A Response to Jeff and Joe Regarding Our Primary Right

by Carter Dillard

Sincere thanks to Jeff and Joe for their biting critique of the idea of a primary human right that guarantees humans access to wilderness and complete biodiversity. This response, which is geared for the audience of the blog generally, will divide their critique into eight points and respond to each (taking their points a bit out of order), before drawing back to the theme of this blog in order to explain why the right not only survives their appraisal, but can simultaneously satisfy environmental, human, and animal interests.

1. Primary in what sense, and based on what evidence?

Jeff raises a challenge to the idea of a primary right by arguing that the term implies universal acceptance. Because, Jeff argues, many people will reject the value of being alone in the wilderness the right cannot be universal and therefore fails. First, it’s not clear to me that the Tembé would not recognize something like a right to wilderness or the nonhuman, given their historic struggle to preserve the rainforest around them. Second, as Joe notes, whether the Tembé actually recognize the right and underlying value or not does not defeat the right, any more than Hutu leaders’ failure to recognize the universal right of all peoples to be free from genocide, and the GOP’s recent refusal to recognize universal rights for the disabled that trump parental authority, prove that those rights are wrong. As discussed below, this is in part because claiming a right is like saying “you ought to do this,” which cannot be proven wrong with the response “we don’t/won’t do that” (this is simply the difference between an “ought” and an “is”). The responding party might not do the thing or want to do the thing, but perhaps they still ought to. The universality of particular rights derives not from universal acceptance, but from logical arguments that deduce the particular rights from things all humans – because of certain social and biological shared characteristics – will value, whether they admit it or not, see e.g. the Universal Declaration of Human Rights (UDHR).

Third, this begs the questions: why would the primary right then qualify for universal status, and does the primary right qualifying mean human rights is an open field, and that the right to chocolate soy ice cream might also be on the list? There is a complex argument for why the primary right qualifies in the longer article but for now one argument for universality comes from the fact that we can derive the right from the related universal value of being able to leave the power, control, and influence of any other human (can anyone in the world, Tembés and Tembus included, seriously claim they don’t want and/or have not exercised that right?). Given that we value the right to “get away,” and get away completely, from any other person we have the right to leave every other person and their influence, and one cannot do that – it is conceptually/logically impossible to do that – without places absent human influence. In other words, nonpolity is a necessary condition of the right to exit polities, which is recognized in the UDHR at Art. 13(2) (“Everyone has the right to leave any country”), and is reflected in Art. 3’s promise of liberty, Arts. 18 and 19’s promise of freedom of thought and opinion, and Art. 28’s guarantee of a social and international order that promotes the other UDHR rights. Does this mean that we do have a right to chocolate soy ice cream after all, based on Art. 25’s promise of a right to food? One simply has to ask whether getting chocolate soy ice cream is a necessary condition for that right to be fulfilled. The answer is no, because there are other types of food. But one cannot leave any country if one cannot leave every country; if you tried to do so without nonpolity you would simply leave each county until you got to the last country on earth, but you would not be able to leave it. Unlike food, there is no substitute for nonpolity.

Fourth, despite the arguments above I did not intend the word primary, in the term primary right, to imply universal value. Rather, primary refers to a descriptive component of the right: in any system of rights, whether one is part of that system at all, is necessarily the first thing in chronological order that gets decided. Of course this makes the primary right particularly non-contingent on actual acceptance by anyone in any given system, since the whole idea is to get away from the people in that system, but that is another point. Fifth, Jeff’s comments on universality open the door for two quick asides: a) because the primary right is a new articulation/concept it may be premature to determine whether it will actually be widely accepted, and b) I find the reference to Paul Ryan misplaced because he no doubt subscribes to the value of being able to freely do what one wishes in a given polity (which points towards political anarchism dressed sloppily as libertarianism). This is very different from a right to simply be free from others’ influence. Thoreau was no Ayn Randian.

2. We start with a moral “right,” one that is conceptually/logically possible.

Jeff raises a great point regarding my use of Brandeis and the concept of privacy, arguing that by using Olmstead I inherit its limits. I want to address privacy and the state (versus private) actor question below in number 3, but his argument on this raises two issues that have to be addressed first: 1) whether the primary right is moral, political, and/or legal and, even if it is only moral, 2) whether it is conceptually/logically impossible. As an initial matter regarding the first point, Jeff and I simply disagree on whether there are purely moral “rights,” rights which do not have legal and/or political remedies. This goes back to the ought/is distinction, and whether there ought to be legal and political enforceable remedies for certain wrongdoings when there currently are not. I believe that there are purely moral rights, for which there are no remedies, but for which there ought to be.

For example, the UDHR first articulated mostly moral rights – rights for which there ought to have been remedies – when it was adopted in 1948, but the rights had little or no reflection in member states’ laws or enforcement. Instead, those rights were the ideals around which legal and political enforceable remedies later became oriented. The right to be free from slavery was a moral right – for which there should have been a remedy – before it was ever recognized as a legally enforceable right orienting the 13th Amendment and Chapter 77 of Title 18 of the United States Code. To sum up, by using the term “right” I am not forced to show it is currently a legal or political right – it can at least, and first, be a moral right. And for the limited purposes of this rebuttal I want to argue that the primary right is at least a moral right – and rely on the arguments in number 1, above, and in the main article for that point. Yes, I think things like the right exist in law (the Wilderness Act offers remedies, in the form of administrative regulations, for comparable interests), and politics (federal agents will actually enforce those remedies against violators), but even without those I think the moral argument for a right goes through based on the derivation in number 1 above.

To Jeff’s second point then – one of his strongest points is his argument that the right, whether moral, legal, or political, fails because it is conceptually/logically impossible, or what I would call “incoherent.” This is why I think he is wrong. First, Jeff’s own examples of Antarctica and Bir Tawil (consider also the high seas) show that, despite his assertion that “there’s no such thing as freedom from political association,” such places exist, at least relative to modern nation-states. If they do, and have in the past (in fact the majority of the earth saw nothing of political association for most of human civilization), then there is no conceptual/logical impossibility. Nor is this a thing of the past; the modern “seasteading” movement seeks to build autonomous communities on the high seas because those places are relatively free from political association.

Moreover, Jeff’s examples show something about how we actually use a coherent concept of the nonhuman. First, his examples show that whether parts of the earth are subject to human power or not is a matter of degree rather than an all or nothing thing. How then did Jeff know to pick Antarctica and Bir Tawil as examples of places with relatively little human influence and political association? He could not do so if there were no such thing as the nonhuman, or nonpolity, no concept occupying the polar opposite of human domination, both of which bookend the continuum which makes Jeff’s examples and thinking intelligible to us.

In the end I think Jeff’s incoherence argument has more to do with feasibility – and that is discussed below,

Now, admittedly, what define the borders of relatively nonhuman parts of the world are the adjacent human borders, but that does not change the fact that the spaces within the borders of relatively nonhuman places are in fact relatively nonhuman. Federal wilderness areas are created by political association – but they are premised on the concept of the absence of human influence and within their confines that absence is what, relative to human cities, predominates.

Nor is it clear why leaving wilderness to invoke the jurisdiction of a neighboring polity, or any other polity, would revoke one’s primary right. There is nothing inherently permanent in claiming the type of freedom the primary right protects. The right calls for access to wilderness – why does that demand the person accessing it stay there? Why would returning to the adjacent polity to lobby for it to further draw in its borders conflict with the right? Art. 13(2) of the UDHR also guarantees a right of return, and while some way wish to leave for good or even form whole new political associations elsewhere, most will probably value having the benefits of both familiar polity and nearby nonpolity – city-states awash in a sea of nature, if Jeff will allow.

That said, Jeff’s point that someone must administer nonpolities, that “if the nonhuman world requires preservation, then it requires regulation and enforcement, and if regulation and enforcement, then political association,” intuitively seems correct. I think that is because Jeff is smuggling political infeasibility/impracticality back in as logical incoherence/impossibility. Jeff is saying that individual people, given access to a space without the enforcement mechanisms of political association, will simply run amok and destroy the nonhuman. As a result, Jeff argues, the idea of nonhuman nonpolity is incoherent.

But Jeff has up his own sleeve an unspoken empirical premise – that humans cannot comply with the primary right (or rather the duties it creates) without a state, or political association, to force them to comply. Why assume this? There is nothing in the concept of norms, the primary right included, that necessitates enforcement (norms direct behavior, with or without attendant sanctions) and most people I know follow many norms without any need for enforcement, e.g. they do not steal, even when they know no one is watching. Moreover, I respect Jeff and Joe’s right to be free of my would-be homicidal projects, even without threat of sanction, as I hope they do mine. In other words, we might well assume that people could comply with the primary right’s correlative duties without sanction, without a state to force them along.

That said, Jeff has exposed an important point – the primary right acts as a reason against Jeff’s presumed state of affairs, one in which there are many humans who also need sanctions in order to follow norms. The primary right acts as a reason for there to be less people on earth and for those persons to be the sort that comply with norms, or at least the primary right, without the sanctioning political association, the enforcer, that would make the right infeasible. But that does not defeat the right, it merely calls for changing the status quo (many people on the earth who require sanctions) in the way that all rights call for changing something about the status quo, e.g. in the way the right to counsel acts as a reason to fill empty state coffers, or the right to education calls for schools that do not exist, or the right to equality calls for redistribution of opportunities. That is what rights, as “oughts,” do. Jeff has not proven incoherence or infeasibility, but he has revealed one aspect of the primary right; it calls for fewer and better people. Perhaps this is what Thoreau meant when he said “In wildness is the salvation of the world.”

3. Is the primitive the same thing as privacy, and are state actors distinct from persons generally?

As Joe notes and the argument above makes clear, moral rights are not dependent on the law, which is really just a statement of particular norms by legal authorities. In other words, Brandeis was articulating a moral value that existed, in an objective sense, before Olmstead and even before he wrote “The Right to Privacy.” That said, because the moral right to privacy is akin to but not identical to the primary right as discussed below, Brandeis bringing the privacy right from morality into law may suggest that there is now at least a legal toehold for the primary right. Moreover, his reference to privacy as comprehensive signals something I’ve tried to say about a right to wilderness above by calling it primary – one does not need particular rights in a system of rights if one wishes to be free of the system completely.

The moral primary right relates to the moral privacy right in this way: assuming privacy is understood as “being completely inaccessible to others” (Ruth Gavison’s conception), then privacy appears to be somewhat of a half-way point on the continuum described above which is bookended on one side by a state of affairs in which others have total power over you, occupying all of your senses, and wilderness or the nonhuman on the other, in which you are alone in a primitive place. Privacy would be going into your room and closing your door, for example. But note the problem here – in your room you are not completely inaccessible to others at all. You have merely tricked yourself into thinking you are alone, that you are free of others and their influence. In reality, while sitting in your room, you may read books others wrote, or watch television programs others created , or simply ponder the day as you spent it, around others, before you came to your room – none of which involve truly being free of others. If you wish to be completely inaccessible to others you need wilderness; you are otherwise left with faking solitude.

To Jeff’s point on state actors: first, the state actor distinction, at least in the context of privacy (many of Jeff’s other examples are inapposite), breaks down in law when one considers that we do have rights against private citizens invading our privacy, in the form of various torts and crimes. Taking all of the law into consideration there is little distinction, when it comes to privacy, between state and private citizens.

Second and more importantly, in either case, in your room or in the wilderness in which you are hiking, would it matter whether the people accessing you (barging into your room or constantly passing you on the trail) are state officials or not? Why would you care? The point is that your privacy has been invaded. Yes, the state presents the possibility of coercion (in our society, generally speaking, only the state is allowed to coerce) but if the whole point of going into your room was to avoid an annoying sibling, for example, then the state actor/private citizen distinction is irrelevant. Third, this goes doubly so for primary right – if the whole point is to leave the state or polity itself, why would you care whether the citizens or leaders were the ones bothering you, or preventing you from leaving, for example, by extending their property lines or borders so far that you could not leave?

4. Denying an ought with an is.

Jeff relies in part on arguments of political infeasibility (land owned is unlikely to be relinquished) to challenge the primary right as infeasible.

First, I would note that whether states will relinquish, and whether they should, are two different questions, just as the question of whether the U.S. will stop preemptive violence is different from the question of whether it ought to because such violence is tantamount to illegitimate aggression. Because preemptive violence is illegitimate the U.S. should stop it (though it won’t). In the same way, because consent to political association requires nonpolity, self-described liberal states should relinquish and recede.

Of course, Jeff can counter that ought implies can. To that point I would argue that a few things suggest the right is feasible, most notably, the twentieth-century emergence and dominance of the liberal human rights paradigm (most obviously in the form of calls for democracy), the recent re-emergence of environmentalism and demands to protect biodiversity, the drastic fall in human birthrates over the past seventy or so years, and an increased interest (based on NPS data) in people experiencing wilderness areas.

Second, so far we have just been exploring how the values behind the primary right suggest changes in the status quo. But at some point the burden must shift, and it will become incumbent upon Jeff to support the status quo with values (and not just facts) that can overcome the values behind the primary right. What values support a state’s decision to impose its dominance as far it possibly can? What values support a corporation’s decision to genetically modify animals so that they are likely to wipe out competing wild species? What values supported Nadya Suleman’s decision to have fourteen children, or some people’s decision to have more? Whatever values Jeff produces must be able to compete with the value of our being able to consent to power (because we have an alternative from which to do so) – which is the bedrock of liberal politics. My guess is that articulating those values will not be easy.

5. A right based on objective values, drawing the line at complete biodiversity, which can be exercised.

Generally speaking, assertions of human rights are based on objective values – values we share as discussed above and can articulate well enough to others to justify the constraint on those persons’ behavior that the duties correlative to the rights require. In the case of the primary right, if the value is being free of others’ influence, then their having any influence over us, even when we are unaware of it, seems to violate the right. If we are told that a person has been placed in a wild mountain valley made of synthetic flora and fauna which they think is genuine, and we are asked whether they are enjoying their primary right of being left alone by others, the answer seems clear. How is the valley different from Manhattan, in terms of being subjected to others’ influence? The person placed there has not consented to that influence because she has been tricked into thinking it does not exist.

Does this objective nature then “demand the contributions of our most able scientists,” as Jeff notes, scientists whose contributions “are already seemingly insufficient in the face of climate change?” Yes it would, but armed with the primary right scientists opposed to anthropogenic climate change would not just be trying to avoid a speculative and undefined level of risk to humanity’s well being – they would immediately be working in service of political freedom.

Does the biodiversity demanded by the primary right mean the loss of Jeff’s single ragweed and chigger constitute violations of the primary right, rather than an acceptable balancing of it against competing values? Do time, place, and manner restrictions – a rule against protests in residential neighborhoods at midnight for example – violate the right to speak freely? There is much academic debate on the difference between violations and balancing. But that aside, based upon my suggestion that we draw the line at complete biodiversity the answer to Jeff’s hypothetical is no, it does not violate the primary right, whereas causing the extinction of that species of ragweed and chigger might. Why draw the line (the place at which opponents of a right to wilderness need to come up with competing values that justify any behavior that threatens it) at species? If we think about getting away from all other persons, which requires a shift to the notion of the nonhuman world, the questions arises: why alter the concept of the nonhuman? That word does not imply a sterile planet but a world with those species, all species, other than humans. Why take any species out of that picture? By my way of thinking this seems like a good place to draw the line, and to begin to require justification by those opposed to biodiversity.

Both Jeff and Joe make arguments about the rare nature of the rugged individuals that could actually exercise the primary right, and about what someone exercising the right (like Robinson Crusoe) would have to do to the wilderness in order to survive. First, rights we have do not necessarily require that we exercise them. We do not have to vote, but have the right to. We may like to have the right and for others to have it, even though we do not exercise it, because we may wish to exercise it at some point, and because if others exercise it despots are warded off, even without our help. The primary right can act in the same way – we may like the consequences of wilderness because ensuring it’s pristine nature means clean air in the cities it surrounds, or because maintaining wilderness/nonpolity is a reason to prevent the anthropogenic climate change that makes our city too hot, even if we never set foot in the wilds.

That said, we are all operating from an unfair perspective when it comes to thinking about the primary right. Because humans today so dominate the planet, actual wilderness is remote and unfamiliar – many (perhaps most) have never experienced it. Of course, given that, actually exercising the primary right seems unlikely – it is hard for us, and for Jeff and Joe, to imagine it given our contemporary “humanized” state of affairs. If, however, the right were truly protected the nonhuman world would be nearby and familiar – perhaps enjoyed by most people. People overwhelmingly value parks and other green spaces (which might just be bad imitations of wilderness), and our language uses adjectives like pristine and unspoiled to describe wilderness. Perhaps, with a human right backing our otherwise tepid appreciation for green spaces, we would all become Thoreaus.

Lastly, to Joe’s point, what Crusoe did was wanton killing, something totally unnecessary for one to survive – much less spend a day – in wilderness. Doing what he did would violate the primary right’s correlative duties, and in Crusoe’s case it was meant to do just that, to destroy the nonhuman for ends that had to do with revenge and nothing to do with solitude.

6. Jeff and Joe’s hidden premise: unbridled human proliferation.

Hiding behind many of Jeff and Joe’s arguments (Joe’s arguments about fantastic levels of asceticism, Jeff’s points on the infeasibility of wilderness and measures to reduce population growth) is a hidden premise that the relatively recent explosion in human population is to be taken as a given, almost as if it were physically inevitable. But our unbridled proliferation is neither inevitable nor just.

Jeff errs when he attempts to locate the right to have children in the right to privacy. The cases referring in dicta to a right to have children tried to tie it to a right not to have children as two sides of one coin, Griswold in particular (which articulated a constitutional right to use contraceptives), but one cannot use precedent for one behavior to support the opposite behavior. Jeff’s appeal to penumbras does nothing; a penumbra cannot invert the value the right purports to further and while consensual sex may be private creating another person who has no say in the matter and who will impact the lives of others who also had no say in the matter is not. If anything cases like Griswold, which treat privacy and liberty as not having to have, and thereby be tethered to, another person (the would-be child) support the primary right quite well – not only is the would-be mother left alone but all others whom the child would have impacted are as well. In which direction on the human-nonhuman continuum are cases like Griswold pointing? What is the far end of the continuum?

Jeff argues that, rights aside, the PRC’s one–child policy shows state limitations on having children to be unworkable. Jeff conflates the policy with its now illegal enforcement mechanisms. Methods enforcing the prohibition of selling methamphetamine have proven offensive (excessive sentences and police brutality) but few question the policy itself, any more than we question our tax policy because it is unfairly enforced against tea party members. Does the PRC policy cause lopsided generations with more old retirees than young workers? That is equally caused by former generations having too many children. Moreover, had the PRC not developed its family planning policies (which economists credit with having caused the PRC’s recent economic development by allowing a rapid increase in per-capita savings) the world would be much worse off – simply in terms of an environment conducive to human well-being – than we are today, with four-hundred million more voracious consumers in a quickly developing (and carbon emitting) economy. One cannot value perpetually expanding economies and also value wilderness, because economic growth and the human greed and proliferation that drive it are anathema to the wilderness those things need as an economic input.

7. Joe’s fantastic levels of asceticism, and literary topos.

Joe’s point about “fantastic levels of asceticism” is totally contingent on the size of the polity in question, and the levels of consumption within it. Even with our burgeoning populations and high levels of consumption today, most states have voluntarily set aside areas of their land where resource use is strictly limited in favor of wilderness and conservation. Wouldn’t those states be even more likely to do so under a system of human rights that valued wilderness over unbridled procreation and mass consumption? Resource scarcity is not fixed, it is contingent on our appetites and number (as Casey recognizes). The primary right forces us to see that, by crystallizing and holding up as valuable the logical opposite of perpetually increasing human appetites and numbers.

Moreover, Joe’s example is inconsistent with any system in which the primary right is operating. Why would thirsty citizens forgo the wild half of the river if they recognized their right to leave the polity and access that river, so long as they did not interfere with others right to do the same? What is more likely today, in our system of mass resource privatization, is that the whole river would simply be appropriated by the wealthier citizens, the Nestlè corporation for example, who would then exclude others from it in order to sell overpriced bottled water. In this scenario, as is the case today, there is little freedom or equality, little solitude or truly consensual community.

Joe’s point about the seemingly self-contradictory “literary topos” of escaping others by going into wilderness is convincing. But I think Joe gives a clue to overcoming the argument, in the beginning, by finding our banding together, and need for recognition and proclivity to mime, “troubling.” He is hinting at a value here – being free of others’ influence, much the way Senator Frank Church of Idaho, in explaining the Wilderness Act, stated that “without wilderness this country will become a cage.” The problem, according to Joe, is that the escape is itself imitative. But he makes two errors in simplifying the analysis, as an all or nothing rather than a matter of degree. First, while we might be inclined to mime, wouldn’t we be less inclined to do so were we in a position where there were no others to imitate or seek recognition from? If imitation is troubling, why isn’t the taking away of the necessary conditions for it a good thing? If the banding together is troubling, then approaching its opposite – the relative absence of human imitation – should be a relief.

Second, Joe omits any temporal factor in his analysis. There is a reason Nike tries to constantly reach us through advertising, and alter its messaging to account for the other things that drive our miming: humans forget, and they adapt to their environment. Yes, the first departure into the wilds might be imitative, but you might find nonhuman reasons to return. After a certain time out of the mime troupe you would be doing something different, working off cues in your environment that would be increasingly less about imitating other humans. The topos would wear off and be forgotten, replaced by experiences devoid of intra-human recognition.

If Joe wishes to escape Nike commercials and the subtle tyrannies of the other, he might switch to Thoreau and prove equally under his spell as he sauntered forth, but that would not last. The nonhuman would replace it, and in that state Joe is more (if not entirely) autonomous than having surrendered to Nike in a world coated with perpetual human mimicry where neither solitude nor consensual community are possible.

8. Unifying environmental, animal, and human rights

Jeff and Joe’s critique is powerful, but again, some parts of the critique (logical impossibility, anthropocentricism, literary topos, etc.) may be treating the primary right as a comprehensive philosophy. It is not, but a pragmatic approach to unify environmental, animal, and human rights by first taking advantage of the human rights regime’s reliance on autonomy, and second, by moving towards the good implications for animals and the environment that come from taking human autonomy literally/seriously. Autonomy – seen as freedom from the influence of others – can simultaneously promote all three rights regimes and get us out of the reductionist muddle of utilitarianism.

Yes, its derivation is anthropocentric and anchored to social contract theory (the key here is that animals seem to opt out), but its consequences for the nonhuman world are anything but anthropocentric. To the extent it yokes environmentalism and animal rights to a tradition as powerful as liberalism (the theoretical underpinning of democracy), and the core principle in that tradition that others’ power over us requires our consent, the means/ends trade is worth it.

The primary right demands a hard stop to the expansion of human power, as well as the preservation of the nonhumans’ world. It would protect their world, respecting in its consequences (if not its derivation) nonhuman autonomy and existence. Other animal rights theories, even those that treat animals as autonomous agents, and especially those based on the elimination of suffering, cannot promise that.

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