EECS 690

January 29

Rights and Duties

• A right is a claim to a moral good. • Every right that one person holds implies a duty

or obligation upon another or others.• This provides an interesting set of problems

because people like having rights provided for them, but do not like to provide them for others. This focus on rights while ignoring duties leads to an impoverishment of public discourse (See Mary Ann Glendon’s excellent book “Rights Talk”)

Types of rights:

• Negative– a right is a negative

right when the duty implied by the right is the duty of others to NOT do something

– e.g. property, life, freedom of speech

• Positive– a right is a positive

right when it implies a duty of someone else to DO something for the right-holder.

– e.g. due process, legal representation, informed consent, accessibility

– life?

The Justification of Rights (1)

• One common justification for rights is in Kantian theory. If we are owed respect and dignity as rational beings, then it makes sense to say that we have certain rights in virtue of our rational nature.

• Many defenses of rights (particularly negative rights) make use of a Kantian position.

The Justification of Rights (2)

• The Utilitarian may well claim that when people have certain rights, the consequences are overwhelmingly beneficial. Many legal rights sport a utilitarian justification, but for the utilitarian, no right can be absolute or inviolable.

The Justification of Rights (3)

• Social Contract Theories are also used to justify rights. SCTs are historically justifications of governments, and as governments are usually seen as the chief protectors of rights, theories of rights are inherent in SCTs.

• All SCTs have in common the idea that people implicitly agree to give up some of their natural freedom in order to lead safer, more productive lives.

Social Contract Theories (1)

• Hobbes (In “Leviathan” 1668): People leave the “state of nature” because life in it is “nasty, poor, brutish, and short”. The ideal arrangement is to have one extremely strong entity (called “The Sovereign”) protect everyone from each other. Only negative rights apply in this model.

Social Contract Theories (2)

• Rousseau (in “The Social Contract” 1761) people come to live together because they cannot do everything they want to do alone. When people with diverse motives come to live together, it is necessary to limit what each may do and to demand some things that must be done so that the group can perform its overall function.

• Rousseau makes heavy use of the metaphor of the body, calling society “the body politic”, a term still used today.

Social Contract Theories (3)

• Locke (In “The Second Treatise of Government” 1690) Locke argued against the despotism he saw advocated in the writings of Hobbes, and would have been uncomfortable with the communitarian flavor of Rousseau’s SCT. Locke advocated a system of government that can only be described as ‘constitutional’.

• In fact, reading through his two treatises of government, it looks like a blueprint of our own constitution and declaration of independence. Some passages from early drafts of our constitution were lifted verbatim from Locke.

Social Contract Theories (4)

• Rawls (in “A Theory of Justice” 1971) presents a new view of the social contract.

• In Rawls, we are supposed to evaluate our social and political systems from a perspective called “the original position”, which is a position from which we do not know our own place in any prospective society.

• Rawls ends up with two guiding principles for social or political institutions (i.e. blueprints for the ideal kinds of rights) (Johnson p. 48) Rawls provides for much more extensive positive rights than any other SC theorist.

• Rawls’s theory depends on the acceptability of the maximin principle of rational choice (see next slide).

The Maximin Principle

• In World A, the total happiness is 100 and the average happiness is 20

• In World B, the total happiness is 95 and the average is 19

• Which do you prefer? Why?

• The maximin principle would choose B because it contains the highest minimum value.

• Notice that this provides a problem for Utilitarians.

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Happiness

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