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> You can't own human beings, because it violates their fundamental rights. This was true back when slavery was "legal". It really wasn't. We would like it to

by deong 9y ago

> You can't own human beings, because it violates their fundamental rights. This was true back when slavery was "legal". It really wasn't. We would like it to have been, but at the risk of stating the obvious, it's not an inalienable, fundamental right if someone can take it from you without fear of repercussion. Slavery was legal -- the scare quotes add nothing. The difference between legal and "legal" here is just personal ethics. Now, we can of course decide to proceed today as though the laws were never legitimate, and offer reparations, for example. Or in the case of the Nazis, as you mention, to try them for crimes committed in the past. It's worth noting though that the Nuremberg trials were very controversial for exactly that reason -- many people sympathetic with the desire to punish the Nazis were extremely uncomfortable with the idea of trying people for violating international laws that didn't exist at the time of the offenses (or only existed in treaties the Germans never signed). We did it anyway because, well, they deserved it, but it's far from the truth to say that it was a routine application of some tradition in which there are some laws that are so fundamental they need not be stated anywhere. And as a matter of constitutional law, we strictly prohibit doing that in our own legal systems.

anigbrowl 9y ago
Yes, it is an inalienable fundamental right. Your argument is that if it's possible to violate a right, then it doesn't exist, but that's nonsense. People violate others' rights all the time. The concept of a right is not a thing that is self-actuating, but that you can feel morally free to retaliate if your rights are violated. Rights are what you assert for yourself. You can, of course, assert that you have dominion over others, but you'll have to persuade those others to agree with your if you hope to exercise that, which is unlikely but not impossible - churches are full of people who want to be relieved of the burden of freedom qua moral decision-making, and are thus fertile recruiting grounds. Of course you may also assert rights but find them denied by law for one reason or another. In which case you can choose to give up your rights or fight for them at risk to your person. Laws are merely the product of political process, which may or may not be corrupt. If you feel a law is unjust, you're off to a good start because ultimately law is merely the servant of justice, and if you wish to rebel against an unjust law or practice you'll often find many supporters. Rights have a significant moral dimension as well as a legal one, so just because someone denies the existence of your rights doesn't mean you have to obey them. You can defy or subvert their authority, and if your intentions are pure then you should. By pure I mean not being a hypocrite; the broadening of your individual rights is not predicated on the shrinkage of someone else's.
- deong 9y ago
  Rights can be violated, of course, but the key is that there has to be some potential punishment for doing so. If you're in Saudi Arabia and they decide to execute atheists, and they do so with the full approval of the state, then those people did not have the freedom to practice religion as they saw fit. On the other hand, if you steal from someone and they arrest you, then that person had the right to be free from your theft of their property. You can assert whatever rights you want, but they aren't rights until other people agree that you have them and collectively decide that no attempt at punishment will follow you exercising them.
  - maxerickson 9y ago
    I think it's easy to resolve this by being specific. Moral rights exist regardless of legal rights.
    - deong 9y ago
      Yes, but moral rights are my personal view, and don't help anyone. Legal rights actually matter.
      - anigbrowl 9y ago
        What do you mean, they don't help anyone? Your moral consciousness is an extremely powerful thing, which is why repressive governments employ censorship so assiduously. If we consider society in terms of game theory, law provides the rules, but the object of the game is to rewrite the rules through the exercise of power, for which you must employ strategy. The assertion of moral rights is a strategic objective.
  - thraway23 9y ago
    Where do you (and who are you to tell) put the treshold of number of people who have to agree with someone's right? If some mob me on the street, and I'm outnumbered, do I loose my rights in this kind of "vote"? What about when police does it? What about police state? Or maybe "when the president does it it's not illegal"? I have to say I'm astonished by HN lately. I havae not seen so many badly rationalized apoloegtic arguments on slavery in my long life nor in 10 years at HN as these past three months.
clock_tower 9y ago
It sounds like you're saying that the Nuremberg trials amounted to lynching; this isn't true. Western jurisprudence has always recognized rights and obligations that arise from the natural law, and take precedence over any written law. This was the case even in Roman times -- think of the unwritten "jus gentium" in the international context. (China, by the way, also had the same understanding -- although the state was stronger in China, and so was more often able to defy the natural law and get away with it. Look at the long history of Chinese censors, who risked torture and death to remind the emperors of their duties.) And as for "laws that are so obvious they need not be stated anywhere," what's common law if not that?
- deong 9y ago
  The sitting chief justice of the US Supreme Court at the time actually did call it a lynching.
lkrubner 9y ago
About this: "And as a matter of constitutional law, we strictly prohibit doing that in our own legal systems." If you are talking about the USA, this is fairly common, at least in so far as civil cases. Any time the Supreme Court recognizes a new right, it opens the door to new lawsuits based on those rights, which can be retroactively applied. Consider the 1960s and 1970s and 1980s, when the Court expanded rights at a rapid rate. Thousands and thousands of lawsuits were retroactively filed based on those new rights. People who had been victims of racial and sexual discrimination sued to gain justice for decades of abuse. Once the Court recognizes a new right, the assumption is that the right had always been there, since the beginning of time.
- deong 9y ago
  Good point. I was thinking of criminal law.

by deong 9y ago

anigbrowl 9y ago

Yes, it is an inalienable fundamental right. Your argument is that if it's possible to violate a right, then it doesn't exist, but that's nonsense. People violate others' rights all the time. The concept of a right is not a thing that is self-actuating, but that you can feel morally free to retaliate if your rights are violated. Rights are what you assert for yourself. You can, of course, assert that you have dominion over others, but you'll have to persuade those others to agree with your if you hope to exercise that, which is unlikely but not impossible - churches are full of people who want to be relieved of the burden of freedom qua moral decision-making, and are thus fertile recruiting grounds. Of course you may also assert rights but find them denied by law for one reason or another. In which case you can choose to give up your rights or fight for them at risk to your person. Laws are merely the product of political process, which may or may not be corrupt. If you feel a law is unjust, you're off to a good start because ultimately law is merely the servant of justice, and if you wish to rebel against an unjust law or practice you'll often find many supporters. Rights have a significant moral dimension as well as a legal one, so just because someone denies the existence of your rights doesn't mean you have to obey them. You can defy or subvert their authority, and if your intentions are pure then you should. By pure I mean not being a hypocrite; the broadening of your individual rights is not predicated on the shrinkage of someone else's.

deong 9y ago
Rights can be violated, of course, but the key is that there has to be some potential punishment for doing so. If you're in Saudi Arabia and they decide to execute atheists, and they do so with the full approval of the state, then those people did not have the freedom to practice religion as they saw fit. On the other hand, if you steal from someone and they arrest you, then that person had the right to be free from your theft of their property. You can assert whatever rights you want, but they aren't rights until other people agree that you have them and collectively decide that no attempt at punishment will follow you exercising them.
- maxerickson 9y ago
  I think it's easy to resolve this by being specific. Moral rights exist regardless of legal rights.
  - deong 9y ago
    Yes, but moral rights are my personal view, and don't help anyone. Legal rights actually matter.
    - anigbrowl 9y ago
      What do you mean, they don't help anyone? Your moral consciousness is an extremely powerful thing, which is why repressive governments employ censorship so assiduously. If we consider society in terms of game theory, law provides the rules, but the object of the game is to rewrite the rules through the exercise of power, for which you must employ strategy. The assertion of moral rights is a strategic objective.
- thraway23 9y ago
  Where do you (and who are you to tell) put the treshold of number of people who have to agree with someone's right? If some mob me on the street, and I'm outnumbered, do I loose my rights in this kind of "vote"? What about when police does it? What about police state? Or maybe "when the president does it it's not illegal"? I have to say I'm astonished by HN lately. I havae not seen so many badly rationalized apoloegtic arguments on slavery in my long life nor in 10 years at HN as these past three months.

clock_tower 9y ago

It sounds like you're saying that the Nuremberg trials amounted to lynching; this isn't true. Western jurisprudence has always recognized rights and obligations that arise from the natural law, and take precedence over any written law. This was the case even in Roman times -- think of the unwritten "jus gentium" in the international context. (China, by the way, also had the same understanding -- although the state was stronger in China, and so was more often able to defy the natural law and get away with it. Look at the long history of Chinese censors, who risked torture and death to remind the emperors of their duties.) And as for "laws that are so obvious they need not be stated anywhere," what's common law if not that?

deong 9y ago
The sitting chief justice of the US Supreme Court at the time actually did call it a lynching.

lkrubner 9y ago

About this: "And as a matter of constitutional law, we strictly prohibit doing that in our own legal systems." If you are talking about the USA, this is fairly common, at least in so far as civil cases. Any time the Supreme Court recognizes a new right, it opens the door to new lawsuits based on those rights, which can be retroactively applied. Consider the 1960s and 1970s and 1980s, when the Court expanded rights at a rapid rate. Thousands and thousands of lawsuits were retroactively filed based on those new rights. People who had been victims of racial and sexual discrimination sued to gain justice for decades of abuse. Once the Court recognizes a new right, the assumption is that the right had always been there, since the beginning of time.

deong 9y ago
Good point. I was thinking of criminal law.