“Again, there seems to be no ideological bias against the concept of rights; views on the subject come from various distinct standpoints.”
Our times appear to be defined—at least in the political realm—by increasing polarization, and this is true throughout the world. Yet, there is one area that seems to be decidedly non-partisan: namely, the importance of rights. On the Left, the language of rights is used to argue for the universal distribution of goods, such as education and health. When it comes to social issues, the right of a woman to exercise control over her own body is emphasized to argue in favor of abortion, and the right of consenting adults to their private lives is one of the central arguments in favor of LGBT rights. Conservatives—religious ones, in particular—stress our “God-given” rights. In the United States, in particular, those on the Right also place significant value on the right to keep and bear arms, as established by the Second Amendment to the Constitution. In the social sphere, conservatives tend to oppose abortion. For them, however, the argument is in favor of the right to life of the future child. At the same time, this agreement should not be mistaken for unanimity, and there are long traditions from both the Left and the Right that see the idea of rights as nonsense. Marx, to this effect, famously dismissed the notion of the rights of man as something of an anti-social feature of bourgeois ideology. On the other side of the ideological spectrum, reactionaries such as Joseph de Maistre, who are experiencing something of a resurgence today, similarly dismissed the notion as abstract rationalizations without any solid basis. Again, there seems to be no ideological bias against the concept of rights; views on the subject come from various distinct standpoints. However, if we want to rescue the idea of rights, I believe it is important to acknowledge that the way we think about them might have something to do with their dismissal. This, I think, is highly relevant for the Left because—for better or worse—the language of rights is the default way to discuss moral issues, at least in Europe in the Americas. Given that I believe the case for the Left is ultimately a moral one, abandoning the idea of rights can only be detrimental to its cause.
It should be easy to see from the abortion example that the apparent agreement about the importance of rights is little more than a shared linguistic framework—and that there are significant, substantive disagreements between different ideological factions. To use just one more example, let us look at the issue of healthcare in the United States. The United States is an interesting case in this respect because—unlike the rest of the industrialized world—there is no state-funded universal health insurance program. Moreover, the Libertarian right tradition is much stronger in the United States than in virtually any other country. The Left, as I previously mentioned, supports the idea of healthcare as a right. The Right, on the other hand, not only does not support it but often actively opposes it on the grounds that it would be a violation of individual rights. Senator Rand Paul famously equated the right to healthcare with slavery. The logic behind this comment was that if everyone has the right to healthcare, then it follows that the government can force medical practitioners to work against their will. Now, this particular argument is demonstrably false: public health insurance programs do not conscript medical professionals; they simply provide people with the funding to have the access to such services. But this kind of logic is present in much of the Right’s appraisal of rights, and it may not always be so obviously false. It is best summarized in Ayn Rand’s idea that an individual’s rights should impose no positive obligations on others. For example, a person’s right to life—in its most minimal interpretation—imposes only the negative obligation on others not to murder that person. This logic is what lies behind common libertarian ideas, such as the motto, “taxation is theft.” The thought is that when taxation is used to fund public services, the state essentially steals part of a person’s property to provide services to others.
This latter claim is certainly more nuanced than the claim that public healthcare turns doctors into slaves; yet, it still relies on some unexamined assumptions that—when analyzed—make this seemingly reasonable claim less straightforward and less logical than it appears at first glance. These assumptions will be examined later in more detail, but it is important to first understand what lies at the source of these disagreements. The best way to characterize the basic problem, in my view, is a fundamental disagreement about the ontology of rights. Ontology is the field of philosophy that studies being. As explained by W.V.O. Quine in his paper “On what there is,” ontology tries to answer the question, “What is there?” The problem arises because there is one obviously correct answer: namely, everything. Yet this answer is useless because we still do not know what constitutes, “everything.” To know this, it is important to decide what is enough for something to have the property of being. Quine is particularly interested in two kinds of things. In the first part, in what we could call “imaginary” things like the winged horse Pegasus—and further along: in mathematical objects, such as numbers.
None of this is relevant to an ontology of rights; however, the method is, so it is worth saying a few words about Quine’s conclusions regarding how we should determine whether something exists or not. His first argument is that we should abandon the idea that being and existence are separate concepts. Here, he is arguing against the idea that, for example, that Pegasus has being despite not existing in the real world—just because we can name it and think about it. While the details of the argument are perhaps too much for this medium, the basic point can be summed up in the following way. If we accepted the previous argument about Pegasus, we would be forced to accept that the naming of an object is enough to commit us to accept its being. This, however, presents a problem because then we would be forced to admit that something like a round square has being, which, of course, is nonsense. Quine was an empiricist, so his criteria for being (and existence) are in line with this. For Quine, we should only be committed ontologically to things that, in his words, are “bound variables” of our best scientific theories. Roughly, a bound variable is something that can be designated by one of the terms in the theory. So, for example, if electrons are terms that necessarily appear on our best scientific theories, that creates an ontological commitment to electrons. This reasoning, however, also led Quine and Hilary Putnam to formulate what is now known as the Quine-Putnam indispensability argument, which refers to abstract mathematical entities. This, I believe, is slightly more relevant for something like rights, since both kinds of entities are abstract. There are no physical objects that correspond to either rights or numbers. Following from Quine’s criteria for ontological commitment, the indispensability argument states that since mathematical entities are necessary for all our best scientific theories.
Rights—like numbers—are abstract entities. Yet, they differ in one important respect. Rights are ethical objects (if we can even use the word object), and, as such, they cannot be bound variables of any scientific theory. I do not think that is enough to abandon the notion of rights. First, however, we should understand what exactly is our present ontology of rights. In The Many Faces of Realism, Hilary Putnam describes the idea of rights as one of our many “moral images,” alongside others such as virtue ethics, or civic republicanism, for example. A moral image, as Putnam describes it, is—rather than a specific value or moral claim—a claim about how our various values hang together. I think this is a fairly accurate characterization about how we conceptualize rights both colloquially and in the literature. In Marx’s account, for example, when he writes about them in “On the Jewish Question” he refers exclusively to those listed in the French “Declaration of the Rights of Man and of the Citizen.” Yet he makes other normative claims, for which he never uses the language of rights. An obvious one is the description about wage labor as exploitation. Despite being made as a descriptive claim, it only really works if there is some normative notion that workers are entitled to the full product of their labor. Otherwise, it would be impossible to make any kind of judgement about the ethics of capitalism. Similarly, Jeremy Bentham’s account of utilitarianism in An Introduction to the Principles of Morals and Legislation is—as the title indicates—full of moral claims. These, however, are centered around the notions of pain and pleasure, rather than an abstract notion of moral rights, which he famously called, “nonsense upon stilts.” His philosophy did have a place for rights, but for him they were nothing but legal instruments created by the state. In both cases, we see the idea of rights as a limited description of the relations between certain values, which coincides with what Putnam calls a moral image. This is not limited to the critics. Supporters of the idea (such as the American Founding Fathers), for example, write that men are endowed with certain inalienable rights by their creator. That is, there is a limited amount of them.
I think this way of thinking about rights is a mistake and is at the heart of much of the opposition against the very idea of rights. To devise a new way of thinking about systems of rights, we first need to know what makes something a right. That is, in a sense, the first step in an ontology of rights. In “The Nature and Value of Rights,” Joel Feinberg answers this particular question by first asking us to imagine a society in which the very notion of rights does not exist and then to try to look at the consequences of this world. Feinberg concedes that the idea of duties can instill the idea of ethical behavior but only to a limited degree, without introducing something that is identical with rights. One could, for example, believe that individuals ought to be frugal in their lives. If that were the extent of our moral outlook, it is possible that resources would be better distributed, since people would consume less and, thus, leave more for others. However, it would be impossible to say that someone has been wronged if a particular individual does not adhere to frugality. After all, the frugality rule would stand even for a person who lived in complete isolation. The moment that duties become duties to other people, we necessarily introduce the concept of rights. If a person has a duty to be frugal, he is only accountable to himself, but if one has a duty not to take his neighbor’s land, then the neighbor has a claim to the fulfillment of that duty. Or, to put it differently, the neighbor has a right to his land, and the first individual has a duty to respect that right.
So, rights are simply that: entitlements or claims that we can make on others. It is easy to see that this is true whether we are thinking of abstract moral rights, or legal rights. If two people make a contract in which a service is provided in exchange for payment, one of the two has the legal right to claim the service, while the second has the right to claim the money after the service has been rendered. Conversely, each of them has the duty to perform what the contract requires of them. Similarly, if the state guarantees the right to housing, then every citizen has the right to claim a place to live from the state; and, correspondingly, the state has the duty to provide it. And, if we move to the realm of more abstract moral rights (or human rights)—if we believe that freedom is a right, that means individuals can claim the respect of that freedom from other individuals or the state, and they have the duty to respect that.
We can, therefore, say that rights and interpersonal duties are just different ways of describing the same thing. Of course, there are different kinds of rights. Of those previously described, legal rights are less interesting for the current purpose. Legal rights might coincide with moral principles but not necessarily. Furthermore, the discussion about whether legal rights exist is pointless. We can discuss whether granting certain legal rights is a good policy, but their existence depends solely on what the law states. Even someone like Jeremy Bentham, who was highly critical of the idea of abstract moral rights, fully embraced the value of legal rights. I will, therefore, limit myself to discussing the ontology of moral rights. It is important to clarify that by “moral rights” I mean any kind of universal right that is owed to any individual. Whether they are called “human rights,” “natural rights,” “moral rights,” or something else, there is no difference for my current purpose. If this seems strange, the reason for it will hopefully become less so in what follows. As we established previously, rights are simply claims that individuals can make on others. This is obviously useful for thinking about moral questions and is unquestionably one of our present moral images, as Putnam put it. As I said before, I think this view is a mistake, which will become clear by looking at alternative moral images; in particular, those that are generally considered to be alternatives to the idea of moral rights as a whole (such as utilitarianism and cultural relativism) are useful.
Utilitarianism, originated by Jeremy Bentham, is the doctrine that establishes that moral questions can be ultimately reduced to, in his own words, “the production of the greatest possible quantity of happiness, on the part of those whose interest is in view.” Now, utilitarianism is generally considered to be an alternative to rights, in part—no doubt—due to Bentham’s own comments on rights. But it is not just because of that. A classic argument against utilitarianism is how it disregards individual concerns in favor of overall general happiness. So, from a purely utilitarian perspective, if throwing an innocent person in jail would maximize the total happiness of the population, that is what we ought to do. It is, then, fair to say that utilitarianism does not have the same regard for individual rights that liberalism, for example, has. But let us think about a different case. Imagine a situation with two people in which one of them has exactly two possible courses of action. For the person acting, there is no impact on their overall happiness, but one of the two actions will increase the other person’s happiness, while the second course of action would reduce it. Again, from a purely utilitarian point of view, I think it is fair to say that the first person has a moral duty to the second person (and probably to aggregate happiness, too) to take the first course of action. Similarly, the second person has a moral claim for the first one to take the first course of action. I do not believe it is a stretch to say that in this particular example, there is a relation that—while originally derived from a utilitarian standpoint—can be perfectly described using the notion of rights (or duties, or both).
What about cultural relativism? This is described as the idea that judgements, which include moral judgements, come from our experience—and that our experiences are determined by the culture we live in. So, someone in the United States might judge that government censorship is wrong because it infringes on the right to freedom of speech, but that judgement is culturally determined; so a different cultural experience may mean that another person would come to a different conclusion. This notion, of course, is at the center of the claim that the spread of democracy and human rights are mere Western cultural imperialism. I do not particularly agree with this idea, and as Amartya Sen showed in “Human Rights and Asian Values,” it is perfectly plausible to arrive at the same “Western” ideas of freedom and equality from the Asian philosophical traditions. But suppose cultural relativism were true. There is still one overarching universal guiding principle, namely, that all judgements are equally valid because the values of different cultures are incommensurable with each other. But, by the same token, every person can claim that others judge him only according to how their acts measure up inside the particular culture in which they are performed. This can also be described as everyone having a moral right to being judged only according to their own culture.
What I view as the upshot of all of this is that rights do not, in and of themselves, comprise a moral system; rather, they provide a framework in which we can discuss the rules and principles that occur in different moral systems. To go back to Quine, we could say that rights are specific cases of bound variables of our moral theories. This is where I think a right-libertarian account of rights (such as Rand’s addressed earlier) fails. Its claim that it imposes no positive duties on anyone only holds true under very specific assumptions about what constitutes just ownership of land, for example. If we start from the position that all land is commonly owned by all people, then actually claiming a particular parcel imposes positive obligations on others to give up their land. Of course, the idea land is commonly owned can be disputed, but the point is whether certain rights impose positive obligations depends on more fundamental moral assumptions because rights are a secondary property of moral systems.
This does not mean that rights do not exist. They do (or they can), even if not in the traditional sense. To conclude, I want to introduce two views of ontology that I think are helpful. The first is Hilary Putnam’s “internal realism,” which is also described in The Many Faces of Realism, and the second is Rudolf Carnap’s idea of linguistic frameworks as described in “Empiricism, Semantics, and Ontology.” Both are similar, and neither is particularly related to ethics. Rather, they are general ways to conceptualize what things exist and according to what criteria. Carnap distinguishes between what he calls “external” and “internal” questions. Both could be the same question. What changes is the context in which the question is asked. The relevant contexts are linguistic frameworks, and internal questions are those which are asked about a particular framework within that framework. For Carnap, these are the only questions that make sense, so one could ask the internal question “are there any prime numbers?” once the linguistic framework of numbers has been accepted. The framework has to be taken as a given, and it comes with a set of rules and assumptions that tell us how to answer the question. If one were to ask, however, the external question “are there any prime numbers?” there would be no way to answer it, since there is nothing on which to base the answer other than pure speculation. Putnam’s internal realism is an attempt to bridge the divide between what is known as common sense realism and scientific realism. The former is just the idea that objects we interact with every day exist. The latter, however, questions that idea on the grounds that such objects are merely collections of fundamental particles and, in fact, physics tells us everyday objects are largely made up of empty space. So, scientific realism does accept that there is a real external world but only things like fundamental particles truly exist. Internal realism is the idea that what constitutes an object is context dependent. In this view, it is not up for discussion whether there are fundamental particles that arrange themselves in certain ways. What is up for discussion is what properly constitutes an object, which, for Putnam, is context dependent. That is, in certain context it makes sense to see particles as real objects, but in others, chairs make more sense.
In terms of rights, even if I am correct to say that they are simply particular bound variables of moral systems, it still needs to be asked whether there are any morals at all, independently of how they look like. If we are moral nihilists, none of this matters, but if we are moral realists, it does—independently of how the specific moral systems end up looking. So whether moral rights exist only makes sense as an internal question in the framework of moral realism. What specific claims or principles constitute rights depends on the specific system that we choose. In this sense, accepting that morality exists is analogous to accepting that there is an external world in the context of internal realism. But once we accepted this, deciding what specific moral principles are moral rights is context dependent. It changes based on whether we are liberals, utilitarians, socialists, etc. First, therefore, we need to agree to operate within the same context. Then, and only then, we can figure out what can be considered a moral right.
Néstor de Buen holds an M.A. in social sciences from The University of Chicago. He has previously written at Quillette. He can be reached at email@example.com or on Twitter @nestor_d