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Rights, Values, and Controversy

Published online by Cambridge University Press:  09 June 2015

W.N.R. Lucy
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Many political and moral theorists believe conceptual arguments about the nature of liberty, authority or power cannot be resolved independently of background normative theories. When this view is combined with the assumption that normative disputes are in some sense irresolvable—because, for example, reason fails us here—we have a partial account of the significance of controversy in moral and political argument. Controversy is significant because it is a manifestation of a deeper truth about reason and value. By contrast many would deny that controversy over such matters tells us anything important—it tells us merely what we already know, that disputants are stupid, self interested, in the thrall of an ideology, or informationally deprived.

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Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 5 , Issue 2 , July 1992 , pp. 195 - 213
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1992

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References

Thanks to Hillel Steiner, Alastair Edwards, Richard Bronaugh (a model of editorial precision and helpfulness) and Andrew Mason for their comments and thoughts on earlier drafts. These persons bear no responsibility for any weaknesses that remain. An earlier version of this essay was published in the U.K. under the title “Controversy About Children’s Rights” in Freestone, D. ed., Children and the Law (Hull: University Press, 1990).I am grateful to the editor and the University Press for permission toreprint parts of it.Google Scholar

1. Some examples are: Lukes, S. Power: A Radical View (London: MacMillan, 1974);CrossRefGoogle Scholar Connolly, W. Terms of Political Discourse, 2d ed.Oxford: Martin Robertson, 1983);Google Scholar Miller, D. “Constraints on Freedom,” (1983) 94 Ethics 66. For a recent statement of this view and an albeit partial attempt to escape it,Google Scholar see Kymlicka, W. Contemporary Political Philosophy: An Introduction (Oxford: Clarendon Press, 1990) c. 1.Google Scholar

2. I do not want to enter the argument over the most plausible candidate for the status of this deeper truth. Suffice it to say that proponents of this argument need a conditional along the following lines: If&, then endless controversy over moral and political issues is unavoidable. The most common suggestion for the first clause of this conditional is Hume’s claim that reason is the slave of the passions: A Treatise of Human Nature, 2d ed. (Oxford: Clarendon Press, 1978)Book Two, part 3, sect. 3 and Book 3, part 1, sect. 1.Google Scholar

3. On which see Maclntyre, A. After Virtue (London: Duckworth, 1981),chs. 2, 3, and 9.Google Scholar

4. Here I list: (i) Friends: Kekes, J. “Essentially Contested Concepts: A Reconsideration” (1977) 10 Philosophy and Rhetoric 71;Google Scholar Connolly, W. supra, note 1;Google Scholar Gallie, W.B. Philosophy and the Historical Understanding (London: Chatto and Windus, 1964)c. 8;Google Scholar Lukes, S. Essays in Social Theory London: MacMillan, 1977)—hereinafter Essays—chs. 8 and 6, and his “Under-determination of Theory, byData”, P.A.S. Supp. Vol. L 11 1978 (though note that he there invokes the thesis in an elliptical way which owes more to Habermas than Gallie: see 97–99–the first reasonstated therein (page 97, last paragraph) is the only one which Lukes connects with the thesis: supra, note 1 at 100); and (ii) Ambivalent Friends—CrossRefGoogle Scholar “The Concept of a Story”Google Scholar Gellner, E. “The Concept of a Story” 1967) IX Ratio 9;Google Scholar Gray, J. “”” (1978) 8 British. J. Pol. Sci. 385Google ScholarPubMed

5. This characterisation of the will theory, and the characterisation of the interest theory which follows, are heavily indebted to Simmonds, N.E. Central Issues in Jurisprudence: Justice, Law and Rights (London: Sweet & Maxwell, 1986),hereinafter Central Issues.Google Scholar

6. MacCormick, D.N. “Children’s Rights” c. 8 of his Legal Right and Social Democracy (Oxford: Clarendon Press, 1982) at 155.Google Scholar

7. Ibid.

8. Some do, however, recognise that the conceptual dispute between competing theories of rights is not one resolvable in purely conceptual terms: see Sumner, L.W. The Moral Foundation of Rights (Oxford: Clarendon Press, 1987) at 53;Google Scholar Simmonds, N.E. “Rights, Socialism and Liberalism” (1985) 5 Legal Studies at 4.Google Scholar

9. MacCormick, supra, note 6 at 155.

10. Ibid.

11. Ibid,at 160.

12. Gallie, supra, note 4 at 158.

13. Tuck, R. Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979) c. 1.CrossRefGoogle Scholar

14. The principal sources of this debate are: Hart, H.L.A. Essays on Bentham (Oxford: Clarendon Press, 1982) c. 7;Google Scholar MacCormick, D.N. “Rights in Legislation”(hereinafter Rights) inHacker, P.M.S. & Raz, J. eds,Law, Morality and Society (Oxford: Clarendon Press, 1977)Google Scholar and MacCormick’s “Children’s Rights”supra, note 6; N.E. Simmonds supra, note 5, c. 8 and book review (1983) 3 Legal Studies 337. A more recent contribution to the debate, which adopts the interest theory for reasons which are far from compelling, is found in Waldron, J. The Right to Private Property (Oxford: Clarendon Press, 1988)c. 3,esp. at 79–102.Google Scholar

15. supra, note 14 at 192–95.

16. Ibid.

17. Hillel Steiner in c. 3 his forthcoming book An Essay on Rights offers a thorough and compelling defenceof the will theory on this issue.

18. supra, note 14 at 197–98.

19. Central Issues at 137.

20. supra, note 14 at 199.

21. This is made by Simmonds, Central Issues at 137-38 and book review, supra, note 14 at 339.

22. It is, in fact, difficult to find statutory provisions which fit MacCormick‘s and Simmonds’ hypotheticals; in the U.K., The Health and Safety at Work, etc. Act 1974 lays down duties upon employers to maintain safe places of work in ss.2–8. However these duties are not the basis of civil actions by those injured as a result of breach: s.7. The duties are enforced by the Health and Safety Inspectorate and the ultimate sanction is criminal prosecution. There are restrictions on contracting out of the provisions of the Employment Protection (Consolidation) Act 1978: s. 10(1). However, these restrictionsare of limited range: s. 10(2). See Smith, I. & Wood, J. Industrial Law, 4th ed. (London: Butterworths, 1989)c. 11.Google Scholar

23. Central Issues at 138, and Simmonds, supra, note 14 at 339.

24. MacCormick,supra, note 6 at 158.

25. Hart,supra, note 14 at 181–82.

26. Rights, supra, note 14 at 199–201.

27. MacCormick,supra,note 6 at 150–63; see also Waldron’s response to this issue in supra, note 14.

28. For argument that the will theory need not accept correlatively see Simmonds, supra, note 14 at 338.

29. Hart,supra, note 14 at 187–88.

30. Rights at 208–09.

31. One argument between interest and will theorists not mentioned here seems to favour the will theory. It is the argument about compossibility made initially by Steiner, H. “The Structure of a Set of Compossible Rights” (1977) 7 Journal of Philosophy 767.Google Scholar An interest theorist’s response, which is not entirely convincing, can be found in Waldron, J. “Rights in Conflict” (1989) 99 Ethics 503.CrossRefGoogle Scholar

32. Kekes,supra,note 4 at 74.

33. See Marx, K. “On the Jewish Question” and Bentham, J. “Anarchical Fallacies” in Waldron, J. ed.,Nonsense Upon Stilts (London: Methuen, 1987)chs. 5 and 3.Google Scholar

34. Waldron,ibid.c. 6.

35. Connolly, one of the friends of the thesis, would not accept this: Connolly,supra,note 1 at 13–18.1 am grateful to Andrew Mason for pointing this out to me.

36. J. Lively, “Essentially Contested Concepts: A Re-appraisal” (Unpublished, delivered by Professor Lively, of the University of Warwick, Department of Politics, as a seminar at the Department of Government, University of Manchester.)

37. For what looks like recognition of the overlap between conceptual and foundational issues in rights discourse see L.W. Sumner and N.E. Simmonds, supra, note 8.

38. Simmonds, supra, note 8, offers a similar account at 6”8.

39. The example is Dworkin’s, R. Law’s Empire (London: Fontana, 1986) at 44.Google Scholar

40. Waisman, F. “Verifiability” in Flew, A. ed., Essays on Logic and Language, First Series (Oxford: Basil Blackwell, 1951) at 120–21.Google Scholar

41. For another picture see R. Dworkin,supra,note 39, chs. 1 and 2.

42. For a good example of this criticism see Keekok, Lee, A New Basis for Moral Philosophy (London: Routledge Kegan, Paul, 1985) at 21–23.Google Scholar

43. The concept/conception distinction is used by inter alia S. Lukes,supra, note 1 at 27; R. Dworkin, supra, note 39 at 70–73; Rawls, J. A Theory of Justice (Oxford: Clarendon Press, 1985) at 5–6.Google Scholar

44. Lukes,supra, note 4 at c. 8 at 173.

45. Kekes,supra, note 39 at 75.

46. Dworkin,supra, note 39 at 75.

47. Ibid.

48. Sumner,supra, note 8 at 47.

49. Gallie,supra, note 4 at 180.

50. Gellner,supra, note 4.

51. Swanton, C. “On the ‘Essential Contestedness of Political Concepts’” (1985) 95 Ethics 811 at 816–18.Google Scholar

52. Ibid. at 816.

53. Lively,supra, note 36 at 20–21.

54. Ibid. at 9.

55. Swanton,supra, note 51 at 822.

56. I have severe reservations about both points.

57. This argument was put to me by Toddington, S. and appears in his forthcoming book, Rationality, Social Action, and Moral Judgment (Edinburgh: Edinburgh University Press, 1992) c. 3. In the first published version of this article, the argument is wrong because of a typographical confusion between both ‘P’ and ‘not-P’ and ‘inter’ and ‘intra’. These have been corrected here.Google Scholar

58. Lukes,supra,note 4 at 159.

59. This argument is put in compelling form by Hollis, M. “Reason and Ritual” in Wilson, B. ed., Rationality (London: Basil Blackwell, 1979) at 216. Google Scholar

60. Lukes,supra, note 4 at 165.

61. Gray,supra, note 4 at 394.

62. Ibid,at 395. Kekes,supra,note 4, also makes this claim.

63. Raz, J. The Morality of Freedom (Oxford: Clarendon Press, 1986) at 33. For Raz this is true of both significant and insignificant incommensurabilities, ibid, at 335–53.Google Scholar

64. ibid, at 335–53.

65. A standard source of this view is Ayer, A.J. Language, Truth and Logic (Harmonsworth: Pelican, 1971) at 110–11.Google Scholar

66. A claim made by, inter alia Campbell, T.D. “Philosophy, Ideology and Rights” (1985)5 Legal Studies 10 at 13.Google Scholar

67. Mill, J.S. apparently makes this assumption; see On Liberty, in Utilitarianism, On Liberty and Considerations on Representative Government (London: Dutton, 1972) at 133.Google Scholar

68. Lukes,supra, note 1 at 33; Connolly, supra, note 1.

69. Connolly,ibid, at 6.

70. Benton, T. “Realism, Power and Objective Interests” in Graham, K. ed., Contemporary Political Philosophy: Radical Studies (Cambridge: Cambridge University Press, 1982) at 24.Google Scholar

71. Both arguments are offered by Benton, ibid. note 1 at 33; Connolly, supra, note 1.

72. A point well dealt with by Simmonds, supra. note 8 at 5.

73. For attempts to square utility and rights see the essays in Frey, R.G. ed., Utility and Rights (Minneapolis: University of Minnesota Press, 1984).Google Scholar

74. Raz,supra, note 63, c. 5 and part 5.