Rights Theory



 

  1. Definition
    1. A right is a special advantage that someone gains because of his or her particular status.
      1. The "special advantage" might include gaining a liberty, a power, an entitlement, or an immunity.
      2. The "particular status" might include one's status as a human being, a woman, a minority, an animal, a child, or a citizen of some country.
      3. This general notion of "right" applies in both legal and moral contexts.
        1. Moral philosophers are principally concerned with rights that are not simply created by political institutions such as the U.S. government.
        2. In this sense, a moral right is a justified constraint upon how others may act.
  2. Natural law theories.
    1. Thomas Hobbes introduced the English term "right" into political philosophy with his interpretation of ius naturale as "right of nature":
      1. "The right of nature is the liberty each man has to use his own power as he will himself, for the preservation of his own nature, that is to say, of his own life, and consequently of doing anything which, in his own judgment and reason, he shall conceive to be the aptest means thereunto. " [Leviathan, Ch. 14]
      2. For Hobbes, the state of nature was a war of all against all and so everyone had the liberty to protect himself from attack however he could.
      3. Later social contract theorists described the state of nature more optimistically, and, consequently rights of nature went beyond merely the liberty of self-preservation.
    2. John Locke (1632-1704) argues that God created people free and equal in the state of nature and that, in this condition, no one is naturally sovereign over anyone else.
      1. In view of this natural equality, Locke maintains that it is a law of nature that no one should harm another person's life, health, liberty or possessions:
      2. "The state of nature has a law of nature to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions." [Second Treatise of Government, 2:6]
      3. A state of war is declared only when someone violates our rights
      4. We remedy conflicts in the state of nature by making contracts with each other to create a civil society.
      5. This government is authorized to judge us and to defend our natural rights.
      6. However, these governments may be dissolved if they violate laws and threaten the life, liberty and property of the individual.
      7. Locke devotes particular attention to our right to possessions. We acquire property by mixing our labor with something that is held in common.
    3. William Paley (1743-1805)
      1. Rights are either natural or adventitious (i.e., Non-essential); the distinction here rests on whether rights are created by society.
      2. Rights are also alienable or unalienable, that is, transferable or non-transferable.
        1. Rights to specific pieces of property are alienable insofar as they can be taken away.
        2. Contrary to Locke, civil liberties are also alienable to the extent that we can sell our freedoms to tyrants.
        3. By contrast, unalienable rights are those that superiors have over subordinates, such as masters over servants.
      3. Finally, rights are perfect or imperfect, that is, whether they can or cannot be asserted by force.
        1. Perfect rights are those to life and property.
        2. Imperfect rights are those to employment or charity, and a child's rights to affection.
    4. Positive and negative rights.
      1. Positive rights are rights to benevolent actions from other people, such as rights to food, clothing, and shelter, or the right of an accident victim to be helped.
      2. Negative rights, by contrast, are rights of noninterference.
        1. Active rights (or liberty rights) are rights to do as one chooses
        2. Passive rights involve the right to let alone
  3. Consider
    1. Rights entail duties. No duty, no right. (right/duty correlativity)
    2. Duties entail (effective) enforcement.
    3. Rights entail (effective) enforcement. No enforcement, no right.
    4. In a state of nature, there is no (effective) enforcement.
    5. There are no natural rights.
    6. There are no natural duties
  4. Ethical Relativism
    1. There are no universal, moral rights and wrongs and so no universal claims to any special statuses.
      1. Right and wrong are relative to one’s society.
      2. It accounts for a wide variety of practices in diverse cultures.
      3. Morality changes over time.
      4. Morality is taught.
    2. Utilitarianism
      1. Rights granted only if doing so maximizes the happiness of the greatest number of people.
      2. Happiness is the ultimate good. Everyone seeks happiness.
      3. Provides a decision tool to decide whether one has a right to act as they did.
  5. What justifies legal constraints and privileges? What ought to be the extent of political authority? Into what areas of life should the courts intrude?
    1. What are the legitimate functions of government (if any)?
      1. Anarchism
        1. Anarchism rejects all forms of hierarchical authority, social and economic and political.
          1. The abolition of government is the necessary precondition of a free and just society because
            1. The state is a wholly artificial and illegitimate institution, the bastion of privilege and exploitation in the modern world.
            2. Political institutions are inherently corrupting, and even the most selfless revolutionaries inevitably succumb to the joys of power and privilege.
          2. Scorn liberalism's dedication to political liberty on the grounds that only the propertied classes can afford to enjoy it.
          3. Rejected the Marxist "dictatorship of the proletariat," the idea of capturing and using the capitalist state to achieve a classless society.
          4. Instead of the state "withering away," as the Marxists anticipated, it would simply perpetuate a new bureaucratic elite.
        2. Once liberated from political oppression, society would spontaneously rebuild itself "from below upward."
          1. A multitude of grass-roots organizations, or locally controlled economic and political entities, would spring up to produce and distribute economic goods and to satisfy other social needs.
          2. Where necessary, these primary associations would form regional and even nation-wide federations.
      2. Authoritarianism
        1. Freedom is the root of all evil.
          1. People are basically selfish
            1. Sex and greed are the two strongest motivating forces
            2. These must be reduced in order for society to improve.
          2. Humans will not "restrain" themselves and become responsible and concerned citizens on their own.
        2. The only way to establish a just and moral nation is by tightly regulating the activities of its citizenry.
          1. Society can only improve if the people improve
          2. Given that people will not improve on their own, the only way for people to improve is if the State intervenes and controls every aspect of life.
          3. The Government is needed in order to establish economic and social equality for all its citizens.
        3. More importantly, the Government is needed in order to establish a healthy moral climate for the nation.
          1. A healthy and safe society can only exist when that society is forced to obey a strict moral standard.
          2. When the standard of morality of a nation in increased, all the citizens of that nation will enjoy the benefits that come with a healthier, safer, and cleaner (read: porn-free) society.