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The Primacy of Welfare Rights

Published online by Cambridge University Press:  13 January 2009

Martin P. Golding
Martin P. Golding
Affiliation:
Philosophy and Law, Duke University
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Extract

This paper deals with three topics: (1) types of rights, (2) the development of the terminology of rights, and (3) the question of the primacy of welfare rights. Because these topics are interrelated, my exposition does not observe rigid boundaries among them. There is no pretence at all that any of these subjects is fully covered here; nor is it proposed, except for one writer, to touch upon the contemporary literature on rights, as noteworthy as some of that literature is. In order to gain entrance into the field, on which the writing has grown to massive proportions, I shall begin with an interesting historical phenomenon, some of whose philosophical import I want to explore.

I should say at the outset, however, that the general motivation of this paper is the problem of the significance of the language of “rights.” Does it really make a difference, for instance, to speak of the “rights of man” rather than the “common duties of humanity”? Does the term “rights” add anything of special significance or is its only significance rhetorical and ideological? Can we dispense with the language of rights and still say everything we need to say about our moral relations? I confess to a moderate skepticism about the necessity of the language of rights in the last analysis. At any rate, this paper is intended as a contribution, however small, to this problem. The historical phenomenon with which I am going to begin will enable us to bring into focus the issue of the meaning of “rights.”

Type
Research Article
Information
Social Philosophy and Policy , Volume 1 , Issue 2 , Spring 1984 , pp. 119 - 136
Copyright
Copyright © Social Philosophy and Policy Foundation 1984

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References

1 My interest in the specific, non-reducible functions of rights language – if there are any such functions – is part of a larger interest in the specific functions of the various terms of moral discourse and appraisal. This subject begins with Plato (Socrates?), e.g., in the Euthyphro, which discusses the relationships and differences holding between “piety” and “justice.” It is carried on in Aristotle's discussion of “justice” and the various virtues. On the other side, though, we may note the tendency to subordinate the various forms of moral appraisal to a single moral standard or bring them all under a single moral concept.

2 Pickering, Samuel F. Jr, John Locke and Children's Books in Eightteenth-Century England (Knoxville: University of Tennessee Press, 1981), 15Google Scholar.

3 Thomas Young, An Essay on Humanity to Animals (1798); cited in Pickering, 37.

4 E. A. Kendall, Keeper's Travels in Search of His Master (1798); cited in Pickering, 38.

5 Guardian of Education, 1802, 1; cited in Pickering, 38.

6 See Green, T. H., Lectures on the Principles of Political Obligation (New York: Longmans, Green and Co., 1941)Google Scholar, sec. 140.

7 For the terminology of “option” and “welfare” rights see Golding, M. P., “Towards a Theory of Human Rights,” The Monist, October 1968, 52 (4), 521–49CrossRefGoogle Scholar.

8 Golding, Martin P., “Justice and Rights: A Study in Relationship,” in Shelp, E. (ed.), Justice and Health Care (Dordrecht, Holland: D. Reidel, 1981), 23–36.CrossRefGoogle Scholar See also the useful book by Tuck, Richard, Natural Rights Theories (Cambridge: Cambridge University Press, 1979)CrossRefGoogle Scholar, and my review in Tuck, RichardPolitical Theory, February 1982, 10 (1), 152–57Google Scholar.

9 For a fuller discussion see my paper, “Justice and Rights.”

10 Cited in Kantorowicz, H., Studies in the Glossators of the Roman Law (Darmstadt, Germany: Scientia Verlag Aalen, 1969), 10Google Scholar.

11 See, e.g., Rashi's comment on Makkoth, 3a, s.v., kaytzad shamin (in standard editions of the Babylonian Talmud.)

12 Suarez, Francisco, De Legibus (Madrid: Consejo Superior de Investigaciones, 1971), 24Google Scholar.

13 Gewirth, Alan, Reason and Morality (Chicago: University of Chicago Press, 1978), 69fGoogle Scholar.

14 Samuel Pufendorf, Of the Law of Nature and Nations (London: 3rd edition, 1717), trans, by Basil Kennet, with the notes of J. Barbeyrac, Bk. IV, 144.

15 For an extensive treatment see Kirschenbaum, Aaron, “The ‘Good Samaritan’ and Jewish Law,” Diné Israel, 1976, 7, 7–86Google Scholar.

16 See, e.g., Augustine, St., The Catholic and Manichaean Ways of Life (Washington: Catholic University of America Press, 1966), trans. by , D.A., Gallagher, I.J.Google Scholar, Ch.17, 102. This translation reads “common rights,” but see the original in J.P.Migne (ed.), Patrologiae Latinae (Paris: 1844–), v. 32, 1368.

17 Reason and Morality, 42–47.

18 Ibid., 25.

19 See my paper “Towards a Theory of Human Rights,” cited above, n. 7.

20 See the book by Richard Tuck (cited above, no. 8), at 111.

21 Of the Law of Nature and Nations, III, 5, 3; in Kennet trans., Bk. III, 48.

22 Hume, David, An Inquiry Concerning the Principles of Morals (New York: Library of Liberal Arts, 1957), 21Google Scholar (Sec. III, Pt. 1).

23 See , M. P. and Golding, N. H., “Why Preserve Landmarks? A Preliminary Inquiry,” in Goodpaster, K. E. and Sayre, K. M. (eds.), Ethics and Problems of the 21st Century (Notre Dame, Ind.: University of Notre Dame Press, 1979), 175–90Google Scholar.

24 Golding, Martin P., “From Prudence to Rights: A Critique,” in Pennock, J. R. and Chapman, J. W. (eds.), Human Rights, NOMOS XXIII (New York: New York University Press, 1981), 165–74.Google Scholar I have not succeeded in convincing Professor Gewirth of the error of his ways. See his reply in Golding, Martin P.,idem, Ethics, Economics, and the Law, NOMOS XXIV (New York: New York University Press, 1982), 178–88Google Scholar.