More on Intrinsic Rights
Micah Schwartzman has a response to my intrinsic rights post. He's certainly much more qualified to talk about this stuff than me, and my original post was obviously painted with too broad of a brush. Nonetheless, I have a few responses and clarifications.
[UH] argues that prisoners at Gitmo have no moral rights because such rights are impossible to identify.
I don't think I said that, and certainly did not mean to if I did. My argument is that they don't have legally cognizable moral rights. They have moral rights, and they have legal rights, but these are distinct things. I think my South African colleague wants to conflate the two and I'm trying to resist.
It doesn’t take much to see that the language of moral rights can be used to criticize laws (and legal rights) that don’t adequately protect them.... And just to anticipate an obvious response: the fact that some people will disagree with me about their existence, let alone their nature and scope, is not yet an argument that they don’t exist
Quite right, and that's part of where I backtracked in the comments. But remember the context of this argument.. I'm not alleging that my South African critic can't attack the Bush Administration or the Constitution or the Geneva Convention. I'm simply stating (rather obviously, I thought) that since the rights are not self-enforcing, we have to look to the enforcement mechanisms to understand what rights are being protected in our current system. One can want to change that system, or criticize its failures, but that doesn't change the fact that it either does or does not recognize certain rights claims as justiciable and/or valid.
Let's take a different line for argument's sake. Let's say you and I think there is an intrinsic right to subsistence. Does that mean you or I can walk into a courtroom and demand the government feed us? It does not, because a claim that "we all have an intrinsic right not to starve to death" is not currently legally cognizable. Certainly we could work to change that. But we at least need to recognize the current legal regime for what it is.
So where does that leave us? The way I see it, my South African colleague is saying that the Gitmo prisoners have an "intrinsic moral right" to this or that procedural protection, and my response is maybe, maybe not, but either way they don't have a legal right to it.
