It is often said that duties and rights go together. Sadly, this is not the case. Rights are claims which correspond to obligations. Duties have salience in so far as they cancel an obligation. You may go to great lengths to show you discharge a duty of care but only so as to wriggle out of an obligation to make the other party whole.
For deontic Ethics, a duty exists only if there is a duty to have a duty. Otherwise all one can say is that such and such obligation arises in such and such transaction or set of relationships. A Google search tells me 'When used as nouns, duty means that which one is morally or legally obligated to do, whereas obligation means the act of binding oneself by a social, legal, or moral tie to someone'. In other words, for ethics, a duty can exist independently of any obligations, while an obligation isn't essentially (i.e. binding in all possible worlds) a duty- it is something which arises in a particular transaction or relationship, in a given state of the world, as a matter of pragmatic give and take rather than from an inward, a priori, ethical compulsion.
However, ethical compulsions may be entirely solipsistic- duties may spark endless navel gazing without any action being taken- while obligations may be cheerfully scamped. Thus, I may acknowledge a duty to help you- for example, by writing this shite- but may not feel myself obliged to do so even if you are literally on fire and standing in front of me screaming horribly, because there is nothing which binds us together. Equally I may be obliged to you, because you were nice to me, but not duty bound to you in any way.
If there is no duty to have a duty, a duty is simply flotsam or jetsam upon the highly subjective tides of the will. For this reason, deontology considers a duty to have a duty to be more fundamental than the duty itself. Otherwise it is just a fancy word for doing what you like. How could such a more fundamental duty arise? One answer is 'oikeiosis'- the fact that you were born into a particular oikos or sept which itself was generated within a larger tribe or nation to which it has a duty to hold duties towards. Another is that such duties are imposed by God, the Creator. It was hoped that participating in a particular epistemic or other protocol bound type of discourse would involve the discovery of some more fundamental 'duty to have a duty' such that there might be some a priori, metaphysical rather than pragmatic, means of condemning some propositions, or those who advance them, while valorizing others such that that a particular branch of discourse could better fulfil its duty to the commonweal, or if that was clearly risible because the thing was useless, then, nevertheless, keep faith with a more pristine duty to have a duty despite being utter rubbish and a thorough waste of time- e.g. Kantian or Hegelian shite.
Other people's duties to us are dangerous because they don't necessarily correspond to any obligation to us we would welcome and thus are not linked in any way to rights we would want to have. What Kipling called the 'White Man's burden'- or duty to have a duty to my ancestors- was one that crushed and starved brown people, while demanding the sacrifice of many a White working class man's life, so as to enrich a corrupt, cosmopolitan, plutocracy, which turned out to be as thick as shit, in an island far away.
If meta-duties- i.e the duty to have a duty is more fundamental than a duty- is it also the case that there can be a more fundamental right- a meta-right, or right to a right- than any acknowledged by jurisprudence?
No. More fundamental than rights are the things and procedures- including due processes of law - over which those rights are specified. A right to a right is inferior to the right itself in the same way that a claim to own a thing is inferior to actually possessing it. It is not the case that there must first be a claim and then possession occurs. Indeed, a claim may be upheld but remain unenforceable.
Your rights refer to your claims on things which tend to enhance or preserve your endowment set. Duties refer to claims on you that, if discharged in uberrima fides, diminish, or constrain utility from, your endowment. If a duty is merely seen as an obligation arising from a mutually beneficial arrangement, then it is rational to acknowledge duties because similar rights get vested in you when you do. This is purely transactional. The problem here is that we could get rid of talk of 'rights' and 'duties' and just frame things in the sort of vulgar terms any illiterate fishwife or costermonger might use. Instead of saying 'I have a duty of care with respect to you' I might say 'hey, gotta scratch your back, innit?, seeing as how you scratched mine'. Clearly, this is an outcome deeply repugnant to Political Philosophy or the project of shitting higher than your arsehole.
Since rights are merely rights over things, they are defeasible by reason of economic scarcity. However, no scarcity obtains in the imperative realm. I can't have a right to a time-machine, because the thing does not exist- but I can have a duty to have a duty to change the past for every individual whose collective identity has, in some sense, been raped and sodomized and subjected to aggravated epistemic acts of cunnilingus and fellatio by Neo-fucking-Liberalism.
Genuine duties, accepted in uberrima fides, make you worse off in all possible worlds. They are a 'Zahavi handicap'- a costly signal- and they can be 'eusocial' and promote better 'correlated equilibria' of a 'separating type'. It is quite possible that there is a way to specify a 'duty to have duties' such that it corresponds to the 'oikeiosis' of the Stoic Sage or that which is maximally beneficial to Gaia on the basis of the 'extended phenotype' principle. It may be that Lord Jesus Christ and Lord Buddha- but also a little Gujerati guy named Abdul Sattar & his wife Bilqis- had a proper conception of 'their duty to have duties'. What is certain is that neither assholes, nor the stupid Socio-proctologists who point their stinky finger at such assholes, ought to have any such thing.
It could be argued, I suppose, that a 'meta-right' may directly supervene on relationships and thus become more fundamental than other rights which also gain their efficacy by a like, but less prescriptive, supervenience. What I mean is, suppose everybody changes how they relate to each other upon the promulgation of a new 'right to have rights' ; then it would be the case that the meta-right was more fundamental. But in that case, there must be something even more fundamental than meta-rights- viz some Mahatma just saying 'be nice' because this would cause everybody and everything to become a nice as pie.
Let us imagine that a Messiah proclaims that everybody has the right to all the rights we would naturally accord our own kinfolk. It may be that our world becomes a Utopia as we all begin to show a tender regard for each other. But if this does happen it is because people have changed and relationships have changed. This is what was fundamental, not the proclamation of a meta-right.
Just as rights supervene on relationships, so too do relationships supervene on individuals and their attitudes and preferences and loyalties. But, up to this point in history, individuals and the relationships they maintain are founded upon a natural type of oikeiosis- i.e. belonging or appropriation.
It is simply a matter of fact that everybody who has ever existed had a biological father and a mother. Most people were raised by their biological parents. For this reason, one may say one has a right to know one's mummy and daddy. One may even say that sperm or eggs currently in cold storage have a right to turn into embryos and to grow in a womb of some type and to be born and then to gain parents. But, it would be foolish to say that the right to the right to have parents was more fundamental than the right of two people at some point in history to get married and to raise a family. Oikeiosis, or belonging, arises from the fact that creatures are born into families. A family may exclude a black sheep or a white sheep may run away from a reprobate oikos. The law may seek to force relationships upon those who don't want them. A right to a right may be meaningful in this context. But even if such a right is vested what is created is not a relationship of a natural type. By law, you may be forced to treat me as your little baby. But you are unlikely to feel warmly towards me as you change my diapers for the umpteenth time. Some quality of maternal affection will be severely lacking.
Of course, if I've attained insight into Heideggerian 'Ereignis', I may feel that I really am a little baby you dote over. But then I may feel this even if I am confined in a padded cell. One can always see the world- or any other plane of being- as one wishes it to be on the basis of some 'Ereignis' more fundamental than Oikeoisis. This does not change the brute fact that I, not you, am engaged to be married to She-Hulk. She will be popping out of my TV screen any day now to consummate our nuptials.
Gloating aside, it is folly to demand fundamental, as opposed to contingent, rights over things which don't exist because that very demand may deter the provision of the thing or else what is actually provided turns out to be wholly imaginary. If you demand a share in the cake I was planning to bake, I may decide not to bake it but may invite you instead to a Barmecidal feast where you are welcome to gorge on imaginary jam tarts.
Freedom could be thought as a set of immunities or 'Hohfeldian' incidents of a Justiciable sort. This means any doubt as to its exercise can be resolved by a 'buck stopped', protocol bound, method of public reasoning- viz. that of the law courts.
One reason this is effective is because determinations of fact are separated from determinations of the legal 'ratio' applicable. What 'is' is distinguished by people who are not necessarily lawyers, from what the law says 'ought' to obtain on the basis of legal arguments. This means that, for any specific purpose, there is a good enough method of 'operationalizing' the concept of Freedom or specifying the scope of rights. It is this feature of the Law which enables Justice to be a service industry- i.e. pay for itself in the real world.
For the Academy- which only exists because students are ignorant and poor at reasoning- Freedom could be a purely philosophical concept in which case anything at all could be said to have or lack any freedom whatsoever. Not being able to stipulate a 'buck-stopping' mechanism for itself, Philosophy is 'anything goes'.
However, neither Law nor Philosophy affirms that having a freedom means that a person will be better off. O. Henry tells the story of a homeless man who wants to get arrested so as to have a warm place to stay and nourishing food to eat during a rough New York winter. It makes sense to trade a freedom for a material benefit. The Law takes such trade-offs for granted. For Philosophy this may represents a scandal or aporia or troubling irony. But then reflection upon anything at all, or nothing in particular, might have the same effect.
The Law is essentially economic. It seeks to improve the administration of things. Philosophy rejects a pragmatic acceptance of 'economia' because it smacks of 'the unexamined life'. But, when it speaks of 'rights', it takes the path of 'akrebia'- a fault in rhetoric, Aristotle says, such that greater precision is sought than the subject matter can afford with the result that foolish things are said. Thus a philosopher, carried away by her own rhetoric, may pretend that what a tortured person really abhors is that a 'rights violation' has occurred rather than the fact that she is being beaten. This is ludicrous. The tortured person would be happy if someone came and violated the fuck out of the torturer's rights. Philosophy pretends otherwise by appealing to some supposedly more 'fundamental' value which undergirds social reality. We laugh at these cretins and have been doing so since the time of Aristophanes.
What does it mean to say x is more fundamental than y? One answer is that y is supervenient on x. Change something in x and y changes. Another answer is that x is essential- it exists in all possible worlds- while y is accidental. If somethings are indeed more fundamental than others, then it is folly to expect supervenience to work the other way- i.e. to expect a change in y to change x. It can be the case that physically changing a painting causes its aesthetic reception to change. It can't be the case that changing the aesthetic reception causes a physical change in the painting. Life is more fundamental than the Law. It is nice to have a right which makes your life better. It is foolish to say that x's life has gotten better if you think the Law has gotten better in some respect which does not affect x at all.
If we speak of one right being more fundamental than another we mean that other rights are affected if the more fundamental right is abrogated but not vice versa. This means if a more fundamental right, other than those recognized as such by a given jurisdiction actually exists, then that set of rights (e.g. the American Bill of Rights) is defeasible. Thus positing such a right reduces the prescriptive power of existing rights or sets them aside altogether. If the Law currently makes your life better, it would be folly to posit any such more fundamental right. If the Law is making your life worse in every respect, fuck the Law. Hope for its annihilation. A more fundamental right may cause the Law to bear down on you with greater force.
As we previously saw, trading a freedom for a material benefit is perfectly sensible. We may feel that we should have the freedom to posit more fundamental rights than any that currently obtain. However, it would be folly not to trade this freedom in order to have prescriptive fundamental rights which can operate in a useful, for buck-stopped, protocol bound and transparent manner so as to secure our flourishing.
Hannah Arendt, presumably speaking of Refugees or perhaps persecuted Jews etc, commits this fundamental act of folly when she writes-
‘If a small burglary is likely to improve his legal position, at least temporarily, one may be sure that he has been deprived of human rights.’
This is crazy. A person in this position gets a punishment on top of all his other deprivations and miseries. When a person subject to a deportation order commits a crime- even a small one- they are punished and then deported or- under the terms of relevant bilateral agreements- deported and then punished. Furthermore, the chance to emigrate somewhere nice is foreclosed by having a criminal record.
A right more 'fundamental' then any the Nazis claimed would be the right to classify certain people as food. Nobody should be excluded from the Human community. Sub-humans should be incorporated into our tummies by our eating them. This is a type of Oikeiosis which few would desire. The right to the right to belong to a community of cannibals- and to get eaten when our jokes begin to pall and our presence is considered de trop- is a right we fundamentally don't want to have.
Perhaps Arendt thinks there were some Jews, or Gypsies, etc under Hitler who gained a superior legal status as prisoners which they would not otherwise have had. Things may indeed have worked that way in one or two instances. It may be that there were some convicts who got overlooked when Jews or other persecuted groups were being rounded up for deportation. But this has nothing to do with the Law or with Philosophy. It is just one of those bureaucratic quirks or represents a method of 'gaming' the system.
A more Freudian explanation for Arendt's foolish statement is that she herself was aware that the position she upheld involved 'a small crime'- viz asserting rights more fundamental than any hitherto recognized- thus damaging the prescriptive nature of the Law and permitting a monstrous type of Oikeiosis. But self-interested actions have always been considered sanctioned by 'the Law of Necessity'. This generates a Doctrine of Exception or exigent circumstances which, as in Schmitt's jurisprudence, was scarcely helpful to Arendt's people.
Arendt wrote- ‘man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity.'
This is not true. Being deported does not turn you into a goat or other non-human type of being. On the other hand, being eaten by a cannibal, asserting a more fundamental right to incorporate you into his body after putting you through a meat-grinder, may leave no trace of you except a lump of shit.
On the other hand, if all communities and polities are made subject to a superior authority- indeed, if everybody became the slave of a particular despot who could punish whole nations with impunity- then a philosopher might be able to convince that despot to impose a rule such that no community could sanction any of its own members such that they feel excluded from it. Here 'oikos' has been weakened. It can no longer define itself. Oikeiosis can no longer be a question of embracing wider and wider circles of belonging and affinity. There is but an equal servitude and impotence.
True, this might secure what Arendt calls the 'right to have rights' for all- but only if the despot so wills. However, the existence of this meta-right would be predicated on lack of freedom for collectives and the despot's ability to directly punish both the collectives and some individuals within those collectives. Moreover, this meta-right would not be foundational to any other right or imbricated in the exercise of any sort of freedom. If the despot wills it- it exists, though of course whether it is enforced depends only on the despot. But, outside his will, it has no existence.
Hannah Arendt very willingly became an American citizen in 1950 despite the fact that America had a history of withdrawing citizenship from non-Whites and female Whites who married non-Whites. In 1954, under 'Operation Wetback' over a million Hispanics were expelled from the country. It appears that some of these people were bona fide American citizens. Perhaps two or three million people were removed from the country during the Fifties though they were undoubtedly indigenous to territories the US had previously seized.
America and its allies exercised power over Germany and Japan such that some Germans and Japanese gained a 'right to have rights' at the price of reduced freedom for both nations as a whole. This may have been a good thing. Freedoms, including political freedoms, can, after all, be traded off for a material or other benefit. Rights don't really represent a more fundamental good than Living does. But this means a 'right to rights' can't itself be 'more' fundamental than anything else. Indeed, it must be less so because the thing is meaningless unless rights already exist. My right to own a time-travel machine is empty. Only if time-travel machines actually exist is it worthwhile for me to secure a legal entitlement to one. However rights, under a bond of law, must have incentive compatible remedies. It would do no good to say 'everyone has a right to the latest Apple phone regardless of ability or willingness to pay'. Apple would simply stop making phones rather than go bankrupt supplying everyone with their latest bit of kit. It is better to have a right to get the Apple phone which you paid for under the terms of a contract of adhesion. It is in Apple's interest to ensure people get what they pay for so as to maintain the reputation of their Company. This is an example of an 'incentive compatible' remedy. It would exist even absent the Law, but the existence of the Law is helpful because it reduces uncertainty and allows clarification of 'grey areas' where ambiguity obtains. In such cases, adventitious or imputed rights may be helpful. I paid for an Apple watch, not a phone as I thought. However, it may be that I have a right to a phone because of some lack of clarity in the proffer. A 'reasonable person' may have believed I gained a right to some other right than the one I actually did gain. These are the sort of ambiguities and inequities which Courts can clarify or set right without damaging the whole fabric of socio-economic existence.
It is true that societies sometimes face unexpected calamities. But 'hard cases make bad law'. Rather than invent a 'more' fundamental right to deal with a 'hard case'- e.g. a flood of refugees- some discretionary accommodation of an equitable kind is advisable. It is not the case that everything has to change before any particular thing can change.
Arendt, being White, gained rights of a superior kind to non-White Americans by becoming American. No doubt that was advantageous to her. But was it admirable in her? Or did it flow from some more fundamental 'right to have rights' which adhered to her but not to Hispanics or African Americans? Certainly, her superiority in this matter was affirmed by the American governing class at that period. But this superiority flowed from the accident of her skin color. It was not predicated on a philosophical essence.
The Bible speaks of the Assyrian Empire and its policy of breaking up Nations and imposing servitude upon their remnants. Judaism itself could be seen as a Nation constituting itself first under Judges and then under Kings to secure Justice and certain types of freedoms for Jews. Arendt seems unaware of this. She wrote- ‘we became aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights because of the new global political situation.’ Yet, in the Bible, a Persian despot who defeated the Assyrians and permitted the return of the Jews to Palestine was greatly praised. Indeed, the notion of the Messiah is prefigured in the Persian Saoshyant or Liberator. But this could be a function of despotic power. It might have nothing to do with Freedom.
It so happened that Arendt could choose between Israel and West Germany and the US as places where she could belong to a political community. However, Hitlerites, who had belonged to a very organized community, were removed from some territories which were previously German and were subject to punishment or 'de-Nazification' statues and procedures elsewhere. Speaking generally, this was advantageous to the Hitlerites. Their lives became safer and more prosperous under Allied surveillance and tutelage. Few would shed a tear for the disappearance of an 'organized society' which was to the liking of those fanatics. No doubt, some equal evil existed within our own Societies, but that evil had not caused a World War of a type disastrous to itself. A not too obstreperous Evil we can live with. But an imbecilic, highly belligerent Evil, which tries and fails to kill us, is one we are content to see perish from the face of this earth.
Arendt, famously, wasn't opposed to the death penalty, yet she writes
‘man as man has only one right that transcends his various rights as a citizen: the right never to be excluded from the rights granted by his community’.
So, provided the guy is killed in a manner prescribed by law- i.e. without any rights' violation- then his right to have rights is respected. Cool. But the same must be true of any right abrogated by due process of Law- including less severe penalties, e.g. being exiled, outlawed, deported, or confined in a prison or concentration camp. This is the commonsense position. Perhaps, Arendt- being a hysterical foreigner with a shoddy education- was simply groping her way towards ideas formulated in English before Burke or Bentham were born.
She had queer beliefs- e.g. that Europe learnt barbarity during the scramble for Africa- though Tzarist Russia, with no interests in Africa, had pogroms whereas Leopold of Belgium incited none. She also believed the Wilsonian 'Minorities Treaties' mattered. They did not. All that mattered was whether the French could maintain a credible offensive doctrine. It was this failure of theirs which led to two World Wars. The smaller guy should aim to 'frontload' pain on the bigger guy so he postpones the conflict.
Ultimately, as one would expect of a person with a PhD in a shite subject, she was simply too stupid to be able to write a single sentence which wasn't obviously foolish, fatuous or utterly false. Hence her continuing relevance in our times which, ominously, have too many cretins with PhD's in shite.
Consider the following-
Something much more fundamental than freedom and justice, which are rights of citizens, is at stake when belonging to a community into which one is born is no longer a matter of course.
The first thing we notice is that animals of a certain type are free to roam in certain areas. Moreover they have judicial remedies to rights' violations, either by suo moto action of the Court or by a petition by a concerned party, or some other process of law. Indeed, all sorts of entities- including, in India, rivers and Temple deities- may have legal personality.
Arendt thinks those who don't belong to the community have no rights whatsoever. This is not generally the case. The justiciability of right-violations they suffer may be curtailed. However certain rights subsist and can be a defense in law for actions protective of those rights.
Population exchanges- e.g. between Greece and Turkey after the Treaty of Lausanne, or between India and Pakistan- pose no great scandal or aporia for the Law. No one has suggested that 'something more fundamental' was or is at stake in these exchanges. Manmohan Singh and Musharraf had ancestral homes in each other's countries. This changed nothing between them.
Arendt next mentions the plight of the possible targets of ethnic cleansing
and not belonging no longer a matter of choice,
The problem here is that it parallels the plight of the illegal migrant or the person born in the country but not entitled to citizenship. In both cases a person may be denied right of domicile and be subject to a deportation order. Idi Amin expelled Asians but, on the whole, this turned out to be a good thing for them. Similarly, rapid detection and expulsion from a country may be a blessing in disguise. It lets you get on with your life somewhere else.
Consider the 'Windrush scandal'. Why was no legal challenge mounted when the 'hostile environment' policy was first implemented and some people were illegally removed or otherwise discriminated against? Part of the answer is that lawyers were under the impression that some new, more fundamental, 'Human Rights' law applied. In other words, supposedly more 'liberal' fundamental rights caused immemorial common law rights to be disregarded. Britain witnessed the prima facie illegal removal of citizenship (on the contention that a person living in our country as a citizen ceases to be so, save by express stipulation, just because some other country he may be affiliated with becomes independent and he could be considered a citizen of that country) on the grounds that no Statelessness arises by reason of the provision of a Statute passed subsequent to settlement as a qualifying citizen.
The scandal here is that British citizens were treated much worse than Refugees because Rights of domicile etc. were believed to have been 'fundamentally' broadened!
I think ordinary lawyers- more particularly those who work with poorer people in this country- thought a challenge to the Home Office under the Common Law of this country was bound to fail because really clever people must have drafted the statues & policies in question. To get justice you'd have to get Amal Clooney & Cherie Blair & Professor Chinless Wonder & Lord Haw Haw on side. Yet, the injustice at issue was glaringly obvious from a common law perspective. This is an example where a false belief in a more 'fundamental' right has a mischievous effect. It prevents existing rights violations being remedied till there is a test case about the supposedly more fundamental matter.
What of particular groups- e.g second-generation Palestinians in Saudi Arabia or Lebanon who may face severe restrictions and, depending on exogenous geopolitical factors, official hostility amounting at times to summary expulsion?
Speaking generally, the best thing is to take steps to acquire another passport one way or another or at least keep one's place in the queue for resettlement as a Stateless person.
It may be argued that some more 'fundamental' right exists. Perhaps it is the right to wage war or conduct terrorist strikes. Sadly, exercising such a right- however fundamental you may claim it to be- might result in a worse outcome.
On the other hand, if waging war leads to victory, you can award yourselves any rights you like. But what is fundamental here is not 'a right to right' but having the stronger 'right arm' or, to be less Biblical, better armaments and training.
Arendt may be called a Political Philosopher. Does this subject have any right not to be called a pile of shit? Does it have a more fundamental right to have a right not to be expelled from the Academy? It appears so. Sad.
