Related or contrasting ideas may be found in these other categories: Duty, Ethics, Needs, Property, Rule of Law, Social Contract, and The State



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RIGHTS


Related or contrasting ideas may be found in these other categories: Duty, Ethics, Needs, Property, Rule of Law, Social Contract, and The State



The taxonomy of rights


Liberty rights are distinctive from claim rights

Joel Feinberg (Professor of Philosophy, University of Arizona), “Voluntary Euthanasia and the Inalienable Right to Life,” from The Tanner Lectures on Human Values, Delivered at The University of Michigan, April 1, 1977, and Stanford University, April 11, 1977, p. 225; Online: www.tannerlectures.utah.edu/lectures/documents/feinberg80.pdf, accessed May 8, 2008

“A claim-right is a more complex notion, and presumably a more valuable benefit, than a liberty. To say that John Doe is at liberty to do or have X is to say simply that he has no duty to refrain from or relinquish X. But that is not yet to say anything about anyone else’s duties to Doe in respect to X. Doe may have a right (in the sense of liberty) to X even though everyone else is also at liberty to interfere with his efforts to do or possess X. If Doe’s right to X, however, is a claim-right, then Doe is at liberty to do or have X, and his liberty is the ground of other people’s duties either to grant him X or not to interfere with his doing or possessing X. A claim-right, then, is a liberty correlated with another person’s duty (or all other persons’ duties) not to interfere. If Doe has a claim-right to life, then those against whom he has the claim (presumably all the rest of us) have duties not to kill him or let him die when we can save him with no danger to ourselves. If, on the other hand, Doe’s right to life were a mere liberty, it would amount to no more than the absence of a duty to kill or to fail to save himself, an absence that is perfectly consistent with the liberties and even the duties of others to kill him.”
Absolute rights defined

Joel Feinberg (Professor of Philosophy, University of Arizona), “Voluntary Euthanasia and the Inalienable Right to Life,” from The Tanner Lectures on Human Values, Delivered at The University of Michigan, April 1, 1977, and Stanford University, April 11, 1977, p. 227-228; Online: www.tannerlectures.utah.edu/lectures/documents/feinberg80.pdf, accessed May 8, 2008

“An absolute right (if there is such a thing) is a right that would remain in one’s possession, fully effective as a ground for other people’s duties to one, in all possible circumstances. If my right to X is absolute, then there are no circumstances in which it is “subject to legitimate limitation” or in which the correlated duties of others to me in respect to X are suspended. If the right is absolute, then I possess it, and others are bound to me in the appropriate ways in all circumstances without exception. This unqualified and exceptionless character of an absolute right implies (among other things) that it can never be in unresolved conflict with the absolute rights of other persons, whether those rights are of the same type (for example, rights to life) or of another type (say, rights to liberty or to property). If my right to life is absolute in this sense, and if my life can be saved only at the cost of taking your property, then your right to property cannot also be an absolute right, for it will be limited or suspended in this case of unavoidable conflict. In short, if conflicts occur between one person’s absolute right and another person’s right of another kind, the absolute right must always triumph. But it also follows that unavoidable conflict between one person’s absolute right and another person’s absolute right of the same type (for example, the right to life of two different persons) is logically impossible in just the manner of a hypothetical conflict between an irresistible force and an immovable object. It simply cannot happen. Since conflicts between rights do occur, it is implausible to maintain that all rights are absolute in the present sense. A more difficult question, indeed, is whether any rights at all can so qualify.”
Rights are generally seen as having priority over duties

Ruth Abbey (Collegiate Fellow and Associate Professor of Political Science, Univ. of Notre Dame), “Rawlsian resources for animal ethics,” Ethics & the Environment, Spring 2007, p. 8

“Most contemporary rights theory posits the primacy of rights over duties. When attention is paid to duties, it tends to be assumed that duties follow rights. As Jeremy Waldron says, ‘What is distinctive about a right is that the benefit to the individual is seen as the ground of the duty, as “sufficient reason” for it, in Raz’s phrase. An individual has a right to G when the importance of his interest in G, considered on its own, is sufficient to justify holding others to be under a duty to promote G’ (Waldron 1993, 359; Cf. 16, 25, 212, 214, 352-53, 367; Cf. Raz 1986, 166-67, 170).”
The U.S. Constitution acknowledges the central role of negative rights

Stephen J. Markman (justice, Michigan Supreme Court; former U.S. Assistant Attorney General, Reagan administration), “The Coming Constitutional Debate,” Imprimis, April 2010, p. 3

“The Framers’ Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care — rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.”


Rights are good


All natural rights stem from the right to pursuit of happiness

Mortimer J. Adler (director, Institute for Philosophical Research; member, board of editors, Encyclopedia Britannica), The Common Sense of Politics, 1971, p. 26

“All of my subsidiary natural rights — rights to life, security and life and limb, a decent livelihood, freedom from coercion, political liberty, educational opportunities, medical care, sufficient free time for the pursuits of leisure, and so on — derive from my right to the pursuit of happiness and my obligation to make a good life for myself. They are rights to the things I need in order to achieve that end and to discharge that obligation. If I did not have that one basic natural right, I would not have any subsidiary natural rights, because all other natural rights relate to the elements of individual happiness or to the parts of a good life — the diverse real goods that, taken together, constitute the whole that is the sum of all these parts.”
Rights are instrumental in meeting other needs and values

Amartya Sen (Prof. of economics and philosophy, Harvard), “Freedoms and Needs,” The New Republic, January 10 & 17, 1994, p. 32

“Political rights can have a major role in providing incentive and information about toward the solution of economic privation. But the connection between rights and needs are not merely instrumental; they are also constitutive. For our conceptualization of economic needs depends on open public debates and discussions, and the guaranteeing of those debates and those discussions requires an insistence on political rights.”
Defending political rights may be more important than the immediate benefit of those rights

Amartya Sen (Prof. of economics and philosophy, Harvard), “Freedoms and Needs,” The New Republic, January 10 & 17, 1994, p. 32

“The political significance of rights can far exceed the personal utility of rights; that is, it can exceed the extent to which the personal advantage of the holders of these rights is enhanced by having these rights. In this respect, political rights are not symmetrical with other sources of individual advantage; and the safeguarding of political rights would have the procedural priority that follows from this asymmetry.”
Rights create reciprocal obligations

William Paley (1743-1805; English theologian and moral philosopher; Archdeacon of Carlisle), in Morals and Values, ed. by Marcus G. Singer, 1977, p. 51

“Right and obligation are reciprocal; that is, wherever there is a right in one person, there is a corresponding obligation in another. If one man has a ‘right’ to an estate, others are ‘obliged’ to refrain from it; if parents have a ‘right’ to reverence from their children, children are ‘obliged’ to reverence their parents; and so in all other instances.”
Locke shows that even in the state of nature, there are rights and duties

Charles K. Rowley (prof. of economics, George Mason Univ.; General Director of the Locke Institute), “What is Living and What is Dead in Classical Liberalism?” The Independent Review, Spring 1996, p. 18

“Locke’s definition of the state of nature clearly incorporate moral elements, making use of such notions as legitimacy and voluntary agreement. Individuals are endowed with full-blown moral rights and obligations defined by the external and immutable law of nature (Bk. II, para. 135). Although the particulars of the law of nature are not defined in any detail, their general form is clear. They consist of duties to preserve oneself and other by not harming persons in their lives, liberties, and properties. In the state of nature, persons enjoy their full complement of ‘natural rights,’ which correlate with the natural duties of others to respect those rights.”
Locke identifies certain rights as natural and inalienable

Robert C. Solomon and Kathleen M. Higgins (both professors of philosophy, Univ. of Texas at Austin), A Short History of Philosophy, 1996, p. 199

“Locke’s theory of natural rights is especially powerful, because, instead of making ownership, mutual tolerance, and freedom the product of prior agreement between people, a ‘social contract,’ these rights precede all such agreements. A person has a right to a piece of property, for example, because he (or she) ‘mixes his labor with it.’ The purpose of contractural agreements, such as a constitution and laws of property, is to guarantee those rights. But the rights belong to us by nature. They are ‘inalienable.’ They cannot even be given (or sold) away.”
Rights exist prior to human-made law

Amartya Sen (economics and philosophy teacher at Harvard; Nobel Prize in economics in 1998), “The Power of a Declaration,” The New Republic, February 4, 2009, p. 30

“The Universal Declaration of Human Rights made its contribution to practical reason and global politics in four distinct ways. First, the Declaration took the firm view that human rights do not depend on legislation for recognition. People have these rights simply by virtue of being human. The contention here was that the acknowledgment of a human right is best seen not as a putative legal instrument, but as an important ethical demand — a demand that everyone should have certain freedoms irrespective of citizenship, nationality, and location. Such a recognition would lead to fresh legislation rather than await it. The Declaration championed the priority of morality to law. It constituted an open invitation to all to re-organize the world in such a way that the basic freedoms recognized as rights would actually be realized.”
Government is the guarantor and foundation for rights

Alan Wolfe (contributing staff editor), “The Good, the Bad, and Gingrich,” The New Republic, May 1, 1995, p. 35

“Every American knows that rights protect individuals against arbitrary government power. But rights also depend on the existence of organized political power, a fact more rarely appreciated in American political discourse. Leave people alone and, subject to the mercies of nature and each other, they will never be free. Freedom is a social condition. To be able to exercise individual rights, people must strengthen the very government against which rights are asserted.”
Various rights create negative and positive obligations on government

Cass R. Sunstein (Distinguished Service Professor of Jurisprudence, Univ. of Chicago Law School and Department of Political Science), Why Does the American Constitution Lack Social and Economic Guarantees? The University of Chicago Public Law and Legal Theory working paper series #36, January 2003, p. 4-5. Available online from the Social Science Research Network, papers.ssrn.com/sol3/papers.cfm?abstract_id=375622; accessed January 10, 2009

“What is distinctive about social and economic rights? What makes them unusual? The conventional answer is that while ordinary rights create ‘negative’ checks on government, preserving a sphere of private immunity, social and economic rights impose ‘positive’ obligations on government, creating a set of private entitlements to government assistance. On this view, negative guarantees are both time-honored and consistent with the (classical) liberal tradition. Positive rights are novel, a creation of the New Deal, social democracy, or perhaps socialism, assimilating to the category of ‘rights’ what would otherwise be seen as pleas for public assistance. In a standard formulation, Roosevelt’s proposed Second Bill of Rights, set out as above, is distinctive ‘in linking together the negative liberty from government achieved in the old Bill of Rights to the positive liberty through government to be achieved in the new Bill of Rights.’”
In fact, even negative rights create obligations for the government to act

Cass R. Sunstein (Distinguished Service Professor of Jurisprudence, Univ. of Chicago Law School and Department of Political Science), Why Does the American Constitution Lack Social and Economic Guarantees? The University of Chicago Public Law and Legal Theory working paper series #36, January 2003, p. 5. Available online from the Social Science Research Network, papers.ssrn.com/sol3/papers.cfm?abstract_id=375622; accessed January 10, 2009

“But the conventional understanding is a bad way of understanding the relevant categories. Most of the so-called negative rights require government assistance, not governmental abstinence. Those rights cannot exist without public assistance. Consider, for example, the right to private property. As Bentham wrote ‘property and law are born together and die together. Before the laws there was no property; take away the laws, all property ceases.’ In the state of nature, private property cannot exist, at least not in the way that it exists in a free society. In the state of nature, any property ‘rights’ must be protected either through self-help — useful to the strong, not to the weak — or through social norms. This form of protection is far too fragile to support a market economy or indeed the basic independence of citizens. As we know it, private property is both created and protected by law; it requires extensive governmental assistance. The same point holds for the other foundation of a market economy, the close sibling of private property: freedom of contract. For that form of freedom to exist, it is extremely important to have reliable enforcement mechanisms in the form of civil courts. The creation of such mechanisms requires action, not abstinence.”
A system of civil rights protects against hunger

David Rieff (staff contributing editor; senior fellow at the World Policy Institute at the New School for Social Research), “The End of Hunger,” The New Republic, December 30, 2009, p. 45

“Sen’s other fundamental notion, developed in these pages, that democracy, or civil and political rights and press freedom, offer practical protection from famine, is somewhat more intuitive, and, in contrast to his theory of entitlements — a person’s ‘ability to command enough food,’ as Sen put it — seems in need of complication. This is not because it is wrong, but because, as de Waal has pointed out, other preconditions such as administrative capacity have to exist for even democratic governments in poor countries to combat famine.”
Rights over others must protect the others’ interests

Harry Brighouse (prof. of philosophy at University of Wisconsin at Madison) and Adam Swift (fellow in politics and sociology at Balliol College and director of the Centre for the Study of Social Justice, Oxford Univ.), “Parents’ Rights and the Value of the Family,” Ethics, October 2006, p. 82

“The standard model of thinking about rights sees them as instruments for protecting people’s abilities to make what they can of their own lives. Usually, then, rights over others are justified only by appeal to the interests of those others. So, for example, elderly parents sometimes give power of attorney to their adult children for various purposes, but the person with power of attorney is charged with pursuing the interests of the elderly parent. The relationship is purely fiduciary. The agent directs the affairs of the principal but has been appointed, and usually briefed by, that principal and is guided by the principal’s best interests.”
Rights are not passive; they are dynamic, vigorous things

Joel Feinberg (Professor of Philosophy, University of Arizona), “Voluntary Euthanasia and the Inalienable Right to Life,” from The Tanner Lectures on Human Values, Delivered at The University of Michigan, April 1, 1977, and Stanford University, April 11, 1977, p. 242-243; Online: www.tannerlectures.utah.edu/lectures/documents/feinberg80.pdf, accessed May 8, 2008

“Rights are not mere abstract concepts; they are instruments and devices that can be used by their possessors to do things. A full theory of the nature of rights, therefore, would explain how they can be reserved, waived, renounced, transferred, sold; surrendered, forfeited, prescribed (cf. “imprescriptible”) ; annulled or made void, withdrawn, canceled; overruled, overridden, outbalanced; invaded, infringed, violated; recognized, enforced, vindicated, respected; possessed, enjoyed, exercised, stood upon, acted on, abused; acquired, inherited, purchased. Indeed some categories of rights are defined in terms of the uses to which they may or may not be put. An inalienable right, for example, is a right that may not be alienated.”
Rights exist even if they cannot be universally satisfied

Amartya Sen (economics and philosophy teacher at Harvard; Nobel Prize in economics in 1998), “The Power of a Declaration,” The New Republic, February 4, 2009, p. 31

“Indeed, if feasibility were a necessary condition for people to have a right, then not just the social and economic rights but all rights — even the right to liberty — would be nonsensical, given the infeasibility of ensuring the life and the liberty of all against violation. We cannot prevent the incidence of murder every day. Nor, with even the best efforts, can we stop all mass killings, as in New York on September 11, or in London, Madrid, Bali, and more recently in Mumbai. The confusion in dismissing claims to human rights on grounds of incomplete feasibility is this: a not fully realized right is still a right, calling legitimately for remedial action. Non-realization does not make a right a non-right.”

Rights have limited usefulness


The rule of law is a prerequisite for rights

Sam Tanenhaus (editor of The New York Times Book Review and Week in Review), “Conservatism Is Dead: An intellectual autopsy of the movement,” The New Republic, February 18, 2009, p. 17

“In one of his prescient early writings, The Vindication of the English Constitution, a pamphlet published in 1835, the very young Disraeli reviewed the parallel democratizing experiments of his own time. In every nation where democracy had flourished, Disraeli observed, the rule of law was already embedded in social custom. This was why America had easily made the transition from a colonial protectorate to an independent constitutional society, while South American nations had not. Democracy was the fruit, not the precondition, of civil order. ‘Political institutions, founded on abstract rights and principles, are mere nullities,’ Disraeli wrote.”
Rights are always in conflict

Roger L. Conner (Executive Director, American Alliance for Rights and Responsibilities), “Total Quality Debate,” The New Republic, August 23, 1993, p. 4

“Any serious quest for a just society, or a good life, starts with a recognition that the values represented by rights and responsibilities are morally equal, yet always in tension. Finding the right balance involves a never-ending sequence of adjustments.”
Bentham discounts the idea of rights outside man-made law

Amartya Sen (economics and philosophy teacher at Harvard; Nobel Prize in economics in 1998), “The Power of a Declaration,” The New Republic, February 4, 2009, p. 30-31

“Taking an exclusively legal view of rights, Bentham asserted that for a right to be ‘real,’ it had to be legislated. A right, he said, can only be a ‘child of law.’ This grants no room whatsoever for the public recognition of the importance of certain freedoms, and of the role of these ethically recognized freedoms and rights in providing motivation for fresh legislation. For if human rights are publicly supported claims that can contribute to the basis of legislation, then they function not as children of law, but rather as ‘parents of law.’”
Rights apply only when government is a party, not between individuals

Thomas Szasz (emeritus prof. of psychiatry, State Univ. of New York Health Science Center), Reason, April 1993, p. 46

Right, a political concept, refers to the relationship of the individual to the state.”
Right and wrong have largely disappeared, and all we have left are rights

Kenneth L. Woodward (staff writer), “What is Virtue?” Newsweek, June 13, 1994, p. 38

“According to the dominant school of moral philosophy, the skepticism engendered by the Enlightenment has reduced all ideas of right and wrong to matters of personal taste, emotional preference, or cultural choice. Since the truth cannot be known, neither can the good. In this view, the most any government can do is carve out rules that — like a traffic cop — ensure that a rough justice prevails among its citizens. Within agreed-upon social limits, therefore, people are free to make what they will of their private lives. In the United States, this outlook has produced a strong emphasis on rights over responsibilities, and it influences much of contemporary political theory.”
There are no definite grounds for weighing rights against each other

Richard A. Posner (chief judge, Seventh Circuit, U.S. Court of Appeals; senior lecturer, Univ. of Chicago Law School), “Bad Faith,” The New Republic, June 9, 1997, p. 35

“With every interest group agitating for rights, rights pop up on both sides of most legal disputes. There is the debate over hate speech, which confronts the right to free speech with the right to racial justice; the debate over pornography, where the right of free speech confronts the right of sexual equality; and the debates over abortion and custody, where the rights of fathers are asserted against the rights of mothers. You get no help, as Kennedy points out, from the philosophical concept of rights; the philosophical discourse of rights is as indeterminate as the legal discourse of rights.”

Rights are bad


Embodying rights in our written laws suggests that rights are neither natural nor obvious

Gordon S. Wood (Alva O. Way University Professor and Professor of History at Brown University), “Revolutionary Manners,” The New Republic, July 1, 2009. p. 47-48

“He quite shrewdly points out that the Americans’ various declarations of rights ‘obviously walked a narrow line between construing such rights as importations from a solitary state or as creations of a social one.’ If rights were natural and existed in people’s hearts, then writing them down and putting them into texts made no sense, and might even endanger them. Madison and some of the other Federalists made such an argument in their attempt to explain why the Constitution contained no bill of rights.”
Rights are artificial concepts that have become pleas for special privileges

Michael Shermer (adjunct prof. of history of science, Occidental College), Skeptic, Vol. 2 Number 2 (1993), p. 24

“Rights do not exist in nature. Rights are a concept constructed by humans to protect certain freedoms, but have degenerated into pleas for special privilege by nearly every group and individual in America who want something they do not have.”
It’s absurd to recognize economic and social ‘rights’ that cannot be satisfied

Amartya Sen (economics and philosophy teacher at Harvard; Nobel Prize in economics in 1998), “The Power of a Declaration,” The New Republic, February 4, 2009, p. 31

“Some critics see this expansion of the domain of rights as quite absurd. How can it be the case, they argue, that these social and economic claims are rights, given the fact that it may be infeasible to satisfy them universally, at least without radical changes in the world? Is it not a basic premise of practical reason that there can be no enunciation of an ‘ought’ without a corresponding ‘can’?”
Because humans and societies differ, no set of rights is universal

Robert H. Bork (former U.S. appellate judge; Olin scholar, American Enterprise Institute), “The Living and the Dead,” National Review, August 9, 1993, p. 56

“But if there are many ways for humans to flourish, as no doubt there are, then it is not demonstrable that individual feelings must always trump collective claims, that there can be a specified list of rights against which all societies can be measured, that critical reason can always identify ‘progress’ as between two cultures, or that egalitarianism is a requirement of a good society.”
Political rights must take a back seat to alleviating crushing economic needs

Amartya Sen (Prof. of economics and philosophy, Harvard), “Freedoms and Needs,” The New Republic, January 10 & 17, 1994, p. 31-32

“Priority must be given, or so the argument runs, to fulfilling economic needs, even if it involves compromising political liberties; political rights are a ‘luxury’ that a poor country ‘cannot afford.’ This skepticism about the primacy of political rights, including civil rights, is heard very frequently in international discussions. Why worry about the finesse of democracy given the overpowering grossness of material need?”
Legalistic disputes over ‘rights’ tends to short-circuit true political consensus

Richard A. Posner (chief judge, Seventh Circuit, U.S. Court of Appeals; senior lecturer, Univ. of Chicago Law School), “Bad Faith,” The New Republic, June 9, 1997, p. 36

“Supplying ‘right’ [rights-based] answers to questions that otherwise would be resolved by political struggle bolsters the illusion of ‘rightness,’ of consensus, throughout society. Ordinary citizens may not be able to agree on whether abortion should be permissible, but it doesn’t matter; the issue has been consigned to a body of experts to decide on technical legal grounds.”
The new conception of rights undermines character virtues

Charles R. Kesler (Dengler-Dykema Distinguished Professor of Government at Claremont McKenna College; editor, Claremont Review of Books; editor, Signet Classic edition of The Federalist Papers), “The New New Deal,” Imprimis, May-June 2010, p. 4



“The moral costs of the new rights went further. Virtue was the way that free people used to deal with their necessities. It took industry, frugality, and responsibility, for example, to go to work every morning to provide for your family. It took courage to handle the fears that inevitably come with life, especially in old age. But the new social and economic rights tended to undercut such virtues, subtly encouraging men and women to look to the government to provide for their needs and then to celebrate that dependency as if it were true freedom. In truth, the appetite for the stream of benefits promised by the new rights was more like an addiction, destructive of both freedom and virtue. The new entitlements pointed to a beguiling version of the social contract. As FDR once described it, the new social contract calls for the people to consent to greater government power in exchange for the government providing them with rights: Social Security, Medicare, Medicaid, Obamacare, etc. The more power the people give government, the more rights we receive.”



Prager’s LD Vault: Rights · Revised July 2010 · © 2010 John R. Prager


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