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Why Do We Have the Rights We Do?

Published online by Cambridge University Press:  13 January 2009

Hugo Adam Bedau
Hugo Adam Bedau
Affiliation:
Philosophy, Tufts University
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Extract

1. The question “Why do we have the rights we do?” obviously presupposes that we do have some rights; that is, that propositions of the form ‘We have the right to x,’ or of the form ‘We have the right to do (or to have) x,’ are true for certain values of x. The same issues would arise if the original question had been formulated, or were to be reformulated, as it sometimes is, in a purely existential manner, viz., “Why are there the rights there are?” I believe there is no difference between the two questions except a verbal one; at least, both of them share the same existential presupposition to the effect that there are certain rights. I mention this point for two reasons. One is merely to acknowledge the trivial but true point that the question in my title does have an existential presupposition. The second and more important point is that since I shall have very little to say about any actual rights, I would not want anyone to infer from my silence that I do not think we have any rights. I accept the presupposition of my original question, but I shall not dwell upon it.

2. One might ask my original question and mean by rights, legal rights, that is, rights identified through the legal provisions of some legal system. That is not the sense in which I pose the question. It is true that a legal positivist would be able to give no intelligible meaning to my question except by treating it as equivalent to asking, “Why do we have the legal rights we do?” However, since I am not a legal positivist, I want my question understood in another way.

Type
Research Article
Information
Social Philosophy and Policy , Volume 1 , Issue 2 , Spring 1984 , pp. 56 - 72
Copyright
Copyright © Social Philosophy and Policy Foundation 1984

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References

1 Tooley, Michael, “Abortion and Infanticide,” Philosophy and Public Affairs, Fall 1972, 2 (1), 37–65Google Scholar.

2 Rawls, John, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971)Google Scholar, §§9,87; and Daniels, Norman, “Wide Reflective Equilibrium and Theory Acceptance in Ethics,” Journal of Philosophy, May 1979, 76 (5), 256–282CrossRefGoogle Scholar.

3 Shue, Henry, Basic Rights (Princeton, N.J.: Princeton University Press, 1980)Google Scholar.

4 Tuck, Richard, Natural Rights Theory (Cambridge, England: Cambridge University Press, 1979)CrossRefGoogle Scholar; and Golding, M. P., “The Concept of Rights: A Historical Sketch,” in , E., Bandman, B., eds., Bioethics and Human Rights (Boston, Mass.: Little Brown and Co., 1978), 44–50Google Scholar.

5 Noonan, John T., How to Argue About Abortion (New York: The Committee in Defense of Life, Inc., 1974)Google Scholar.

6 Singer, Peter, Animal Liberation (New York: New York Review, 1975)Google Scholar, and“Animals andthe Value of Life,” in Regan, Tom, ed., Matters of Life and Death (New York: Random House, 1980), 218–259Google Scholar.

7 Regan, Tom, All That Dwell Therein (Berkeley, Calif.: University of California Press, 1982)Google Scholar.

8 Stone, Christopher D., Should Trees Have Standing? (New York: Avon Books, 1974)Google Scholar; and William T. Blackstone, “The Search for an Environmental Ethic,” in Tom Regan, ed., op. cit., 299–335.

9 Nash, Roderick, “Do Rocks Have Rights?” The Center Magazine November–December 1977, 10 (6), 2–12.Google Scholar I am indebted to Tom Regan for this reference.

10 Bedau, H. A., “Human Rights and Foreign Assistance Programs,” in Brown, Peter G. and Douglas, MacLean, eds., Human Rights and U. S. Foreign Policy (Lexington, Mass.: D. C. Heath, 1979), 29–44Google Scholar; and “International Human Rights,” in Regan, Tom and Donald, VandeVeer, eds., And Justice For All (Totowa, N. J.: Rowman and Littlefield, 1982), 287–308Google Scholar.

11 Rawls, John, “The Justification of Civil Disobedience,” in Bedau, H. A., ed., Civil Disobedience (New York: Pegasus, 1969), 240–245Google Scholar, and his Theory of Justice, §57.

12 Rawls, Theory of Justice, §19.

13 Dworkin, Ronald, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978), 159–183, especially pp. 171 ffGoogle Scholar.

14 Daniels, Norman, “Reflective Equilibrium and Archimedian Points,” Canadian Journal of Philosophy, March 1980, 10 (1), 83–103, at 96–98CrossRefGoogle Scholar.

15 See Braybrooke, David, “The Firm but Untidy Correlativity of Rights and Obligations,” Canadian Journal of Philosophy, March 1972, 1 (3), 351–363CrossRefGoogle Scholar.

16 Hart, H. L. A., “Are There Any Natural Rights?” Philosophical Review, April 1955, 64 (2), 175–191CrossRefGoogle Scholar.

17 Thomas Hobbes, Leviathan (1651), Bk. I, ch. xiv, paras. 6–8.

18 See especially Searle, John R., “How to Derive ‘Ought’ from ‘Is’,” Philosophical Review, January 1964, 73 (1), pp. 43–58CrossRefGoogle Scholar.

19 Gewirth, Alan, Reason and Morality (Chicago 111.: University of Chicago Press, 1978)Google Scholar and Gewirth, Alan, Human Rights (Chicago, 111.: University of Chicago Press, 1982)Google Scholar.

20 Gewirth, Reason and Morality, 102; cf. his Human Rights, 22–24.

21 See especially the criticisms by Friedman, Richard B., Morris, Arval A., and Golding, Martin P., in Pennock, J. Roland, Chapman, John W., eds., Human Rights – Nomos XXIII (New York: New York University Press, 1981), 148–174Google Scholar; Regis, Edward, “Gewirth on Rights,” Journal of Philosophy, December 1981, 78 (12), 786–794Google Scholar; Adams, E. M., “The Ground of Human Rights,” American Philosophical Quarterly, April 1982, 191–196, at 193–194Google Scholar; and Allen, Paul, “A Critique of Gewirth's ‘Is-Ought’ Derivation,” Ethics, January 1982, 92 (2), 211–226CrossRefGoogle Scholar.

22 Gewirth, Human Rights, 23.

23 Sartre, Jean-Paul, Existentialism and Human Emotions (New York: Philosophical Library, 1957), 9–51Google Scholar.

24 Melden, A. I., Rights and Persons (Berkeley, Calif.: University of California Press, 1977), 79Google Scholar, and cf. 231.

25 Loc. cit.

26 Ibid., 103.

27 Ibid., 134, and cf. 167, 203.

28 Ibid., 199–200.

29 Ibid., 207.

30 See also the criticism by Morris, Herbert, “The Status of Rights,” Ethics, October 1981, 92 (1), 40–51CrossRefGoogle Scholar.

31 Is it not more plausible to say that whereas the discovery of human rights is a relatively recent cultural phenomenon, the foundation or source of human rights must be as old and cultural-neutral as is our nature as rationally autonomous creatures?

32 Something of an exception to this generalization is Richard Hare, who has recently attempted to show how his utilitarianism can give a ground to human rights. See his Moral Thinking (Oxford: Clarendon Press, 1982), §§9.1–9.6, and “Utility and Rights: Comments on David Lyons, Essay,” in Pennock, J. Roland, Chapman, John W., eds, Ethics, Economics, and The Law – Nomos XXIV (New York: New York University Press, 1982), 148–157Google Scholar.

33 Brandt, Richard, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979).Google Scholar Brandt mentions moral rights, so far as I have been able to determine, in only three passages, at 195 and 292, as well as 267 (the solitary passage cited in his index).

34 Jan Narveson, “Human Rights: Which, if Any, Are There?” in Pennock and Chapman, eds., Human Rights, 175–197.

35 David Lyons, “Utility and Rights,” in Pennock and Chapman, eds., Ethics, Economics, and the Law, 107–138.

36 Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974)Google Scholar.

37 Dworkin, op. cit.

38 I have discussed the idea of a theory of human rights more fully in “Human Rights: Some Theory-Oriented Reflections,” presented at the Xth Interamerican Congress of Philosophy, October 1981.