Rights to relevance in a changing world
The world is difficult enough these days, and then along comes “AI.” Just the presence of this tech in our world seems to stand everything we know on its head and call for us to rethink what we already know, finding new ways to make sense of things we thought we already knew.
Increasingly, too, we've moved from just programs you chat amiably with to programs that do things. Smart things, allegedly, although that is often disputed. But meaningful things, and most meaningful things are double-edged, bringing potential benefits but with certain risks. There is pressure to turn over control and power to these entities, and debate about how well-tested they are, or what it would mean to trust them.
It's bad enough that rights are always under attack, but occasionally—and perhaps now—there is a need to create new rights as a way of retaining agency in a changing world. So let's be sure any rights we decide to make end up saying something useful. What might that mean?
Things we promise ourselves
The making of rights is not something we do every day. That happens for a number of reasons. For routine issues, we make laws instead.
I've elsewhere characterized rights as “just laws with a higher vote threshold,” but that was more a lament about the fact that we haven't found a better way to implement them. Qualitatively, in terms of use, they perform a completely different function.
Laws are rules we vote on, a kind of public consensus about what's sufficiently good that it's worth enforcing. Rights, by contrast, are rules about what kinds of laws we may write. That's very different. It's a kind of public consensus about what's sufficiently bad that we must not do, or even not write laws about.
Laws and rights may look like a sort of yin and yang of public consensus, or two ends of the same spectrum, but really they are not. Rights constrain laws, and not vice versa. And even though they operate in the same space, and are sometimes made by the same people, I like to think of rights as commitments we make on our better days to protect us from ourselves on our worse days.
Mob rules
Laws, after all, are ever at risk of dissolving into mob rule, what has been called the tyranny of the majority. Rights, on the other hand, have been criticized by some as being just the opposite, a tyranny of the minority. But they are not really that. To say that it's a tyranny to have rights is a misunderstanding of why rights are there.
Good rights, well-written rights, are an acknowledgment that sometimes in the heat of political battle, or the furor of rage whipped up over a hot-button issue, we will not leave reason aside and punish individuals merely for being different than we expected, because that is what mobs are prone to do.
Something happens. People in a mob are outraged. Their rational side is suppressed for a while. They want immediate satisfaction. They create coarse-grained descriptions of an evil, any evil. All that matters to them is that the evil's description is not a description of themselves. As long as it is someone else, other, the fact that it may err, may implicate or even injure a few innocents, is not a big deal to them in that heated moment.
We, on our calmer days, when not in rage, need to say “no, you must calm down first, even if it is a voting majority of you who are enraged, this is still not fair to individuals.” In part, but not entirely, because we might one day be one of those individuals, those others.
At minimum, we need the right to ask that everyone first calm down. We often phrase our rights in other ways, but many other phrasings come down to that, to the right of any individual to stop a much larger group from imminent allegedly-righteous but not well-thought-through action.
This is our right to due process. We are due specific processes that allow us time and place to assert other rights in a thoughtful way.
The right to differ
Or sometimes it's not even something so grandiose. We might just want to criticize the government. That's necessary, or law can never change. In a free society, the standing law was the result of some prior vote by the populace, a consensus of the majority, or at least a plurality, since not everyone might care to vote.
And yet, every change in law has started elsewhere, as a minority. Someone made a case for change by criticizing a prior consensus. If you don't have the space in which to think, in which to discuss, in which to find a proper consensus, you'll never get a new one.
So some of our rights come down to that. Just holding public criticism at bay. A right to differ harmlessly.
We would, after all, prefer that people discuss things politely, not pull out guns. It is surely not accidental that speech is the first in the bill of rights, and guns second, not vice versa. And note, too, for all the US Constitution and the Bill of Rights have had an extraordinary effect on the way humans interacted with one another over the last 250 years, these documents said nothing that changed the passions people felt, only the valid mechanisms by which they might reasonably act on those passions.
What accommodates change
The issue, then, is not really competing tyrannies (minority vs majority). The issue is self-restraint. Rights tend to be strong promises we make to ourselves on our better days about what actions are so extreme that they may not indulge them on lesser days.
Our system, after all, involves a lot of writing of laws and enforcing laws. Rights are a kind of meta-law, not rules that tell us what to do, but rules that control what other rules we can make or what enforcement we can do. Rights create the framework in which all the rest is built.
For one thing, we aren't infallible. And it's hard to write good law, so reserving the right to change law is not a terrible thing. I went through a lot of drafts writing this essay, more than I usually do. Neither you nor I would have been well-served by my just shipping the first version.
Editing matters, and in the public discourse of a free society, the editors of our laws are our citizens. Laws are the rules we live by, but they are also, especially initially, sometimes a rough draft. Drafting, lived experience, court cases, and revisions are a sort of coarse-grained “inner loop” that society endures because the rules we live by involve a sort of give and take.
Let there be rights
I say inner loop because there is an outer loop. We could break out of the law-making, change our Constitution, and then go back to law-making in the inner loop. But that would be very disruptive. Better to set things up right the first time because the Constitution and its Amendments (including the Bill of Rights) is the very foundation of our democratic process, our nation's very own laws of physics, you might say. A physics of laws, not of heat or light or gravity, but foundational in the same way as physics to what is built atop it.
A rule written to work has an enforcement mechanism, a named party responsible for it, a consequence attached to violation, and a person who can invoke it who is not the party being governed. […]
A rule written to be seen has a launch, a framework document, a set of principles beginning with words like transparency and accountability, an advisory board, and no mechanism by which anyone can be told no.
—Emily Hartstone,
The Third Voice
(bold added here for emphasis)
In her book The Third Voice, Emily Hartstone makes a contrast between two kinds of rules—rules written to work (i.e., written to function meaningfully) and rules written to be seen (i.e., written as mere theatre—sometimes inspiring theatre, but not always something you can reliably invoke to stop something bad or achieve something good).
I find this a really useful distinction because it articulates something I think most people want from rights, that they be usable.
That then immediately cleaves off a number of discussions about rights that occupy philosophers, that are pretty but aren't really usable in day-to-day life because they are not designed to be invoked.
So I will use these terms “usable” and “pretty,” but in doing so I mean to invoke this clean partition Hartstone has usefully offered. That will let me say succinctly something that I have been searching for words for.
It's not enough to be pretty
Much good has come of pretty words, so I don't want to nix the idea entirely. But I want more of rights than the aspirations and inspirations they evoke in us. Those things are necessary, but not sufficient to a healthy society.
Rights said to have been given by God, important rights, rights to Life, Liberty, and Pursuit of Happiness are perfect examples of pretty rights—rights that are lovely to think one has, phrases to quote in a debate, but things that in everyday life, when it counts, are not really usable rights.
We hold these truths to be self-evident,
that all men are created equal,
that they are endowed by their Creator
with certain unalienable Rights,
that among these are Life, Liberty and
the pursuit of Happiness.
—US Declaration of Independence
At best such words set a mood or have indirect, diffuse effect—good, sure, but not reliable. Nothing forces the good effect, and it can fall dramatically short. And at worst, such words may gaslight us, suggesting a right that isn't there, teasing us with elusive promises that slip out of sight when called upon to apply. I want something specific enough to be used in precision circumstances, in precision ways, with precision effect.
What makes rights relevant
If you pull the trigger on a gun that's pointed at someone, can they say “Wait! I have a right to life?” If a kidnapper hauls you bodily from your home, can you assert that your captors must let you free because you have a right to liberty? And don't even get me started on asserting a right to happiness.
If rights are not usable, cannot be enforced, then aren't we back to where we started? In what sense are they rights there at all? If we're going to make some rights for this new age, let's make them usable ones.
If we want to stay relevant in a rapidly changing society, let's make sure now that we have the power to insist on that. That's what good rights are about.
Author’s Notes:
If you got value from this post, please “Share” it.
The image and its thumbnail were generated with help from abacus.ai's ChatLLM (Claude Opus 4.8 and GPT Image 2.5 [Edit]), with light post-processing by me in Gimp to correct some detailing I didn't like, adjust the saturation, and reduce the resulting image in size for faster web download,
