As I was doing the Beitz reading I kept going back to the discussion we had during our last seminar, during which Bria argued for an intrinsic grounding of rights, which is incredibly appealing to me. However, as Beitz introduced the idea of natural rights, it occurred to me that I am not completely clear on their functioning, as rights per se, as opposed to perhaps entitlements or some other such different framing.
On page 54 Beitz addressesses the view of natural rights as rights that exist outside of positive law or society. Essentially natural rights are put forth as pre-institutional rights that we all hold equally--and as Beitz goes on to argue: "express moral protections upon which people are entitled to insist regardless of their institutional memberships." The attractiveness of such a view of rights is obvious, and I am strongly drawn to such a conception of rights. As Beitz also notes, it effectively encapsulates the universal, non-negotiable nature of rights that appeals to me so much; regardless of who you, where you were born, etc. you retain certain inalienable rights that entitle you to protections and generally a basic standard of human dignity.
Unfortunately our recent exploration of rights has left me unsure of how to defend such a natural grounding of rights. Beitz indirectly brings up my concern on page 56: "the legislature is bound [...] to establish 'known authorised judges' who [by adjudicating] can help avoid the dangerous disorder likely to arise when each person is judge of his or her own case." This reminded me of Hobbes' and his State of War, we enter into society exactly for the sake of avoiding this issue. However, if natural rights are truly rights (and as such we entitled to their fulfilment), this would seem to pose a serious threat in the State of Nature. Let's imagine one of my natural rights is being infringed and I deem it appropriate to retaliate (reasonably) in order to defend myself and my right. My opponent is certain to escalate the situation, this being the State of War (which Hobbes convincingly argues is the same as the State of War). Natural rights then would appear to entitle or further propagate the issue of conflict in a pre-institutional setting. This is problematic not only because of the conflict but because this would appear to threaten the standing of natural rights as rights at all--for them to be meaningful do they not require some enforcement mechanism? Beitz discusses this in length in the case of international rights, and it seems to me that the requirements to be a right are not met by natural rights.
Honestly I don't like any part of the above reasoning and I would love it if someone could save me here and rescue natural rights from my logic. I'm hoping that I've missed something, because the advantages of natural rights appeal to me a lot.
Hey Thomas!
ReplyDeleteI thought the discussion of natural rights was super interesting. I'm a little confused by your post, so I'll go ahead with what I think you're saying, but please let me know if I'm off.
In his discussion of "known authorized judges," I think Beitz is getting at an understanding of first and second order natural rights. He does so because if natural rights are those that could only be conceivable in the state of nature, that would rule out many things we consider human rights -- cutting the political rights etc. (What would those even mean in the state of nature?) But Beitz points out that there are also "Second-order rights, conceivable only within an institutional setting, that can be derived from the first-order rights with the addition of premises about the character of the social environment and the potential advantages and disadvantages of various kinds of institution" (56). This is the part where he talks about judges, as an example of second order rights. Intersetingly, he muses that "perhaps at least some human rights can be regarded, by analogy, as mechanisms by which first-order natural rights might be protected... once the state has given way to political society" (56). But I'm not sure why this would mean "for them to be meaningful do they not require some enforcement mechanism?" (Thomas) I thought the idea was that natural rights were grounded in people "as such" and if they are not enforced, then they are being violated. This violation would be unjust on moral grounds because of the natural right. Beitz (and Sen) talks about how having a right does not necessarily create obligations for those around you to protect it. The right could provide a justification (aka reasons) for action, but that does not require positive action by others. Locke is making the same logic, just because people violate natural rights in the state of nature doesn't make them any less of rights. That just makes the violations very serious. So I don't think this is a problem for you! Beitz even says, "There is no reason to rule out this possibility ab initio and perhaps we should welcome it" (56).
The deeper critique comes in when he reveals how the scope of natural rights and human rights (empirically) do not align. "the desire to arrive at a catalog of second order rights with a breadth that approximates that of the contemporary doctrine of human rights exerts pressure to broaden the core content" (56). But: "any such strategy threatens to exceed the scope of what the underlying idea of "naturalness will bear" (56). This is compelling to me. So while natural rights are still meaningful on their own, I think Beitz is right in saying that they are too cabined a category to effectively ground what people empirically believe is encompassed by human rights.
Melissa and Thomas,
ReplyDeleteMelissa, I think you do an excellent job of explaining Beitz's argument here and clarifying the potential first and second order scheme of rights, so thanks! I would like to push back on Beitz's account, for, as you point out, while he believes that "the motivating concern of international human rights is evidently broader" than the rights allowed within this first and second order framework, I do not think this is necessarily true (57). Or at least I see no reason for why the scheme of human rights must extend beyond secondary rights as an understanding of maximizing first-order rights. Secondary human rights such as "human rights to political asylum, to take part in the government of the country, of to free elementary education" are certainly dependent on an institutional environment and do not come out of natural rights given in the state of nature (55). But I believe that the only reason we should have an obligation to have these secondary rights is so that we, as beings living within an institutional environment, can exercise our first order rights. If a person is severely ill or does not have an elementary education, how can she be autonomous and have the freedom to make her own choices in today's society? It seems that the real problem with not having second order rights is that she would not be able to exercise her first order, natural rights. So I guess I really want to push Beitz here. While it is probably true that "classical natural rights theories" do not "represent a more ambitious assumption of responsibility for the public sphere" as the drafters of human rights intended, I believe that we only have these secondary rights in order to maximize our fulfillment of the first. Additionally, if a person were able to exercise all first-order natural rights without rights to political freedom, basic healthcare, basic education, etc., then I see no reason why we need to categorize these secondary rights as human rights in the first place. To me secondary rights are only vital in so far as they allow you to exercise rights that you would have as a human in a pre-institutional world.