Does Society Have "Rights"?

This is an odd question and one that would have been answered differently in the past. If we were to go back into the not-too-distant past, we would find that important conservative thinkers -- such as George Grant -- argued that it did. They would not have used a different language but they would have used words like "public good" and "nation" in place of rights and society but we would be in the same ballpark. It was precisely for this reason that Canadian governments undertook economic development projects or promoted electrification or better roads. The basic idea was this: society (the nation, the province, the people) had interests that transcended those of individuals. It was these bigger issues (national defence, for instance) that we could think of as a proper -- but not the only -- sphere for government acting for society, or the common good. 

Today, we have run into serious problems with this line of reasoning. Part of it is what Michael Ignatieff called "rights talk" that is: a form of discourse suggesting that if rights can simply be respected and enhanced, all of our political or economic or social problems will be solved. I'll address this contention in a more sustained way in a future post because it has taken on odd forms and so reviewing what we can see as some of the limits of right is worth doing. For now, however, let's content ourselves with a different kind of question: does society have rights? 

At its worst, discussions of "society," what it does, its effects, etc., have become a bit of a caricature. The idea that "society" is responsible for crime or other social problems has been pilloried by neo-liberals and right wing populists to the point that it is difficult to have a conversation about the subject. References to something being "society's fault" are often dripped in sarcasm.  It is a short step from a rejection that there could be social determinants of, say, behaviour, to rejecting the idea that society has interests that should be respected. Under Covid, we have seen some extreme forms of this (a subject I've been trying to address in other posts). Here, the opponents of public health measures have tried to argue that they should have no force and effect because they infringe on individual rights. This argument is constitutionally shaky. It is not a good argument and has very little to recommend it in terms of constitutional law. The key point, however, is something different: we have seen that there is a very small but significant body of people who believe that their rights as individuals must necessarily stand above and nullify collective rights, including provisions for public safety. 

We don't have time to over everything that could be wrong with this subject and I want to approach it from a different direction, anyway. Instead of asking if this is true, what I want to ask is this: do you believe that there is no such thing as the public good? I can almost hear someone say "sure, but public good is best realized through individual rights. Circumventing or limiting individual rights harms the public good." Let's not dismiss that argument because there are merits to it. Due process of law, for instance, is vital to the public good and it is an individual right. Free speech is vital to the public good and it is an individual right. Equality is an individual right and vital to the public good.

I want to make these arguments because I have often worried about the reverse argument: that we need to discriminate against specific people in the public good. Those who are old enough will remember that this was an argument often used to justify discrimination against gays and lesbians. We can't have equality in marriage because it is not in the public good. I've heard people argue against settlements for the victims of residential schools, and humane policies for refugees on very similar grounds. I recall in college a particularly horrible moment where a friend argued that a group of refugees should be deported (regardless of their future life prospects) on a similar ground (it was not in the public good to accept refugees). In each of these instances, breaches of equality, or rights, or simple humane behaviour are justified in the name of the public good. And, have you noticed that in each of these instances, and many others I can think of, the public good is defined in a way that reinforces the inequality of already marginalized groups: Indigenous Peoples, refugees, members of the LGBTQi community. 

It seems to me very important to bear this in mind before we too quickly reject arguments about individual rights. I don't. In previous posts, I've tried to argue for individual rights but also for what I would contend is a correct understanding of individual rights. Individual rights, I have argued, are not licence to do whatever you want. There are limits to them and those limits are reasonable and widely accepted. The key example that is always used is "yelling fire in a crowded building" when there is no fire. In this instance, needlessly endangering the lives of others for one's own amusement is not a right, but (a) a threat to others rights (their life, safety) and (b) a crime (making a false statement that recklessly endangers others' lives). Likewise, an example I've used before is that I cannot use my free speech to spread lies about my neighbour because, say, I don't like her business and want to drive her into bankruptcy. Here again I am treading on her rights and breaking the law. 

Rights are then (a) vital to the health of society (and often a needed protection for marginalized social groups), but (b) not a licence to engage in any behaviour one happens to want.

Where does this leave a discussion of society's rights? In several places. First, I suspect that my discourse is weak and inhibiting my ability to make the points I want to make. If you have suggestions to improve it, I will take them. Second, it leaves us thinking about boundaries and limits. Does a social perspective necessarily harm the rights of others. It clearly can. Those people who tried to turn back gay marriage because they believed it harmed society were clearly saying that we should not respect the equality of certain people. These people will be lesser citizens that do not enjoy the same rights as straight people. But do all limits have that effect? Could some be reasonable and could some even help advance individual rights? 

In a previous post, I tried to make precisely this point. Collective actions -- taken by society through the state -- can become a mechanism to enhance individual rights. In other words, counterposing individual rights against collective action mystifies an important link between the two. Let's take due process of law as an example. It is a good example because due process of law (the right to trial, to know charges against you, to defence, against arbitrary imprisonment, etc.) is rightly widely viewed as fundamental a democratic order based on the rule of law. 

Yet, in this example, you can see that the individual proclaiming their right by themselves won't get very far. In point of fact, we have an entire apparatus of state that is set up to ensure the smooth functioning of due process. We have lawyers and crown attorneys, legal aid, written judgement, independent police forces that are not run by crown attorneys, autonomous judges, the news media, etc. It is all of these social actors -- of this collective action -- that makes due process of law (and likely much more that I have not thought about) a reality. Without it, it could quickly descend into wishful thinking. Don't believe me? It has happened elsewhere. 

I'll leave off on this point and address other issues in subsequent posts. What it means, however, is that we need to protect society's rights (only some of which I have listed above) in order to ensure that individual rights are protected. We need to ensure vibrant social institutions and legal institutions. Individual rights don't ipso facto make for a good society. But, without protecting these elements of our social order, individual rights would remain at best fragile.