Proposal
RIGHTS: a Critical Introduction
by William A. Edmundson
I propose to write a book of about 50,000-55,000 words on the subject of rights. It will be aimed at upper-level undergraduates and postgraduates pursuing studies in moral philosophy, political philosophy, law, legal philosophy, political science, political theory, or government. My hope is to provide a readable, accessible introduction to the history, formal structure, philosophical implications, and political tendencies of the idea of rights. The modest level of technicality I hope to maintain is exemplified by Bernard Williams’s Morality (Cambridge, 1972).
It is also my hope to be able to indicate the likely direction of current philosophical controversies that bear upon the proper role of rights in our moral thinking. In particular, I want to draw attention to two different, though related, functions of rights: i.e., rights as prohibitions in contrast to rights as permissions. The former role of rights has predominated in traditional discussion; rights serve to endow individuals with a kind of “moral armor” protecting them from encroachments by political authority. The latter role, as permission, emphasizes the importance of the moral “breathing room” that rights allow the individual, in which she may pursue projects of her own choosing, whether or not these are responsive to the demands that morality would otherwise impose upon her. The individual’s antagonist here is not political or social authority so much as it is morality itself. In the former role, rights prohibit others to do things to the individual for any reason whatever; in the latter, rights permitthe individual to ignore demands that would be made of her from a disinterested moral viewpoint.
Recent philosophical discussion has focused upon the defensibility of the idea of moral permissions generally. The arguments of Shelly Kagan, in The Limits of Morality(Clarendon, 1989) and Peter Unger, in Living High and Letting Die (Oxford, 1996), are prominent here. I want to draw out the implications of this work for the theory of rights, that is, to show how having a right entails having a moral permission; and thus how arguments that undermine moral permissions necessarily also undermine rights. A commonsense distinction that is often cited here is that morality prohibits doing harm, but permits allowing harm. I want to show that the distinction between doing and allowing is crucial to the defense of any viable theory of rights. Put succinctly, a theory of rights must invoke the wrongness of doing harm to rationalize rights as prohibitions, but must also invoke the permissibility of allowing harm to rationalize rights as permissions. “Causing harm,” to put it another way, has to be discredited as a morally ultimate category. Thus, the attack on the doing/allowing distinction initiated by James Rachels, and carried forward by Kagan and Unger, presents the most pressing current issue that must be faced by the theory of rights, or so I would like to argue. This constitutes the chief possible originality of the book, as I foresee it.
I would expect to be able to begin writing in September, 1999, and to submit a first draft within eighteen to twenty-four months, that is, by the autumn of 2001.
Outline of Chapters
I. Introduction
An brief overview of what the book is about.
II. The Prehistory of Rights
Classical republicanism and the ethics of virtue; Christianity and the ethics of submission. Duns Scotus as originator of the modern concept, or was it William of Ockham?: an historical note. Historical and cultural relativism about rights; Alasdair MacIntyre’s moral archaeology and the challenge of scepticism: if rights are really central to moral thinking, why did the idea emerge so late in history (if, in fact, it did)? Cicero on the Justinian Code; Kenneth Dover on the everyday morality of the Greeks; possible implications for moral universalism.
III. The Rights of Man: The Enlightenment
The seventeenth and eighteenth centuries. Right as divine royal prerogative; rights as limits thereto. Locke, Rousseau, and Natural Rights. The French Declaration of the Rights of Man and the Citizen and the American Bill of Rights. What rights there were believed to be and their supposed basis and purpose. Two legacies of the Enlightenment: rights as armor and as rights as fulcrum.
IV. “Mischievous Nonsense”?
Bentham: “rights talk” as a confusing and eliminable shorthand; Burke: “rights talk” as inflammatory rhetoric; Marx: “rights talk” as bourgeois ideology; Constant: the liberties of the ancients versus the liberties of the moderns.
V. The Utilitarian Formula: Rights as Rules
The challenge to moral theory posed by the sciences. Sidgwick: reconstructing rights within a utilitarian framework. Is there a generalright to liberty?: a problem about individuating rights. “Act” versus “rule” utilitarianism. Mill: rights as shelter from social pressures to conform.
VI. The Conceptual Neighborhood of Rights: Wesley Newcombe Hohfeld
Moral and legal rights; rights and related concepts: claims, liberties, immunities, and powers. The correlativity of rights and duties. Other conceptual refinements: “positive” and “negative” rights: Sir Isaiah Berlin; “imperfect” duties and rights; an asymmetry and a puzzle about beneficence: how comes a duty to aid but no right to be aided? Joel Feinberg and “manifesto” rights.
VII. John Rawls and The Revolt Against Utilitarianism
The postwar critique of utilitarianism: Bernard Williams and the “separateness of persons” objection. The “lexical priority” of rights in Rawls’s A Theory of Justice. Ronald Dworkin: rights as trumps. Thomas Scanlon and David Gauthier: rights, reason and contractualism. Can a social contract theory noncircularly ground a theory of rights?
VIII. The Basis of Rights: “Choice” Theory and “Interest” Theory
Are rights sui generis, or can they (safely) be grounded on other moral considerations? Having looked at utilitarian and contractualist approaches, now consider: “Choice” theory: H.L.A. Hart, Carl Wellman; “Interest” theory: Joseph Raz, Neil MacCormick.
IX. A Right to Do Wrong?
The incompleteness of a moral theory grounded on rights alone. Right-holding and moral assessment. Having a right and having a reason distinguished. Doing what is right and doing what one has a right to do distinguished: Jeremy Waldron and Gerald Dworkin. “Sanction” theories of right and duty. How severely may abuse of a right be sanctioned without violating the right?
X. The Pressure of Consequentialism: Kagan and Unger
Utilitarianism as a species of consequentialism. Phillipa Foot’s “Trolley” Problem: is it ever permissible (or even obligatory) to sacrifice rights to avoid catastrophe? Accommodating the “defeasibilty” of rights. The “strenuousness” objection to consequentialism. Types of moral constraint: “side-constraints,” “prohibitions” versus “permissions.” Kagan’s argument against “options” (permissions); Unger’s attack on the doing/allowing distinction. Counter-efforts by Warren Quinn, Jonathan Bennett and Frances Kamm. The doctrine of “double effect.” Without a doing/allowing distinction, and a permission to allow harm, would consequentialism swallow rights?
XI. The Future of Rights
The Universal Declaration of Human Rights: are there universal human rights? Moral realism and the metaphysics and epistemology of rights; How do we know what rights there are, and who may hold them? Foetuses, children, animals, androids, and ecosystems as rights-holders. Rights and individualism; communitarian and feminist counter-reformations: Michael Sandel, Mary Ann Glendon, Carol Gilligan; “Group” rights and cultural minorities: Will Kymlicka. Are universal rights imperialistic?: Michael Ignatieff.
XII. Conclusion
Derek Parfit’s mountain: are rights and consequentialism different paths to the same summit?
©1999 William A. Edmundson