneity of the Han people within it).

        Nationalism as we understand it does not really appear until the XVI century and only consolidates after the Thirty Years War (Britain, and, to a lesser extent France, had a separate route towards nationalism, in which the earlier Hundred Years War plays a big role). You have to remember that through the Low Middle Ages, the lower and middle classes and the free cities saw centralization and the transfer of authority towards the King and away from the local Baron as a positive change. This power transfer process is Nationalism’s first origin, the concept that all those under the suzerainty (sic) of the King are the same, enjoying the same rights and owing the same duties.

        By the early XVIII century the centralization/power concentration/absolutist model was becoming exhausted. Managing a modern state with late standing armies, foreign colonies, internal and international trade, a judicial and administrative system spanning the whole country, and raising the taxes needed to do all this was beyond the capability of a single man, or a small Conseil d’en haut. What should be the next step?

        This is where the separate English political process returns to European politics. The extremely weak (comparatively to any other contemporary sovereign) English monarch, coupled with an independent Parliament that had the ability to act on its own and direct executive action in all areas, and a established set of “inalienable rights” seemed like the logical next step. But in their desire to further the adoption of this model, the Enlightment writes elides how limited -and self interested- the British franchise was. When the model was finally exported, initially to the USA and Revolutionary France (and finally settled there after the 1814 Chart), some of the franchise issues were indeed solved.

        But in importing the English political solution (including citizen rights(**)) to the administrative limits of the absolutism, continental thinkers did not shed away the concept of duties and commonwealth inherent in their Roman Law structure, but non existing in Common Law, and barely existing in English Law, where a weak monarch could not force anything and had to do with what Barons (who controlled Parliament until the middle of Victoria’s reign) would voluntarily grant them. The Corn Laws, and the decades long refusal of Parliament to repeal them, is but one example of how Barons did not recognize that there was an inherent duty towards the common weal that superseded -or balanced- their individual rights.

        This is already too long, so I’ll skip talking about the Carolingians, to my chagrin :-(

        Thanks again

        (*) The refusal of the Kings of England to at some point do homage for the Duchy of Aquitaine justified -in law- the Kings of France seizing back the jewel (and most property’s, thanks to the wine trade) of their territories

        (**) Louis XV and Louis XVI both used citoyens instead of subjects in their private or official correspondence

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    • The problem is that lessons from an iterated prisoner’s dilemma are dependent on the game being played by the same people, and remembering who they’re playing against. Which perhaps leads to interesting conclusions about how the same people might make decisions over time but says nothing about how anonymous actors will iteratedly make decisions.

      Seems to me, anyway.

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  11. An interesting post Adrian, but I am left with questions.

    I take your point that the naked statement of rights, much like are bare assertion of morality is generally unhelpful. If you declare X is morally wrong (or for that matter morally necessary) and I disagree then where do we go from there?

    What I’m having some trouble with is the concept of “collective responsibility”. You describe what it isn’t – its not socialism and its not civility exactly, but what is it? It’s difficult to either agree or disagree to a suggestion that I have a responsibility without knowing what it is I have a responsibility to do.

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    • Thanks!

      Where we go from a disagreement might actually be nowhere; perhaps walking away. However, I think people with an insatiable curiosity tend to want to talk about that disagreement and not simply walk away. I am under no illusions about how many of the former there actually are, but I try my best to be just one more…

      I wrote somewhere long ago that I am not so naive to think that there aren’t, at the bottom, actual conflicts of value and views (the progressive view); but neither do I believe that every interaction that ends in conflict is an absolute conflict of views (the right-winger view). That may be confusing, but essentially what I got out of that was the idea we need to do a lot better about how we say things, thus getting through the superficiality of the situation (and perhaps to the conflict at the bottom).

      Collective responsibility, I think, is more or less the talk and rhetoric surrounding our political beliefs. It is, essentially, the belief that collective responsibility need not be codified in our laws and institutions, but it should be promoted in the spaces in between. That’s why this view (not tooting my horn here) requires nuance: Glendon and I are not asking for civic responsibility language to be written into our laws or founding documents; we simply hope for it to occupy a larger space in our minds in addition to the rights language and thinking.

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      • “That may be confusing, but essentially what I got out of that was the idea we need to do a lot better about how we say things, thus getting through the superficiality of the situation (and perhaps to the conflict at the bottom).”

        In a world in which I do have inherent rights, but I do not have inherent duties towards others as part of the commonwealth, there’s no reason to be nice. Every political interaction becomes defending my rights against those that are trying to encroach on them. By being nice, or polite, I might be giving the impression that I’m recognizing their rights against me.

        In a commonwealth political environment, with rights and duties that balance, a cooperative strategy might (*) produce more optimal results. I recognize that I have duties towards others and I’m the recipient of the others duties towards me. It makes sense to try to maximize everybody’s rights and minimize duties on a cooperative way.

        (*) perhaps not always, but whatever

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      • I confess that I’m having a hard time understanding exactly what sorts of changes you’d be looking for — a specific example or two would probably help. I might be reading into your words but I get the impression that you’re conflating libertarians’ focus on individual rights in relation to the government with a sense that libertarians feel that they have no social obligations to others — I think that’s likely as inaccurate as the common accusation from the righter half that libertarians must be dope fiends because they support legalization. The libertarian-leaners I know (not that they’re numerous or necessarily representative) absolutely feel personal and social obligations to serve their community, donate time and money to charity, etc. They (and to some extent I) just think that the government probably ought not force people to engage in those activities, whether because of beliefs about rights or because of purely pragmatic opinions about the drawbacks of government programs as they’re actually implemented (see: public choice theory).

        I think discussions about what we each owe to others in our various social & political circles would be great, but speaking as one not of the left to one who clearly is of the left, one prerequisite for a healthy discussion is that the leftier participants let go of the idea that not supporting government (i.e. coerced) action means not caring about others.

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  12. As some here may recall, I posit a concept of rights which holds that a “right” is a sphere of autonomy, into which the state may not intrude. Some actions are within the sphere, some are not. When they are not, they are regulable by the state. The state (legitimately) exercises power in that field of action beyond the sphere of individual right. The exact boundaries of the sphere are fuzzy and defined largely by convention (which means by generalized cultural norms). In constitutional nations, some of those conventions are rendered into law and given an exalted status within the law. They become hard to change, but not impossible.

    This seems basically compatible with Glendon’s model of rights and responsibilities as opposite sides of the same coin, which are expressed in both individual and collective ways. The most telling critique I see here is ‘s, that there is no real explanation for why having responsibilities necessarily follows from having rights. We generally accept that notion as a convention, and maybe it’s true, but there doesn’t seem to be a lot of work done to show why that’s the case. Nevertheless, let’s accept that rights necessarily do come with responsibilities, for both the individual and for the society the individual lives within.

    if I am not correct — if it is the case that the state may legitimately exercise power within the sphere of individual rights — then Glendon’s model is in some trouble: the state may legitimately restrict individual autonomy. (This seems to me to be contradictory as a matter of tautology, but I always get pushback here.) Her model is only vindicated if the state exercises its power to fulfill collective responsibilities. If the state exercises its power for some other reason, like furtherance of the preferences of a powerful or favored minority, that’s illegitimate. But, remember, my intellectual superstructure is wrong here, so there are cases in which the state legitimately exercises power restricting individual autonomy within the sphere of rights. Isn’t Glendon left with the problem of the tyrrany of the majority, in which the state invokes a collective responsibility to restrict the individual rights of a disfavored minority?

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    • Isn’t Glendon left with the problem of the tyrrany of the majority, in which the state invokes a collective responsibility to restrict the individual rights of a disfavored minority?

      The ability to handle responsibilities is what grants rights.

      The idea of 14 year olds in Montana getting drivers licenses (you know, to drive the tractor in the fields or the family truck to help with errands) generally is seen as different than the suburbian 16 year old getting a driver’s license to better help with dating opportunities.

      The Onion stumbled across this in 2002 with their “Drugs Now Legal If User Is Employed” article.

      You want a particular right? Meet a particular responsibility.

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      • In rights theory there are said to be two types of rights: liberty rights and claim rights.

        A liberty right to X means that you may X, or not, at your option.

        A claim right to X means that others must allow or enable you to X.

        It takes very little thought to realize that the assertion of a liberty right always entails the assertion of a claim right: At minimum, you are asserting that others must leave you alone, and that if they do not, then they are behaving wrongly.

        One might say, I suppose, that claim rights are responsibilities, but all the same, a very extensive list of liberty rights can be elaborated that entail nothing more than claim rights on non-interference: My right to pray, for example, is contingent only on others not stopping me.

        If that’s the sort of responsibility we mean, then sign me up. If not, I would repeat my earlier comment. What sorts of responsibilities correlate to which rights, and who decided it, and on what grounds?

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        • What sorts of responsibilities correlate to which rights, and who decided it, and on what grounds?

          I’ll play.

          You have a right to own a firearm. You have a responsibility to achieve and remain proficient in it’s handling.

          You have a right to free speech. You have a responsibility to not knowingly speak falsehoods.

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        • Morat said something a few years back that I’ve been chewing on.

          A right is nothing more than something that your neighbor will show up at your house to die for.

          The weird thing is that a society that believes in more platonic “rights” will have more neighbors willing to show up at the houses of others.

          A society that has ceased to believe that rights are anything more than rhetorical tactics to gain the upper hand against different socio-economic strata will have a lot fewer such neighbors.

          Using this definition, a “right” is nothing more than a privilege extended.

          And what sorts of responsibilities correlate to which privileges extended? Well, this is somewhat measurable, in theory if not in practice, by reading newspapers and/or the logbooks at one’s local police station.

          Who decided it? King Mob.

          What grounds? Oh… that’s where schtuff *REALLY* gets interesting.

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          • I don’t recall saying that, but I’d tend to agree with it when it comes down to cold, hard, pragmatics.

            We can argue about inherent rights all we want (or God-given rights, or any other source — political or ideological we want) and even be right, but in the real world, your rights are what your society will stand up and protect.

            Sovereign citizens talk a LOT about their rights in courts, but it doesn’t seem to get them anywhere.

            And honestly, your rights — everyone’s rights — are kind of always under assault. They have to be. Society changes, which means how society views those rights changes.

            Social compacts are pretty fluid, moving with society. Having them written down somewhere, on something people learn is important, helps — but even then they change and adapt.

            That’s cold comfort for people wanting bedrock principles, but I long sense abandoned universal truths. There’s not a lot of those outside of mathematics.

            (And none of this gets into conflicting rights. Or the term ‘rights’ used for something lesser, but still important to society — generally revolving around one of those social changes. Call them…pre-rights. Potential rights. Rights-in-discussion. Maybe they’ll graduate to full blown ones, maybe they’ll disappear).

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          • I’m partial to Cass Sunstein’s assertion that all rights are positive, since from a functional standpoint, a right only exists if there is some collective mechanism to defend it.

            Otherwise we could say that you have a right to own your home, but the rest of us have a right to refuse to come to your defense.

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    • Burt: The answer to the conundrum is: Correlation, not causation. Having responsibilities does not necessarily follow from having rights. One could, hypothetically, create a libertarian constitution which both creates strong rights and imposes strict limitations on the government to impose responsibilities.

      That’s not what the US and state constitutions do. Our founding documents both create rights and empower the government to impose responsibilities. So Jason’s assertion — “But to balance a right with an otherwise unchosen responsibility – which means an obligation – which means an abrogation of rights – seems arbitrary in the highest degree. ” — is simply not well-posed. Rights, in this country, are not balanced with responsibilities, and responsibilities are not unchosen. Instead, the rights and the responsibilities both exist and flow out of our system of government.

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      • Francis, (a) thanks for the vote of confidence above, much appreciated, and (b) I vehemently disagree with you here

        The US constitution (before the BoR) is mostly concerned with organizing the Federal Government, and almost completely silent about individual rights (and even more about individual responsibilities). Yes, it grants Congress authority to pass laws to provide for the general welfare of the United States -but at the time of the Founding, the welfare of the United States did not include the welfare of the inhabitants of the individual states-, to provide for defense, and to regulate foreign and interstate trade. The combined Federal Powers were a version of the King-in Parliament then contemporary British Constitutional structure, where the King (the Cabinet) had almost plenary power over War and Foreign Affairs, but very limited inwards power, with states taking the role of the Lords and representatives that of the Commons.

        Rights were deemed to come from the Common Law. Duties towards the commonwealth are nowhere to be seen.

        The Bill of Rights originates in the concern that somehow, like the Kng (the Cabinet) had done with respect to the Colonies, this Federal King-in-Parliament sovereign could intrude in the individual realm. At the time many believed the BoR to be overkill. At the end, it addresses basically only the issues that had been relevant in the pre-independence (*) conflicts, and restates, in the 9th Amendment, the “inherent rights” that come from the Common Law.

        The expansion of the powers of Congress occurred because by the time the Constitution was written it was almost obsolete. Steam power multiplied communication and trade – between the states and abroad- beyond anything that could have been imagined in the 1780s. The Louisiana purchase brought into direct Congresional control an area that larger than the original thirteen colonies. Congress was the only actor with some ability to react to a world that had changed beyond what was imaginable in 1787. They took the interstate commerce and the welfare of the United States clauses, and run with it, in the process bringing together in a single country what originally was a loosy goosy federation of quasi sovereigns (***).

        Damn, I should get a life,

        (*) Freedom of the press, freedom of assembly and petition, no religious tests, troop quartering (**), seizure of papers, politically motivated property seizure, political vs judicial courts and processes.

        (**) And it’s only our modern unfamiliarity with the -at the time very common- concept of troop quartering, and it’s use as a political tool (google dragonnades) that makes us poke fun at the 3rd Amendment. The Founders were very aware of how a Federal government that controlled a standing army could use quartering as a weapon.

        (***) The EU is going through a similar process. The interconnectedness of the modern world imposes an ever and ever closer union. Just like the railways required everybody to coordinate the local time, so that trains could run, market consolidation requires coordinating the acceptable bending of bananas (joke) and the flow of capital and goods mechanism (not a joke)

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        • J_A: Fair enough, but I think you’re ignoring two key points.

          A. The Civil War amendments fundamentally rewrote the relationship between the federal government and its citizens, and the relationship changed further in the face of judicial action and inaction responding to legislation coming out of the Great Depression.

          B. A lot of obligations actually arise at the State level, and States are entities of general powers.

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  13. As tired as folks are probably getting of hearing my constructs thing, I’m going to try to show some parting lines of whats going on with both responsibility, and individual rights.

    Collectivists will typically claim that individual rights are granted from social constructs. In acknowledging and granting the rights to individuals there is an expectation that effort, consent and authority be granted to social constructs. So with that they can indebt individuals with responsibility who are dodging the conscripts. Since the individual right comes from a social construct it is malleable to the preferences of the social norm of the construct. If social objectivity moves the individual right has to move also.

    Individualists rarely see the above as tenable. The thought of investing authority in social constructs that are free to dictate what individual rights you have is senseless. It only takes a few movements of social norm or social objectivity for the individual to realize ‘hey these individual rights, they are not really mine!’. The individualists are far more ready to invest authority in individual constructs than social ones. From that vantage point it is prefered and obvious. Society has no obligation for the continued observance of any individuals socially constructed individual rights. There remains the option to build those rights as an individual construct, take the consent and authority away from a society that would subvert the individual. These type of individually constructed rights are about as absolute as it gets for rights.

    Suppressing outright revolt the individualists have to live in a maze of social constructs. The collectivists have to live with a population of individual constructs.

    The problem with Glendon is that there is no outlook to build a world where both the collectivists and individualists can live the good life. There is the calling to build a world to her personal preference, not surprising, mostly predictable.

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  14. I don’t know if Glendon addresses this, but it seems to me that the Constitution is all about community: thirteen of them, each of them able to address local concerns and force standards on its members. Federalism allows for open debate with implications for society. As originally conceived, it would not be overridden by the federal courts except in extreme circumstances. Does this come up in the book?

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    • If I understand your point correctly, yes, Glendon does address this. However, I’m not sure I agree with your statement about the Constitution being “all about community.” Glendon rightly points out that the Constitution is relatively silent (along with vague and ambiguous) about collective rights because, here’s the kicker, the smaller, mid-level institutions like church, family, communities were the collective part of the equation. And the Constitution took these for granted.

      So I think the forcing of standards (besides the now-humorous backwards laws about attending church, wearing certain things, etc.) was mostly done by these small and mid-level institutions; not the law.

      Maybe I didn’t address your point though…

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      • I’m thinking of the state and local governments as mid-level institutions between the individual and the federal government. If we relied on the states as much as the Founders did, and the Constitution at least implies, then we’d have less reliance on the SCOTUS and we’d have more meaningful debate (because it would be consequential). Both these things would diminish our legalism, which seems to be Glendon’s goal. And in fact, people are much more likely to pay attention to their more immediate responsibilities, so we’d even accomplish her goal by her favored means if we relied more on federalism.

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        • But per usual, this is a double edged sword. Here in the U.S. these “mid-level institutions” are now powerhouses of politics. They have way too much power in my opinion. In other words, these mid-level institutions are now all vying for power or a “seat” in the federal government when they should be minding their own business and working on an individual (not legal) level.

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