Abstract
My goal in this paper is to advance a long-standing debate about the nature of moral rights. The debate focuses on the questions: In virtue of what do persons possess moral rights? What could explain the fact that they possess moral rights? The predominant sides in this debate are the status theory and the instrumental theory. I aim to develop and defend a new instrumental theory. I take as my point of departure the influential view of Joseph Raz, which for all its virtues is unable to meet the challenge to the instrumentalist that I will address: the problem of justifying the enforcement of rights. I then offer a new instrumental theory in which duties are grounded on individuals’ interests, and individuals rights exist in virtue of the duties owed to them. I argue that my theory enables the instrumentalist to give the right sort of justification for enforcing rights.
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Notes
For a discussion of the tradition of prioritizing rights, not limited to instrumental theories, that traces this view back to Locke, see Raz 1994: 29–30. There is a competing tradition that prioritizes duties, which is prominent in the writings of Bentham and Austin, and comes to fruition in Mill. As I explain in section 2.B, Raz’s theory and my own can be seen as alternate ways of developing the welfarist theory of rights developed by Mill (Mill 1861/2001 and Mill 1869/1978), without subscribing to Mill’s utilitarian account of right action. For a good discussion of Mill’s theory, see Sumner 1987: 132–142.
There is a related debate about the nature of rights, between the will theory and the interest theory, over whether an individual must herself have the power to enforce her claims in order to count as a right-holder (as the will theory holds); or must only benefit (in certain ways or under certain circumstances that need to be spelled out) from the enforcement of her claim by someone with the required power in order to count as a right-holder (as the interest theory claims). I believe that an argument for the interest theory can be built on my version of the instrumental theory, but I cannot explore this issue here.
In general, I understand reasons to be facts which, when they obtain, count in favor of performing some action. I do not assume that for A to have a reason to ϕ, A must actually be motivated to ϕ. A fact that favors ϕ-ing can be a reason for A to ϕ so long as 1) it is possible for A to be motivated to ϕ by that fact, given that A cannot transcend the limits of normal human psychology; and 2) A has the physical and material resources necessary for ϕ-ing.
In section 3 I give an argument that grounds exclusionary reasons without appealing to the directives of an authority.
This characterization of moral duties only applies to perfect duties. The exclusionary scope of an imperfect duty will not encompass every reason against fulfilling the duty. Imperfect duties are duties that admit exceptions of inclination because they deprive us of the liberty to act for some but not all competing reasons. Since I take it that the duties correlative with moral rights are perfect, these are the duties with which I am concerned.
Obligations are protected reasons, rather than pre-emptive reasons, because one can have an obligation to do something which is not what one ought to do all things considered. The exclusionary scope of an obligation, like that of an imperfect duty, will not encompass all reasons against fulfilling the obligation.
For a recent well-developed example, see Darwall 2006.
Again, my discussion of duty is not meant to apply to imperfect duties (see supra n. 6).
I take it that enumerating these requirements is a job for the combined powers of the social sciences. What is required is likely to vary across cultures, historical periods, geographical conditions, etc. I do not assume any particular metric for measuring social well-being. I only assume that somehow or other we can make judgments such as the one that the United States as a political community became better after passing the Civil Rights Act of 1964, despite the turmoil that preceded and followed it. A society is better off the more able it is to formulate, pursue, and achieve valuable social goals.
Since duties are pre-emptive reasons, and pre-emptive reasons contain a first-order component supported by the overall balance of reasons, genuine duties cannot conflict. In rare circumstances, reasons that are normally duties will conflict. Obligations, as opposed to duties, can easily conflict.
The order in which the features are given is important. We must determine whether an interest possesses the third before inquiring about the fourth. Suppose we have determined that an interest is both important and relevant, and then ask whether the good that would come of coercively obtaining its satisfaction outweighs the bad. If we have not first determined whether its satisfaction is necessary to the flourishing of society, we will end up including in our judgment the harm to the coerced of depriving him of his freedom. If he is in fact not morally free in this case, we will give too much weight to the side that disfavors coercion.
Just how significant and central a contribution is made, or how much harm is caused by failing to fulfill the duty, as well as how urgently the duty must be fulfilled, will set limits on what sort of coercion is appropriate and on who can apply coercive measures.
References
Darwall S (2006) The Second-Person Standpoint: Morality, Respect, and Accountability. Harvard UP, Cambridge
Kramer M, Simmonds NE, Steiner L (2000) A Debate over Rights: Philosophical Enquiries. Oxford UP, Oxford
Mill JS (1861/2001) Utilitarianism. G Sher, ed. Hackett, Indianapolis
Mill JS (1869/1978) On Liberty. E Rapaport, ed. Hackett, Indianapolis
Raz J (1979) The Authority of Law: Essays on Law and Morality. Oxford UP, Oxford
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Raz J (1994) Ethics in the Public Domain. Clarendon Press, Oxford
Simmons AJ (1979) Moral Principles and Political Obligations. Princeton UP, Princeton
Sumner LW (1987) The Moral Foundation of Rights. Clarendon Press, Oxford
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This paper has benefited greatly from comments by Daniel Bonevac, Jonathan Dancy, A. P. Martinich and Joseph Raz. My thanks to the members of the Oxford Jurisprudence Discussion Group for allowing me to present an earlier draft and for their very helpful questions.
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Sherman, J. A New Instrumental Theory of Rights. Ethic Theory Moral Prac 13, 215–228 (2010). https://doi.org/10.1007/s10677-009-9187-1
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DOI: https://doi.org/10.1007/s10677-009-9187-1