3.4 Debates about rights
There are at least four big debates about modern individual rights. The aim in putting these before you is to introduce these hotly contested issues to which there are no conclusive answers, but which help frame discussions about human rights. Considering these debates is designed to help you weigh up the different arguments and form your own opinions about the meaning and effectiveness of rights claims.
The first debate concerns how our rights are grounded. One view is that our rights as individuals are natural, that is, basic and human rights which transcend any country or culture we live in, accord with our moral intuitions, and are ‘inalienable’ or cannot be legitimately taken away. The outline of the thinking behind modern human rights discourse discussed in Section 3.2 is often presented in these terms. The opposing view holds that our rights are always cultural – whether they come from a religious source, from an explicit or tacit social contract, or simply from the social practices and traditions that have evolved in a specific community. In other words, do rights reflect a natural order that lies behind the shifting appearance of all contemporary societies, somehow prior to any particular social and political organisation? Or do they depend only upon their meaningfulness within a culture? Do rights claims provide their own transcultural justification or do they only make sense in terms of the justification given in the particular society we live in and as established in its legal norms?
The second debate centres on whether legal, civil and political rights need to be underpinned by social and economic rights in order to be effective. This is the belief that we can only fully enjoy our legal, civil and political rights if we have equal opportunity on the basis of a right to education, a right to work, a right to decent housing, a right to health care, and a right to welfare. Those against accepting social and economic rights as having the same status as ‘basic’ rights, make the case that rights are principles which do not involve costs. So-called social and economic rights are not rights at all, they say, for such things involve huge costs by governments, while legal, civil and political rights are cost-free. An example of this view is that it costs nothing to have a right to free speech.
Looking back to Section 3.2 at the kinds of duties which Henry Shue considered are needed to make rights claims effective, how do you think he might reply to this argument?
Those in favour of social and economic rights (sometimes called positive rights) as the basis of legal, civil and political rights (sometimes called negative rights because they are freedoms from various kinds of unwarranted intervention) argue that no such sharp distinction between the two types of rights can be maintained. They claim that even negative rights involve costs to protect and enforce them, such as a police force, a prison service and a judicial system. At this level, the key distinction would appear to be ‘not between different categories of right, but between different types of duty necessary for their protection’ (Beetham, 1999, p. 126). On this basis, writers like Amartya Sen (1999) and Martha Nussbaum argue that a certain minimum quality of life is required in order for individuals to be able to exercise their human capabilities (Nussbaum and Sen, 1993).
The third debate centres upon whether it is sensible to talk about group rights as well as individual rights. Some rights, such as the right to marry and the right to have children, can only be exercised collaboratively, and some rights are relational, for example, the right of a child to be parented. Yet these are still, essentially, rights held by individuals. The argument for group-specific rights, developed by writers like Iris Marion Young (1990), is that the rights of minorities and other self-identified groups on the basis of a shared characteristic need to be explicitly protected. In one sense, of course, this is not a new idea, since the right to national self-determination – that is, a group right for a people to govern itself – is widely and generally accepted. Group-differentiated rights, however, typically refer to groups within or sometimes across a political community, and are advocated so that the interests of the majority do not override those of the minority. Furthermore, without the right (for instance, to exemption from a dress code associated with a particular profession, or to the slaughter of animals for food in a certain manner), it is held that a form of injustice important to group members would occur. The hard cases arise when the claims of the group (for example, to educate its children in a particular language) conflict with the freely chosen claims of some of its individual members.
Group rights claims might involve important practical issues such as special forms of political representation (to empower participation in democratic politics), education rights or language rights. For instance, James Tully's (1995) important discussion of group rights in Canada analyses the claims of English- and French-speaking Canadians as well as first-nation Canadians. Another example is land rights claims in the post-colonial period, promoting the status and rights of groups such as native Americans, Australian Aborigines, and the New Zealand Maoris.
The fourth debate concerns how far the stretching of rights claims can go. Can they be expanded indefinitely? To illustrate, there is a move in the USA to assert the rights of those allergic to deodorants, shampoos and perfumes to a public world in which these substances are banned for us all. A further instance is whether sales of military arms could be challenged on the grounds that arms sales will result in human rights violations. Does an infinite expansion devalue the currency of rights? Possible areas for the growth of rights claims in the current climate include the rights of future generations, the environment, animals and cyborgs.
Do you think we are likely to take these new kinds of rights more seriously in the future?
Relevant to this question is whether, in order to qualify for a right, one needs to have not only an interest, but also the potential for articulating and claiming that interest, and for ordering conflicting desires. On these grounds, future generations, the environment, animals and cyborgs would not qualify. Moreover, as we noted above, it is said that only a moral agent (defined as someone capable of recognising a moral duty) can have a moral right. If this is so, might it be that future generations have a narrow legal right rather than a fundamental human moral right? And what about the rights of children and those with severe mental disorders?
This line of thought leads to the argument against the arbitrary and endless proliferation of rights claims. Such endless proliferation, critics maintain, reduces all moral talk to rights claims, which takes away the specialness of rights claims and the impact they can have. Furthermore, according to this view, we all have our own definitions of what is valuable to us and this ‘value pluralism’, a central principle of liberalism, should be encouraged. However, these values should not be translated into rights and imposed by the state on everyone; the state should not be in the business of promoting particular goals for its citizens. We should accept that value pluralism is inevitably going to lead to conflicts, and that if all values are translated into rights, rights will conflict as well. We have a right to hold different values as important, a right to value pluralism.
In addition, critics argue, the language of rights creates a social atmosphere of grievances and victims. ‘Rights talk’ polarises disagreement within national contexts. For instance, the right to life in the USA is claimed both by those in favour of abortion rights in terms of women's rights to choose and women's health, and by those in favour of foetal rights and against abortion. This perspective maintains that ‘rights talk’ also encourages a legalistic view. It transforms moral, social, cultural and political matters into legal ones, and misdirects people to the courts to seek redress.