1. If someone were to ask you what justice is, what would your response be?
2. Plato’s dialogue in the Republic offers us four different conceptions of justice, those of:
• Glaucon and Adeimatus
Which is the most convincing? Why? Explain your answer.
3. Which principles would you agree on if you were behind the Veil of Ignorance?
4. What is the Difference Principle?
5. What is the relationship between justice and fairness? (Read John Rawls’ article ‘Justice as Fairness’.)
6. Is it irrational to gamble in the Original Position? Why?/why not?
7. What is the Entitlement Theory of justice?
8. Why is the issue of justice important?
9. Is ours a just society? Why?/why not?
10. How does our society fare when judged by to Plato’s, Rawls’ and Nozick’s systems of justice?
11. Whose system of justice is the most satisfactory: Plato’s, Rawls’ or Nozick’s?
Give reasons for your answers.
Hardly a day goes by without a news article reporting some violation of human rights. Amnesty International and Liberty have become famous for their championing of human rights. The rhetoric of rights is often used by those who have a grievance against authority. But what are these rights? How do we come by them? Is everyone entitled to them? Are any of them inviolable? In this section we will look at the philosophical origins of theories of rights, and in so doing attempt to answer these questions. The topic of rights is closely related to that of justice; it has been suggested that a just system is simply one that respects everyone’s rights. But such a view is probably over-simplistic. What do we do when rights conflict? What do we do when deaths can be avoided by the violation of someone’s rights? It is worth bearing these concerns in mind in our consideration of rights.
If you were to ask lay people what rights they have, they might well claim that they did not know, but among the rights commonly supposed to be held by everyone are:
• the right to freedom of expression
• the right to freedom of movement
• the right to procreate
• the right to dispose of one’s property as one sees fit
• the right to security – the list goes on and on…
Obviously, some of these rights are more important than others. A right to vote is useless in a non-political community, and property rights are of little use to paupers. Generally speaking, human rights are the most fundamental rights: rights that we possess by mere virtue of being human. The most famous statement of such rights is Abraham Lincoln’s Declaration of Independence of the United States of America:
‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.’ In slightly different language, these are the rights to life, freedom and self-determination: people have the right to live, the right to live freely and the right to pursue happiness as they see fit. This last right in particular is vague: what if your conception of happiness involves harming others? Do convicts have a right to happiness? The most widely recognised statement of human rights today is the United Nations’ Universal Declaration of Human Rights, of which Article 4 is the most important: ‘Everyone has the right to life, liberty and security of person.’
There are many other articles in the Declaration, but they are all derived from this fundamental statement. Notice that it differs from the Declaration of Independence only in substituting security for happiness. Security is easier to guarantee than happiness, and it also protects everyone from those who would harm them in the pursuit of happiness. But bear in mind that even these ‘fundamental’ human rights have attendant problems. Those who support capital punishment deny the universal rights to life and security of person, and it remains unclear exactly which freedoms are guaranteed by a right to liberty. As we shall see, there are some philosophers who deny that there are any universal human rights at all; given the recent flurry of litigation concerning the Human Rights Act, the issue is certainly important.
John Locke (1632–1704) lived through the English Revolution of 1688. Something of a revolutionary himself, Locke was once exiled for supporting an assassination attempt. In his Second Treatise on Government (the first is a very dry reply to another writer), he sets out his picture of an ideal state. Fundamental to Locke’s conception of a state is his theory of natural law and natural rights (human rights). Locke had three fundamental ideas, which taken together make him the father of classical liberalism:
1. People have natural rights that limit the power of government.
2. Individualism: society is composed of a group of discrete individuals. Political philosophy tackles the problem of how to relate these autonomous beings with one another: Locke’s answer is contract and market.
3. Government should be limited, since individuals should be allowed to function as they wish.
Only the first of these three ideas concerns us here, although its relation to the others will be mentioned.
The State and Law of Nature
Like his contemporaries, Thomas Hobbes and Jean-Jacques Rousseau, Locke grounded his political theory in the concept of a State of Nature. This is basically a primitive set-up, where there is no government and people fend for themselves. Unlike Hobbes, who thought that the State of Nature would consist of a ‘war of all against all’, Locke believed that this basic state would be one of peace. It would be at peace because of a special kind of law, one that needs no government to legislate it:
‘The state of nature has a law of nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind but who will consult it, that being all equal and independent, no-one ought to harm another in his life, health, liberty, or possessions…’ [Two Treatises, 2:2:6]
Locke did not attempt to justify this idea of a law of nature: as this passage shows, he thought the law to be self-evident to any rational person. He also refers to the law of nature as ‘the will of God’. Locke believed that, since God created all people as equal, it is wrong to attempt to dominate or exploit another person, since that would make you unequal and go against God’s will. The law of nature actually makes several statements:
1. All persons are equal.
2. Everybody is free to do what they like, so long as they don’t interfere with others.
3. People ought to pursue peace and the preservation of all mankind.
4. Everybody has a right to punish transgressions of the Law of Nature.
Clearly the laws of nature can also be stated in terms of natural rights. The law ‘all persons are equal’ can be put as ‘everyone has a right to equality’. Locke says surprisingly little about natural law and rights, given their importance to his theory.
One thing that he does say is that, in a case where natural laws and the laws of a particular state or government are in conflict, the artificial laws of the government must give way. The laws of nature are more fundamental than ‘man-made’ laws.
Slavery and the Right to Life
Put in more simple terms, Locke’s Law of Nature confers on us a right to life, a right to equality, a right to freedom subject to non-interference with others, a right to pursue peace, a right to property, and a right to punish those who violate any of these other rights.Prior to Locke, some philosophers had argued that slavery was natural and justifiable. (Aquinas and Grotius both thought so.) Locke thinks that slavery is against the law of nature. He thinks that to be enslaved means that your ‘owner’ can do whatever he likes with you, and can even kill you. But since our right to life is given to us by God, we cannot transfer it to someone else voluntarily, and neither can they take it from us. Life is a gift from God, and we cannot choose to become a slave since that would involve transferral of our right to life. (Obviously one would only volunteer to be a slave in very unusual circumstances; Locke is here responding to a point made by Hobbes.) Voluntary slavery is against the law of nature for the same reason that killing yourself is against the law of nature: the right to life is inalienable. It cannot be voluntarily surrendered. (There is only one way the right to life can be alienated: see the section on the right to punish.)
The Right to Punish
The right to punish is particularly interesting. Locke believes that anyone who violates a natural law or right is effectively waging war on you, and you cannot be overzealous in your self-defence. The transgressor of the law of nature is no better than a dangerous animal, and should be treated accordingly; thus he or she can be killed. Locke justifies this somewhat draconian view by arguing that you have no way of knowing that a thief will be satisfied with your possessions; next, he might want you dead: ‘I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else.’ The person who violates your right to life (or attempts to do so) surrenders their own right to life: this is the
only way in which this right can be alienated (see above). Thus you can legitimately chase and kill a thief in the state of nature, but not if a government has been formed; if a government exists, it is up to it and
the police to punish the thief. Since it is obviously better to have a
situation where we feel safer and do not have to kill thieves, Locke is in
favour of forming a government. If those in the state of nature agree to
form a government, they alienate their right to punish transgressors of
the law of nature: they transfer this right to the government and its police.
The Right to Property
It might seem strange that Locke emphasises the right to property more than any other, even the right to life. But when we consider how materialistic our lives are nowadays, the importance of protecting our possessions is apparent. Locke explains the right to property in terms of the State of Nature. To begin with, no one owns anything; there are people without possessions and the natural world. But then people work on the land, and in so doing, make it their own.
This is the key to Locke’s conception of property: by working on something, you make it your own (if it was previously unowned). For Locke, land was the most important type of property, but his theory applies to all natural resources: rocks become yours if you work them into a house; a tree becomes yours if you turn it into a boat.As Locke puts it: ‘Whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labour with, and joined to it something that is his own, and thereby makes it his property.’
This makes sense when you think about it. What claim could a man in the State of Nature have over a piece of land? None, if he just declares that it is his. But if he has laboured on the land for a while, then he surely has a claim to it. Locke thinks that this system of initial acquisition would operate on a first-come first-served basis in the State of Nature. Agreement with others is impractical since it would be nigh-on impossible to achieve; because of this, no consent is necessary. If you labour on a piece of land, it becomes yours.
One objection to Locke’s views on property is that people are greedy, and will attempt to mix their labour with as much land as possible in order to accumulate lots of it. Locke replies (somewhat weakly) that God has provided more than enough for everyone. Thus, all people can exercise their right to property and obtain some land of their own. As an explanation of initial acquisition, this may work, but Locke’s insistence that there will always be enough to go round seems a little idealistic. Virtually all the land on the planet is already owned by someone. Locke admitted that most European land was already owned (even in his day) but insisted that ‘there are still great tracts of ground to be found’ which are as yet unowned. Given that this is certainly untrue today, Locke’s emphasis on the right to property seems a little anachronistic; many would question whether this right is really a fundamental one.
Liberty and Revolution
Although we have not looked at the topic here, Locke devotes a lot of time to describing how a government can be formed given the mutual consent of those in the State of Nature. A government is desirable because it can provide security; it will chase and punish those who violate our natural rights (see above). But what happens if a government becomes oppressive and tyrannical, and abuses those very rights that it was created to protect? Locke envisages three ways in which a government, or other political authority, can be changed. Firstly, if there is a war, it may be taken over by the enemy. Secondly, the government itself may voluntarily undergo change or replacement. Thirdly, and most importantly, we all have a right to revolution.
Locke believes that when a government abuses the rights of its citizens, the citizens are fully justified in rising up and overthrowing the government. This seems perfectly fair, given that the government only came into existence because of the mutual consent of the people in the State of Nature. They formed the government to do a certain job (protect them and their property); when it no longer does that job properly, they have a natural right to disband the government, return to the State of Nature (effectively) and form a new government if they so wish. In Locke’s time, this idea was extremely controversial and he received a lot of unkind criticism for it; it entails that the power of the king is also subject to the will of the people.
As Locke says, he believes that when a government violates the rights of its citizens:
‘... by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.’ Problems with Natural Rights
Locke’s Doctrine of Natural Rights, as it has become known, is of vast importance; Locke clearly influenced the American Declaration of Independence. But are there really any natural rights? There are a number of problems with Locke’s theory.
universal, they must be possessed by everyone from the moment
they are born. Quite apart from the objections of anti-abortionists
(what about the natural rights of children?), it is clear that children, criminals and the mentally disabled do not enjoy the same natural rights as everyone else. For one thing they certainly do not enjoy equal status. Locke would probably reply that these are special cases: none of these people are fully rational, and as such do not ‘deserve’ the rights. Many criminals would no doubt object to being labelled irrational.
2. Most rights have a legal grounding. The ‘right to a telephone call’ for those accused of a crime is enshrined in the laws of our country; if you go to a law library you can find the particular ruling that guarantees this right. Similarly, Locke grounds natural rights in the Law of Nature. The problem is that we cannot go and look this law up anywhere. Locke says that it is self-evident, but many rational people have thought long and hard about this topic and concluded that there is no natural law. If this is the case, and rights can only be conferred by laws, there can be no natural rights. It might be replied to this objection that natural (human) rights are a special case: they are not grounded in laws, but in the simple fact of our humanity. But this still runs into problems: many people deny that humanity in itself can confer rights.
More objections to Locke’s theory are dealt with in the sections on Bentham and Marx.