Rights PDF

C H A P T E R 6 Rights Papia Sengupta Talukdar CHAPTER OUTLINE Introduction 89...

C H A P T E R 6 Rights Papia Sengupta Talukdar CHAPTER OUTLINE Introduction 89 The Idea of Rights 89 Theories of Rights 93 Human Rights 98 Some Recent Debates on Rights 99 Conclusion 104 Points for Discussion 104 Bhargava~06_Chapter_06.indd 88 3/29/2008 2:34:18 PM Process Black  RIGHTS 89 INTRODUCTION That individuals have rights and the fact that rights mark important limits on what may be done to them by the state, or in the name of other conceptions, is now a familiar position in modern political philosophy. When the founders of the United States stated in the Declaration of Independence (1776) that certain rights were inalienable, they were at the forefront of a moral movement that continues to exert a profound impact on society even today. Indeed, at the same time, the French were also developing their own equivalent, the Declaration of the Rights of Man and of the Citizen (1789). Thus, the two most influential political documents of the modern age take the notion of rights as the central concept upon which their political organ- izations are built. This chapter attempts to give a comprehensive analysis of rights, kinds of rights, rights and duties, and different theories of rights. Recent developments and issues concerning rights are also discussed. The interest in rights was not restricted to the 17th and 18th centuries only; the second half of the 19th century also witnessed a major resurgence of interest in the notion of human rights. Issues of rights play a central role in our political life. The civil rights movement from the 1960s onwards took rights as the cornerstone upon which the rebuilding of our society was to be based. More recently, issues about rights of women and disadvantaged minorities have been a matter of debate. With the increasing medical advancements, we are now discussing whether persons have a right to die, i.e. euthanasia.Discussions about using animals in research and testing are often phrased in terms of animal rights. Sexual choice is discussed in terms of gay and lesbian rights. Human rights have become a major concern in recent times. Thus, discourse about rights has become persuasive in our society. The language of rights has proved to be the most powerful language for moral change in the 20th and early 21st centuries. THE IDEA OF RIGHTS Now the question arises: what is a right? Simply speaking, a right is to get ‘one’s due’, i.e. to get what is due to someone as a human, citizen, individual or as a member of a group, etc. To have a right, then, is to be entitled to do something or to have something done; for example, to vote, to speak, to avail of healthcare, etc. It is different from obligation, as Hobbes points out—on any occasion you have a choice whether or not to exercise your right. You are not obliged to do what you are entitled to do. For example, it is your right to vote, but you are not obliged to vote; you are free to exercise your choice, to vote or not Bhargava~06_Chapter_06.indd 89 3/29/2008 2:34:25 PM Process Black  90 POLITICAL THEORY: AN INTRODUCTION to vote. While rights and obligations are not the same, they are still connected. Whenever you decide to do what you have a right to do, others have an obligation to let you do it. But upon what grounds can the claim to have a right be justified? What is it that entitles me and obligates you? The right is conferred and the correlative obligation imposed by a law in a society of which you and I are both members and whose legal system we are both subjected to. But all rights are not legal in nature, moral rights for example. Thus, rights and their correlative obligations are essentially social in character. One has them as a member of a social group, be it a society or a nation. Rights need recognition from society and from the state. Rights, therefore, are claims which can be justified on legal, moral, ethical or human grounds. A right must be justified in the first place as something I have as a member of some social group. Second, what I claim as a right must be something which is necessary for me if I am to play my proper part as a member. Third, my claim to have it as a right is justified only if I am able to and willing to respect the rights of the other members of the group. Rights express a certain kind of relationship between two parties: the right-holder and the right-observers. Rights thus have two faces, depending on whether they are viewed from the perspective of the holder of the right or from those with whom the right-holder is inter- acting. From the standpoint of the right-holder, a right is permission to act, an entitlement ‘to act, to exist. To enjoy, to demand’. But from the standpoint of the right-observers, the right usually imposes a correlative duty or obligation, as I mentioned earlier. This duty can be either negative (to refrain from interfering with the right-holder’s exercise of the right) or positive (to assist in the successful exercise of the right). Finally, to have a right entails certain res- ponsibilities. This brings us to the distinction between negative and positive rights. Negative and Positive Rights Negative rights are rights that entail non-interference from the society at large. For example, the right to liberty, life, property, etc. The right to life prevents others from killing me but it does not obligate them to do anything positive to assist me in living my life to the full or to live happily. Positive rights are rights that impose obligations on other people or the state to do some- thing for a fuller enjoyment of our rights. For example, the right to health, basic subsistence, etc. requires positive interference to do something. But negative rights restrict us from doing something. Negative rights entail only negative obligations of non interference; positive rights entail positive obligations on the part of the right-observer to do something to assist in the right-holder’s exercise of the right. Rights can be classified in various ways—moral, legal, human rights, etc. or civil, political, social rights. I will now discuss the difference be- tween civil, political and social rights. Civil, Political, and Social Rights In contemporary political thought, the term ‘civil rights’ is indissolubly linked to the struggle for equality of African Americans during the 1950s and 1960s. The aim of that Bhargava~06_Chapter_06.indd 90 3/29/2008 2:34:25 PM Process Black  RIGHTS 91 struggle was to secure the status of equal citizenship in a liberal democratic state. Civil rights are the basic legal rights a person must possess in order to have such a status. They are the rights that constitute free and equal citizenship and include personal, political, and economic rights. No contemporary thinker of any significance holds that such rights can be legitimately denied to a person on the basis of race, colour, sex, religion, national origin, or disability. Until the middle of the 20th century, civil rights were usually distinguished from ‘political rights’. The former included the rights to own property, the rights to make and enforce con- tracts, the right to legal recourse and the right to one’s religion. Civil rights also covered freedom of speech and of the press; but they did not include the right to hold public office, vote, or to testify in court. The latter were political rights, reserved for adult males. The civil–political distinction was conceptually and morally unstable insofar as it was used to sort citizens into different categories. It was part of an ideology that classified women as citizens who were entitled to certain rights but not to the full panoply to which men were entitled. As that ideology broke down, the civil–political distinction began to unravel. The idea that a certain segment of the adult citizenry could legitimately possess one bundle of rights, while another segment would have to make do with an inferior bundle, became increasingly implausible. In the end, the civil–political distinction could not survive the co- gency of the principle that all citizens of a liberal democracy were entitled, in Rawls’ words, to ‘a fully adequate scheme of equal basic liberties’. The claims for which the American civil rights movement in the 1950s and 1960s ini- tially fought belong to the first generation of civil rights claims. Those claims included the 18th-century set of civil rights—such as the right to legal recourse and to make and enforce contracts—but covered political rights as well. However, many thinkers and activ- ists argued that these first-generation claims were too narrow to define the scope of free and equal citizenship. They contended that such citizenship could be realized only by honouring an additional set of claims, including rights to food, shelter, medical care and employment. This second generation (19th century) of economic ‘welfare rights’, they argued, helped to ensure that the political, economic and legal rights belonging to the first generation could be made effective in protecting the vital interests of citizens and were not simply paper guarantees. Yet, some scholars have argued that these second-generation rights should not be sub- sumed under the category of civil rights. The traditional political and civil rights can be readily secured by legislation. Since the rights are for the most part rights against government interference the legislation needed had to do no more than restrain the executive’s own arm. This is no longer the case when we turn to the ‘right to work’, the ‘right to social se- curity’, and so forth. The third generation of claims (20th century) has received considerable attention in recent years, what may be broadly termed ‘rights of cultural membership’. These include language rights for members of cultural minorities, and the rights of indigenous peoples to preserve their cultural institutions and practices, and to exercise some measure of political autonomy. There is some overlap with the first-generation rights, such as that of religious liberty, but rights of cultural membership are broader and more controversial. Bhargava~06_Chapter_06.indd 91 3/29/2008 2:34:25 PM Process Black  92 POLITICAL THEORY: AN INTRODUCTION Another classification of rights can be made: on the basis of legal and moral grounds. Let us now distinguish between legal and moral rights. Legal Rights Laws differ from ordinary life or moral discourse in that the truth of any legal statement depends ultimately on the acts of certain authorities. Whatever is legal or illegal is so be- cause it was declared so by legal authorities. The ultimate touchstone, therefore, of all legal statements are the acts of these legal authorities. It is because courts have defined terms in a certain manner; whether these agree with the moral meaning is irrelevant. Legal authorities used the term ‘right’ to refer to four different properties: the correlate of a legal duty (claim), the absence of duty (privilege or liberty), the capacity to change legal relations (power), and the protection against change in one’s legal position (immunity). Moral Rights In ordinary language, we use the term ‘right’ in at least two ways; we say that someone has the right to something, and we also say that someone has a right to do certain things. In the first instance, the existence of the right concerns the behaviour of someone other than the right-holder, since to say that I have a right to something is to say that someone has the duty to act in a certain manner towards me. In the second instance, it is the right-holder’s behaviour that is in question, and to say that he has a right to act in a particular way is to say that he is morally free to do so—that it is not wrong for him to do so. These two uses of the term ‘right’ correspond in part to Dworkin’s (1977: 188) ‘strong’ and ‘weak’ senses of right, respectively. The standard interpretation of a claim-right is that another person has the duty to act in a certain way with respect to the ‘thing’ to which the first person has a right. But does a right- to-something merely imply a duty in others or is it a package of normative advantages? Either way, the core idea of right appears to be that an object or interest protected by a duty has some things that are considered to be good, and to say that one has a right to such a thing means that one’s interests in that thing deserves protection. Not all goods or interests generate rights; it is only when there is a particularly important moral reason for protecting the good or interest in question that we speak of there being a right attached to it. This idea is expressed in Dworkin’s (1977: 189–90) well-known claim that individual rights are political trumps held by individuals. He goes an to add that indi- viduals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or is not a sufficient justi- fication for imposing some loss or injury upon them. The idea is also expressed in Raz’s (1995: 166) claim that a right exists if an aspect of a single person’s well-being is a sufficient reason for holding some other person or persons to be under a duty. Political theories will differ in their estimate of the importance of certain goods or interests for human beings, Bhargava~06_Chapter_06.indd 92 3/29/2008 2:34:25 PM Process Black  RIGHTS 93 and therefore in their ascription of particular rights, but the central idea remains that of important interests of individuals protected against wider moral considerations. That is why, according to Hartney (1991), giving rights to the society would simply annihilate any com- peting individual rights. But he ignores the very important issue of individuals not as atom- ized entities but as culturally embedded, and the idea of ‘good’ as rooted in one’s culture. THEORIES OF RIGHTS We will now discuss different theories associated with the idea of rights. Rights are not only of different kinds but there are various theories on the origin of rights. The first and the oldest theory of rights is the natural rights theory. The Theory of Natural Rights The most influential statement on natural rights was given by John Locke in his Second Treatise on Civil Government published in 1690 (repr. 1946). But before Locke, Thomas Hobbes had also propounded a theory of natural rights. Hobbes’ idea of natural rights can be traced to his conception of the ‘state of nature’. This state is the condition of human life in the absence of organized political authority and government, the natural condition of man in contrast to his artificial condition under a government. According to Hobbes (1946: 80–81), the right of nature or what he calls ‘Jus Naturale’, is the liberty each man hath to use his power as he will himself for the preservation of his own nature, i.e. to say his own life, and consequently of doing anything which in his own judgment and reason he shall conceive to be the aptest means. This liberty is a right to nature because each man has it in the state of nature. It is the only right anyone can have in the absence of a government. But this is not a worthy right because, as Hobbes (1946: 82) later points out, the state of nature is a condition of war where everyone is against everyone, and in which everyone is governed by his or her own reason. Thus, Hobbes concludes that the natural right of every man to everything must be given up as a necessary condition for the establishment of a government and to end the anarchy of the state of nature. All must agree to obey unconditionally one supreme authority. Hobbes, however, retains one natural right and that is the right to life. If the government orders a man to kill himself, he may resist. John Locke (1946) also thinks of the state of nature as being the condition of human beings in the absence of government. But unlike Hobbes, he does not think that it is inher- ently a state of war. ‘Men live together according to reason, without a common superior on earth with authority to judge between them are properly in a state of nature.’ According to Locke, in the state of nature men are in perfect freedom to order their actions and dispose of their possessions and persons as they think fit within the bounds of Bhargava~06_Chapter_06.indd 93 3/29/2008 2:34:25 PM Process Black  94 POLITICAL THEORY: AN INTRODUCTION the law of nature, without asking leave or depending upon the will of any other man. He also adds that it is ‘a state of equality, wherein all the power and jurisdiction is reciprocal, no one having more than the other’. But this natural freedom is not freedom to do as you like. It is freedom ‘within the bounds of the law of nature’. The state of nature has a law of nature to govern it. This law teaches all mankind, who will consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions. Locke speaks of man as being born with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of nature. But what are these rights and privileges? To this, Locke’s answer is that every man has a natural right to his life and freedom of action to use his property as he thinks fit, provided that he does not interfere with any other man’s enjoyment of the same conditions. The theory of natural rights has been criticized by many thinkers, but the most vehement critics of this theory are the utilitarians. The Utilitarian Theory of Rights The utilitarian theory of rights was outlined by the English philosopher Jeremy Bentham (1748–1832). Bentham was dissatisfied with the aimless and ‘unscientific’ character of the legislation of his day and critical of the idea that significant and genuinely reforming legislation could be based on the traditional idea of ‘rights’. He argued that lawmakers should use what he called the ‘principle of utility’ to construct morally sound legislation. By utility he meant that ‘property in any object, whereby it tends to produce benefits, ad- vantages, good or happiness or that which prevents the happening of mischief, pain, evil or unhappiness to the party whose interest is considered—if that party be the community; then the happiness of the community; if a particular individual then the happiness of the individual’ (Burns and Harts 1970: 14). Bentham defines the principle of utility as that which commands a state to maximize the utility of the community. The measure of a government is said to be dictated by the prin- ciple of utility when it takes care of the greatest happiness of the community, rather than the happiness of some people. He goes to the extent of bringing out a mathematical way of calculating utility to give an air of scientific authority. Bentham’s principle of utility has been persistently alluring to generations of politicians, policy makers and theorists ever since he promulgated it. It is not only simple, seemingly scientific, and can be given a mathematical formulation, but is also centrally concerned with what we may take to be the core of morality—human welfare. Yet, the principle of utility has been heavily criticized, so that over the years the advocates of that principle have felt the need to modify and redefine it to make it plausible. To appreciate these criticisms, consider the interesting theoretical assumptions built into the Benthamite principle of utility. First, Bentham takes it for granted that each of us can evaluate our own happiness. Second, he assumes that this evaluation can also be made by those who are determining policy in a state. Third, his principle assumes that this evaluation is quantitative, that is, happiness is something inside each of us that can be measured and represented by a single Bhargava~06_Chapter_06.indd 94 3/29/2008 2:34:25 PM Process Black  RIGHTS 95 number, as if it were ‘stuff’ that came in degrees. Fourth, his principle assumes that the happiness of each person can be added to the happiness of any other person, allowing us not only to compare the happiness of persons but also to add their ‘happinesses’ together to get a sum total of ‘happinesses’. It was not long before these assumptions were attacked. Consider the third assumption, that the evaluation of happiness is purely a quantitative matter: can we really measure people’s happiness, assuming that happiness is only one kind of thing that comes in degrees but does not differ in kind? Bentham insisted that happiness was not a word that denoted multiple experiences or feelings in a human being but only one kind of feeling—the feeling of pleasure. However, John Stuart Mill, himself a follower of utilitarianism, thought that this view was incorrect, since we intuitively think that experiences of ‘pleasure’ not only differ in quantity but also quality. Mill sympathized with critics of Bentham who contended that the idea that life has ‘no higher end than pleasure’ was ‘utterly mean and grovelling’. Many people who are attracted to the principle of utility have argued that we should not abandon Bentham’s idea but only redesign it. They argue for a better way of identifying human welfare, such that it can be quantified, measured and aggregated. Moreover, contemporary utility theory, developed by John von Neumann, Oskar Morgenstern and Leonard Savage, has generated a way of doing something like ‘measuring’ the satisfaction of preferences, so that we come up with a number that accurately reflects how well a person has received what she wants, showing the intensity of those wants. However, these ‘measurement numbers’, as they stand, cannot be added together as the principle of utility requires. Critics have argued that such an idea is wrong—and that expected utility theory is mis- used if it is seen as a source for the foundation of a notion of welfare that will be serviceable to the utilitarians. Such critics raised the technical issues about the nature of the ‘measure- ment’ of preferences that game theory gives. These sorts of problems have eroded the popu- larity of utilitarianism in our times. Yet, critics have argued that there are even more serious problems plaguing the theory, having to do with the kind of policy recommendation it would generate if its foundational assumptions could be better clarified and defended. Consider, for example, that the theory tells us to maximize total happiness. Now, if maximizing total happiness depended upon impoverishing some members of the society, the principle of utility would nonetheless tell us to do so. Yet, this intuitively strikes us as unfair. Some people have actually put forward a moral theory called intuitionism. According to this view, we have fundamental moral ideas within us that are the source of our concep- tions of justice and to which any adequate moral conception must answer. However, such a theory has not proven popular: first, it has no resources within it to systematize or interpret intuitions if they come to us in an inchoate form. Second, it has no theoretical resources to prioritize among intuitions or decide between them when they conflict. Third, and per- haps most important, given that many intuitions held by people reflect the prejudices, injustices and peculiarities of their culture, intuitionalism must be able to identify which intuitions should be morally relied upon—and yet it does not have the theoretical resources to do so. Hence, philosophers critical of utilitarianism have attempted to formulate alter- natives to intuitionism that could not only show the failure of the principle of utility in a Bhargava~06_Chapter_06.indd 95 3/29/2008 2:34:25 PM Process Black  96 POLITICAL THEORY: AN INTRODUCTION way that relies less on intuition but also yield a satisfactory conception of justice based on reason. The most prominent of these attempts, by John Rawls, is the topic of our next section. John Rawls on Rights John Rawls’ A Theory of Justice (1971) is the most influential contemporary work on rights. For Rawls, what is directly relevant for social ethics and justice is the individual’s means to pursue their own ends to and to live whatever ‘good life’ they choose for themselves. Rawls’ vision of the just state is deeply egalitarian in spirit. His argument makes use of the idea of a hypothetical social contract, applied not to the nature of the state’s authority over the people but to the nature of justice. We are, says Rawls, to imagine ourselves in a contract situation in which we must agree with all those people who will live with us in a society based on the principles of justice that will govern it. He argues that any principle of justice that results from this hypothetical agreement process should be understood to be the best defensible conception of justice available to us. Rawls also believes that the contract takes the individual seriously. He was greatly influ- enced by Kant, who seems to think that the idea of contract acknowledges the way in which people should be treated as ‘ends’ in themselves and not solely as ‘means’. A social contract test of political policies is, in Kant’s view, a way to secure that acknowledgement by hypothetically involving each member of the society in the assessment of those policies in a way that respects her interests and perspectives as an individual. Rawls also believes that a contract test takes the individual seriously in a way utilitarianism does not. Rawls argues that in the utilitarian calculation the boundaries of the individuals are merged, and what is morally important about them—i.e. their welfare—is aggregated together. Instead of endorsing a moral reasoning procedure that explicitly conflates individ- uals, Rawls argues that an adequate theory of justice must morally respond to and preserve the ‘distinction of persons’. Rawls’ theory of justice as fairness consists of the two principles: First principle: ‘Each person is to have an equal right to the most extensive liberty com- patible with a similar liberty for others’. Second principle: ‘Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be in everyone’s advantage and in particular, to the advan- tage of the least well-off persons; and (b) attached to positions and offices open to all’. Rawls’ arguments have been attacked by many critics. There have been right-wing and left-wing attacks. On the right, critics have charged that Rawls has failed to acknowledge the proper role that effort, merit and responsibility should have in the distribution of resources. Why should people receive roughly equal allotments when some work harder than others, when some invest more wisely than others, or when some are lazy and fail to contribute effectively to the community? They claim that a system of distributive justice that ignores differences in effort undermines individual responsibility, promotes sloth and allows the lazy to free ride on the efforts of the industrious in a way that will likely lead to social unrest Bhargava~06_Chapter_06.indd 96 3/29/2008 2:34:25 PM Process Black  RIGHTS 97 and eventual diminishment of the economic pool. Now, if it produces the latter results, Rawls’ own theory would disallow that distribution, because in this situation giving more to the industrious is justified in order to increase the economic pool and to yield more for everyone. Hence, he would allow unequal distributions in order to forestall a drop in productivity. In contrast, he would not allow them if the economic pool were increased but the only people to benefit from the increase were the most advantaged. Rawls’ right-wing critics would object, however, if the more advantaged by virtue of cre- ating those increases are allowed to enjoy their share of the increased economic pool even if that adds to societal inequality. On the left, critics have pointed to Rawls’ willingness to depart from strict equality of holdings and some have wished for a conception of equality that focuses more on the equality of people’s welfare than the equality of their resources. The critics from the left have also been troubled by his failure to incorporate more fully the idea of personal responsibility into his theory. The Libertarian Theory of Rights Shortly after the publication of Rawls’ book, Robert Nozick published Anarchy, State and Utopia (1974), which is in some respect a libertarian reply to A Theory of Justice. Nozick argues against what he calls ‘patterned’ and ‘end-state’ conceptions of justice. The former are conceptions of justice that seek to implement a distributive scheme according to some patterning principle. The latter are conceptions that seek to attain a certain kind of telos, or goal, via a certain distribution of resources. What is important in Nozick’s view is the idea that each individual has certain rights and in particular, certain property rights that are ‘absolute’ in character in the sense that no amount of good accruing to the community generally or to other individuals can justify the infringement or overriding of these rights. Nozick’s ultimate concern is with the way end-state and patterned conceptions of justice interfere with liberty. Hence, he argues for a historical conception of justice, on which he bases the theory of rights. Nozick’s particular version of historical principle is what he calls the ‘entitlement theory of justice’ which consists of three principles: 1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. 2. A person who acquires a holding in accordance with the principle of justice in transfer from someone 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). In addition to these principles, Nozick also endorses a principle of rectification that would provide for the redressal of past injustices. But this conception of justice essentially entails the defence of the free market and the capitalist system. His argument is a way of defending the free market insofar as it realizes justice by respecting the liberty of the individual regard- less of its effects on aggregate welfare and regardless of its economic implications. Bhargava~06_Chapter_06.indd 97 3/29/2008 2:34:26 PM Process Black  98 POLITICAL THEORY: AN INTRODUCTION There have been many criticisms of libertarian views in general and Nozick’s version of libertarianism in particular—some of them passionate. The most obvious and popular criticism has been of the libertarian notion of rights: for why should we think that morality demands that we accord people such absolute rights? How could rights be thought to trump so decisively all considerations of others’ welfare in the community? Moreover, what if the economy flourishes better if the state interfered in the market economy? Libertarians may not allow it, and yet most citizens and firms might actually want it and even demand it, insofar as they believe they will be better off with such governmental interference. HUMAN RIGHTS Human rights are international moral and legal norms that aspire to protect all people everywhere from severe political, legal and social abuses. Examples of human rights are the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured and the right to engage in political activity. These rights exist in morality and in law at the national and international levels. They are addressed primarily to governments, requiring compliance and enforcement. The main source of the contemporary conception of human rights is the Universal Declaration of Human Rights (1948) and the many human rights documents and treaties that have followed in its wake. The philosophy of human rights addresses questions about the existence, content, na- ture, universality and justification of human rights. The Universal Declaration of Human Rights (UDHR) sets out a list of over two dozen specific human rights that countries should respect and protect. We may group these specific rights into six or more families: (i) security rights that protect people against crimes such as murder, massacre, torture and rape; (ii) lib- erty rights that protect freedom in areas such as belief, expression, association, assembly and movement; (iii) political rights that protect the liberty to participate in politics through actions such as communicating, assembling, protesting, voting and serving in public office; (iv) due process rights that protect against abuses of the legal system such as imprisonment without trial, secret trials and excessive punishments; (v) equality rights that guarantee equal citizenship, equality before the law and non-discrimination; and (vi) welfare rights (or ‘economic and social rights’) that require the provision of education to all children and protections against severe poverty and starvation. Another family that might be included is group rights. The UDHR does not include group rights, but subsequent treaties do. Group rights include the protection of ethnic groups against genocide and the ownership by coun- tries of their national territories and resources. The general idea of human rights can be explained by setting out some defining features. It answers the question of what human rights are with a general description of the concept rather than a list of specific rights. Two people can have the same general idea of human rights even though they disagree about whether some particular rights are human rights. Human rights are political norms dealing mainly with how people should be treated by their governments and institutions. They are not ordinary moral norms applying mainly to interpersonal conduct (such as prohibitions of lying and violence). As Thomas Pogge (2000) Bhargava~06_Chapter_06.indd 98 3/29/2008 2:34:26 PM Process Black  RIGHTS 99 puts it, ‘to engage human rights, conduct must be in some sense official’. But we must be careful here since some rights, such as rights against racial and sexual discrimination are primarily concerned to regulate private behaviour. Still, governments are directed in two ways by rights against discrimination. They forbid governments to discriminate in their actions and policies, and they impose duties on governments to prohibit and discourage both private and public forms of discrimination. Not every question of social justice or wise governance is a human rights issue. For ex- ample, a country could have too much income inequality, inadequate provision for higher education, or no national parks without violating any human rights. Deciding which norms should be counted as human rights is a matter of some difficulty. And, there is continuing pressure to expand lists of human rights to include new areas. Many political movements would like to see their main concerns categorized as matters of human rights, since this would publicize, promote and legitimate their concerns at the international level. A pos- sible result of this is ‘human rights inflation’, the devaluation of human rights caused by producing too much bad human rights currency. SOME RECENT DEBATES ON RIGHTS Communitarian Perspectives Communitarians critique the earlier discussed notions of rights on the ground that they take the ‘individual’ as the unit for the distribution of resources. Communitarians argue that the ‘individual’ is not an abstract category but is deeply embedded in his/her cul- ture. Thus, they assert that the ‘community’ or ‘group’ identity of an individual should be taken into account, rather than the ‘individual’. For many communitarians, the problem with liberalism is not its emphasis on justice, nor its universalism, but rather its individualism. According to this criticism, liberals base their theories on notions of individual rights and personal freedom, but neglect the extent to which individual freedom and well being are only possible within a community. Once we recognize the dependence of human beings on society, our obligations to sustain the common good of society are as weighty as our rights to individual liberty. The central argument of Michael Sandel’s book, Liberalism and the Limits of Justice (1982: 183) is that liberalism rests on a series of mistaken metaphysical and meta-ethical views, for example, that claims of justice are absolute and universal; that we cannot know each other well enough to share common ends, and that we define our personal identity independently of socially given ends. Hence, communitarians argue, the liberal ‘politics of rights’ should be abandoned for a ‘politics of common good’. Many communitarians agree about the importance of rights and justice, but they claim that liberals misinterpret justice as an ahistorical and external criterion for criticizing the ways of life of every society. Utilitarians, liberals, egalitarians and libertarians may disagree about the content of justice, but they all seem to think that their preferred theory provides a standard that every society should live up to. They do not see it as a decisive objection that their theory may be in conflict with local beliefs—this is sometimes seen by liberals as Bhargava~06_Chapter_06.indd 99 3/29/2008 2:34:26 PM Process Black  100 POLITICAL THEORY: AN INTRODUCTION the point of discussing justice—it provides a standpoint for questioning our beliefs and for ensuring that they are not local prejudices. As Dworkin (1985: 219) puts it, … in the end political theory can make no contribution to how we govern ourselves except by struggling against all the impulses that drag us back into our own culture, towards generality and some reflective basis for deciding which of our traditional distinctions and discriminations are genuine and which are spurious. Michael Walzer (1983) argues that this quest for a universal theory of rights is misguided. The only way to identify the requirements of rights and justice is to see how each particular community understands the value of social goods. A society is just if it acts in accordance with the shared understandings of its members, as embodied in its characteristic practices and institutions. Hence, the identifying principle of rights and justice is more a matter of cultural interpretation than of philosophical argument. Walzer asserts that the shared understandings in our society require ‘complex equality’, i.e. a system of distribution that does not try to equalize all goods, but rather seeks to ensure that inequalities in one ‘sphere’ do not permeate other spheres. However, he acknowledges that other societies do not share this understanding of justice and for some societies justice may involve virtually unlimited inequality in rights and goods. Multicultural Perspectives on Rights One of the central theoretical and practical conundrums of our age is the problem of re- conciling the aspirations to political equality with the fact of social and cultural differences within liberal democratic states. The liberal democratic state is increasingly being challenged both by theorists of democratic equality and by political movements to recognize that the ideal of universal citizenship in which each person is treated with ‘equal concern and re- spect’ can no longer be easily identified with a programme of uniform rights. They assert that the ideal of universal citizenship is based on the conception of equality as ‘difference- blindness’, which multiculturalists argue is ‘formal’ and not ‘real’ in nature. Real equality, according to the theorists of multiculturalism, is ensured not through ‘uniformity of treat- ment’ but by keeping in mind their social and cultural location. Many defenders of group rights for ethnic and national minorities insist that they are needed to ensure that all citizens are treated with genuine equality. According to this view, the accommodation of difference is the essence of true equality, and group-specific rights are needed to accommodate our differences. Proponents of individual rights respond that indi- vidual rights already allow for the accommodation of differences, and that true equality requires equal rights for each individual regardless of race or ethnicity. But some minority rights eliminate—rather than create—inequalities. Some groups are unfairly disadvantaged in the cultural marketplace, and political recognition and support rectify this disadvantage. Kymlicka (1989a, 1989b) gives the example of the national minorities, the viability of Bhargava~06_Chapter_06.indd 100 3/29/2008 2:34:26 PM Process Black  RIGHTS 101 their societal cultures may be undermined by economic and political decisions made by the majority. They could be outbid or outvoted on resources and policies that are crucial to the survival of their societal cultures. The members of majority cultures do not face this problem. Given the importance of cultural membership, this is a significant inequality, which becomes a serious injustice if not addressed. Any plausible theory of rights should recognize the fairness of protection for the minorities. Giving minority rights to members of minority cultures may eliminate the disadvantages faced by them. Group-differentiated rights—such as territorial autonomy, veto powers, guaranteed representation, land claims and language rights—can help rectify these disadvantages by alleviating the vulnerabil- ity of minority cultures to majority decisions. Given that it is important for minorities to preserve their culture and their differences, they demand special rights that are essential for preserving their culture. Is giving special rights to some people not against the idea of equality? Should all minorities be granted group-differentiated rights? What if by giving group-differentiated rights the minorities demand a separate state for themselves? What will happen to national integration? These are some important issues that come up, but which are beyond the scope of this discussion. Although multiculturalism has found many supporters, there are problems within it re- garding women’s rights, since most cultures endorse and permit control over women by men. Also, multiculturalism would pose a challenge to the liberal notion of nation-state, i.e. it may lead to cessationist movements like the ones in Kashmir and the North-East in India, Tamils in Sri Lanka, etc. Either way, the apprehensions are well founded and deserve serious consideration. We need to examine whether communities should be given special rights to preserve their culture. Should they have the right to protect all prevalent practices? Are all existing practices crucial for preserving a particular way of life? Should there be some minimum conditions that all cultures must adhere to? These are important questions that need to be analysed further within the framework of multiculturalism—in this regard it is important to consider the issue of intra-group equality, too. Multiculturalism has raised important questions about the status of minorities within the nation-state. They have revealed the other side of the so-called neutral politics of liberal democracies as being biased against minorities. Above all, it has compelled the liberal democracies to analyse the implications of their socio-cultural policies, to see if they discriminate against minorities. Multiculturalism, like postmodernism, has raised questions about universals. It has raised a finger on one standard, i.e. Anglo-American conception of rights, justice, equality, good life, value system and meanings. Multiculturalists say that a society with strong collective goals can be liberal, provided it is also capable of respecting diversity, especially when dealing with those who do not share its common goals, and also offer adequate safeguards for fundamental rights. There will undoubtedly be tensions and difficulties in pursuing such goals, but such a pursuit is not impossible. The sense of multiculturalism as it is debated today has a lot to do with the imposition of some cultures on others, what they intend to fight is forced assimilation. As Bhikhu Parekh (2000) asserts, in multicultural societies, cultural communities gen- erally demand various kinds of rights they think they need to maintain their collective Bhargava~06_Chapter_06.indd 101 3/29/2008 2:34:26 PM Process Black  102 POLITICAL THEORY: AN INTRODUCTION identity. Some of these rights, usually called group, collective, or communal, are not easy to accommodate within liberal jurisprudence and raise difficult questions such as whether the concept of collective rights is logically coherent and what kind of collectivities may legitimately claim what kinds of rights. Just as individual rights are those rights of which the individuals are the bearers, collective rights are those of which human collectivities are the bearers. Human collectivities are of several kinds, ranging from groups united by transient or long-term common interests to historical communities based on a shared way of life. The Feminist Challenge According to feminists, justice should be understood from a ‘group’ perspective, as groups or communities play a crucial role in shaping one’s perspectives on justice. Feminists be- lieve that social or political systems based on the individual perspective of justice are highly biased because they are shaped by the dominant individual male and not by women or other marginalized groups. Thus, such political and social systems of domination, such as that of men over women or of the privileged over marginalized groups, can distort society so severely that none of the theories of justice will prove acceptable unless these systems of oppression are overturned. The feminists argue that if women live in a society where they are not allowed to hold certain forms of property or vote or engage in certain occupations, then merely distributing resources in some kind of ‘equal’ fashion will not be enough to se- cure justice. Greater resources do not solve or ameliorate the fact that in such a society women are partially mastered. Susan Moller Okin’s Justice, Gender and the Family (1989) offers both a critique and a re- construction of Rawls’ original position as an analytic tool used to define workable standards of justice for liberal democratic societies. She says that Rawls’ own characterization of the original position, despite its occasional claims to gender neutrality, in fact contains many implicit assumptions that would tend to reinforce the current inequality of women in the gendered structure of social institutions. Rawls’ characterization of parties to the original positions as heads of families and as member of the paid workforce suggests an implicit assumption that the parties are the male heads of relatively traditional families. Okin argues that the social structure of gender relations and the nature of family certainly raise issues of justice. In a society where domestic labour is performed mainly by women, women’s in- equality in other spheres is virtually assured. The equal value of political liberties is out of reach in a gender-structured society, because involvement is time consuming and women who bear responsibilities for domestic labour have little time for political activities as it imposes the constraint of a ‘double workday’ on them. Finally, the most important argument is that the primary goods for the social basis of self-esteem are less sure for girls than for boys. The consequences, Okin (1987: 107) contends, is that ‘in a gender-structured society there is such a thing as the distant standpoint of women and … this standpoint cannot Bhargava~06_Chapter_06.indd 102 3/29/2008 2:34:26 PM Process Black  RIGHTS 103 be adequately taken into account by male philosophers’, whose moral reasoning abstracts from gender altogether. Iris Marion Young (1989: 258) in her widely cited article argues that ‘the ideal of universal citizenship’ contains three meanings of universality: The first—universality as inclusion of all in full citizenship status and in participation in public life—this stands in tension with the other two meanings of universality, i.e. universality as a focus on the common good, defined in terms of what citizens share rather than what divides them; and universality as equal treatment, defined as same treatment without regard to group differences. Young says that a genuine commitment to universality in the first sense will require a conception of differentiated citizenship both with respect to deliberation about the common good and with respect to the allocation of rights. Young’s critique is aimed directly at the republican tradition. She acknowledges that contemporary republicans emphasize on what citizens have in common.This undermines the differences between groups. Different social groups have different needs, cultures, histories, experiences and perceptions of social relations, which influence their interpretation of the meanings and consequences of policy proposals, and the form of their political reasoning. These differences in political interpretation are not merely or even primarily a result of differing or conflicting interests because groups have differing interpretations even when they seek to promote justice, and not merely their own self-regarding ends. Thus, a genuine commitment to the inclusion of all in public deliber- ation requires that differences be not suppressed but acknowledged and respected. The best way to do this is to establish special forms of representation for disadvantaged groups that ensure that these groups have the resources needed to organize themselves, and their perspectives are seriously considered in public decisions. The attempt to realize an ideal of universal citizenship that finds the public embodying generality as opposed to particularity, commonness versus difference, will tend to exclude or put at a disadvantage some groups even when formally they have an equal citizenship status. The idea of the public as universal and the concomitant identification of particularity with privacy make homogeneity a requirement of public participation. All citizens should assume the same impartial general point of view. Young criticizes the view of universal citi- zenship on the grounds that societies have certain privileged groups and some oppressed groups, and in such a situation to leave behind particular affiliations and to adopt a general point of view would mean that the interests of the privileged will dominate. Thus, instead of a universal citizenship in the sense of this generality, Young proposes ‘a group differentiated citizenship’ and a heterogeneous public. A liberal theory can accept special rights for a minority culture against the larger commu- nity so as to ensure equality of circumstances between them. But it will not justify special rights for a culture against its own members. Liberals are committed to supporting the right of individuals to decide for themselves which aspects of their cultural heritage are worthy passing on. Liberalism is committed to the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance. Bhargava~06_Chapter_06.indd 103 3/29/2008 2:34:26 PM Process Black  104 POLITICAL THEORY: AN INTRODUCTION CONCLUSION To sum up this discussion, there is no intrinsic reason to assign rights to individuals alone, for if individuals are incomplete without the cultural resources that communities provide them, individual rights are incomplete without community rights. But we cannot buy peace be- tween the communities at the expense of individuals. Thus, we need to think of community rights as conditional rights. But these cultural rights should not override the core rights, i.e. the right to life, freedom, equality, and the right to assert rights. Points for Discussion 1. A person is terminally ill, and is suffering from pain. There is no chance of recovery at any cost. Should the person have the right to die? 2. Do smokers have a moral obligation towards non-smokers to not smoke in public places even if it is not illegal to do so? 3. Two adults decide to get married against the wishes of their communities. Should they be allowed? In this situation which rights, i.e. individual or group rights should prevail? 4. Does the unborn child have rights? Reading List Burns, T. H. and H. L. A. Hart (eds), Jeremy Bentham: An Introduction to the Principles of Morals and Legislation (London: Athlone Press, 1970). Daniels, Norman, Reading Rawls (New York: Basic Books, 1975). Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977). ———, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985). Chandoke, Neera, Beyond Secularism: The Rights of Religious Minorities (New Delhi: Oxford University Press, 1999). Gilligan, Carol, ‘In a Different Voice’, in Sandra Kemp and Judith Squires (eds), Feminism (Oxford, New York: Oxford University Press, 1997). Hampton, Jean, Political Philosophy: An Introduction (Delhi: Oxford University Press, 1993). Hartney, Michael, ‘Some Confusions Concerning Collective Rights’, Canadian Journal of Jurisprudence, 4(2), 1991: 293–314. Hinman, Lawrence M., Ethics: A Pluralistic Approach to Moral Theory (Fort Worth: Harcourt, Brace, 1997). Hobbes, Thomas, Leviathan (Oxford: Basil Blackwell, 1946), complete e-text available at http://ebooks. adelaide.edu.au/h/hobbes/thomas/h68l/ Kymlicka, Will, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989a). ———, ‘Liberal Individualism and Liberal Neutrality’, Ethics, 99, 1989b: 883–905. ———, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon, 1995). Mill, John Stuart, ‘Utilitarianism’, in H. B. Acton (ed.), Utilitarianism, Liberty and Representative Gov- ernment (New York: E. P. Dutton, 1972). Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974). Bhargava~06_Chapter_06.indd 104 3/29/2008 2:34:26 PM Process Black  RIGHTS 105 Okin, Susan Moller, ‘Justice and Gender’, Philosophy and Public Affairs, 16(1), 1987: 42–72. ———, Justice, Gender and the Family (New York: Basic Books, 1989). Parekh, Bhikhu, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Basingstoke: Macmillan, 2000). Pogge, T., ‘The International Significance of Human Rights’, Journal of Ethics, 4, 2000: 45–69. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). Raz, Joseph, ‘Multiculturalism: A Liberal Perspective’, in his Ethics in Public Domain: Essays in the Morality of Law and Politics (rev. ed.) (Oxford: Oxford University Press, 1995). Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). Sheth, D. L. and Gurpreet Mahajan (ed.), Minority Identities and the Nation-State (New Delhi: Oxford University Press, 1999). Walzer, Michael, Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Blackwell, 1983). Young, Iris Marion, ‘Politics and Group Difference: A Critique of the Ideal of Universal Citizenship’, Ethics, 99, 1989: 250–74. ———, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990). Bhargava~06_Chapter_06.indd 105 3/29/2008 2:34:26 PM Process Black