NAT IONAL QUALIFICAT IONS CURRICULUM SUPPORT
Philosophy
Social Philosophy
[ADVANCED HIGHER]

Acknowledgements
Learning and Teaching Scotland gratefully acknowledge this contribution to the National
Qualifications support programme for Philosophy.
First published 2002
Electronic version 2002
© Learning and Teaching Scotland 2002
This publication may be reproduced in whole or in part for educational purposes by
educational establishments in Scotland provid ed that no profit accrues at any stage.
ISBN 1 85955 925 5
CONTENTS
Section 1:
Staff introduction
1
Section 2:
Student information
3
Section 3:
Theories of justice
Introduction
Plato
John Rawls
Robert Nozick
Student activities
5
6
12
18
25
Human rights
Introduction
John Locke
Jeremy Bentham
Karl Marx
Student activities
27
28
33
36
40
Further reading
41
Section 4:
Section 5:
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S TAF F IN T RO D UC T I O N
SECTION 1
Staff introduction
Overall, this unit introduces many new concepts that will be u nfamiliar 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 Socia l 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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By the end of this unit students 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;
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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•
•
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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 Noz ick’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 analy se
them;
describe in detail the historical and philosophical background of human
rights;
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S TU D EN T IN FO RM A T IO N
•
•
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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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 an cient 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 sho uld 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 h as
centred more on distributive justice. A theory of distributive justice attempts to
answer several questions:
•
•
•
•
•
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 o ffers
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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Plato
There were three main Greek philosophers: Socrates, Pl ato 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 polit ics.
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 defi nition 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 ‘jus t 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 al ways 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, t his
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 pow er. 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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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 hav e
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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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 cooperate in order to obtain what they need to survive and have a secure life.
Because of this co-operation, 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 thi s 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 t hem 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 we ll, 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:
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 the re 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 ‘what ever 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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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, JeanJacques 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 jus tice. 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 owne r 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 so ciety
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 (t he 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 no t 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 thes e
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 firs t
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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•
•
•
•
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 Libe rty 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 becau se,
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 wi th 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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TH EO RI E S O F J U S T I CE
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 great er 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 self-interested. They are willing to risk the chance of being a slav e 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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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 pri ority 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 P rinciple (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.
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4.
A further problem is that the Difference Principle assumes that everyone
has a right to their fair share merely in virtue of their human ity. 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’ T heory 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 h ence 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 Raw ls 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 a dopts 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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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 see n 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 pat terned 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
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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 som e 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 cours e, 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 onl y 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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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 th e 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 wit h 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 ambitionsensitive: people can choose to transfer what and when they want.
However, Rawls also thinks that a just distributi on 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
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TH EO RI E S O F J U S T I CE
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 insta nce, 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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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 t hat 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 wo uld
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 self -owners.
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TH EO RI E S O F J U S T I CE
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 self -ownership
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 fac t
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.
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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 ar e 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 clo sely 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
to
to
to
to
to
to
to
to
freedom of expression
freedom of movement
procreate
dispose of one’s property as one sees fit
healthcare
vote
self-determination
an education
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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‘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, freed om and selfdetermination: 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 securi ty 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 H uman
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, whi ch 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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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 rela tion 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 thei r importance to his
theory.
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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 t han ‘manmade’ 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 th inks 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 y our 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) sur renders
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 i t 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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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 p ossessions 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 t he 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 firstserved 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 wil l
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 anachroni stic; 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.
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
1.
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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 o f 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
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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 u sage 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. Loo k 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 prob lems 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 f omented,
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 Mar x
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 speciesbeing. 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 sp ecies-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 oppr essed 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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FUR TH E R R E AD I N G
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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