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Do Rights Exist by Convention or by Nature?

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Abstract

I argue that all rights exist by convention. According to my definition, a right exists by convention just in case its justification appeals to the rules of a socially shared pattern of acting. I show that (i) our usual justifications for rights are circular, that (ii) a right fulfills my criterion if all possible justifications for it are circular, and that (iii) all existing philosophical justifications for rights are circular or fail. We find three non-circular alternatives in the literature, viz. justifications of rights by consequences, by autonomy or by divine commands. I show that all three alternatives fail, and I conclude that all rights exist by convention. This ontological result has a surprising and beneficial consequence. A common argument against conventionalism is that it implies cultural relativism. I finish by showing that the suggested conventionalism is incompatible with cultural relativism.

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Notes

  1. Theories within the same camp can differ considerably. Prominent historical proponents of the conventionalist view are Thomas Hobbes (1994, Leviathan ch. 14-18), David Hume (2000 T 3.2), Jeremy Bentham (1843) and Karl Marx (1976 MEW, I.347-377). Recent defenders include Raymond Geuss (2001, ch. 3), Gilbert Harman (1996, pp., Section 1, 2), as well as some legal positivists (Campbell 2004). The opposing naturalist view was most influentially defended by John Locke (1823 T 2.1-5). His theory, as those of his now lesser-known contemporaries, influenced the preamble of the American declaration of independence and of the French declaration of human rights. Recent defenders include libertarians, both right-wing (Narveson 2001; Nozick 1974; Shapiro 2007) and left-wing (Cohen 1995; Otsuka 2003; Vallentyne and Steiner 2000), and Kantians (Griffin 1986, ch. 11.1–11.5; 2008, ch. 2.3–2.7; Ripstein 2009, ch. 2).

  2. A short remark here, to prevent confusion: Natural rights theorists are usually not ‘naturalists’; that is, they do not think of rights as things that the natural sciences can investigate or as reducible to physical entities. What unites this family of theories is their denial that rights are a social construction in any sense.

  3. Notice that the following explication captures all of the four basic meanings of “right” that Hohfeld distinguishes. Following Hohfeld, (1) a claim right is a right that others φ, (2) a privilege is the lack of a duty not to φ, (3) a power is a right to alter other people’s rights or duties and (4) an immunity is a right not to have one’s own rights and duties altered (1913, pp. 30–59). Categories 3 and 4 concern second-order rights and thus already presuppose the concept of a right we investigate here. Categories 1 and 2, however, are intertranslatable, as Hohfeld himself points out (pp. 32–33): If I have a ‘privilege’ to φ, then others have no ‘claim right’ against me that I don’t φ, and vice versa.

  4. Some argue that the Greek debate about nomos and physis in moral and political philosophy already introduced the idea of moral conventions and also introduced many of the questions discussed today (see, e.g., Taylor 2007).

  5. As I shall show in Sect. 5, a circular justification counts as a correct justification for a right.

  6. Said idea is a leitmotif in many of Anscombe’s writings on ethics (Anscombe 1981a, Sect. 2; b, Sect. 2; c, d, pp. 118–122). Despite the recent wave of interest in her work, however, only Roger Teichmann (2002, 2008), Sect. 3.2.2) has discussed it explicitly and has pointed out its far-reaching implications. Paul DeHart (2007, ch. 6) and Peter Winch (1987) use it as the starting point for their own conceptions.

  7. Anscombe (1981b, pp. 97–99) reads Hume’s famous ‘Circle Argument’ (T 3.2.1; also see Cohon 2010, Sect. 10.1) as already containing this point.

  8. Hume’s own discussion focuses on third example: promises (see T 3.2.5).

  9. The reader might wonder about the following three omissions: (1) Virtue ethics, the largest family of ethical theories and the one with the longest history, is not represented in this table. This is, first, because it is unclear what role rights play in virtue ethicist theories (see Miller 1995, e.g., for a discussion of rights in Aristotle). Second, contemporary virtue ethicists who have written about rights often accept Hume’s Circle; that is, they do not attempt to give a naturalist justification of rights. For more on the contemporary virtue ethicist perspective, see Sect. 8.3 below. (2) Locke is not represented. This is because his theory of right is merely a catalogue of rights, not a justification. Property rights are the only type of right on which he elaborates further, but these already presuppose a more basic property right, which in turn remains unexplained, viz. self-ownership. For the same reason is (3) contemporary libertarianism not represented in the table.

  10. According to Hume, human groups invented rights to overcome certain practical difficulties (T 3.2.2, § 7–9), and the utility of rights for every single group member justifies the members’ duty to respect rights. Property rights, for example, make life easier to plan and more secure (T 3.2.2, § 22); they are, according to Hume, even a prerequisite for human life as a group larger than one’s immediate kin and friends (T 3.2.2, § 4, 13). Each of us, Hume thinks, has an egoistic interest in being able to plan their life as well as in living as a group. Therefore, each of us has an egoistic interest in respecting the property rights of all others.

  11. Thus, Peter Singer’s (1989) famous defense of animal rights only argues that animals have an equal right to protection from bodily harm as human beings because they have an equal capacity for suffering. Singer does not explain how this capacity justifies rights in the first place. William Talbott’s (2010), ch. 1; 2013, ch. 6) consequentialist defense of human rights is one of the few that could be classified as an altruistic consequentialist justification of rights. His proposal, however, is not supposed to provide a general justification of rights, but only a justification for institutionalizing a certain set of universal rights (2010, p. 328).

  12. The first principle of Derek Parfit’s “Triple Theory” (2011, p. 413) is a similar suggestion.

  13. Rawls (1955, p. 16) objects: “There are obvious utilitarian advantages in having a practice which denies to the [individual agent] […] any general appeal to the utilitarian principles in accordance with which the practice itself may be justified.” Even if we grant this, though, it does not solve our problem. The problem is why we should follow the rules of a practice in a situation where this does not maximize N, given that it was maximization of N which justified our obligation to follow the rules of this practice in the first place. This problem cannot be solved by adding a further rule to the practice, according to which one must follow its previous rules even in such situations, since the same problem would arise for the new rule.

  14. Thomas Aquinas, for instance, classifies moral obligations as part of natural law, which in turn is that part of the world order into which all rational beings can gain insight—regardless of religious beliefs (ST I.IIae, Q 91.2 & 100.1). I would say that his view resembles Kant’s: Any rational being can see that actions against natural law are unreasonable.

  15. For the problems that a denial of this supervenience raises, see Michael Ridge (2007, 2014, Sect. 6) and the works he cites.

  16. Even those who, at this point, would rather hold on to rights naturalism than to supervenience might still find my argument interesting: It implies that they must give up supervenience.

  17. Anscombe puts this thought as follows: “Someone may want to say: […][my duty to the grocer] consists in these facts in the context of our institutions. This is correct in a way. But we must be careful, so to speak, to bracket that analysis correctly. That is, we must say, not: It consists in these-facts-holding-in-the-context-of-our institutions, but: It consists in these facts—in the context of our institutions, or: In the context of our institutions it consists in these facts” (1981f, p. 22, my emphasis). Similarly, I say: “The justification for why X has moral right R is that the rules of some practice P say that X has R—in the context of that practice being justified,” whereas the rule-consequentialist says: “The justification for why X has moral right R is that the-rules-of-some-practice P-say-that-X-has-R-in-the-context-of-that-practice-being-justified.”

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Acknowledgments

I am particularly grateful to Ulf Hlobil, as well as to Michael Thompson, Ori Beck and Japa Pallikkathayil, for reading multiple drafts of this paper. Further helpful suggestions came from Jonathan Buttaci, Natalja Deng, Michael Goodhart, Christian Kietzmann, Lok-Chun Kelson Law, Anselm Müller, Cynthia Swinehart, Charlotte Witt and two anonymous reviewers. I thank the Charlotte W. Newcombe Foundation for funding my research during this time.

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Nieswandt, K. Do Rights Exist by Convention or by Nature?. Topoi 35, 313–325 (2016). https://doi.org/10.1007/s11245-015-9311-x

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