Rights

From the SEP-

The big questions about rights are:

  1. Are rights justified by the status of the rights-holder (Natural Rights)?

  2. Are rights justified as instrumental to some other end (Rule Utilitarianism, for instance)?

  3. Are rights justified contractually (Social Contract)?

Further complicating the problem is that these questions are not mutually exclusive. For instance, one can imagine (and find) a Natural Rights-based Social Contract theory that views rights as instruments toward a further end. That end may be a simple as “social order”. My view is that any rights-based social-moral theory can ultimately be described minimally as a Social Contract Theory, or in terms of a SCT. And that, this being the case, with the application of Occam’s Razor, or something like it, SCT is the simplest, most efficient and most useful socio-moral theory.

This is an idea based, more or less, on Nietzsche’s general critique of moral systems, particularly religion based morality. I will leave open the question of just what type of contract is being characterised - that is, contracts can be uni-, bi- or multi-lateral, and in practice, it is my claim that most or all social contracts display characteristics of all of these.

My further claim is that, given the serious flaws of Utilitarianism as an overarching social theory, but it’s advantages as a useful tool in some social decision-making, particularly in a democracy, and given the epistemic problems associated with Natural Rights, that SCT can subsume both methods as a social theory and render them unnecessary or redundant. Which is to say that, Occam’s razor or not, we are still always left with a system that can be described as SCT.

Anyone wanna play?

“Justified contractually” simply means not justified, doesn’t it? There’s a law protecting a certain right on the books; therefore, that particular right is justified. The particular laws, the particular rights, don’t matter so much… The justification is based on a generic result - by protecting some rights we get a stable yet dynamic society.

Interesting choice of words.

As for the questions posed, some say “yes” and some say “no”. I say “maybe…it all depends”.

anon -

No, it just identifies the foundational principle of the rights. In other words, Natural Rights are granted by God (as only one example - there are other ways to justify NR’s). Instrumental Rights are justified as rules pursuant to another more basic idea (such as "the greater good’) and rights justified by contract are justified by the contract.

I’m not sure if that answered your question, though. But all rights are justified through some means.

I’d put it the other way 'round. As rights are seen as more fundamental than laws. Which is one reason we have a Supreme Court. The laws are justified, or not, but the rights. It depends a bit on the time and place. We have lots of laws, now, but in the past, rights were not necessarily amplified by what we now call a law. There was God’s law, common (and often unwritten) law, and simple custom. Rights apply even to primitive societies, which do (did) not use a “legal” system such as ours.

I don’t think so. Some rights are dependent on others. Some societies are more stable than others. But maybe I mistake your meaning - stability, order, and ease of government are usually the operative ideas, yes.

iam - I say that only because I have left my thesis largely unexposed, hoping for a dialog, and not simply reactions to my main ideas.

I guess what I’m saying is if a right is protected by law, it’s already been justified by some means other than the fact that it’s now a law - or else it’s never been justified at all. A bunch of people agreed, and it became law. A bunch of people agreeing doesn’t really strike me as justification. So that leaves either natural rights or some kind of instrumentalism. If I’m not mistaken, rights in the US were justified as being natural.

But I don’t know anything about SCT with any depth, so maybe I’m still missing something.

anon -

Okay…well. The right is the king and the law the pawns. The laws defend the rights. But it’s the rights that are of most value, hence the SCOTUS protection of the Bill of Rights. In our system.

As for a bunch of people…Natural Rights in Rousseau are essentially rights against the king, or the government. In feudal times, rights of inheritance replaced the right of reversion of land to the lord of the manor, or modified it. Rights are usually held against the more powerful. In present day US, we have expanded the notion, claiming that I can violate your human rights as an individual, but that’s relatively recent. Take the 10 Commandments and related laws. These state “thou shalt not kill”, and what that means is that only the leaders can sanction a killing, as with stoning an adultress. Unlike in India, where the husband can order the killing. So, no right to kill is granted under Hebrew law, or rather it is retained by the 'state".

It may be “a bunch of people” deciding, but that bunch can be very small. Either way, if that’s the actual basis of the right, then that is what i call the justification. That not everyone agrees is the reason that different people prefer different bases for rights. But i think as an overview, “justification” is the correct word. Just to set out the different types of rights extant in philosophical writing and thinking.

In fact, US rights are thought of as natural, but it’s a mixed bag. English Common Law has its influence, as well. Formally, NR’s are most prominent, however.

It seems to me that there’s two ways we talk about rights. The first would be between individuals- there is some conflict with you and I, we resolve it by a reference to what our rights are. In that sense, rights strike me as just a really convoluted, inverse way of talking about obligations. If we’re talking about the rights the State grants us, that strikes me as a commercial thing- the rights a given country grants it’s citizens could be put on a list of “Reasons why you’d want to live here”, and that’s pretty much sums up the nature of their existence.
The only objective rights that seem plausible to me are the sort that could be expressed as obligations- “Everybody, everywhere, has a right to live” could be expressed as an obligation not to kill people. That’s why a right to healthcare seems so bizarre to me- it’s unclear what obligation this is referring to, who is obligated, and how the obligation is fulfilled.

Just exploring here… so how does a possible “right” in its embryonic form fit into your argument? I feel like I should have the right to a reasonable amount of environmental quiet. It makes sense to me intuitively, but it’s difficult to know what exact form this “right” could take, if written into US law - which kinds of noise are allowed, and which not allowed? Can we draw relatively simple and enforceable lines? Currently, local noise ordinances are sometimes opposed based on the idea that they violate certain rights. So in what way would (or wouldn’t) SCT justify this right to reasonable environmental quiet?

I think rights and obligations are merely the obverse and reverse of the same coin. But rights against the state are not merely commercial, if we hear the Queen of Hearts calling “Off with their heads!”

In the US today, there has been an explosion of rights, because of the moral force they have. So, yes, Ucci - just about everything anyone wants is couched in terms of rights in the US today. That’s not an indictment of rights per se, but of our current politics, in my view.

I view rights as useful instruments of a social contract system. A couple of rights are so fundamental as to seem very much like natural rights, but there are ways of justifying them withiut the problems attendant to natural rights as they have been formulated.

Well, either the Queen is violating some personal obligation as a human, or else her actions are making her Kingdom an unappealing place to live. Or both.  I'm not yet seeing a third grounding for rights.  I think what I'm saying is very similar to or the same as a social contract, except making it a commercial thing doesn't require me to say that everybody somehow agreed to the contract. 
I do think obligations can be 'natural', in the sense of not matters of social contract or convention.

anon -

Yeah, it’s essentially a private property right. “right to quiet enjoyment”.

Better than a natural right, i would claim. But essentially in the same way. The difference is in the notion of Natural Rights itself. We know the source of SCT. It’s people. A big bunch, a little bunch, a ruthless dictator who imposes a unilateral contract - usually a mix of all three. Natural rights are metaphysical entities. That can be a problem in itself. Especially as new rights are proposed.

Ucci -

The kingdom may well be an unappealing place to live. Not everyone can just pack up and move out, though, so it is a matter of some consequence. Classically, the least powerful are the most dependent on rights.

And true - it is unlikely that everyone in the group would agree to the contract. Complete agreement is not necessary, and not even desirable, in my view. it’s a process, not a document or a steady state. Change is good. the contract should change over time, and change is brought about by dissatisfaction. The US could be seen as having its birth through the desire of some of its citizens to change the contract.

Everything we do is natural, but the idea of Natural Rights employs the term in a more narrow way than that.

Could you please explain how Social Contract Theory follows (directly or indirectly) from anything Nietzsche wrote… It’s one of the more shocking claims I’ve heard made about Nietzsche, which is really saying something. --A quote, or anything like that, would help.

Nietzsche would hate “rights”, “contracts”, “obligations” ect, for the same reason he hates Democracy and equality—they’re a leveling force, which inhibit the few great individuals that justify humanity as a whole. “Laws”, “rights”, “obligations”—all bullshit, to Nietzsche. There’s only relations of power, and they should be uninhibited.

Faust, I see where you’re coming from, but I guess I just basically don’t see how agreement is any form of justification at all. Agreement comes either after justifications have been considered, or without any appeal to justification at all. I brought up the example of a right that hasn’t yet been agreed to in order to demonstrate that agreement can’t be used as a form of justification prior to the actual agreement, unless that agreement is instrumental in producing something - i.e. peaceful coexistence.

It seems to me that, in the end, rights are justified by some other end. The greater good, social order, already existing and working customs that one wants to see anchored, remedying past power abuses,… there is some idea that rights will make things better in the future. Natural rights could be seen in those terms too, as the minimum people think humans need to be able to flourish or something. In fact that seems te be exactly what they are, if we think natural rights are a problematic concept.

The problem with describing everything in terms of contracts, and with the social contract theory in general i guess, seems to be that the word ‘contract’ needs to be stretched to far. Usually we speak of only a contract when every party agrees voluntarily. In a way the terminology covers up what is really happening.

Monie -

Others have been shocked before you. It follows in that N views Christian morality, which is still a major influence in social/moral theories, as a mere instrument of government. Starting with his phrase, “the priestly caste”, who earned their keep through tithing, which was justified by reference to the will of God. Further, the religion was used as a form of social control, which it is to this day. And while it was at first, with the early jews more or less unilateral, the slave mentality co-opted Christian mores (in the Christina era) to ascend to power themselves. Thus the Middle Ages, where often the church was more powerful than the state. In short, N claims that the minimal case for the Christian religion was that it was a device for social order.

That’s the thumbnail version, which will have to suffice for now. I cannot rehearse Nietzsche’s entire thesis for you in a post.

N didn’t hate rights per se. he thought the higher types didn’t need them. But he understood noblesse oblige, and accepted it, and rights themselves are features of a social contract - it matters not if N thought they were of use - although he saw how they were. My premise is not that specific - it’s that the minimal case for socio-moral arrangements is that they are social contracts - not metpahysical, but in the hands of humans. N was very much on board with that notion.

Further, the higher type is largely unconcerned with political forms - he can thrive as well in a democracy as in any other system. His “job” is to overcome the system. He was surely a fan of there not being inhibitions to power, but he recognized that they will always exist. Nietzsche was not political - for that is too narrow a category. but Social Theory is a broader category also - and a social contract can and does exist in any political arrangement.

anon -

Then you are not a social contractarian. But here, i am following David Gauthier, in that people disagree all the time, but will benefit by finding co-operation as they can. Simply put, all else being equal, a social contract will be born. The justification is that mutual benefit.

I think we are using words differently. God is “instrumental” in making us behave. That doesn’t mean that God is a mere instrument.

Deikon -

I think if you look into the different types of contracts, you will learn of “unilateral” contracts. Here, the contractor dictates the terms, and the contractee takes or leaves it. Extortion is a form of contract in this way, and many people consider insurance contracts, which are unilateral, to be extortionary, especially when the insurance is required by law.

Rights are claims we have against each other, or more usually, against the king, the lord, the government. “Greater good” is a loaded term, and dependent on ones point of view. Rights tend to make things better for one party and not so good for another. I think these concepts are too fuzzy to be of help. It’s better to start with something more fundamental than rights, as rights are always intelligible only within a larger system.

Which is where duties and obligations and such take over. Couldn’t we example when it might and might not be acceptable to cut off a person’s head without reference to states, and then come up with an answer to what a head of state (or Congress, or what have you) ought to do with regards to execution?