Are There Any Natural Rights?

 

What are Natural Rights?

 

Natural rights are moral rights that people would have no matter what their legal rights were and even if there were no government and no laws. 

 

State of Nature:  A situation in which there is no government[WJT1] . 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LOCKE'S THEORY OF

NATURAL RIGHTS

 

What are Locke's natural rights?

 

(1) a liberty-right to equal liberty (in Locke's terms, a "power") that permits one to dispose of one's person and possessions as one chooses[WJT2] .

 

(2) claim-rights not to be harmed in one's life, health, liberty, or possessions that generates corresponding duties for others not to cause such harms[WJT3] . 

 

(3) Because these rights are morally enforceable, they generate further liberty-rights (in Locke's terms, "powers") of self-defense and punishment against transgressors[WJT4] . 

 

 

 

 

 

 

 

 

 

 

 

What is the Source of Morally Justifiable Political Authority?

 

Why, according to Locke, will people in a State of Nature consent to limitations on their rights required to establish some kind of democratic government? 

        "[T]he enjoyment of property [lives, liberties, and estates] is very unsafe, very insecure."(76)  Three reasons:

        (1) lack of an "established, settled, known law."(77)

        (2) lack of a "known and indifferent [impartial] judge."(77)

        (3) lack of enforcement power.(77)

 

 

 

 

 

 

 

 

 

 

 

 

 

        What is required for government to be legitimate?   The "consent of every individual[WJT5] ". 

 

        Locke's theory of government legitimacy is an HISTORICAL CONSENT theory, because it is the actual consent of the citizens that makes government legitimate.

 

        Why, according to Locke, is everyone "bound by that consent to be concluded by the majority[WJT6] "?

 

A note on Libertarian interpretations of Locke:  Locke on the "public good[WJT7] " or "common good[WJT8] " and "the good, prosperity, and safety of the society[WJT9] ". 

 

 

 

 

 

 

 

 

 

 

 

 

 

JOHN STUART MILL'S UTILITARIAN DEFENSE OF RIGHTS

 

The Greatest Happiness Principle:  "[A]ctions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness."(137)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DIRECT (ACT) UTILITARIANISM VS. INDIRECT (RULE/SOCIAL PRACTICE) UTILITARIANISM

 

Act Utilitarianism requires that everyone always choose the act that they believe will maximize overall happiness.  Act utilitarianism is also called direct utilitarianism, because it recommends applying the utilitarian formula directly to each act. 

 

Mill's Rule/Social Practice Utilitarianism requires that we foster systems of laws or social practices that will maximize overall utility when people generally follow them.  Rule or social practice utilitarianism is also called indirect utilitarianism, because it does not recommend applying the utilitarian formula directly to each act. 

 

 

 

 

 

 

 

 

 

 

 

     An act utilitarian holds all rights have the AU exception.  Whenever a government can produce more overall utility by violating a right, it should do so. 

 

A rule/social practice utilitarian such as Mill would disagree.  Mill argues that overall utility is greater when governments respect certain liberty rights, even when they think that violating them will produce more overall utility. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WHAT IS A RIGHT?

 

"To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of.  If the objector goes on to ask why it ought, I can give him no other reason than general utility." (from Utilitarianism,  p. 142)

 

For Mill, a right is an individual claim C or liberty L that satisfies the following condition:

        If society follows the policy of preventing and punishing violations of claim C [or liberty L], there will be more overall utility than if society follows any other policy. 

 

Mill's believes that there are individual claim rights and liberty rights that a government ought not to violate, even when the government thinks that violating them will produce more overall utility!  The policy of not allowing governments to violate certain basic rights even when they believe that violating them will produce more overall utility is itself a policy that can be evaluated on the basis of its overall utility.  Mill believes that that policy will produce more overall utility than the policy of allowing governments to violate the basic rights when they believe that violating them will produce more overall utility

What are the claim rights

advocated by Mill?

 

One Part of Mill's Simple Principle:  Everyone has a claim right not to be directly harmed by others[WJT10] .

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


What are the liberty rights

advocated by Mill?

 

The Second Part of Mill's Simple Principle: 

(1) Liberty of consciousness, including: (a) conscience; (b) thought and feeling; (c) opinion and sentiment on all subjects; (d) the liberty of expressing and publishing opinions[WJT11] ;

(2) liberty of tastes and pursuits so long as we do not harm others, even though others should think our conduct foolish, perverse, or wrong[WJT12] ; and

(3) the freedom to unite for any purpose not involving harm to others.  (The last two rights are best understood as rights against paternalistic interference[WJT13] .) 

        These rights apply only to "human beings in the maturity of their faculties".

 

The last two rights are rights against paternalism.

 

Paternalistic intervention = intervention to force the target to do something for his/her own good, though the target does not believe that the intervention is good for him/her.  In paternalistic intervention, the target's own judgment about what is good for him/her is overruled by the person intervening.

 

 

RAWLS'S SOCIAL CONTRACT THEORY: 

A HYPOTHETICAL CONSENT ACCOUNT

OF RIGHTS

 

        Hypothetical consent accounts make the justifiability of a system of government dependent on whether it would be consented to under appropriate circumstances.  What are the appropriate circumstances? 

 

        Rawls's Fundamental Idea:  The Idea of Society as a Fair System of Cooperation[WJT14] 

 

        Fair terms of cooperation:  "[T]erms that each participant may reasonably accept, provided that everyone else likewise accepts them."(16)

 

 

 

 

 

 

 

 

 

 

 

 

        How are the fair terms of social cooperation to be determined[WJT15] ?

 

Rawls's Hypothetical Consent Test [a development of an idea from Hansanyi]:  The Original Position, Behind the Veil of Ignorance[WJT16] .

 

        What information is excluded behind the Veil of Ignorance[WJT17] ?

 

        What is the significance of agreement in the Original Position, if the agreement is both hypothetical and nonhistorical[WJT18] ?

 

        The Original Position is a "device of representation".  It is an attempt to articulate what would be required for the terms of social cooperation to be fair[WJT19] .

 

        Rawls's Two Principles of Justice:  The Liberty Principle and the Difference Principle[WJT20] .

 

 

 

 

 

 

 

Three Kinds of Justification of Rights

 

I.  Natural Rights Theories.  The most basic level of justification begins with some basic rights and uses those basic rights to derive others.

 

II.  Consequentialist Theories.  All rights, even the most basic ones, are justified by their contribution to well-being.  (Note that a social practice consequentialist attempts to justify the practice or policy or institution of protecting rights, not each individual act of rights protection, on consequentialist grounds.) 

 

III.  Social Contract Theories.  All rights, even the most basic ones, are justified by some kind of consent test, usually hypothetical consent. 

 

 

 

 

 

 

 


 [WJT1]72

introduced by Hobbes, developed by Locke in 17th century

 [WJT2]72

 [WJT3]73

 [WJT4]73

 [WJT5]76

 [WJT6]76

 [WJT7]79

 [WJT8]79

 [WJT9]the powers they give up, 78

 [WJT10]144

 [WJT11]144

 [WJT12]144-145

 [WJT13]145

 [WJT14]15, 23

 [WJT15]22

 [WJT16]Read p. 23

 [WJT17]Read 24-25, also 272-273;

include all general info, science, social history, economics

 [WJT18]fair, not biased 23; unequal bargaining positions; 275: abstract from contingencies to evaluate the basic structure.

 [WJT19]25-26

 [WJT20]271