Defining Terms

Limits to power aren’t just for the powerful. They have to start with the individual, with each and every individual. Rights are supposed to provide those limits, to demarcate the borders so that everyone has the most freedom compatible with an equal level for others. However, equality is so far from realized that the word has become Orwellian: some are always being more equal than others.

Given how well-articulated and well-known the basic rights are by now, the pervasive difficulty of actually implementing them has to be due to an equally pervasive factor. External factors, such as apathy or ignorance, should vary independently of rights. They shouldn’t be able to result consistently in the same losses and the same pattern of losses that we see repeated over and over again. Rights are gained or regained in a social convulsion, and then the slow erosion repeats. The uniformity of failure suggests the fault has to be endogenous, a problem with the understanding of the rights themselves.

However, at the most fundamental level there doesn’t seem to be much to misunderstand. All rights share one quintessential feature: they apply equally to everyone. When that’s not true, they’re not rights. They become privileges. So far, so clear, but then it rapidly becomes less so.

The rights themselves are not all created equal. Some depend on others. For instance, freedom of assembly is meaningless without freedom of movement. Their relative importance can also vary. Perfect guarantees of security of life and limb become useless without any freedoms to make life worth living. On the other hand, freedom doesn’t mean much when keeping body and soul together takes all one’s time. Last, some rights are just plain missing. The right to make a living is included in the Universal Declaration of Human Rights, but it’s really more of a hope everywhere in the world. And yet it’s obvious to the meanest intelligence that without a livelihood no other freedom means a thing.

None of the latter three factors — dependency, relative importance, or absence — receive the same attention as the equal application of rights. But if people are to use, in fact, the rights they have in theory then resolving those issues is necessary. Assuming equality among rights where it doesn’t exist only allows the weightier party to pull the decision its way. It is, no doubt, possible that this is why the three factors are so widely ignored. Then conflicts aren’t resolved on the merits, which leads to the usual descending spiral of encroaching power. It is not simply a philosophical exercise to figure out how to resolve the inequality of rights. It is essential.

The first step is to enumerate how the inequality among rights plays out. Which ones, exactly, take precedence? This is a ticklish issue, since nobody wants the rights dear to them declared insignificant. The usual way of handling it is to gloss over it. The Universal Declaration of Human Rights, for instance, has a couple of articles at the end pointing out that no right may be construed so as to abridge other rights. That’s a rare acknowledgment that rights can conflict, but it’s also ironic because a little higher on the same page are two rights, one of which has to abridge the other. It states that everyone has a right to education that promotes personal fulfillment, peace and tolerance, and then it says that parents have a “prior right” to determine their children’s education. But, despite the injunction against abridging, there’s no word on how to handle a parental choice of militant patriotic or religious indoctrination for their children.

Examples of direct conflicts between rights are many. Is vaccination more important than respect for the right to refuse medical treatment? Is it never, always, or sometimes more important? Does freedom of speech trump freedom from persecution? Can speech insult religious icons? Can it threaten death by mail? Or on the web? What is the difference between speech and persecution when it’s a telemarketer’s call?

Rights can also be related in other ways besides a straightforward conflict. Depending on point of view or context, the same right can be vital or irrelevant. Someone trying to pass a final exam isn’t hoping to exercise the right to free speech. A person facing a murderer’s gun may not share Patrick Henry’s feelings on the relative worth of liberty and life. The dependencies of different rights can change, too. Freedom of religion for a mystic does not require the right to assemble in the same way as it does for, say, a Catholic. A whole series of interlocking and changing issues all need to work together to resolve rights into their correct relationships, and even then they’re only valid in a given situation. The complexity is more reminiscent of biology than logic. Rights may be universal, but how people feel about them isn’t.

Given the complexity, and especially given its mutable nature, looking for static answers seems foolish. And yet the concept of adapting to reality is sometimes rejected out of hand because it would lead to a legal morass. That is a strange approach. Saying “away with complexity!” doesn’t make it so. The Dutch might as well decide that this business of having a fluid ocean makes life too difficult. They’ll pretend it’s an immobile solid and build their dikes accordingly. It’s the legal system that needs to adapt to reality, not the other way around. Expecting the latter is just magical thinking.

The complexity of the situation doesn’t make it hopeless, however. Rather simple rules can often deal with an infinitely complex reality, and the same is true here. Specific static answers may be impossible, but the rule of equality can find a way through much of the complexity even when the answers themselves depend on each given situation.

Again, the one thing that is true of all rights is that they must apply equally to everyone. That’s the whole point, and it can’t be stressed enough because it is the key to the whole problem. The same principle can be phrased in different ways, but it comes down to the greatest freedom of the greatest number. It comes down to each individual enjoying the widest possible range of rights that is compatible with the same range for others.

The principle that rights must apply equally, and that the priority of rights may change in order to preserve that equality, can provide a resolution of some conflicts on that basis alone. For instance, it’s not hard to see that allowing a religion, any religion, to dictate speech will make that freedom meaningless. If everyone is to have both freedom of speech and of religion, speech has to have priority. Giving religion priority would paradoxically end freedom of religion, since any offensive expression associated with another set of beliefs could be prohibited.

Missing Rights

So far, so good, but even that blindingly obvious example gets into trouble rather fast. Freedom of religion is meaningless without freedom from persecution, and some speech can certainly feel like harassment to the recipient. The current solution is to try to put conflicting demands on the same right: to promote free expression and to throttle it back; to promote freedom of religion and to refuse it a congenial environment. That’s doomed to failure.

However, logical absurdity is not the only choice. The irresolvable nature of the conflict is a symptom not of inevitability but of a deeper problem. The borders between the two rights aren’t good enough. They leak over onto each other’s territories. The solution is not to let one or the other leak preferentially, but to plug up the gap. The solution is to find what’s missing, and that actually doesn’t seem too difficult in this case. What’s missing is the right not to hear.

The lack of an explicit right to control our own sensory inputs is at the root of a number of modern frictions. The technology to amplify our ability to bother each other, for good or ill, simply wasn’t there before. The lack of a right not to hear is doubly odd because it would seem to be an obvious parallel to other, well-established rights. For instance, control over our own bodies doesn’t stop at freedom of movement. There’s also the right to refuse medical procedures, to be free of assault, and generally to limit other people’s ability to impinge on us. We control not only what we do, but also what other people can do to us. Yet when it comes to sensory matters, we have freedom of expression, but no equivalent right to refuse inputs from other people. That’s a recipe for disaster which is in the making all around us.

Aggressive marketing, whether commercial, charitable, or political, is not under the target’s control. It’s not up to the advertisers to stop it. It’s up to us to “tune it out.” (Interestingly, research (#refs coming#) shows that the effectiveness of advertising depends on the extent to which it is tuned out. That makes the injunction to ignore it downright sinister.) We’ve become so habituated to advertising that it takes a new angle to remind us just how intrusive it is. There is now a technique to use focused sound that reflects off the inside of the cranium (1, 2). At the focus of the speakers, you hear voices inside your head. Marketers placed these things on buildings to advertise a movie about ghosts by making passersby hear what seemed to be ghosts. It came as a surprise to them that people were outraged. (The marketers were surprised. Not the ghosts. They have more sense.) There is no real difference between reflecting sound off a wall or a skull to get to the auditory nerve. The only difference is that we’re not used to tuning out the latter. But once we’re used to it, the tendency is to accept that it’s somehow up to us to deal with it. It takes a new intrusion to remind people that, no, it shouldn’t be up to us. We have a right to silence.

Although the right has yet to be articulated, it’s already starting to be applied. It’s so obvious to so many people that even in the U. S. of A., where the dollar is king, a Do Not Call Registry limiting marketing by phone is one of the most popular laws of the last decade. However, the lack of articulation causes helplessness in the face of all kinds of violations, not all of them commercial. Cell phone conversations in confined spaces are another example. The level of discourse about that sometimes echoes the old one about smoking. The “right” to smoke was important and the right to breathe was not.

Soft porn is one area where the right not to see is explicitly discussed even if not always acknowledged. (There is general agreement that we have a right not to see the hard core stuff.) As with telemarketers, sometimes the need for a missing right is so clear, it’s demanded even if we don’t know what to call it. But because we don’t have a name for it the argument is ostensibly about whether parents should decide what’s acceptable for their children. So a parent’s right to control what a fifteen year-old sees is more important than anybody’s own right to control what they themselves see. It’s another farcical contortion symptomatic of unresolved conflicts between rights.

Now that everybody has the ability to din at everybody, 24/7, it’s going to become increasingly obvious that an explicit right not to hear, see, smell, taste, or touch is an inalienable right, and that it has to stop being alienated. As a shorthand, I’ll call it a right to silence in the same way as free speech is used to mean all forms of expresssion.

The big sticking point with any “new” right is how to implement it. It always seems laughably absurd at the time. In the high and far off times, when there was talk of broadening voting rights beyond the landed gentry, the gentry sputtered about the impossibility of determining the addresses of fly-by-night renters. We’ve managed to solve that problem. The same process is repeated with each newly recognized right. Creating a quiet environment is no different. It only seems difficult because it’s a measure of how much intrusion has become commonplace.

The basic rule is that any given expression should be sought out, and if it’s not, it shouldn’t intrude. The old clumsy brown paper covers on sex magazines were a step in this direction. Those who wanted that content could get it, but it wasn’t up to the general public to avert its eyes. Updating that attitude to the electronic age, the idea is that all content has to be opt-in rather than opt-out. If a web site wants to carry ads, a button click could lead to them, but there can be nothing “in your face.” Billboards would be banned since there is no way for them not to be in your face. Magazine articles and advertising would have to be distinguishable and separate. Television advertising would be grouped together in its own time slot, as it is in Europe. Product placement in entertainment would be a no-no.

Obviously, respecting the right to silence would affect current business models dependent on ad-supported-everything. However, simply because a whole industry has fattened on the violation of rights doesn’t mean they must continue to be violated. (For ideas on how to pay for content without ads, see an earlier piece of mine, which reflects an idea gaining currency in many places. #refs coming#) Once again, the distance between respect for the right to silence and our current world is a measure of how far technology has enabled some people to push others and how far we have to go to get back.

Not all implementations of the right to silence require readjustments to the whole social order. The issue of bellowing into cell phones could be solved rather simply, for instance. They don’t have a feedback circuit to allow the caller to hear their own voice at the ear piece. No doubt it was cheaper to make them that way. Mandating a feedback circuit, possibly an amplified one to make people talk very, very quietly, (and usable volume controls to boost the sound from muttering callers) would go a long way to returning cell phone bellowing back to normal speaking tones. Sometimes there are technological fixes.

The thorniest balancing issue raised by a right to silence is the one brought up at the beginning of this discussion: how can the greatest scope be preserved both for offensive opinions and for the right to an unintrusive environment? Bottling advertising or soft porn back up may be very difficult in practice, but there aren’t too many conceptual gray areas. How to draw the lines between conflicting opinions, however, is a much tougher question and it starts with the fundamental one of whether any lines should be drawn at all. Serrano desecrated a crucifix for the sake of art. Hoyer drew Mohammed in a cartoon for the sake of free speech. Should they have been silenced? Absolutely not.

Should the people offended by it have had to notice it? That’s a much harder question. At least in those cases, the desecration happened in venues not likely to be frequented by those faithful who would take offense. (A modern art show, and a general circulation Danish newspaper.) The issue had to be brought to their attention; a fervor had to be whipped up. In that case, if people go out of their way to notice things they don’t like, there is no issue of persecution and freedom of speech takes precedence. Persecution seeks out its victims, not vice versa.

In a different situation, where the wider culture presents a rain of unavoidable and offensive messages, such as an insistence that homosexuality is a perversion, justice seems better served by limiting that expression to venues where people would have to actively seek it out. The principle is always the same, which means the resolution may or may not be. Conflicts should be resolved to preserve the most rights for everybody, and to preserve the most equality among the conflicted parties. Precisely because equality is the goal, the resolution of any specific conflict has to be decided on its own merits.

Privacy

While I’m on the subject of missing rights, privacy is another essential one. Unlike the right to silence, at least we know it’s name and there’s growing acknowledgment that it should be on the books. However, as a recently understood right, it’s relegated to the status of the new kid on the block: tolerated if it stays on the fringes, but not welcome to interfere with the old big ones like free speech. I’m going to argue that this is backwards. Respect for privacy is fundamental to all the other freedoms and should take precedence as a rule.

To begin at the beginning, what is privacy? What is it that we have a right to? Thoughtful and thorough discussions of the definition of privacy (such as Solove’s “Understanding Privacy”) explore the concept in all its permutations. However, in one important respect there’s a missing element. Just as with all the other rights, it’s not the exact definition or its place in the hierarchy that matters because those change depending on the situation.

Trying to make a fluid issue static is part of the reason it’s generally easy to subvert the intent. It would be better to go to the shared characteristic of all the concerns about privacy. Every aspect of privacy involves the ability to control the flow of information about oneself. Exactly which bits of information need to be controlled varies according to personal feelings. It’s not the information that defines privacy. It is, once again, about control.

Control implies that the individual decides which information about her or him can be stored, where it can be stored, and for how long. It implies that the permission to store it can be revoked at any time. And it implies that potentially private information also follows that rule. It has to be “opt-in” and never “opt-out,” and the permission is revocable.

As with all rights, if they are to be meaningful, the burden of implementing respect for privacy falls on the potential violators, not the victims. A so-called right might as well not exist if it’s nothing but the suggestion that people can spend their time trying to defend against violations. The equivalent in a more familiar situation would be to make robbery illegal but to do nothing to stop it except give the victims, without any police assistance, the “right” to try to find the perps and to try to get their property back. That’s not the way rights work.

Violating a right is a crime and it’s up to the violator not to do it. That is equally true of privacy as it is of personal safety. It is not up to the individual to try to object to violations after they’ve happened. It’s up to the people who want that information to first get permission to have it. So, no, Google can’t photograph recognizable residences. Marketers can’t track your every web click. Credit reporting agencies can’t hold data against people’s wishes. Before anyone objects that then life would cease, remember that loans were made and insurance risks evaluated before the days of centralized databases. There’s nothing impossible about respecting privacy rights. It’s just expensive because a whole industry has been allowed to feed on violating them. That’s only made us used to it. It doesn’t make it good. Neither does it stop the growing resentment that always accompanies violated rights. The anger will burst out eventually, and no doubt stupidly, since we haven’t put a name on the real problem.

One curious aspect of privacy is that as a rather newly recognized right which is not well articulated, it has become an umbrella for several unarticulated rights whose lack is becoming obvious. There’s a sense that privacy is about control, so sometimes what I’ve called the right to silence is conflated with it. This is especially so when the unwanted noise involves sex. Sex is a private matter, one wants enough control not to hear about somebody else’s work on it, so it must be a privacy issue. Because the terms haven’t been correctly defined, it’s relatively simple to argue that sexual content, unless it’s about the viewer, has nothing to do with his or her privacy. The argument then spins off into being about the children. In reality, it’s about different areas of control. The right to silence is control over the extent to which one can be forced to notice the activities of others. Privacy is the right to control one’s own information.

Another issue conflated with privacy is abortion rights. The main thing the two seem to have in common is that both started to be discussed in public at about the same time. Possibly it has to do with the fact that medical procedures are normally private. However, whether or not medical procedures are performed has nothing to do with privacy. That has to do with the right to control one’s own person, one of the most fundamental rights of all. Even the right not to be murdered is secondary, since killing is allowed in self-defence. Similarly, if there was no right to control over one’s own body, patients dying of, say, kidney disease could requisition a kidney from healthy people walking around with a spare.

What muddies the argument in the case of abortion is that some people believe the fetus is a person with legal rights greater than those of its mother, since it can require her life support. There is nothing to stop them from believing this and living accordingly because there is a right to control one’s own body. However, personhood is necessarily a social or religious category, and it’s not possible for it to be a matter of objective fact. Biology can only determine who belongs in the species Homo sapiens, but there is no cellular marker that lights up when someone is due to get legal rights. It bears repeating: personhood is necessarily a matter of belief, whether that’s based on religion or social consensus. Therefore those who oppose abortion because they believe the fetus is a person with special status have to hope they are never successful in legislating how others handle their pregnancies. If they were, it would mean that exceptions could be made to the right to control one’s own person. And once that principle is admitted, then there is nothing to stop a majority with different beliefs from legislating forced abortions.

The fight over abortion is a good example of just how bad unintended consequences can be if there is enough confusion over concepts. On the other hand, if medical procedures, privacy, right to life, and personhood are kept clear, then the appropriate social policies are not hard to identify. (I am not saying that the answer is easy for the individual. Depending on beliefs, it may be a very complex. I am saying that fair social policies are obvious.)

Having discussed what privacy is, and what it’s not, let’s go on to why it is a fundamental right. That seems counterintuitive at first because privacy, in and of itself, is not very interesting. Like the right not to be murdered, it becomes critical only when it’s violated. But, like control over one’s body, control over one’s own information is necessary if other rights are to have any meaning. The only reason that hasn’t always been obvious is that we haven’t had the technical capability to spy on each other 24/7, or to retain every whisper forever. When anyone on the internet–including, for instance, your boss–can look over your shoulder and examine where you live, which plants grow in your window boxes, which gym you visit, who you have sex with, and how you looked in your baby pictures, there will effectively be no freedom left. Everything will have to be hidden if everyone can see it. What you can say will depend on what others approve of being said. Where you can go will depend on where others approve of you going. Old-fashioned police states, which depended on limited little human informants to keep people in line, will come to seem like desirable places with a few minor constraints. The logical conclusion of no privacy rights is no freedom of speech, movement, or assembly either.

A common objection to drawing logical conclusions is that the situation would never really get that bad. There’s no need to take the trouble to prevent a situation that’s not going to arise. That kind of thinking is wrong on two counts. One is that it’s symptomatic of evaluating the cost of preserving rights against losing bits of them, and of the tendency to opt for the path of least resistance. It’s too much trouble to fight so we put up with the loss. Then we get used to it. Then there’s a further loss . . . and so on. The evidence so far does not provide grounds for optimism that things will never get too bad because people won’t stand for it.

But even if there is no problem at all, even if an invasion of privacy never happens, that is not the point. The thinking is wrong on a second, and even more important, count. Rights aren’t abandoned just because nobody happens to be using them. A nation of bores with nothing to say still has to preserve the right to free speech, or stop being a free country. A nation of atheists has to preserve freedom of religion. A nation where nobody has ever been murdered still has to consider murder a crime. And a nation where nobody cares about privacy has to enforce the right to it. It’s not good enough to say that the explicit right is unnecessary because nobody needs it. Having a right to privacy is different from having some privacy because nobody has taken it away yet. We find that out every time a new invasion occurs.

Privacy is a linchpin right that needs to be explicitly included in its real place in the hierarchy.

Right to Live

There’s another vital but missing right, one that’s been identified for decades, one that was noted by statesmen like Franklin Roosevelt, and one that requires plenty of social change in some parts of the world. It’s the right to keep body and soul together under all circumstances, not only the special case of avoiding violent death. There’s a right to make a living, a right to medical care, and a right to care in old age. Obviously, the right to live has to be understood within its social context. In the Paleolithic, people didn’t have the same capacity to provide for each other that we do now. There are limits to how much we can guarantee each others’ lives, but within those limits, there is the obligation to respect everyone’s right to live. Not recognizing that right leads directly to the eventual loss of all other rights as people give them up to make a living. Just the threat of being deprived of a living leads to the loss of rights. The right to live isn’t merely a nice, pie-in-the-sky privilege for when we’re all rich enough to eat off gold spoons. It’s critical to any sustainable free society.

The right to live, perhaps more than any other, makes people fear how the inevitable conflict between rights can be resolved. A right to live costs money, and many people want to be sure it’s not their own money. However, conflict with other rights is not some special defect that makes this one uniquely impractical. All rights have conflicts and need to be balanced. The solution isn’t to rigidly prefer one. It’s to evaluate the situation on its merits and see which solution preserves the most rights for everyone.

The sticking point is how it might work in practice because the greatest good of the greatest number is not the same as a guarantee that wealthier citizens won’t lose by it. The only way to achieve no-cost economic justice is sufficient growth, equitably distributed, which brings everyone up to an adequate level. That rosy scenario is so comforting that it’s now the dominant model for how economic justice will happen. Sadly, it’s doomed. That’s not because growth could never be sufficiently vast. It could be and has been at several points in recent history when technological advances led to huge wealth creation. But spontaneous equitable distribution of that wealth has never happened. If enough people spontaneously limited themselves to ensure justice for others, there wouldn’t be a problem to begin with. There’s a problem because people do want justice, but for themselves, not as limits on their own activities for the sake of others. Economic growth doesn’t change that.

The truth of the matter is that a right to live will inevitably cost some people in the short term. Wealth is currently distributed without regard to economic justice, so the people whose money comes at the expense of the lives of others would not get that money under a just system. Again, if nobody made money unjustly, there wouldn’t be a problem to begin with. Given that there is a problem,there is no way to make it cost-free to everyone.

In some ways, it’s ironic that there should be resistance to implementing economic rights because there’s really nothing objectionable about them. Economic justice, which strives to balance all rights equally, would respect property rights and wealth accumulation that didn’t deprive others of a living. Most people, honest people, are disturbed at the mere thought of making money at the expense of others’ lives. In a just system, they could make money without that disturbance, nor would anyone fear grinding poverty. It’s a win-win situation.

And yet, the harder it is to make a living, the less anyone cares how it’s made. The less economic justice, the greater the fear of poverty and the more a right to live sounds like a right to impoverish others. It’s a downward spiral just as the previous situation is an upward one. Taking advantage of others is a very difficult pattern to stop unless there are rules in place preventing everyone equally from doing it. The truth of that is evident from the worst economic crimes, like slavery, right down to accepting minor bribes. Before the laws are in place, the haves fight them because of the spectre of poverty. After laws promoting economic justice are passed, lacking those laws becomes a mark of barbarism. For instance, turning a blind eye to slavery is now considered despicable everywhere. On the other hand, an effective social safety net is still inconceivable to many US citizens, while Europeans can’t understand how any society can be said to function without one.

The point of this digression on the costs of a right to live is that I want to be clear on the fact that there are inevitable short term costs for some people. It’s also inevitable that at the level of whole societies, judging by the weight of the evidence so far, everyone is better off in the medium term and even more so in the long term. Economic justice does not have to be the apocalyptic catastrophe that communism made of it, so long as rights are balanced rather than given rigid precedence. On the contrary, equitable economic rules lead to increased, not decreased, wealth. They’re also fundamental to a generally equitable and therefore sustainable society. In the chapter on Economy, I’ll give some examples of how a right to live might work in ways that balance available resources, property rights, employers’ rights, the right to an equitable share of created wealth, and the right not to die of poverty.

Of all the rights, the one to live suffers most from a breakdown of imagination, so I want to digress a bit on that, too. With the others, such as the right to privacy (unless you’re Google), there’s not a widespread sense that it’s silly to even try implementing them. But it’s inconceivable to many people that a universal right to live could exist outside a fairy tale. “Inconceivable” isn’t just a figure of speech in this case. It is, literally, inconceivable. For instance, no matter how many times accountants do the math and show that everyone in the US would benefit if we had universal health care, many US citizens simply cannot take on board the fact that they’re losing by not spending money on medical care for others. No doubt, if you had never seen the color red, having physicists tell you its wavelength wouldn’t help. But once you had seen it, anybody who told you it couldn’t exist would seem to lack vision.

Slavery provides one example of that change in vision. At one time, some people in the US thought slavery was essential to the economy. Now, nobody can see how anyone could have thought slavery brought any benefits. The fact that the slaveholders made some money is seen as an infinitesimally small quantity compared to the astronomical social costs. It’s become inconceivable that anyone could have missed that.

The concept that increased justice leads to increased benefits for everyone — not just nebulous moral benefits but plain old quality of day-to-day life benefits — is something that’s much easier to see when it’s been experienced. So easy, in fact, that for people in that position it must seem too obvious to need as much repetition as I’m giving it.

Although the right to live suffers the most from seeming impossible to implement, all missing rights seem fanciful. After they’ve been articulated, but before they’re applied, the usual excuse is that they’re impractical. The examples are legion. Government of the people couldn’t possibly work because the people are simpletons. Free speech will lead to a breakdown of order. Universal health care will bankrupt the country. Respect for privacy will make it impossible to do business. And so on. Yet, oddly enough, whenever the fight to gain respect for rights is successful, the opposite happens. Democracies work rather well; countries with free speech have more order, not less; and industrialized countries with universal health care have lower medical costs than the USA, which is the only one doing without. None of the missing rights would be impractical to apply. What feels impractical is that they involve limiting the power of those currently benefiting from their abuse. That’s different. It’s difficult, not impractical.

Rights in Conflict

Most of this piece on conflicting rights has been devoted to errors in the framework which cause conflicts even when none is necessary, such as missing or badly defined rights that blur the necessary boundaries among people. But even when all those errors are solved, rights can and will conflict precisely because there is no single right answer to their order of precedence.

However, although there cannot be a rigid priority among rights, there is a clear goal. The viability of all rights should be preserved. The best outcome preserves the most rights and the most freedom for the most people. In consequence, conflicts between rights need to be resolved in favor of the ones whose loss in that situation would otherwise cause the most damage.

As an example of how this might play out consider a recent conflict. Muslim workers at a slaughterhouse needed to pray five times a day. Other workers were reluctant to fill in to the extent required. Filling in is a non-trivial task in that environment. The butchering process moves at blinding speed, so workers who step away briefly create a real burden for those who have to make up the difference. The risk of serious injury is increased and, if there’s any faltering, the whole line can be halted, carcasses pile up, there’s an incredible mess, workers get in trouble, and there may be consumer health issues or financial losses if some of the product winds up being mishandled.

The conflict was between religious rights and workers’ rights. The Muslims shouldn’t have to scrimp on their beliefs just to keep their jobs. The non-Muslims shouldn’t have to work faster and increase risk of injury just so somebody else could have extra breaks. Oddly enough, a third alternative was not mentioned. The processing lines could be slowed down enough at the relevant times of day so that the missing workers didn’t cause a problem. In fact, it was a three-way conflict and the balance lies between all three factors, not just two. If the owner of the plant had been a struggling start-up operating on razor-thin margins, then any loss of profit could have meant closure of the plant. That would make both workers’ and religious rights moot and would be the wrong place to look for a solution. In this particular case, the owner was a Fortune 500 company for whom the very limited slowdown would have made some correspondingly limited impact on the bottom line. That property right needs to be balanced against equality among workers and the freedom to practice one’s religion. It’s not too hard to see which right would suffer the least damage in this case. Aiming for maximum equality among rights, the obvious alternative is to slow down the production line. It’s so obvious, that its absence from the discussion can only be one more example of the lengths to which people will go to avoid inconveniencing the powerful party.

Of course, the more evenly balanced the conflict, the harder it is to see a clear resolution. Consider, for instance, the issue of someone who objects to vaccination versus the public health need for most people to be vaccinated. On the one side is the bedrock right to control one’s own person, and on the other side is . . . the bedrock right not to be killed by a disease carrier. If an epidemic is actually in progress, the public health considerations take precedence because the threat is real and immediate. But if there is no immediate threat, and the level of vaccination in the population is sufficient that there is unlikely to be one, then the situation is different. Then the individual is being asked to give up a fundamental right without medical justification. On the other hand, if there is widespread sentiment against vaccination, consistency may be essential for the sake of fairness. (Information about the real pros and cons of vaccination would also be indicated in that case, but that’s a separate issue.) Assuming that it doesn’t start an anti-vaccination movement (which would damage public health) my preference would be to decide in favor of the less powerful party, in this case the individual rather than the public as a whole. But I could as easily see an argument in favor of maintaining consistent treatment of all citizens. The specific decision in a specific case would depend on the attitude of the community. That’s messy, but messiness is unavoidable when there is no clear path to a decision. It’s better to be clear on the real factors in a decision than to create false neatness by pretending some of them don’t exist.

Summary

What are the conclusions from this discussion of rights? One is that rights, to be rights at all and not privileges, must apply to everyone equally. Two is that the rights themselves are not equal. To preserve the maximum equality among people, it’s essential to take the inequality among rights into account when they conflict. It’s also essential to recognize that they will sometimes conflict, even in a theoretically perfect system, because their relative importance can vary in different circumstances and because people place different priorities on them.

The conflicts among rights need to be resolved in ways that are explicitly directed toward preserving the maximum equality among people. That requires two important balancing acts. One is explicit recognition of which rights depend on others. The current implicit assumption that rights are equal serves only those people who are more equal than others. If there is explicit recognition of inequality, then primary rights, such as freedom of movement or speech, can be given the necessary precedence over dependent ones, such as freedom of religion. Two is that conflicts need to be resolved in ways that do the least overall damage to any of the rights. All of them need to be viable, because they’re all essential to some degree. Allowing any right to become meaningless, which is what happens when one is automatically demoted, opens the door to the erosion of all rights.

I want to stress that when I say “necessary precedence” for some rights that does not mean exclusive or automatic precedence. It means that we have to be very careful about preserving the linchpin rights, but it does not mean that they always “win.” The essential point is the balance, and that the different kinds of balance all have to happen at the same time. It’s rather like surfing, in which balancing for forward motion and for not falling down both have to be done at once. On a different level, it’s the same problem we solve in order to walk. Both require practice, but they’re not impossible.

The point is that the balance in any given case depends on the situation so it has to be decided on its merits. The goal is the same: not to fall in the physical world, and to preserve maximum equality in the social world. The balance that achieves the goal is always different. I’m not trying to say that it would be easy, but I am saying it’s possible. It’s also necessary. Pretending that a simple, rigid system can handle the complex and fluid dilemmas of people’s rights may be decisive, but it achieves the wrong goal. The Queen in Alice Through the Looking Glass was wonderfully decisive about demanding people’s heads, but it didn’t do much for running the country. In Alice’s Wonderland that didn’t matter. In the real world, we wind up having to deal with the inevitable and nasty consequences.