“…all, and only, humans have rights.”
(Carl Cohen’s view as presented by Tom Regan, Animal Rights, Human Wrongs: An Introduction to Moral Philosophy p. 112)
“To give preference to the life of a being simply because that being is a member of our species would put us in the same position as racists who give preference to those who are members of their race.”
(Peter Singer Practical Ethics)
“Mother Earth and all its components, including human communities, are entitled to all the inherent rights recognized in this Law. The exercise of the rights of Mother Earth will take into account the specificities and particularities of its various components. The rights under this Act shall not limit the existence of other rights of Mother Earth.” (Law of Mother Nature Article 5, Bolivian Law)
It may come as some surprise when I say this, but our understand of what we mean by “rights” is a mess. There are few topics as important for political discourse and, I would claim, no topic as murky and confused in our thinking. In fact, I don’t ultimately think that we have much grasp at all about what a right is or where it comes from. It is my suspicion, however, that a pagan perspective brings surprising illumination to this problem. I hope, in this discussion, to offer some suggestions of how this might be the case.
I think I can demonstrate to you the murky nature of rights talk fairly easily. Take a moment and attempt to explain to yourself directly what rights exist, where they come from, who has them and why only those (neither more nor less) exist. Or, consider for a moment the seemingly interminable arguments that immediately occur whenever the question of a right’s exist or non-existence comes up. Can you offer a clear and applicable principle that allows you to determine real from false rights?
Before I risk promoting too much confusion, allow me to limit the scope of our discussion. Rights can be divided into various categories, some easier to address than others. I will rely upon two fairly simple categories, though others can be offered and the seeming simplicity covers over some deep problems. Rights, for our purposes, can be Natural (or Universal, or Implicit, or Inalienable) or Legal. Natural rights are understood to exist in any context, free of any political framework or foundation, and are thus found everywhere despite temporal, cultural, or political differences. In turn, these natural rights are understood to legitimize political systems.
Legal rights, on the other hand, depend upon various political and legal structures for their existence. To offer a fairly simple example, life (or human life) is a fairly noncontroversial natural right while the right to trial by jury is a legal right. Trial by jury cannot exist without a functioning political framework and we could perhaps imagine other social forms to fulfill the legitimate demands of justice other than trial by jury. However, trial by jury is a social and legal framework justified by its fulfillment of the demand offered by certain natural rights (i.e. life and liberty are supposedly insured by it, and so the natural rights provide the argument for the legal rights). So, legal rights are socially and historically contingent but legitimated by natural rights which are not contingent.
You can see how this reliance of legal rights on natural rights functions by looking, for example, at key rulings by the Supreme Court of the United States of America. The ruling legalizing abortion (“Roe vs. Wade”) justifies the legal right to abortion by appeal to the “right to privacy” which, in turn, is understood as a subset of the natural right of liberty. The recent ruling legalizing marriage equality in all fifty states (“Obergefell vs. Hodges”) bases a right to marriage on various rights such as self-expression which, again, it ties back to the basic natural right of liberty.
Now, we can sometimes feel like we have a pretty good grasp on what is and is not a right because many of our legal rights are clearly delineated in political documents and processes. But this is hardly sufficient, especially since rights talk comes up most frequently when we are trying to address cases of systematic injustice in which the existing political framework, it is claimed, has failed in some way. The most powerful and important point, then, is where natural rights connect to and justify legal rights. This is also the ground most fought over. So, for example, people have argued for years following “Roe vs. Wade” that there is no right to privacy and so no right to abortion. Justice Scalia, in response to the recent marriage equality ruling, has argued that there is no right to self-expression and so no right to marriage.
Allow me to offer one further example of the contested connection between legal and natural rights. You can find arguments that there is a right to education and a right to healthcare. These rights are, in turn, vehemently rejected by others. The argument in favor of these rights relies, most often, on natural rights. The rights to life and liberty are meaningless when one is dying of a curable disease or when one lacks the necessary education to make meaningful and effective choices in one’s own life or in the political processes of one’s community.
So, of the flood of rights mentioned above (privacy, abortion, self-expression, marriage, healthcare, education) which do or do not exist and why? This is a hard enough question for legal rights or those seemingly existing between nature and the law (privacy and self-expression for example), but things get worse when we go to the heart of the issue and ask which specific natural rights exist, why, and where they come from.
In light of the standard practice of justifying legal rights by means of natural ones, our real topic here will be natural rights. My ultimately question is drawn from the quotation with which I opened this discussion. I wish to ask, “Do only humans have rights?” Or, as Ecuador and Bolivia for example have enshrined in their legal systems, does the earth itself have natural inalienable rights? This would include, in turn, the more narrow question of whether animals have rights though I am just as interested in the question of the rights of plants, environments, mountains, seas and so on.
Considering my audience, I don’t actually suspect I need to convincing you that entities other than humans have rights (except, perhaps, for those of you who don’t accept rights talk at all – a position for which there are some very strong justifications). However, despite an assumed general agreement, I do suspect that we aren’t nearly as clear about justifying our claims as we could be. So, I am not really preaching to the choir (or, better, coven) because I think the justification of our claims is what we need to focus on.
To figure out what natural rights do, or do not, exist and who or what can be a rights-bearer it is necessary to come to some understanding of where these natural rights come from. The history of the concept of natural rights, at least in Western European thought from which most rights talk draws its foundation, stretches from the Ancient Stoics, through medieval religious thought, to the modern social contract theorists such as John Locke, Jean Jacques Rousseau, Thomas Hutchinson, and Thomas Hobbes. Within this tradition we can find, roughly, four answers to the question of the origin of natural rights which go along with various ways of testing whether something is a right, though frequently these answers overlap in complex ways. I would like to briefly look at each of these in order to get a sense of their inadequacy.
1. Reason as Natural Law
The Stoics never actually argued for the existence of natural “rights” but they did argue for the natural equality of all humans. Their argument rested on several key elements. First, all nature was understood to be ordered according to an overarching order or law. Second, this law was divine and was identified as reason. Third, human reason was a privileged part of this divine natural order, in fact reason made us partially divine.
This line of thought leads to two related conclusions. First, to the extent that we have reason we are equal. This is, in fact, the origin of the idea that natural rights are inalienable (in other words, we can very literally never lose them). If you reflect on the idea of inalienability you can see it is a rather odd idea. Can’t I be chained up? Or killed? Don’t I lose my rights in these cases? The answer is “no”. For the Stoics, and the “inalienable” traditional that follows from them, as long as we can reason we are ultimately free. Even if my body is in chains, the most important part of me – my divine reason – is free. This, incidentally, provides the basis for some Stoics to actually support slavery and social inequalities of all sorts! Because what matters is reason, nothing social inequality does to us can touch our real freedom and equality. Many of the Stoics, as you might suspect, were surprisingly conservative in the outcome of their thought.
The second conclusion to be drawn from the Stoic view is that the source of our knowledge of rights is reason as well. This hooks up with inalienability to provide us with a test that can be applied to rights. If you think something is a natural right, ask whether it is inalienable. If it isn’t, you have no right to it. In other words, nothing worth having can be lost and nothing we have a right to can be taken away. This view is also, obviously, anthropocentric and even falls short of providing rights to all humans since some lack reason. So, for the Stoics, only, but not all, humans have rights (with the addition of gods and any other entities with reason).
The development of these ideas leads to what we find in Locke and Thomas Jefferson. Natural rights are inalienable and uncovered by reason. Both reject the Stoic test as too limited, and instead rely upon the self-evidence of rights. We don’t, in other words, need a test for what counts as a right because our natural rights are immediately apparent and obvious to the view of reason. Jefferson doesn’t try to prove we have natural rights, he claims he doesn’t need to. This has largely landed us in the mess we are today, with generally no system for determining what is or is not a right. Jefferson and Locke also change the sense of inalienability used by the Stoics. For them, a natural right is inalienable because even if the practice of that right is taken away our claim to that right always remains. We always deserve and can demand life and liberty even when we are deprived of the use of them.
The Stoics, Locke, and Jefferson -as well as the long medieval tradition of natural law theory- all base the origin of rights on a certain conception of the divine. This conception is ultimately monotheistic (the Stoics believed in one ultimate divinity despite the existence of sub-deities) and anthropocentric (in each case we occupy a special position at the head of most or all of nature due to our possession of reason and/or special selection by god).
It is important to stress that contemporary rights theory goes beyond the basis of God in very specific ways. First, and most obviously, natural rights do not rely upon a shared religious background for justification. Second, neither the Stoic nor Biblical god provides a basis for rejecting the social inequality of men and women or the practice of slavery. The Bible clearly supports slavery. In fact the New Testament, which was heavily influenced by Stoic thought, offers arguments in favor of slavery very similar to those found in Stoicism. Most go something like this: social distinctions are natural and divinely willed so it is our duty to rationally fulfill the social roles and positions we find ourselves in, including the role of a slave. This allows both Stoics and the Biblical Paul to assert that a good slave must obey its master and so on. Locke followed the monotheistic reasoning underlying natural rights rather carefully and ended up arguing, at least partially based upon it, in favor of both American slavery and the wholesale theft of land from the Native Americans (see, for example, this excellent recent analysis of Locke’s failures).
Finally, it should be noted that by far the longest use of divinely ensured natural rights was to support the divine right of kings and firm social hierarchies. This shouldn’t be surprising. I have often challenged my students to explain to me why a monarchical metaphysics with a divine all-powerful dictator should be compatible with anything other than a form of political tyranny. It’s a difficult question and not one that all forms of paganism can easily avoid.
Interestingly, the history of natural rights theory hasn’t been particularly focused on nature. Nature has seemed to required the underwriting of “nature’s god” and/or reason. Despite that, we can detach something of an argument-from-nature from natural rights literature. We can derive from the thought of both Locke and Hobbes a sort of principle for deriving from nature a list of rights. Rights would be, on this reading, those things which a living entity naturally feels are its own. So, in nature we fight for our life, our freedom of movement, our family, and things like food and shelter that we have gathered for ourselves. Our instinctive defense of these things marks a natural knowledge of a right to them. From a traditional view, the failing of this thinking is obvious since it doesn’t set humans off from animals who also defend all these things. For this precise reason it is more promising for us. Locke deprived of his Biblical god and the superiority of reason would be left with an argument like this alone. This can be expanded into a capabilities view, similar to that of Martha Nussbaum, that might assert that a natural entity has a right to develop its natural capabilities. Our sheer having of capabilities is a signal of a right to them and their expression/development.
4. Pain and Pleasure – Utilitarianism
Strictly speaking, Utilitarians don’t accept the existence of natural rights for various reasons, but we can talk of something very similar to a rights conception in Utilitarianism based on a limited type of capabilities view. For the utilitarian theorist only one thing is absolutely good, namely pleasure or happiness, and only one thing is absolutely bad, namely pain. This lays a universal obligation upon us to increase, as far as possible, the amount of pleasure or happiness in existence and to decrease the amount of pain. This is, in fact, the basis of the argument by Peter Singer I quote from at the start of this discussion. Animals, as capable of pain and pleasure, are part of our obligation to lessen pain and increase pleasure and might be said to have a right to this type of consideration. Animals have a right to have their suffering and happiness taken into account. Plants, mountains, seas, and so on are not obviously capable of pain or happiness and so do not enter into consideration beyond their instrumental relationship to animals and humanity.
5. No Natural Rights
I should add a brief consideration of the view that there are no natural rights. We can, briefly, present this in at least three main ways. If we understand a right to mark a limit, a space or possession that cannot legitimately be invaded or taken away, then the following three views might be raised. Rousseau suggests that since the state of nature is one of natural abundance and simplicity no natural limits exist, or need exist, between people in nature. It is society that, giving rise to pride and greed, creates property, scarcity and, domination and so necessitates rights. Hobbes argues something like the reverse. In the state of nature all entities have the power to do whatever they wish and so the right to do so. Because all action is a natural right for him, in this sense, then it makes no difference to say either that there are no natural rights or that everything is a natural right. Both lead to Hobbes’ famous “war of all against all” in the state of nature. Finally, since the utilitarian thinks that we must balance the good of the greatest number of entities capable of happiness against any individual concerns there are no predetermined limits protecting the life, liberty, capabilities or goods of any given individual. The majority, the famous “greatest number”, might be said to have rights but no given individual does.
A Pagan Conception of Rights
How can a pagan perspective assist us in the challenge of making sense of the origin, nature and limits of rights? We must first state that we don’t have many historical precursors to work with. Clearly much of pagan history hasn’t been particularly promising when it comes to individual freedoms or social equality – with, of course, rather important exceptions such as many Native American and traditional African cultures. Our strongest precursor might be taken to be the Stoics but, for many reasons, I do not take them to fit fully into a pagan worldview. So, we can’t really ask what pagans have historically had to say about rights. Instead, we must take key elements of several forms of paganism and attempt to work out their implications for natural rights theory.
The first thing we might note deals with the traditional derivation of natural rights from reason and god. The nature of the god in question leads almost inevitable to the focus on reason. For the Stoic, the ultimate god and reason are all but indiscernible. In fact, the Stoics often called the universal divinity, universal law/reason, and human reason by the same Greek word – they called it the Logos. Logos is originally the Greek term for “word” but it came to mean reason amongst many other things. The Old Testament of the Bible reflects a similar view, whether through syncretism or chance, and the New Testament directly plagiarizes from the Stoic view. Thus, in the Old Testament the god of the Bible speaks creation into existence and the “Gospel of John” starts with an almost entirely Stoic claim that “In the beginning was the Logos, and the Logos was with God, and the Logos was God.” In this context the divine essence of reality will be located in the intellectual, rational, linguistic spheres of existence. This is also connected to the transcendent nature of a divinity external to creation, a transcendence that will frequently carry over into the rational part of humanity through a rejection of the body and physical nature in general.
The focus on reason and linguistic communities embodied in the natural rights tradition makes a very clear appearance in contemporary arguments about what can, and cannot, be a bearer of rights. Carl Cohen, a long-standing opponent of animal rights arguments, affirms that to have a right means to be able to assert a claim upon others while recognizing your own obligation to respond to their claims. In other words, only members of rational linguistic “moral communities” can be understood to have rights. It is clear to Cohen, though not to many of his critics, that only humans can make rational moral claims upon others and recognize those claims when they are made upon them. In other words, whether or not something has rights and what those rights are has everything to do with intellectual and linguistic capabilities.
In sharp contrast, consider the pagan worldview of Hesiod’s Theogony. In this origin story the cosmos arises out of the sexual and asexual bodily reproduction of families of gods. These gods, and the evolving universe they form through their reproduction, are largely inseparable from bodily nature. There is importantly a deep identity between much of nature and its divinities. To appreciate the importance of this, ask yourself whether the Biblical god can be understood to have rights. It’s an odd question because the answer is that the god of the Bible probably has all rights, or rather absolute right. What would this imply, then, for the rights of a natural world made up of gods in ever more various proportions and hierarchies? To cultures for which the divine is frequently also embodied and natural, rather than spiritually transcendent over nature, the world around us makes constant demands upon us in a manner very like the way traditional rights bearers do. Rivers and mountains, ancient trees and unplowed fields, all make legitimate demands for various types of respect.
A pagan theory of rights, then, will not be focused upon reason or, necessarily, a divine law-giver’s plans and demands upon a tightly structured cosmic hierarchy. The hierarchy of divinities, cosmic forces, and realities within the pagan worldview tend to be partly natural and partly political in nature. Zeus, for example, plots and fights both to gain his position and to maintain it. Even his power, however, is tentative and maintained by the overall balance of politics amidst divinities and humans.
The overlap of nature and divinity in a pagan view presents a unique opportunity. For once we might fully turn to nature for guidance about the origin and extent of natural rights. What is more, it is clear that though our pagan worldview might direct our attention to nature we need not depend upon divine revelation or dictate for our understanding of rights. Paganism might teach us that nature is divine and lays demands upon us but a pagan faith is not necessary to accept the conclusions we can draw from this.
Let us conceive the cosmos, and all its subsystems from planets to seas to mountains and so on, to be living much as the Bolivian “Law of Mother Earth” does – in other words let us embrace animism or pan-vitalism. We can begin to approach this by means of the capabilities view mentioned previously. We start with animals and plants, recognizing that each has a set of capabilities and impulses it seeks to express and fulfill. All things being equal (which, of course, they never are) each thing has an implicit right to pursue the path of its growth, life, and death. To put it as simply as possible, taken in isolation each thing has a right to exist.
But, despite the tendency towards what we might call biological chauvinism, not only organic entities express a nature and follow a path of development and change. All things individually express a type of nature and, collectively, take part in nestled interdependent systems. There is a Zen art dedicated to finding and appreciating examples of “perfect” stones, in other words stones which best capture the nature of being a stone. These won’t be polished gems or dramatic outcroppings, but rather simple stones that somehow express in an exemplary way the basic nature of being a stone. While any debate about what this nature is might be interminable, just like debates about the ultimate nature of humanity, nonetheless it doesn’t seem absurd to attempt to better grasp what the nature expressed by stones (or any other natural entity) might be. And it also doesn’t seem absurd to suggest that when such a stone is ground into gravel or melted for industrial purposes something has been lost and some wrong may have been done.
When I was a child my neighbors cut down an oak tree that had lived for several centuries. I cried inconsolably, filled with a sadness and anger that told me at a basic level that something terrible had been done – an important obligation had been broken and an important good had been destroyed. Who were they to so casually dismiss an entity that was old before their ancestors had even come to this county? I recently went hiking in Prairie Creek Redwood State Park and there, amidst trees that were massive before the supposed birth of Christ, one can’t help but feel an overpowering awe and need for respect and even worship. Not only do these entities have a right to exist, they have a dignity that goes along with an imperative that this be respected.
While we often think about rights in terms of purely negative limits on the powers of others, rights go along with responsibilities and obligations. A right to life or liberty demands that I respect these same rights in others. But, more than this, a right to life or liberty also lays an obligation on my shoulders to facilitate the living and freedom of others. It is not, as many libertarians might think, purely a right to be left alone and let everyone else alone in turn. Rights are expressions of communal membership, of being part of a dynamic system seeking to further its own development. Rights are the mark of our position in an environment, in nature. The sheer right, then, that I have to my existence and self-development is mirrored in my obligation to protect and pursue the existence and self-development of the world of which I form a part.
Allow me to restate the previous points in a more schematic form for the sake of clarity. Informed by paganism, but without need to rely upon it for justification, I argue that:
1. To the extent that animals fight for their lives and development they express a right to existence and self-expression.
2. Plants, similarly, strive to grow and survive, expressing the same right.
3. Even non-biological entities are self-sustaining systems which resist certain changes and, when they change, change in a manner uniquely expressing their nature and so they, too, express a right to existence and self-expression.
4. Collectively, these elements form larger complex systems which, in turn, strive to change in various ways and resist other changes and so express the same natural claim to rights.
5. These rights are nestled, one within another, and interconnected such that no purely individual atomistic right to be left alone is feasible. Rather, rights imply collective responsibility and obligations one to another. Some entities fulfill or fail these obligations without rational thought or consciousness, others do not, but the distinction is not particularly important.
6. All existence is a drive to be, and to change, which assumes and must be granted a basic legitimacy.
Nature’s Rights: The Model of Art
The philosophy Hans-Georg Gadamer argued that when a work of art is created, Being itself is increased. Similarly, sculptors frequently describe their work not as forcing material into some shape but rather as releasing and realizing the potential form that was already present in the material. The sculptor assists the object in its development and self-expression. Arguing for the rights of nature leads to some exceptionally difficult problems which the enriching nature of art might help us address.
If each thing, due to its sheer existence and path of development, has a right to exist a libertarian understanding of rights might lead us into a rather striking form of nihilism. From this view I can do nothing, can change nothing, without doing wrong. The ant I unknowningly tread upon today has been wronged. There is something right, I would argue, about elements of this view. All existence comes at a price to those things existing around us and many elements of the way most of us live today accentuate this price to unjust proportions. But, ultimately, the message of the rights of nature is not that all existence and action is wrong but rather that all existence and action comes with responsibility. As parts of an interwoven cosmos seeking to joyfully express its nature there is no exit from responsibility – we are, as Dostoyevsky puts it, “responsible for all to all”. How can I eat and end the life of the entity devoured? Only with a firm acceptance of my obligation to express more fully in my life the potential of that entity and a respect for its sacrifice.
It may be that in some art the material is devoured, destroyed in the making, but in the best art – in the truest art – the material comes more fully to life and expression. Art is the act of freeing the potential of what is, of augmenting and nurturing the growth and expression of existence, and it is this that nature demands of us. Neither master and engineer nor illegitimate interloper, we are part of nature’s living and called to take our part with loving devotion to the value of each and every other participant be it tree, stone, bird or star. This means, of course, an end to easy answers. If my interest is in having a nice clear list of forbidden actions and obligatory actions I am going to be much disappointed. We should not be surprised at this, as responsibility comes hand in hand with the obligation to think carefully and risk failure.
There is, at the most basic level, one natural right and it is shared by all things: the right to exist as a process of self-expression. It comes united with an obligation: the obligation to respect and assist the existence and self-expression of each thing around me. Sometimes this obligation will involve killing and destruction but only in service to a greater expression of being. But most often it will involve nurturing and a loving service to the world and cosmos of which we are children.
What is Property?
There are several practical and legal implications of this view but what I intended as a brief discussion has already gone on for too long so I will rest content with mentioning what is likely the most dramatic and controversial. What does the right to existence and self-expression imply for other traditional rights? Most importantly, it implies that our concept of property and the right to it is deeply flawed.
Locke, and recent libertarian thinkers such as Robert Nozick, derive the right to property from the right to life (or existence, as I have been calling it). The idea is this: the right to life is a basic property right. I own my body and this body cannot be taken from me. This then leads to the right to liberty, as my ownership over my body also means that my use of this body (with rather striking exceptions for Locke) cannot be limited. Now, when I work I use my body to transform something else. I invest some of my body – namely bodily energy and work – into the thing transformed. This makes the thing created part of my body in a limited sense. I have invested bodily life and so the thing becomes an extended part of my bodily life. When I work to grow apples my use of my body in the work makes the apples part of me in a very limited sense, so my basic right to ownership over my body extends to the thing produced. (Interestingly, this is also the basis of much Marxist thought mediated through Hegel’s adoption of similar conceptions of work through which the world becomes an expression of the self and, as it were, a second body. It is also worth noting that this is the basis of Locke’s argument in favor of taking land from the Native Americans. They didn’t work the land, he claimed, and so didn’t gain ownership through transformation of it.)
The view I have presented contains a different conception of both work and the natural world, largely because of the rejection of anthropocentrism. When I grow a tree it is as much the case that my body becomes part of the tree, part of its process of self-expression. The tree “owns” me just as much as I own it. But, even the concept of ownership is off here. From a perspective that does not prioritize reason and, connectedly, the mind-soul over the body and natural existence then I can’t be said to own my body. I am my body, it is not property. Similarly, without anthropocentrism, we are not tempted to see the world as a collection of raw materials for use such that I can imagine making the tree, or anything else, part of myself without any thought to its own individual existence. The tree and I might be in partnership, but it does not become me and I do not become it. We are part of something larger, but neither dominates in the manner required for ownership. Furthermore, the tree is also in partnership with things other than myself which belies any claim to an exclusive relationship with it.
My right to self-expression includes my right not to have my partnerships unduly interfered with and broken. You can’t come along and chop down the tree I have worked to grow without weighty reasons, but it is wrong to think that this entity with an existence and nature of its own is “mine” in any robust sense or that my relationship with it overpowers all other relationships it has. I have a right to have my relationships respected and protected, except when those relationships become unjustifiably abusive, dominating, or destructive. So, in an interconnected world viewed through the lens of the right to exist, the right to relationships replaces rights to property.
Kadmus is a practicing ceremonial magician with a long standing relationship to the ancient Celtic deities. His interests and practice are highly eclectic but a deep commitment to paganism is the bedrock upon which they all rest. Kadmus is also a published academic with a Ph.D. in philosophy teaching at the college level. You can find some of his reflections on the occult at http://starandsystem.blogspot.com/ or look him up on twitter at @starandsystem.