Wednesday, December 31, 2008

A Simple Account of Rights

Here's what I'll call the Simple Account of a right:

A moral subject, S, has a right against a moral agent, A, that A not engage in a specified course of conduct, C, provided that (i) it is wrong, all things considered, for A to engage in C and (ii) C constitutes (a) an all-things-considered harm to S, or (b) a failure to fulfill a duty owed by A to S.

What makes the Simple Account simple is that it defines rights in terms of moral duties. Wherever there's a (perfect, in the Kantian sense) duty, there's a right that the duty be fulfilled. I offer the Simple Account as a deliberate alternative to accounts of rights in accordance with which a right is a moral claim that can be backed up by means of force (however defined). Tendentiously, I'll refer to these as Narrow Accounts.

I think the distinction between the rights-violations that can and the rights-violations that cannot be remedied using force is important, and I do not mean to trivialize it. But I think an umbrella definition of rights is also important. That's because, given the network of associations that link rights-talk with other kinds of moral discourse, if we employ one or more Narrow Accounts of rights, the apparent scope of morality will be narrowed as well.

I emphasize that I am not claiming that this must be the case. This outcome is not entailed by the decision to opt for a particular version of rights-talk. But it seems to be very easy for someone—anyone—to slide back and forth between affirming that she has a right to perform some action and the claim that it is morally permissible for her to perform the action.

No sensible proponent of any Narrow Account supposes that the realm of rights (as understood in terms of her preferred Narrow Account) and the realm of the morally permissible are coextensive. That's why proponents of Narrow Accounts can speak, for instance, of a “right to be wrong.” On the other hand, no sensible proponent of the Simple Account supposes that force can appropriately be employed to enforce just any right (as understood in terms of her preferred view).

Thus, for instance, a proponent of the Simple View would say that someone who had freely made a promise to a partner to be sexually exclusive had no right to be sexual with someone other than her or his partner and had conferred a right on her or his partner to expect exclusivity. But the proponent of the Simple View could quite consistently oppose the use of force to secure this right.

By contrast, in a similar case, a proponent of a Narrow View would presumably say that someone who had freely made a promise to a partner to be sexually exclusive had a right to be sexual with someone other than her or his partner, but would act wrongly if she or he exercised this right, and that she or he had not conferred on her or his partner any right to expect exclusivity.

It seems to me that the proponent of the Narrow View runs the persistent risk of confusing others about her meaning when she says things like this. She can make it appear that engaging in conduct that does not justify the responsive use of force is morally indifferent or, at any rate, much less morally significant than behavior warranting the use of force, even if there is good reason to regard this conduct as deeply wrong. (One assumption seems important to me in this context: that limits on the use of force flow from the same underlying constraints as other moral norms. A credible account of the moral life will not, I think, involve surds. Rather, the same moral theory will generate limits on the use of force and, at the same time, other limits on behavior. Limits on the use of force are not best understood as free-standing, foundational moral truths unsupported by more general principles.)

The choice between Narrow and Simple understandings of rights is not a choice between different views of the use of force. It is a choice between (i) emphasizing the continuity between different kinds of moral discourse and (ii) emphasizing the limits on the use of force. There may be political contexts in which it is most important to stress (ii). But to the extent that our concern is to talk about what is just, and to the extent that morality forms a seamless web, we will have good reason to treat (i) as more important.

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