Rights-based Ethics

Richard Norman

Normative ethical theories based on ådutyπ, årightsπ, and åvirtueπ can all be seen as prompted by objections to utilitarianism.

Reading for rights-based theories:

Robert Nozick (1974)

J. L. Mackie (1978)

Rights versus Duties

Mackie: åRights are something that we may well want to have; duties are irksome.π

Is that a sufficiently good reason for defending a rights-based theory?

Linked to Mackieπs anti-realist meta-ethics (Inventing Right and Wrong) ≠ values are things we choose or create, not objective entities which we discover.

Rights versus Goals

The classic goal-based theory is utilitarianism.

Mackie: utilitarianism would årequire, in certain circumstances, that the well-being of one individual should be sacrificed, without limits, for the well-being of others.π Indirect utilitarianism (e.g. rule-utilitarianism) not an adequate reply.

Examples of how utilitarianism could require sacrificing some for the benefit of others:

1. punishing an innocent person to prevent a riot
2. slavery
3. åJim and the Indiansπ? ≠ or a variant of the example?

        

Nozick:  rights are constraints, not goals.

åSide constraints ä reflect the underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent. Individuals are inviolable.π

åWhy may not one violate persons for the greater social good?  Individually, we each sometimes choose to undergo some pain or sacrifice for a greater benefit or to avoid a greater harm.  Why not, similarly, hold that some persons have to bear some costs that benefit other persons more, for the sake of an overall social good?π

A false analogy ≠ åThere is no social entity with a good that undergoes some sacrifice for its own good.  There are only individual people, different individual people, with their own individual lives.  Using one of these people for the benefit of others, uses him and benefits the others. Nothing more.  What happens is that something is done to him for the sake of the others.  Talk of an overall social good covers this upä To use a person in this way does not sufficiently respect the fact and take account of the fact that he is a separate person, that his is the only life he has.π

A deontological ethics might also give an account of why it is wrong to sacrifice one person for others.

But Mackie and Nozick may be correct that a rights-based theory gives a better account.

The wrong done is not simply a failure to do oneπs moral duty, but a wrong done to that individual.

Recall Ross on different kinds of moral relationships:

Utilitarianism åseems to simplify unduly our relations to our fellows.  It says, in effect, that the only significant relation in which my neighbours stand to me is that of being possible beneficiaries by my action.  They do stand in this relation to me, and this relation is morally significant.  But they may also stand to me in the relation of promisee to promiser, or creditor to debtor, of wife to husband, of child to parent, of friend to friend, of fellow-countryman to fellow-countryman, and the like; and each of these relations is the foundation of a prima-facie duty.π

Could add that there is a difference between treating others as possible beneficiaries of my action, and treating others as agents with their own lives to lead.

The difference between åsympathyπ and årespectπ?

But in that case a rights-based theory of side-constraints also over-simplifies our relations to our fellows.  We are responsible both for promoting the good of others and for respecting their right to lead their own lives.

Mackie on åthe human goodπ

A plausible ultimate goal would have to be

1. activity
2. different for different people
3. changing with changing choices over time, not once-and-for-all.

So the ågoalπ is really a right ≠ the right of persons progressively to choose how they shall live.

But:  In order to be able progressively to engage in a diversity of worthwhile activities, people need not only the right to choose them.

They may also need e.g. material conditions, education, health, etc.

So is Mackieπs åright to chooseπ the sole ultimate value?  Perhaps certain goals, of benefiting people, may be equally important.

Another reason for thinking that a normative ethical theory should include both rights and goals.

Negative and positive rights

Another way of approaching the same question:

What rights are there?  How extensive is the range of rights?

Consider the following list from two rights documents, the åUN Declaration of Human Rightsπ and the åEuropean Convention of Human Rightsπ:

1. Right to life  UN, EU
2. Right to liberty and security of person  UN, EU
3. Right not to be enslaved  UN, EU
4. Right not to be tortured  UN, EU
5. Right to privacy  UN, EU
6. Right to freedom of thought, conscience and religion  UN, EU
7. Right to freedom of opinion and expression  UN, EU
8. Right to social security  UN
9. Right to work  UN
10. Right to equal pay for equal work  UN
11. Right to rest and leisure  UN
12. Right to a standard of living adequate for health and well-being  UN
13. Right to education  UN
14. Right to participate in cultural life and the arts  UN

Those in both the UN and the European list are negative rights (liberty rights).

Those in the UN but not the European list are positive rights (welfare rights).

The first list corresponds to Nozickπs åconstraintsπ and Mackieπs åright to chooseπ.

The second list entails not just constraints on how we treat others, but benefits which we owe to others.  Could be seen as ågoalsπ.

So how do we decide on the range of a list of rights?  Are there only negative (liberty) rights, or are there also positive (welfare) rights?

Cannot decide this simply by examining the concept of rights.  Rights are not self-evident.

1.       Look at the range of significant moral relationships in which we stand to others.  Includes both sympathy and respect.

2.       Look at deeper facts about human nature and human needs.

1. This is what Nozick is doing when he makes the case for rights as side constraints.
2. The difference between humans and animals pp.35-42.The åexperience machineπ pp.42-45.
3. Having an overall conception of oneπs life, shaping oneπs life, giving meaning to oneπs life pp.48-51.

This is also what Mackie is doing when he discusses conflicts of right.

When we weigh conflicting rights against each other, we must ånot allow the vital interests of anyä to be outweighed byäless vital interests.π

We have to decide how closely a particular right is åbound up with a personπs vital central interests.π

This shows that

 rights are not foundational.

They are derived from more fundamental facts about human needs and interests.

This allows the possibility that an adequate normative ethics may include not only rights (as constraints) but also goals (or positive rights).

Maybe we ought morally both to respect the rights of others and to promote the goals of others.