On metaphysical rights, or the Burkean conservative who denounces Burke's conservatism

A while back, Martin Cothran (who, in keeping with long tradition here, it must be noted remains a bigot in a staggering diversity of realms, not least his apparent desire to defend a dictator's decision to cut internet access to his nation in hopes of stymieing a revolution) declared:

A person should be legally required to read Edmund Burke before publicly identifying himself as a conservative. Of course, it would be anti-Burkean make such a legal requirement, but you get my drift. Modern conservatism starts with Burke, and should end with him.

I'd modify this to say "should have ended," but that's a tale for another day.

Cothran has declared himself a conservative, so if we assume some modicum of self-consistency, we may proceed as if Cothran has read Burke, and that his political philosophy begins and ends with Burke. If that's the case, then he ought to know that Burke was an opponent of the notion of natural rights (what Cothran lately refers to as "metaphysical rights"). And yet, here's Cothran, attempting to reply to my argument in favor of internet access being a human right:

You can't possibly critique a written law (whether statutory or constitutional) unless you have some perspective outside of the written law itself from which to do it. How do you argue that a written law is wrong unless you have intellectual fulcrum from outside and above the written law?

Of course, the entire objective of Burke's Reflections on the Revolution in France was to argue that a written law can only be critiqued from within the history and structure of the existing laws. It is on this basis that he concludes the French are wrong to cast off their existing laws and customs and start a government rooted in a natural rights.

None of Burke's writings on natural rights are as quotable as his contemporary Jeremy Bentham's quip that natural rights philosophies were "nonsense upon stilts," here's a relevant passage from the Reflections:

They despise experience as the wisdom of unlettered men; and as for the rest, they have wrought underground a mine that will blow up, at one grand explosion, all examples of antiquity, all precedents, charters, and acts of parliament. They have "the rights of men". Against these there can be no prescription, against these no agreement is binding; these admit no temperament and no compromise; anything withheld from their full demand is so much of fraud and injustice. Against these their rights of men let no government look for security in the length of its continuance, or in the justice and lenity of its administration. The objections of these speculatists, if its forms do not quadrate with their theories, are as valid against such an old and beneficent government as against the most violent tyranny or the greenest usurpation. They are always at issue with governments, not on a question of abuse, but a question of competency and a question of title. I have nothing to say to the clumsy subtilty of their political metaphysics. Let them be their amusement in the schools. â "Illa se jactet in aula Aeolus, et clauso ventorum carcere regnet" ["Here in a vast cavern King Aeolus / rules the contending winds and moaning gales / as warden of their prison" -Aeneid 1.140]. â But let them not break prison to burst like a Levanter to sweep the earth with their hurricane and to break up the fountains of the great deep to overwhelm us.

Contrast this to his preferred theory on the origin of rights, the way rights proceed in English law:

it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity â as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts.

Thus, for Burke the external fulcrum is not some metaphysic (which he derides as speculation and abstract theory), but the hard facts of custom and tradition. It hardly bears mentioning that Burke's aversion to rights-based revolution would surely make him (not me, as Cothran would have it) Hosni Mubarak's favorite human rights theorist.*

I spend this time in noting Burke's beliefs not to defend Burke, but to note that Cothran's failings in his reply to me run deeper than an inability to marshal a compelling argument against me; Cothran cannot even construct a self-consistent argument with himself.

Farbeit for me to defend Burke, though. I am not a conservative, and though I've read his work, I disagree with him and his political philosophy. I'm more inclined toward the works of Locke and Paine, men who argued vigorously against Burke on this point, and I prefer the political philosophy of Rawls. Cothran writes a confused diatribe against "social contract theory," ultimately dismissing the field by writing:

if you simply employ social contract theory, which theorist are you going to go by? John Locke? Rousseau? Or Thomas Hobbes, who advocated authoritarian monarchy? ⦠This is the whole problem with human rights theorists who refuse to recognize a law above the law: they completely relativize the whole concept of human rights.

This is hardly a problem unique to social contract theories (which, after all, often incorporate a concept of natural rights by way of preventing such rights from being given up in the social contract). Any metaphysical argument â any argument not rooted in the physical, testable, empirical world â is doomed to certain unresolvable conflicts. Monarchs long argued for their right to rule not based on Hobbes, but by simply declaring a divine right of inherited nobility to rule. Cothran presumably does not adhere to that belief, but how would he argue against the metaphysical basis of it? Those kings held that God â Cothran's God! â decreed their right to enslave their peoples and deprive the people of the most basic rights guaranteed by the US Constitution. Or how would he distinguish the metaphysical rights proposed by Thomas Jefferson (a deist) as opposed to fundamentalists like James Dobson or Osama bin Laden (Christian and Muslim, respectively)? Sharia claims to provide a metaphysical basis for a system of rights (and limitations on rights), but I assume Cothran would not accept Sharia or the divine right of kings as valid sources in discussing rights in the US. Why not? He gives no reason.

Cothran simply points to a phrase in the US Declaration of Independence, which states that certain rights are "self-evident" and that people (excluding slaves, apparently) are all "endowed by their Creator with certain inalienable rights." The document does not list all of these rights, only some, and if everyone agreed that those rights really were granted to all humans â from any source, but especially divinely â it wouldn't have taken a revolution, a civil war, a civil rights movement, and at least two major amendments to the Constitution to enforce those rights with anything resembling genuine equality. Cothran finds it significant, though, that the document attributes the existence of those rights to a creator. Alas, the argument that divine commands can get us to right and wrong is problematic for reasons that Socrates pointed out to Euthyphro a few thousand years ago, and which I will not rehash.

The problem of locating a set of "general or prior right[s]" is especially difficult for a Burkean conservative not just because Burke rejected the notion of such rights, but because Burke's point was largely to defend the persistence of political institutions that limited people's rights, as well as a right to slow and gradual changes in those laws and traditions (provided the changes come through means accepted by tradition). In liberal traditions, things get a bit easier as it's possible to articulate a clear goal for a system of government, as laid out by philosophers including John Stuart Mill and John Rawls, and to then use that goal as a way to organize and (if necessary) reorganize the social contract in pursuit of a truly just society. As Rawls puts it: "the social union is no longer founded on a conception of the good as given by a common religious faith or philosophical doctrine, but on a shared public conception of justice appropriate to the conception of citizens in a democratic state as free and equal persons."

The passage I quoted from Rawls earlier also gets at the problem Cothran describes. It accepts a plurality of metaphysics as a given in a free society, and seeks through the order of society to create an overlapping consensus, such that each person validates the social contract and its conception of rights from within their own metaphysic. Thus, the public discourse need not deal with purely intrasubjective perceptions, and instead can rest on public values and public reason, even though we have our private beliefs that may have led us to our conclusions. In such a system, we can judge laws by their relationship to that overlapping consensus, and in this or any system, we can judge a law by whether it accomplishes its stated goals, and by critiquing those goals from within the context of whatever conception of rights we like (though this is easier if we have a Rawlsian overlapping consensus).

This is why my previous post said: "I'd start with legal rights, rather than metaphysical ones, because how do you test whether something is a metaphysical right? â¦the US's Bill of Rights â¦freedom of the press⦠democratic constitutions in the 20th century." Cothran's interpretation of this passage:

You judge a metaphysical right by a legal right? Now that's a novel idea. You mean all you've got to do to establish a metaphysical right is to write it down and have everyone nod their head?

Um, no.â  If I say I'm going to set aside metaphysical rights and talk about legal rights, and then start talking about legal rights, it doesn't mean I judge metaphysical rights by legal rights, it means I'm talking about legal rights and setting aside metaphysical ones, because there's no (obvious) way find consensus on these sorts of metaphysical questions, so let's talk about legal rights. Focusing on law gives us a starting point for discussion, which is why I took up the US Bill of Rights, the UN Universal Declaration of Human Rights, and the International Convention on Civil and Political Rights.

Cothran raises some concerns about a focus only on legally granted rights. For instance, if Egypt hadn't signed and ratified the latter two (respectively), could we insist that they abide by those documents' strictures? What if every country were a dictatorship and had laws guaranteeing the rights of the government to torture and repress its citizens, or the right of one country (e.g. Egypt) to torture and repress citizens of other countries seized by a third country (e.g., the United States) and transported to the first country, even if the third country has prohibited such torture? And if the people of Egypt never got together and elected a government through a legitimate election, how can we say that their signing and ratifying any treaty is legitimate anyway? And if Cothran traveled back in time and prevented his great-great-great-great-grandparents from meeting, would he still be disturbing the Bluegrass State's body politic?

I suppose these questions (except the last, which Cothran didn't really ask) are interesting in the abstract, but they're irrelevant in practice. Cothran didn't break up his ancestors' wedding night. Egypt did sign and ratify the treaties, and did thus agree to be bound by them, and to acknowledge the rights they sought to codify. The goal of these documents, the goal of the United Nations in general, is not to enforce one way of thinking on everyone, but to find and codify common ground. They are a normative force external to Egyptian law, yet equally accessible to an Egyptian as to a Kentuckian. That's a feature, not a bug, and one that couldn't be achieved if they rested on a theological claim.

Maybe there really is some metaphysical list of rights out there, and I certainly am not out to deny that possibility. At best, though, we are mere mortals who can only access metaphysical realms distantly, as shadows on the wall, if you will. Documents like the Magna Carta, the Declaration of Independence, the Bill of Rights, and the International Convention on Civil and Political Rights and Universal Declaration of Human Rights were created by experts in the law and in human rights, gathering together as communities, and seeking an agreement about what rights we can all agree exist and need protection. (For more on the complexity of trying to derive human rights from metaphysical norms, and on the various ways people try to justify the claim of certain rights being universal, see the Stanford Encyclopedia of Philosophy's entry on Human Rights.)

All of which brings us back around to internet freedom. My first post in this exchange was called "Cut off Martin Cothran's internet" not just to be flip, but because I suspect Cothran would feel his rights had been violated if the government just decided to block his internet connection. Going back to John Rawls and the veil of ignorance, I suspect that Cothran would think it a violation of his rights to free speech and free assembly if his internet access were blocked, exactly as it violated the free speech and free assembly rights of Egyptian people when their internet access was cut. And that's the point. If it's a right for Cothran, it's a right for the people of Egypt.

* As soon as Cothran realized that his argument was leading towards making me and the UN Hosni Mubarak's best allies in maintaining his repressive regime, Cothran should have realized that he made a mistake. Both I and the UN have been rather open in our support for the Egyptian revolution now under way, and our opposition to oppression and repression. That ought to have indicated that something in his purported logical chain had gone awry.

â  Reading comprehension isn't Cothran's strong suit, which is presumably why he spends at least half of his post trying to make his reader think my blog is affiliated with NCSE, despite the straightforward disclaimer in the sidebar. He's also oddly obsessed with my college research project on rat penises, in a way that I'm not obsessed, or even interested in, his time as a Taco Bell cook.