STAFF INTRODUCTION
SECTION 1
Staff introduction
Overall, this unit introduces many new concepts that will be unfamiliar
to students who have completed the Higher. This should not daunt
them, however, as issues of justice and rights are more accessible, and
seem to have more practical importance than some other areas of
philosophy. While justice was not dealt with in any depth in the Higher
Philosophy course, students will be familiar with some of Plato’s
arguments from the Republic from their study of his work in the Classic
Texts in Philosophy unit. A familiarity with his style will certainly aid
comprehension of his somewhat abstract views on justice. Again, Plato’s
views on justice are somewhat more accessible than some other parts of
his philosophy.
More generally, students may already have encountered basic issues of
equality and liberty in the Moral and Social Philosophy option in the
Problems in Philosophy unit at Higher level. They may also have
discussed if, and how, the redistribution of wealth should be
undertaken. All of this knowledge will serve as a useful foundation for
the justice theories of Nozick and Rawls.
Equality and liberty are also of obvious relevance to the human rights
section of this unit. Students may have considered liberty rights in the
Higher course; this, combined with the general high awareness of
human rights issues today, will provide a good base of knowledge that
will aid consideration of the key issues at Advanced Higher.
The two main areas of study in this unit have a clear degree of overlap,
and it will be useful to consider the relationship between conceptions of
justice and conceptions of human rights.
Areas of study:
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What is justice?
Plato’s Theory, Rawls’ Two Principles of Justice and Nozick’s
Entitlement Theory
The nature of human rights
Locke’s Natural Rights, and Bentham’s and Marx’s criticisms of
natural rights.
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STAFF INTRODUCTION
By the end of this unit students should be able to:
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explain Plato’s, Rawls’ and Nozick’s conceptions of justice, and
analyse them;
describe in detail the historical and philosophical background of
human rights;
show knowledge of Locke’s views and Bentham’s and Marx’s
criticisms;
analyse the view that there are moral, inalienable, irrevocable
human rights.
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STUDENT INFORMATION
SECTION 2
Student information
This unit builds on the knowledge already acquired by students who
have completed Classic Texts in Philosophy and the relevant option of
Problems in Philosophy units at Higher level. While you have not yet
encountered his views on justice, you have already studied some of
Plato’s Republic, and his theory of justice which forms part of this unit is
also in that text. You will see how Plato’s views on justice fit with the
rest of his philosophy.
More directly, you may already have touched on issues of justice and
human rights in the Moral and Social Philosophy option of the Problems
in Philosophy unit. At Higher level you considered the conflict between
liberty and equality, which lies at the root of contemporary debate about
justice. You may also have studied the theory that wealth should be
redistributed in order to make everyone equal. Both of these issues are
dealt with by the two contemporary political philosophers you will study
in this unit.
In relation to human rights, you may have encountered the idea that all
individuals should have equal rights; this is the foundation of modern
human rights theory. In this unit you will study in much greater depth
the concept of human (or natural) rights, and attempt to determine if
there is any sound basis to the notion.
Areas of study:
•
•
•
•
What is justice?
Plato’s Theory, Rawls’ Two Principles of Justice and Nozick’s
Entitlement Theory
The nature of human rights
Locke’s Natural Rights, and Bentham’s and Marx’s criticisms of
natural rights.
By the end of this unit you should be able to:
•
•
explain Plato’s, Rawls’ and Nozick’s conceptions of justice, and
analyse them;
describe in detail the historical and philosophical background of
human rights;
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STUDENT INFORMATION
•
show knowledge of Locke’s views and Bentham’s and Marx’s
criticisms;
analyse the view that there are moral, inalienable, irrevocable
human rights.
•
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SOCIAL PHILOSOPHY (AH)
THEORIES OF JUSTICE
SECTION 3
Theories of justice
Introduction
What is justice? This is a question that has concerned great thinkers
since the discipline of philosophy began in Greece 2,700 years ago.
Perhaps the oldest definition of justice is that attributed by Plato to the
ancient poet Simonides: ‘Justice is the constant and perpetual will of
rendering to everyone his due.’ This was later formalised by Ulpian, a
Roman juror. This definition, though, does not help us establish exactly
what ‘one’s due’ is, or tell us how we should establish it.
Normally when people talk about ‘justice’ they mean ‘making sure that
criminals get what they deserve’. This is certainly one concern of justice:
it is known as retributive justice. This is an important issue but
philosophical debate has centred more on distributive justice. A
theory of distributive justice attempts to answer several questions:
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What is the best way to distribute a society’s resources?
Should the riches of the wealthy be redistributed to the poor?
Is an equal society the best possible society?
What exactly do we mean by equality?
Is unjust treatment ever justifiable?
Unsurprisingly, there are many different answers to each of these
questions. We will be looking at three great theoreticians of justice: the
pre-eminent Greek philosopher Plato, and two contemporary political
philosophers, John Rawls and Robert Nozick.
Plato’s theory is somewhat different from those of the two modern
philosophers: it is more to do with the well-ordering of the state than
actual distributions (although distributions are of course important for a
well-functioning state). He attempts to explain justice in terms of the
relation between different sections of society. Rawls argues for a
conception of ‘justice as fairness’, and Nozick offers a theory of justice as
entitlement, as well as some insightful criticisms of Rawls. By the end of
this section of the unit, we should be some way towards answering these
great questions.
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THEORIES OF JUSTICE
Plato
There were three main Greek philosophers: Socrates, Plato and
Aristotle. Of these, Plato, who was Socrates’ pupil and Aristotle’s
teacher, is widely accepted as the greatest. In the Republic, his most
famous work, Plato examines many different topics, including
psychology, logic, metaphysics, ethics and politics. These last two areas
are intimately linked for Plato: he thinks that justice is the essence of
morality. It is worth noting that the Greek use of ‘justice’ is different
from our own. Our ‘justice’ is derived from the Latin ius, meaning ‘what
is enforced by human authority’; as already mentioned, this sounds very
legalistic. For Plato, justice is the root of all morality, and is most
helpfully translated as ‘goodness.’ His aim in the Republic is to establish
the nature of this goodness – the nature of justice.
The Republic, like most of Plato’s work, is written entirely in the form of
dialogues. His method is to have speakers suggest certain theories, and
then to disprove or discredit these theories with the words of another
speaker. This other speaker, who represents Plato’s own view, is called
Socrates; this has resulted in some dispute as to whether the views are
really Plato’s or just reiterations of what he learned from Socrates.
Cephalus’ Definition of Justice
Plato’s discussion of justice begins with an attempt to agree on a
definition of justice. Cephalus, a rich and retired merchant, suggests
that justice consists in giving people what they deserve; give to each
person his or her due. Socrates swiftly points out the problem with this
definition: it is circular, as any concept of a person’s desert or due
depends on a pre-existing definition of justice. How can we know what a
man deserves unless we know what he justly deserves? We can’t – and to
establish what a man justly deserves we need a definition of justice.
Thrasymachus’ Definition of Justice
An alternative definition of justice is offered by Thrasymachus, a Sophist.
(‘Sophist’ then meant a wise man, rather than one who offers convincing
arguments for weak positions.) He suggests that ‘just or right means
nothing but what is to the interest of the stronger party.’ This means
that the strongest individual or group in a society is always right, so long
as they pursue their own interests. The actions of the sovereign power
in a society are always right, since ‘right actions’ means ‘the actions of
the sovereign power.’ It is acceptable for minorities to challenge the
rightness of these actions, but only if they can make the strong majority
accept their conception of rightness. To modern ears, this does not
sound like a definition of justice at all; surely it is unjust to simply say
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‘whoever is in power is always right’? Even when we bear in mind the
Greeks’ wider use of the word, this still does not sound like a
convincing explanation of ‘the nature of goodness’. Socrates offers three
arguments to refute Thrasymachus’ definition of justice.
1.
The strong individual or group (the sovereign power) does not
always merely want to use its strength to get what it wants. The
ruler is like a craftsman: his art is the art of government. To be a
great artist, he must look after all those in his care; otherwise he is
not governing well.
Like a good captain looking after his ship, the good ruler will look
after his people well. A ruler who is interested only in dominating
his subjects is not a good ruler.
‘No form of skill or authority provides for its own benefit, it always
studies and prescribes what is good for its subject – the interest of
the weaker party.’ (Socrates)
Does this refutation succeed? Surely some rulers do not care
whether or not they rule well, as long as they retain their power.
Socrates would reply that in fact such rulers do not stay in power
very long, as the citizenry would not tolerate such a ruler, but it is
not clear that this is so. If a tyrant’s power is great enough, he can
stay in power for decades; look at Stalin.
2.
A governor is like a musician. If a musician tunes his instrument
too highly, it will not play in tune at all. Similarly, if a governor
attempts to increase his power beyond a certain point, all his
governance will collapse. Is this second refutation successful? The
metaphor doesn’t really work as well as those given in the first
refutation. A musician would not want to tune his instrument too
highly, whilst a despot might well want to increase his power. But it
is certainly true that Hitler lost his power because of his massive
ambition for greater power, and it is widely accepted that ambition
can often overreach realistic goals and lead to loss of power.
Although the metaphor fails, this refutation is more successful than
the first.
3.
Everything has a function. A man’s function is not to gratify his
desires, like an animal, but to think and act rationally. If a man does
not fulfil his function, he will not be content and happy. Thus a
ruler who merely exercises power to further his own interests will
not achieve happiness, as he is merely indulging his desires and
not acting rationally. This refutation seems to fly in the face of
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THEORIES OF JUSTICE
empirical evidence: many dictators would claim to be perfectly
happy and content with their lot.
All three of these refutations attempt to show that men do not desire
power for its own sake. Rather, they seek to do what is best for those in
their power by acting rationally in their best interests. Let us allow that
this is true, though it may well not be. Even if Plato (Socrates) is right
about this, he has missed Thrasymachus’ main point. Thrasymachus
never said that men desire power for its own sake. He merely said that
whatever actions strong men take in pursuing their interests are right.
Such interests might well include caring for minorities and looking after
all their citizens well. Socrates’ refutations are unnecessary, as
Thrasymachus’ definition of justice agrees with them. Thrasymachus’
point is that the strong man’s (or group’s) conception of right must be
accepted by those in inferior positions of power. Practically speaking,
they have no choice but to do so, although they can always dissent
theoretically.
It might seem that Thrasymachus was defending tyranny; he was not. All
he was saying was that the morality of a society is identical to the
morality of its rulers. The rulers could be a monarchy, a dictatorship, or
a democratically elected representative. His Sophist view was that laws
are made by the strongest men in a society. While this may be true of
legal laws, it is not clear if it is true of moral laws; if it is also true of the
moral laws, then there can be no such thing as absolute human rights,
since there is no absolute morality. Thrasymachus does not allow for
objective moral values, and his theory has consequently been rejected as
too subjective.
Glaucon’s and Adeimatus’ Theory
Glaucon and Adeimatus (Plato’s brothers) do not subscribe to the theory
that they suggest. They only put it forward so that they can hear
Socrates’ rejection of it. Their suggestion is that no one acts virtuously
for the sake of virtue itself; people only act virtuously for reasons of
expediency. Human beings always have self-interested motivations,
although they will often act in accordance with accepted moral
principles because doing so serves their best interests. Equally, though,
there is nothing wrong with breaking these moral principles in a given
circumstance, if doing so will advance their interests more than
conformity. It is this last part that Glaucon and Adeimatus find so
disturbing: it means that it is acceptable to break consensual moral
principles if doing so is to your advantage. The modern name for this
theory is psychological egoism. (A variant of it was used by Thomas
Hobbes in his political philosophy: see the John Locke part of
Section 4.) This theory reduces justice to the mutual service of selfish
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THEORIES OF JUSTICE
interests; like Thrasymachus’ theory, it denies the existence of objective
moral values, and is entirely subjective. Socrates has no simple
refutation of this theory. Instead he offers an alternative, his own theory
of justice, which he thinks shows the weakness of the selfish theory.
Socrates’ Theory (Plato’s View)
Socrates shifts from the consideration of individual conduct in Glaucon’s
and Adeimatus’ theory to consideration of virtue on a larger scale, in the
community. He believes that the natures of virtue and justice will be
easier to discern given this larger scale. Socrates begins by giving an
account of how social organisation comes about. He argues that, since
no one is self-sufficient, people have to co-operate in order to obtain
what they need to survive and have a secure life. Because of this cooperation, basic necessities will be ensured. This can be done ‘locally’,
without anyone in the community going far afield. Once these basic
needs are met, demand for luxuries will grow; since these are mainly
obtained from ‘abroad’ (or at least far away), sources of supply will have
to be found, and an army formed to protect trade routes. Also, it makes
sense to have some kind of government that determines the policy of
the community as a whole, and the organisation of its social structure.
From all this Socrates reaches the conclusion that a community requires
three classes of citizen:
1.
The Producers: those who provide the goods required by the
community, and who generate the community’s wealth (employers
and employees).
2.
The Auxiliaries: the police, who protect the community from
internal dangers, and the army, who protect the community from
external dangers.
(In Plato’s time the army carried out both these duties.)
3.
The Guardians: those who make and carry out the rules of the
state; government.
Each of these classes is characterised by a dominant trait. The producers
should possess temperance – willingness to respect and obey the
guardians. The auxiliaries should possess courage, so that they are ready
to face danger and are good warriors. The guardians should possess
wisdom – good judgement, especially regarding moral matters. But as
well as these three classes of citizen, the community – or Ideal State as
Plato calls it – also has a fourth element, which permeates all the classes
and binds them together, ensuring they interact properly. This fourth
element is justice; it is the fundamental virtue of a good state.
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Justice ensures that the different parts of the state exist in harmony.
Using another metaphor, Socrates conceives of the state as an organism.
Its different parts (the people who constitute the different classes) are
valuable because of their role in keeping the greater whole functioning
well. Just as our hearts, lungs, brain and limbs need to function properly
for us to function well, so the state needs its citizens, with their different
dominant characteristics, to function well. But it is not enough for each
part to function well; it must also function in harmony with the other
parts. This is the role of justice in the state.
Now that he has established the role of justice in the state, Socrates
returns to consideration of the individual. He claims that the three
classes of citizen correspond precisely with the main three motives of
action in the individual:
V
V
V
The Producers
The Auxiliaries
The Guardians
Appetite
Spirit
Reason
The producers provide for our appetites, the auxiliaries face danger
because of their spirit, and the guardians rule because they are the ones
who reason well. In the same way that justice harmonises between the
three classes of citizen in the state, virtue (in this context meaning
individual justice) lies in achieving harmony between appetite, spirit
and reason. As Socrates says:
‘Justice is produced in the soul, like health in the body, by
establishing the elements concerned in their natural relations of
control and subordination, whereas injustice is like disease and
means that this natural order is inverted.’
So justice in the individual consists in harmony between his or her
appetite, spirit and reason. Justice in the state consists in harmony
between producers, auxiliaries and guardians. Morality is concerned
with how efficiently a citizen discharges their role in society. Plato’s
Organic Theory of the State, as related by Socrates, maintains that the
whole (the state) is more important than the part (the citizen); not only
this, but the part gains its worth from its contribution to the state.
Plato’s theory also stipulates that some parts are more important than
others. One guardian is more important than one producer, just as one
brain is more important than one finger.
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Socrates’ Reply to Glaucon and Adeimatus
Having established the nature of justice, Plato turns to consideration of
democracy; he is not in favour of it, but that is not our concern.
Socrates’ subtle reply to Glaucon and Adeimatus should be apparent.
Just as he argued against Thrasymachus that people do not seek power
for its own sake, so he argues against the ‘selfish theory’ that they
should not simply use their power to indulge their desires. Human
powers should always be used according to the dictates of the Good for
the ‘right ordering of the state and of the individual.’ [VII, 540] Thus
control of the community should be left to those who are least likely to
be influenced by their desires and ambitions, and who will do what is
right for their community. (This is why Plato disliked democracy, as it
places governance in the hands of the ignorant and corrupt.) It is
obvious that, if there can be certainty about what is right, then there are
objective moral standards; the theories put forward by Thrasymachus,
Glaucon and Adeimatus denied this.
Socrates makes a convincing case against Thrasymachus when he points
out that most people would disagree with his conception of justice as
‘whatever is in the interests of the stronger party’. Many acts are called
just which go against the interest of the stronger party. Indeed, is it not
the role of justice to ensure that the weaker parties have their interests
looked after?
The Problem with Plato’s Theory of Justice
The problem with Plato’s theory of justice is that he never says exactly
how we can establish which course of action is the just one. What
differentiates a belief that an action is just from knowledge that it is?
Plato says that justice is ‘beyond truth and knowledge’, and makes both
of these possible. This hardly helps us. But these difficulties arise
because Plato is trying to establish the a priori nature of moral truths;
he believes they are self-evident, without recourse to empirical
evidence, like the truth of 2+2=4. There is no way of demonstrating to
someone who denies this proposition that it is true; perhaps the same is
true of moral propositions.
Many philosophers believe that Plato was too quick to dismiss
alternative theories. Recent developments, such as the controversies
surrounding capital punishment, abortion, euthanasia, bloodsports and
genetic modification suggest that there can be no a priori moral truths,
and therefore that Plato’s conception of justice is far too abstract. But if
he is right, then anyone who disobeys the imperatives of morality or
justice is irrational, since anyone rational will act morally. This, though,
is a separate question from the main concerns of justice.
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THEORIES OF JUSTICE
John Rawls
Born in 1921, John Rawls is Professor of Philosophy at Harvard
University in Massachusetts, USA; he is perhaps the single most
important political philosopher of the last century. In his main work, A
Theory of Justice, he sets out his conception of justice as fairness. Like
Plato, Rawls is concerned with the structure of society, how it should be
arranged, and how wealth and goods ought to be distributed.
Rawls regards himself as being in the contractarian tradition of John
Locke, Jean-Jacques Rousseau and Immanuel Kant. These illustrious
predecessors conceived (in general terms) of everyone in a society
agreeing to a certain contract, and thereby setting up a government.
Rawls makes the more abstract suggestion that the initial contract
should concern only the basic principles of justice:
‘Principles that free and rational persons concerned to further their
own interests would accept in an initial position of equality as
defining the fundamental terms of their association. These
principles are to regulate all further agreements; they specify the
kinds of social co-operation that can be entered into and the forms
of government that can be established. This way of regarding the
principles of justice I shall call justice as fairness.’ [Chapter 1, S.3]
But how are we to establish what these free and rational people would
agree to in this initial position? Simple – by imagining ourselves in it.
The Original Position
Rawls asks us to imagine ourselves in what he calls the Original Position:
a hypothetical state of affairs in which we must establish our principles
of justice. Just as previous contractarian theories spoke of an initial State
of Nature, where no laws yet exist, the Original Position is a
hypothetical situation designed to help us formulate an accurate
conception of justice. Equality in the Original Position is ensured by the
Veil of Ignorance. Behind this veil, we have no knowledge of our
position in society, gender, income, or even our desires and
preferences. We only know certain basic facts about human nature: that
people can be exploitative and cruel, but also helpful and kind. Given
these basic facts, we must agree on which mutually beneficial principles
of justice we should adopt.
The idea is that, since we are behind the Veil of Ignorance, our choice
of principles of justice will be impartial, and hence fair. Imagine a
slaveowner and one of his slaves. The slaveowner is quite happy with his
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position in society, and does not care that it is unjust. The slave
conversely detests his lot, and cares very much about the injustice of his
situation. Now imagine that these two people find themselves in the
Original Position. Since they are behind the Veil of Ignorance, they are
both unaware of their positions in society; the slave doesn’t know he’s a
slave and the owner doesn’t know that he is an owner. Rawls believes
that, since they don’t know in what position they will find themselves
when they ‘return’ to the real world, they will agree on whichever
principles of justice will ensure that they are treated well. Their
ignorance ensures their impartiality, which in turn ensures their fair
adoption of just principles.
Important to Rawls’ conception of justice is the notion of primary
goods: things that will be important, no matter what our preferences
and position in society turn out to be. If you are a musician, you require
an instrument; a scholar requires books. But these goods are too
specific. More generally, everyone needs money. Money is a primary
good; so are health and liberty and self-respect. In being fair and just,
we should attempt to ensure an even distribution of primary goods;
after this is done, it’s up to individuals to do the best they can for
themselves with these basic goods. Rawls states that the most important
primary goods are ‘rights and liberties, powers and opportunities,
income and wealth.’ Self-respect is also important. (Other primary
goods include health, vigour, intelligence and imagination, but these
are not directly affected by the initial structure of society.)
The Two Principles of Justice
With their impartiality secured by their ignorance, Rawls thinks that the
free and rational people in the Original Position will adopt two basic
principles of justice that will ensure them a fair share of primary goods:
1.
Each person is to have an equal right to the most extensive basic
liberty compatible with a similar liberty for others (the Liberty
Principle).
2.
Social and economic inequalities are to be arranged so that they
are both:
(a)
(b)
reasonably expected to be to everyone’s advantage (the
Difference Principle), and
attached to positions and offices open to all (the Fair
Opportunity Principle).
(The Fair Opportunity Principle is not as important as the other two.)
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Given that those who find themselves in the Original Position do not
know their ‘real’ position in society, they will adopt these principles
because they ensure that, no matter how bad the circumstances they
find themselves in, they will be treated fairly and justly. Thus the slave,
on ‘returning’ to a world in which these principles of justice have been
adopted, will find himself a slave no longer, since the institution of
slavery violates both these principles. (A slave does not have an equal
right to the same liberty as everyone else and does not gain advantage
from their unequal status.)
Rawls offers some comments on his principles. They apply to the basic
structure of society, and are intended ‘to govern the assignment of
rights and duties and to regulate the distribution of social and economic
advantages’. The first principle applies to the part of society that
establishes equal liberties, and the second to the part of society that
establishes (allows) any social or political disadvantages. Let us now
look at the principles in more detail.
The Liberty Principle
What are the basic equal liberties guaranteed by Rawls’ first principle?
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•
•
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Political liberty (freedom to vote and stand for office)
Freedom of speech and assembly
Liberty of conscience and freedom of thought
Freedom of the person and the right to hold property
Freedom from arbitrary arrest and seizure.
Rawls’ First Principle of Justice has priority over the Second. This
ensures that violations of citizens’ liberty by the state cannot be
justified, even if such violations reap social and economic benefits.
The priority of the First Principle over the Second also ensures that
people cannot choose to sacrifice any of their fundamental rights for
financial or other gain. For instance, a man might want to give up his
right to religious liberty if this will increase his income. He does not
feel that this right is important, and even if he had it, it would not
have much effect on his life, as exercise of this right would have only a
marginal effect on the state’s policy. But the paramount position of
the Liberty Principle vetoes such a surrender of rights, as its priority
indicates that certain primary goods are simply too valuable to be
sacrificed for mere benefits of income: ‘the serial ordering of
principles expresses an underlying preference among primary social
goods. When this preference is rational so is the choice of these
principles in this order.’
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This means that, although wealth is a primary good, it is not as
important as rights and liberties. Rawls ascribes this great importance
to rights because, once a right is given up, it might never be bought
back. While increased income, as a primary good, might benefit a
man’s life in the short term, if he undergoes a religious conversion in
a few years’ time and becomes a devout member of a minority religion,
he will not be able to practise his faith, because he has surrendered his
right to do so. Such a situation (although only a possibility) would not
be to his benefit, so Rawls gives priority to the Liberty Principle in
order to stop people gambling with their fundamental basic rights and
liberties. A more general conception of justice, stated by Rawls, is
helpful:
‘All social values – liberty and opportunity, income and wealth,
and the bases of self-respect – are to be distributed equally
unless an unequal distribution of any, or all, of these values is to
everyone’s advantage... injustice is simply inequalities that are
not to the benefit of all.’
Since the loss of religious liberty might well be to the detriment of
some people, such loss (whether voluntary or enforced) is forbidden
by the priority of the First Principle.
The Difference Principle
The Second Principle is concerned with fair distribution of income and
wealth, and with the regulation of any institutions that have inequalities
as part of their structure. This latter point is 2b: the Fair Opportunity
Principle. Where a company (for example) employs a hierarchical
structure, positions of power within that company must be ‘accessible to
all’. The more interesting part of the Second Principle is its first part.
Whilst the Liberty Principle guarantees certain fundamental liberties and
rights, the Difference Principle (2a) ‘insists that each person benefits
from permissible inequalities in the basic structure’. Thus income and
wealth (resources) do not necessarily have to be distributed equally, but
their distribution must be to the advantage of everyone. This is a little
more complicated.
Which strategy should be used to distribute primary goods? Rawls thinks
that we would adopt the Maxi-Min Strategy in the Original Position: try
to maximise the interests of the worst off. Behind the Veil of Ignorance,
since I might turn out to be the worst-off, I will adopt the Maxi-Min
Strategy. The Difference Principle is a formalisation of the Maxi-Min
Strategy as a principle of justice. Consider these three distributions of
primary goods amongst four people:
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A: 100, 70, 60, 5
B: 40,35,20,20
C: 12, 13, 13, 14
If you favour total utility (the biggest total of units), you will go for A.
The Maxi-Min strategist would prefer B, as the worst-off person benefits
most, despite the lower total and average utility. A strict egalitarian (an
advocate of equality) favours C, as this is the most even distribution. But
this does not maximise the interests of the worst off. For Rawls, an
unequal distribution where everyone is at least quite well off, is better
than an equal distribution where everyone gets very little. (From an
individualistic point of view, B is better than C, as each person is better
off.)
Rawls thinks that equal distribution is prima facie good, but that
inequalities are justified when they help the worst off. Thus we should
adopt the Maxi-Min Strategy (and hence the Difference Principle) in the
Original Position, as we may turn out to be the worst off. (Rawls thinks
that no one would gamble on this, as no one would take the risk of
adopting a system that allows slavery on the slim chance that they will
turn out to be a slaveowner.) It depends, though, what the units of
distribution are. If the numbers above related to income, the egalitarian
would say that C is best because everyone occupies a similar position in
society. Under B, the worst off will only get half as much as the best off;
this inequality is unjustifiable. Under C, there will be a greater sense of
fraternity, and more self-respect, which is a primary good. But if, as
mentioned above, these units do not merely refer to income, but to all
the relevant primary goods and circumstances, then B is best
distribution.
Problems with Rawls’ Theory
1.
Rawls’ theory certainly has an intuitive appeal. Most people agree
that justice must be impartial, and the Original Position certainly
seems to guarantee this. More contentious is the issue of whether
Rawls’ Two Principles of Justice would be those agreed on by free
and rational people in the Original Position. Some critics point out
that the Difference Principle is very cautious: it appeals to our
fears of being the worst off. Critics say ‘Why be so pessimistic? You
might get lucky. Why not take a gamble and opt for an unequal
society?’ Such people acknowledge that the Difference Principle is
fair, but question why they should choose it, if they are selfinterested. They are willing to risk the chance of being a slave for
the possibility of being a king. Of course, if you know you will be in
the lower levels of society, you will be fair and hence adopt the
Difference Principle, but you don’t know this. Why not just chance
your arm?
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SOCIAL PHILOSOPHY (AH)
THEORIES OF JUSTICE
Rawls’ defence of the Difference Principle and the Maxi-Min
Strategy is not to say that all gamblers are irrational. Double or
quits on a fiver is perfectly rational. But gambling your whole life is
insane. Double or quits with your life? You’d have to be mad.
Rawls thinks that the potential gain in such a gamble is much less
than the potential loss. You would never rationally gamble
everything you own when you could lose it all. It may turn out that
when the Veil is lifted I may not care about liberty and want more
money, but equally it may transpire that I am an oppressed slave.
The latter is worse than the former, so Rawls is right. It would be
crazy to gamble your freedom for financial gain, so the Difference
Principle is ‘the best bet’. This also shows that Rawls is right to give
priority to the Liberty Principle, as it guards against sacrificing
liberty for some other gain.
2.
Rawls thinks that gambling with all one’s goods is irrational. But
many countries have welfare states with a national minimum level
of pay; unemployment and child benefits, etc. Why can’t those in
the Original Position go for a ‘safety net’ option like this? We have a
national minimum wage to protect us and keep us safe, but above
it, inequalities are permitted. With a safety net, we don’t need the
Difference Principle (or the Maxi-Min Strategy) because it is safe to
gamble. At the very worst, we will still have enough to get by on.
Rawls’ theory is valid if applied to all my wealth, but applied to a
part of it, it fails. One could even gamble with basic liberties with a
safety net in place. Rawls answers this criticism by saying that, even
with a safety net, we would suffer if we were at the lowest level of
society; we would suffer shame at our position, and hence lack the
primary good of self-respect. With the Difference Principle,
inequalities will not be so large as with a safety net, and the risk of
shame is lower. The critic might reply to this that poor people are
not often jealous of millionaires, but more often of their societal
contemporaries: the truth of this is unclear.
3.
Another problem with the Difference Principle (DP) is that it is not
radical enough; it is concerned with economic resources, and
assumes that, generally, everyone should get equal amounts. It
neglects a deeper sense of inequality that must be addressed to
make everyone equal. Some people have special needs – the
handicapped, the sick, the uneducated, and those who need more
protection because they live in a bad area. If you are a true
egalitarian, then such people should not merely receive equal
income, but extra income, to improve their quality of life to a level
equal to that of the majority.
SOCIAL PHILOSOPHY (AH)
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THEORIES OF JUSTICE
4.
A further problem is that the Difference Principle assumes that
everyone has a right to their fair share merely in virtue of their
humanity. Some would argue (controversially) that this is not the
case. Do criminals surrender their right to a fair share? This ties in
with the human rights section of this unit (Section 4).
Robert Nozick
One of the most damaging criticisms of John Rawls’ Theory of Justice is
that his Two Principles are in fact inconsistent; it is impossible to obey
both principles consistently.
There are two approaches to arguing this point. One is to argue that the
rich can do more because they have more resources, and hence that
they have more liberty. Thus, we must equalise property to equalise
liberty. If this is true, then the Difference Principle advocates the
violation of the liberty of possession of the rich, and the principles are
contradictory. It may be that Rawls has already answered this in giving
priority to the First Principle. The other approach is perhaps more
damaging.
The most famous of Rawls’ critics is his fellow American, Robert Nozick.
Nozick is the creator of the Entitlement Theory of Justice. He adopts the
second approach to arguing for the inconsistency of Rawls’ principles: if
we give people liberty, then we cannot impose any restrictions on how
much property they can own. Thus, real respect for liberty rules out
Rawls’ Second Principle, as the Difference Principle involves limiting
acquisition of property.
The Taxonomy of Justice
Nozick begins his argument in Anarchy, State and Utopia by drawing a
distinction between historical and end-state theories of justice. The
latter type of theory holds that the justness of a situation can be
determined merely by examining the structure of the situation. A mere
description of the structure of an institution is enough to determine
whether it is just. If you believe that more specific information is
needed, regarding how the people in the situation actually obtained
their resources, then you want a historical theory.
Historical Theories of Justice
There are two types of historical justice theories: patterned and
unpatterned. The former type hold that resources should be distributed
in compliance with a pattern. An example of a pattern is ‘to each
according to what they deserve’. Another is ‘to each according to their
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SOCIAL PHILOSOPHY (AH)
THEORIES OF JUSTICE
status’. Patterns are really like formulas for calculating how much each
person should get.
Unpatterned theories of justice are not so simple: they are procedural.
Just distribution consists in everyone acquiring their goods through
accepted procedures. Nozick’s Entitlement Theory is unpatterned; he
believes that all other theories of justice are either patterned, historical
or end-state theories. Since all patterned and end-state theories are,
according to Nozick, rendered invalid by right regard for liberty, his
theory is the only acceptable theory of justice.
The Problem with Patterns
Nozick asks us to imagine a society where our choice of pattern is the
method of distribution. Let us say for the sake of argument that we
adopt ‘to each according to their need’. Under this distributive pattern,
no one will get more or less than they need. Now imagine a specific
situation in this society. Robbie Williams (Nozick uses the example of
Walt Chamberlain, a basketball player) is a very popular performer.
Let us say that he charges everyone who wants to see him perform £20.
He entertains 1,000 people a week, every week for a year, and makes
£1,040,000. Nozick’s first point is that, through exercise of their liberty,
people have disrupted the pattern. Robbie Williams now has much more
than he needs. Those 52,000 people chose to spend their money on
seeing him, rather than on something else.
Nozick’s second point is that, before the concerts, the situation was just
(according to our chosen pattern). Surely, then, if people voluntarily
moved from this situation to the situation where they have seen Robbie
and he is considerably richer, this latter situation must also be just? If we
accept this, though, it entails that there are just distributions which do
not conform to our original pattern. Nozick thinks that this simple
example shows that all patterned conceptions of justice are flawed.
One objection to Nozick is that the move to the second situation may
not have been entirely voluntary; if this is the case, the second situation
may not be just. Certainly the people chose to pay to see Robbie, but
they may not have realised that, in doing so, they would bring about a
situation where he has much more than he needs. Thus, situation two
came about as a result of voluntary action, but people have not brought
about situation two voluntarily. This objection seems a little suspect.
Surely most people realise that a big tour will make Robbie richer?
Another objection to Nozick is that even if situation two did come about
through entirely voluntary means, it does not follow that it is a just
situation. Perhaps Robbie will use his wealth in some evil way, against
SOCIAL PHILOSOPHY (AH)
19
THEORIES OF JUSTICE
those who did not consent to his acquisition of this extra income. This
does not seem to concern the justness of the transaction, but the
justness of Robbie’s actions after the transaction.
Nozick’s third point is even more powerful. He thinks that there are
only two ways of guaranteeing that the pattern is adhered to: we either
ban certain transactions, or we intervene in the market to redistribute
property. The only way to stick to the pattern in our example would be
to prevent people from seeing Robbie, or redistributing the money that
he earns from the concerts. Either of these would violate liberty.
Nozick’s conclusion is that respect for liberty involves a commitment to
the non-enforcement of patterns; therefore patterned theories of justice
cannot respect liberty. (He thinks that this applies even in societies that
have abandoned money, as people can acquire extra goods.)
Nozick and Rawls
Nozick thinks that Rawls’ Difference Principle is a patterned conception
of justice. The pattern in this case is ‘to make the worst-off as well off as
possible’. The problem is that, once people are given income and
wealth according to this pattern, some will spend this money, some will
save it, and some will use it to generate more money. Soon the
Difference Principle will no longer be satisfied by the state of affairs in
the society, and the only way to redress the balance will be to violate the
liberty of some in order to redistribute. Rawls, of course, thinks that
redistribution can never be allowed to violate liberty (due to the priority
of the Liberty Principle), but Nozick’s point is still a problem, as it
illustrates the inadequacies of the Difference Principle. If the Difference
Principle can only be maintained by violating liberty, as Nozick thinks,
then Rawls will have to give up on it.
Rawls has many replies to this criticism, but we should move on to
Nozick’s own theory.
The Entitlement Theory of Justice
As already mentioned, Nozick believes that any distribution that arises
from voluntary transfers of property from a pre-existing just situation is
itself just. His theory has three main principles:
1.
The Principle of Transfer: whatever is justly acquired can be freely
transferred.
2.
The Principle of Acquisition: whatever is to be transferred must
itself have been acquired under just circumstances.
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SOCIAL PHILOSOPHY (AH)
THEORIES OF JUSTICE
3.
The Principle of Rectification: any holdings acquired by means
other than those sanctioned by the first two principles must be
redistributed justly.
Thus, if I own a car, I can sell it to whom I want, under the Principle of
Transfer; the Principle of Acquisition examines how I myself obtained
the car; and the Principle of Rectification tells us what to do if either of
the first two principles is violated. From these principles, a definition of
justice is derivable:
1.
A person who acquires a holding in accordance with the principle
of justice in acquisition is entitled to that holding.
2.
A person who acquires a holding in accordance with the principle
of justice in transfer, from someone else entitled to the holding, is
entitled to the holding.
3.
No one is entitled to a holding except by (repeated) applications
of 1 and 2.
This definition is attractively simple, but there are problems with
Nozick’s theory. For one thing, Nozick himself states that his theory
entails that only ‘a minimal state’ is justified. By ‘minimal state’ he means
that the state should only provide very limited services, namely the
protection of persons against force, fraud and breaching of contracts.
How does this follow from Nozick’s theory? The Entitlement Theory
implies that taxation is unjust, and so forbidden. Coercive taxation does
not constitute free transfer. Thus, a state that adopts Nozick’s theory will
have no publicly funded schools, roads or health service, as these could
only exist by enforced transfer, which is unjust. This fact alone makes
Nozick’s theory less attractive. There is also another, more important
problem.
The Problem of Sensitivity
John Rawls believes that any just distribution must accommodate
people’s free choices: it must be ambition-sensitive. Nozick’s theory is
ambition-sensitive: people can choose to transfer what and when they
want. However, Rawls also thinks that a just distribution must also take
into account people’s natural disadvantages, which may prevent them
from offering anything for transfer: it must be endowment-insensitive.
Surely it is unjust and unfair for those who are born into poverty to
starve and suffer simply because of their circumstances? Rawls thinks that
a just system will distribute in such a way as to ensure the well-being of
the worse-off; hence his use of the Maxi-Min Strategy and the Difference
SOCIAL PHILOSOPHY (AH)
21
THEORIES OF JUSTICE
Principle. Nozick’s theory is all very well for those with ample property
to transfer and make a living, but it is insensitive to the problems facing
those who have no property to transfer in the first place.
It may be true that anyone who acquires property through legitimate
means is entitled to it, but it is equally true that an adequate theory of
justice will protect those who are in a bad position through no fault of
their own, and will not let them die of starvation.
Rawls thinks that redistribution of wealth (whether through taxation or
other means) is justifiable if it improves the situation of the worst-off.
Nozick thinks that this is fundamentally unjust, as people are entitled to
their possessions if they obtained them in a just manner. No one can
justly deprive them of their possessions, even if doing so is necessary to
feed the disadvantaged. Some critics have accuse Nozick of offering no
substantial argument to defend this seemingly draconian claim. In fact
he offers two arguments, one intuitive, one more abstract.
The Intuitive Defence
Nozick’s first argument returns to the Robbie Williams (Wilt
Chamberlain) example. He argues that, although the concert-goers are
worse off (financially) and Robbie is better off, the situation of third
parties (those uninvolved in the transactions) is unchanged. How then
can these third parties (the disadvantaged, perhaps) claim that some of
Robbie’s wealth should be redistributed to them? As Nozick puts it:
‘By what process could such a transfer among two persons give rise
to a legitimate claim of distributive justice on a portion of what
was transferred, by a third party, who had no claim of justice on
any holding of the others before the transfer?’
Nozick certainly has a point. Just because the wealth of the many has
been transferred to one person, it does not follow that the
disadvantaged suddenly have a claim on that wealth. Or does it?
Proponents of diminishing marginal utility argue that the value of each
unit decreases in direct proportion to the number of those units
possessed by any one person. For instance, if I have fifteen packets of
crisps, I will enjoy the last one a lot less than the first. If I gave my last
packet to someone else instead, the overall happiness would be greater,
because they would enjoy that packet more than I would have. Similarly,
it might be argued that Robbie has far more than he needs or could
make enjoyable use of, so some of his wealth should be redistributed.
Nozick, of course, would simply say that it does not matter what use I
put my property to; I am still entitled to it.
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THEORIES OF JUSTICE
One thing that Nozick overlooks in his intuitive argument is the
possibility that the third parties did have a legitimate claim before the
concerts began. Thus, it does not matter whether it is Robbie or the
concert-goers who possess the wealth; it matters only that some of it be
redistributed to those who need it more. The disabled and starving
people might not have enough money to go to the concert in the first
place, and if they did go, they probably have no money left. Nozick
overlooks this.
The Self-Ownership Defence
Nozick’s Self-Ownership Argument is very complex. It attempts to justify
his libertarian view of justice by showing that it follows from a deep
moral principle that we all accept (or should accept). The principle of
self-ownership is a variant of Kant’s Formula of the End in Itself, a
version of his Categorical Imperative.
Kant thought that it was a universal moral truth that we should always
treat people as ends: things valuable in themselves. It is immoral to treat
someone merely as a means to an end. Nozick thinks that this principle
implies self-ownership, and self-ownership implies libertarianism.
There is not room here to consider Nozick’s argument in any depth. He
attempts to show that everyone has certain inviolable rights, and that
treating people as ends respects these rights. Rawls agrees with Nozick
on this point, but they differ on the issue of which rights are most
important. Put simply, Rawls feels that a right to resources is one of the
most fundamental rights. Nozick conversely thinks that the most
important rights are rights of self-ownership – rights over one’s self. His
basic argument is that redistribution of wealth from the rich to the poor
is not compatible with according everyone rights of self-ownership. The
rich are entitled to what they own, since they own their talents and are
entitled to whatever they produce using their talents. Thus, to
redistribute the wealth of the rich, even if only by taxation, is to treat
them as a means to the end of improving the circumstances of the poor.
It is unclear if Nozick’s self-ownership argument is a valid interpretation
of Kant. Even if it is, it contradicts another Kantian maxim: that we
should not deny help to those in distress, since if this maxim were
universalised, we would be denying ourselves help when we might need
it. And there are other problems. Put simply again, Nozick argues that:
1.
Redistribution is not compatible with treating people as selfowners.
SOCIAL PHILOSOPHY (AH)
23
THEORIES OF JUSTICE
2.
Treating people as self-owners is essential to equality.
3.
Therefore, redistribution does not treat people equally, and hence
is unjust.
Nozick makes two mistakes in his argument. He assumes that selfownership automatically provides absolute property rights, yet it need
not: self-ownership is compatible with a Rawlsian picture. Also, while
self-ownership may be a necessary condition for equality, it is not a
sufficient one: an adequate account of equality needs more to be
satisfactory.
Ultimately, it seems that Nozick’s initially attractive theory is in fact
unsatisfactory, as it does not seem to treat the disadvantaged in a just
fashion. In a world where everyone had adequate resources, the
Entitlement Theory would be the perfect theory of justice; in the real
world, it is too elitist to succeed.
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Student activities
1.
If someone were to ask you what justice is, what would your
response be?
2.
Plato’s dialogue in the Republic offers us four different conceptions
of justice, those of:
•
•
•
•
Cephalus
Glaucon and Adeimatus
Thrasymachus
Socrates.
Which is the most convincing? Why? Explain your answer.
3.
Which principles would you agree on if you were behind the Veil of
Ignorance?
4.
What is the Difference Principle?
5.
What is the relationship between justice and fairness? (Read John
Rawls’ article ‘Justice as Fairness’.)
6.
Is it irrational to gamble in the Original Position? Why?/why not?
7.
What is the Entitlement Theory of justice?
8.
Why is the issue of justice important?
9.
Is ours a just society? Why?/why not?
10.
How does our society fare when judged by to Plato’s, Rawls’ and
Nozick’s systems of justice?
11.
Whose system of justice is the most satisfactory: Plato’s, Rawls’ or
Nozick’s?
Give reasons for your answers.
SOCIAL PHILOSOPHY (AH)
25
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HUMAN RIGHTS
SECTION 4
Human rights
Introduction
Hardly a day goes by without a news article reporting some violation of
human rights. Amnesty International and Liberty have become famous
for their championing of human rights. The rhetoric of rights is often
used by those who have a grievance against authority. But what are
these rights? How do we come by them? Is everyone entitled to them?
Are any of them inviolable? In this section we will look at the
philosophical origins of theories of rights, and in so doing attempt to
answer these questions. The topic of rights is closely related to that of
justice; it has been suggested that a just system is simply one that
respects everyone’s rights. But such a view is probably over-simplistic.
What do we do when rights conflict? What do we do when deaths can be
avoided by the violation of someone’s rights? It is worth bearing these
concerns in mind in our consideration of rights.
If you were to ask lay people what rights they have, they might well
claim that they did not know, but among the rights commonly supposed
to be held by everyone are:
•
•
•
•
•
•
•
•
•
the
the
the
the
the
the
the
the
the
right
right
right
right
right
right
right
right
right
to freedom of expression
to freedom of movement
to procreate
to dispose of one’s property as one sees fit
to healthcare
to vote
to self-determination
to an education
to security – the list goes on and on…
Obviously, some of these rights are more important than others. A right
to vote is useless in a non-political community, and property rights are
of little use to paupers. Generally speaking, human rights are the most
fundamental rights: rights that we possess by mere virtue of being
human. The most famous statement of such rights is Abraham Lincoln’s
Declaration of Independence of the United States of America:
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HUMAN RIGHTS
‘We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain
unalienable rights, that among these are life, liberty and the
pursuit of happiness.’
In slightly different language, these are the rights to life, freedom and
self-determination: people have the right to live, the right to live freely
and the right to pursue happiness as they see fit. This last right in
particular is vague: what if your conception of happiness involves
harming others? Do convicts have a right to happiness? The most widely
recognised statement of human rights today is the United Nations’
Universal Declaration of Human Rights, of which Article 4 is the most
important: ‘Everyone has the right to life, liberty and security of
person.’
There are many other articles in the Declaration, but they are all derived
from this fundamental statement. Notice that it differs from the
Declaration of Independence only in substituting security for happiness.
Security is easier to guarantee than happiness, and it also protects
everyone from those who would harm them in the pursuit of happiness.
But bear in mind that even these ‘fundamental’ human rights have
attendant problems. Those who support capital punishment deny the
universal rights to life and security of person, and it remains unclear
exactly which freedoms are guaranteed by a right to liberty. As we shall
see, there are some philosophers who deny that there are any universal
human rights at all; given the recent flurry of litigation concerning the
Human Rights Act, the issue is certainly important.
John Locke
John Locke (1632–1704) lived through the English Revolution of 1688.
Something of a revolutionary himself, Locke was once exiled for
supporting an assassination attempt. In his Second Treatise on
Government (the first is a very dry reply to another writer), he sets out
his picture of an ideal state. Fundamental to Locke’s conception of a
state is his theory of natural law and natural rights (human rights).
Locke had three fundamental ideas, which taken together make him the
father of classical liberalism:
1.
People have natural rights that limit the power of government.
2.
Individualism: society is composed of a group of discrete
individuals. Political philosophy tackles the problem of how to
relate these autonomous beings with one another: Locke’s answer
is contract and market.
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HUMAN RIGHTS
3.
Government should be limited, since individuals should be allowed
to function as they wish.
Only the first of these three ideas concerns us here, although its relation
to the others will be mentioned.
The State and Law of Nature
Like his contemporaries, Thomas Hobbes and Jean-Jacques Rousseau,
Locke grounded his political theory in the concept of a State of Nature.
This is basically a primitive set-up, where there is no government and
people fend for themselves. Unlike Hobbes, who thought that the State
of Nature would consist of a ‘war of all against all’, Locke believed that
this basic state would be one of peace. It would be at peace because of a
special kind of law, one that needs no government to legislate it:
‘The state of nature has a law of nature to govern it, which obliges
every one, and reason, which is that law, teaches all mankind but
who will consult it, that being all equal and independent, no-one
ought to harm another in his life, health, liberty, or possessions…’
[Two Treatises, 2:2:6]
Locke did not attempt to justify this idea of a law of nature: as this
passage shows, he thought the law to be self-evident to any rational
person. He also refers to the law of nature as ‘the will of God’. Locke
believed that, since God created all people as equal, it is wrong to
attempt to dominate or exploit another person, since that would make
you unequal and go against God’s will. The law of nature actually makes
several statements:
1.
All persons are equal.
2.
Everybody is free to do what they like, so long as they don’t
interfere with others.
3.
People ought to pursue peace and the preservation of all mankind.
4.
Everybody has a right to punish transgressions of the Law of
Nature.
Clearly the laws of nature can also be stated in terms of natural rights.
The law ‘all persons are equal’ can be put as ‘everyone has a right to
equality’. Locke says surprisingly little about natural law and rights,
given their importance to his theory.
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HUMAN RIGHTS
One thing that he does say is that, in a case where natural laws and the
laws of a particular state or government are in conflict, the artificial laws
of the government must give way. The laws of nature are more
fundamental than ‘man-made’ laws.
Slavery and the Right to Life
Put in more simple terms, Locke’s Law of Nature confers on us a right to
life, a right to equality, a right to freedom subject to non-interference
with others, a right to pursue peace, a right to property, and a right to
punish those who violate any of these other rights. Prior to Locke, some
philosophers had argued that slavery was natural and justifiable.
(Aquinas and Grotius both thought so.) Locke thinks that slavery is
against the law of nature. He thinks that to be enslaved means that your
‘owner’ can do whatever he likes with you, and can even kill you. But
since our right to life is given to us by God, we cannot transfer it to
someone else voluntarily, and neither can they take it from us. Life is a
gift from God, and we cannot choose to become a slave since that would
involve transferral of our right to life. (Obviously one would only
volunteer to be a slave in very unusual circumstances; Locke is here
responding to a point made by Hobbes.) Voluntary slavery is against the
law of nature for the same reason that killing yourself is against the law
of nature: the right to life is inalienable. It cannot be voluntarily
surrendered. (There is only one way the right to life can be alienated:
see the section on the right to punish.)
The Right to Punish
The right to punish is particularly interesting. Locke believes that
anyone who violates a natural law or right is effectively waging war on
you, and you cannot be overzealous in your self-defence. The
transgressor of the law of nature is no better than a dangerous animal,
and should be treated accordingly; thus he or she can be killed. Locke
justifies this somewhat draconian view by arguing that you have no way
of knowing that a thief will be satisfied with your possessions; next, he
might want you dead: ‘I have no reason to suppose, that he, who would
take away my liberty, would not, when he had me in his power, take
away every thing else.’ The person who violates your right to life (or
attempts to do so) surrenders their own right to life: this is the only way
in which this right can be alienated (see above). Thus you can
legitimately chase and kill a thief in the state of nature, but not if a
government has been formed; if a government exists, it is up to it and
the police to punish the thief. Since it is obviously better to have a
situation where we feel safer and do not have to kill thieves, Locke is in
favour of forming a government. If those in the state of nature agree to
form a government, they alienate their right to punish transgressors of
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HUMAN RIGHTS
the law of nature: they transfer this right to the government and its
police.
The Right to Property
It might seem strange that Locke emphasises the right to property more
than any other, even the right to life. But when we consider how
materialistic our lives are nowadays, the importance of protecting our
possessions is apparent. Locke explains the right to property in terms of
the State of Nature. To begin with, no one owns anything; there are
people without possessions and the natural world. But then people
work on the land, and in so doing, make it their own.
This is the key to Locke’s conception of property: by working on
something, you make it your own (if it was previously unowned). For
Locke, land was the most important type of property, but his theory
applies to all natural resources: rocks become yours if you work them
into a house; a tree becomes yours if you turn it into a boat. As Locke
puts it: ‘Whatsoever then he removes out of the state that nature has
provided, and left it in, he has mixed his labour with, and joined to it
something that is his own, and thereby makes it his property.’
This makes sense when you think about it. What claim could a man in
the State of Nature have over a piece of land? None, if he just declares
that it is his. But if he has laboured on the land for a while, then he
surely has a claim to it. Locke thinks that this system of initial acquisition
would operate on a first-come first-served basis in the State of Nature.
Agreement with others is impractical since it would be nigh-on
impossible to achieve; because of this, no consent is necessary. If you
labour on a piece of land, it becomes yours.
One objection to Locke’s views on property is that people are greedy,
and will attempt to mix their labour with as much land as possible in
order to accumulate lots of it. Locke replies (somewhat weakly) that
God has provided more than enough for everyone. Thus, all people can
exercise their right to property and obtain some land of their own. As an
explanation of initial acquisition, this may work, but Locke’s insistence
that there will always be enough to go round seems a little idealistic.
Virtually all the land on the planet is already owned by someone. Locke
admitted that most European land was already owned (even in his day)
but insisted that ‘there are still great tracts of ground to be found’ which
are as yet unowned. Given that this is certainly untrue today, Locke’s
emphasis on the right to property seems a little anachronistic; many
would question whether this right is really a fundamental one.
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Liberty and Revolution
Although we have not looked at the topic here, Locke devotes a lot of
time to describing how a government can be formed given the mutual
consent of those in the State of Nature. A government is desirable
because it can provide security; it will chase and punish those who
violate our natural rights (see above). But what happens if a government
becomes oppressive and tyrannical, and abuses those very rights that it
was created to protect? Locke envisages three ways in which a
government, or other political authority, can be changed. Firstly, if there
is a war, it may be taken over by the enemy. Secondly, the government
itself may voluntarily undergo change or replacement. Thirdly, and most
importantly, we all have a right to revolution.
Locke believes that when a government abuses the rights of its citizens,
the citizens are fully justified in rising up and overthrowing the
government. This seems perfectly fair, given that the government only
came into existence because of the mutual consent of the people in the
State of Nature. They formed the government to do a certain job
(protect them and their property); when it no longer does that job
properly, they have a natural right to disband the government, return to
the State of Nature (effectively) and form a new government if they so
wish. In Locke’s time, this idea was extremely controversial and he
received a lot of unkind criticism for it; it entails that the power of the
king is also subject to the will of the people.
As Locke says, he believes that when a government violates the rights of
its citizens:
‘... by this breach of trust they forfeit the power the people had put
into their hands for quite contrary ends, and it devolves to the
people, who have a right to resume their original liberty, and, by
the establishment of a new legislative (such as they shall think
fit) provide for their own safety and security, which is the end for
which they are in society.’
Problems with Natural Rights
Locke’s Doctrine of Natural Rights, as it has become known, is of vast
importance; Locke clearly influenced the American Declaration of
Independence. But are there really any natural rights? There are a
number of problems with Locke’s theory.
1.
32
One objection to Locke’s theory is that, if natural rights are
universal, they must be possessed by everyone from the moment
they are born. Quite apart from the objections of anti-abortionists
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(what about the natural rights of children?), it is clear that children,
criminals and the mentally disabled do not enjoy the same natural
rights as everyone else. For one thing they certainly do not enjoy
equal status. Locke would probably reply that these are special
cases: none of these people are fully rational, and as such do not
‘deserve’ the rights. Many criminals would no doubt object to
being labelled irrational.
2.
Most rights have a legal grounding. The ‘right to a telephone call’
for those accused of a crime is enshrined in the laws of our
country; if you go to a law library you can find the particular ruling
that guarantees this right. Similarly, Locke grounds natural rights in
the Law of Nature. The problem is that we cannot go and look this
law up anywhere. Locke says that it is self-evident, but many
rational people have thought long and hard about this topic and
concluded that there is no natural law. If this is the case, and rights
can only be conferred by laws, there can be no natural rights. It
might be replied to this objection that natural (human) rights are a
special case: they are not grounded in laws, but in the simple fact
of our humanity. But this still runs into problems: many people
deny that humanity in itself can confer rights.
More objections to Locke’s theory are dealt with in the sections on
Bentham and Marx.
Jeremy Bentham
Jeremy Bentham (1748–1832) is famous for inventing utilitarianism – the
doctrine that states that the right action is that which brings about the
greatest happiness of the greatest number. Bentham believed that the
fundamental motive of human action is to seek pleasure; accordingly,
pleasure (happiness) is identical to right action. Bentham’s
psychological and ethical hedonism has been widely discredited; he
himself acknowledged the limitations of his initial theory. But whatever
the specific mistakes of his theory, its basic idea is intuitively attractive;
surely an action that makes everyone more happy must be morally right?
Bentham wrote on virtually all aspects of philosophy, but his ethical and
political philosophy have been accorded most attention.
John Locke’s political theory provoked a great deal of criticism. The
Irish politician Edmund Burke (1729–97) argued that abstract notions of
natural rights (like Locke’s) are too simplistic, and do not bear any
relation to the social complexities of modern life. Burke, however, did
admit that there might be some real natural rights; Bentham denied this
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possibility altogether. Unlike Locke and most other political
philosophers, Bentham did not publish one work which contained all
his political ideas. He wrote many short works, and it can be quite
difficult to pin down his definitive opinion, as he changed his views
several times. His criticism of the Declaration of the Rights of Man and
the Citizen made by the French Constituent Assembly in 1791 is the best
source for his thoughts on natural rights.
The Rejection of Natural Rights
Bentham first wrote on the subject of rights in response to the American
Declaration of Independence in 1776. When he read the Declaration
(see the introduction to this section), he declared that the notion of
natural rights was ‘nonsense upon stilts’, and he subsequently devoted a
lot of time to rebutting natural rights theories. In 1801 he completed a
critique of the French Declaration of Rights (following the bloody French
Revolution): it was titled simply Pestilential Nonsense Unmasked. Why
did Bentham think that natural rights were nonsense?
Bentham’s basic objection was that legal rights are grounded in fact,
whilst natural rights are not (this is very similar to the second objection
to natural rights in the section on Locke). My right to a fair trial is
enshrined in Scottish law: if anyone questions this right, he or she can
go to a law library, look up the appropriate book, and find the law that
entitles me to the right. But if there were no government, no
legislature, and no laws, this right would disappear: where there is no
real law there can be no right. Bentham (typically) puts it more strongly:
‘Right.…is the child of law; from real laws come real rights; but
from imaginary laws, from laws of nature, fancied and invented
by poets, rhetoricians, and dealers in moral and intellectual
poisons, come imaginary rights, a bastard brood of monsters,
gorgons and chimaeras dire.’
Bentham believed that the notion of natural rights was a dangerous
artifice, born of the misuse and misunderstanding of the word ‘right’,
and that this misuse of ‘right’ (particularly among English speakers) had
led to the dangerous championing of natural rights as the basis of
civilised society. If we examine our use of the word, we can establish
exactly where we have gone wrong in our consideration of rights.
The Linguistic Argument
Bentham’s linguistic argument against natural rights asks us to consider
an example. If you have a mobile phone (not his example), and I
recognise that this piece of property belongs to you, I will believe that
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you ought to possess it. This is the same (more or less) as saying that it
is right that you possess your phone. This in turn implies that you are
entitled to legal protection if someone tries to take it from you. Now let
us imagine that I go further, and say that you have a right to your
phone. This is different. Let’s look at the two statements side by side:
1.
2.
‘It is right that you possess your phone.’
‘You have a right to possess your phone.’
Bentham thinks that these two sentences are subtly different, and that
the difference is of the utmost importance. In number 1, ‘right’ is used
in a sense that conveys the moral rectitude of the situation: if you
possess your phone, the situation is a right one. The use of ‘right’ here
is similar to ‘just’; it is this quality that alludes to the legal protection of
your possession. This is what Bentham calls ‘the language of peace’.
In number 2, ‘right’ is used in a much more confrontational sense; if
you have a right to the phone, it implies that you have a right to use
force to protect that right. Thus, you can assault anyone who attempts
to take the phone. It seems perfectly natural that you are entitled to
use force to protect your property; hence, we call this right a natural
right. Bentham calls this ‘the language of mischief ’.
It is easy to see how we can subconsciously glide from the first usage of
‘right’ to the second; Bentham thinks that this unintentional misuse of
the word is what has led to the notion of natural rights. He calls the
second usage the language of mischief because people who believe they
have these natural rights will use force to protect them, and this can
only lead to mischief, or pain. Bentham admits that we do sometimes
talk of right in the second sense, but insists that legal rights are the
only genuine rights.
To anyone who objected that Bentham’s argument is merely linguistic,
he had this to say: ‘The criticism is verbal, true, but what else can it be?
Words – words without a meaning, or with a meaning too obviously
false to be maintained by anybody, are the stuff it [the French
Declaration of Rights] is made of. Look to the letter, you find nonsense;
look beyond the letter, you find nothing.’
Human Rights versus Natural Rights
While on the subject of linguistics, it is worth noting that human rights
nowadays are not the same as natural rights. Human rights now have
a quasi-legal status because of the United Nations Declaration. Thus,
Bentham’s objection that rights require laws is not really valid unless we
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talk of natural rights. In terms of philosophy, it is best to talk about
‘natural human rights’ to avoid confusion with those enshrined in
international law.
The Argument from Intuition
It has been argued by some critics that, even if Bentham’s linguistic
argument is valid, and he is right that natural rights have no legal
foundation, natural human rights can still be justified in terms of moral
intuition: slavery just feels immoral, and rights seem to be the best way
to guard against such tyrannical institutions. After all, how is it that legal
rights come about? Generally speaking, this happens via a process of
implementation of laws that mirror people’s moral intuitions. Looked at
this way, both natural rights and legal rights have the same ultimate
source in our own psychology. But to base a system of morals on
subjective intuitions has a whole host of problems of its own. In the
end, Bentham’s criticism is perhaps more telling than it first seems.
Karl Marx
Like Jeremy Bentham, Karl Marx (1818–83) is not famous for his critique
of natural rights, but for another of his works: The Communist
Manifesto. Marx devoted his life to the revolutionary cause of
communism. He believed that everyone is dependent on society, both in
terms of their character and their potential to achieve. Fundamental to
his theory was his view that the morals and institutions of a society are
the product of economic interests; the ideology of each society exists
only to justify its interests. This contradicts most people’s belief that
they believe what they believe because it is right. Marx also believed that
capitalism degrades the value of human life by reducing it to a
commodity. Consequently, capitalist societies must be overthrown in a
workers’ revolution. Given that he was a revolutionary, one might
imagine that Marx would be in favour of natural rights, as they provide
grounds for insurrection. But Marx had great doubts about theories of
natural rights, particularly when they were used to justify revolutions
like the American and the French. His criticism has certain similarities to
Bentham’s, but is substantially different.
Marx’s Revolution
For Marx the revolution of the proletariat (the workers) was necessary
to end the degradation of human life under capitalism; it was also a
necessary consequence of social and historical forces. The revolution
comes about, not because it is fomented, but because a majority of
workers realise that they have no reason to support the bourgeois
values of liberty and individuality. They revolt in order to restructure
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society (not to redistribute wealth, which is an aim of bourgeois theories
of justice) in a way that would allow everyone to contribute as much as
possible to society, and to benefit as much as possible from society. The
problem with this idealistic view is that Marx never makes it clear what
form this society would take. Nonetheless, his view of a society based
entirely on community rather than individuals has been of colossal
influence.
False Consciousness
To use his own words, Marx thinks that all (non-communist) ideologies
come about because of our ‘false consciousness’. Thus, as mentioned
above, we do not believe that murder is wrong because it is wrong,
(although that is why we think we believe it), but because it supports
our society’s economic interests to believe that it is wrong. The same
goes for our belief in natural rights: we believe in them because it
supports our class interests to do so, not because they really exist. Thus,
natural rights are not some universal protection that everyone has: they
are the product of a capitalist mindset. This might sound unlikely, but
Marx explains quite convincingly how natural rights are individualistic
and separatist, as he believed capitalism was.
Selfish Rights
Quite apart from the issue of false consciousness, Marx’s fundamental
objection to natural rights is that they are selfish. They support the
egoistic, self-satisfying aspect of our personality, and neglect our true
identity, which is the community-oriented side of our personality. Marx
highlights the difference between these two aspects, he makes the
distinction between the egoistic man and the species-being. The egoistic
man does not care what his neighbour, or anyone else in society does,
so long as they leave him alone. He is concerned only with his own
interests, lives in isolation, and has no sense of community. Conversely,
the species-being regards the society he lives in as an extended family,
and involves himself in the interests and projects of the other people in
his community.
How do natural rights support the egoist and not the species-being?
Marx analyses different rights, and explains how each of them reinforces
the selfish aspects of character. The right to liberty (as described by
Locke) says that I can do whatever I want as long as I do not interfere
with others. This sounds perfectly reasonable, but Marx thinks that this
right to do what I want distances me from the others who I am not
allowed to harm, and as such erodes any sense of community with
others.
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Similarly, the right to property allows me to use and dispose of my
possessions as I wish, without regard for others. The right to security
simply perpetuates our isolated status, and if everyone is equal then
they have no need to interact.
Marx’s point is that all these natural rights are isolationist: they support
the individual but work against any sense of community amongst
individuals. The only sense of community in a society based on a system
of natural rights will be the mutual desire for security, and this security
itself exacerbates individualism. This is similar to Bentham’s view
inasmuch as the species-being speaks the language of peace, and the
egoistic man speaks the language of mischief; he is only in it for his own
gain.
Problems with Marx’s Theory
1.
It is certainly true that the architects of the American and French
revolutions put a great deal of emphasis on the rights of the
individual. But the point is that they had to do so to defend
themselves against oppressive regimes. Only by appealing to each
person’s rights as human beings could they hope to succeed in
their revolutions. All an oppressed person really wants to say is
‘leave me alone!’. This sounds isolationist, but is really only a
demand for oppression to end. Marx neglects the fact that the
language of rights is fundamentally designed to prohibit
oppression by a greater power, not to enhance the egoistic
elements of our personalities.
2.
Connected with the first objection is the point that Marx assumes
that we can only be egoistic or community-minded. Obviously
there are some people who only care about themselves, and there
may be some who care only about the community at large, but
most of us care about ourselves and our communities. (In times of
great oppression, it is simple human nature to look after yourself
first. Consequently, the ‘selfish’ language of the revolutionaries is
perhaps the most fundamental of all.)
Negative and Positive Rights
Successive natural rights theorists have preserved the self-oriented
nature of the early theorists and combined it with rights that pay more
attention to the needs of the community. Rights that protect the
individual are most often known as negative rights: I have the right to
do as I want, and the right for you to leave me alone. Rights that involve
help from others, such as the rights to food and healthcare, are known
as positive rights. Positive rights cannot operate without other people,
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and as such avoid Marx’s criticism that rights work against a sense of
community. But despite the current public opinion that there are
universal human rights, it remains to be seen whether such a concept
has sound philosophical justification.
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Student activities
1.
What is the difference between human (natural) rights and other
rights?
2.
Why are human rights important?
3.
Are some human rights more important than others? Which are
the most important? Why? Explain your answer.
4.
Are human rights universal? (Think about the problems posed by
children, criminals and the mentally ill.)
5.
Does it matter that human rights are not derived from any laws?
6.
Does working on something mean that you have a right to it?
(Think of Locke’s right to property.)
7.
Which are more important: negative rights or positive rights? Why?
Explain your answer.
8.
Is Marx correct when he says that rights are too individualistic, and
neglect the community-oriented part of ourselves? Explain your
answer.
9.
What things do we not have a right to? (For example, is it coherent
to say we have a right to health, rather than healthcare?)
10.
Is a system of natural or human rights a substantial enough basis
for the structure of a society?
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FURTHER READING
SECTION 5
Further reading
Generally speaking, there are more (philosophical) books about justice
than about rights. Most introductions to political philosophy deal with
some of the different theories of justice; for reading on rights, more
specific books must be sought.
Diggs, B J, The State, Justice, and the Common Good, Glenview, IL: Scott,
Foresman, 1974
Kymlicka, W, Contemporary Political Philosophy: An Introduction,
Oxford: Clarendon Press, 1991
Wolff, J, An Introduction to Political Philosophy, Oxford: OUP, 1996
These are all valuable introductions. Diggs has many lengthy quotes
from Locke, Rousseau, Hume and Rawls. Kymlicka is good on
utilitarianism, Rawls, Nozick and Marx’s theory of justice (but not his
views on rights). Wolff is particularly good on Mill, Rousseau and Plato.
Feinberg, J (ed.), Reason and Responsibility, Wadsworth, 1999
Used as an introductory text by the University of Edinburgh, this
excellent anthology mixes classic texts with contemporary
commentary, and covers epistemology, philosophy of religion, and
philosophy of mind, as well as morality and justice.
Melden, A I (ed.), Human Rights, California: Wadsworth, 1970
Part of a ‘Basic Problems in Philosophy’ series, this anthology consists
of selections from Locke, Bentham and some modern rights theorists,
as well as an excellent appendix that includes the most important
declarations of human rights.
Parekh, B (ed.), Bentham’s Political Thought, London: Croom Helm,
1973
This is an overview of Bentham’s political philosophy; it contains all
his important writings on rights.
Rawls, J, Political Liberalism, New York: Columbia University Press, 1993
This provides a more up-to-date version of John Rawls’ theory than
that in A Theory of Justice.
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