I keep hearing people claim that only people can have "rights," and governments, states, and the like can't. Now if people want to argue that it would be better if the word "rights" were limited to the rights of individuals, I don't have that much to say about it. But the claim is often made about what the meaning of the word is, or what it was in the Good Old Days. (Often it's accompanied with the assertion that historically "power" has been used for what governments may do, and "right" has been reserved only for the entitlements of individuals relative to other individuals or the government.)
The trouble is that a historical matter, "right" has been used to describe a legal or moral entitlement, whether of individuals, states, countries, or other entities, throughout all of American history, and I suspect for much of British history before then. Consider, for instance, the Articles of Confederation:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article
The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States ... [and] regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated[.]
Consider Federalist No. 81, speaking of "of a pre-existing right of the State governments." Consider Jefferson's Opinion on the French Treaties, which spoke of the "rights of nations," a term that had been used at least since the late 1600s years (and quite possibly more, I just did a quick search for this) in English publications, including writers the Framers found highly influential, such as Cicero, Vattel, Grotius, and Algernon Sidney (the first three in translation). And consider the talk of The Rights of the British Colonies in the years before the Revolution.
So maybe it would have been better if "right" covered less territory, and were divided into different words along many dimensions -- negative vs. positive, individual vs. possessed by collective entities, legal vs. moral, asserted against individuals vs. asserted against the government. You could try to invent such words, though as with any proposals to change the language the battle will be uphill and very likely a losing one.
But I think we have to acknowledge that the actual meaning of "right" throughout American history, in legal discourse but also in political theory and moral discourse, has included the rights of nations, states, and I suspect many other entities.
Anyways, I think that your argument is a Straw man picking on people who just aren't using terms correctly.
Maybe you are right, but I've generally used the following Jefferson quote when considering this:
From that it appears to me that groups have powers, not rights.
I suppose it would, if you don't see a difference between a state and an individual. I see a big difference.
The notion is, do "rights talk" have a "pregnant" meaning that might supersede the strict textual late 18th century sources that Prof. Volokh links. I say yes.
I believe, from my studies of Jefferson, if you were to ask him what "rights" a state has, he would probably respond, "Only the rights people give to it." I believe, "rights of nations" as being used in the "Opinion on the French Treaties", is only within the grounds of commerce, defense, and others unnamed abilities that might promote tranquility and prosperity to the people governed. Similarly Jefferson writes "the law of self-preservation overrules the laws of obligation to others", so it is some what contradicting to even assume the state has any "rights" that outweigh the definitive natural-rights of the governed. It appears to me that the State can only claim a right if it does not interfere with the rights of the governed, in my opinion.
If nations, states, other entities, do attempt to claim rights, if they do exist, are extremely limited, in Jeffersonian terms.
Rob Prather: Even Jefferson himself, as I mentioned, used the notion of the "rights of nations." So if you want to stay that groups don't have rights, it seems to me that you must be using your own private definition of rights that is narrower than the definition that is normally used in American legal and political commentary.
As for the substance, I think the view that states have no rights is entirely correct when one is talking about moral rights.
Jefferson is saying that rights (and "powers," which are indeed often used to refer to powers of governments) belong to "persons" as opposed to things, and as opposed to the dead who established the constitution. He is also speaking of a "majority" having "rights and powers" to "change ... laws and institutions," something that is generally done collectively rather than by people as individuals. And earlier, incidentally, he speaks of "In the pullings and haulings for these antient rights, between the nation, and its kings of the races of Plantagenets, Tudors and Stuarts, there was sometimes gain, and sometimes loss, until the final re-conquest of their rights from the Stuarts" and "the nation re-enter[ing] into all its rights" and "Each ward would thus be a small republic within itself, and every man in the State would thus become an acting member of the common government, transacting in person a great portion of its rights and duties, subordinate indeed, yet important, and entirely within his competence."
So I wouldn't read Jefferson here as saying that rights and powers can only be possessed by individual people, as opposed to collections of people (including majorities, nations, and governments).
May be the Govt (State) derives its rights (powers) from the consent of the governed (at least from a majority of them, if not unanimous consent). However, it legally exerts those rights daily, so I don't understand the position of people who argue it doesn't have rights.
Is it about the words 'rights' vs. 'powers'? what's the difference in practical terms?
The matter was complicated, especially in English, by the use of polysemes that were also outisemes, which carry multiple meanings at the same time. An example of this is the word "militia", which is an actronym, a word originally meaning an activity, which acquires the meaning of those who engage, or are required to engage, in the activity. We can see that in the Constitution the word was an outiseme with at least two meanings in most instances, the first being "defense activity" and the second either "those who engage in defense activity" or "those who are obligated to engage in defense activity".
"Right" can therefore be seen as an outiseme in many instances of its use. The people of a state individually have a justiciable right not to have the U.S. government exercise powers reserved to them or the state, but the state, as a collection or corporation of those people, can be said to have the right of those individuals that compose it. If the state had the power delegated to it, and it was not delegated to the U.S., then it would be a power with respect to its citizens but a corporate right of its citizens with respect to the U.S. government.
I advocate that people, in reading things, especially 18th century law, treat it as written in a foreign language, and not take the choice of signs too seriously. It is the meanings that matter. It is therefore reasonable for moderns to substitute modern terms for those used by the original authors that more accurately convey the meanings they had. So, as in this case, we might want to read the word "right" to mean "immunity" in some instances, and "reserved power" in another. Likewise, we can often substitute for "militia" the phrase "defense activity plus those who are legally required to engage in it". Not as laconic or poetic, but if we are serious translators, appropriate.
You're right that for a while we've talked about the political, legal and moral rights of entities other than people. And no doubt we can stipulate that a government, state or corporation (or tree or rock for that matter) has some or another legal right.
But we don't stipulate that entities have moral rights; they either have them or they don't independent of what we have to say about it. But the most plausible candidates for moral rights - the right not to be unjustifiably harmed, the right to that with which one's mixed one's labor, the right to some basic level of well-being (probably not too popular in these parts, but it has some intuitive plausibility) - don't seem to be enjoyable by non-living things. At least in the sense it's being used, a state can't be harmed (it doesn't have the capacity to feel pain or loss), nor can it "labor" (the various people who help comprise the state do that), and it is also odd to non-metaphorically speak of a state's "well-being."
So, if we have often spoken of political and moral rights in the past, it seems that we've done so mistakenly.
You might try to deny this by saying that the "the actual meaning of right...has included the rights of nations, states, and I suspect many other entities." The problem is that "x has a moral right" means something like "it is morally forbidden to do such and such to x," not "it is morally forbidden to do such and such to x and sometimes it is morally forbidden to do such-and-such to a state." The fact that we've erroneously attributed rights to certain entities doesn't imply that part of the meaning of rights-attributions is that those entities have rights.
A power is the legal ability to create rights (and necessarily duties) where previously there were none.
In English: I appreciate you clarification of the meaning, use, and history of words. I always learn something.
I don't know if I ever fell for the argument that states only had powers, not rights, but I do know that I felt its appeal whenever I wanted states to be trumped by something else.
That's the power of those phrases, their convenience for support in other assertions--like a drawer full of trump cards.
But to the point: There will be never be general agreement on the question of whether (or perhaps the extent to which) entities other than individual persons are able to have rights. It is more productive to ask what the word "right" actually means, and whether, as I believe, it is it is so overused as to have lost practically all meaning.
Take, for example, a subject which has engendered an a lot of mental activity among the contributors to this blog--gay marriage. Is anyone entitled to state sanction (in the sense of authoritative approval or permission) of his or her heterosexual marriage? In other words, is there a general right to a state-issued marriage license? Silly question? Or an expression of opinion on my part? Neither, I think.
Various major reasons that existed for millenia caused the necessity for family, tribal, clan, state recognition of heterosexual marriage. (Please note the past tense.) Any of you who type or think faster than I do can easily list them: fixing paternity for legal purposes, the relative physical weakness of women, the necessity to live by very hard physical labor, caring for the physical needs of infants, and so on. Those of you who are a little more clever can make clear arguments why each of of the reasons no longer exists, that marriage is no longer a proper matter of state concern. Child abuse and failure to support children (both of which which can be proven without resort to official records) for example are of state concern, but not marriage per se. Right, ladies and guys? Then where is the right to any kind of state recognized marriage? There is none, you can plausibly argue.
So what, if any, "right" is there in this context? Well, you can reply, it is the right to be treated the same as other people who are similarly situated, the right not to be the subject of discrimination for no good reason (or for you pettifoggers out there, on no rational basis). (By the way, you do not know what my position is on the matter of abolition of marriage, or recognition of gay marriage, or for that matter, the requirement for ramps to be used by handicapped persons.) But I hope you can see my point. It is this. Both we and writers of court opinions overuse the word right to the point that it has no other meaning than "My guy wins." The word should be reserved, at least in our thinking and discussion about meaning, for matters that are beyond reasonable debate even when we think the correct outcome of the debate should be obvious.
Thank you if you bothered to read this.
Please, not to notice.
The more precise way to express it is to say that the people, as individuals, but collectively, delegated to a convention of delegates, to an elected legislature, or to a randomly selected jury, the power to make a decision on their behalf by majority vote. It could be by other than a majority vote, such as a supermajority or even unanimity, as we do with juries in criminal cases. That does not create a "right" of the majority, or even of the unanimous jury. It is only the exercise of a delegated power. The "right" in this situation is of the people to have that decision stand (or not, if they disagree that it was exercised with proper discretion).
EV's claim is that the ascription of rights to corporate entities is not new, and he is quite correct.
Of course, that descriptive claim about the history of usage does not settle the ontological debate as to what kinds of entities are properly regarded as possible bearers of rights. Liberals - in the theoretical sense that includes libertarians - typically deny that collectivities can be rights-bearers. Conservatives - again, in the theoretical sense - typically assert that collectivities can be rights-bearers.
These orientations on the question of rights are associated with individualist and collectivist social theories to such an extent that theorists commonly use the term '[philosophical] liberalism' to connote individualism and the term '[philosophical] conservativism' to connote collectivism.
Our U.S. political discourse confounds these distinctions, as our major parties are largely mix-and-match creations. Our 'conservatives' are often theoretically conservative only about 'lifestyle' issues, while being quite theoretically liberal about economic concerns. Our 'liberals' invert the theoretical alignment. This is precisely the reason that our 'libertarians' tend to appear more consistent than others: they typically keep faith with their philosophical roots.
As we are talking about definitions, what does "settled" mean in the above sentence? I assume from the ensuing conversation that it doesn't mean "it" (the point raised by Professor Volokh) is so "settled" that it isn't still worth talking about. His very interesting post suggests that categorical assertions ("states have no rights, only powers") should always be regarded with a degree of suspicion. Such assertions are often made to support arguments about current political disputes rather than to "settle" questions on their own merits.
The subsequent thread simply shows that not everyone heard about it yet. (Even though it is my understanding Hohfeld is taught in 1L in most law schools.)
But even if the theory were true, it has no real import, does it? Once rights are delegated, the delegatee has them. If a contract is delegated, the delegatee has recognizable legal rights under the contract. They may be withdrawn, perhaps, but such withdrawal is an implausible event for most government exercises of rights.
Based on your examples, would it be fair to say that historically, states have been recognized to have rights against other states, but have not been recognized to have rights against individuals?
"The State (or Govt) has a right to take my life, liberty, and property (only under specific conditions and after due process, etc), and it has the right to tax the heck out of me. This is a fact of life."
Don't agree with this. The government does not have these rights. It has the "privilege" given to it by the people through their elected representatives). Our government wants you to believe, and has gone to great lengths to make you believe, that it has the right to tax you. It does not have that right. We the people have given the government the power i.e, the privilege, to tax and that power can be taken away. The people can give and take away the government's powers at will. That's what makes it a democracy. The people have been so conditioned into believing in an all powerful government that they no longer understand that they have the rights; and that it is the government that has them.
If this is your point, I would fault you for the use of the word "settled." If the "question" were indeed settled it would have come to a conclusion, or a rest. But it hasn't. as this discussion proves.
frankcross:
I have never believed that clarifying language, defining words, and probing what people mean when they use a single word ("rights") to mean different things, is "without practical meaning." If words confuse us because we don't understand what they mean, or because different people claim they have different meanings in different contexts, or because some people are actually mistaken about what they mean, I believe it is eminently practical to try to remove the confusion.
Better for whom? For people trying to construct penumbras, adduce respectability to dodgy propositions, paper over fissures in political coalitions? Hardly.
I suggest language is rarely precise because 40,000 years of our ancestors were goofballs and couldn't figure out how to say things exactly. It's imprecise, where it is, largely because imprecision serves the purposes of many -- perhaps most -- of us. The exact meaning of "rights" is an excellent example where I doubt very much that most people would want to have a more precise meaning.
I graduated from a top 10 law school (actually top 5) and never heard of Hohfeld before today. And his name came up on the bar exam. Should I ask for my money back, or surrender my license?
Clearly my understanding was incorrect, then. (Not having studied law in the US, my knowledge of what and how US law schools teach is occasionally a bit off.)
FYI, the cite for the first and most important article is 23 YLJ 16.
True, but natural/unalienable rights create a certain hierarchy and relationship between natural rights and other kinds of rights.
Of course I should have said that Hohfeld's name never came up on the bar exam. I am not bragging of my ignorance (which is always a foolish thing to do) but merely pointing out that some things are not as "settled" as others seem to think they are. And I thought Professor Volokh's initial post was very good.
Only natural entities, ie people, have rights. A person can grant the authority to another person, or artificial entity (which then delegates the powers to an person), to override an individual's right under stipulated conditions only. The right to take back any delegaed authority is not transferable.
Only people have inherent rights. All others are delegated.
I disagree with the idea that governments create rights.
The notion that an person who does not have a right to steal from another can transfer such right to some organization.
I totally agree with this.
Words are equivocal, context is determinative: This time, we left with enough time to get there in time.
As long as I understand how you are using a word, even if I do not like it at least we can communicate.
Based on that, I think that states, as in US states, can have rights, but only in relation to the federal government. States can be thought of as corporations, and thus treated as legal persons. This would seem to grant them some "rights" against federal power. Logically, those rights should be what the state was able to do prior to its incorporation into the Union (to use an archaic term). Thus, a state cannot be forced to spend money by the federal government, but may be forced to recognize the rights of its citizens.
ARTICLE IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
ARTICLE X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Yes, other documents use the terms more loosely, but when talking about constitutional rights and powers, it is useful to use the terms the way that the Constitution does.
It may be truly said of every government, as well as of that of the United States, that it has only a right to pass such laws as are necessary and proper to accomplish the objects intrusted to it.
There is also this further criterion, which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State or of any individual ?
And yet there is an unqualified denial of the power to erect corporations in every case on the part both of the Secretary of State and of the Attorney General; the former, indeed, speaks of that power in these emphatical terms: That it is a right remaining exclusively with the States.
Passing from the state of nature to civil society means that natural rights become civil rights, and as a result, governments, corporations (and other artificial persons), and individuals can have them.
Right after saying what you quoted, I also wrote that these the govt derives these powers from the consent of the governed. So, sure, we the people can take away the powers of the govt (or can give it more powers). Right now, the govt has the power to tax us. Do you disagree?
I am not happy with the vast powers the federal govt has, but i am speaking of the current facts.
martinned:
you are splitting hairs between powers and rights. even agreeing with you that govt has legal power to creat rights, and it has created for itself the rights that I mentioned, what is the practical difference between govt rights and powers?
The idea is that a right in the narrow sense is either a claim that I have against one or more people, corresponding to their duty that they should do something for me (or give me something, or refrain from doing something, etc) or a privilige where I am exempt from a duty that everyone else has. (The link above uses the word liberty instead of privilige.)
Power/authority, in this framework, means the ability to change someone's right. For example, a judge may award damages against me in a case you started, creating a duty for me and a claim for you that weren't there before. Since such things are also often called rights, Hohfeld concluded that the word right could mean one of four things: a claim, a liberty, a power, or an immunity (which is the absence of power that would otherwise exist).
A lot of constitutional rights are at the same time liberties and immunities. My freedom to speak as I wish is first and foremost a liberty, but it is also an immunity against any attempt by the lawmaker to change that. (Remember, the 1st amendment states that "Congress shall make no law...", which is a classical Hohfeldian disability.)
And yes, all of this is most certainly the splitting of hairs. That's why I don't really use this stuff in my dissertation.
It might have been mentioned already, but when you reference the "rights of nations", that is defining the rights that nations have with respect to other nations. The same goes for states' rights, as those are rights the individual states have with respect to the federal government (rights to internally determine some extent/use of governmental power). But I don't know of anyone who accepts rights that states have against their own citizenry. i.e. a state has no inherent rights to use against its citizenry, only those powers temporarily delegated to it by the citizens.
It should be kept in mind that states/nations can be dissolved at any time. Nothing that can come or go at will, such as this, can really be ever said to have any "rights", except for those that might occur within a context of other such entities. At least that's how I see it.
Confusion and perplexity arise when we suppose that all the uses of the word 'right' have some one thing in common. Better to follow Wittgenstein's lead and say: 'rights' form a family.
Actually, trad and anon, I remember women wearing diamond engagement rings before the "1940's and '50's". Although I have no doubt that deBeers did all it could to promote the custom, it did not invent the practice.
Couldn't resist this little point.
The original point was wrong; the De Beers marketing was at the opening of the 20th century. It had the following major components:
1. They "seeded" diamonds to major people (royal families, celebrities) so that diamonds were seen by the hoi polloi as the most valuable jewels.
2. They heavily invested in advertising for weddings, so that diamonds crowded out all the other precious stones that were being used at the time for engagement rings.
3. They disseminated guidelines for men of "2-3 months salary" so that a confused man would "know" how much to spend on their diamonds.
4. They advertised about the value and permanence and diamonds so that they would be family heirlooms, therefore not entering the re-sale market and depressing the value of new diamonds. This continues today (a diamond is forever).
Before the dawn of the 20th century, diamonds were just another precious stone- remember rubies, sapphires, emeralds et al. Who says advertising isn't effective?
For a relatively short thread, this one has produced a whole lot of baloney, of which the above is the latest example. In a nation of laws, the law often confers discretion on its government, or on officers of its government. Discretion is not per se illegal, or contrary to the idea of a nation of laws. Even police officers have discretion, which the law confers on them. And what in the world does any of this have to do with equal protection, which is a right conferred by the U.S. Constitution on "persons within its jurisdiction" Discretion per se does not offend the law.
OK, then he might have said "abuse of discretion" has no place in a nation of laws. Judges in common law countries have and exercise discretion all the time. They are only called to task for "abuse" of discretion. As a common law country with a written constitution, the U.S. confers discretion on its judges, without which the administration of the laws would be incredibly difficult, if not impossible. Quaere: If baloney is expressed sincerely, is it any less baloney?
@ChrisTS: Careful. You're talking about natural rights, not about legal rights generally. (Others have used the term "moral rights" in this thread. I'm not sure I've ever heard of that one.)
I was speaking of the political and social theory conceptions of rights. These need not be 'natural' rights in the usual [strong] sense.
The concept of 'moral rights' is not unusual in either ethics or political theory. For example, Jefferson at al, taking from Locke and Hobbes, regarded 'natural' rights as being moral rights. Hence, such rights create the inalienable limits on any legitimate polity; indeed, it is only their exercise that establishes legitimacy.
Of course, there are theorists who deny that there are any extra-legal rights. Bentham and, perhaps, Hume were of that opinion.
As for Hohfeld: his work was very influential, to be sure, and most analyses of rights begin there. However, lots of work has been done since Hohfeld, and his taxonomy is not considered to have settled anything in rights theory.
Bless you. It might be worth mentioning that one of [some claim, 'the') most important legal philosopher of the 20th c - H. L. A. Hart - employed what is known as 'ordinary language' analysis as a basic methodology. His arguments for positivism and against naturalism include the observation that it is better to be clear about terms, especially if we take them to determine our obligations, than to use them loosely for aspirational purposes.
Whether or not "baloney" differs is the matter here: baloney rendered sincerely by careless conveying remains sincere when corrected by careful conveying; baloney rendered deceptively by careful conveying remains deceptive. This blog's dispute--as I defined earlier--is constructed of two arguments: first rights of governments are among various rights including individual rights; second governments execute only individual rights. Locke intentionally abused terms like "natural rights" and "monarch" and also intentionally confused terms "natural law" and "natural rights"; this abusing and confusing causes even today confusion on this blog.
I take it you would admit that in both cases it also remains baloney.
Right are exercised for sake of the holders
Powers for sake of third persons. Parents have no rights but powers over their offsprings like Sates over citizens
Many here confuse and abuse terms, since they cite writers who did same. ChrisTS above writes as follows:Above blogger confuses "moral rights" with "natural rights" with "inalienable limits (clear reference to inalienable rights)", while he cites Locke and Hobbes and Jefferson. As I cited above, Locke intentionally confused "natural rights" and "natural law"; "Natural Law" or ius naturalis pertains not at all to government: ius naturalis governs all animals of which Man is one. For example, parents have a natural right to protect young, since all animals do so; natural rights include those today defined as science; for example, Mendel's law would be a natural law.
Note that Hamilton and Jefferson and Locke often confuse terms--sometimes mutating terms in one essay--rendering all works complex, confusing, hard-to-read; while some would argue that their arguments have complex matters, so essays thereon would be necessarily complex and confusing and hard-to-read; Cicero wrote clearly and the Institutiones also were written clearly.
Writers such as Hobbes, Locke, Jefferson, and Hamilton all wrote with a clear hatred of Monarchy; such hate caused all to write not generally but specially on government, and they all disposed their arguments in response to Monarchy. Jefferson and Hamilton clearly had urgent need to exhort many to hate the King despite the King being the indisputable and legitimate Authority at the time. having no legal grounds for rebellion and sedition, Hamilton and Jefferson just perverted or created arguments to justify an indisputably illegitimate rebellion. So be not shocked by confusing and deceptive prose but instead expect such.
The misuse of words on this thread continues. So, according to this, a power of attorney is exercised for the sake of the holder (the agent or attorney), when the law says it is exerecised for the sake of the creator (the grantor or principal). The permanent members of the United Nationa Security Council hold a power of veto. According to this, the power is compulsory, not optional. So much for categorical assertions.
The thread is meeting my expectations. I am a tad shocked, in that the purpose of the original post was, as I understood it, to clarify some "deceptive prose."
You know, pluribus, I was thinking of explaining the difference between discretion which is given to internal positions (such as police officers), as a matter of practicality, versus discretion that is reserved to the state (such as with foreign policy) in the theoretical basis of the state, but I assumed that people here would just know that. We give prosecutors and police officers, for example, discretion because of the imperfections of law and the practicalities of enforcement, not because anyone is really supposed to be deciding whether or not to enforce the same law against similar sets of circumstances - or any sets of circumstances that are addressed by that law. If you don't see how this relates to equal protection, then there's nothing I can say.
On the other hand, we definitely reserve to a state discretion in its foreign policy. We do not have a mechanistic formulation of our foreign policy, as we attempt to do with all internal actions of the state.
That's really uncalled for, and based on very incorrect assessments, on your part. My explanation was perfectly fine and anyone who didn't tend to confuse practical discretion with theoretical discretion would have had no problem with it. The state is bound by nothing in its foreign relations. The state might suffer from inconsistent policy, or weak policy, or something of the sort, but all people with sense would acknowledge that the state has full leeway in deciding how to act with respect to other states.
I'm pleased that you are so pleased with yourself.
Locke, in his rant against the Monarch, gradually restricted his argument to the Monarch; in section 9, Locke divides citizens from aliens in order to restrict argument to those who consented to a government as follows:
In defining "Rights", you include as follows:Locke rails against State as having no Rights over, say, an alien; while you rail against the State as having Rights unjustly. Both you and Locke seem to rail much against State's Rights, but do you credit the State with Rights or not? And do you estimate the State, have it Rights, to have Rights unjustly?
pluribus:
Did you use quaere as "Seek!" or "Ask!" or rather as qua re "given the above"?
But the Powers --> States; Rights --> People calculus, familiar to us from our Constitution, arises from the relationship of our government to its citizens. In other contexts it wouldn't apply.
I suspect the reluctance to ascribe rights to governments comes from the historic rejection of the divine right of kings.
I would have to strongly part with Locke on his point about aliens. To me, sovereignty imposes a responsibility on the State to enforce its laws on all who are within its territory, citizens and aliens alike. I don't see where alien acceptance of the sovereign law of a territory matters in any way. Of course, the State has (should have, at least) different laws for citizens and aliens - as there must be some advantage to being a citizen of a State and residing within it. I would point out that I am talking only about States formed with some measure of reasonable consent of the people (as the property of the people, as it were) while Locke is including States that are formed as the private property of a few - for a rough delineation of the differences as I see them.
My view on the Rights of States can be best summed up this way, the State has internal responsibilities and external Rights. I see no Rights that States have over their own citizens. I come to this by looking at the most fundamental Right, the Right to exist. That is the first Right enjoyed by any entity that might enjoy any Rights, at all. Nations do not have the Right to exist over their own citizens' objections, so I don't see any other Rights that a Nation may claim over its citizenry. On the other hand, in the international scene, Nations formed by the people certainly have a Right to exist, the same way that a person has a Right to exist (until the case that he harms enough of the Rights of others for him to lose even this basic Right for himself).
That's how I see it. The Right to exist seems to be a good measure for this debate, as it lies at the base of all other Rights. I hope I'm being clear on my view.
1. The constitution of nature – comprised of all those principles called the laws of nature, including the ways living beings, by their nature, tend to behave, usually as a survival strategy for their genes;
2. The constitution of society – comprised of the natural rules according to which social groups tend to make decisions, before they establish formal structures of government. These include such principles as decision by conventions called by public notice and conducted according to customary rules of parliamentary procedure, perhaps combined with public referendum;
3. The constitution of the state – the society in exclusive possession of a territory, which defines things like fair representation based on location.
4. The constitution of government – probably written, as a fundamental law adopted as a legislative act under the constitution of the state.
Different rights originate from different levels of constitution, as discussed above. Some of the main ones are:
Nature
Life
Limb (right not be be physically injured or tortured, or have one's health or comfort threatened)
Liberty
Acquisition, retention, and use of means to secure above rights (part of property right)
Right not to be required to do the impossible or scientifically irrational
Society
Property equity (right to reclaim property to which one has title, or the value thereof, beyond mere possession)
Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries)
Common law trust rights
Public decision by convention called by public notice and conducted by established rules of procedure
State
Denizenship (right to remain on or return to one's domicile)
Fair representation of different parts of the territory
Government
Citizenship (privilege to vote and hold office, access to voting and fair counts)
Presumption of nonauthority
Means to remove misbehaving officials or suspend their actions, such as quo warranto and other prerogative writs
Getting reports on the activities and expenditures of officials
Compensation for taking of property (part of property right)
Natural Law is that reason which governs all animals not only Man. An example of Natural Law is the Right of parents to protect their young, since all animals do so and not only Man; another is the Right of marriage, since all animals mate in order to propagate. Natural Law is that Law common to all animals.
Hobbes, Locke, Jefferson, and Hamilton all define as "Natural Right of Man" "freedom from slavery". At Plato's time, at the above writers' time, now humans have lived as slaves and have been born into slavery; thus Man cannot be defined as that animal alone not born into slavery; therefore "freedom from slavery" cannot be a Natural Right of Man or ius gentium.
An individual person has certain rights.
A group of people also has certain rights. Some of these rights are distinct to the group, and are not enjoyed by the individuals within them. The most obvious of these is the right to assemble. A single person cannot "assemble". Assembly, by definition, requires a group.
This implies that there exist other rights which exist only for groups, and not for individuals. It also implies that some groups will have rights other groups do not.
And what is a state, or a city, or a county, or even a corporation... if not a group of people?
But the group doesn't exist until individuals have assembled together. People who hear that, for example, Obama is coming to town, may well be individually inspired to appear downtown, each clutching a tea bag.
The most common current example of individuals assembling without constituting a group is the cyclists' Critical Mass ride.
If I can marry whomever I want, and my partner can marry whomever she wants, it is fatuous to speak of the right to marry belonging only to a group of two. And the assertion that this would imply that groups had rights independent of individuals is a stretch greater than that of the pile of horse manure implying a birthday pony.
But the group doesn't exist until individuals have assembled together. People who hear that, for example, Obama is coming to town, may well be individually inspired to appear downtown, each clutching a tea bag.
The most common current example of individuals assembling without constituting a group is the cyclists' Critical Mass ride.
If I can marry whomever I want, and my partner can marry whomever she wants, it is fatuous to speak of the right to marry belonging only to a group of two. And the assertion that this would imply that groups had rights independent of individuals is a stretch greater than that of the pile of horse manure implying a birthday pony.
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