Rights-Based Ethics
A Guide to ‘Rights-Talk’
Rights-Based Ethics
 Another approach to ethical theory – one with great
contemporary significance – is to base ethical obligation
on some notion of rights.
 Theories of this kind are, by their nature, fundamentally
deontological. As with Kant and Ross, such views can be
said to maintain “the priority of the right to the good.”
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What Are ‘Rights’?
1. A right is an entitlement to something
 E.g., legal rights guaranteed by the Canadian Charter of
Rights and Freedoms (1982): In Canada, legal sanctions
may apply in cases where rights to life, liberty or security
of the person have been found to be violated.
 A package of basic human rights is proposed in
documents such as the UN Universal Declaration of
Human Rights (1948) and the Helsinki Accords (1975).
Violations of human rights may not (yet) be subject to
legal sanction, but instead are more like (putative) moral
norms: People who violate them are subject to our praise
and blame, our disrespect.
2. Rights imply correlative duties
E.g., My right to freedom from physical harm imposes
on others a duty not to physically harm me;
My right to free speech imposes on others a duty not to
prevent me from speaking;
My property right in X imposes a duty on others not to
trespass upon or interfere with my use and enjoyment
of X.
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Hohfeld’s (1919) Classification
A and B are CORRELATIVE iff the presence of the one [of A or B] in an
individual X implies the existence of at least one other person Y in which
the other [of A or B] is present.
A and B are OPPOSITES iff the presence of the one in an individual X
implies the absence in himself, X, of the other
Negative vs. Positive Rights
Negative Rights: Freedom from interference; an
entitlement to be left alone.
(E.g., freedom of expression, privacy rights)
Positive Rights: Freedom to do or to attain
something; an entitlement that somebody else do
something for/to you.
(E.g., the right to an education, the right to medical
care)
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Some Considerations…
 Some theorists (e.g., hard-core libertarians) argue that all
(or most) moral and political rights, properly understood,
are negative rights (i.e., there are no legitimate positive
rights, except in private law).
How so?: Any putative positive right involves the violation
of someone’s negative rights (e.g., through taxation)
 In liberal societies, this view strongly conditions regulatory
and administrative law—economic liberties (negative
rights) limit the power of regulators. (e.g., intellectual
property rights, assessment and licensing of technologies,
product labeling etc.)
Rights and the ‘Social Contract’
 The rights-based approach to moral and political theory
has its roots in the work of Thomas Hobbes (1588-1679),
John Locke (1632-1704) and Jean-Jacques Rousseau
(1712-78).
Each of these philosophers are among the founders of the
social contract (‘contractarian’) tradition.
 This tradition understands the political authority to create
and enforce laws and, by extension, the force of moral
norms to be grounded in an explanatory fiction called the
'social contract’…
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Hobbes and the ‘State of Nature’
 In order to understand the nature of
ethical and political norms, imagine a
condition in which these did not exist…
 In the pre-political state of nature which precedes civil
society there was both absolute freedom and a
state of constant war, a “war of all against all.”
In the state of nature, says Hobbes, the life of man is
“solitary poor, nasty, brutish and short”—it is not a good
deal, so to speak, for anyone …
The social contract is a tacit agreement among individuals
to give up some degree of the absolute liberty that they
possessed in the state of nature, provided others do so as
well, in exchange for something (more) valuable:
In the political case: A system of legal rights guaranteed
(and enforced) by the state.
In the general, social case: A system of moral norms,
mutually enforced by everyone.
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Why Accept the Social Contract?
One answer (John Locke’s):
Because legitimate civil government exists
to protect our inalienable natural rights to
life, liberty and property; government can
only be made legitimate through the
consent of the governed.
Another answer (Hobbes’):
Because it’s a better deal than the state of nature…
Public Goods
 Specifically, the Hobbesian account suggests that some
things that everyone has reason to value (such as peace,
order and security) are in the nature of public goods.
Public Goods: Goods that are non-excludable in provision and
non-rival in consumption—goods that will not be adequately
supplied by individuals acting solely in their own interest.
 Moral norms (and coercive laws) exist to provide us with
public goods that we could not obtain otherwise.
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Rawls’s Theory of Justice
 John Rawls's (1921-2002) theory follows
the social contract tradition and develops
a contractarian view of justice in which
principles of justice are the output of a
special sort of social contract.
 Justice, according to Rawls, is the solution to a problem:
People (notoriously) disagree about values (i.e., about the
nature of the good life and about how benefits and
burdens of social cooperation ought to be distributed), yet
they have an interest in securing the benefits of
cooperation…
Outline of Rawls’s Theory
 Recall yet again the expression “the priority of the right to
good.”
We may strongly disagree about what is good (you think
that modesty is good, I think that sensual pleasure is
good; you want ecstasy, I want sobriety), but we may at
least be able to agree on some minimal account of what is
right.
 Society, on Rawls’s view, is a cooperative venture
between free and equal persons for their mutual
advantage; cooperation makes life better (recall Hobbes)
because it increases the stock of primary goods…
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Primary Goods
Whatever it is rational to want, irrespective of whatever
else you want. (e.g., health, material resources, rights,
social bases of self-respect, etc.)
 Rawls's basic idea is that we can identify an acceptable
conception of justice by asking what rights and what
principles for the distribution of primary goods it would be
reasonable for all members of society to agree to.
 Rawls identifies justice with fairness. If everyone accepts
that the rules are fair and the rules are applied
consistently, then we have fairness…
The Setup
 But how do we know what principles are fair? How do we
determine what reasonable people would agree to?
 Rawls’s (rather clever) suggestion is that we can see for
ourselves what ought to count as fair principles by
performing a thought experiment.
Rawls: Imagine what principles would be chosen be
people in the following special (imaginary) situation…
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The Original Position (OP)
 Your task: To choose the basic principles by which the
“basic institutions” of society will governed.
To ensure impartiality, you are placed under special
conditions…
 All knowledge of your tastes, preferences, talents,
handicaps is hidden from you so as to remove factors
which might bias your decision in your favour.
You do, however, have knowledge of issues which would
not be biasing (social scientific knowledge, knowledge
about what human beings need in order to live, etc.).
The Veil of Ignorance
 Persons in the original position are thus said to be under
the 'veil of ignorance'. They do not know their interests,
their place in society, their personal characteristics or their
particular conception of the good.
 That is, they are mutually disinterested moral agents
(recall Mill). Yet they have the capacity to understand,
apply, and act from a concept of justice and a conception
of the good.
 They have no way off knowing, or determining the odds,
who they will turn out to be once the veil of ignorance
comes off: You could be, winner or loser, a beggar or a
millionaire, etc..
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Perfect Procedural Justice
 The OP though experiment is meant to model (albeit
imperfectly) what Rawls calls “perfect procedural justice”
The basic idea: “I cut, you choose”
By choosing the right procedure, injustice is made selfdefeating.
 Rawls argues that people in the original position would
choose certain principles of justice, rather than some
other ones (e.g., strict equalitarianism or utilitarian
principles).
 Moreover (since choosers in the OP have no way of
predicting where they will end up in the social hierarchy)
he argues that they will adopt a maximin choice strategy.
 So what specifically will people in the original position
decide upon? In other words, what are the principles of
justice, according to Rawls?
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Rawls's Principles of Justice
The First Principle (The ‘Liberty’ Principle)
Each person has an equal right to the most extensive scheme of
equal basic liberties compatible with a similar system of equal
liberty for all.
The Second Principle
Social and economic inequalities are to be arranged so that they
are both: a) to the greatest expected benefit of the least
advantaged (the “Difference Principle”) and b) attached to
offices and positions open to all under conditions of fair equality
of opportunity.
Priority Rule
The two principles are in ‘lexical’ order. The first principle has
priority over the second, so that all citizens are assured the
equal basic liberties; similarly, part (b) of the second principle
has priority over part (a), so that the conditions of fair equality of
opportunity are guaranteed for everyone.
 If these principles characterize, or very nearly
characterize, the “basic institutions” of some society, then
that society is just.
 These principles are the outcome of a kind of bargaining
process (though it is not proper bargaining, since
individuals do not know their own interests), but the duty
to abide by them does not itself derive from the contract.
Instead, citizens can simply recognize for themselves that
the rules are fair and, accordingly, agree to be bound by
them.
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