Battlepanda: Natural rights vs. rights under the law


Always trying to figure things out with the minimum of bullshit and the maximum of belligerence.

Monday, November 28, 2005

Natural rights vs. rights under the law

Robert's Stochastic thoughts have some interesting further comments on the music downloading discussion. As I argued in my post on this matter, intellectual property rights are granted on utilitarian grounds -- that is, their aim was to encourage the creation and propagation of music. Thus, if it can be shown that the aggregate effects of those laws is to stifle the very things it's supposed to encourage, there should be no arguments against withdrawing those rights granted by the law. According to Robert, people are coming to the wrong conclusions because they confuse the difference between Natural rights (things that are inviolable and absolute in Robert's eyes) and Rights under the law (rights that are established by the law to secure positive utilitarian outcomes.)

I think the emotional power of the idea of property rights is (see post below) based on a failure to accept a difference between rights under the law and natural rights, so existing laws or laws from a century and a half ago are seen as descriptions of natural rights which can not morally be eliminated.

Also, I think, people switch back and forth between arguments based on respect for rights and consequentialist arguments without noticing. That is, a reasonable defence of existing property rights is that with such rights we have a prosperous society and countries which tried something very different ended up very poor. If one asks people to imagine a world in which collective ownership say leads to prosperity and decide if it would be just or unjust, they become irritated. Most people find the question of whether a law is a good instrument towards an aim or an expression of natural rights totally boring.
Ah, but don't you see, Robert, if you come all the way to my utilitarian-moralist vantage point, you won't have to be exasperated with people for not seeing the difference between Natural Rights and Rights under the Law, which seems to me to be a rather arbitrary way of putting things. In my mind, no rights are absolute, but they are necessary constructs in a functional, healthy society. Rights should simply be granted when upholding those rights assiduously in all cases yields the best utilitarian result and ditched (as in the case of the IP rights) when they no longer do. I don't think that this damages the case for human rights or the right to free speech any because I have a hard time envisioning a world in which upholding human rights assiduously would yield a negative utilitarian result, don't you?

I think it is a very human thing to crave some external authority for our laws and institutions. In the olden days, of course, this was done directly by claiming divine backing for our laws and governments. The secularized expression of this tendency is moral absolutism, which omits the God but retains the naive believe that our values and beliefs are valid for all time, which quite naturally leads to problems as society and (in this case) technology evolves. Robert wants to have it both ways -- the comfort of moral absolutism for one group of rights (the 'natural' rights) and the convenience of utilitarianism for another (the rights under the law). But the more consistent approach would be to accept that there is no such hard and fast distinction.