Rights are often in conflict and there’s no reliable calculus that determines which of them should prevail. That’s because rights aren’t about utilitarian calculation. They’re a fly in the ointment of the collective, an essential counterbalance to the crude maximisation of human happiness and the crude minimisation of human suffering, which, if you’re just subtracting one from the other, can justify appalling cruelty to an individual as long as the sum of happiness is great enough.
Rights are fundamental to any moral theory; without them there wouldn’t be anything to get started with. It’s rights that establish human inclusion in whatever utilitarian calculation might be begun, and limit the applicability of its result. Animals, too, have the right to moral consideration.
Where do rights come from? Legal rights come from the law, whether from a founding document such as a Bill of Rights or a Constitution, or in some legal systems, from preceding judgements. But legal rights depend in turn on moral rights, which the religious take from additional founding document such as the Bible or the Koran, but which atheists like me, though each of us perhaps differently, take from a concept of what is essential to human life.
Human life, and language, are built on the assumption that others are like us. Descartes’ idea of the solitary consciousness doesn’t make sense because consciousness requires articulation, and a private language isn’t possible. Language and our knowledge of each other presume on our ability to know what others see and feel, and morality on our vivid understanding of others’ misfortune. We grant rights to each other on that basis, though we don’t all agree on their weight.
The battle between Apple and the FBI is about rights and it’s not a simple one. Tim Cook, I think, is unconcerned with the rights of the San Bernardino gunman (who is, in any case, dead), and I suppose he’d have no issue with assisting the FBI to obtain data from that particular phone. The issue, as I understand it, is that Apple is being asked to provide a ‘general tool’ for the hacking of iPhones anywhere and everywhere, which, in his view, infringes the rights of millions of ‘innocent’ iPhone users. It’s not about the particular, where a murderer’s rights have been forfeited, but about the general, and the potential infringement of global rights to privacy. In Apple’s judgement this right prevails over the right of the general population to the protection that might ensue from information hacked from the phone.
I support Apple in their resistance to the court’s ruling. And I support their efforts to make it impossible, even for their own engineers, to hack the iPhone. I presume that it would require some rather complex and bludgeoning law to make it a requirement that a device be always hackable. It would certainly give Government too much power.
Rights are these days under serious attack in the nation of the free. Trump wants to turn up the volume when it comes to torture – waterboarding being far too gentle for his taste. (If you want to know more about waterboarding and how awful it really is, read the late Christopher Hitchens on the subject. He tried it.)
Mexicans, apparently, will soon be building their own wall to prevent themselves from scurrying across the border (I love the spiteful twist of ‘making them pay for it’, rather as if you might insist that a murderer pay for his own electric chair). And all Muslims are to be denied entry to the country.
Hardly the land of the free.
The right to privacy ranks high in my list, but there is, I suppose, no way you can establish that it must outrank other rights. It’s a matter of opinion and needs defence, by repeated passionate assertion, rather than philosophical justification, though logic can help with the analysis of how one right might conflict with another. But there are many who rank the right to bear arms, for example, far higher than the general population’s right to safety. What seems obvious to them is anathema to me.
But, from my point of view, three cheers for Tim Cook. I hope he doesn’t end up in jail (and have to pay for the bars).