Samizdata gets the following email:
Dear Mr MicklethwaitI started writing a lengthy comment, but then realized that I've got my own blog! So, let me take a crack at it.I am writing a concise statement of ancient rights as part of a longer publication.
I want to include all the most important Common Law rights: life, liberty, property, family life, fair trial in open court, Habeas Corpus, trial by jury etc.
I cannot find a comprehensive list anywhere. Do you know of one please?
Regards,
Richard Marsden
I think that most of our civil rights can be derived from the right to own property -- when you "own" something, you have the right to use it, and the right to exclude others from using it at will. Property rights (and the ownership of our own bodies) can cover almost everything we like as Americans:
- freedom of speech,
- freedom of thought,
- freedom of religion,
- freedom of self-defense,
- freedom to work,
- freedom to trade,
- freedom of association,
- and, in some ways, the right to privacy (though not as it is often believed).
Naturally, my exercise of my rights can interfere with your exercise of yours, and the details need to be worked out. How do we do that?
Criminal law is the system that society has at its disposal when it needs to curtail your civil rights because your exercise of freedom is impinging unacceptably on others. Under commonly recognized principles, the important aspects of criminal law revolve around the understanding that depriving someone of his civil rights is a serious matter, and should not be done lightly or easily. Taking away someone's rights should be be difficult, but civilization has recognized that such power is necessary in order for society to function.
So we've got:
- trial by jury (perhaps the most important),
- the right to be presented to the court (habeas corpus),
- the right to a speedy trial (and the duty to enjoy that right),
- the right to confront the accuser (even in rape cases),
- the right to the presumption of innocence,
- the right to commensurate punishment,
- the right to remain silent and not testify against yourself,
- &c.
Notice, there's no right to vote, although democracy is a good way to protect our rights. All that common law really comes down to is "leave me alone, and I'll return the favor."
You could just say "negative rights" and leave it at that.
They're not all negative rights. The right of association is a positive right, as are many of the criminal rights, such as trial by jury, habeas corpus, and commensurate punishment.
Plus, not everything that could be phrased as a "negative right" is really a right, such as the way that many view the so-called right to privacy.
On the right to association, I think that's a negative right to not be interfered with.
If it were a positive right, wouldn't I have the right to associate with those who didn't wish to associate with me?
For example, the Boy Scouts would have to accept me even if I were an atheist.
As for the legal rights (trial by jury, etc.), are those really positive rights? Or are they the procedural requirements to not be deprived of life, liberty or property without due process, which would be a negative right?
On the right to association, I think that's a negative right to not be interfered with.
If it were a positive right, wouldn't I have the right to associate with those who didn't wish to associate with me?
For example, the Boy Scouts would have to accept me even if I were an atheist.
As for the legal rights (trial by jury, etc.), are those really positive rights? Or are they the procedural requirements to not be deprived of life, liberty or property without due process, which would be a negative right?
Well, ok, I agree as far as association goes. A lot depends on what angle you're approaching each right from, so I'm not sure how helpful the positive/negative thing is.
In my mind, a "positive" right requires someone to do something for you, whereas a "negative" right prohibits someone from doing something to you. So, the right to a trial by jury obligates someone to sit on your jury and judge you -- certainly a positive right, yes?
Good point. The right to a jury trial is a positive right when you look at it that way. I think it's still important to consider it as part of a larger system of rights (due process) which is negative.
I mean a right to a jury trial doesn't seem to be a positive right in the same way that a right to an elementary and secondary education (a right in many, if not most state constitutions) is a positive right.
What it has in common, and makes it a positive right, is the need to impose on the negative rights of others to make it available.
All of which raises some interesting questions for me. The right to a jury trial is a positive right that I embrace. There are other positive rights I reject, such as the right of wealthy senior citizens to receive gov't-provided health care. There are others, say the above-mentioned, right to an education that don't give me a lot of grief other than the way it is provided. How do I decide which positive rights I support and which I reject?
Well, I think that part of the problem comes from the definition of "right". If you limit it to God-given (or "natural", depending on your inclination) rights, then most of that nonsense falls away. There is no real right to an education, that's just something that we've created because our country is so rich, we can afford the luxury.
So is the right to a jury trial a natural right?
Or is just something we manufactured that happens to be useful?
I think the right to be tried by the concensus of the community is pretty fundamental, but the particulars of "juries" as we've devised them are incidental details. That work pretty well, I think.