Rights Lecture Notes PDF, University of Strathclyde

10/2/24 X THE P U LNAI V C EE RO THE S FI T U Y SOE FF USLT R UNIVERSITY...

10/2/24 X THE P U LNAI V C EE RO THE S FI T U Y SOE FF USLT R UNIVERSITY LEAT OF AHRC N LI N YG STRATHCLYDE DE www.strath.ac.uk 1 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Rights and Liberty Dr Johann Go Topic 2 – L2235 Political Philosophy 2 1  10/2/24 X Lectures 3 & 4 T H E U N I V E R S I T Y O F S T R AT H C LY D E Lecture 3: Rights The Nature of Rights Hohfeld’s Typology of Rights Rights Conflicts Human Rights Lecture 4: Liberty The Nature of Liberty Berlin’s Two Concepts of Freedom The Limits of Liberty Freedom of Speech and Hate Speech 3 X Brief Updates T H E U N I V E R S I T Y O F S T R AT H C LY D E Readings Reduction in the number of Essential Readings. Duplicate book listings. Office Hours Now by drop-in instead of appointment: Thursdays 9-11am MC419 Class Rep 4 2  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E The Sheriff and the Innocent Man 5 Please download and install the Slido app on all computers you use Should the sheriff hang the innocent man to stop the violent riots? ⓘ Start presenting to display the poll results on this slide. 6 3  10/2/24 X Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Rights are entitlements to perform or not to perform certain actions, or entitlements to have others perform or not perform certain actions to/for us. I have a right to vote. I have a right to refuse medical treatment. I have a right to assistance from the emergency services. I have a right to not have others assault me. 7 X Hohfeldian Incidents T H E U N I V E R S I T Y O F S T R AT H C LY D E Wesley Hohfeld argues that rights have four components: Claim: A has a claim that B does φ iff B has a duty to A to φ. Privilege: A has a privilege to φ iff A has no duty not to φ. Power: A has a power iff A has the ability to alter her own or another’s Hohfeldian incidents. Immunities: B has an immunity iff A lacks the ability to alter B’s Hohfeldian incidents. (iff = Logical notation for if and only if) 8 4  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Adapted from Wenar (2020) 9 X Claim Rights and Liberty Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Hohfeld’s distinction is useful for understanding two main kinds of rights: Claim Rights (sometimes called positive rights) Liberty Rights (sometimes called negative rights) 10 5  10/2/24 X Claim Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Claim rights entail positive duties on others. My right to healthcare means there is a duty on doctors to provide me with healthcare. My right to food means that there is a duty on the state to provide me with food (or the means to secure it). 11 X Liberty Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Liberty rights, unlike claim rights, do not entail a duty on others. Liberty rights are merely permissions to do something. My right to freedom of speech does not give others a duty to listen to me or give me a platform; it only permits me to speak unimpeded. Adults have a liberty right to sex, but no claim right that others provide it! (cf. Amia Srinivasan’s Right to Sex) 12 6  10/2/24 X Are all rights really claim rights? T H E U N I V E R S I T Y O F S T R AT H C LY D E Some philosophers think that all rights, including liberty rights, entail duties and responsibilities. Henry Shue argues that all rights entail positive duties and responsibilities on others. This is because even supposedly simple and basic rights (such as the right to security) entail significant duties on others. On this view, the distinction between claim rights and liberty rights is untenable. 13 X What’s the point of rights? T H E U N I V E R S I T Y O F S T R AT H C LY D E Interest Theory of Rights (e.g. John Tasioulas, Joseph Raz) Rights are weighty claims about individuals’ interests. The primary point of rights is to protect individuals’ fundamental interests. Will Theory of Rights (e.g. H. L. A. Hart) Rights set limits to what the state and others can do to us (as well as what it can do for us). The point of rights is to alter others’ duties. 14 7  10/2/24 X Utilitarianism T H E U N I V E R S I T Y O F S T R AT H C LY D E Utilitarianism is a theory that says the right action is the one that produces the greatest good for the greatest number. The greatest good is measured in terms of utility (i.e. happiness). It is advanced and defended by philosophers such as Jeremy Bentham, John Stuart Mill, Henry Sidgwick, and Peter Singer. 15 X Utilitarianism and Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Utilitarianism often conflicts with rights. What would result in the greatest good for the greatest number often means that we have to sacrifice individuals’ interests and rights. For example: The Sheriff and the Innocent Man Homeless Person and Organ Donation Case Ticking Time Bomb Scenario 16 8  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Ronald Dworkin describes rights as trumps. If I have a right, I have a “trump” over others doing things to me simply because it would be better for everyone else (i.e. rights trump utility). Rights set the limits for utilitarianism and prevent others (including the state) from infringing 17 X Rights Conflicts T H E U N I V E R S I T Y O F S T R AT H C LY D E Rights can conflict in at least two different ways: Rights vs. Rights Conflict Rights vs. Utility Conflict 18 9  10/2/24 X Rights-Rights Conflicts T H E U N I V E R S I T Y O F S T R AT H C LY D E Most philosophers agree that rights can conflict against other rights. Your right to swing your arm ends at the point where my nose begins. Certain rights of free movement and association may conflict with others’ right to health during a global pandemic. 19 X Dealing with Rights-Rights Conflicts T H E U N I V E R S I T Y O F S T R AT H C LY D E Specificationist Approach – This approach says that rights do not really conflict once we specify them further. Once we specify all the morally relevant factual features of a situation in which a particular right is meant to apply, then there will be no conflict with other rights. This position was popularised by Judith Jarvis Thomson. 20 10  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E For example – a person points a loaded gun at you. If you shoot her in self-defence, you do not violate her right to life because she forfeited this right when she pointed the gun at you. There is no conflict between your right to self-defence and her right to life once you further specify the limits of the right to life (i.e. lost when you point a gun at someone). 21 X Problems with Specificationism T H E U N I V E R S I T Y O F S T R AT H C LY D E Where does it end? How specific do we need to go? If we have to specify everything to incredible detail, then it will be impossible to know what rights entail in advance. If we do not know what rights entail in advance, then they cannot be robust. Overly specified rights might not really be rights anymore. They may just collapse into contextual considerations. 22 11  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Balancing Approach – This approach agrees that rights can conflict, but we must balance the conflicting rights in question. The more important right prevails. For example – the right to protest is balanced against the right of others to go about their lives unimpeded by significant disruption. We therefore need to balance how important the right to protest is compared to the right for people to go about their lives undisturbed. 23 Strategies for Dealing with Rights X Conflicts T H E U N I V E R S I T Y O F S T R AT H C LY D E 1. Deny the conflict. One of the ‘rights’ is not actually a right at all, so there is no conflict. 2. Specificationism: The rights do not conflict once we specify them more. 3. Balancing Approach: There is a real conflict between the rights, which requires us to balance them in a principled way. 4. Defeatism: There is a rights conflict, but there is no principled way to resolve the conflict. 24 12  10/2/24 X Critics of Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Some theorists, especially utilitarians, think that all rights are “nonsense” or “nonsense upon stilts” (Bentham). Others think that rights are very limited. Libertarians (e.g. Robert Nozick) think that rights are limited to rights of private property, rights of bodily integrity, and rights against fraud. Others are concerned about rights proliferation – the idea that more and more things are becoming rights without principled reason. 25 X Human Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Human rights are viewed with suspicion by many moral and political philosophers. However, they are hugely influential in the political and legal realm. Think of the ECHR and its enduring constitutional role in UK politics and legislation, even post-Brexit. Many philosophers have argued that human rights are perhaps the most successful philosophical idea to permeate political and social life. 26 13  10/2/24 X Critiques of Human Rights T H E U N I V E R S I T Y O F S T R AT H C LY D E Expansionism – More and more things are becoming ‘human rights’. Unprincipled – It is not clear what makes something a human right as opposed to merely a very strong right. Animal Rights – Those who care about non-human animals argue that human rights fail to take seriously the interests of non-human animals. 27 X Break T H E U N I V E R S I T Y O F S T R AT H C LY D E 28 14  10/2/24 X Liberty T H E U N I V E R S I T Y O F S T R AT H C LY D E Liberty (used interchangeably with freedom) 29 X Berlin’s Two Concepts of Freedom T H E U N I V E R S I T Y O F S T R AT H C LY D E Isaiah Berlin famously distinguishes two concepts of freedom: Negative Freedom – Freedom from Positive Freedom – Freedom to 30 15  10/2/24 X Negative Liberty T H E U N I V E R S I T Y O F S T R AT H C LY D E Negative liberty is freedom from external interference. A person who is able to go about her life without others interfering with her has negative freedom. A person who has severe compulsions and addictions would still be free, on this conception, so long as others are not interfering with him. 31 X Positive Liberty T H E U N I V E R S I T Y O F S T R AT H C LY D E Positive liberty is freedom to achieve one’s goals and act in a way that brings about one’s fundamental aims. It is about self-mastery and self-autonomy. A drug addict does not have positive freedom because she is limited from acting in a way to achieve her fundamental goals. A poor person who does not have money to attend university does not have positive freedom, even if no one is interfering with his desire to go to university. 32 16  10/2/24 X Critiques of Negative Freedom T H E U N I V E R S I T Y O F S T R AT H C LY D E Theorists argue that freedom needs to be robust. A poor person is not free if she cannot do what she wants because of a lack of money. Amartya Sen and others in the capabilities tradition, for example, argue that freedom is about having the capability to achieve our fundamental goals. 33 X Freedom and Money T H E U N I V E R S I T Y O F S T R AT H C LY D E Do you need money to be free? G. A. Cohen argues that not having money makes one unfree, as money represents permissions for us not to be interfered with. 34 17  10/2/24 X Critiques of Positive Freedom T H E U N I V E R S I T Y O F S T R AT H C LY D E Berlin argues that negative freedom is the correct conception of freedom. Positive freedom conflates lots of other good things with the more limited notion of ‘freedom’. Being poor and unable to things may be a bad thing, but it is not a question of not being free. For Berlin, freedom is reserved for a specific concept of being free from external interference. Expanding liberty is dangerous and risks giving the state too much power to act in the name of freedom. 35 X The Limits of Liberty T H E U N I V E R S I T Y O F S T R AT H C LY D E Whichever conception of freedom we adopt, it is clear that freedom is valuable. This means that strong reasons must be advanced when others, including the state, want to limit our liberty. When, if ever, may our liberty be restricted? 36 18  10/2/24 X Mill’s Harm Principle T H E U N I V E R S I T Y O F S T R AT H C LY D E John Stuart Mill famously defends what has been called the Harm Principle: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good … is not sufficient warrant. … Over himself, over his own body and mind, the individual is sovereign.” 37 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Mill’s Harm Principle is an intuitive concept. We generally agree that we are free to do anything up until the point that we harms others. We can abuse ourselves or harm ourselves, but – as long as we do not affect others – the state may not do anything about it. The state may not act paternalistically on this view. Offending others does not count as harming them either. We may not restrict others’ liberty simply because others are offended by their conduct. 38 19  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E The burden of proof is always on those wanting to restrict liberty. They must give reasons for why liberty should be restricted. Without good reasons, we are not permitted to restrict liberty. Liberty is the default. Mill’s position on freedom and liberty is generally referred to as classical liberalism. NB: ‘Liberal’ does not mean ‘left wing’ or ‘progressive’. 39 X Freedom and Individuality T H E U N I V E R S I T Y O F S T R AT H C LY D E Mill defends liberty and opposes paternalism by pointing to the value of individuality. We have an interest in being the authors of our own lives, taking ownership of our own successes and failures. Individuals are generally the best judge of what is good for them. The state (and others) may be well-meaning, but they may not know what is best for us. 40 20  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Justice Louis Brandeis, dissenting [Olmstead v. U.S., 277 U.S. 438 (1928)] 41 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Fun Fact A copy of Mill’s On Liberty is passed on to the President of the Liberal Democrats as their symbol of office. 42 21  10/2/24 X What is harm? T H E U N I V E R S I T Y O F S T R AT H C LY D E Mill is not clear on what constitutes harm. Joel Feinberg offers further guidance. A harm, on Feinberg’s view, is a wrongful setback to someone’s interests. Setting back someone’s interests is not enough; it must also be wrongful. Feinberg’s account gives us more guidance about what counts as harm that triggers Mill’s Harm Principle. 43 Feinberg on Harm X T H E U N I V E R S I T Y O F S T R AT H C LY D E Beating someone in a fair sports competition (harm, but not wrongful harm) Driving someone out of business by competing with them on the open market (harm, but not wrongful harm). Hurting someone’s feeling by telling them that their god does not exist (not harmful, not wrongful). Physically assaulting someone without justification (wrongful harm). Spreading lies against someone to incite physical violence against them (wrongful harm). 44 22  10/2/24 X Freedom of Speech T H E U N I V E R S I T Y O F S T R AT H C LY D E Mill provides one of the most famous defences of freedom of speech. Mill supported freedom of speech on several related grounds: It is only through hearing and disproving falsehoods that we can be confident of the truth. The truth is strengthened by having it tested and challenged. We might discover the truth through seemingly untrue speech. 45 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Mill and other liberals think that there are still limits to freedom of speech. The Harm Principle is the clearest limitation on speech: Yelling ‘fire’ in a crowded theatre and risking a deadly stampede. Telling a baying mob that ‘corn dealers’ are starving the poor outside the corn dealer’s house. Others think that we should also restrict free speech when it violates others’ dignity or diminishes their social status. 46 23  10/2/24 X Hate Speech T H E U N I V E R S I T Y O F S T R AT H C LY D E Hate speech is often seen as a grey area in discussions about freedom of speech and the limits of liberty (cf. Joel Feinberg, Jeremy Waldron, Bhikhu Parekh). Hate speech is speech which is hateful (i.e. negatively targets a minority group or person), but which does not deliberately incite violence against that group or person. Is hate speech harmful in the sense relevant to the Harm Principle? Should hate speech be criminalised? 47 Please download and install the Slido app on all computers you use Should hate speech (i.e. speech that negatively targets a minority group, but which does not directly incite violence) be criminalised? ⓘ Start presenting to display the poll results on this slide. 48 24  10/2/24 X Sample Exam Questions T H E U N I V E R S I T Y O F S T R AT H C LY D E What are rights and when, if ever, are we justified in breaching them? When, if ever, may the state restrict our liberty? 49 X Summary T H E U N I V E R S I T Y O F S T R AT H C LY D E Rights and liberty are two foundational concepts in political philosophy. They also occupy much discussion in our political and social lives. The components of rights are commonly divided into the Hohfeldian incidents: claims, privileges, powers and immunities. Rights can conflict with other rights and with utility. Particular ways of solving them come with trade-offs. 50 25  10/2/24 X T H E U N I V E R S I T Y O F S T R AT H C LY D E Rights are typically seen to function to protect our interests (interest theory) or to give us power to alter others’ duties (will theory). Berlin distinguishes between negative and positive conceptions of liberty, favouring the negative conception. Mill’s Harm Principle (alongside Feinberg’s revisions) provide us with guidance about the appropriate limits of liberty and when others may interfere with us against our will. Liberalism treats liberty as the default, and the burden of proof is on those who wish to restrict it to justify their actions. 51 X THE P U LNAI V C EE RO S FI T U Y SOE FF USLT R LEAT AHRC N LI N YGDE 52 26