Rights and Reason

Rights and Reason: An Introduction to the Philosophy of Rights

Jonathan Gorman
Copyright Date: 2003
Pages: 241
https://www.jstor.org/stable/j.cttq93mw
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    Rights and Reason
    Book Description:

    He begins by contrasting the ideas of Plato, Hobbes, and Locke and their appeal to reason with the empiricism of Hume, showing that the issue of whether rights can express independent authoritative standards is inseparable from the longstanding conflict between empiricism and rationalism. By examining Kant's attempt to resolve this conflict he shows that Kant changed our understanding of morality, and of rights in particular, by basing his philosophy on an analysis of human language. An outline of Hohfeld's analysis of the language of rights and duties completes the examination of rights and reason. Gorman goes on to investigate some substantive criteria for the application of concepts of rights, including the beneficiary view of a right, group rights, non-human rights, the nature of the "individuals" who are the bearers of rights, the "interest" theory of rights, and the "will" theory. Finally he examines the view that rights and duties are mutually supporting features of a just situation, introducing Rawl's theory of justice. Throughout Gorman shows that, alongside arguments about the content of rights and the myriad claims to rights, there are pluralities of theories that offer some understanding of the moral and legal realm and of the places that rights may hold in it.

    eISBN: 978-0-7735-8210-1
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
    Jonathan Gorman
  4. CHAPTER 1 Introduction
    (pp. 1-27)

    The inscription on the Cenotaph in London’s Whitehall says simply “The Glorious Dead”. There is no doubting Western civilization’s readiness to go to war, and to bear appalling losses in its prosecution. Yet even at times of greatest need, and at times when life might be held more cheaply than it is now, to believe that a cause may be worth committing suicide for, rather than merely risking death or being killed for, was to believe in a way foreign to much of Western history. Many people today see the suicidal killing of others as more characteristic of Eastern fundamentalism....

  5. CHAPTER 2 Plato
    (pp. 28-38)

    How can rights be authoritative? How can our individual and social choices be “constrained” by rights? How can we be motivated by such moral considerations? What rights do we have? How may we justify claims to rights? These questions have, at best, only a superficial clarity. More fundamental matters need to be understood in order to crystallize the puzzlements that they express. To clarify questions such as these we turn to a number of theories in moral philosophy. The first of these theories is Plato’s (c.427–c.347BCE), and we will be able to find this first approach by outlining the...

  6. CHAPTER 3 Hobbes
    (pp. 39-54)

    As earlier observed in our discussion of Plato’sRepublic,in response to Socrates a powerful presentation was made by Thrasymachus of the view that “justice consists in the interests of the strong”. This was developed by Glaucon, reporting what he describes as the “common opinion”¹ that justice is unpleasant in itself but is pursued for the rewards it might bring and in the hope of a good reputation. “What they say is”, he continued:

    that it is according to nature a good thing to inflict wrong or injury, and a bad thing to suffer it, but that the disadvantages of...

  7. CHAPTER 4 Locke
    (pp. 55-64)

    Our search for rights began with Plato, who, despite not using the concept, framed for us a structure of understanding within which rights might be created and developed. If we accept Hobbes’s approach, by contrast, we find very little further help, since Hobbes, like Plato, not only writes at a level of generality that rarely mentions the details of rights but also excludes much of what we ordinarily think about rights, stressing–where he does go into detail–the rights of the sovereign rather than the rights of the subject or citizen, for example. In particular we often think of...

  8. CHAPTER 5 Human motivation
    (pp. 65-70)

    We have seen that, for Plato, Hobbes and Locke in their different ways, any authority that morality may have for us, and so any authority which “rights” may have for us, consists in its unchanging and independent status and in its essentially rational or consistent nature, foundation or content, however that may be known. In addition, whichever of the detailed conclusions of these philosophers we accept, reason has a capacity to motivate us. It is now time to question the presupposed “independence” of morality or reason that these philosophers use in their various approaches.

    Plato’s theory of human motivation essentially...

  9. CHAPTER 6 Human value
    (pp. 71-82)

    Given Hume’s approach, we cannot be directly motivated by rights as independently real, nor by reason similarly understood. We can be motivated only by desire. Moreover we are not to understand the content of any moral claim, including a claim to a moral right, as involving some reference to an independent moral reality. And yet the human capacity for rationality – that essential feature which we supposedly all have to be reasonable – is imagined by Plato, Hobbes and Locke to consist at least partly in a respect for standards of reason that are in some way external to us, however they...

  10. CHAPTER 7 Hohfeld’s analysis
    (pp. 83-99)

    Following Kant, we need no longer understand reason, human rights or other moral ideals as existing in some way independently of human beings. Rather, we are to see human nature, the natural world and the world of morality as all structured in terms of reason. Reason both provides the ultimate justification for our fundamental moral standards and frames our understanding of them. The reasoned detail of Kant’s moral philosophy requires that we act from duty, and the rights of others are to be understood in terms of whatever correlates with those duties.

    Kant’s arguments concerning the rational structures of the...

  11. CHAPTER 8 Hohfeld’s analysis analysed abc
    (pp. 100-114)

    What exactly does it mean for Hohfeld’s scheme of “exact” concepts to be an “analysis” of fundamental jural relations? According to Hohfeld we can use his system to solve legal questions, as his editor Cook observed. For example, where a person has property rights of a certain kind, we candeducethat someone else has the appropriate correlative duties. More generally, with complex situations we can deduce a series of relationships involving claim-rights, privileges, powers and immunities, and their opposites and correlatives. Hohfeld quotes Bruce Wyman’s (1876-1926) workPublic Service Companies,follows:

    The duty placed upon every one exercising a...

  12. CHAPTER 9 Change
    (pp. 115-122)

    Recall Kant’s moral philosophy. He explains the unchanging rationality of the principles that govern our duties, and characterizes human nature as valuable in virtue of its essentially rational characteristics. Fundamental rights and duties are universally and equally held, and all rights are consistent with each other in a “Kingdom of Ends”. Reason is fundamental. Reason gives intelligibility. Reason sets the standards. And reason expresses the essence of what we ourselves really are. This unchanging, universally shared and consistent standard that essentially applies to the human condition ensures the applicability and acceptability of his theory.

    Yet we disobey. We do not...

  13. CHAPTER 10 Inconsistency
    (pp. 123-134)

    We have seen that, if human nature changes over time, and if human nature is essentially connected to morality through what is valuable about it, then morality changes over time too. But there is a further implication. If human nature changes over time, and reason is understood as the essential constituting feature of human nature, then reason changes over time too. The same conclusion follows from the views that morality changes over time, and that morality is constituted by reason. While a widespread belief in moral relativism demonstrates the acceptability of the idea that morality may change, the idea that...

  14. CHAPTER 11 Understanding rights
    (pp. 135-149)

    In Chapter 1 we observed that the concept of human rights in modern Western culture has a particular authority for us, as an ultimate standard of justification, which is an essential feature of both our moral and our legal standards. Much of Western moral and legal understanding has developed in terms of this concept, and we value the claims of human rights sufficiently strongly for the developing international world order to make explicit reference to them in declaration and in policy. We have here treated such rights in terms of their status as claimed by the 1948 Universal Declaration of...

  15. CHAPTER 12 The rights-based approach
    (pp. 150-168)

    Our further understanding of rights depends on the further understanding of Hohfeld’s right-duty links, and we have seen that in principle three approaches to this development are available: that rights may be understood as prior to duties; that duties may be understood as prior to rights; or that rights and duties may be mutually supporting.

    The next step is to investigate and organize our understanding of rights and duties in these terms. In moving away from the question of what rights and duties metaphysically “really are” to the question of what our actual social practices disclose that they are, we...

  16. CHAPTER 13 Duty and justice
    (pp. 169-177)

    A full understanding of rights requires a grasp of the points of view of all involved in a right-duty situation, and so requires a grasp of rightsbased, duty-based and justice-based approaches. Having outlined a rights-based approach to a situation in which those involved act “aright” (as Finnis puts it), let us next consider what a duty-based conception in this context can look like. Finnis described the move from Aquina’s conception of right as based on justice to Suárez’s conception of right as related exclusively to the beneficiary, but he did not associate with this a parallel move that might be...

  17. Conclusion
    (pp. 178-192)

    In Chapter 1 I outlined a wide range of uses of the concept of rights in modern Western culture. We noted the concept’s growing importance as a way of organizing our moral and legal understanding, and noted that the concept of human rights in particular is authoritative for us, providing an ultimate standard of justification in both morality and law. Noting too the 1948 Universal Declaration of Human Rights, I presented human rights as if they set the overriding moral benchmark. We saw that a range of questions might be asked: how can human rights be justified as authoritative? How...

  18. APPENDIX 1: United Nations Universal Declaration of Human Rights
    (pp. 193-199)
  19. APPENDIX 2: Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 Rome, 4.XI.1950
    (pp. 200-216)
  20. Bibliography
    (pp. 217-222)
  21. Index
    (pp. 223-230)