Rights

A Critical Introduction

Tom Campbell

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781134461752
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

We take rights to be fundamental to everyday life. Rights are also controversial and hotly debated both in theory and practice. Where do rights come from? Are they invented or discovered? What sort of rights are there and who is entitled to them? In this comprehensive introduction, Tom Campbell introduces and critically examines the key philosophical debates about rights.The first part of the book covers historical and contemporary theories of rights, including the origin and variety of rights and standard justifications of them. He considers challenges to rights from philosophers such as Bentham, Burke and Marx. He also examines different theories of rights, such as natural law, social contract, utilitarian and communitarian theories of rights and the philosophers and political theorists associated with them, such as John Stuart Mill, John Rawls, Robert Nozick and Michael Sandel. The second part of the book explores the role of rights-promoting institutions and critically assesses legal rights and international human rights, including the United Nations. The final part of the book examines how philosophies of rights can be applied to freedom of speech, issues of social welfare and the question of self-determination for certain groups or peoples. Rights: A Critical Introduction is essential reading for anyone new to the subject of rights and any student of political philosophy, politics and law.

PART I

THE DISCOURSES OF RIGHTS

Chapter 1

The reputation of rights

Rights currently enjoy a highly favourable reputation. The discourse of rights is pervasive and popular in politics, law and morality. There is scarcely any position, opinion, claim, criticism or aspiration relating to social and political life that is not asserted and affirmed using the term ‘rights’. Indeed, there is little chance that any cause will be taken seriously in the contemporary world that cannot be expressed as a demand for the recognition or enforcement of rights of one sort or another. It is not enough to hold that a proposal will lead to an improvement in wellbeing or a reduction in suffering, unless it can also be presented as a recognition of someone’s rights, preferably their human rights. We live in ‘The Age of Rights’ (Bobbio 1996, Loughlin 2000: 197–214, Douzinas 2000).¹

The pervasive popularity of rights has many sources. First, rights discourse is the language of priority. To have a right is to have something that overrides other considerations in both moral and legal discourse. It is a language of high normative force that demands our attention. In the words of one influential rights-theorist, Ronald Dworkin, ‘rights are trumps’ (Dworkin 1977: xi, 90–4, 364–8)² by which he means that treating people in accordance with their rights takes priority over promoting general utility or the common good. The premier political philosopher of recent decades, John Rawls, gives a similar priority to justice, and then goes on to make rights the principal ingredient in justice, ascribing a ‘lexical’ priority to basic rights that gives them the dominant position in his theory of justice (Rawls 1972: 43).³

A second, source of the popularity of rights discourse is that it is perceived as the language of individualism. While it is now common to speak of group rights (see Chapter 10), it is rights as the valued possessions of individuals that dominates the discourse. In their typical expression, rights are attractive because they express the great moral significance of every individual human being. A society that is based on rights is believed to manifest and affirm the dignity of each and every human life as something that is deserving of the highest respect. Rights affirm equal human worth (Vlastos 1962).

Third, rights are associated with the language of remedies. Rights are part of a practical discourse that not only invites but requires action to be taken in response to the claims that rights express. Rights are seen as providing protection against the abuses of the powers that be: officials,employers and, in particular, governments. Rights establish the institutional basis for achieving justice in social and economic relationships: normally, they allocate to rights-holders the capacity to control, possess or at least claim that to which they have a right. In legal contexts it is a truism that there is no right if there is no remedy. The moral discourse of rights also carries an imperative for remedial action where rights are not secured. Rights are not associated with simply aspiring to do what is good or desirable but demand restraint, redress and rectification of wrong done in violation of rights.

Fourth, rights discourse is decisive. Rights promise clear and relatively simple answers to difficult moral and political questions. By identifying those factors that are determinative in establishing what it is right and just to do in particular circumstances and excluding other considerations as being of lesser significance, rights promise clear answers to moral problems (Nozick 1974: 26–53). If a person has a right to do or have something then that settles the matter. Asserting rights cuts short debate and let us get on with our lives. This is both helpful for the individual and an efficient way of reducing social conflict and encouraging cooperation. It also provides a moral certainty that can be a comfort and inspiration.

Fifth, rights offer security through a system of social and political entitlements. Having rights enables us not only to enjoy certain benefits but to have the knowledge that they are ours ‘by right’ and cannot therefore be taken away at the whim of others. This is the theme that is expressed most strongly in republican theories of government which stress the importance of not being ‘dominated’ by those who have the power to arbitrarily deprive us of things we value (Pettit 1997). Security also features in even the most revolutionary calls to overthrow existing rights-violating régimes since the declared aim is normally to establish a new order based on a system that will provide and secure essential elements of wellbeing.

Finally, rights discourse is general in that it features the protection and furtherance of the interests of types of person rather than particular privileged individuals and, in the case of human rights, has the attraction of universality (Gewirth 1982, Ignatieff 2001: 3–12). Rights, particularly in the form of human rights, provide a basis for setting standards that apply to everyone in all societies and to every government, thus holding out the prospect of universal justice. Even where certain rights are ascribed to individuals of a particular type this is done on the basis of general rather than personal characteristics and no one who has such characteristics can be excluded from having the rights in question. The generality of rights offers protection to individuals against arbitrary treatment, a feature which is most evident when universal rights are ascribed to all persons irrespective of the race, religion, class or gender. Such inclusive rights are a focus for the moral critique and control of all social and political arrangements.

Drawing together these six points, we may say that rights discourse has a high reputation because it gives overriding importance to a heady combination of heightened personal worth, valuable and secure practical protections, decisive answers to disputed political issues and the hope of global justice.

Our problem is, however, that this encouraging profile of rights discourse coexists with substantial scepticism amongst those who have sought to define the nature and content of rights in practice. These sceptical critiques are explored in this chapter, first by reviewing cycles of optimism and disillusionment in the history of rights and then by taking a look at some current critiques which suggest that there are endemic problems if not with the idea then certainly with the practice of rights in their current form and content.

Historical ups and downs

There is nothing inevitable about the current dominance of rights in political discourse. The history of rights covers a comparative brief period of human civilisation (Edmundson 2004, chapter 1). Rights (as distinct from the more general ideas of right and wrong) were unknown to the Ancient Greeks and Romans, although the idea developed in the course of medieval theorising concerning Roman law (Tuck 1979: 5–31). Rights talk emerged in the medieval period with the notion of natural rights, a by-product of the idea of natural law.⁴ Natural law was a fundamental concept of pre-modern western political philosophy. It represented the natural order of things, believed to be established by God as the creator of the universe, and applied in particular to the norms that govern the conduct of human life. According to natural law doctrine, human beings do not always follow the order ordained by the Creator, but they have the capacity to know and to perform that which the natural order requires of them, which is generally taken to mean living according to the nature that God has given them. This means that human beings have obligations or duties, such as to refrain from killing other human beings, telling the truth, and worshipping God, the fulfilment of which enables both the beneficiaries and those fulfilling their obligations to flourish as the social beings God made them to be (Aquinas 1979).

Conceptually it is a short step (although a major political advance) to say that those harmed by the violators of natural laws, such as the law against murder, have been personally injured or wronged. In the act of theft, for instance, not only has the violator of the natural law against theft disobeyed God, he has at the same time harmed and therefore wronged the victim of the theft. Thus, the person who did wrong, as defined by natural law, came to be seen as having also committed a wrong against the person injured. Victims of human wrongs came to be seen as having a legitimate personal grievance against the wrongdoer and a personal claim for recompense or revenge against those who had injured them in violation of natural law. In this way the idea of natural rights emerged from the discourse of natural law (Ritchie 1895, Tuck 1979, Bagger 1989, Tierney 1997, Brett 1997).

Natural law was conceived as being God’s law, and therefore of universal application. This means that natural rights can be held to exist even when the actual or ‘positive’ law of the land does not treat breaches of God’s law as illegal. Further, everyone with the rational capacity to understand natural law has these rights and obligations for they are based on nature rather than convention or agreement. This applies also, perhaps especially, when the perpetrator of the violation is a ruler who is, by virtue of political power, immune from the constraints of positive law. Hence the emergence of the connection of natural rights with the idea of legitimate rebellion against those rulers who persistently injure their subjects contrary to natural law and thus violate their rights. Hence also the idea that it is the duty of governments to enact, adhere to and enforce positive laws that protect the natural rights of their subjects, as well as the obligation of subjects to obey such laws.

The genesis of rights in the idea of natural law may be a problem for the reputation of rights in a world that has largely lost the belief in a natural order ordained by God. Indeed, some philosophers doubt that the idea of rights (beyond positive or legal rights) makes much sense in a secular age marked by diverse cultures and detached from shared assumptions about the natural order of things (MacIntyre 1981). Yet the first major impact of rights on human history arose precisely at the time when philosophers were attempting to find a justification for natural law that does not depend on specific theological beliefs. Natural rights, derived from ‘reason’, ‘self-evidence’ or an empirical conception of ‘nature’ based on a study of how humans actually behave, were used to critique feudal society, justify rebellion against hereditary monarchs and establish ‘republics’ committed to such ideals as liberty, equality, fraternity and the pursuit of happiness, including the universal right to the ownership of property and participation on an equal footing in commerce and trade. It is the essence of this ‘enlightenment’ project of the seventeenth and eighteenth centuries that ‘reason’ not revelation, is the only defensible basis for morality and politics.

Secular forms of natural rights played a crucial role in the political discourse of eighteenth century Europe and its colonies, as manifest in the United States Declaration of Independence (1776) and the French Declaration of the Rights of Man (1789). In the American case, the prime inspiration was the work of English philosopher John Locke (1632–1704) who drew on the idea of a ‘state of nature’, that is society existing prior to the emergence of government, as a basis for working out what rights and duties apply once government is properly established. Locke himself, starting from a theological basis, deduced from his belief that a benevolent God is the creator of life, that human beings have the right to the life that God had given them, and the liberty to act so as to protect and sustain that life. Moreover, he deduced from the benevolent intentions of God, the implied right to such property as was necessary to support that life and those liberties (Locke 1988). On this basis, he concluded, governments are justified only in consequence of a ‘social contract’ or agreement between individual human beings in the state of nature to establish a sovereign authority or supreme political and legal power for the protection of these rights. An important corollary of the social contract, for Locke, is that governments retain their legitimacy only by observing and protecting natural rights they were established to protect. Citizens can justifiably disobey and overthrow such governments, as in the revolt of the American colonies against British rule, when that trust is broken through the governmental violation of natural rights.

In a very different cultural context, the emergence of rights discourse in France marked the transition from feudal social orders based on a version of natural law that included natural social hierarchies, to a bourgeois society in which, in theory at least, all have the right to participate in economic and political life within a public sphere, independently of social class or religious authority. Here the prime inspiration was provided by Jean Jacques Rousseau whose Social Contract, published in 1762, also drew upon the idea of the state of nature, in his view a time of noble simplicity marked above all else by spontaneous liberty but lacking the elements of economic development and moral consciousness (Rousseau 1968). In the state of nature the ‘noble savage’ lives a free but morally, socially and economically underdeveloped existence. Rousseau presents a vision of legitimate government as a system in which democratic participation reconciles the conflict between the restrictions of a civilised society governed by law and the need to protect the original natural liberty of individuals. This is achieved by making citizens the authors of the laws that bind them.

The revolutionary implications of Locke and Rousseau were developed and applied in the blunt and stirring rhetoric of the republican activist Thomas Paine, an Englishman who emigrated to the United States, which matched the mood of both the newly independent American colonies and the post-revolutionary régimes in France. Paine, in a series of remarkably modern political booklets attacking the monarchical-aristocratic system, that stressed social and economic rights as well as civil and political ones, captured the radical political implications of demanding that governments respect universal rights and declaring that they gain legitimacy only through obtaining the consent of the governed (Paine 1969).

The long term reputation of the rights articulated by Locke, Rousseau (although not the economic and social rights introduced by Paine) rode high on the economic and imperial successes of the emergent capitalist societies, but in the short term it suffered through what were seen as the excesses of some post-revolutionary societies, such as the domestic brutalities and subsequent military adventurism of France. A famous critic of the French Revolution, Edmund Burke, laid some of the blame for post-revolutionary barbarities on the notion of natural rights used by the revolutionaries to justify overturning the existing social order. The essence of Burke’s complaint is that the abstract and ahistorical rights enunciated by the enlightenment theorists, such as ‘the right to life, liberty and property’, were so devoid of specific content that they could be used to undermine the social traditions and institutions on which real liberty is founded, as the descent of the French Revolution into anarchy, war and dictatorship amply demonstrated (Burke 1969).

The attractive simplicities of the rights to life, liberty and property that came to form the ideological foundations of modern market systems and legitimate the dominance of the new middle classes were overwhelmed by the miseries and inequalities of nineteenth century industrialised states in which freedom of contract and the uncontrolled private ownership of the immensely productive manufacturing processes, led, particularly in Europe, to demands by and on behalf of a suffering majority for social and economic justice. For some, like Karl Marx, this involves a repudiation of the entire panoply of natural rights on the grounds that they represent no more than the disguised interests of the bourgeoisie, that is those who own the means of production in a capitalist society. The equal right to property produced not only an inequality in what is owned by different individuals but brought about an exploitation, close to slavery, whereby one social class, the owners of the means of production, used the labour of another social class, the proletariat (those who earn wages by working for the bourgeoisie) to accumulated unmerited wealth (Marx 1977).

Marx predicted and worked for the abolition of the capitalist system of production and looked forward to a society in which human needs would be met by collective action free from the coercion of law and the exploitation made possible by private property in the means of production. In a communist society there would be no place for the abstract rights of the individual. Real, fulfilling freedom would be achieved for beings whose nature is inherently social and non-acquisitive working together in harmony. Rights have no place in a post-bourgeois society.

For other philosophers at the time, such as Jeremy Bentham (1748–1832), the widespread suffering amidst plenty that resulted from industrialisation generated political rights for everyone (or at least all men) so that the majority could exercise democratic control over an irrational system that produced such unnecessary misery. Bentham famously renounced natural rights as ‘nonsense upon stilts’ (Waldron 1987) on the ground that the idea of rights only makes sense in relation to an actual social and legal system rather than some imaginary natural order. However, he argued for a system of positive rights that would serve the general happiness by channelling selfish behaviour in socially useful directions. For Bentham, rights are a human creation which can play a beneficial role in any society that seeks to achieve the utilitarian moral objective of the greatest happiness of the greatest number through the enactment of laws that protect the individual and promote the general good, thus securing real benefits for all and hence serving the interests of the individual (Bentham 1982: 12–13).

Marx is the father of a certain type of socialism and Bentham of a certain type of economic liberalism, yet both endorsed the ultimate value of human happiness. This emphasis on the wellbeing of the majority had powerful appeal at a time when industrial capitalism was at its height. Indeed, until comparative recently, appeals to the ‘common good’ or the ‘general welfare’ or ‘social justice’ had as much if not more salience than the idea of respecting and protecting rights, which were often thought of, by Marxists and Benthamites alike, as obstacles to social and political progress which entrenched the power of property owners and established political elites.

The welfare provisions, including the social rights, that now exist in varying degrees modern democratic states emerged as a result of an emphasis on public goods, the general welfare and the common good, not as an expression of rights. In the United States of America the clash of rights and social wellbeing is epitomised in the so-called Lochner era when the Supreme Court repeatedly blocked the social legislation to protect exploited workers in the early decades of the twentieth century (Lochner v. New York 1905). Similarly, in the UK, traditional common law rights were used to frustrate the development of trades unions and employee protection. This led to widespread suspicion of rights, as is manifest in opposition to the European Convention of Human Rights (1950) on the grounds that it might restrict the development of the post-war welfare state and limit the traditional sovereignty of the parliamentary system that brought about such social improvements. Similarly current anti-globalisation movements point to the inequalities and suffering caused by the application of the private property rights of multinational corporations throughout the emerging global economy.

Nevertheless, rights have regained their present dominance since the Second World War, first under the auspices of the United Nations, and its Universal Declaration of Human Rights (1948)⁵, which were created to avoid a recurrence of the inhumanities which characterised that war, and later through the growing international acceptance of a US legally-oriented culture and the perceived role of the Supreme Court in promoting racial integration in the 1960s. Fostered by the Cold War as an ideological battleground between West (civil and political rights) and the East (social and economic rights), the discourse of rights flourished. The idea of protecting rights through constitutional entrenchment and international organisations has blossomed further with the demise of the Soviet Union, the emergence of new states in ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface: Exploring rights
• PART I. The Discourses of Rights
• PART II. The Institutions of Rights
• PART III. Three Human Rights
• PART IV. A Theory of Rights
• Appendix. A literature map
• Notes
• Bibliography
• Index