Two Senses of 'Right'

 

1.  Right contrasted with wrong (as in "X is the right thing to do").  This sense of 'right' conveys a simple 'ought' (e.g., You ought to do X).

 

2.  A right as a VALID CLAIM that one has to something.  This sense of 'right' conveys more than a simple 'ought'.  In this sense, a right involves an entitlement or a claim that the right-holder is permitted to enforce in some way. 

The main idea:  moral enforceability.

 

How does Feinberg's example of Nowheresville illustrate the difference?

 

 

 

 

 

 

 

 

 

 

 

 

 

BUILDING ON FEINBERG'S IDEA:  TWO KINDS OF RIGHTS

 

(1) Liberty-rights:  Rights that make certain actions permissible.  If X has a liberty-right to do Y, then it is morally permissible for X to do Y. 

Like all rights, liberty-rights are assumed to be morally enforceable.  To say a liberty-right is enforceable is to say that among the acts that it makes permissible are acts of self-defense and punishment against transgressors of the right. 

 

(2) Claim-rights:  Rights that directly generate corresponding duties in others.  If I have a claim right that others not harm me, then other people have a corresponding duty not to harm me.  Like all rights, claim-rights are assumed to be morally enforceable.  To say that they are morally enforceable is to say that they include a liberty-right that permits acts of self-defense and punishment against transgressors of the right.

 

 

 

 

 

 

 

LEGAL AND MORAL RIGHTS

(Corresponds to Cranston's Distinction Between Positive Rights and Moral or Human or Natural Rights)

 

LEGAL RIGHTS are rights that are enacted into law and enforced by an institutionalized system of adjudication and punishment. 

 

MORAL RIGHTS would be rights to be treated in a certain way, regardless of whether there is any institutionalized system for enforcing them. 

 

To say that there are moral rights (e.g., that everyone has a right to life) is typically to make a normative moral statement about what claims people ought to have on each other (e.g., a claim not to be killed).  It is possible to hold that people have moral rights even if there is no institutionalized system for enforcing them. 

 

 

 

 

 

 

 

 

The U.N. Universal Declaration of Human Rights (1948)

 

 

The four categories of rights:  civil, political, economic, and social.  Which rights in the U.N. Declaration fall into each category?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cranston's Criticism of the Universal Declaration of Human Rights

 

 

According to Cranston, what are the significant differences between the traditional political and civil rights and the new economic and social rights? 

 

1.  Universality

2.  Paramount Importance

3.  Morally compelling vs. a utopian aspiration 

4.  Rights against government (or other) interference vs. rights to a benefit

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Distinction Between Positive and Negative Rights/Duties and (not Cranston's distinction between Positive (i.e., Legal) and Moral Rights)

 

Negative rights are rights to non-interference.  Negative rights give rise to negative duties (duties of non-interference).  Give examples.

 

Positive rights are rights to some benefit that must be paid for by someone.  Positive rights give rise to positive duties (duties to act to provide some benefit).  Give examples.  [Note that this is not exactly the way that Shue makes the distinction.]

 

The main issue raised by Cranston: 

Are there any morally compelling, universal, positive (as opposed to negative) rights of paramount importance?

 

 

 

 

 

 

 

 

 

 

Shue's Answer

 

The most basic rights include both negative and positive elements.  There is no clear or important line between them. 

 

Rights to Security and Subsistence.

 

What are rights?  "[J]ustified demands for social guarantees against standard threats."(Shue, p. 34)

 

What are basic rights?  Rights that are necessary to the actual exercise/enjoyment/fulfillment of all other rights.

 

What is security?  Protection against certain serious kinds of harms.

 

What is subsistence?  "[U]npolluted air, unpolluted water, adequate food, adequate clothing, adequate shelter, and minimal preventive public health care. . . .  [A] decent chance at a reasonably healthy and active life of more or less normal length, barring tragic interventions."(Shue, p. 23)

 

Right to subsistence applies "at least to those who cannot provide for themselves." (Shue, p. 24)

 

STRUCTURE OF SHUE'S

TOP-DOWN ARGUMENT

FOR BASIC RIGHTS

 

1.  Everyone has a right to something. (p. 31)

 

2. “If everyone has a right to y, and the enjoyment of x is necessary for the enjoyment of y, then everyone also has a right to x.” (p. 32)

 

3. Security and subsistence are necessary to enjoying anything. (p. 30)

 

4.  Everyone has rights to security and subsistence.

 


Is this argument valid? 

 

How would Cranston reply to this top-down argument?

 

 

 

 

 

 

 

 

Shue's Response to Cranston: 

 

1.  Security rights are more "positive" than they are usually thought to be.  Why?

 

2.  Subsistence rights are more "negative" than they are usually thought to be.  Why?

 

3.  A right to subsistence and a right to security are both basic and both equally basic.  Why?

 

4.  Right to subsistence is not a new right.  Why not?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IMPORTANT IDEAS CONTAINED IN SHUE'S ARGUMENT

 

1.  Shue emphasizes the importance of rights to non-interference in guaranteeing subsistence:  "protection against the destruction of the basis for supporting oneself" (p. 40)

 

        This idea is extended in Sen's path-breaking work on famines.  Though it used to be said that you can't eat civil and political rights, Sen's work shows that you can!

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sen's Work on

How Rights Prevent Famines

 

Do food shortages by themselves cause famines?

 

Sen's surprising answer:  No.  Food shortages don't cause famines in societies with:

(1) freedom of the press and freedom of expression [provides information];

(2) a multi-party democracy with an active opposition [provides political motivation].

 

The largest mass starvations in history occurred in the twentieth century:

Russia 1932-1934 (3 to 10 million)

Bengal India 1943 (2-3 million)

China 1958-62 (30 million)

North Korea, late 1990's (3 million = 10% of the population)

 

 

 


2.  Shue emphasizes the importance of viewing subsistence rights not in terms of the providing of a benefit, but rather as providing an opportunity:  "not a demand to be provided with grants of commodities but merely a demand to be provided some opportunity for supporting oneself"(p. 40)

 

This idea is extended in the work of Sen and Nussbaum to a view of rights as rights not to specific benefits, but to capabilities, which contain both positive and negative elements. 

 

Sen and Nussbaum agree with Shue that there is no important moral distinction between positive and negative rights.  The most important or basic rights include both positive and negative elements. 

 

 

 

 

 

 

 

 

 

 

 

 

Nussbaum's Account of Rights as Rights to the Central Human Capabilities

 

The Main Question Addressed by Nussbaum:  What is it that rights are rights to?

 

Answers rejected by Nussbaum:  physical resources (such as money or GNP per capita), satisfaction (utility), actual functioning.

 

Nussbaum's Answer:  capabilities

 

 

 

 

 

 

 

 


What are capabilities? 

 

Capabilities are not the same as physical resources (such as money).  Why not?

 

Capabilities are not the same as satisfaction (utility).  Why not?

 

Capabilities are abilities to do certain things (to function in certain ways). 

 

Capabilities are not the same as actual functioning?  Why not? 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THREE SENSES OF CAPABILITY

 

Basic capabilities:  "the innate equipment of individuals that is necessary for developing the more advanced capability." (p. 226-227)

 

Internal capabilities:  "states of the person herself that are, as far as the person is concerned, sufficient conditions for the exercise of the requisite functions" (p. 227)

 

Combined capabilities:  "internal capabilities combined with suitable external conditions for the exercise of the function" (p. 227)

 

 

 

Use an example to explain the distinctions between basic capabilities, internal capabilities, and combined capabilities.

 

 

 

 

 

 

 

 

The Central Human Capabilities

 

 

1. Life (contrast with Cranston)

2. Bodily health

3. Bodily integrity

4. Sense, imagination, and thought

5. Emotions

6. Practical Reason

7. Affiliation: (a) Friendship and

(b) Respect.

8. Other species

9. Play (the basis for a right to holidays with pay?)

10. Control over one's environment:

(a) Political and (b) Material

 

 

 

 

 

 

 

 

 

 

 

 

 

Understanding Rights as Rights to Capabilities

 

1. Rights.  Rights involve "an especially urgent and morally justified claim that a person has, simply by virtue of being a human adult, and independently of membership in a particular nation, or class, or sex, or ethnic or religious or sexual group." (p. 228) 

 

2. Rights to Capabilities.  Nussbaum believes that thinking of rights in terms of capabilities helps to understand both civil and political rights and economic and social rights.  Why?