A member of the studio audience, Janus, had an objection to a recent post of mine in which I wrote that there were two conceptions of rights.
The two that I offered were:
(1) Rights exist as entities that can be discovered in the real world. Rights exist prior to law in such a way that they allow us to judge certain laws to be just or unjust.
(2) Rights exist as state-created facts. As such, there is no such thing as a just or unjust law because a person has no right unless it the law grants him such a right.
Janus wanted me to consider a third option.
(3) That there are no moral rights. There are no entities discoverable in nature that allow us to evaluate laws and institutions as just or unjust. And states do not create and destroy rights on a whim. There simply is no such thing.
Actually, I believe that Janus is correct. (3) is a true statement. Rights do not exist. Arguments for their existence tend to be as bad (or worse) than arguments for the existence of God.
At the same time, (1) is also true. Rights exist as discoverable entities against which we can evaluate laws as just and unjust.
And (2) is true as well. States have the power to create and destroy rights on a whim. A person has whatever rights the state says she has - no more, and no less.
Is this a contradiction?
Consider the following two claims:
(1) Atoms exist
(2) Atoms do not exist.
Is this a contradiction?
It is only a contadiction if we mean the same thing by the term 'atom' in both sentences.
However, the original definition of 'atom' is that it is the smallest possible unit of an element and that it has no parts. "A-tom" literally meant (to the Greeks who invented the term) "without - parts".
Yet, we know that the individual units of an element do have parts - electrons, neutrons, and protons.
So, atoms (the smallest units of an element that, themselves, are made up of electrons, neutrons, and protons) certainly exist. At the same time atoms (the smallest unit of an element which, itself, has no parts) do not exist.
There is no contradition here.
In exactly the same sense, I hold that rights most certainly exist. That is to say, there are certain maleable desires (such as an aversion to cruel punishment, a desire to have guilt proved before somebody is punishment, an aversion to sex without consent, an aversion to responding to mere words with violence) that people generally have many and strong reasons to promote.
At the same time, governments clearly have the power to create and destroy rights. If a government gives a company a permit to cut trees in a national forest it has created a right to do so. If the government revokes that permit than it has taken away that right.
And, as Janus has pointed out, rights, understood as intrinsic value properties that can be found inherent in certain families of actions, do not exist. No action or family of actions contains within it an intrinsic property of "ought to be doneness" or "ought not to be doneness". Any assertion that such an entity exists is false.
Now, we take these three propositions, and we add a fourth.
(4) We must choose one of the first three propositions as being true, and reject the other two as false.
Now, we have set the stage for an endless and utterly pointless debate. Now, we have ushered in a colossal waste of time, energy, and brain power as each proposition gathers a camp of faithful defenders around it – and nobody can actually be proved wrong.
Yet, the culprit in this case is not (1) or (2) or (3). The proposition that we must reject is (4). Once we get rid of (4), then we can put all of that wasted time and energy that goes into deciding which of the first three options to reject back into productive use.