Rights: Civil and Individual

Thursday, August 12, 2010

An amazing story about a woman who had to extricate herself and her children from the religious cult her husband joined -- at a time when divorce was stigmatized and many individual rights possessed by women went unprotected by the government -- reminds me of an important distinction that deserves attention.

If a father chose to have his children raised as Shakers, the mother had no way to claim custody. Even if the children had been unwillingly abducted from her.

That is what happened to Eunice Chapman... Chapman was a woman born in post-Revolutionary America: therefore, she was dead. Civilly dead, that is, in the harrowing terms of the law, which regarded her as nonexistent. A woman in the early 1800s had fewer legal rights than a freed male slave. The law considered a married couple a single legal entity, and that entity was de facto male. Women could not own property, vote, earn wages or sign contracts. "So wholly did the law consider man and wife united that spouses were not allowed to testify against each other, on the grounds that to do so would be an act of self-incrimination."[minor format edits, link added]
In order to gain custody of her children, Chapman had to get a divorce. And that legal battle was, in some respects, just the beginning of getting her children back.

Chapman's story is quite interesting. However, it is the phrase "civilly dead" that interests me here, because it reminds me of a distinction Leonard Peikoff drew on his radio show some time ago between civil rights -- which belong to the citizens of a country and pertain to their participation in its government and legal system -- and individual rights -- which belong to anyone in a society. An example of a civil right would be the right to vote. Freedom of speech would be an example of an individual right (that a proper government would guard for its citizens).

The distinction is interesting to me because I suspect that in addition to the massive confusion there already is among the public about the nature of individual rights (e.g., from the philosophical roots of the concept to their very nature, as evidenced by the plethora of ersatz "rights," like medical care), there is further confusion about the distinction mentioned above. The most glaring instance I can think of where this confusion hampers intelligent debate is in the immigration debate, and specifically when the very idea of open immigration is equated with treating all comers as full citizens.

Similarly, it is interesting to note from the Wikipedia link above how the concept of civil death (and, by implication, civil rights) has changed in the course of its historical development. In Medieval Germany, for example, a felon could be allowed to roam the countryside, but could be killed with impunity (which, depending on context, could be a violation of his individual rights or an abdication by the state of its task in protecting its citizens from threat of harm). On the other hand, there is a movement afoot to allow felons in the United States full voting rights (which strikes me as a confusion of that civil right with an individual right).

This is an important topic, but I am really just beginning to think about it. What say you?

-- CAV


Vigilis said...

Gus, your points on the public's confusion over the nature of civil and individual rights are certainly well-taken.

The issue will never be moved to a public debate frontburner by either (major political) party. Too risky to have the public think.

The public consensus, so far, has been such matters are the province of constitutional law and as a practical matter something our courts can debate and may inevitably decide.

Many lawyers, including the 2 most recent Democrat presidents, are billed as specialists in constitutional law. Allowing only lawyers (never stipulated by the U.S. Constitution) to be appointed to the Supreme Court not only reinforces public perception of lawyer primacy in key governance debates, it reinforces the amazing concession to what in effect has been control over an entire branch of U.S. government by one, elitest profession.

Can it be any wonder the public (albeit an intellectualy lazy bunch) has come to consider lawyers the sole practioners in constitutional matters, as well as the final arbiters?

The constitution was plainly written by learned men for literate citizens to comprehend. Must citizens believe only lawyers can comprehend the full body of case law they have devised to interpret what exactly the government can and cannot do today and tomorrow?

We needed non-lawyers on the high court a century ago. While long overdue, perhaps it is not too late to wake-up both the public and our government.

Gus Van Horn said...

"The issue will never be moved to a public debate frontburner by either (major political) party. Too risky to have the public think."

Never expect much in the way of initiative out of a politician, or especially a political party, especially in this day and age. What the public will get from them will ultimately reflect what the public already wants, which is why sparking a debate within the public at large is the key to changing our dire political situation, anyway.

I disagree with your additional comments about the legal profession. I'll use an analogy with the field of medicine to make my point.

Before the advent of the scientific method, doctors were, in many respects by today's standards, quacks. Did that mean that we needed more "non-doctors" in medicine -- or that the field itself was flawed or undeveloped in some way that made physicians less effective overall than they should have been? Obviously, the problem was that the field of medicine was crippled by a bad underlying methodology (i.e., a non-scientific approach).

I hold that many of the problems regarding jurisprudence and how law is practiced today are likewise related much more to an overall defect in how people (including lawyers) think about the purpose of government rather than the mere fact that some people choose to specialize in law (as they do in every other field of human endeavor). That said, many attorneys are of questionable moral character, but I think the mass confusion (and the opportunities to swindle that it represents draw such types in).

It's not lawyers as such we need to eliminate from the Supreme Court. It's lawyers who do not understand that government exists to protect individual rights who need to be replaced by individuals (lawyers or not) who do.

Vigilis said...

Again, your points are well taken.

I will stick with your chosen analogy to help illustrate how deeply entrenched and corrupting the legal profession has become in the United States.

Since the scientific method has been accepted by medecine, it is weilded by attorneys who practice their art with relative freedom from similar liability:

State supreme courts are typically required to approve expulsion of lawyers, but not physicians, from practice;

Physicians are liable to be sued by lawyers when poor outcomes of their treatment can be challenged as inferior, while when legal prosecution or defense results in losses or even capital punishment for the defendant, trial lawyers can very be rarely sued.

Suing phyiscian's does not by law require the approval of other physicians. Suing lawyers does require approval of another lawyer, usually a local judge.

Insurance policies have referred to as "acts of God" circumstances to minimize their coverage liability. While physicians are trained to expect idiopathic cases, they also may confront unexplained cures and mortalities ("acts of God"), which lawyers are loath to admit into courts.

The nature and extent of influences available to and exercised by members of the legal profession surpass those of any other profession except perhaps organized crime in its heyday.

While law grads comprise only 2-5% of the U.S. workforce, their collegial network extends to the highest levels of every important economic activity, including givernment.

The entire judiciary is staffed, and headed by lawyers; 60% of U.S. Senators are lawyers; the House has less (36% - 40%), and currently the president, vice-president, Majority and Minority Leaders of both the Senate and House, and the first lady are all lawyers. Chairman of the key congressional investigating and ethics committees and at least half of their members are lawyers.

Moreover, the wishes of voters have often taken a back seat to unelected lobbyist who provide travel and educational influences to congress. The vast majority of lobbyist just happen to be law grads, another branch of the network.

No profession, including barbers, could have a network like this and be free of deep corruption.

The public lacks the sophistication to recognize the fear wielded by investigating committees. Consider The Hobbs Act definition of extortion: "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." - 18 U.S.C. § 1951.

Property belonging to a congressman might include unspent campaign funds and his seat, for starters.

Gus, thank you for the opportunity to reply at length.

Galileo Blogs said...

I do not see how civil rights can be sundered from human rights for immigrants or anyone else. If one has human rights, one is entitled to the civil recognition of those rights.

The only sense in which civil rights do not apply to non-citizens is that they do not have the right to vote. Also, they may be treated differently in time of war, if they are citizens of a hostile power.

Gus Van Horn said...


"The entire judiciary is staffed, and headed by lawyers; ..."

In the sense that this is a specialized field, this makes perfect sense. Should hospitals be staffed by armchair physicians?

The fact is that our society cannot function without rule of law. This both makes the legal profession important and our society more vulnerable to it when its practitioners, on a fundamental level, do not understand (or care) what their proper purpose is.

There is a vicious cycle at work here: Our "givernment," as you put it, would not offer so much loot (or power) to lawyers were it not for a society-wide belief (hardly confined to lawyers) that government should redistribute wealth.

The lawyers aren't solely to blame for this mess.


If you took my post to mean that civil rights and individual rights can (or should) be sundered in a proper government, that is hardly what I intended to convey.

My general first stab at this distinction is that, civil rights are a little like "states' rights", in that they pertain only to delimited aspects of how citizens (like state governments) interact with the government (as states do with the Federal government). Clearly, the idea of women (or freed slaves being "civilly dead" as it was in the early 1800s violated their (more fundamental) individual rights, and could not be seriously defended (or even entertained) today.


Steve D said...

Part of the problem here is the nomenclature. Civil rights aren’t really rights at all in the strictest sense of the word. They are mechanisms we use (grant each other) to protect our actual (natural) rights. Actual rights are inalienable by their very nature (e.g. liberty).

So in fact we have no inalienable right to vote or to a trial by a 12 man jury. These are simply mechanisms we use to protect our right to liberty. You could say these are legal rights rather than moral rights.

However civil ‘rights’ are more serious than mere privileges. They are legally granted, are intended to guarantee the protection of our individual rights and I would suggest that they apply up until a better mechanism to protect individual rights is discovered.

GB: I am not sure that civil rights are equivalent to civil recognition of individual rights for the reason I state (above). However I do agree we are entitled to it.

Gus Van Horn said...

"Part of the problem here is the nomenclature."

I think that's the crux of the matter -- and is similar to an opposite problem in economics, where the term "wages" makes it harder to discuss "labor prices".

Thanks for noting that.


HaynesBE said...

I would love to see the distinction between civil rights and individual rights chewed a bit more.
I can see how voting is a civil right--not inalienable; relevant to some but not all people living within the borders of a country. Even illegal immigrants and criminals retain their individual rights but may not have claim to all civil rights i.g. voting.
Another civil right might be a marriage licence. People have the individual right to live together without having to obtain permission or formal legal recognition from the government, but perhaps there are reasonable limitations on the civil rights of who can obtain a licence--or the form and details of particular kinds of contracts. Not sure. Just thinking.

Gus Van Horn said...

The more I think of it, the more I regard marriage as being, in legal terms, like any other contract, and not really a legitimate civil right -- although it is treated as such today and, until it stops being treated this way, should be permitted to any two consenting adults.

That's where I am now, chewing civil rights in one side of my mouth and marriage in the other.

Snedcat said...

Yo, Gus, you write: "The more I think of it, the more I regard marriage as being, in legal terms, like any other contract, and not really a legitimate civil right..."

I'm not sure I agree; I'm unclear what you mean precisely by distinguishing between contract law and civil rights--presumably that contract law is based on individual rather than civil rights? In any case, what gives me pause is the implication that marriage can be reduced to contract law. I'll point you to an excellent post by David Odden over at OO.net as to why marriage cannot be reduced to purely contractual arrangements--in short, such matters as "next of kin" and "agent" don't work that way:


Gus Van Horn said...

That is an excellent post.

Thanks for pointing that out!