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.
(Corresponds to
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?
According
to
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
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
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
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:
Bengal
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
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?