Recommending Rights — Should they be Emphasised?

Is it not odd, even paradoxical, for a second-order moral sceptic either to damn or to praise rights, to advocate any particular moral theory over any other? This question re-states a familiar dilemma for the sceptic which appears to be this.

This is not true of normative values, however, if the position I defended in Part A of this book be correct. Once such values are tied ineradicably to the observably variable feelings and sentiments of people there can ultimately be no criteria for ‘what values are right’ — unless it be allegedly universal or near universal, but still contingent, human dispositions. So rejecting the existence of objective, mind-independent values rests on the evidence from the causal world. On this test or criterion moral scepticism is the more likely 1 say. At the same time though, the felt and projected sentiments and feelings which the sceptic says comprise apparently objective moral values cannot be true or false, right or wrong.

By collapsing in this way the seeming dilemma confronting relativists I am doing no more than repeating my moral theory in a highly condensed and perhaps colourful form. Yet that repetition, with its sharp contrast between factual consequences, passions, preferences and sentiments on the one hand, and values on the other, is worth making and bearing in mind as I turn to my perspective (iii) concerns and pose the question, Is the most preferable™ moral and political system one that emphasises rights?

This question is logically independent of one’s views about the status, source and nature of non-legal rights.⁷⁹ Both the moral realist and the moral sceptic might respond to it either affirmatively or negatively. Many realists, for instance, would prefer to emphasise duties over rights, as I take it Kant would, not to mention the preponderance of theologians and theistic believers. Giving a similarly negative response would be those sceptics who would like morality to foster and aim directly for, say, community goals and benefits or, alternatively, the advancement and improvement of the species, and who see rights as a hindrance at most to be occasionally tolerated.

Various other realists and sceptics would disagree and answer ‘yes’ to my italicised question. Examples of such realists are numerous today, most people subscribing to the ‘human rights’ movement being one and Dworkin, on my reading of him,⁸⁰ being another, but I am no longer interested in realists. My interest is with sceptics. On what grounds might a moral sceptic favour stressing rights as the main coinage of political morality?

There is a temptation to reply simply that some sceptics would endorse rights as part of their critical morality.

As we have seen, the moral sceptic cannot accept the primacy of rights if by ‘primacy’ some hint of the objectively valid is meant to be conveyed. “No normative theory... can in the end be held to be objectively valid”⁸² in this way. In the objectivist's sense then, rights cannot be accepted as unconditional or underivative by the sceptic. Rights are either creatures of formal positive rules or creatures of informal expectations and regularities generated by uniformity of feeling, attitude and sentiment. The sceptic who wishes to reply in terms of notions like ‘critical morality’ and ‘critical moral thinking’ must go on to specify, therefore, that her usage carries none of the normal objectivist baggage.⁸³ If she does not there will be confusion. Worse, if she means her endorsement of a particular moral theory — say a rights-based one — to be somehow fundamental and basic in a sense above and beyond the natural world of preferences, sentiments and likely consequences then she is being self-contradictory. There can be no such critical morality for the sceptic.

In this same vein, the very mention of a ‘moral theory’ is ambiguous as far as the sceptic is concerned. The ambiguity envelops the distinction between explanation and recommendation, between perspective (i) and perspective (iii). A sceptic can attempt to explain why moral practices are valuable, how they developed, what they reduce to in psychological and sociological terms, what the status of moral evaluations is, and how that accords with the normal meaning of moral speech. Any such answers offered would comprise an explanatory moral theory which, for a sceptic, rejected the existence of mind-independent or logically necessary values.

None of this though is about recommendation, prescription or emphasis. A ‘moral theory’ of a different sort aims not to explain morality but to recommend a particular version. It is within this latter sense that the question of whether to emphasise rights arises. My answer to that question is that it is better^ for a moral and political system, in most circumstances, to emphasise rights.

Let me expand upon this bald assertion and then support it. Generally speaking, certainly in the context of a relatively wealthy Western democracy, I favour (or prefer or recommend) a political morality in which rights play a leading role at the practical, decision­making level. I dislike theories that emphasise duties, a dislike which I suspect is shared by nearly all other moral sceptics. Deontology without God and without objective, mind-independent values seems obviously to be ancillary to something. Nor am I attracted to goal­based theories where they involve some basic goal or set of goals from which rights and duties are derived. It seems to me that the exhibited variety of human needs, wants, pleasures, joys, desires and satisfactions — the same variety indeed that tells in favour of moral scepticism — makes the search for basic goals illusory. One either gives up in despair at ever finding such a basic goal or is forced to over-generalise to the point where any proclaimed goal is, on examination, rather meaningless. Utilitarianism’s goal of happiness, welfare or pleasure, for instance, can mean anything at all that anyone seeks,⁸⁵ even the pain felt by the masochist or the imagined glory of the self-sacrificing soldier or the fulfilment of the unconscious desire to conform of the teenager, so that a simple goal is found but only by employing a definition that eliminates (or pushes out of sight) the exhibited heterogeneity.

I do not, however, forswear goals in a broader sense. Having jettisoned hope of finding basic goals one may still see that rights are unable to stand alone. Rights, at some deep level, may need to find support from consequences — from what is likely to happen in the natural world — and their anticipated effects in terms of reactions, conditions, sentiments, feelings and desires, inter alia. These good or beneficial consequences, in the sense of those that prove to be useful or agreeable to one or more people, would be a type of goal, I must admit. But they would not be a type of goal that is easily thought of as basic because one component — the non-propositional passions, preferences and sentiments of people⁸⁶ — is highly contingent and variable. That said though, I rest nothing on whether consequentialism⁸⁷ is best understood as a goal-based moral theory or not. I find it sufficient to observe that a preference for rights cannot easily stand alone in a vacuum,⁸⁸ that the natural place for the sceptic to turn for support is to consequences, and that such support may indeed only be offered indirectly and over a very long-term.

I want now to explore more specifically the ramifications of a recommendation for rights which is explicitly consequentialist, which argues that in the longer-term⁸⁹ establishing rights through rules⁹⁰ leads to more benefits than not doing so. I propose to do this by concentrating on the contrast between my own views and the rights- based views of the sceptic John Mackie.⁹¹

In three separate articles Mackie sets out to see if “rights really [are] the sort of thing that could be fundamental”.⁹² He tries “to formulate a more defensible right-based theory”⁹³ and to offer “a possibly acceptable starting point for critical moral thinking”,⁹⁴ such thinking being “concerned primarily with the choice of sets of moral principles and dispositions.”⁹⁵ And eventually Mackie offers rights that “are basic, though defeasible”⁹⁶ while concluding that “[w]hen we think it out, therefore, we see that not only can there be a right-based moral theory, there cannot be an acceptable moral theory that is not right-based.”⁹⁷

Mackie has two main strings to his bow.

course.⁹⁸ But Mackie does consider, and reject, possible replies. One of these is the indirect utilitarian reply that there are two levels of moral thinking, the ordinary, intuitive, day-to-day level of dispositions and principles which does recognise rights and the higher, critical, verifying level which is in terms of utility, however indirect or long-term. Mackie considers this reply in the form it is given by R.M. Hare.⁹⁹ Hare’s utility is derived from a conceptual analysis of ordinary moral language and thinking which allegedly dictates an imaginary occupying of all possible positions and so a utilitarian morality. Whether or not this conceptual analysis be correct, however, is irrelevant as Mackie correctly notes.¹⁰⁰ One can choose to think and speak amorally or in any other coherent way. Current usage does not determine nor fully constrain possible ways of thinking. Mackie’s criticisms of what he calls prescriptive universalizing are persuasive.¹⁰¹

However, deficiencies in Hare’s particular theoretical support for utility, a support that relies on an analysis of the meaning of moral statements, need not undermine the two-level reply made to the standard complaints about utility’s pooling of preferences and blindness to individuals. That reply, as I would frame it, would be in terms of consequences. Achieving best consequences involves the establishment of rules, rights, practices and dispositions. Contrary to those sceptics who favour aiming directly for best consequences, experience shows that having rules and limits and thus entitlements and obligations creates certainty, fosters expectations and encourages co-operation. We are the type of species, in short, which is better off with guidelines, or perhaps with what Hare would call an ordinary, practical, working level morality. This is not without cost admittedly. To build confidence and reliance on the rules often requires that best consequences be ignored or subordinated from the case-by-case (or short-term) perspective. But such is the nature of rule-

consequentialism. It supports rules because of their indirect (or long­term) benefits and despite their occasional immediate (or short-term) failings.

Reliance on rule-consequentialism is nothing new for the Humean. Hume did just the same himself in defending unflinching rules of property. Yet, and quite obviously, it would be absurdly fallacious to say rule-consequentialists support all rules. Some rules may be beneficial; others may not be. The test is the proposed rule’s likely consequences, and this calculation varies widely amongst people. Hence even while condoning a political morality emphasising rights a particular sceptic could quite consistently condemn, let us say, Bills of Rights for the too great vagueness, uncertainty and shift of power rights in that form introduce. Likewise a consequentialist rights advocate says only that some set of rights in some form is best.

My rule-consequentialist backing for rights, though, is explicitly repudiated by Mackie. Not for him some “extensional equivalent”¹⁰² to rights in terms of consequences, much less rights’ subordination to something else more basic or fundamental. He takes a second tack. Utility fails to explain morality he argues.¹⁰³ It was not usefulness per se, or the mere fact that morality is beneficial, that led to its adoption. Rather conventions of reciprocity better explain its adoption.¹⁰⁴

This broadside by Mackie against the explanatory powers of utility and useful consequences is, in my opinion, perfectly correct. Unfortunately it is nothing to the point. It confounds perspective (i) and perspective (iii), explanation and recommendation. Just as conceptual analyses of the language and structure of ordinary moral thinking do not foreclose proposals that moral thinking henceforth be done in some other way, so too preferred moral principles need not resemble or mimic the processes that have actually (or allegedly) shaped morality. To concede that some principle fails to explain the actual existence of morality does not diminish a recommendation on behalf of that same principle. Consequently Mackie’s perspective (i) comments are, in the context of perspective (iii), a red-herring.

We can again ask, therefore, just why it is that Mackie advocates a rights-based moral theory and one that he “hopefs]... will not turn out to be an extensional equivalent [of rule- consequentialism]”.¹⁰⁵ In all three of his articles he clearly disputes the existence of objective, mind-independent moral values after all. Indeed, at times he seems to allow that his rights-based theory is a mere raw preference:

1 am not claiming that it is objectively valid, or that its validity can be found out by reason: I am merely adopting it and recommending it for general adoption as a moral principle.¹⁰⁶

This allowance, though, is obfuscated by the passage that immediately precedes it:

Any right-based moral or political theory has to face the issue whether the rights it endorses are ‘natural’ or ‘human’ rights, universally valid and determinable a priori by some kind of reason, or are historically determined in and by the concrete institutions of a particular society, to be found out by analysis of its actual laws and practices. However, the view I am suggesting straddles this division.

The fundamental right¹⁰⁷ is put forward as universal.¹⁰⁸

Yet what is his suggestion? Is it a) that Mackie is merely recommending rights, in particular one which can be considered fundamental and universal (from which others could be derived) or b) that rights (or at least one right) are universal and fundamental and hence the recommendation? Coherence demands of a sceptic that it be a), yet talk of ‘straddling the division’ and of a ‘universal right’ hints at something more like b). To be transparent what Mackie should have said is that he simply recommends rights, one of which he recommends be of universal scope and fundamental importance. Nothing more, for if he meant more than that and he still disavowed seeking support from consequences then he would have to explain how the universality, fundamentality and basicness of his rights-based theory squared with his moral scepticism — an impossible task in my opinion.

We are left with the question of whether a purportedly unsupported, underivative, bald preference for rights is merely a notational variant of rule-consequentialism. It is not. Mackie, or anyone else, is free to assert some proposition such as, ‘Whatever the consequences, however dreadful or wonderful, I happen always to prefer an RBT.’ In other words, the evaluator rests his case on the fact of his own feeling or sentiment — on the fact that he likes or dislikes RBTs — and on nothing further.¹⁰⁹ Such a position is neither incoherent nor a notational variant of rule-consequentialism. It makes no final appeal, however indirectly, to consequences but instead makes it to a particular person’s sentiments — the evaluator’s.

One cannot argue with another person’s sentiments. However, others, those others with differing sentiments at any rate, are likely to balk if asked to accept a recommendation on this basis alone. More importantly, I do not believe it to be so easy to ignore consequences. I certainly do not believe that Mackie means to recommend rights in spite of consequences. Quite the contrary, I read him as saying that emphasising rights, respecting rights and thinking at the practical, ordinary, day-to-day level in terms of rights has good consequences. That is, Mackie does not really disavow consequences at all. And if this be the case then Mackie’s preference for rights is a mere notational variant of some form of rule consequentialism.¹¹⁰

I say Mackie does not really disavow consequences at all because of the way his argument places such importance on protecting the separate interests of individuals,'" how it looks to the purpose of a moral system,"² and how it insists there are only prima facie, not conclusive or final, rights that will in practice come into conflict with one another."³ What are these if not appeals to or an awareness of the ultimate sovereignty of consequences? Indeed all of Mackie’s arguments can, in my opinion, be re-cast in rule-consequentialist terms, in terms of the long-term benefits of rules (and thus rights) which recognise and protect separate individual interests etc. Add to this the belief, say, that human nature and failings are such that rules, whatever the short-term, particular circumstances and likely consequences, must always be upheld and you have both a strict committment to a rights-based moral theory and a strict, unbending, Humean-style rule-consequentialism. Reading Mackie’s predilection for a rights-based moral theory in this fashion attributes to him the view that support for rights, indeed ordinary thinking emphasising basic rights, uniformly coincides — and never conflicts — with actual long-term best consequences given everything we know about human inadequacies, tendencies and abilities.¹¹⁴ Otherwise, were the reconciliation ever to fail, there would be situations — however fantastic, rare and absurd — in which appeal would not be to rights but would be directly to consequences. Mackie would then be wrong in confining ‘acceptable moral theories to right-based ones’¹¹⁵ or their notational variants.

Having said that Mackie’s preference for rights is best comprehended as a notational variant of an unbending rule- consequentialism (rather than as a bald recommendation for rights in spite of any and all consequences), my own differing, non-Mackiean view about rights is quite easy to state. 1 am not inclined towards an absolutely rigid, inflexible rule-consequentialism. I would urge respect for rights, but not against all bargains with consequences. There are, in Mackie’s words, “some very unusual situations, or some fantastic imagined situations”¹¹⁶ in which I would ignore rights, contravene rules and look directly to consequences. I would do this, and recommend it to others, because I do not agree that following rules (or in equivalent terms, respecting rights) always produces best consequences once a sufficiently long-term, indirect, realistic vantage has been adopted.

Let us imagine one of Mackie’s fantastic situations, a rather hackneyed one in which a terrorist has been captured but only after he managed to hide an armed atomic bomb due to explode in one hour. There are no clues as to the bomb’s location and the terrorist will not talk. Evacuation is impossible. All normal avenues of response are foreclosed by time constraints. (And to buttress this hypothetical situation further assume that all these beliefs are honestly held by virtually all people aware of the situation. There is no easy way out.) Should the terrorist be tortured? (Assume yet further that there is a fair chance that sufficiently brutal torture will succeed.) Is it morally right that he be tortured? Should any right he has not to be treated that way be jettisoned in deference to the overwhelmingly bad consequences of not torturing? I cannot help but feel the answer to all these questions is ‘YES’. In some situations abiding by generalised rules formulated on the basis of experience simply does not accord with best results. And this imagined situation shows why because it can hardly be asserted that in the long, long, long, long-term — even after allowing for the harm of such a precedent and all other drawbacks —- consequences will be better if our terrorist is not tortured. To make the case conclusive, alter the hypothetical so that the bomb has the power to destroy the world. I repeat, I would torture the terrorist.¹¹⁷ Moreover, I do not see on what ground a moral sceptic like Mackie could refuse¹¹⁸ unless it be solely and exclusively on his own personal aversion and antipathy to torture. To say he would torture to protect others’ rights would be spurious at best, casuistical at worst. The horrendous consequences of a mass extinction can, of course, be transliterated into a breach of rights to life. But surely for the second-order moral sceptic who assigns no higher, real, mind-independent or logically necessary status to rights it is more honest, at least in this fantastic, extreme situation, to speak in terms of factual consequences which are externally imposed, real, and mind-independent. Sentiments supervene on these to motivate action after all, not on to rights per se.

My recommendation on behalf of rights is, I hope, now more clear. I am in favour of establishing rights because experience shows they have good long-term consequences. But the link is not ineluctable. There are situations in which consequences, however measured, tell against rights and rules. I suspect such situations are few and far between and would be chary of condoning direct appeals to consequences in all but extreme cases. Humans simply are not much good at directly estimating consequences, and are too tempted by other desires and inclinations anyway, so that wisdom dictates a large margin of error be allowed. Enforcing rights limits power, establishes standards allowing expectations to grow and be met, and even recognises the separateness of persons. On this basis rights can be seen as a form of goods. They should not be ignored lightly. Yet there will be rare occasions when rights and rules should be contravened; uncommon this will be but I can give no more solid test than that. Deciding when to contravene rights and rules will, after all, be as contentious, disputed and contested as the goodness and content of the rights themselves. (It is exactly this foreseeable disagreement that necessitates a social dispute resolution mechanism^{1 9} like majority-voting. For the sceptic no ‘right’ answer underlies this, or any other evaluative, disagreement.) Nevertheless if kept to rarities, breaches will not after all undermine rules and rights. Most people are able to discriminate between the day-to-day and the aberrant. In extreme situations most people, including moral realists, the great majority, will look ^sympathetically on actions judged to be aimed at good consequences. ² In any event, consequences are the last, indeed only, inter-subjective refuge of the second-order moral sceptic and it is on the basis of consequences themselves that I would recommend a political morality which adopted fairly hard and fast rights and rules.

Does my particular version of a rights-based political morality protect individual separate interests? Overwhelmingly it does, but not in every single instance. In those few instances where it does not I can only say that pooling or aggregating interests seems to my sentiments preferable to a strict inviolability of individuals.¹²¹ Will most people, in practice, find it difficult to distinguish the ordinary, intuitive level of rights and dispositions from the verifying level in terms of consequences? Perhaps. However the pervasiveness of beliefs based on some form of moral realism which makes direct appeals to ‘real’ rights and duties suggests that this question is misplaced. More to my point would be the charge that a moral sceptic, who is persuaded by the general benefits of rule- consequentialism, must soon fall victim in practice either to the Scylla of an unwavering attachment to rights (i.e. ordinary level dominates) or to the Charybdis of constant, direct appeals to consequences (i.e. verifying level dominates)? With all respect to Mackie’s contrary opinion, I do not see why a moral sceptic must succumb to either of these dangers or find it difficult not to do so.

This brings me to my last comment on rights, a fitting one I think with which to end. It is that sentiment is largely on their side. The language of rights is fine-sounding and has a powerful rhetorical appeal. And while Mackie would never fall victim to mere rhetoric, even he can be categorised as siding with his sentiments over his scepticism when presenting his rights-based moral theory. Whether this be a criticism 1 do not know. For my part I usually prefer the irony of Hume. One can enjoy illuminating morality’s causal, natural foundations and emasculating all transcendental, objective, mind­independent claims on its behalf — just as with theistic religious assertions — and yet not expect the popularity of such claims to wane much.

Accordingly, the whole project of designing a complete and comprehensive moral theory (in the perspective (iii) sense at least) is suspect. Mackie grants as much himself in thinking it exorbitant to expect a moral theory to be capable of resolving all conflicts.¹²² It is essential that the moral realm, the realm of non-legal rights and rules, be supplemented by law, the realm of laying down, choosing and adopting. Anyway, it is much easier to alter legal rules than the existing, and largely unplanned, moral norms and standards. That is another reason why I have said that creating enforceable legal rights is what really matters and where recommendations can have best effects.

In this rather lengthy chapter I have looked at rights from various standpoints and in the process attempted to formulate a rich, coherent account of them, one which also accepts that there simply are no transcendent, objective, logically mandated moral values. Along the way I have discussed the status and source of rights, the ways in which moral obligations can and cannot be shaped out of empirical facts, Bills of Rights, and preferred political moralities while, 1 hope, remaining true to the spirit of a Humean scepticism.

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