Saturday, February 26, 2011

No theory of rights

The other day I had a discussion over a cup of coffee which helped me clarify my ideas on human rights (and perhaps on philosophy also). I am coming to the view that rights are a way of speaking rather than something one can have a theory about. [I am not talking of legal rights* here, but rather about what might be called moral or natural rights (sometimes seen as the basis or justification for legal rights).]

My interlocutor was particularly interested in whether or not children have rights. We agreed that animals do not, because they could never comprehend the reciprocal notion of obligation. But nor can very young children. I suggested that maybe children could be granted rights on the basis that they would grow in the future to understand reciprocal obligations.

My friend noted that respect for children was built into the moral convention that (women and) children are given priority in the sinking ship scenario, but I suggested that it was not useful to talk about this in terms of rights. He said that adults giving themselves priority over (weaker) children in life-or-death situations - pushing children aside in the rush for the lifeboats - was considered morally despicable. True. But I don't think 'rights' are necessarily involved here - certainly the situation can be fully described without using the word.

When I imagined a pregnant woman with a terminal brain tumor on the sinking ship (to highlight the question of the status of the unborn child in this situation), I began to recognize the absurdity into which these sorts of discussion all too often descend.

All this strengthened my conviction that rights (and similar concepts) cannot be treated scientifically, as it were. They cannot be quantified or dealt with in a scientifically precise way. As with many other issues of semantics and communication, there are prototypical cases, where a concept is fairly clear, and more marginal cases, where there is scope for disagreement.

To take a trivial but instructive case, if I am queueing in a supermarket and somebody tries to push in ahead of me, I can justly tell him that he has no right to do so. (Either he has failed to understand the queueing convention or he is flouting it.)

Too often, though, the concept of rights is used in contexts far removed from these semantically clear cases, and far removed also from any spontaneous and plausible natural language usage. Such tendentious and problematic use of the term only serves to sow confusion.

'Right' and 'rights' are just words, but words which, used sparingly and appropriately, evoke an aspect of the multifaceted moral environment in which we all move.

*Explicit laws (or rules or regulations) can of course unambiguously assign legal (or other formal) rights to individuals or groups.


  1. Reminds me of GEMoore's naturalistic fallacy argument that moral terms (eg, good) are defined recursively through other terms, so that ultimately it's more about meaning than anything natural. Most people say he expanded on Hume by that, but he also seems to have built the framework for Bentham's famous "nonsense on stilts" line on natural rights.

    That isn't fatal to rights, just natural rights. Rights are clear in law because law is (mostly) consensus. But we use "rights talk" even in the grocery store, as you point out. So maybe when we assert "rights to do," "rights to have," and "rights of" entities, what we're really saying is "there ought to be a right to ..." A word that helps us flag what/whom we want to respect, and how. Sort of a verbal punt. The argument "why this entity deserves respect" is complicated; "this entity has a right" is quick and effective.

  2. I'm always interested in inverted rights talk. That is, "you have no right to...." This formula is very useful for cutting the opposition down to size. "You have no right to an abortion." The problem is, it works both ways: "You have no right to tell me I can't have an abortion."

    For me, the "you have no right" formula hides assumptions. You can be sure anyone using the formula feels sweet moral indignation.

  3. CONSVLTVS, I agree with you, there is often a strong emotional element in the 'you have no right...' formula. Sometimes the basic idea can be expressed in positive terms: "I have a right to be served next." Or the abortion example could be expressed in terms of the right to life of the fetus. "You have no right to speak to me that way!" = "I have a right to be treated with respect." But if you have no right to walk on the grass, does the grass have a right to grow in peace?

  4. I am not completely sure what would qualify as a scientifically precise way of understanding natural rights - can state mandated laws be considered scientifically precise? But I do think that the difficulties comes because you try to overextend the concept of rights.

    I for one do not considered natural rights to connected with morals. The natural right arise from the mental faculties healthy human adult have. You don't have these faculties you don't have the corresponding rights. Thus a newborn child does not have rights.

    Morals on the other hand is the social contract we commit ourselves to with our natural rights. We as a spontanous moral society agree on how children should be treated. We agree that children cannot be owned partly because of the potential for the mental faculties, and thus removing children from abusive parents is not a violation of the parents.

  5. GC, I haven't read G.E. Moore but I understand that he argued against what he called the naturalistic fallacy (the belief that 'good' is reducible to other qualities). I am sympathetic to the naturalistic tradition represented by Hume and Bentham, as well as to Wittgenstein's later views on language and meaning. (Wittgenstein was influenced by G.E. Moore in his general methods, I think.)

    I agree with the gist of what you say about legal rights being (sometimes!) clear, and natural rights talk maybe reducing to talk about what (one thinks) ought to be.

  6. Kian Conteh - Welcome. Generally I agree with what you say about children, and about rights only making sense in the context of rational agents. So, as you imply, morality is much broader than rights. I don't think one can maintain a hard-and-fast distinction between rights and morality, however, as a commonsense notion of rights can illuminate some of the ways we relate to one another morally. And, as I think that much rights-talk is overblown, I don't think I am overextending the concept. But I take your point about not expecting such concepts to be amenable to scientific precision.

  7. I am uncomfortable with the idea that a right is available only to a being who can assert it. Then possibly I had no rights until I was 42, or had more rights at 42 than I had at 21. In other words, I don't believe "agency" is a factor; I tend to believe that "standing" (in the legal sense) is the factor.

  8. I really just wanted to make a point, not about the law, but about how a commonsense notion of rights arises naturally as a part of the spontaneous order that characterizes human interaction. The philosophy of law interests me but I don't have a fully worked out position.

  9. As I see it, rights and duties are derived from justice (as distinct from benevolence, kindness, generosity, etc). In the queue, you have a right because the convention behind queuing is understood, and the pushy person is behaving unfairly.

    If rights (and duties?) are just a way of speaking, the pushy person could reply that queuing is a merely terminological matter, and he is free to ignore mere terminological preferences. But the reply to him is that queuing is a social practice with binding conventions derived from an idea of what is just and fair. He can't get around that so easily, I think.

  10. Alan: "a social practice with binding conventions" is a good phrase and the idea that rights and duties are derived from justice is a strong formula. Once again, the obligation and its bindingness appear to be grounded in the expectations of others. If the line-cutter says "I'm not bound by the convention," it's necessary to point out that the convention exists, but what makes the point sufficient is "you are bound not by your own acceptance of the convention, but by everyone else's expectation that you observe it." Roughly "but we have all agreed to hold you to our standard of justice (or fairness)." Anyone is free to rebel (cut in line), but cannot avoid the consequences of doing so.

  11. Sorry ... hypermoxie is OpenID for GTChristie ... should have logged in before I sent the comment. LOL.

  12. Agreed, GC, but with one further point -- the practice must be cooperative.

    The mere fact that we all do X is not a reason yet why someone else should do it. If we all chewed tobacco, that's no reason for Mark to chew tobacco.

    This goes back to the culture/society discussion we were having, and from which I got sidetracked by other events. "Culture" might be a "we all do X" matter. "Society" is an interactive matter: "we all do X together".

  13. Alan, I don't think you really show that 'rights' are not a way of speaking. You yourself translate rights-talk into social-practice-with-binding-conventions-talk. So couldn't one just see rights talk as a sort of shorthand for this? (GC said something like this.)

    Also I think speaking can be, in a sense, acting. So your 'terminological matter' remark seems to be a distortion.

    One last point: are the 'binding conventions' derived from the idea of justice? Do they not in a way constitute what we understand as justice? Do not such conventions which arise from human interactions embody justice?

    You see I am trying to simplify, to avoid unnecessary steps, to avoid multiplying entities unnecessarily.

    I am claiming we don't need a theory, because it's not mysterious. Your idea of justice from which it all derives sounds just a bit Platonic!

  14. Platonic! You flatter me, Mark.

    Social practices combine actions and concepts. We act under certain descriptions. True, I can do what is justly required of me without even knowing that it is required. But that's a matter of chance. Normally I pay my bills because I know I owe the money, and that it would be wrong not to pay them. The concepts guide the action. If I discover that the debt is not really owed, I don't pay it.

    Rights are not just a way of speaking, because actions are required by them, and not just symbolic actions. If I promise you X, then that is a symbolic act but it needs a non-symbolic act to fulfil the promise. In a contract, both parties must perform symbolic and non-symbolic acts, if the contract is to be fulfilled.

    The binding conventions operate at a different level from justice, I think. In the US they drive on the right. In Australia they drive on the left. Those are the conventions. Though different, they are binding in each country, but justice is the same in both places.

    If that's Platonic, them I'm happy to be Platonic.

  15. Alan, you misunderstand me if you think all I am concerned about is the action. My main point is that rights only make sense for those who know what is justly required, who understand the concept of reciprocal obligation etc.

    I take your point about the need for symbolic and non-symbolic actions. I don't think I said by the way that rights are *just* a way of speaking. I see rights-talk as a way of speaking about aspects of the moral system. That system is real.

    Do you see justice as something transcendent? The way you phrase things suggests a certain dualism (like Descartes or Popper).

  16. OK, then we seem to agree completely, and I was indeed misunderstanding you rather crassly.

    I'm not sure what you mean by "transcendent", but in a way I do think all concepts transcend actual reality. There's nothing special about moral concepts in this claim. It's just how language is. Take any concept at all, and we can come up with an unlimited number of instances of it, some of them non-actual ones (science fiction style, for example).

    I doubt that Descartes or Popper said anything on this topic, but Plato and Socrates sure did.