The Basis of Rights

.............................Robert Bass

What is the basis of rights? Or, what is the best understanding of the basis of rights? What is the value which they protect or safeguard or promote?¹

In order to keep matters manageable, I shall assume that the rights in question are general, human liberty-rights. I shall take the person who possesses a liberty-right to have a range of options among which to choose.² To say that he has a liberty-right with respect to that range of options is to say that he may (in some sense) choose any of them and that some other has (or others have) a duty to him (at least)³ not to prevent him from choosing among those options.⁴

So, with these restrictions, how is the basis for rights⁵ best understood? I shall consider three proposals -- that the basis is best understood in terms of the value of liberty, in terms of good consequences, and in terms of autonomy.



I. Liberty

Is liberty the value protected, promoted or secured by social practices and institutions embodying a respect for rights?

Two rather different things could be understood by this. In the first place, liberty might be a value protected by rights-respecting institutions but itself only instrumental to some further value. Alternatively, it might be valued for its own sake but only because it is in part constitutive of some further value.⁶ If either of these is the case, I think it would be appropriate to say that the real value which justifies or supports rights-respecting practices and institutions is that further value rather than liberty itself.

The second interpretation is more interesting. Liberty might be a final or ultimate value, worth seeking for its own sake and not because of its contribution to anything else. This is tantalizing, but unconvincing. I do not know of any way of proving it mistaken, but I also do not know of any argument in its favor. Its appeal seems to rest entirely upon an intuition that I do not share.⁷

Nonetheless, some considerations can be urged against it. In the first place, it seems to secure very little towards working out a theory of rights. It leaves no room for distinguishing in its own terms -- as surely we should distinguish -- between more and less important options (or between more or less serious limitations upon the set of options). Any distinction between the importance of, say, freedom of religion and the freedom to mug passersby in dark alleys will have to be made on other grounds. As instances of liberty to choose among a range of options, they are on a par.⁸

Second, in cases in which two sets of options cannot both be protected, it seems that the greater importance of protecting one option over that of protecting the other is often to be cashed out, at least in part, in terms of rights. When, for example, one considers the option on the part of pedestrians to travel unmolested to their destinations as compared to the option of muggers to interfere with such travel, at least part of the reason for thinking it more important to make available or to protect the former option is that pedestrians (normally) have a right to unmolested travel while muggers do not have a right to interfere. But if that is so, then some of the distinctions we make between the importance of options depend on the rights we ascribe. Hence, it can't be the case that the rights we ascribe depend solely upon the value of having options. (It might be that it depends, in some way, on the value of the options where that is understood to be a value that some options have by virtue of their content rather than by virtue of being options.)

There is a third consideration of which I am less confident. On the view that it is the value of liberty for its own sake that grounds rights, then there is some value whenever an option is available that would be absent if that option were eliminated by human action. But it seems that there are some cases in which the elimination of an option is no loss at all -- not even a loss over-ridden by other considerations. Consider, for example, some technological advance -- a cheap chemical spray, perhaps -- which (without off-setting costs or dangers) renders rape impossible. I am inclined to say that the loss of the option of rape represents no loss at all, not just that the value of the lost option is swamped by the value of the increased safety of women.



II. Good Consequences

Should we understand rights or rights-protecting institutions and practices as being grounded in good consequences to which they give rise?

There is something odd about this question. Liberty-rights protect choice from among a range of options. But unless we want to say that they only protect trivial options -- where there is little or no difference in the goodness of the consequences to which their selection leads -- then rights will protect the freedom of people to choose badly (at least as a consequentialist sees badness of choice). So, it might seem that a consequentialist couldn't endorse liberty-rights ranging over non-trivial ranges of options. Such rights would, at least sometimes, result in allowing -- officially protecting in fact -- bad choices. Why allow them? On the other hand, it seems implausible that rights would be an important part of our moral and political discourse or practices if they only ranged over trivial options. It hardly seems as if there would be a need to officially protect options if the outcomes would be much the same whatever was chosen. (Who would be interested in interfering with such choices? Who cares whether I put on my left or right shoe first?)

I think this shows that you can't be an act-consequentialist and a supporter of rights but not that some rule- or indirect consequentialism cannot provide support for liberty rights. The crucial points are two: First, there can be systemic features of a system in which some options that lead to bad consequences are left available that result in greater overall gains than when those options are ruled out. Or, the sum of a set of maximizing operations need not be a maximal sum. Second, the outsider's perspective that is appealed to when we speak of allowing or not allowing a bad choice may be one from which important local knowledge -- knowledge possessed by particular people in their situations -- is excluded. Someone in a situation may know that a choice that appears bad from the outsider's perspective is not in fact bad because of information unavailable to the outsider. The knowledge needed to make wise decisions is distributed, not concentrated.

In general, though much more would need to be said than can be supplied here, I think that this type of consequentialist defense can be carried through. Considering a full context -- including the knowledge-limitations of outsiders and what, if anything, can be done to remedy them (and what the consequences of such remedies would be) -- better consequences can be expected to flow from a system in which significant, non-trivial liberty rights are respected than from its feasible alternatives.⁹

I think this is true -- but is it enough? There's a source of disquiet here that is not easy to articulate associated with Rawls's evocative phrasing to the effect that utilitarianism (or other forms of consequentialism) ignores the separateness of persons. Persons turn out just to be loci of value-production and transmission, not important except as they function as such loci. The consequentialist may get "the right answers", but it is hard to avoid the suspicion that he gets them for the wrong reasons. He decides what the appropriate assignment of rights is by estimating aggregate costs and benefits, but one wonders if there is not perhaps a thumb on the scales. To put it differently, the consequentialist may make use of intuitions about the importance of respect for persons that he shares with non-consequentialists in estimating the costs and benefits rather than working out a consequentialist determination solely upon the premises allowed by his own theory.

In the end, my conjecture is that the consequentialist can adequately answer this, but that can only be done through something too lengthy to be pursued here -- a detailed consideration of cases and arguments in which it is alleged that he has inappropriately estimated costs and benefits. However, there is another more interesting tack. Suppose that the consequentialist approach and that of those who emphasize a more Kantian respect for persons do converge with respect to their conclusions about the correct assignment of rights. If they do, there is no reason that one of them must be simply or straightforwardly mistaken. They may simply be approaches to the same destination from different directions. If this is actually a correct mapping of the moral-political landscape, it is worth spending some time exploring what the other approach (or one of the other approaches) might look like.



III. Autonomy

One way of expressing the sorts of considerations that the consequentialist is alleged to omit insofar as they can be understood as a basis for rights is that the morally appropriate concern involves a respect for autonomy. There is something morally important about a person directing his own life, choosing his own projects, succeeding or failing in his own terms. It is because of this importance, not because (or not just because) it leads to good consequences that people's liberty with respect to non-trivial options should be protected.

There are several approaches to defending a view of this type and I will sketch only one that, I think, will be at the core of most defensible approaches.¹⁰ Suppose that there is some identifiable human good in the sense of a set of virtues, dispositions, projects and goals characteristic of a good life.¹¹ Such an assumption does not lead, in a straightforward way, to rights. The argument can be made that if such a good is identifiable to third parties, then those third parties ought to impose the right choices and training to insure that the good is realized.

However, such an argument can be blocked if it is internal to the good to be realized that it be freely chosen or accepted.¹² And, in at least many cases, this seems quite plausible. I do not exhibit the virtue of honesty by telling the truth under the influence of sodium pentothal or when threatened with torture. I exhibit the virtue of honesty by being truthful without being compelled or even when it might hinder the achievement of other objectives I have.

It is still more plausible when applied to the larger-scale projects that integrate large tracts of a life. Devotion to a demanding career, faithfulness to a mate, steadfast support of a worthy cause are morally valuable traits that do not exist if they are not freely chosen or accepted.

If this is so, then there is a basis for defense of liberty-rights that is not simply consequentialist. Namely, there is moral value to be achieved which will not be possible if relevant liberties are unrespected. The person whose choice or acceptance of a good is to be respected is not simply a causally important contributor of good consequences to some aggregation.



IV. Conclusion

I have said something earlier as to how it might be the case that both consequentialist arguments and appeals to autonomy converge on a single conclusion with respect to the correct assignment of rights. I think that this is not just a logical possibility, but an important feature of the case for rights. It is difficult to avoid thinking that both autonomy and good consequences are important. Consequentialists are uncomfortable when hypothetical (or real!) cases are presented in which good consequences seem to require the imposition of penalties on innocents. Kantians try to build in escape-clauses to deal with emergency situations in which it appears that respect for a favored list of rights will be disastrous. The appeal of both moral concerns runs deep.

I think the appropriate response is not to regard one of these as an illusion which would somehow be dispelled by a deeper understanding, but to take both seriously. That this is possible should not be especially surprising if those conclusions about rights are really correct. The reason that it is possible, as the saying goes, for all roads to lead to Rome is that Rome is really there.

¹ I don't mean to be suggesting that that value, whatever it is, has to be extrinsically related to the rights that protect it so that the right is a "mere means" to that value as an end. It may or may not be; that's a further question. The only thing I'd rule out at this point is that there is no value that rights protect. I would take that to mean that there are no rights or that there is no reason to recognize or respect rights.

² I am not claiming that one can only have a liberty-right if there is such a range of options. I am only trying to delimit the issue I'm addressing. Whether it makes sense to say that someone has a liberty-right to perform an action, A, but not to perform any alternative to A is a separate question.

³ Many have argued, of course, that in at least some cases, there is correlative to a liberty-right some duty to insure that the relevant range of options is available to the possessor of the liberty-right. For one version of such an argument, see Lesley A. Jacobs, "Rights and Deprivation: The Development Model" in Rights and Deprivation (Oxford: Clarendon, 1993), pp. 141-189.

⁴ A further and quite difficult question is: What counts as preventing a person from choosing one among a set of options? Somehow, this needs to be construed so that employing good reasons to persuade someone not to perform an action does not count as such a case.

⁵ Hereafter, I shall simply refer to "rights" rather than to "general, human liberty-rights".

⁶ Is the "but only" appropriate here? Perhaps it would be better to say that it is valued for its own sake and as constitutive of some further value. The question that then confronts us is whether it would have been valued for its own sake if it had not been partially constitutive of some further value. If it would not have been, then the "but only" locution is appropriate. If it would have been, then it may be that rights are based both on the value of liberty and on the further value.

⁷ I suspect that the intuition is based in part on the fact that liberty is, in Stevenson's sense, a focal aim, something important at least in part because of its aptness for a variety of goals, no one of which has to be greatly important by itself. See Ethics and Language (New Haven: Yale University Press, 1944), pp. 179f. Thus, there may be no common goal in all of the cases in which liberty is valuable. If my speculation is correct, the fact that there is no other single value always associated with liberty is then taken to mean that liberty is valued only for its own sake.

⁸ It might be replied that such cases can be distinguished, only appealing to the value of liberty, by considering the fact that the mugger restricts the liberty of others while the heterodox worshipper normally does not. I don't think this reply works. Consider the case of the single-shot mugger who is only interested in committing a single mugging. Then, to make the claim that the mugger should be restricted seems to assume that it is more important to protect the liberty of a passerby than to protect the liberty of a mugger -- and, ex hypothesi, that it is not more important in terms of liberty.

⁹ I have tried to make that case at greater length in Rights and Consequences: Liberty and the General Welfare.

¹⁰ I think that skeptical or relativist approaches -- which claim either that there is no such thing as one sort of life being better than another or that we could not know which was better if one were -- are not defensible. It seems to me that among the defensible approaches are those that refer to value-pluralism and incommensurability but that these do not raise special issues for the type of basis for rights that I will discuss.

¹¹ This might be something which is good for all humans, something that is good relative to the capacities, powers and opportunities of particular individuals or some abstract characterization of what individualized goods have in common. For the purposes of argument, I don't mean to be assuming the superiority of one of these versions over the others.

¹² By using this locution, I mean to avoid discussion of how conscious or deliberate the "choice" involved is. There is moral excellence that can be achieved in, say, a loving relationship, but a person does not consciously or deliberately choose to be in love.

Comments? I'd love to hear!