Yet, there is a way of framing its conclusions in consequentialist terms. If the value of states of affairs is determined not only on the basis of the overall utility, or well-being of individuals, but also on the basis of whether more or fewer rights are respected, then, arguably, the language of rights can be reconciled with consequentialism.
Violating a right is infringing it unjustifiably, while infringement of a right can be either justified or unjustified. An infringement is justified when the right is overridden by competing social goals, e. Rights are, under this view, always justifiably infringed when their infringement prevents more infringements of the very same right. Consequentialism of rights explains many common-sense moral judgments.
It can, for instance, explain why a doctor is barred from killing a healthy person even when killing this person would save the lives of three patients who are waiting for an urgent transplant as a result of natural illness. In the former state of affairs, there is only death while in the latter, there is, in addition, a murder and disregard for human life. These intangible factors are given weight in the consequentialist evaluation of the various states of affairs.
In addition to solving moral puzzles such as barring the doctor from killing one person for the sake of saving several, consequentialism of rights can justify various institutional practices.
The state often invests much more money in preventing a murder than in preventing a natural death, or in preventing theft than in preventing loss of property, which does not involve the violation of rights. Nozick holds that respect for rights sometimes requires an agent not to infringe a right even when infringing it would prevent the infringements of more rights of the very same type. The characteristic of rights is that, in contrast to other considerations, an agent respects rights not by minimizing the infringements of rights, but by not infringing them, i. Understanding rights in terms of deontological constraints explains some puzzling features of rights.
For instance, many believe that human beings have a duty not to destroy valuable works of art, or not to exterminate certain species of animals. But these duties are rarely spoken of in terms of rights. The difference between the duty not to destroy valuable works of art and the duty not to kill people is that it seems that we are always morally permitted or, perhaps, even required to destroy a work of art for the sake of saving several equally valuable works of art, while it is not always the case that we are permitted to kill one person for the sake of preventing the killings of others Kamm , It may seem irrational not to infringe a right in order to prevent many infringements of the very same right.
Some theorists argue that the reason why one agent may be barred from killing one person to save several people from being killed is grounded in the special status of the agent and, in particular, her relation with the relevant action Williams , ; Nagel, By killing, even if the killing prevents the killings of several other persons, the agent is guided by an evil intention which corrupts her agency. More specifically, it cannot explain why an agent is barred from infringing the right of one victim for the sake of saving several victims from infringements of their rights committed by the very same agent.
Take the case of a person who sent a trolley towards five people in order to kill them. After further consideration, the agent himself suddenly realizes to his horror that this is a violation of their rights not to be killed and decides to save the five. Unfortunately, the only way to save them is by pushing a sixth person into the path of the trolley.
Such a rescue attempt saving people from being killed by the agent herself seems just as impermissible as the case in which the agent kills a person in order to save five people from being killed by somebody else. Kamm , While this case seems to be an important counter-example, it can perhaps be resolved within the frame of agent-focused morality by conceding that while an agent is responsible for his past actions, his agency is always more vivid with respect to actions he is now committing.
Hence, at any given moment an agent has greater responsibility not to violate a constraint than at that moment to prevent its violation Brook , This explanation may dictate giving greater weight to my not killing the sixth person whose life depends on my future action than to my saving the lives of the five people whose lives depends on saving them from risks which have already been imposed, even if these risks were imposed by me.
Other objections, however, can be raised against agent-focused theories. Agent-focused explanations shift the concern from the victim whose rights are being infringed to the agent. This shift is plausible as long as one regards deontology as an exclusively duty-based moral theory, but it seems inappropriate when one justifies deontological constraints in terms of since rights in essence are designed to protect the basic concerns of victims rather than the purity of the soul of the duty-holder. The morality of rights is inherently a victim-focused rather than an agent-focused morality Brook, ; Kamm One victim-focused explanation is based on the inviolability of persons where such inviolability is explained in terms of the separateness of persons Nozick, , There can be no moral outweighing of one life for the sake of others.
People have a lesser moral status if their right to life can be justifiably infringed in order to minimize overall infringement than if it were never permissible to infringe the right Kamm , In the former case, the Kantian imperative to treat every person not merely as means is violated where as, in the latter case, they are treated as ends. As our inviolability goes up, less and less harm can be done to us for the sake of saving others from violation of their rights.
The less and less harm that can be done to us for the sake of preventing infringements of the rights of others the less and less good can be done to us by way of preventing imminent infringements of our rights. Why does our humanity dictate greater inviolability rather than greater saveability? Although such priority of inviolability over saveability may lead to more deaths, it is perhaps more respectful of the value of life. But establishing this claim requires a more thorough investigation of the moral foundations of deontological constraints. Yet, despite the ingenuity, it would be hasty to characterize rights in terms of deontological constraints.
Understanding rights in terms of deontological constraints is both under-inclusive and over-inclusive. It is under-inclusive because not all rights are deontological constraints. My right not to be killed as the merely foreseeable, but unintended, consequence of the behavior of others is often subject to consequentialist reasoning. Suppose that someone has maliciously set a trolley towards two individuals. Another person can save the life of the two people at the expense of an innocent bystander by diverting the trolley into the path of this bystander. Here the common view is that the right of the bystander would be justifiably infringed by virtue of the fact that more of the same right will be protected if the right of the bystander is infringed.
The analysis is also over-inclusive because not all deontological constraints are rights. One may argue that one should not let one student whom one has caught cheating go unpunished, even if by letting him off one can thereby uncover information about five other cheaters. Unless one believes that the cheater has a right to be punished, this phenomenon cannot be explained in terms of rights. Otsuka, Last, while the trumps theory of rights is a conceptual frame, deontological constraints are too related to a particular Kantian moral theory to be regarded as an explication of the concept of rights.
The theories which posit the existence of deontological constraints often rely on concepts such as dignity autonomy and agency. If indeed the concept of rights is identified with constraints grounded in these values, it is only the Kantian who would be legitimately using the concept. This does not detract from the validity of deontology as a moral theory; but it suggests that it cannot serve as a theory of rights since it does not explain the role of rights within a broad range of non-Kantian moral and political theories.
Are Rights Foundational? Philosophers often argue that rights are not foundational; rather they are derivative of more fundamental values. Raz holds what can be termed the reductionist hypothesis, namely the view that the values underlying rights are conceptually prior to rights and dictate their scope and strength.
A critical examination of the reductionist hypothesis requires a thorough investigation of the discourse of rights. Not all the reasons which justify the protection of speech, or religion, provide a reason to establish a right to free speech, or a right to freedom of religion. The protection of speech may, for instance, be conducive to economic prosperity. Such a contribution to economic prosperity provides reasons to protect speech, but the contribution of speech to economic prosperity is not used to justify the establishment of a right to free speech Harel , Autonomy is an intrinsic reason relative to the right of free speech because it is used to justify the protection of a right to free speech, while economic prosperity is an extrinsic reason with respect to this right.
An advocate of the reductionist hypothesis faces two major challenges in explaining the way rights operate in legal and moral discourse Harel, , The right to free speech could be used as an example demonstrating the two challenges. First, the advocate of reductionism has to explain the differential treatment of reasons, namely why some reasons for protecting speech are classified as reasons which justify the right to free speech while others are merely used to justify the protection of speech.
Arguably, in evaluating the desirability of censoring speech, it seems arbitrary to distinguish between autonomy, or the market place of ideas classified as intrinsic and other reasons, e. Why should a dichotomy be drawn between reasons justifying the protection of speech and reasons justifying the establishment of a right to free speech and why should the latter reasons enjoy such a prominence in political discourse?
Secondly, the advocate of reductionism has to explain the reasons for the differential treatment of activities, namely why are merely some activities protected, e. If speech, for instance, is protected only because its protection is conducive to autonomy, then, arguably, protection should be granted to any activity which is as autonomy-enhancing as speech provided that protecting these activities does not conflict with other valuable objectives.
Explaining the differential treatment of activities is particularly difficult for the reductionist. If the value of rights is indeed derived from the values underlying these rights, one would expect that the scope of these rights and their strength would fully converge with the strength and the scope of the values underlying them.
If what really counts is autonomy per se, or any other intrinsic reasons underlying the protection of the right , the very classification of rights in accordance with the protected activities seems capricious. Instead of classifying rights as rights to protected activities, e.
By protecting speech, or religion rather than all autonomy-enhancing activities, one fetishizes the protected activities and lessens the significance of the underlying values.
Rights (Stanford Encyclopedia of Philosophy)
Could a non-reductionist theory of rights provide a useful explanation of the importance of activities such as speech or religion? One difficulty of reconciling non- reductionism with the practices governing the discourse of rights is that typically, in the case of a controversy concerning the scope of rights or their stringency, judges and philosophers examine the values underlying the rights. Free speech cases are often resolved by examining carefully the values justifying the protection of speech. It seems that resorting to these values in resolving disputes concerning the scope and stringency of the right to free speech is a testimony to the validity of reductionism.
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This argument supporting reductionism is, however, based on a fallacy. The non-reductionist need not deny the importance of values or, more broadly, the importance of intrinsic reasons in dictating the stringency and the scope of rights. Non-reductionism instead, asserts that the values underlying the protection of rights are dependent on the social practices aimed at protecting these values.
This claim is part of a broader phenomenon, namely the social dependence of value on social practices sustaining it Raz , Raz points out that social practices have two important roles in facilitating the realization of values. New socially created goods develop only once the practices sustaining them are created. These goods are not merely new manifestations of existing values; they are indeed new values, which emerge with the emergence of the practices sustaining them.
The social dependence of access to value and the social dependence of value itself can be applied to the context of rights and justify a non-reductionist theory of rights Harel, , In the context of speech and autonomy non- reductionism contends that the contribution of the right to free speech to the enhancement of autonomy depends on the societal convention of protecting speech for the sake of autonomy. This dependence can be justified on two grounds. First, in societies in which the right to free speech is protected for the sake of autonomy, people exercise their autonomy via speech rather than via other activities.
Hence, the recognition that autonomy can be exercised via speech is internalized and people get accustomed to exercise their autonomy by exercising their right to free speech. Second, the very understanding of what it means to be fully autonomous is equated with the socially protected practices. More generally, non-reductionism insists on a close interdependence between values and practices reinforcing these values. Autonomy is dependent upon the existence and the reinforcement of conventionally recognized practices of exercising autonomy.
This non-reductionist theory of rights explains two central characteristics of rights. First, it explains why it is important to establish rights for the sake of promoting the values underlying them. Typically, in delineating the boundaries of the right to free speech, judges reiterate the values underlying the protection. The exercise of autonomy does not merely depend on the protection of value-enhancing activities, such as speech; it also depends on protecting these activities for the sake of promoting the relevant values.
It is only the full awareness of the meaningfulness of these practices which facilitate access to these values and such an awareness is nourished by the judicial reiteration of the role the values have in justifying the right and dictating its scope. Secondly, non-reductionism explains a very puzzling feature of the discourse concerning rights. On the one hand, human rights activists and courts often vigorously advocate the protection of certain rights and believe that their protection is crucial for maintaining the decency of their society.
At the same time, these same human rights activists and courts are well aware that the very same rights remain unprotected or protected in different ways in other decent societies. Just look at the rigidity in which the US protects the right to free speech and compare it to the more compromising protection prevailing within the European Union.
The interdependence between values and practices provides an explanation founded on the conjecture that values are at least partially dependent upon societal practices and activities. This conjecture does not entail complete relativism, but it implies that different traditions can justify significant variations in the scope and the stringency of protection granted to rights in different societies. This sub-section established the hypothesis that values and rights are interdependent. Yet, some moral theorists suggest that rights are at odds with values and sometimes even argue that a world with no rights is better in fundamental respects than a rights-based world.
The next sub-section explores this accusation. Does Moral Theory Need Rights? Some consider rights to be an essential and uncontroversial component of any morally acceptable social order, so that rebelling against rights is like rebelling against the moral order as such. Much of the international discourse concerning rights presupposes that, despite a fundamental disagreement with respect to what rights individuals have and how to balance them with other important values, every decent society protects certain rights.
Others insist that rights reflect a partial or a biased understanding of morality — one which reflects legalism, formalism, individualism and perhaps even masculinity and Euro-centrism, so that a moral conception governed by rights or a legal order governed by rights represents one sectarian conception of a moral or legal order. There are numerous related features associated with rights, which explain the opposition to rights-based discourse. First, rights are perceived as barriers preventing the uninhibited pursuit of collective and social goals.
Typically utilitarians are concerned that respecting rights comes at the expense of the rational pursuit of social prosperity. In his famous repudiation of the French Declaration of Rights, Bentham raised two major objections against rights.
Secondly, he stated that: [T]here is no right which, when the abolition of it is advantageous to society, should not be abolished. Second, rights are often accused of being too individualistic and disruptive of social solidarity. Recently these accusations have shifted emphasis and focused on the claim that the discourse of rights is inherently sectarian, i.
Feminist scholars have argued that women should think in terms of personal relationship rather than in terms of rights. Thinking in terms of rights evokes a picture of individuals as egoistic and asocial, which reflects a male way of thinking Hardwig , Other scholars have accused rights of being a Western concept that does not leave sufficient room for the diversity of human cultures Panikkar In contrast, other cultures put greater emphasis on duties as part of the moral order, perceive differently the relations between the individual and the society or community, or even deny the separability of individuals.
The radical foes of rights resist rights as such. Thus, some feminist theorists advocate the exclusion of the sphere of the family from the reign of rights in order to preserve solidarity within the family Hardwig Communitarians often suggest supplementing the language of rights with another discourse for instance discourse which highlights the importance of obligations owed to the society without discarding the discourse of rights altogether Taylor , Some of the most fundamental provisions of the Universal Declaration of Human Rights such as the protection of individual property Article 17 and the perception of family and its importance Article 16 conflict with local cultural perceptions and it is often implied that therefore they need to be revised accordingly Polis, Adamantia and Scwab, , 9.
In addition, it is argued that the greater traditional emphasis on civil and political rights over economic rights is a western phenomenon that ought not be applied universally. Under this view human rights ought to be interpreted in a way that is mediated through the web of cultural traditions and economic circumstances Falk, , Even some proponents of implementing one understanding of human rights globally — an understanding which is relatively independent of local variations - - concede that the language of human rights is inappropriate in rare cases of societies that enjoy alternative mechanisms for protecting human dignity as some traditional societies do Donnelly , This moderate criticism is of immense value.
It points out the importance of rights-free zones, in which spontaneity may flourish. It also points out the complexity in understanding and implementing rights in different societies. The more radical criticism of rights, however, is subject to a major difficulty, which is analogous to the difficulty faced by the more ambitious theorists of rights. At the outset, it was pointed out that it is perhaps too pretentious to aim at providing a unified theory of rights because of the immense diversity in the usages of this term.
The very same diversity may frustrate the attempts at providing a radical critique of rights. A concept, which is so multi-faceted in its usages, cannot, without being distorted or caricatured, be characterized as individualistic, masculine or Western. Precisely as rights are too complex to be analyzed within the frame of a single theory, so they are too complex to be rejected in their entirety. Conclusion Rights can be characterized on the basis of their form, substance and strength.
Their role within moral theory is controversial and some even regard the discourse of rights as promoting a formal legalistic or sectarian moral agenda. Developing a theory of rights requires a careful balancing of conceptual and normative considerations. The primary difficulty for the theorist is to develop a theory of rights which is sensitive to the way rights operate in practical reasoning and which accommodates diverse political and legal traditions.
This consideration requires highlighting conceptual considerations at the expense of normative ones. Yet, to be meaningful for the participants in the discourse of rights, e. The theorist of rights needs therefore to preserve a very subtle balance between conceptual analysis and normative theorizing.
In a world with no rights an intangible human sensitivity would be lost -- sensitivity which highlights the rightholder and her perspective as central components of moral theory. People may be well protected in such a world but depriving them of the status of rightholders means that they are not protected for the rights reasons — reasons which highlight their central role in justifying that protection. Various theories of rights express this concern in different ways. Deontological theories stress the unwillingness to sacrifice individual rights even for the sake of promoting valuable interests.
But even if one rejects this explanation as too metaphysical, it seems that some of the functions rights serve would, in such a world, be replaced by analogous conceptual tools. At the moment, rights are too entrenched in our moral and legal culture for us to comprehend how such a world would look. Waldron Oxford University Press, Oxford Hart, Legal Rights in H. Walter Wheeler Cook, Simmonds, Hillel Steiner ed.
McCloskey, Rights 15 Phil. Hart, ed. Hacker and J. Raz, Clarendon Press, Oxford Related Papers. Two Conceptions of Rights Possession. By Derrick Darby. By Kayreen T H Stephenson. The Philosophy of Human Rights. Contemporary Controversies co-ed. Please login and go to your personal user account to enter your access token.
Have Institutional Access? Forgot your password? PDF Preview. Table of Contents. Related Content. Law and Legal Theory. Editor: Thom Brooks. What is the relation between law and democracy and how might it be improved?
What values should inform the body of laws that govern us all? How should we determine crimes from non-crimes? What justifies state punishment, if anything? Law and Legal Theory brings together some of the most important essays in the area of the philosophy of law written by leading, international scholars and offering significant contributions to how we understand law and legal theory to help shape future debates.
Law: Metaphysics, Meaning, and Objectivity. Editor: Enrique Villanueva. Papers in philosophy of law by some of the younger cutting-edge contributors to the field. Two sets of issues of crucial current importance are taken up. The first part deals with issues of meaning and objectivity in the metaphysics of law. The second part is about rights theory.