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The Groundlessness of Natural Rights

Published online by Cambridge University Press:  26 January 2009

Ingmar Persson
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Extract

Today talk of rights is very much in vogue both in philosophical and popular ethics; so much so that it is common to find even philosophers unabashedly going straight to discussing what rights we have without touching on what their foundation might be. This is so in spite of there being a time-honoured tradition of scepticism about rights, conceived as ‘natural’ ones, going back at least to Jeremy Bentham. The present paper is intended as a contribution to this sceptical tradition for I shall try to prove that there are no natural rights or that nobody is the holder of any such right.

Type
Research Article
Information
Utilitas , Volume 6 , Issue 1 , May 1994 , pp. 9 - 24
Copyright
Copyright © Cambridge University Press 1994

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References

1 Locke, John, Two Treatises of Government, ed. Laslett, P., Cambridge, 1960, II, § 27.Google Scholar

2 Even if we assume that we can make suitable sense of the notion of mixing one's labour with an alien object—an assumption that Jeremy Waldron ably disputes: see his The Right to Private Property, Oxford, 1988, pp. 184 ffGoogle Scholar. Following James Tully, Waldron also stresses that Locke speaks of one's having a property not in one's body, but in one's person, the person for Locke being something that is more intimately tied to consciousness and responsible action. And ‘it is much more plausible for him to say’, Waldron continues, ‘that a man has creator's rights over his person than that he has them over his body’ (ibid., p. 180). But this does nothing to solve the special difficulty with regard to the right to ourselves, for we have surely not created the persons we are ex nihilo; so we may wonder about our rights to that of ourselves which pre-dates our acts of creation. If we do not have a right to any of this, could we have a right to what it later constitutes? The problem is readily seen when our labour is later equated with the energy expended in it (ibid., p. 183). Ultimately, the energy materialized in our being has certainly been created by sources external to us.

3 Locke, , II, § 38.Google Scholar

4 Hume, David, A Treatise of Human Nature, ed. Selby-Bigge, L. A. and revised by Nidditch, P. H., Oxford, 1978, p. 505n.Google Scholar

5 Cf. Nozick, Robert, Anarchy, State, and Utopia, New York, 1974, p. 174.Google Scholar

6 In the first instance, against the attempts of beings capable of recognizing rights from depriving the right-holder of the power over M. But the protection probably covers not only an obligation on the part of these subjects to abstain from such attempts, but also an obligation on their part to help fending off responsible and non-responsible agents or forces trying to deprive the subject of the right. However, the extension of this obligation shades imperceptibly into the area in which the right-holder itself is expected to exercise control over M.

7 See, e.g., Dworkin, R., ‘Rights as Trumps’, Theories of Rights, ed. Waldron, J., Oxford, 1984Google Scholar. Cf. also Waldron's statement: ‘our rights are, in a sense, those of our individual interests which it would be wrong or unreasonable to require us to sacrifice for the greater good of others’ (Waldron, , p. 103).Google Scholar

8 See his ‘entitlement theory of justice’, Nozick, , pp. 150–82.Google Scholar

9 I am grateful to Derek Parfit for having pressed this objection.

10 I shall not dwell on the question, what beings are qualified as right-holders. A minimal condition, derivable from (E), is that they are equipped with desires to make use of M now and in the imminent future. Whatever the precise conditions may be, it seems clear that human beings have been inclined unjustifiably to disqualify many beings from membership of the category of right-holders. Think for instance of those not too distant days when slavery was still accepted, and today we may still exclude from the class of right-subjects non-human animals that should be included.

11 Problems also arise when the distinction between what is brought about by nature and what is intentionally realized is inspected more closely. Suppose that when breaking into a laboratory in order to steal what I think is the particle snatcher, I unintentionally switch on another apparatus which is in fact the particle snatcher. As a result, I unintentionally snatch particles from the brain of a nearby scientist and become more intelligent. Surely, we do not want to say that I have right to the brain particles although the snatching was not intentional. The difficulty is that there is a range of results falling in between what is clearly brought about by nature and what is clearly intentional.

12 I am thinking here of Rawls, John's argument against ‘natural liberty’ in A Theory of Justice, Cambridge, Mass., 1971, pp. 72fGoogle Scholar. I shall try to present an argument that is not vulnerable to the criticisms Nozick directs at the arguments he reconstructs from Rawls (Nozick, , pp. 213–27).Google Scholar

13 Nozick, , pp. 222, 226–7Google Scholar; cf. also pp. 218–19.

14 If we say with Rawls (e.g., pp. 14–15) that application of his ‘difference principle’ to a difference shows an inequality to be just (rather than simply morally justified by properly balancing considerations of justice and utility), we must add that it is not the difference itself, apart from the consequences of distributing on it, that makes the inequality just. Hence, the parenthetical insertion in (1).

15 For the sake of briefness, this qualification is henceforth suppressed.

16 Given (7), a conception of justice having some presumption in favour of equality would seem to be among things that a consequentialist would have to take into consideration, but this is a question I do not discuss here.

17 For a recent defence of a consequentialist justification of rights, see Sumner, L. W., The Moral Foundations of Rights, Oxford, 1987, ch. 6.Google Scholar

18 Many thanks to Derek Parfit, F. Rosen and Peter Singer for valuable comments.