Category: Justice |
Published on Friday, 17 October 2008 17:40 |
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Human Rights: making sense of conflicting views
In a previous handout we examined the US constitution and did a practical exercise around the debate at the time of independence: are "inalienable rights" a "nonsense on stilts" (Jeremy Bentham) or the foundations of just government?
It is not surprising Bentham thought this, for rights theory and utilitarianism stand at opposite ends of the philosophical spectrum, as one elevates the individual as sacrosanct, and the other, some concept of the general good.
We also saw that rights theory came out of natural law, as Aristotle saw that natural rights provides one basis for a concept of justice, in that a society taking justice seriously recognises the equal dignity, autonomy and equality of worth of every human being, even though he was writing in a slave owning society.
This idea was picked up by Locke, writing in an era of great political upheaval in the Glorious Revolution of 1688 (James II and divine right of Kings finally out, constitutional monarchy with Protestant William and Mary and individual rights finally in).
Locke argued that we all possess natural rights to life, liberty and property which derive from our duty of self-preservation owed to God, our Creator. To fulfil this duty to God, we must be free from threats to life, liberty and property. Notice that not only the US Constitution, but the UDHR of 1948 recognises these: in Article 17 of the UDHR the right to property, in Article 5, the right to be free from torture, in Article 14 the right to asylum if liberty or life is threatened.
Locke argued that a Social Contract exists between state and citizen: the state protects rights, and the individual gives the state its allegiance (pays taxes, obeys laws, fights when summoned) in return, but only in so far as the state acts justly. An unjust state must be overthrown: it has broken the implicit contract.
Here we consider two views of rights tracing these views through three writers of the modern era, Hohfeld (2001), Nozick (1974) and Rawls (1971).
Hohfeld's classification of rights: why views of rights conflict
All philosophies arise out of a social context, and moral theories are no exception. Our present age is profoundly pluralistic (there are many views on offer) and also individualistic (the individual and his rights, choices, satisfaction is fundamental to economic theory and also to the modern view of a self-determining being). It is not surprising to find no consensus on the subject of rights: what they mean, and to whom they should be applied (animals? foetuses? children?).
Let's draw two cartoons to illustrate two different views,, and call them person A and B
Cartoon 1: person A Cartoon 2: person B
I want you to fix these two people in your mind and carry them through this handout and into the exam.
Person A is rich. He or she is standing next to a Rolls-Royce, holding a stash of cash. This person is old, and has worked hard as an entrepreneur in Thatcherite Britain. He is thinking "there is no such thing as society, only individuals and choices" (a famous Thatcher saying).
In his speech bubble he is saying: "I deserve to keep what I've earned. I've worked hard for it".
Notice that implicit in our friend's view is a view of entitlement. He is saying in effect: "I'm entitled to keep what I've honestly and legally gained".
There is also a concept of justice which is lacking in utilitarian philosophy. He is saying: "it's only fair to keep what you deservedly own".
Now let's draw Person B (if, like me, you have a visual memory these drawings will help you remember this key point). She is sitting in the archway by the Cathedral with a hat on the ground and a small dog beside her.
In her speech bubble we write these words: "I deserve a fairer share. I've never had your opportunities". She might also say, rather significantly "I'm Irish and your wonderful King William nicked my relative's land after the Battle of the Boyne" (please don't tell me, gentle students, that you've never heard of the Battle of the Boyne!).
Notice that here too we have a view of justice, but it's a very different one from that presented by my friend with a Rolls-Royce. It is a view of justice based on need, rather than entitlement, and indeed, it rejects the view that things are legitimately earned. We might call this a "socialist view" to distinguish it from the Thatcherite view of the man with the Rolls-Royce.
The significant point is that there is a fundamental conflict about what rights mean: rights as entitlements (person A) v. rights as needs or deserts (person B).
Can we reconcile these two views?
Hohfeld's classification of rights
Hohfeld pointed out that when we talk about "rights" we are often talking about very different things. Hohfeld describes a number of different legal usages of the term "right". To keep it simple, I want you to grasp just two: right as entitlement and right as liberty.
Right as entitlement
Rights give us claims. These claims involve two people and a context. I have a car, for example, by my own low standard quite a flashy one. My ownership of the car gives me a claim against you that you don't drive my car away. You have a duty to respect this claim, and if you don't there will be some appropriate punishment, such as mincing into little pieces and feeding to crocodiles.
The context here is a car: it could be a house, a dog or even a child. (I have a claim on my children which is respected in law. I can withdraw them from the school system and home educate them, and around 35,000 people currently are doing just this. I can also cuddle them, nibble their earlobes, and as the law stands, even hit them, though not too hard. If you did any of these things you would be locked up, I guarantee!).
Rights as freedoms (or liberties)
Now consider liberties. I am free to walk down the street. No-one can make me walk down the street: there is no claim here on others by me. If it was my job say to be a community policeman it would be different, but it isn't. I have a right to walk down the street (and a whole lot of other things, such as pontificate on Mrs Thatcher...free speech...join a political party...free association...wave a placard saying "animals have rights"...freedom to protest...go shopping on Sundays...freedom of choice etc.).
But none of these freedoms are derived from legal claims I am making, or impose duties on you.
They are, in fact negative freedoms because they reflect absence of restraint. As such the only duty on you is not to stop me, to respect my right to a bit of pavement...you can't do anything positive to make me exercise my liberty, but you can violate my right by forcibly preventing me.
Notice in passing a problem with this negative liberty. It doesn't give me the power to do these things. If I am to walk down the street I need leisure time, good health and access to the street. This raises a fundamental issue: do we need positive freedom as well as negative? This fundamental issue lies at the heart of the Bakke debate in the US about positive discrimination (Bakke was the name of the student who took his education board to court for excluding him because of a quota system favouring black students). It raises the issue: is positive discrimination immoral, extremely moral or what?
Rawls and Nozick
The fundamental distinction in our cartoon above, between rights as entitlements and rights as needs, continues in the writings of John Rawls and Robert Nozick.
Nozick is arguing for equality of entitlement. His view is that of person A.
Rawls is arguing for equality of need. His view is that of person B.
And Alasdair MacIntyre, in a brilliant chapter in After Virtue argues that both are flawed attempts to derive rights in a world dominated by the pluralistic worldview, a view which takes no account of history (or our shared story...the social context of morality).
Let's try and give this some content.
Robert Nozick (1974)
If someone asks me "why are you entitled to that car?" Nozick allows us only one of two answers.
a. I'm entitled to it because I bought it, ("a just act of initial acquisition" he calls it).
b. I'm entitled to it because my dad gave it to me ("a just act of transfer" he calls this).
So "the complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings that they possess under the distribution" (1974:153).
Nozick's conclusion - that redistribution violates entitlement - stems from a view that entitlement or property rights are inviolable.
But here we encounter a problem well stated by MacIntyre. If we are to argue that legitimacy of transfer is one way of getting property, we must also argue that all transfers in history up to this moment have been legitimate. In a year when we are thinking of slavery, this is clearly nonsense: the Americans nicked land from the Indians, the Australians wiped out the Aboriginal people (so that in Tasmania there are no indigenous Aboriginees left), William the Conqueror stole everything from the Saxons and so on.
"If that is so, there are in fact very few, and in some areas of the world, no legitimate entitlements" (MacIntyre: 1981: 251)
John Rawls (1971)
Rawls' fascinating "A Theory of Justice" owes a debt to social contract theorists such as Rousseau but also to Kant. In some sense he is Kantian, because, like Kant, he argues that morality stems from rationality, a kind of abstract rationality that makes us abstract from our present circumstances and try to imagine what we would think if our own situation was unknown.
Rawls argues (again a bit like Kant's rational legislature in a kingdom of ends) that his principles of justice would be adopted by rational people operating "under a veil of ignorance" which gives them no knowledge of their particular circumstances (wealth, income, family, talents etc).
His two principles are:
1. "Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all".
2. "Social and economic inequalities are to be so arranged that they are both (a) to the greatest benefit of the least advantaged.....and (b) attached to offices and parties open to all under conditions of equality of opportunity" (Rawls 1971:303).
In other words, Rawls said we would reasonably go for maximum freedom and maximum opportunity to better ourselves, with a safety net for those who (because life is unfair) gives them greatest benefit.
There are a number of weaknesses in Rawls' view. Perhaps the most significant is his failure to take account of past allocations based on this same equality of opportunity. My great grandfather made his fortune out of the Victorian cotton boom: should I have any right to share in his hard-work (or was it exploitation???!!!)?
If we really had a "veil of ignorance" of course we would accept Rawls' theory because it gives us the best chance just in case we wake up to find ourselves at the bottom of the pile.
But that doesn't help us much in a world characterized by continued vast inequalities, exploitation, and unjust practices. What of the rights of the child slaving in a copper mine in the Congo at this very moment for a tiny daily wage, no health and safety regulations, for middlemen who are only concerned with profit?
You can see how some would argue for a more robust view of human rights, and a more redistributive view of justice. And part of that redistribution is not just wealth: it may include power and opportunity.
Is positive discrimination a morally acceptable way out of the problem of conflicting rights and duties?
This is a living issue. On April 20th 2007 a headline in the Daily Mail read "Race quotas police plan under attack". The association of Police Officers were arguing for a change in the law to allow "affirmative action" programmes, after recent research showing that ethnic minorities still only consist of 3.7% of the police force (below the present target of 4%).
The Labour Government recently set a target of 7% by 2009, which seems an impossible dream without positive discrimination in terms of some sort of quota for ethnic groups.
It is interesting that the Commission for racial Equality (CRE) opposes this idea:
"These forms of reverse discrimination could increase community tensions rather than ease them...it would be divisive and counter-productive...negative perceptions and experiences are the real problems to be addressed".
It seems we may be caught between two morally unacceptable situations: lack of representation for ethnic minority groups and positive (reverse) discrimination.