Getting Clear on Rights and Rules:
If a tree falls on you in the woods and nobody sees it, have you been wronged?
You might have been harmed, but you would probably not accuse the tree of violating your human rights by falling over and crushing you. Unless, that is, you believe that rights are non-relational—then you might have some trouble getting the tree off the hook.
These are the kind of puzzles on which Michael Baur, Ph.D., a lawyer, an associate professor of philosophy, and an adjunct professor at Fordham School of Law, is an expert. His research pivots on the question of what is society, or, in philosophical language, social ontology. According to the philosophies Baur studies—medieval philosophy and 19th-century German philosophy—societies have a kind of being or reality of their own, which is generated by interactions among members of that society.
Put more concretely, the humans who enter into society agree to certain social norms—whether written or unwritten—that make the society run smoothly. Without humans, these norms, rules, and other social constructs created to order society would not exist.
“One example of this is money,” Baur said. “You might think that you have money if you have a piece of paper in your pocket. But if every human being disappeared or was lobotomized and suddenly didn’t know what money is, you don’t have money anymore. You just have a piece of paper. The idea of money is dependent upon a set of interactions imbued with human understanding about what these interactions mean.”
However, many contemporary thinkers don’t explicitly adhere to this philosophy. Much modern thought characteristically presumes that reality exists only outside of, and independent of, the human mind. So when it comes to the law, these thinkers argue that what the law upholds and protects—rights, for instance—is independent of human interactions. As a result, rights would continue to exist even if there were no humans living in society to observe them.
Baur argues, however, that it is wrong to regard rights as non-relational. Like laws and social conventions, rights only exist because humans interact in certain ways. He offered the example of property rights.
“The ordinary person usually thinks that if you possess something, you have property. But you can have possession of something without having property in it. For example, the parking lot attendant has possession of my car right now, but it’s not his property. Likewise, I have property [of my car], but it’s not in my possession,” he said.
“If you’re in the wild with no other human beings, you can have possession of, say, a hunk of food. But it’s possible to have property only if there’s a system of interactions animated by human understanding.”
It’s an idea that traces back to the ancient Greek philosopher Aristotle and the 19th-century German philosopher Karl Marx, who both argued that property is not a relation between people and things, but a relation between people and other people with respect to things. In other words, property is a social construct.
The difference is subtle, but it is important when it comes to justifying concepts such as taxation and eminent domain, as these rely on the understanding that property exists in the context of a society—not independent of it.
“Judges [who]uphold a view of property that is totally non-relational have a very hard time trying to explain how there can be the taking of property under eminent domain,” Baur said. “When it comes to fundamental issues in the law, if you haven’t clarified your concepts, then… [it’s] is going to cause incoherence and contradiction.”
One such quandary came with the Supreme Court’s recent decision to uphold the 2010 Affordable Care Act, particularly the individual mandate to purchase health insurance. Classified as a regulation, the mandate seemed unconstitutional because it forced people to participate in a market in which they were not participating. As a result, the court upheld the mandate as a tax.
But according to Baur, who wrote about the decision on his blog, the mandate could have been upheld as a commercial regulation because of the 1986 Emergency Medical Treatment and Active Labor Act, which requires every hospital in the United States to treat any individual who seeks care in an emergency room. With this “right to be treated,” Baur argued, everyone in the United States has a kind of health insurance.
“That means they’re not legally or commercially inert,” he said. “They’re possessors of a legally enforceable right, a kind of insurance.
“That’s really where I see my work. It’s not in the everyday applications of the law, because, for the most part, those work. It’s in clarifying the concepts that could otherwise lead to problems in the applications.”
Baur is also director of the Natural Law Colloquium, a joint effort between the philosophy department and law school. Each semester, the colloquium sponsors lectures and debates on the natural law tradition, which points to a necessary connection between the law and morality.
The colloquium enacts what Baur already embodies—genuine, interdisciplinary dialogue, which Baur considers a critical part of academic inquiry.
“I want [lawyers and philosophers]to be talking across the boundaries of their disciplines to see the reciprocal limitations of their own discipline,” he said. “That goes not only for philosophy and law, but for every discipline. If you’re locked only in your discipline, you run the risk of being narrow and dogmatic about it.”