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
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.
(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.
(3) Because these rights are
morally enforceable, they generate further liberty-rights (in Locke's terms,
"powers") of self-defense and punishment against transgressors.
What is the Source of
Morally Justifiable Political Authority?
Why, according to Locke, will
people in a State of
"[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".
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"?
A
note on Libertarian interpretations of Locke:
Locke on the "public good" or "common good" and "the
good, prosperity, and safety of the society".
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)
"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)
There is an apparent
contradiction between Utilitarianism
and On Liberty.
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 utililitarian 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.
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
One Part of Mill's Simple
Principle: Everyone has a claim right
not to be directly harmed by others.
advocated
by Mill?
The Second Part of Mill's
Simple Principle:
(1)
(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; 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.)
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
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?
Rawls's Hypothetical Consent
Test [a development of an idea from Hansanyi]: The Original Position, Behind the Veil of
Ignorance.
What information is excluded behind the Veil of Ignorance?
What is the significance of agreement in the Original
Position, if the agreement is both hypothetical and nonhistorical?
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.
Rawls's Two Principles of Justice: The
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.