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RE: Judge Andrew Napolitano - Natural Rights
For us to have a right there are two things that are necessary. First that we know what the right is, and second that there is an entity that will enforce the right. The problem with natural rights is that it is hard to know what they are apart from individual's opinions, and there isn't anyone who can enforce them.
If I may politely disagree, I don’t believe there is any necessity (as opposed to practicality) of having someone other than oneself to enforce rights.
There are obviously some benefits to having some sort of small, streamlined authority to enforce those rights (see e.g. Ayn Rand and her disagreement with pure anarcho-capitalism), but it’s nit a necessecitu either for the right to exist or for the right to be exercised.
As I understand it, a right is a right by virtue of its existence and not grounded on any other conditions, meaning that if we believe something is a right, it exists, whether or not we know it exists and whether or not we have any way to currently enforce it.
We could have a totalitarian dictatorship that, after a thousand years of control and propaganda, erases all memory of any rights of individual liberty and quashes any hint of any attempts by anyone to enforce anything even remotely passing for the right to individual liberty.
But would that really mean that because no one knows what the right to individual liberty is and no one has any means to enforce it but by their own actions were they to ever come upon the concept inspire of the totalitarian dictatorship?
I think we can still say that even in that situation the right to individual liberty still exists, because it’s something more than a legal delineation. Rights seem to have their basis in a kind of internal goal possessed by human beings as human beings. They’re necesssrily aspirations tied up with the human condition.
Sure, Bentham would say I’m just babbling nonsense on stilts, but it’s not as if he (or anyone else for that matter) has some better justificstion for their political philosophy of choice, meaning that if there is going to be an unjustified leap over the is-ought gap, why not do it in the name of the basic enduring right of human liberty?
A right that is not enforced is not a right at all. It's notable that the 'natural rights' that Napolitano lists in this video are those codified within the constitution and enforced by the United States government. He is talking about legal rights and confusing them for natural rights.
Natural rights are no better than people's opinions. You can say that someone 'ought to have a right', and maybe you can work and get that enshrined in law, but until it becomes a legal right it really is just an opinion. The rights that matter, the ones that people want, are legal rights.
I’m not against the whole legal positivism thing (I’m a pretty big Joseph Raz fan), but it’s not as if that’s the last word on things.
Because it starts to break down as a means of structuring shared community activities guided by norms (i.e. “laws) if you start with the premise that there’s no underlying guidelines to circumscribe the sheer brute power of legal authority in any legal regime.
For example, if we start sticking with “there are no rights except those enshrined in law,” then Judges in common-law countries have absolutely no ability to do there jobs, other than assuming (like Raz does) that whenever there isn’t a statute or directly applicable precedent, the judges are just empowered to and are legislating without restriction.
But, in reality that’s not what happens. We can look at how judging happens in common-Law countries and they are never claiming to be legislating, they are never said to have been given power to legislate, and people don’t commonly understand judges as engaging in unconstrained legislation.
Because Judges, in cases with no statue and no applicable precedent, are trying to find the right Fit and Justification for their legal rulings that ultimately create new laws. They utilize underlying, uncodified principles and processes which are just generally accepted “to be” (when people think about them at all) by judges and the general population.
If judges didn’t try to fit or justify their decisions when gap-filling the laws, nearly everyone would consider this not just “wrong” but “illegal” even though there is no enshrined law, in statute or binding case law precedent, making this “illegal.”
That underlying sense of “illegal” by the overwhelming majority of any given community where something occurs that isn’t against any actually enshrined law...that, so the argument goes, is the substructure of “rights” that seem to exist as a general intangible part of the human condition.
That is certainly not what I think. Rights do not spring from nowhere: They derive from certain moral values that are commonly shared within a society - such as that murder is wrong. There is no absolute morality however, as witnessed by the fact that slavery was once considered moral, but is no longer.
It is only once moral values are enshrined in law that they become rights and cease to be only opinions.