This paper argues that notions cannot do the work of concepts and that if, as is the case with “rights”, political philosophy fails to transform the broad notion into a more precise concept, confusion and the risk of mischief result. An attempt will be made to formulate a concept of liberty and a concept of rights, showing that they are distinct, ascertainable, and in rivalry with each other.
Notions and concepts
Real-life phenomena, particularly such complex ones as social relations and states of affairs, can only be fully described by specifying all their indenumerable characteristics, – a tedious and unnecessary task. For everyday purposes, it is usually good enough to state the handful of characteristics that seem typical and relevant. A notion is intended to stand for such a handful of characteristics. The descriptive content it can provide is obviously incomplete and indeed defective, if not downright misleading. Thus, we refer to political arrangements where certain alternatives are chosen by vote-counting as “democratic”, though on a closer look some of these arrangements would not fit into a strict concept of democracy. Notions have shifting boundaries, may overlap with others, and can have several mutually inconsistent meanings.
None of these defects are grave as long as notions are kept in their place. Their place is in ordinary, informal speech not intended for the adjudication of serious disputes, doctrinal debate or rule-making. In everyday situations, the very “fuzziness” of the notion is a safeguard against needless pedantry, carries no important consequence and can be readily forgiven.
The indulgence we may show toward loose notions, however, is quite out of place where rigorous reasoning is called for. In the natural sciences, a remedy is provided by a relatively simple shift from such notions as “hot” or “heavy” to the corresponding concepts “temperature” or “weight”. It is possible honestly to disagree about perceptions of heaviness, but not about measured weight. Measurability provides the test that the notion is successfully transformed into a concept.
The same easy test is seldom available in the social sciences, and the passage from notion to concept is a more tentative enterprise. Ambiguity and subjectivity can always threaten it. Lest they should overwhelm it, a concept should have a maximum of hard, ascertainable content, such that no bona file disagreement about it can persist for long. Wholly subjective, matter-of-opinion content should be minimized.
While notions are the product of spontaneous linguistic evolution, concepts are derived by conscious effort. However, the effort is usually aimed at the construction of a theory; the concept is a by-product that fits into it. Straightforward theories will generate straightforward concepts. By the same token, implausible or logically faulty theories will be found to incorporate confused or self-contradictory appeals to notions that fall short of being genuine concepts.
A successful and a failed transformation
Citing one clear example of success, and one of failure, in transforming notions into concepts may prove helpful in understanding the problem of conceptualizing rights.
The notion of “market” is evidently a very imprecise and vague reference to a type of economic arrangement. It purports to denote a vast range of dissimilar activities ranging from small-scale, individually bargained exchanges in the village square to worldwide commodity trading. Moreover, its subjective component is strong and often controversial. For some, it is a mechanism of efficient allocation, for others an instrument enabling the strong to exploit the weak; for some, the market is order, for others it is chaos. Economics has developed theories of perfect and imperfect competition, comparative advantage, partial and general equilibrium, parametric and strategic interactions and a host of others which, singly or jointly, define what a market does or does not do. Its defining characteristics can be fairly clearly identified. The passage from notion to concept is successful.
Take, by way of contrast, the notion of “justice”. In ordinary parlance, we employ the same notion to refer to at least three different types of relation between acts and their consequences. In type (a), a worker does an honest day’s work, but the employer on some flimsy pretext refuses to pay him the agreed wage. An unjust act has been committed, and we speak of the consequence as an injustice. In type (b), the wicked employer gets away with it, there is no act of retribution nor of redress. The lack of these just consequences is thought of’ as unjust. In type (c), a worker does an honest day’s work, he does get the agreed wage, but thanks to a slatternly, alcoholic wife and bone-lazy parasitic children, and through no fault of his own, he has a life of misery. Ill luck keeps pursuing him, lightning strikes his house, and through no fault of his own, he finds himself without a roof over his head. His misfortunes are unjust, for he did nothing wrong to deserve them. Alternatively, a man inherits a phenomenal fortune or makes one by riding the crest of some business wave. Through no merit of his own, (or through merit that is too little to justify the vast consequence) he is now incomparably richer than his fellows, and that, too, is usually referred to as unjust. Note that in types (a) and (b), the injustice is the consequence of an unjust act or the unjust omission of an act. But no unjust act or omission figures in the type (c) relation. Notionally, a person may suffer an injustice through no fault of his own nor of anyone else. No act, just sheer bad luck has done it to him. No merit of his own, or at any rate insufficient merit, has caused the inordinate benefit. Types (a) and (b) are relations from acts to consequences. Type (c) is a relation from good luck/bad luck to consequences. The notion is heterogeneous and we may well suspect it of serious inconsistencies.
How is this notion transformed into a concept? One possibility is to decide that justice is one thing and bad luck quite another. There may or may not be good grounds for attenuating the consequences of bad luck and curtailing those of good luck, but they lie outside a concept of justice that hinges on responsibility for acts clearly defined as unjust.
The other possibility is to follow the notion all the way. This was the route chosen by the theory of justice that used to have an astonishing grip upon political philosophy in the last third of the 20th century and is only slowly losing its dominance. In this theory, a person’s natural endowments of’ talent, brains and strength of character are morally undeserved; he has them through no merit of his own, and if he has less of them than some others, this has come abut through no fault of his own. Since the consequences of greater or lesser natural endowments, i.e. greater or lesser-than average benefits, are “nobody’s fault” and nobody’s deserts, they are unjust. (The theory escapes trivial egalitarianism by allowing that differences in benefits that work to the ac vantage of the least fortunate are not unjust). The resulting concept c justice is defective, for it assimilates unjust acts and plain bad luck This is a conceptual mistake, which becomes apparent if we consider the link between unjust acts and retribution. Unjust acts and bad luck both cause injustice, injustice calls for retribution, but retribution can not be meted out to bad luck. The inconsistency is a symptom suggesting that the theory has failed to transform the notion of justice into a properly functioning concept. The suspicion is confirmed when we consider other inconsistencies that luck under the surface of the theory. Agreements must be kept and breaking them is an unjust act. Thee almost no conceivable restrictions upon the freedom of contract could prevent a system of voluntary agreements from generating differential benefits, an unequal distribution of rewards and burdens. The “background institutions of a just society” must both enforce voluntary agreements and undo their consequences, i.e. the inequalities they continuously generate. It is a puzzle what those “background institutions” might be, and how they could reconcile doing one thing and its opposite.
1. LIBERTIES AS DISTINCT FROM RIGHTS
Partly as a reaction against utilitarianism and the difficult, yet ultimately barren mental contortions its modern versions impose on the student, and partly in conformity with the Zeitgeist that is always ready generously to accord, and always reluctant to deny, the good things people may reasonably wish to have if the cost of doing so is not clearly apparent, “rights” now occupy the centre ground of moral and political philosophy. Such dicta as “people have rights” and “rights are trumps” have become mantras, and “human rights” the ultimate in moral axioms. The notion of “rights” appears to cover nothing less than all acts that people ought to be able to perform, all acts that ought to be performed in their favour in order to promote their important interests as well as all immunities from acts that would harm these important interests. The notion floats between the impractical and the absurd. For serious discourse, it must be tightened up and indeed transformed into a proper concept.
One reason for the almost uniform failure of rights theories to achieve this transformation seems to me to have been the lack of recognition that liberties are not rights and rights are not liberties. The two cannot fit into the same concept and still make sense. A straight forward theory of freedom should illuminate the distinction, as well as perhaps being helpful in its own right.
Feasibility and free acts
In what follows, I shall use liberty and freedom interchangeably. Moreover, I will give prominence to the “micro” idea of liberties or free acts, taken individually, over the “macro” idea of liberty on freedom taken at large, which should be able to take care of itself if “micro” freedoms are taken care of. Freedom in the “macro” sense has to my knowledge never been successfully defined, such attempts as “absence of constraints”, “minimum coercion”, “minimum necessary coercion” or “no subjection to the arbitrary will of another” being glaringly defective and capable of being twisted in many directions almost at will.
I propose to define a person’s freedoms as acts he can perform without violating a particular rule system. These are his free acts. The starting point in the analysis of a free act must be feasibility. I will treat the set of an individual’s feasible acts as a datum. Expansion of the feasible set may well increase the range of his freedoms, but such changes are mostly changes in wealth and knowledge, to be accounted for as such. Confusing resources and freedoms is, in fact, one of the sources of the opaque state of the relevant theories.
For an isolated individual, – Robinson Crusoe before he learnt of the presence of Friday on his island – every feasible act is a free act; feasible and free are simple synonyms. In society, however, one person’s feasible acts may clash with those of another. The clash may be a negative externality of greater or lesser severity or the deliberate inflicting of some harm, and there is no reason why both of the clashing acts should remain free. Depending on the nature and severity of the clash of two acts, one or both may become “unfreedoms”, acts that could but must not be performed. How and why unfreedoms are selected by the rise of a rule system, breaking down the feasible set into a subset of free and a complement of unfree, inadmissible acts, wrongs is what a theory of freedom must explain.
Compatible and incompatible acts
It has occasionally been believed that the sorting of acts into a free and an unfree category hinges on symmetry. A given act of mine is free if it is compatible with the performance of an identical (closely similar, analogous) act by all others with whom I may happen to interact. Kant, in the spirit of his universalizability principle, expressed this idea, though he spoke not of freedom, but of lawfulness. He declared a course of action to be lawful if it was compatible with the same course of action being taken by everyone else. More recently, and stated rather less rigorously, the first principle of justice was enunciated as the greatest possible freedom for everyone compatible with the same for everyone else.
However, the compatibility of symmetrical acts would guide the selection toward very strange results. Since my setting your house on fire is perfectly compatible with your setting my house on fire, both would pass as “lawful”, i.e. free, and this would hold good for everybody setting fire on someone’s house, at least as long as there were any houses left to burn down. On the other hand, my harvesting the crop from my property is not compatible with your harvesting it from my property, but where may you harvest if you own no property? – a conundrum that casts doubt both on the symmetry we require in compatible acts and, more seriously, the freedom of ownership. The latter is in fact challenged on this very ground by some philosophers.
If compatibility can produce silly results, incompatibility is bound to do so too, if it is formulated as a sufficient condition of unfreedom in the same way as compatibility is held out as a sufficient condition of freedom. However, some sensible results can be gleaned from both. Suppose that a stretch of pavement in a busy street can be used for passers-by to walk on and for hippies to camp on. The two acts are incompatible, but that would of course be a silly reason for classing both of them as unfree. The sensible result is to ban one to save the other. Allowing the hippies to camp pre-empts the use of the pavement, rendering other uses inordinately awkward or impossible. If, on the other hand, camping by the hippies is made unfree and walking free, the walking by one pedestrian pre-empts nothing, for the pavement permits many other pedestrians to pass (and, to make the story end well, by nightfall even the hippies may be given the freedom to camp there).
So far, all we know is that we do not really know what principles do, or ought to, govern the division of feasible acts into free and unfree ones. Pre-emption may give a hint, but that is not a principle, it is at best the fragment of one. A different case of pair wise incompatibility may provide a stronger hint. Suppose that two strangers, John and Jane, board a bus where only one empty Beat is left. This situation amounts to a two-by-two “game” with four solutions. Two are equilibria: either Jane sits and John stands, or John sits and Jane stands, and neither can improve his position without the other worsening hers. The third solution is that both remain standing, fearing a dispute or being taken for ill-bred, selfish louts. The fourth solution is that both try to sit down, Jane scratches out John’s eye and he pulls out her hair. The two best solutions are the two equilibria, but they may be difficult to reach if neither wants to stand when the other is sitting so comfortably. To prevent the two bad solutions, it must become unfree for either John or Jane to take the only seat so that the other can sit on it without incurring blame. There are several potential rules for deciding who shall sit and who shall stand; the infirm, the elderly, the pregnant, the woman may get varying degrees of priority, and fading a clear priority, the wide-ranging and rock-bottom rule of first come, first served would apply. With this solution, we have landed in the world of conventions. We shall stay in this world throughout the rest of our argument about liberties.
Rules for selecting unfreedoms
The division of feasible acts into free and unfree ones is unlikely to be ad hoc. Even if it were or appeared to be, it would be theory’s job to search for regularities, for some kind of comprehensible rule system that can be imputed to it. In fact, the division is obviously not ad hoc. The traces of several rule systems can be clearly been in the prohibitions that in effect make certain acts socially inadmissible and leave others admissible, free. In the positivist spirit all are valid if they are effectively obeyed. However, a theory of liberty would miss its whole point if it simply accepted each of these rule systems, and every mix between them, as a datum exogenous to the theory and indifferent, neutral to liberty. The popular notion of freedom focuses almost entirely on the “density” of the rule system, vaguely suggesting that the more extensive. invasive and detailed the rule system and the more acts it prohibits or regulates, the greater is “coercion” and the lesser is freedom. While this suggestion hardly stands up to close analysis, it contains a large gram of common sense that is worth pursuing. It is not sure that being “for liberty” is simply, or even mainly, a matter of being against the proliferation of rules, though the friend of liberty is unlikely to be very far wrong if he opts for fewer rather than more rules. However, on reflection we will probably find that it is not so much their number that is decisive, but the manner of their adoption and of course their specific content.
I propose to divide rules into two great classes, conventions and laws. Conventions emerge spontaneously in social practice. They have no authors and spring from no one’s authority; they are not expressions of some identifiable will. Laws are given, pronounced, written by the lawgiver in accordance with a rule for rule-making. Let us briefly consider each.
Take the dinner guest who belches at table and is rude to the hostess. He will not be invited again to her house, but for a while he may still be invited elsewhere/However, as he is rude to the other hostesses, too, he will soon have no one’s table to belch at. Guests who are not rude go on being invited. There emerges one of the conventions of civility, an implicit promise of proper behaviour and a reciprocal expectation that the promise will in most cases be kept, while its breach will be sanctioned. Take, to contemplate a more weighty convention, two pre-social strangers who meet in a wilderness the lacks rules. The first mover has the choice to kill the second mover, or to let him live and try to initiate some helpful relation, some mutually advantageous exchange of goods or labour. The second mover, if he left alive, has the same choice. To kill carries the risk of revenge by the victim’s kin, but gives the killer the chance of taking the victim’s possessions. To spare each other gives each the chance to draw benefits from cooperation, trade, and division of labour. The balance of advantage is the more strongly in favour of each letting the other live, the more frequently they are likely to meet again, the more likely they are to meet Bach other’s kin, and the more fruitfully they can cooperate given their resources and endowments. With luck, this pair strangers will hit upon cooperation as the equilibrium solution of the: “game” and with some further luck, they will both prosper and grow rich. Though the process is not without hazards and setbacks, the historically observable end result is that more and more pairs adopt the cooperative solution until a reciprocal expectation of peaceful conduct is established and a convention against killing emerges. This convention is a member of the vast class of conventions against torts, which protect life, limb and property and whose emergence follows much the same logic of reciprocal benefit. The primary sanction of breaching the convention is that the killer is killed, because (like the rude guest who is no longer invited to dinner) he is “outlawed” and no longer benefit Prom the convention, and is in fact endangering its credibility an hence its usefulness. (There are, of course, secondary and more complex enforcing mechanisms as well). Though conventions of civility may be much less important than conventions against torts, they a serve to delimit the admissible from the merely feasible, the unfreedoms from the freedoms, the wrongs from the neutral, admissible. The wrong may be a small wrong, but important enough to engender the convention that relegates it to the class of inadmissible acts.
It is fair to say, however, that while rules that are conventions fulfill the function of specifying wrongs and hence defining freedoms a all the residual, rules that are laws do the same. Why do we hold that there is an essential difference between them, a difference that is relevant to the concept of freedom?
As a first approximation, note that there is no rule for making conventions, but there is a rule-making rule for making laws. “The king’s word is law” is a rule-making rule, “laws shall be made by the elected representatives of adult citizens” is another, and “laws are to conform to the wishes of 50.1 per cent of the voters” is yet another. There is some hard-to-eradicate doubt about why these rules are what they are, and why anyone should regard them as legitimate. The contention that they gain legitimacy by being the product of some other, higher rule for making rule-making rules (and so on to ever higher-order rules) leads to an infinite regress. It is avoided by injecting, at some point, the pleasant fiction that the legitimacy of a given form of rule-making springs from a hypothetical social contract that would have been unanimous if certain conditions had been fulfilled. A (perhaps less naive) alternative is simply to say that the rule-making rule is self-referential, it selects and legitimizes itself. The unsurpassed acuity of David Hume put much the same point when he ascribed civil obedience to the acquiescence of the people in accomplished facts.
Each and every such rule authorizes a collective choice of laws which some want but others may not want. If the king’s word is law, it is law even if all who are not kings disagree with it, and a fortiori if only some disagree. Likewise, if 50.1 per cent of voters prefer a certain kind of legislation, – for instance, one that redistributes income in their favour – the legislation can pass even if as much as 49.9 per cent of voters think it is robbery. However, implicit in the rule of rulemaking (sometimes also called a collective choice rule or constitution) is the rule of submission which requires that the king’s word or the wishes of the bare majority be accepted as law and obeyed by both those who agree with them and those who do not.
The rule of submission demands blind acceptance, given in advance by all non-kings, or by 49.9 per cent of all randomly chosen individuals, that an as yet unknown part of their feasible set be blotted out by the king or the bare majority as inadmissible, unlawful. The rule of submission, requiring all to sign a blank cheque in favour of those who decide what the law shall be, represents a probabilistic loss to the randomly chosen individual, who may find himself outside the decisive set, the king and his council or the majority of voters, – in short, among those who do not make the law but must obey it. (Far worse is the case if he is not randomly chosen. For example, if he is among the richer or more talented part of a population, by obeying the rule of submission he is more likely than not to find himself carrying heavier burdens, and coping with more adverse regulations, than the randomly chosen individual).
In sum, committing oneself to obeying the law whatever shape it takes in the future, provided it is shaped in conformity with the rule of rule-making, is incomparably more exacting than adhering to conventions. One is to the other as agreeing to be led blindfolded is to adopting a behaviour rule that will best further one’s interest given that others adopt the same for the same reason, – a conventional rule that establishes what game theory calls a coordination equilibrium. The significant feature of this conventional rule system is that it is a proper selector of unfreedoms because its origin and manner of adoption are themselves consistent with free choice.
The purported moral sources of rules
Where does this argument leave morals? It is a constantly recurring theme of the philosophy of law and politics that rules are not really chosen, because (at least in a well-ordered polity) the choice is strongly conditioned by antecedent rules or perhaps meta-rules, laws intrinsic to human nature that have been there all along, that are “natural”. Natural law, then, is recognized by introspection and by the consideration of man’s essential nature. Actual law corresponds to natural law and if it does not, it ought to. This is agreeable rhetoric and it satisfies the desire for rules to have moral foundations. However, the grim epistemological truth is that statements about man’s essential nature and his natural rights are neither falsifiable nor verifiable. They are matters of belief, opinion and sentiment, and have no descriptive-ascertainable content. Whether the introduction of such notions as natural law and natural rights is helpful in forming clear concepts or will rather confuse the issues is a question that should find its answer as we go along. At this point, it is sufficient to say that once we recognize the role of conventions in sorting out free acts from unfree ones, we have a firm, clearly ascertainable basis for the concept of freedom. It does not seem to matter very much whether, in addition, we also profess some belief about these conventions conforming to, or expressing, some deeper moral requirement that has to do with human nature and “rights”, – although it is only fair to say that Occam’s razor would make short work of such beliefs.
Why liberties are not rights, and rights are not liberties
Consider two prototypes of relations between persons and acts. In the first prototype, a person can choose to perform a certain act because the act is feasible for him, and is not a wrong (i.e. is not made inadmissible by convention). In the second, a person can choose to require another person to perform a certain act whereupon the other person is obliged to perform it.
The first is a prototype of a freedom, the second the prototype of a right. It is prima facie strange that the two should be confused and that both should sometimes be denoted by the same word.
A freedom relates a person to an act he can perform. This relation is replicated over all persons who are capable of performing the act and whose special circumstances do not furnish some ground for a valid objection against their performing the act. The ground would typically be a negative externality. For instance, while A would be free to drive to work in the morning, B who lives by a school may not be free to drive past it at the time most children are crossing the road. Whether an externality is a valid objection to a liberty is a matter that does not necessarily have a clear resolution. In principle, it is guided by the presumption of liberty that places the burden of proof on the objector. It is possible to deny the presumption of liberty, and some eminent writers have attempted to do so (cf. infra.) Rejection of the presumption of liberty renders the concept of liberty less coherent and difficult to define.
A freedom can only be obstructed, prevented, interfered with by an act that is a wrong. An act whose choice is influenced by acts of persuasion or dissuasion, advertising, indoctrination or hard bargaining – acts that are themselves free, – remains a free act and the responsibility of the actor. It is only wrongs that violate freedom and remove responsibility. For example, free speech can only be obstructed by various forms of gagging, or by threats of sanctions. These are wrongs. However, they are not wrongs because they violate the freedom of speech. They are wrongs because the relevant conventions render gagging and serious threats inadmissible. It is the conventions that represent the firm, ascertainable fact from which we deduce that speech must be free since speaking is not ruled out, but shutting it up is ruled out, by the conventions. Nothing need stop us from asserting that free speech has absolute moral worth, or for that matter that it has instrumental value in the spreading of knowledge. But we do not know that such assertions are true in the same sense as we know that there are rules against violently shutting up or seriously threatening a speaker. It is such knowledge, rather than the imputation of value or “human rights” to various acts, that makes for a firm concept of freedom.
Privilege is like freedom in that it is a relation between a person and an act he can perform, and in whose performance only a wrong can hinder him. However, privilege is not like freedom in that the relation is not replicated over all persons. The essence of privilege is that it is not general, but is enjoyed by a restricted class of persons only. For example, all women may be capable of wearing a long skin, but in certain societies only married women are allowed to do so; it is their privilege. In ordinary speech, but even in the academic literature, we come across statements that there is a (civil, or human) right to some particular freedom or, more sweepingly, to freedom tout court. If such statements are to make any sense, they must be referring to privilege (which only some can have, i.e. those who have a “right” to it), and not to freedom (which all have if the act or acts in question are really free, i.e. offending against no rule). In effect, the use of such expressions as a “right to freedom” both confuses the concept of freedom and seriously endangers its preservation, because it comes perilously close to assimilating freedom to privilege which we do not have eo ipso, but need a right to have it.
Let us now consider more closely the second major person-to-act relations, which involves one person requiring performance of an act and another being obliged to perform it, and which should be distinguished from liberty by the distinct name of “right”. The person entitled to require performance is the rightholder, the person under an obligation to perform is the obligor. The most basic type of right is that created by a reciprocal promise or contract.
The act the obligor must perform is always one that was, prior to his incurring the obligation, a freedom he could choose to perform or not to perform. This is of particular relevance to the form of obligation where the rightholder is entitled to require the obligor not to perform a certain act. If the act was not a freedom, the obligor was not supposed to perform it anyway. It is confusing, and confused, to spec of somebody’s right to require him not to perform it. Following the popular success of the idea of “negative liberty”, it has become fashionable to talk of the equally catchy idea of a “negative right”, which intends to convey that the rightholder has a right that certain things should not be done to him, e.g. that he should not be imprisoned without good cause, or that she should not be raped. But since in all conventional rule systems, imprisonment without good cause and rape are wrongs, to say that I have a “negative right” is to say that I have a right that others should not do me some wrong. However, since the wrong is a wrong, they must not do it regardless of what negative or other “right” is attributed to me. Moreover, they not only must not it to me, they must not do it, full stop. The claim of a “negative right” is not only a abuse of language, but also a – no doubt unintended – insinuation that those who have this negative “right” must not be raped, but those who do not have the right may be.
Yet to protest that this is not so, for all have the negative right (just as all are meant to be free when a “right to freedom” is being claimed, and just as in Alice’s Wonderland all have won the race) is to push the conceptual muddle almost to the point of farce. If all have right to the freedom of speech, all may speak, and if all have a right not to be raped, none must be raped, which is fair enough as far as it goes, but it tells us too little about how it comes about that one may speak but one must not rape. Couching everything, notably some fundamentally different person-act relations, in “rights-talk” is to ignore the reason why different things have different names.
A case in point: property “rights”
Ownership is a relation between a person and all the admissible acts the person can perform in using, or disposing of designated objects of value. The acts in question are admissible if, and because, the owner benefits from the presumption of good title to the object. This, in turn, arises from the fact that challenges to the validity of the title cannot, in general, be falsified, but can only be verified, i.e. that the burden of proof lies upon the challenger, who must found the challenge on a specific ground. Ownership is protected by a broad group of conventional rules of property and contract, that make trespass, theft, extortion, fraud and robbery, as well as default, inadmissible. The relation bears all the hallmarks of a freedom or more precisely a set of freedoms connected with the use and disposition of the property. Increasingly, however, these freedoms are described as property “rights”, i.e, two-person relations. The misuse of the term reflects the general failure to distinguish between freedoms and rights due to the failure to transform these vague notions into clear concepts. The terminological confusion creates dangerous habits of thought. In much of the contemporary literature these freedoms are called “property rights”. They are “assigned” or “allocated”. We are not told who is entitled to “assign” them and why he is so entitled; nor is it elear who should benefit from the “assignment”. “Transactions costs” are supposed to indicate who should own what on efficiency grounds. But most transactions costs are not observable. They are mere inferences from the absence of transactions. As such, they are too elusive to point to efficiency even if efficiency were the proper ground for conferring title to property. The misleading usage that risks to undermine respect fur ownership, is not confined to trendy babble. The law-and-economics school, a strand of serious intellectual discipline, is also often guilty of it. Ironically, the misrepresentation of ownership as a “bundle of rights” makes the freedoms-rights confusion worse confounded. It is not the case that the owner has “rights”. It is the case that he can assume obligations and thus create rights for others. A property right is created when an owner temporarily or permanently abandons one of his freedoms in the use of his property, assuming an obligation to let another person perform the act(s) in question. A simple example is the leasing of land or buildings: the owner assumes an obligation and the tenant acquires a right. Similar rights/obligations are created the by lending of money, the gram of easements, licences, profit-sharing agreements insurance and so forth. These are the genuine property rights. Each such right is created by the surrender of a freedom by the owner. Ownership is the residual that is left after such surrenders. Where the latter are temporary, the rights/obligations are ultimately extinguished and the owner regains the freedoms in question, i.e. he benefits from a “reversion”. One last freedom, the freedom of disposal of the residual equity, cannot be given up without extinguishing the ownership relation altogether. The transfer of the ownership to a new owner, then, is not the creation of a right, but the transfer of a freedom. Note, in conclusion, that the freedom to per form acts of use and disposal of objects of value is, like all freedoms, replicated over all similarly placed persons, i.e. those who are owners. Each, however, is free to use and dispose of certain objects only, namely those he owns. Using and disposing of other objects would break the rules of property and contract insofar as these objects were owned by other owners.
Harm, and the presumption of liberty
The approach to the theory of freedom I am proposing uses the conventional rule system as the foundation of the concept. The main alternative to this approach is the classical liberal theory whose foundation is the well-known harm principle. In brief, the principle states that the only justification for interfering with an individual’s choice of an act is the harm it would cause to others; harmless acts, then, ought to be free.
Before proceeding to show the implications of the harm-based concept, let us recapitulate the rule-based one. Prevailing rules of behaviour divide feasible acts into free, admissible acts (“freedoms”) and inadmissible wrongs (“unfreedoms”). A rule system that generates laws by collective choice is inimical to freedom because of the part played by the rule of submission in such a system. Full compatibility with freedom requires that rules emerge as conventions, in much the same way as equilibrium solutions emerge in games where each player chooses the move that best serves his interest given the anticipated moves of other players. Unlike rule-making by collective choice, no prior undertaking to submit to the will of other players is involved in the emergence of conventional rules. The latter are no less ascertainable facts than written statutes. Their existence and meaning are understood within a tolerable margin of divergence. The statement that act x by individual A is a wrong (because it breaks one of these rules) is both verifiable and falsifiable. Logically, it is indifferent whether we ask the objector to this act to verify that x breaks a rule or whether we ask A to falsify that it does. lf there is nevertheless a reason for placing the burden of proof on the objector, rather than on the actor A, it is a reason of efficiency. The objector has a particular rule in mind; he can point to it and show that x would be a wrong. Placing the burden of proof on A, i.e. to require him to falsify that x is a wrong, would involve him pointing to every known rule one by one and showing that x breaks none of them, – a processus so costly as to be impractical However, cost-avoidance is not a logical necessity that would exclude all possible reasons for choosing the costlier alternative.
Surprising as it may sound, the presumption of liberty where the burden of proof is at Ieast initially always laid on the objector to an act, is not an integral part of the rule-based theory of liberty. Freedom probably thrives better in a climate of favourable presumption, but such presumption is not necessary for the theory to stand up.
A wholly different logical structure underlies the harm-based theory. The structure is open-ended, weak, malleable, twistable duo to the poorly defined notion of “harm”. It covers an immense range of effects, some objective, others subjective or a mixture of both, some ascertainable, others matters of appreciation, sentiment, value judgment with no genuine descriptive content. Moreover, the harmful effect can sometimes be imputed to a particular act, but often enough the causation is debatable, and any responsibility is partial. Finally, the notion of harm has a truly frightening capacity to spread, to expand and multiply. Harms are detected everywhere, both to oneself and to those whose wellbeing and security is deemed to need special attention. A veritable cult of victimhood develops, nourished by the intense financial interest of trial lawyers in litigation to obtain damages for harms, for “rights violations”. The contemporary wave of political correctness, that carries the notion of harm to the most unlikely as well as the most commonplace aspects of human coexistence where stating plain facts is deemed to be offensive, is a telling illustration. To cap it all, the harm principle easily migrates from the realm of commissions to that of omissions; “not helping a person is to harm him”, so that the act of carrying on the ordinary business of life without willingly sharing its fruits with the less fortunate, is a violation of the harm principle as interpreted by many modern liberal thinkers. Violating that principle is to reduce freedom, and since tolerating inequality is to harm others, inequality reduces freedom. Alas, there is nothing in the language and logic of the harm principle to resist the spinning of such proposition.
Faced with this indefinitely extensible notion, the logical status of the statement that act x would be harmful (and should be prohibited or otherwise restrained) is quite different from what it would be in the rule-based theory. Whereas the number of rules is finite and x can be tested against every one of them, the number of harms is non-denumerable or indefinite. The statement that x is harmful is unfalsifiable, for it would taka an indefinitely large number of data-statements to negate it. It may also be unverifiable if the harm the objector has in mind is just an unascertainable matter of opinion. If the harm is specific and ascertainable, the claim may be verifiable. In either event, it is a matter of logical necessity, and not just a question of lesser cost, that the burden of proof should rest on the objector, i.e. that the act should be presumed free unless the contrary is effectively verified.
Classical liberalism, then, must rely on the presumption of liberty as an integral component of its theoretical basis. Giving up the presumption removes such little stuffing as the early utilitarians and Philosophical Radicals have left in it.
Arriving at this conclusion, it is striking to find that an influential strand of current liberal thought explicitly denies the presumption of freedom. There is no such thing, it is alleged, because the claims affirming it are ill founded, and it is an error to employ it in political argument. The invalidity of the presumption is argued in two parts. One part enumerates examples where a presumption has pragmatic usefulness. For instance, in the case of missing persons, the settling of marital or property claims may necessitate the presumption of death. Likewise, certain judicial procedures must be based on the presumption o innocence. However, according to the argument, no such pragmatic advantages attach to the presumption of liberty.
The second part of the attack, considered more important and indeed decisive, accuses the presumption of liberty of being indiscriminate, blind, incapable of ranking liberties according to their moral worth and political significance; since under it, the freedom to eat fourteen different flavours of ice cream (ice cream being the standard object of scorn of many modern liberals as well as socialists) is accorded the same epistemological grace as the freedom of worship or the freedom of speech. This charge, of course, is perfectly true. However to believe that it condemns the presumption of liberty is rather like believing that the equal protection from rain that an umbrella affords to both worthy and unworthy individuals condemns it. It is interesting to note that, apart from relying on such a non sequitur, the condemnation of the presumption of liberty also rests on the confident but unfounded belief that there is a recognized hierarchy of freedoms, with the freedom of expression ranking higher than say the freedom to spend one’s money in general and on ice cream in particular. To believe that there is a complete and unanimous hierarchical ordering of freedoms is astonishing; to believe that the ordering is even half-complete is only a little less so. For someone to claim the superiority of some freedoms over others, a claim based merely on his personal moral judgement, is arrogant and deserves little respect. What it deserves is the greatest critical attention, for this kind of alleged rank ordering is the introductory gambit to the transformation of some freedoms into pseudo “rights” and the relegation oF others to limbo.
The devaluation of liberties
There have been at least two periods in recent history characterized by an ambition solemnly to proclaim that all citizens of the republic, or all human beings, have a certain number of rights: the end of the 18th century with the American and the French revolutions, and the latter part of the 20th century with its strong penchant for charters and declarations of high principles, and for International organizations devoted to high principles but having no capacity to enforce them. These bills of “rights”, declarations of the “rights” of man and citizen, and the more recent charter of “human rights” call for a number of observations.
Addressed either to the government, the power-holders or, as in the case of “human rights”, to everybody in general, these proclamations affirm that all men or all citizens must be allowed to do certain things (e.g, to pursue happiness, to express their opinions, to associate with one another), as well as that certain things must not be done to them (e.g. they must not be deprived of liberty and property without due process, and lately also that they must not be discriminated against, nor be allowed to go hungry, to lack shelter, education, employment and whatever else makes for human fulfillment and dignity). Some of these putative “rights” are clearly liberties: they are acts that all citizens, or all human beings, can perform simply because there is no rule against them. Hindering, let alone sanctioning the performance of these acts would break the rules, it would be a wrong. It is, as we have said earlier, senseless to say that people have a “right” to do what they are free to do, and perhaps even more grotesque to say that they have a “right” that no wrong should be done to them. To speak of a “right to liberty” is worse than to perpetrate a there oxymoron, for it insidiously persuades the unwary hearer that liberty is something he needs to have a right to.
Apart from inducing a confused notion of liberties and muddling them up with privileges that one does not have eo ipso but only thanks to some kind of entitlement, before which others must bow, the enumeration of these “rights” has another and ultimately more mischievous effect. Out of an indefinitely largo number of free acts, it lists a finite number. Somebody, – the author of the list, the framers of the constitution, a political and intellectual leadership – has included these and called them “rights”, presumably because it considered them more important than the others that have been left out of the list. I have argued above that the idea of a Tank order of liberties is naive or arrogant, and that nobody is authorized to upgrade certain liberties and downgrade others. Once, however, such a rank order is incorporated in a solemn declaration that is meant to serve as the fundamental directive of a community’s political life, part of its rule-making collective choice rule, putting some freedoms on the list and putting all others nowhere is a far-reaching act that commits, not only the authors of the list who exercise their value judgment, but the entire polity, perhaps for generations to come. Freedoms that did not make the list and have not been elevated to the rank of “rights” have been cast out into the outer darkness, devoid of status, undeserving of particular protection, devalued. Playing the harpsichord is a “right”, playing the mouth organ is not one, but then what is it? from the idea that there are big freedoms and small ones, we come by a short step to a division between “rights” that are explicitly allowed and common and -garden acts that may or may not be, for they do not much matter.
It remains to consider the role of those “rights” on the list that are really aspirations to things most people desire but not all are able or lucky enough to procure for themselves. What do the various human rights proclamations assert about them? Do they mean to say that these “rights” really exist? If so, they proclaim fraud and humbug, for despite their “rights” to them, most people continue to lack these good things. Or do they mean that people ought to have rights to them, though at present they do not? If so, what they mean is that in order to give people the rights to the good things they lack, some other people must be found and placed under the obligation to provide them with what they lack. The list of rights to good things is, then, a call for a scheme of global redistribution. It is one, however, that avoids calling a spade a spade; it stresses rights but is silent about the obligations that their exercise presupposes. Note, moreover, that since “human rights” are not quantified, the extent of the obligations that may be needed to satisfy them is open-ended. The call for global redistribution may thus perfectly well take the shape of a call for world revolution (based on the unstated belief that world wealth will not shrink when “rights” advocates start to “reassign”, “reallocate” it in earnes.
Il. THE CREATION OF OBLIGATIONS
How do we know that somebody has a right? A first indication could be that he says so. But why should we believe him? He has every interest to make the claim, but his claim is either empty or requires evidence to be credible.
Claims disguised as rights
Claims are empty when no evidence can be brought that an obligation to meet them exists. Empty claims are typically made in the form of rights-assertions.
Perhaps in the belief that this reinforces them, freedoms are often disguised as rights. This is a phenomenon we have considered earlier in this paper from other angles. Hugh may say that he has a right to the privacy of his own home. However, we know that it is inadmissible, a wrong to intrude into his home and violate his privacy. This is so by virtue of the conventional role against trespass, and not by virtue of his “right”. The “right” is redundant. Hugh is free to enjoy the privacy of his house and so is every other householder. Likewise, it is not the case that Hugh has a “human right” not to be persecuted or tortured; it is the case that others must not do these things to him or anyone else because the rules say they are wrongs. “Rights” to security, and so-called “negative rights”, are generally of this redundant kind.
Aspirations are empty claims disguised as “rights”. Hugh may say that as a member of a community, he has a right to its solidarity, and to chances and rewards equal to those of the community’s other members. He may say, (and politicians and officials of International organizations will say on his behalf) that as a human being he has a right to a sufficiency of the good things of life. This kind of claim is an aspiration that is easy to understand, but it is not a right, and cannot be called that without an abuse of language, since it cannot be exercised unless others are under an obligation to supply Hugh witki the good things of life. Hugh cannot provide proof of such obligations.
Contrary to empty claims, genuine rights can (at least in principle) be supported by evidence. Hugh may say that he has a right to some of John’s money because John owes it to him, and that he has a right to inhabit Jane’s house because she has rented it to him. John is obliged to pay his debt, and Jane is obliged to make kier house available to Hugh, and these obligations can be verified by John’s acknowledgment of the debt and the rental contract agreed to by Jane. The right does not exist without the matching obligation, and vice versa. Each part of this two-part interaction is a necessary condition for the other part. Likewise, Hugh may say that he has a right to a free or subsidized place at a university, and this right exists if the taxpayer is under an obligation to build and maintain institutions of higher learning ample enough for Hugh to find a place. There is, in principle, evidence of this obligation in the budgetary and other legislation in force.
Note that the interaction between rightholder and obligoris not symmetrical. Generally, it is in the interest of the rightholder to affirm that he has the right, and not in the interest of the obligor to admit that he has the obligation. In addition, the existence of the obligation is usually verifiable but not falsifiable, hence the burden of proof is on the rightholder, i.e. there is a presumption against the obligation’s existence, which must be overcome by evidence.
Finally, at the risk of being repetitive, let me stress that a person cannot be “obliged” to perform an act at the rightholder’s option unless he had the freedom to perform or not to perform it before he became obliged. He is not “obliged to spare another man’s life in response to the latter’s “right” to life since he was not free to kill him anyway. Coming under an obligation is to lose a freedom. This is the sense in which freedoms and rights are rivals.
For all these reasons, what we must ask is not “how do we know that a person has a right?” but rather “how do we know that he is under an obligation?” How rights arise and what they are and do is best understood by considering how obligations arise, though it is of course a gross error to believe that either is temporally or causally prior to the other.
A person can create an obligation for himself and a corresponding right for another, by simply assuming it. The basic form of an assumed obligation is the unilateral promise. Of greater interest and importance for political theory is the reciprocal promise, with value to be rendered for value received, i.e. the contract. Prior to its execution, the parties to the contract are both right holders and obligors to each other. However, after the first mover has discharged his obligation, the contract remains partially executory with a rightholder and an obligor. The interaction is a prisoners’ dilemma, with the obligor having default as his dominant strategy. Consequently, standard political theory holds that contracts are not credible and would not even be concluded, let alone executed, if it were not for some third-party enforcer, such as the state, whose interest it was to make sure that obligations were discharged and which had sufficient power to ensure that this was done. This conclusion depends on complex (and usually unstated) conditions, and its validity is confined to the case where these conditions prevail. However, to date it is still widely accepted and serves as the analytical ground for the belief that all rights, even contractual ones, exist by the grace of the state, because without a state even voluntarily assumed obligations would not be honoured.
The stare, or in a more abstract vein collective choice, has the power not only to enforce voluntarily assumed obligations, but also to create new ones to match new rights it confers. In the voluntary case, right and obligation are jointly created by a two-person interaction, while in the present case collective choice single-handedly confers the right and imposes the obligation, as it were, over the heads of the rightholder and the obligor. Welfare rights are the predominant example. Here, an obligation is imposed on taxpayers as a class to provide the resources enabling the beneficiaries to exercise the rights conferred upon them. It is needless to say that voluntarily forgoing a freedom and assuming an obligation in its place is perfectly compatible with freedom, while depriving a person of a freedom by imposing an obligation in its place is not. Indeed, the proliferation of newly conferred rights is one of the most potent trends eroding liberty in general.
However, the most intriguing aspect of the creation of obligations by imposition is the way modern liberal theory seeks to justify it. Under the utilitarian ethical prescription, redistributing resources by conferring a benefit on one person and imposing the corresponding burden on another was justified by a judgment that the utility gained by the former was greater than the utility lost by the latter, and this judgment was made on the back of the widely shared assumption that utilities of different persons could be aggregated. If this assumption stood up, the interpersonal judgment could be contestable but would not be nonsensical. However; the utility-aggregating assumption no longer enjoys sufficient respect, and the liberal justification of redistribution now describes itself as “rights-based”.
Unlike utilitarianism, this justification claims the Kantian virtue of acknowledging the separateness of individuals which condemns using one person to promote the good of another. This is an outright condemnation of redistribution. In its defence, linguistic camouflage is about the only remaining recourse. The adoption of rights-language seems to conceal, for the public at large, that conferring rights and imposing obligations is quintessentially redistributive and uses one person to promote the good of another.
III. THE MORALITY OF RIGHTS
In Section I, I alluded to the view that the rules that divide feasible acts into unfreedoms that most not be done and freedoms that may be, have some moral source in natural law. My own position is that this view is not well founded for a number of reasons. These reasons need not be detailed, since they are made redundant by one that supersedes them. It is that the main conventional rules of unfreedom, notably those against incivility and torts, can be adequately accounted for as equilibrium solutions to conflictual coordination problems, (“games”). If it were found that they conform to the dictates of some natural law, that would be all to the good. If the contrary were found, we might regret it. However, neither finding would affect the issue or help alter the equilibrium solution. Conventional rules of what may and what must not be done constitute the Archimedean fixed point of meta-ethics. The search for some different starting point, such as moral intuitions, seems destined to end in circular reasoning or infinite regress.
However, the position that conventional rules are the Archimedean fixed point and there is, or there need not be any moral) foundation prior to them, does not necessarily exclude morals that are posterior, derivative. It is, on the face of it, not nonsense to ask: what is the morality of rights? The phrasing deliberately recalls the title of what is one of the most intelligent and most misleading books on these subjects in recent decades. The work and its author need not be named.
Two meta-norms seem to me to exhaust the available range of ethical norms applicable to freedoms and rights. One is deontological. It holds that any right that has a voluntarily assumed obligation as its counterpart is licit, and any right that does not is illicit. The rationale of this position, of course, is that involuntary obligations involve involuntary, forced abandonments of freedoms, i.e. they offend against the fundamental rules. Nothing further can usefully be said.
Personally, I strongly favour this deontological alternative, and am probably in a finy minority in doing so. It is unavoidable to consider the majority position, which is overtly or covertly consequentialist. I say “covertly”, because much of the current liberal writing claims to reject utilitarian modes of ethical reasoning and calls itself “rights-based”, but in effect employs some implicit utilitarian calculus in aggregating the positive and negative effects of creating right-obligation relations.
Consequentialist ethics is unproblematical with regard to rights exercisable by the rightholder requiring the discharge of an obligor’s voluntarily accepted obligation. The relation is a contract, a voluntary exchange expected to yield a Pareto-improvement. Even if the contract were to yield a disappointing result to an obligor, pacta sunt servanda – rule-utilitarian reasoning tells us that the rightholder’s right should still prevail, that this is the ethically preferable outcome. Only quite grave adverse externalities produced by the discharge of the obligation may provide an escape from the contract. Thus, voluntary agreements and exchanges present no real difficulty; there is a prima facie, almost trivial case for them.
Consequentialism comes into its non-trivial own, but also becomes problematical and indeed precarious, when it must consider Pareto non-comparable outcomes. Consider the two-person case first. John is granted a right and Jane is placed under the obligation to let him exercise it. Is this a good outcome? The benefit to John must be greater than the burden it imposes on Jane, but “greater” would imply that the two changes are commensurable in the style of the old utilitarian calculus. Few try to defend that calculus now. Instead, some ingenious and extremely involved (not to say tortured) methods have been proposed for making interpersonal comparisons that have some limited claim to impartiality without pretending to be objective measurements. None of these methods of utility aggregation, however, can cast off its anchor embedded in the personal judgment of the aggregator. Of two honest aggregators, one may hold that John gains more than ]ane loses, the other may find the opposite, and there is no ascertainable element that could possibly compel them to agree. The consequentialist ethic here reposes on the observer’s beliefs and values which, even if consensual and “politically correct”, remain intrinsically contestable.
The problem is more complicated, but no less stark, in the n-person case. If a new right is conferred by collective choice, it is conferred upon many persons in society, and the corresponding obligation is also likely to be imposed on many. Unlike the two-person case where significant externalities are probably exceptional, in the case of an entire society a host of favourable and adverse externalities could be generated when large-scale gains are conferred on many people and largo-stale losses on others. Instead of pretending to add up the gainers’ gains and deducting the losers’ losses, the proper consequentialist approach is to ask whether the new stare of affairs is better than the old’? The morality of rights, if it wants a place under the sun, must produce a coherent and intellectually respectable answer both to the two-person and the two-states-of-affairs problem. Despite their ostensible difference, they present the same inherent difficulty, namely that some individuals must lose if others are to gain, and to say that the outcome is an improvement deserving moral approval is to say, (whether the speaker is really conscious of it or not) that a balance was struck and the interests of same individuals were deemed to weigh more than those of others. Consequential justification of imposing obligations, then, is ultimately reduced to “deeming”, surrounded by a void where it should be specified who is entitled to “deem” and why, and what should happen when I deem the balance to tilt one way and you deem that it tilts the other way.
All this leaves the rights advocate with little comfort and scant support for his stand. Deontological ethics tells him that he ought not to take away same people’s freedoms and in their place impose obligations on them. Consequentialist ethics tells him that he may (indeed, he must) do this if the balance of advantage tilts the right way, but he can never know which way it tilts. In fact, there is no balance, only a belief about it in his head. Invoking the balance is an oblique way of expressing faith in one’s judgment: what he proposes is a good thing because he is convinced of it.
Stripped of verbiage, rights-advocacy turns out to be forbidden by one type of ethic, shown to be arrogantly self-confident and arbitrary by another. It is by no means obvious, nor even likely, that there is a respectable exit from this impasse. Let us, however, observe the search for one.
Do rights imply obligations, or cause them?
The logic followed throughout this paper has been that while liberties are relations between one person and an act, rights are part of a relation between two persons and an act which one person, the obligor, must perform if so required by the other person, the rightholder. A right without the matching obligation would be only one half of the relation and could not be exercised; and a “right” that cannot be exercised is no more a right than an empty water glass is a glass of water,
If this is the sole logically defensible concept of the right-obligation relation, the statement that a right exists entails the statement that an obligation exists, – rights imply obligations and vice versa, However, this means, in turn, that conferring rights on same individuals means imposing obligations on others, – a step that, if the preceding section is at all correct, is morally problematical to take. It is potentially always controversial and debate about it is inherently inconclusive. Politically, too, it is a delicate measure, for imposing the obligation by having recourse to the rule of submission looks, and is, coercive and projects an image of tax-and-spend profligacy, (though no more so than other overtly redistributive measures that do not claim to be “rights-based”). For these reasons, rights-advocacy would be more comfortable if, instead of implying Bach other, rights were found to be detached – or at least detachable – from obligations. The former might or might not cause the creation of the latter by some unspecified mechanism, set in motion by contingent circumstances for whose operation the rights advocate has no direct responsibility.
It would probably be a misjudgment to accuse modern liberal writers on the morality of rights that they have this interior motive when they strive to detach obligations from rights and try to present the latter as a standalone logical expression. Their wish may have been the father of their thought, but the thought could nevertheless express their honestly reached conviction. Be that as it may, the effort to separate rights from obligations is clearly discernible. One argument to this effect has been that it is perfectly possible for public opinion and for the legislator as well, to recognize and gram a right without simultaneously providing for an obligation to ensure its exercise. It is hard to interpret this view. If it means that whoever recognized or granted the right will, in due course, definitely provide the means For its exercise, then what has been created is not a right, but the firm promise of one at a future date, and the right will come into being at that point. However, it may mean instead that a right comes into existence when it is recognized, even if nothing definite is said or done about future provision for an obligation enabling the right to be exercised, – nothing, that is, except that sooner or later something ought to be done about it by somebody or other.
A real-life scenario illustrates this idea. Millions of poor people in poor countries suffer from a lethal disease. Drug manufacturers, staking very large Bums on research programmes, some of which succeeded while many failed, have found life-saving treatments which they sell to patients in rich countries. Patients in poor countries cannot afford the price. World opinion recognizes their “right” to life-saving drugs. The drug companies are asked to supply them at a nominal cost. They are reluctant to do so, for the formulae in question have been found by them and are their property. The drugs are then copied in generic form by unilateral action in the poor countries, though a royalty is paid on sales of the copies. The move is analogous to expropriation of (intellectual) property against compensation. Some drug companies also agree to supply the drugs cheaply to the poor countries while continuing to sell them dearly to the rich ones. The story might perhaps have ended differently, but this is how it did end. It is anybody’s guess whether, seen from the consequentialist point of view, it ended well; for if the drug companies learn the lesson that heads the poor patients win, tails the companies lose, they may stop taking gambles on uncertain drug development, and then no new treatments might be forthcoming for new lethal diseases. Nevertheless, since the drugs in this scenario happened to exist already, declaring that poor patients had a right to them did, through the pressure of public opinion and the apparent weakness of patent protection in the face of hard cases, lead to the winy-nilly assumption of the obligation that was needed for the right to have meaning. Conceptually, however, the right that gets temporally detached from the obligation is difficult to grasp. I shall make no further effort to explain its precise meaning, but shall leave it to speak for itself.
A quite different “detachment” argument has also been advanced within the wider context of the morality of rights. It contends that the correlativity of rights and obligations is simply a figment of mistaken reasoning. To demonstrate the mistake, the argument cites the “right to security” and points out that no single obligation exists to match this right. However, the objection is seen to be baseless if we consider that our “right” to security is wholly redundant as long as others must not wrong us. It is the rules against maiming and killing, mugging and robbing, driving dangerously and selling unsafe products that give us security provided they are respected and enforced, whether we are supposed to have a “right” to security or not. It is not surprising that no matching obligation to this purported and redundant “right” has been found. The contrary would have been disconcerting, for what the author of this proposition calls a “right” is not a right, but a set of freedoms to carry on one’s life without being maimed, killed and robbed. However, let us construct a counterexample, and suppose that our “right” to security is really a right and is matched by the obligation of the state, or the police and the courts, to protect us. In order to do this, they would have to repress maiming and killing, mugging and robbery, dangerous driving and the passing off of unsafe products for safe, to mention but a few of the things they would have to do. But they have to do these things anyway, since they have the job of enforcing the rules, and all these things are against the rules. To rescue the “right to security” from redundancy, one would have to say that it was that right that came first, and it was the consequence of that right that the rules that guide the enforcement agencies have come into being. But who, then, gave us this right to start with? – and who gave him the right to give us rights? – and so on up the ladder that leads to the sky. Moreover, such understanding as we have about the conventional origin and coordinating function of rules makes the notion of rules being the consequence of rights, utterly implausible.
From right to duty, from duty to obligation
Coming from the same source, there is a more ambitious attempt at separating rights from obligations, and by an adroit tactical manoeuvre letting the latter slip into a murky background. The manoeuvre consists in introducing the word “duty” and giving it an alternating meaning. At some points it is an act we ought to perform if we choose to act morally, at others an act we must perform because we have agreed to or are compelled to. It is, of course, the latter we call an obligation in this essay. Using different words to convey different meanings is probably helpful in clarifying matters. Using the same word probably does the opposite and that, too, may have its uses in carrying the argument over some muddy patch.
The crucial phase of the argument is a particular definition of rights. X has a right if some interest of his is a sufficient reason for holding other(s) to be under a duty. “A reason for holding” someone to be under a duty is a singularly obscure expression. What does “holding” mean, and does it mean something more than “deeming” meant in the section above on consequentialist ethics? And who “holds”‘? Can anyone “hold” if he thinks he has detected sufficient reason for it? Or is some special authority needed for “holding”, perhaps the authority of the state? Some might read this to mean that more) is what the majority will vote for. Finally, what is the supposed effect of the unnamed, unidentified holder “holding” another to be under a duty’? The definition tells us that, baffling as this sounds, the “holding” establishes that X has a right. But does it also establish that another has a duty? – And what if he does have one?
The author confides that he is using the ambiguous phrase to preserve a double meaning: he wants it to mean both that rights are reasons for judging that others have duties, and that rights are reasons for imposing duties on them. Clearly, the first refers to what someone judges someone else ought to do, – a moral duty. The second tells us what he must do, – an obligation in our parlance. However, we are emphatically told that it is mainly the first meaning that matters. Disarmingly, the author explains that he views it as establishing the duty provided no conflicting considerations outweigh it – a proviso whose effect on the duty depends entirely on the weight someone chooses to attach to the conflicting consideration. (And, we must ask again, who is entitled to attach the weight? Could it be the person one holds to be under a duty’?).
Leaving this puzzle unsolved as the author leaves it, we must return to the effect of holding someone to be under a moral duty. Leaping over an evident gap, let us take it to mean that he is, in fact (if that is the right word to use) under a duty. He ought voluntarily to sacrifice his interest to serve the interest of the rightholder. While it is wrong (and offends against the Kantian principle of the separateness of persons) to sacrifice one individual’s interest to serve that of another, it is not wrong if it is his (moral) duty to sacrifice it. Nor is it wrong to use compulsion to make him assume the duty he ought to have assumed of his own will.
Thus the loop is closed. Starting at the right, it winds its way through the difficult terrain where “holding” some view by unidentified “holders” establishes a duty that is then, willingly or under compulsion, turned into an obligation and is joined to the right. This is where we came in. The search for a moral justification of redistribution, conducted by one of the best brains in the business, could do no better than replace the subjective say-so of interpersonal comparisons by the subjective say-so of what is a sufficient reason for holding someone to be under a moral duty and compelling him to fulfill it.
Superseding the ascertainable
In the domain of “deeming”, “holding”, “judging”, anything goes. Though two assertions may be mutually inconsistent, no single assertion of this kind can be rebutted by logic or evidence.
Starting with the idea of “harm” as the guiding criterion for dividing freedoms from unfreedoms, modern liberalism has proceeded by successive injections of massive doses of assertions about utilities, “rights” and rights. Each injection involved an appeal to morality to ennoble its purpose and excuse its recourse to the forcible curtailment of freedoms.
Freedom stands on perfectly objective, ascertainable foundations, the conventional rules of coordination equilibria in social life that are as freely chosen as any rules ever are, and whose existence and meaning are matters of fairly reliable record. These ascertainable foundations are being superseded by waves of notional principles that have the firmness of blancmange, as well as its bland sweetness. “Rightsism” is the latest such wave, but presumably not the last.
Riassunto – L’attendibilita della filosofia politica é messa a rischio dal suo rimanere ancorata a “nozioni” vaghe, senza riuscire a sistematizzare idee e pensieri in piu precisi “concetti”. Questo passaggio logico si verifica puntualmente nelle scienze naturali: in fisica abitualmente si passa infatti da nozioni vaghe come “pesante” o “caldo”, a concetti precisi come “peso” e “temperatura”. Lo stesso puo avvenire nelle scienze sociali: ad esempio, nonostante l’idea di “mercato” sia piuttosto vaga, l’economia e riuscita a formulare una teoria che, per quanto poliforme e disorganica, fornisce un’idea precisa di come funziona un mercato.
La difficolta subentra nell’ambito della filosofia politica. In particolare, la nozione di “diritti” galleggia fra l’impraticabile e l’assurdo, ed il frequente richiamo a tale nozione da parte di autori contemporanei va interpretato come una mera reazione all’utilitarismo.
La stessa nozione di “diritti” negativi sembra inadeguata a costituire l’impalcatura di una piu complessa costruzione intellettuale. Un esempio é la nozione di “property rights”, che per definizione sarebbero “assegnati” o “allocati” – anche se resta nebuloso quali soggetti avrebbero l’autorita di “assegnarli” o di “allocarli”.
E a partire da nozioni come quella di “diritti” che é quindi possibile tracciare il declino del liberalismo nell’eta contemporanea. Allontanatosi dell’ideale originario per abbracciare nuove e vaghe asserzioni esso ha cosi finito per seppellire le proprie e piu autentiche radici.