SOME ALLEGED RIGHTS AND JUSTIFICATIONS
SOME TRADITIONAL GENERAL JUSTIFICATIONS OF RIGHTS
From the point of view of the recognition of
the diverse spheres of facts, modes and norms,
the traditional distinction between legal rights
on the one hand, and ethical, moral, 'natural' or human rights
on the other is of paramount importance.
The former (which are also called "positive rights") belong wholly
or primarily to the factual and modal spheres, whereas the latter
belong to the normative and modal spheres. The expressions
ethical, moral and natural right themselves
may be defined in divergent ways, yet they are always contrasted
with the concept of legal rights, and are held to exist prior
to, or independently of, the law or other institutionalized
social systems; that is, if the existence of ethical, moral or
natural rights is acknowledged at all.
While human rights are or would be rights which every human
being has as a human being, natural right does not in the same
way refer to a biological category of one or more species. It
only refers to living beings looked upon from a 'natural', that
is, a nonlegal or noncultural perspective. Quite often tho, the
sole category of living beings recognized as having natural
rights are human beings nevertheless. Thus, an advocate of
rights may contend that there is 'at least one natural right,
namely the equal right of all men to be free' (not of all
natural, living or animal beings). In the context of human
rights, moral rights and natural rights may be used
interchangebly, but as soon as someone starts talking about
rights which are created or conferred by people voluntarily,
these special rights are moral rights which are not regarded as
natural rights. Human rights themselves have been defined as
moral rights of all human beings (or 'people') at all times and
in all situations. They have also been defined as general, moral
rights which are of a fundamental importance, and which are held
'unconditionally and unalterably'.
The holders of human or moral rights are not always taken to
be individuals. According to some theorists they may also be
groups of human beings or whole natural communities of nonhuman,
or both human and nonhuman beings. In the event that the
parties are individuals, human or moral rights may be
depicted as the rights of the individual against all other
individuals, vis-à-vis the world at large and the state, or
only the state, and so forth. It seems odd that someone could ever
recognize human rights of individuals vis-à-vis the state only,
because the expression human right suggests that the party
has the right as a human being, not as a citizen or a member of
a state. Logically speaking, to belong to a state, or to live in
one, is a contingent matter, 'even for human beings'. Altho the
notion of right is very closely related to that of the law and
to what the law should be, this conception of human rights is
one-sidedly archistic for a supposedly universal right.
Having rejected the view that only citizens or groups of
citizens could have human or moral rights, the next point is
whether, conceptually speaking, also nonhuman beings can have
moral or natural rights. Many human theorists take it that only
human beings, and that all human beings, have such rights.
(Furthermore, they also equate human being with person,
and vice versa.) Some more enlightened theorists of rights have
started from the principle that beings which have or can have
interests are the kind of beings which can have rights. This
includes nonhuman animals, and if this excludes plants, it also
excludes human vegetables.
When it is claimed that human rights are possessed by all
(human beings), equally by all (human beings), and not on the
basis of some subordinate quality like race, sex or social
status, this qualification can be applied to any kind of right
someone may fancy. For example, animal rights are, then, rights
possessed by all (animal beings), 'equally' by all (animal
beings), and not on the basis of a subordinate quality like
species, sex or the region where the animal lives; or, children's
rights are rights possessed by all (children), 'equally'
by all (children), and not on the basis of a subordinate quality
like descent, sex or age. No theory of rights has ever clarified
why exclusively human beings should have 'human rights'
because of their being human. No theory can explain why not every
category of beings, or of sentient beings, or of beings with
interests, should have the specific right of their category.
None of the above so-called 'characteristics' of human rights
pertains to human beings in particular. This does not only mean
that an analogous type of right may pertain to categories which
take in (solely) nonhuman beings, but also to any category that
comprises only a subclass of human beings (such as citizens or
human children), or a subclass of human and another of nonhuman
beings (such as persons, logically speaking).
In trying to justify human rights many advocates have taken
the preservation of 'mankind', human dignity or some kind of
equality as a fundamental 'law' or basic principle. The
equality they speak of may be unqualified, may pertain to certain
respects in which all persons are equal, to a minimum acceptable
equality, or to a political equality. (One natural-rights theorist
has 'justified' human equality on the basis of the equal
need of continued motion, because human beings are 'self-moving'
bodies, which would all 'equally try to continue their motion',
and which would all be 'equally fragile'.) Yet, if equality is
really a basic principle, it must apply to all beings belonging
to the same category as that of 'self-moving bodies'); not
exclusively to human beings but to sub- and super-specific
categories, and to other species as well. (Political equality is
itself already a sort of subspecific principle.) Of course, the
founding principles of human rights may be the preservation of
humankind and the equality or dignity of all human beings. But
why start here, and why stop here?
Some theorists have taken the meaningfulness of life as
justificatory quality, but --first of all-- it is not always
clear what they mean by life, let alone what they mean by
meaningfulness. If life denotes the organismic state of
self-moving or living beings, then the 'meaningfulness of life'
does not generate human rights, but rights of living beings in
general. On the other hand, if life denotes the state of being
vital and functioning instead of dead, then this 'meaningfulness'
only generates one right: the mandatory 'right' to life of
all living beings, or only of mental beings, if both physical
and mental experiences are believed to be essential. This
intrinsic right corresponds to the general duty not to kill
other living or mental beings, nor oneself. It does not imply
any extrinsic, or other intrinsic, duty of noninterference, nor
does it admit of any personal discretionary right of life, that
is, both the right to continue one's own life and the right to
finish, risk or sacrifice one's own life. Strictly speaking, it
both allows too much (everything except killing) and disallows
Utilitarians who have not rejected the concept of right
altogether, have attempted to base their justificatory theory on
the maximization of interests. Apart from all its defects,
this approach has often been conducive to at least one good
thing: the recognition of all living beings that can suffer as
the recipients or bearers of rights. Altho this ability to
suffer has been used in attempts to justify only human rights,
it has correctly been pointed out by those utilitarians that
this criterion applies to all sentient beings, and it must
therefore be concluded that it is sentient beings which have the
rights thus justified.
It has been argued that the objection against traditional
consequentialism that it could not accomodate agent-relative
values and the autonomy of human beings or people, only applies
to utilitarianism and other forms of 'welfarist consequentialism'.
It is not necessarily contrary to consequentialism itself
to recognize certain kinds of agent-relativity, such as that of
the doer or viewer, or to admit such a kind of relativity in the
evaluation of the consequences themselves. The evaluation still
remains consequence-based then and the goals in which these
agent-relative values are now incorporated become the rights of
a sort of 'goal-rights system'. Such a system would at the same
time provide an alternative for 'constraint-based deontology'
which is as inadequate as traditional consequentialism --as the
argument goes-- because of its inability to deal with the
interdependence of acts of different people. The weight of
different rights (and duties) does in such a system itself
depend on the consequences and the evaluation of those consequences.
A category which is, biologically speaking, probably not much
different from, or equal to, the one involved in questions of
utility is the class of beings which have (or can have)
interests. Justificatory theories which rest on the having of
interests need not attribute rights to all beings which have
interests tho. Having interests may be conceived of as a
necessary but not a sufficient criterion of having rights. With
respect to human rights the result is the same nevertheless:
there are either no human rights or, if there are, human rights
are merely one kind of rights among many other kinds pertaining
to specific classes of beings with interests.
What all the above-mentioned justificatory theories of rights
and most other ones have in common, is that if they do justify
or explain anything at all, this only or primarily concerns
intrinsic general right-duty constellations.
If they somehow do concern
extrinsic right-duty constellations, then only in
terms applicable to all rights, or rights and duties. Such is the case
when the concept of interest is introduced (itself not a first-order
doctrinal principle) or when a political complexion is put on
the principle of equality. Every appeal, however, to doctrinal
principles of the same (first) order, can solely justify
intrinsic rights and duties. The majority of traditional justificatory
theories of rights do not more than that, and not seldom in such an
obviously inadequate way that they cannot be taken seriously.