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What are Civil Rights?

Published online by Cambridge University Press:  13 January 2009

Lloyd L. Weinreb
Affiliation:
Law, Harvard University

Extract

For all the discussion and debate about civil rights, it is striking how little attention is given initially to the question of what civil rights are. There is no well-understood principle of inclusion or exclusion that defines the category. Nor is there an agreed list of civil rights, except perhaps a very short, avowedly nonexhaustive one, with rather imprecise entries. Yet, if the extension of the category of civil rights is uncertain, its significance is not. All agree that it is a principal task of government to protect civil rights, so much so, indeed, that a failure to protect them usually is regarded as outweighing substantial achievements of other kinds. But a right does not count as a civil right just because it is valuable or valued. Some of the rights most often asserted as civil rights reflect practical interests of their possessors considerably less than other actual or potential rights not so identified.

In the United States, familiar legal doctrine provides a shortcut to the specification of civil rights. They are whatever is embraced by the provisions of the federal Civil Rights Acts: the right to vote, fair housing, equal employment opportunity, and so forth. That path, however, is not adequate for the present purpose. For the most part, the statutes refer explicitly or implicitly to federal constitutional rights, and the collective reference to them as civil rights is unexplained. The bases of the constitutional rights are too various to be a reliable guide to an independently designated category of civil rights.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 1991

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References

1 1 8 U.S.C. §§ 241–45, 28 U.S.C. §§ 1343, 1443, 1446, 42 U.S.C. §§ 1981–2000h–6.

2 Weinreb, Lloyd L., Natural Law and Justice (Cambridge: Harvard University Press, 1987), pp. 184265.Google Scholar

3 The judge in The King v. Creighton, 14 Can. Cr. Cas. 349, 350 (Owen Sound Assizes, 1908) observed to the defendant: “If you cannot resist an impulse in any other way, we will hang a rope in front of your eyes, and perhaps that will help.”

4 The literature about the problem of free will is vast; I make no pretense of reviewing it here. (Taylor, Richard essay “Determinism,” s.v., The Encyclopedia of Philosophy (New York: Macmillan, 1967), vol. II, pp. 359–73Google Scholar, is a good place to start and contains a helpful bibliography.) Most of the modern “solutions” and a good many of the older ones seem more concerned to find a verbal formula that papers over the gap in our understanding than to eliminate it. The short of the matter, it seems to me, is, as I have observed elsewhere: “Acting freely means that how I act is up to me as an initiating, self-determining agency, no more or less. A complete causal explanation does not leave the matter up to me or anything else. So far as freedom in that sense – which is the only sense for the present purpose – is concerned, it is all up.” Natural Lam and Justice, p. 201n. None of the more restrictive analyses of freedom, such as an absence of ‘external‘ constraint, that make it compatible with cause satisfies the actual experience of agency, when we feel ourselves to be or observe others to be determining the course of events in the full sense.

5 The conceptual system in which this solution inhered differed fundamentally from our own, in respects central to this discussion. Consequently, restatement of the classical Greek position in our own terms is inevitably distorting. Its content is best understood by immersion in the texts.

6 Strictly speaking, there is at least one exception. Two persons acting independently might simultaneously cause an event. If the action of each were sufficient to cause the event, then either might be removed from the scene without affecting the result. The difficulty lies in the hypothesis. We do not ordinarily refer to both of two independently sufficient events as the cause. As a theoretical matter, though extremely rare in practice, the law (which makes it possible to consider each question of causation separately) accepts the possibility. See, e.g., State v. Batiste, 410 So.2d 1055 (La. 1982).

7 The doctrine of felony murder in the criminal law is illustrative. In many circumstances, it holds a felon liable for a death resulting from commission of the felony, although if his conduct were not criminal, we should probably regard the death as an accident. See, e.g., Taylor v. Superior Court of Alameda County, 3 Cal.3d 578, 477 P.2d 131 (1970); People v. Stamp, 2 Cal. App.3d 203, 82 Cal. Rptr. 598 (1969).

8 This essay is not about causation. Here and in succeeding paragraphs, I pass by qualifications and complexities that are interesting in themselves and have filled books. I ask for readers' indulgence if simplification seems like oversimplification. I think that I have not evaded complexity that is relevant to the main argument.

9 Calling them “unanalyzable” has the virtue of ambiguity. Although I agree, as will appear, that they are not reducible to another sort of thing – what might metaphorically be called chemical unanalyzability – I do not agree at all that they can only, as it were, be used and not understood.

10 Ownership of land or wealth has sometimes acquired (and may still acquire for some) the aspect of a personal attribute rather than possession, as we now generally diink of it; the significance of so regarding it is that it is thought not to be separate and easily detachable from the person.

11 Advertisements have occasionally appeared in newspaper columns in which die advertiser offers to sell a kidney.

12 As the Wizard of Oz understood, it is always possible to give die Scarecrow a college degree and the Cowardly Lion a medal. Degrees and medals may have some intrinsic worth; they are also enabling.

13 Also, of course, we do not talk about a person's right to something that he would rather do without. Still, if it is his responsibility, he has no right not to be it; and, if we do not say that it is his right, nevertheless it is his rightfully.

14 Hobbes so described the state of nature. His famous description of life in such a condition – “solitary, poor, nasty, brutish, and short,” Thomas Hobbes, Leviathan (1651; Harmondsworth: Penguin, 1980), ch. 13 – is not, as sometimes is suggested, a particularly pessimistic description of human nature. It is a “thought experiment,” rendered in Hobbes's brilliant prose.

15 A number of difficult questions are left aside here. All human beings at some periods in their lives, and some human beings throughout much or most of their lives, are not responsible. For the most part, we recognize human beings as persons even when they are unequivocally not responsible. Benn suggested persuasively that such recognition, often given for symbolic reasons, is like a shadow of the recognition of actual responsibility. See Benn, Stanley I., A Theory of Freedom (Cambridge: Cambridge University Press, 1988), p. 16.CrossRefGoogle Scholar On the other hand, some animals exhibit behavior that might plausibly be said to meet at least minimal criteria of responsibility. It is not especially helpful (although it does no particular harm) to introduce the notion of a human telos.

16 Even natural rights, those that depend only on the proposition that human beings are responsible, arise only in a community. Unless there were at least one other being recognized as responsible and therefore a possessor of rights, the concept would have no application; “rights” would be powers and nothing more. Although a person who had acquired the concepts of responsibility and rights in some other context might continue to consider them if he were isolated from other persons (and even if it were certain that he should remain isolated), I do not see how a person who never had contact with other persons – I'enfant sauwage – could acquire them. He would presumably learn not to do certain things because of the harmful consequences that follow, but how would he distinguish punishment from other kinds of consequential harm? It may be that some higher mammals exhibit behavior indicating a degree of moral consciousness. But an individual of any species, isolated from other individuals sharing that consciousness, would not.

17 As I have argued elsewhere, the perception of persons as responsible is the equivalent of a supposition of normative (natural) order. See Weinreb, Lloyd L., “Natural Law and Rights,” ed. Robert, George, Natural Lam Theories (Oxford: Oxford University Press, 1991).Google Scholar Either way, at bottom the problem is ontological, although if one focuses on personhood, it is attached more directly to the ethical issues to which it gives rise. There is a fuller discussion in Natural Law and Justice.

18 It is not surprising that the best discussion of this relationship is still found in Aristotle. His willingness to treat normative propositions as having objective validity, while at the same time taking account of their variability from one community to another, appeals as the common sense of the matter to many readers, who are troubled nevertheless, because Aristotle appears to have it both ways. From his point of view, there was no theoretical inconsistency.

19 The point, which may seem tendentious if one thinks of ordinary legal rights, is plain if one thinks of a law opposed to what one regards as ordinary civil rights: for example, a law giving one group a clear legal right to appropriate the property of another.

20 Whether strictly utilitarian considerations can be regarded as concordant with justice may be doubted. See Natural Law and Justice, pp. 209–15. Rather, in the absence of rights, justice ceases to be a relevant consideration. Some defenders of affirmative action have relied on utilitarian arguments – chiefly the need to achieve a racially harmonious society – without, however, responding to the claimed injustice of those who are denied.

21 There are, of course, a great many concrete exceptions to the general rule of reward for merit (aside from the small number of occasions like a lottery, when the rule is explicitly not applied). Applicants may be admitted to a university because it wants to achieve geographic diversity. A junior executive may rise in the firm unusually rapidly because his parent is chairman of the board. Such exceptions are more easily accepted if they are perceived as idiosyncratic and if the situation is not perceived as concretely competitive, so that there can be winners without losers. Affirmative action lacks both of those characteristics.

22 There is something instructive in this for the practical problem of how to carry out affirmative action. To the extent that provision for the previously disfavored group can be made with public funds rather than by displacing another group, the opposition between competing rights is blunted. To put it another way, the policy of affirmative action ceases to be competitive. Although that approach ought to be pursued more than it has, it has limits. How far public provision would have to go before it dampened the argument for affirmative action to any extent is a question; but it would surely have to go much further than the current limits of affirmative action. The strength of the rights opposed to affirmative action acts as a brake. Competing demands on the fisc are also a brake, but one less focused and probably weaker.

23 See New York Times, April 17, 1985, p. B4; April 18, 1985, p. A26; April 19, 1985, p. A19.