In his book Word and Object, W. V. Quine describes the problems that arise when one is attempting to translate an entirely unfamiliar language. Among the ideas he raises in his discussion is that when attempting to translate what someone is saying, one should employ the principle of charity, by which Quine meant we should assume “assertions startlingly false of the face of them are likely to turn on hidden differences of languages.” If your translation implies your interlocutor has said something patently absurd, you should assume that something has been lost in translation rather than assume you’re speaking with a fool. And Quine points out that this isn’t limited to translating from unknown languages – the same problem can arise “in the domestic case” as a result of “linguistic divergence.”

I try, however imperfectly, to apply this idea when talking to other people. And recently, I wondered if such a “linguistic divergence” might, if properly accounted for, help me form a more charitable understanding of how some people talk about rights. 

The view in question has been described by Michael Huemer as the Legalist View of rights. (Of note, in that paper Huemer is talking specifically about property rights, but the same view is often taken about rights more generally.) As Huemer puts it, in the Legalist View, 

Property rights are in every aspect and detail dependent on government-created laws. (N.B., property rights are not only legal but also moral rights; this is why theft is not just illegal but unethical. The Legalist View is not merely that certain legal rights are dependent on laws, but that the relevant moral rights are dependent on laws.)

This is a line of thought I’ve heard in various forms over the years. Its proponents will often say “Rights exist only to the extent that they are established by a society and/or enforced by the state. To speak of something that has no social enforcement behind it as a ‘right’ is a confusion. If it’s not upheld and enforced by a state or by society, then it’s not a right.” 

Now, this line of thought has always struck me as, in Quine’s words, startlingly false on the face of it, because it has rather absurd implications. For example, I take it as given that slavery represented the greatest institutionalization of human rights violations in history. But on the “rights only exist when enforced by a state” view, slavery wasn’t a rights violation at all. If rights only exist if a state (or sufficiently strong social conventions) recognize and enforce them, then it simply follows that whenever and wherever slavery is enforced by the state and considered generally acceptable by citizens, no enslaved person experiences any violation of their rights – because genuinely they have none. On this view, the infamous Dredd Scott decision declaring that African Americans “had no rights which the white man was bound to respect” wasn’t a grave error – it was an unambiguously factual statement (at least at the time). If your theory says slavery doesn’t violate anyone’s rights as long as society approves of it and the state enforces it, you need a better theory. 

Or so it always seemed to me. But I now wonder if, perhaps, there is a hidden difference of languages, or a linguistic divergence, that might cast this in a different light. I recently recalled a back and forth from the comment section on this blog on the nature of rights from a few years back (yes, I can remember things like this but can’t usually remember when my sibling’s birthdays are!). One commentator defended a legalistic view of rights, saying that if one believes “rights exist and can be ‘negated’ even when the social context clearly doesn’t recognize those rights, then I won’t agree with that bit of the argument. There are many rights that I think societies should create and protect; but they don’t exist before the society goes and does that.” 

But I realized from something else the commenter said that maybe his view might be salvageable. Also discussed in that post was the Loving v Virginia case that overturned bans on interracial marriage. On the legalistic view defended by this commenter, one would have to say that such laws, before they were struck down, didn’t violate anyone’s rights. And this commenter accepted that implication – although he also added his belief that “the Lovings *should have had* the right to marry.” Nonetheless, before the court rulings were issued, they had no such right. 

So here’s my suggestion that might bridge the gap. This commenter affirmed that he believed the Lovings should have had the right to get married. This in turn entails that it was wrong for the state to prevent them from getting married. Well, saying “it’s wrong for the state to prevent people from X” is, to people like me, simply what it means to say people have a right to X. If I say “people have a right to free speech,” I’m saying that it’s wrong for the state to forcibly silence people from speaking. It’s a prescriptive claim, which in turn allows us to evaluate what kinds of laws are appropriate or inappropriate. On this view, laws and conventions can be rights violations. By this other definition of rights, saying “people have a right to free speech” is a descriptive claim, and as such it may be true or false depending on the laws and conventions in any given society. Thus, on this view, laws and conventions cannot violate rights, because “rights” simply means “whatever is recognized and enforced by laws and conventions.” 

Consider, then, when this commenter also said “There are many rights that I think societies should create and protect; but they don’t exist before the society goes and does that.” This is affirming the view that there is something out there, existing prior to and independently of social enforcement, and that particular something ought to be protected and recognized. To the extent that society or the state should protect these things but does not do so, that is a failing and should be corrected. To people like me, that prior thing is what we speak of when we talk about rights, and what we mean when we say rights exist prior to and independently of being formally recognized and enforced by the state or social conventions. This commenter and I both agree that there is something existing prior to state policy and social conventions that prescribes what such policy and conventions should be. It’s just that I call this prior existing something “rights”, and he does not.  

As a further example, here’s another thought experiment Huemer offers in the previously cited paper, where I toss in an additional caveat:

Suppose you are exploring a remote wilderness region outside the jurisdiction of any government, when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws [or social conventions – KC], and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun.

In this thought experiment, the hermit is not under the jurisdiction of any government, nor are there any reigning social conventions. Still, it seems obvious that you would be doing something wrong to the hermit if you carried out these acts. And I think almost everyone who accepts the legalist view of rights, if pressed, would acknowledge that it would be wrong to do these things to the hermit. Well, the wrongness of those actions is, to people like me, simply what it means to say the hermit has property rights here and that you’ve violated them. If you agree that it would be wrong to do these things to the hermit, then you agree with the substance of what people like me mean when we say the hermit has rights even in the absence of the state and social enforcement, even if you would describe the situation with a different vocabulary. 

My point in this post is not to argue that one definition of “rights” is the objectively correct one, or that one is pragmatically superior to the other. (I may come back to that point in a future post, but let’s table it for now.) My point is simply that it’s possible much of the disagreement about whether rights exist prior to or independently of the state may simply be turning on a linguistic divergence over what the word “rights” is meant to designate.