Xunian - I think I have a fair idea of your position - that in a western-style democracy, for example, rights are required for practical reasons. And that they are manmade. Certainly the U. S. Constitution requires them, so any alternative I propose within that context would run counter to the present sensibility in the U. S, and of course other similar states. But that’s okay - philosophy is often prescriptive.
Firstly, some of the more salient problems with rights. One is that they are never, in practise, absolute, which causes some practical problems (albeit not insurmountable problems, by themselves). The right to life would be reasonably abrogated by most when an issue of self defense were present, to name a reletively easy case. But self defense is not always cut and dried. To be sure, we needn’t start with specific cases, for we seek a general rule, but moral rules must always be checked against their results. In effect, all ethics is situational ethics. No one would want to live in a society that precludes all killing. No one has, either, just in point of fact. If you are completely pacifist, you will eventually be wiped out, in which case you morality is as extinct as you are, and doesn’t matter any more.
The laws of a given state are, in most cases, more specific than moral rules, but less specific than the outcome of their administration, in that specific cases are regulated by several mechanisms - custom, the extant court system, popular opinion, the specific judge and jury, the quality of legal representation, the press - especially so where civil liberties - rights-specific cases - are in play. Is a specific murder going to be tried as a hate crime? Does the appeal reach the Supreme Court? Is the sentencing (the penalty for the crime) set in stone, or does the judge have leeway? Does the jury decide the sentence? These are all variables that effect the actual outcome.
This is important because, while we have taken care to include duties within our discussion of rights, we have so far not included the penalty for the transgressions against rights. When we do, the notion of rights get much cloudier than it is at first. Every moral judgement, every moral mechanism, of which rights are one, must take into account the penalty, for it is the result, or consequence, of the exercising of the right. This is why Kant doesn’t “work”. Why Rawls doesn’t (although Rawls is an improvement over his mentors - as was cogently pointed out in another thread lately).
Jettisoning rights, and relying on rules, as some Uitilitarians did, is much better. But unlike Utilitarianism, the Social Contract, when stripped of the metaphysics of Rousseau, Kant and Rawls, allows for a true and self-aware responsibilty by actual humans. It allows for evolution - it breathes. A Social Contract need not be bilateral, or multilateral (although this seems preferable) to have this characteristic. It just has to be formulated by humans, for humans, without any metaphysical mumbo-jumbo involved.
It is a tired analogy, but sports generally serve here as an example. There are penalties for infractions, without the notion of rights being necessary. Many infractions can be expressed in terms of rights, but they need not be. If you cheat, it is not important who it is you cheat - the persons do not have rights - only the game does (I mean this figuratively). The violations, when they occur, are seen as being against the rules, and not against the players.
And this is the difference. A Social Contract can be a set of rules, which must be followed. If they are not, it is the rules that are imposed upon, not the individuals. There is no need for rights. If rights evolve by custom, then they are ancilliary to the rules - a result of the rules - as opposed to natural rights, which logically precede the rules.
If child education is mandatory, if that is the “right” of every child, it is for the common good, and not for that child. (This is the common argument against childless folks who do not want to pay school tax.) The child’s rights need not be seen as being abrogated, but the society’s as a whole. If the rules are for the benefit for the group, then no individual’s welfare need be in play as a principle, although the outcome may often be similar to a rights-based social policy. This is not utilitarianism, for the majority is not the object, but the whole. There is a big difference. Utilitarian mechanisms would surely be used - this utilitarianism was not invented, but its precepts observed, and then (over-) developed. Nor, as I say, are rights precluded - they are simply not fundamental.
I would appreciate your comments, Xun, as you seem to have a good grasp of the issue.
faust
