Date: Sat, 07 Oct 1995 12:19:07 -0400
From: "Peter D. Junger" [email protected]
Subject: Outline of my conclusions
Rather than respond to the innumerable responses that have already been posted to this conference, I would like to outline some of the (still very tentative) conclusions that I have come to. Some of these conclusions–the important ones, the ones that have to do with what we should //do//–will (in their generality) probably be acceptable to almost everyone taking part in this conference; others, such as those involving the ontological status of rights, will be much more debatable–or, at least, much more debated–, but fortunately those rather academic debates are not likely to seriously stand in the way of our doing right–or, at least, of speaking rightly (rather than righteously).
I. Whatever may be the ontological status of rights and whatever grounding (or emptiness of grounding) there may be for that concept in the Buddhadharma, few would dispute either that the //explicit// concept of rights, and especially of "Human Rights", first appears in modern times in Western Europe, and among European colonialists in the the Americas, and that that //explicit// concept did not appear in traditional Buddhist communities.
A. As I argued–rather clumsily–in my article, the concept of "rights", and especially of "human" rights (as opposed to the recognition of the fact that one may have a (legal or customary) right to something) is the product of two different, but interconnected, European traditions:
1. On the European continent in response to the religious strife brought on by the reformation and the later conflicts arising out of the so-called "Enlightenment" and the French Revolution there developed the concept of the "rights of man". In particular, those "rights" were invoked as antidotes–but not necessarily at the same time–to both:
a. The conception (in the mind and writings of Machiavelli and Hobbes and similar political philosophers) of the State (as opposed to the City or the //Res Publica// or the Community) or the Sovereign, and
b. The universalist claims of the Roman Church and the absolutism of the //Ancien Regime//.
These "rights" were supposedly either:
a. Grounded on the (Christian) idea of God and the "dignity" of the human person and other such rather dubious (from a Buddhist point of view) entities,
b. Grounded on the fiction of a "Social Contract", or
c. Grounded on ungrounded "Rationality".
2. Across the Channel in England in response to Tudor and Stewart absolutism, and especially the disregard of the latter dynasty for (supposed) customary liberties, there developed the concept of the "Rights of Englishmen" that were secured:
a. By subordinating the Sovereign to the "law"–which was accomplished by executing one Stewart King and exiling another–, and
b. By establishing enforceable legal limitations on the ability of the agents of the State to interfere arbitrarily with subjects’ liberties or to treat them unfairly.
These "Rights of Englishmen" were in turn enshrined in the Bill of Rights that were added to the Constitution of the United States of America as the first ten amendments.
B. The concept of "rights", and especially of "Human Rights", did not develop in traditional Buddhist communities for at least three reasons:
1. In the true communities, in the families and clans of householders, in the monastic Sangha, and in the villages and other polities that were governed by customs–or //dharma//–that had just been there "since the memory of man runneth not to the contrary" , the causes and conditions were simply not ripe for the arising of any concept of "right"';
2. In those autocracies and empires where there was no law other than the whim of the prince, no concept of "rights" was likely to arise:
a. Because it would utterly futile, and often fatal, to natter about "rights", and
b. Because the Buddhadharma teaches that when one is confronted with an unavoidable cause of suffering, like a hurricane or a nasty dictator, the path to the cessation of suffering is to stop one’s ignorant clinging to things–to let things go–not to insist that one has a "right not to suffer".
3. More generally, the Buddhadharma teaches that there is no one there–no one here and now–to have "rights", that there is nothing other than emptiness upon which "rights" could be grounded, and thus it is hard to imagine how a traditional follower of that teaching could, until the long-nosed, pale-skinned, round-eyed colonists arrived, ever have dreamed of such a thing.
On the other hand, no one would dispute that the Western European concepts of the "Nation State" and of the "Free Market" economy–in which "rights bearers", the most important of which are fictitious legal "persons", freely exchange the things that they have the rights to until we all arrive at a " Pareto optimum", which is known in Buddhist terms as the "Realm of Hungry Ghosts"–have conquered–or at least subverted–almost all traditional communities, whether Buddhist or otherwise.
A. To the extent that the concept of "rights", including "Human Rights", can serve as an antidote to the suffering that is associated with this modern system of Nation States and a global Free Market economy, I should think that all Buddhists living in the here and now would consider them a good thing.
1. If there are to be such "universal rights", however, they need to be established–adopted as enforceable laws and customs, as "universal legal rights"–by all the skillful means we have available to us. It will do no one any good for us simply to try to deduce or infer that we have the right to "rights" because of the requirements of justice or of rationality or of human dignity, or even of compassion. Laws, and legal rights, do not arise by logical inference.
2. Furthermore, we should attempt to establish only such universal legal rights as are capable of being effectively enforced. (There are many states of affairs that most of us might all agree are desirable–in a relative sense–that cannot be secured by the invocation of legal rights.) To be effective such universal legal rights must be either:
a. "General", in the sense that they are not rights to particular things. (It would not be feasible–and it would not even make sense–to give everyone a right to a particular job.)
A related, and perhaps equivalent, requirement is that such rights must be "negative", i.e., that they must be "liberties". (Thus such rights might well include the right not to be enslaved.)
It will, however, probably be impossible to reach universal agreement on the exact nature of such rights. (For example, does the right not to be enslaved include the right not to be conscripted into the army, or into a highway repair crew?).
b. Against a government.
It should be noted that the "civil rights" embodied in the United States constitution and derived from the Anglo-American legal and political tradition are limited in this fashion.
Even if such universal legal rights are asserted against a government, they should probably still be limited–if they are going to be effective–to:
i. "Negative rights", like freedom of speech and religion,
ii. "Procedural rights", like the right to "due process", however that might be interpreted in a particular legal system.
B. That does not mean, however, that there is any reason for Buddhists to treat the concept of Human Rights as having more than instrumental value.
C. On the other hand, to the extent that the concept of "rights", including "Human Rights", is a cause of the suffering that arises because of the general acceptance of the modern ideology that human beings are nothing other than "rational" idiots–I use the word "idiot" here in the classical sense–whose rationality consists only in their having transitive tastes and the compulsion to attempt to maximize their well-being by trying to get everything that their ignorance leads them to desire through frantic trading in the non-existent Free Market, I should think that Buddhists everywhere would oppose that concept, and the related Hobbesian idea that men are //not// political and social animals.
But of course, the question of what we can do to oppose these teachings of the Antibuddha–beyond proclaiming the Dharma with a Lion’s voice–is a beyond the scope of this conference.
Perhaps the next conference to be sponsored by the Journal of Buddhist Ethics should be on Buddhism and Neoclassical Economics.
Peter D. Junger
Case Western Reserve University Law School