Continuing on with Stanely Hauerwas on rights:
Not that long ago one of the fundamental issues that characterized that strange activity called "meta-ethics" was rather right or good was the primary ethical notion on which all other ethical judgements could be justified. That fruitless debate was, of course, an attempt to choose between Mill and Kant on strictly logical grounds. The challenge to that way of understanding ethics was represented by philosophers such as Bernard Williams, Iris Murdoch, Phillipa Foot, Alasdair MacIntyre and Ray (Gaeteah. sorry, not familiar with that one) who directed attention to words such as "kindness," "honesty," "gentleness" as descriptions at least as important as the big words "right" and "good."
I'm trying to make a similar point about rights.
Not unrelated to the over-determination of rights language in our current moral vocabulary is my worry that once the language of inalienable rights is introduced there is no way to control their multiplication. Once rights are divorced from the practices they depend upon for their intelligibility they multiply faster than rabbits.
I may well think I have a right to my body but it is not clear how that claim can be commensurate with people who think suicide is wrong. If I have a right to my body does that mean as some seem to think that I have a right to end my life when I so desire? Not only does the unlimited scope of rights language seem uncontrollable once the cat of inalienable rights is let out of the bag, there is no way it seems to adjudicate mutually exclusive rights claims. The assumption that I have a right to my body is not that different from someone who thinks they have an unlimited right to their money.
The moral life conceived primarily in terms of rights turns out to produce people who end up shouting at one another by claiming their rights have been violated. John Millbank observes for example if rights for women only means women are to receive their respective shares of use in relationship to men and children the notion of women's rights in terms of self-possession can rebound to a further oppression of women. For example, if only women have rights over the fetus, Millbanks suggests, men as men will naturally exercise their equivalent right to have nothing to do with childbearing or the nurture of children.
Here I disagree with Stanley Hauerwas, or those he makes reference to. There are some real differences between ownership of one's body and ownership of money, the source and transferability of what is owned is different and the meanings of owning money and ones own body are quite different.
You can own money through earning it by your own labor (the use you put your own body to). The ownership of a boss or investor or slave-owner (I'd usually say slave-holder, but will use the common term in this discussion) of the money or wealth produced by those they hold power over, whether "free" workers of enslaved people by the use to which they put those workers of slaves bodies and not their own is a quite different kind of ownership. What is morally indisputable when, as Lincoln pointed out, a Black Woman rightly eats the bread that her own labor has produced is far more disputable when a person who enslaves or holds her in wage-slavery exerts ownership over the very same thing, especially when leaving her starving or destitute.
I will insert that in a very practical and real way, ownership of your money is dependent on ownership of your body but ownership of your body is first and primary whereas ownership of money is incidental to that. Our use of one word for the two kinds of ownership shouldn't lead us to believe that the two things are equivalent. Lawyers and judges often use that confusion to do what they wanted, in the end.
The transfer of money to the ownership of someone else by the one who produced the wealth behind it is not only possible but it is common. You can own money through a gift from someone whose labor earned the money. You you can receive it in a free exchange from the one who earned the money by selling them something or doing them a service (choosing to use their own body to do that).
Or someone can own money through theft, including through legalized enslavement or wage-slavery, which are not that much different from ownership of money through illegal methods such as the various forms of theft and cheating. What is different between the legal and illegal forms of such transfer of money is not much when looked at plainly as a matter of justice or morality where those often are close or equivalent.
But if a practice of slavery is legal or wage-slavery or the various forms of coerced or dishonest swindling, cheating, deceiving and taking advantage of are legal, our legal systems and even those who are robbed themselves are led to pretend that there is something moral about it, that their enslaver or oppressor is "within their rights," which is little different from other sorts of conning of people to cheat them.
Very often under the laws of the United States, under the Constitution, especially as it has been amended by Supreme Court fiat, the rights to the product of your own labor are transferred to those who didn't produce it and under any honest analysis stole it from the ones who did. And when, especially, the investor class of unillegalized crooks and cheats are told they have to pay taxes on their ill-gotten billions to pay their share of maintaining infrastructure and a decent life which they benefit from more than almost anyone else, the whining and weeping and crying over that violation of their conventionalized, Constitutionalized "rights" is pathetic to hear. At least pathetic to the affluent and the media, to most working people and the destitute of any awareness, it's more than a little annoying. At least unless they've been gulled into sympathizing with the rich and famous by TV shows like Celebrity Apprentice.
Money changes hands, its "ownership" is not intrinsic to any one owner. There are certainly other aspects of the ownership of money that could be brought into this discussion that show it is really not much like the "ownership" of one's own body. There is no limit on how much money someone can "own" there is exactly a limit of one body that the possessor of it can own and no one else can ever really own it in the same way. There was a Civil War to establish that principle in U.S. law, the founders certainly didn't hold it and neither did the Supreme Court up to and during the Civil War.
That is in no way like the ownership of one person to their own body. In the case of straight, white men I doubt such issues much come up except in the extreme of a question of suicide no matter how irresponsibly he uses his body, men being the origin of the very issue of abortion that Hauerwas used as an example. Before the overturning of "sodomy" laws, there were such restrictions placed on gay male use of their bodies, though, since the law was largely a product of straight, white, male creation, I doubt there was ever much enforcment of those when it was a straight male doing exactly the same things to women or girls.
I would also disagree with what is said about women's relationship with a fetus which she is carrying in her own body. I don't think the issue of who owns the fetus is the primary fact of an abortion, it is the fact that a particular fetus is contained, inevitably, within a particular woman's body which body she has the primary interest in, unique to her. Which is certainly superior to the interest of any other person, even a man who may have fathered the fetus she is carrying. Even the fetus, if it has rights. That interest does not transfer to any other person, it can't be transferred or said to be transferable except, perhaps, the right of a parent, guardian or other person who can act in the best interest of an incompetent minor Girl or mentally incompetent adult Woman to act in their best interest, health and even preservation of life. Though I would more think that that decision falls more in the area of responsibilities than rights.
That said, I would never put it past men as a gender to try to get out of facing their responsibilities in the fathering of a fetus or child that they don't want to take responsibility for, using any excuse they can to do that. The use of their body in having sex, regardless of the very knowable consequences, despite the consequences for the Woman they might well impregnate unwillingly, give an STD, or cause other harms generates responsibility for the consequences of that use. But the fact is whatever interest OR RESPONSIBILITY that gives him in the bearing of the child, he can't have the same relationship to a fetus he fathered as the woman who is carrying it in her own body for nine months. Men get out of the responsibility for even children they claimed to have wanted and the law has, at times, let them get off. The horrors of Victorian institutionalized infanticide, the "baby farming" referenced humorously in Gilbert and Sullivan was horrific and a direct result of all-male adopted Victorian laws that put all of the responsibility for children born out of wedlock on the woman which led to a long period of increased infanticide and a business in baby selling or, often, killing that was known enough to feature in the newspapers and enter into musical comedy.
After birth, it is quite a different matter and the child has an entirely independent existence that the law can consider apart from the right of either the mother or father and their own bodily ownership but not apart from their use of their bodies in generating the child. They have a responsibility to the child they made. Any attempt to greatly enforce the responsibilities of fathering a child on the male was relatively recent and, if what I've noticed is accurate, not that effective.
I do agree that viewing the morality of suicide solely in terms of the right of bodily autonomy of the one who is trying to end their life leaves out those who care about them, those who may depend on their support (a father or mother of young children) those whose own safety might be endangered by them killing themselves in their chosen manner, those who will be devastated emotionally for perhaps the rest of their lives. Suicide is not an act understood exclusively as the self-determination of the person who chooses it.
And, as I mentioned, the regularizing of assisted, medically administered suicide cannot but have consequences in questions well outside of self-determination, valuations of the worth of lives, the economic or other utility of their death to others, the coercion of that nagging fear of becoming a "burden" on their families, friends or, perhaps most perniciously, "on society." I have no doubt that when "assisted suicide" or even self-administered suicide becomes normal and regular and is sold as a good the results will not be unrelated to those other 20th century "goods" of "the good birth," eugenics, or "the good death," euthanasia which was quite involuntary in almost every case where the state was involved. When your conception of "good" jibes so closely with that of eugenicists and the early stages of the Nazi industrialization of murder, someone should at the very least bring those issues up for serious discussion.
But even given that, I don't know how I feel about the legalization of suicide. Not everything that is morally ambiguous or even a wrong should be the focus of legal prohibition. There are moral issues that the law is incompetent to address and which either should or cannot be legislated. The civil law is a very cumbersome and inaccurate set of tools with which to find, measure or use morality, the clunky manner in which it deals with "rights" is an active front where that not infrequent incompetence becomes obvious fairly quickly. Criminal law, even more so.
There is no interest of the state that is superior to the right of a Woman to decide what happens inside her own skin. The power of the state should end there. Similarly, I think drinking alcohol is at best morally ambiguous and I think it is a bad enough problem that it probably rises to the status of being immoral - you don't have to be an alcoholic to do yourself or others harm by casual drinking - but the experience of prohibition showed that it was not possible to ban its use without a level of control on other behavior that no one should or will tolerate.* In that case the actual drinking is not something that can effectively be regulated by law, though I think public drunkenness should never have been decriminalized. The consequences of being drunk at home are bad enough, being drunk in public only makes that worse. what someone who is drinking does because they are drinking is very much the business of the state and everyone who can be impacted by it. Bringing the question of money into it, the effects of drinking alcohol on other people is sufficient to regulate that and the behavior of those who sell and distribute the alcohol that has those effects, the use of money and who owns it very much a part of that.
I do agree with him about the problem of the multiplication of things designated as "rights" even when they are not called that. I have mentioned the right to lie that the Warren Court gave to the New York Times in the Sullivan decision, the effect of which has been most impactful and totally predictably even in 1964 in the permission to lie about liberals and Democrats in politics. Building on that "right" the right of the rich to enormously fund and multiply and amplify that "right" to lie through the politically effective mass media in the Buckley v. Valeo case in which money was either turned into a "right" itself by the Court turning money into "speech" (named a "right" by the Bill of Rights) ignoring that thereby the Court actually gifted the rich with probably the greatest bounty of such instantly created "right" ever bestowed on anyone, that right not available to those without huge fortunes, created it in such abundance it had to be measured by quantity instead of individually. Put together those "rights" had the power to destroy equality and, with other Court rulings of the kind, democratic government through attacks on elections governed by truth. In later cases, the Roberts Court even extended that right to meddle in U. S. elections to foreign billionaires and even adversarial governments. What the Supreme Court gave with rights such as those, it destroyed as those were applied politically and the Republican-fascists, first in the Congress, then with those put on the court through the results of that court-permitted atmosphere of anti-Democratic lying, took what equality had been won with the blood and lives of Civil Rights workers and others in the hard struggle to rest even the numerated rights listed in the Constitution for those who had not had them.
Similar things can be said about rights created around guns made as previous Courts as well as the Roberts Court rulings have turned the United States into a shooting gallery and rendered policing impotent to do anything to stop it before dozens, scores and even hundreds are shot and killed.
Clearly, though there are problematic areas in this discussion. the discussion itself cannot be avoided because in how they are actually adjudicated and created by courts and as they are commonly thought of and discussed by all of us "rights are divorced from the practices they depend upon for their intelligibility," and that severing has left them unintelligible and when that happens anyone can claim they have a right to do the most terrible things as well as those which are, by comparison, innocuous.
There is no intelligible "right to lie" just as there is no "right to be stupid" or "right to make a fool of yourself," "get smash drunk," be excused from getting suckered by Trump or Alex Jones or anyone else into breaking the law, . . . or any of a myriad of other things I've heard declared to be rights in that multiplication not unrelated to Trump's telepathic rescission of document classification and other loads of bull shit which issues from the Trumpians and the Republican-fascists and the mendacious media that, even when they are officially opposed to Trump, cannot but echo their latest lines of fascist sloganeering.
When lies are granted the status of rights, all meaning is bound to follow that nonsense into the abyss and democracy cannot possibly last or recover while that situation has the status of law.
I think one of the biggest problems uncovered in this is that the very notion of "rights" inalienable or not, and their creation by courts and legislatures and, in the United States in the post-WWII period, anyone who wanted to invent one for themselves, dissolves them by making them an abstraction and then into a mere notion then a whim.
If legislatures or courts can create "rights" then they can uncreate them. If the state of the law, whether legitimately made legislation or through dodgy Supreme Court fiat, determines what is a right and what isn't, then there is nothing durable about "rights". The right to self-determination about what we do with our own body is no more secure than the rights of Jews to theirs in 1940s Germany. I have mentioned the legalistic, moral atrocity of Robert Taft lauded by John F. Kennedy in his truly weird book, Profiles in Courage, when he condemned the Nuremberg Trials because what the Nazis did was legal in Nazi Germany. You would have to be a Harvard level trained lawyer to not see the problem with that kind of "courage."
That's certainly something worth considering when you make the law of the land the arbiter of what is and what isn't a right. Considering the ability of even elected legislatures and, especially, an out of control Supreme Court to do terrible things in that regard, the sloppy, ill defined notion of "rights" that seems to have gotten steadily worse as "rights talk" has abounded, we really need to come to some better notion of what rights are and where they come from. And I don't think there is any better than sloppiness and ill definition to be had from secularism. If that is an intrinsic part of secular governance as we understand it, we had better face the fact of it. I am virtually certain that it is what happens under materialism, especially from seeing the state of "rights" in countries that have either explicitly or implicitly been governed under the ideology of materialism and scientism and societies without any concept that there is something higher than that.
Where I completely agree with Hauerwas is that rights can be a shoddy make-shift for things that are far higher, far more durable and far more inclusive. When "rights" are held to be as far as we can go in determining what is left of moral requirements and behavior, even as a matter of law, things will go to the kind of hell that lawyers and judges and "justices" can administer, give orders to execute, leaving the devastation and injustice thus created to stand as they go home to their affluent lives and the wealthy talking-heads of the media go home to theirs after selling it to a duped, confused public who sense something isn't right about things but who have been deprived of the language to say just what. I never could begin to understand how Ruth Bader Ginsberg could be Antonin Scalia's best buddy on the Supreme Court, considering his depravity. Collegiality is one of the most effective solvents for such a faintly written morality as is common at that level of power. Especially in the Ivy League class.
* Exactly the kind of things that "fugitive pregnant woman" laws in Republican-fascist controlled states and with the blessing of the Roberts Court, putting a bounty on Women who leave abortion prohibitions states to get medical care have become a reality for many Women in 2022. We will, I am sure, see something like what happened in Prohibition reproduced as the post-Roe United States develops and the Roberts-Alito Court reenacts so much of the antebellum court style for us now.
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