A Contemporary Approach to Moral Reasoning and to Human Rights: A Different Approach to Rights ER 11, Gov E 1040 Spring 2012

Recall Question: Why do we stand in the sort of relationship that renders rights talk applicable? Different answers involve different ways of thinking about morality in general

Different answers Natural rights tradition: external reality provides answer – From God – Like laws of nature – Self-evident

Different answers Kantian tradition: rights derive their force from the rational nature of human beings “violation of rights leads to a contraction that is an impediment to freedom”

After moral force of external reality and of consistency

…. comes ….

Reasonable acceptability to each person

Griffin, On Human Rights Captures different view of human rights – But doesn’t reflect on notion of ‘rights’ – Scanlon (“Rights, Goals, and Fairness”) does, in a way that is readily compatible with Griffin

SCANLON ON RIGHTS

Scanlon -- making sense of rights A particular assignment of rights involves the following: First, an empirical claim about how individuals would behave or how institutions would work in the absence of this particular assignment of rights. Second, a claim that this result would be unacceptable. This claim will be based on valuations of consequences in a way that takes into account considerations of fairness and equality. Finally, a further empirical claim about how the envisaged assignment of rights will produce a different outcome.

Example: freedom of expression An empirical claim about how individuals would behave or how institutions would work in the absence of this assignment of rights – typical examples of governmental or majoritarian silencing of dissenters

Example: freedom of expression Claim that this result would be unacceptable. Claim will be based on valuations of consequences in a way that takes into account considerations of fairness and equality – Considerations of social utility; individual integrity

John Stuart Mill on Freedom of Speech: why even apparently erroneous views should be kept around Erroneous views make for a good contrast with correct views; make those shine more clearly Erroneous views make for a good contrast with correct views; make those shine more clearly we can never know with sufficient certainly to rule out a view we can never know with sufficient certainly to rule out a view presence of erroneous views forces us to justify better ones presence of erroneous views forces us to justify better ones no harm done in the long run, because good sense prevails: more harm done in the long run by outlawing erroneous views no harm done in the long run, because good sense prevails: more harm done in the long run by outlawing erroneous views

Example: freedom of expression Further empirical claim about how envisaged assignment of rights will produce different outcome – Must then think about scope and limits of freedom of expression

Example: freedom of expression

Make sure their views are heard?

Serves a useful social purpose? Serves a useful social purpose?

Scanlon’s view Rights are essentially institutional Rights derive their force from the diverse institutional goals they serve

What is not in Scanlon’s view Rights are not derived from external reality Rights are not derived from nature of human thought or from rationality

What is there Implicit is appeal to reasonable acceptability – no appeal to external existing rights, and no appeal to a logical derivation Methodologically humble Questions to provide further-reaching foundations implicitly rejected

SCANLON ON RIGHTS

Going after the source… What does “reasonable acceptability” amount to? What are the institutional goals that rights serve? – Answer emerges from engagement with utilitarianism

Recall: Utilitarianism

Bentham Association

Recall: utilitarianism Principle of utility: Always act in such a way that brings about maximal amount of net happiness (compared to other available actions) Focused on consequences of actions; states of affairs Thinks of consequences in terms of overall happiness Aggregates happiness - does not care about distribution

Scanlon on utilitarianism Against utilitarianism: sometimes rights override considerations of utility (example: sheriff in remote town) For utilitarianism: “But rights themselves need to be justified somehow, and how other than by appeal to the human interest their recognition promotes and protects?” (p 26)

Scanlon’s Approach: A two-tier view that “gives an important role to consequences in the justification and interpretation of rights but which takes rights seriously as placing limits on consequentialist reasoning at the level of casuistry” (p 26-7)

Recall: limited view of rights not basic (natural), but highly derivative Can be readily set aside if considerations of general utility outweigh them rights can only be devices of social coordination

Scanlon’s alternative – what is reasonably acceptable to a person assignment of rights is “way of parceling out valued forms of discretion over which individuals are in conflict” (p 34) point of rights is not to maximize results but to ensure equitable distribution of citizens’ power and influence over results concerned with avoidance of particularly bad consequences, rather than with overall maximal amount of benefits

What distinguishes Scanlon from Mill? Scanlon’s is a consequentialist view that is not a maximizing-doctrine

Examples Freedom of expression Due process Religious toleration

But why offer resistance to utilitarianism in this way? Because this is a way of addressing common concerns about utilitarianism – distribution – may ask enormous sacrifices of individuals – Focus on happiness: not the case that whatever makes individuals happy (“subjective preferences”) creates claims on others E.g., expensive tastes; subjective preferences based on ideas others have no reason to accept

But why offer resistance to utilitarianism in this way? protecting individuals as specified by Scanlon’s idea of a right creates space within utilitarian theory to respond to criticisms Scanlon offers direct response to Mill – does better job explaining how rights can play important role in moral theory

SCANLON ON RIGHTS

Scanlon on rights: concluding remarks Assignments of rights are backed by three kinds of considerations: An empirical claim about how individuals would behave or how institutions would work in the absence of this particular assignment of rights. A claim that this result would be unacceptable. This claim will be based on valuations of consequences in a way that takes into account considerations of fairness and equality. A further empirical claim about how the envisaged assignment of rights will produce a different outcome.

What is there Implicit is appeal to reasonable acceptability – no appeal to external existing rights, and no appeal to a logical derivation Methodologically humble Questions to provide further-reaching foundations implicitly rejected