The role of rights in practical reasoning: "Rights" Versus "Needs

Journal of Ethics

Volumn 4, Issue 1-2, 2000, Pages 115-135

  Waldron, Jeremy ^a  

^a Columbia University ^*  (United States)

Author keywords

Individualism; Liberalism; Need; Rights

Indexed keywords

EID: 22044432952     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1023/a:1009860320069     Document Type: Article

References (74)

1. Jackson v. City of Joliet, 715 F2d 1200, 1204 (7th Cir. 1983). Mark Tushnet, "An Essay on Rights," Texas Law Review 62 (1984), p. 1363, at p. 1394.
2. See the excellent account of the impact of this practice William E. Forbath, "The Shaping of the American Labor Movement," Harvard Law Review 102 (1989), pp. 1109-1256.
3. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).
4. Alexis de Tocqueville, Democracy in America, trans. H. Reeve (New Rochelle: Arlington House, n.d.), Vol. I, Ch. XVI, p. 270: "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language usual in judicial proceedings, in their daily controversies." Lawrence Friedman expresses something similar when he observes that life in modern America has become "a vast, diffuse school of law": Lawrence Friedman, "Law, Lawyers and Popular Culture," Yale Law Journal 98 (1989), p. 1579, at p. 1598
5. quoted in Glendon, Rights Talk, p. 3.
6. I adapt this phrase from Glendon's title, Rights Talk.
7. See e.g. Jeremy Bentham, "Supply Without Burthern," in Jeremy Waldron, Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987), pp. 72-73:
8. "What a legal right is I know. I know how it was made .Right is with me the child of law: from different operations of law result different sorts of rights. A natural right is a son that never had a father.
9. See Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979) for an account of the different forms that this took.
10. See John Locke, Two Treatises ofGovernment, ed. P. Laslett (Cambridge: Cambridge University Press, 1988), II, Sections 222ff.
11. John Rawls, A Theory of Justice (Harvard: Harvard University Press, 1971), p. 27.
12. See H.L.A. Hart, "Natural Rights: Bentham and John Stuart Mill," in his collection Essays on Bentham: Jurisprudence andPolitical Theory (Oxford: Oxford University Press, 1982), pp. 79-90.
13. See also Carl Wellman, A Theory of Human Rights: Persons under Laws, Institutions, and Morals (New York: Rowman and Allenheld, 1985), Chapter 5 and Jeremy Waldron (ed.), Theories of Rights (Oxford: Oxford University Press, 1984), "Introduction," p. 5
14. For an excellent argument, see Joseph Raz, "Right-Based Moralities," in Waldron (ed.), Theories of Rights, op. cit. Tushnet, An Essay on Rights, p. 1375.
15. Brain Barry believes, I think mistakenly, that this instrumental sense of "need" is the only sense. He says: "Whenever someone says 'Xis needed' it always makes sense (though it may be pedantic in some contexts) to ask what purpose it is needed for." From this he concludes that political philosophers need not concern themselves particularly with the concept ofneed as such, "for it is.derivative and the only interesting questions arise in connection with the ends" [Political Argument (London: Routledge, 1965), pp. 48-49].
16. David Miller, Social Justice (Oxford: Clarendon Press, 1976), p. 130.
17. See also David Wiggins, "Claims of Need," in Ted Honderich (ed.), Morality and Objectivity (London: Routledge, 1985), pp. 153-159.
18. Herbert Marcuse, One Dimensional Man (London: Abacus Books, 1968), pp. 21-23.
19. James Griffin, Well-Being: Its Meaning, Measurement and Moral Importance (Oxford: Clarendon Press, 1986), p. 42.
20. As Amartya Sen points out, People have been known to survive with incredibly little nutrition, and there seems to be a cumulative improvement of life expectation as dietary limits are raised. In fact, physical opulence seems to go on increasing with nutrition over a very wide range; Americans, Europeans, and Japanese have been growing measurably in stature as their diets have continued to improve. There is difficulty in drawing a line somewhere, and the so-called "minimum nutritional requirements" have an inherent arbitrariness that goes well beyond variations between groups and regions.
21. Amartya Sen, Poverty and Famines (Oxford: Clarendon Press, 1981), p. 12.
22. Cf. "Lear: 'O, reason not the need! Our basest beggars / Are in the poorest thing superfluous. / Allow not nature more than nature needs, / man's life is cheap as beast's." William Shakespeare, KingLear, II. 4.
23. CLS discussions of these matters show little awareness of the extensive literature in modern philosophy and political theory reflecting on conceptual indeterminacy. See: W.B. Gallie, "Essentially Contested Concepts," Proceedings of the Aristotlean Society 56 (1955-1956);
24. Alasdair Macintyre, "The Essential Contestability of Some Social Concepts," Ethics 84 (1973);
25. Hanna Pitkin, Wittgenstein and Justice (Berkeley: University of California Press, 1993);
26. W. E. Connolly, The Terms of Political Discourse (Oxford: Martin Robertson, 1983);
27. Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press), pp. 31-113.
28. Wiggins, Claims of Need, pp. 188-189.
29. Michael Ignatieff, The Needs of Strangers (London: Chatto and Windus, 1984), p. 51.
30. See also Hannah Arendt, The Origins of Totalitarianism, second edition (New York: Meridian Books, 1958), p. 299: "The world found nothing sacred in the abstract nakedness of being human" (I should point out, however, that in context Arendt's remark is an attack also on the idea of rights grounded simply in human nature).
31. Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge: Harvard University Press, 1991), pp. 151-152.
32. Cf. G.E.M. Anscombe, Intention (Oxford: Blackwell, 1957), p. 16: "The primitive signofwantingistryingtoget.
33. I have stressed the active aspect of deprivation in "Homelessness and the Issue of Freedom," UCLA Law Review 39 (1991), pp. 295-324, esp. pp. 303-304 and 324.
34. For "system ofneeds," we have to turn either to G.W.F. Hegel's comments about the market in Elements ofthe Philosophy of Right, trans. Allen Wood (Cambridge: Cambridge University Press, 1991), paras. 189-208, or to Karl Marx's desultory comments in the Critique ofthe Gotha Program and elsewhere.
35. Immanuel Kant, Metaphysical Elements of Justice, trans. J. Ladd (Indianapolis: Bobbs-Merrill, 1965).
36. For the "kingdom of ends," see Kant, Groundwork to the Metaphysics of Morals, trans. H.J. Paton sub nom., The Moral Law (London: Hutchinson, 1948), Chapter II, pp. 100-103.
37. See also Martha Minow's excellent discussion in Making All the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press, 1990), pp. 277ff.
38. It is easy to denigrate as a form of atomism this essentially liberal concern with establishing boundaries between persons. Patricia Williams reminds us that such denigration is unlikely to appeal to those whose historical experience has been "generations ofexisting in a world without any meaningful boundaries - and 'without boundary' for blacks has meant not untrammeled vistas of possibility but the crushing weight of total - bodily and spiritual - intrusion" (Williams, The Alchemy of Race and Rights, p. 164).
39. Karl Marx, "On the Jewish Question," in Jeremy Waldron (ed.), Nonsense upon Stilts: Bentham Burke and Marx on the Rights of Man (London: Methuen, 1987), pp. 146-147
40. cited by Glendon, Rights Talk, p. 47.
41. The terminology is mine, but I owe the idea to Loren Lomasky.
42. This congruence will fail, however, if you and I are engaged in an essentially competitive struggle: for then not interfering with you may seem a way of undermining rather than promoting the successful exercise of my rights.
43. For a discussion, see Jeremy Waldron, "Rights in Conflict," Ethics 99 (1989), pp. 503-519.
44. Glendon makes a big deal of this in Chapter 4 of Rights Talk. Marx, "On the Jewish Question," p. 144.
45. See T.H. Marshall, "Citizenship and Social Class," in Class, Citizenship and Social Development (New York: Doubleday, 1964);
46. Ralf Dahrendorf, The Modern Social Conflict: An Essay on the Politics of Liberty (London: eidenfeld and Nicholson, 1988), Chapter 2;
47. Desmond King and Jeremy Waldron, "Citizenship, Social Citizenship and the Defense of Welfare Provision," British Journal of Political Science 18 (1988), pp. 415-443.
48. See James Tyrrell, Patriarcha non Monarcha (1681), cited in Thomas A. Horne, Property Rights and Poverty: Political Argument in Britain, 1605-1834 (Chapel Hill: University of North Carolina Press, 1990), p. 43.
49. John Locke, Two Treatises of Government, I, Section 86, pp. 204-205 and II, Section 25, pp. 285-286.
50. Locke, Two Treatises of Government, I, Section 42, p. 170 (my emphasis).
51. Glendon asserts that Locke repudiated "the idea of the human person as "naturally" situated within and constituted through relationships of care and dependency" (Glendon, Rights Talk, p. 70.) But a philosopher who begins his discussion of civil society with the following passage
52. God having made Man such a Creature, that, in his own Judgment, it was not good for him to be alone, put him under strong Obligations of Necessity, Convenience, and Inclination to drive him into Society, as well as fitted him with Understanding and Language to continue and enjoy it. The first Society was between man and Wife, which gave beginning to that between Parents and Children;.(Locke, Two Treatises of Government, II, Section 77, pp. 318-319)
53. can hardly be accused of atomism or of neglecting the natural interdependence of human beings. Locke had no difficulty in using the language of rights to describe family responsibilities. Children, he said, have "a Right to be nourish'd and maintained by their Parents" for "men being by a like Obligation bound to preserve what they have begotten as to preserve themselves, their issue come to have a Right in the Goods they are possessed of" (Locke, Two Treatises of Government, I, Sections 88-89, p. 207). [Incidentally, the passage cited by Glendon - Two Treatises, I, Sections 57-58, p. 182 - establishes only Locke's awareness of the fact that human practice does not necessarily coincide with natural law in this regard.]
54. Williams, The Alchemy of Race and Rights, p. 152.
55. Thus Miller, Social Justice, p. 129:
56. The point is that wanting is a psychological state, which is ascribed on the basis of a person's avowals and his behaviour (we use behaviour as a criterion when we cannot ask the person directly to tell us what he wants, or when we think he is being disingenuous). Needing, on the other hand, is not a psychological state, but rather a condition which is ascribed "objectively" to the person who is its subject.
57. A suspicion of this sort of expertise explains much conservative opposition to needs-talk: see, e.g., Antony Flew, The Politics of Procrustes: Contradictions of Enforced Equality (London: Temple Smith, 1981), pp. 117-137. But it should not be confined to the Right: the language of needs is, in Michel Foucault's terms, the expert language of disciplinary power, the language of normalization and the science of the body
58. see e.g., Michel Foucault, "Two Lectures" in his collection Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, ed. Colin Gordon (New York: Pantheon Books, 1980), esp. pp. 95-108.
59. See the discussion in Waldron (ed.), Nonsense upon Stilts, pp. 195-200.
60. See Joel Feinberg, "The Nature and Value of Rights," in his collection Rights, Justice and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980)
61. Thomas E. Hill, "Servility and Self-Respect,"Monist 57 (1973), pp. 87-104.
62. See Jeremy Waldron, "Florestan, Leonora, and the Virtue of Human Rights" (in draft).
63. Condorcet, "Sketch for the Progress of the Human Mind," in Keith Michael Baker (ed.), Condorcet: Selected Writings (Indianapolis: Bobbs Merrill, 1976).
64. Williams, The Alchemy of Race and Rights, p. 164.
65. Williams, The Alchemy of Race and Rights, p. 153.
66. Williams, The Alchemy of Race and Rights, p. 164.
67. Minow, Making All the Difference, p. 277.
68. Minow, Making All the Difference, pp. 307-308.
69. See Maurice Cranston, "Human Rights - Real and Supposed," in D.D. Raphael (ed.), Political Theory and the Rights of Man (London: Macmillan, 1967).
70. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 238.
71. Nozick, Anarchy, State and Utopia, p. 238.
72. See the discussion in Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), p. 283
73. referring for example to Locke's emphasis on the priority of need over individual property rights in Two Treatises, op. cit., I, Section 42 and II, Section 25, and to Rawls's insistence in A Theory of Justice, op. cit., pp. 64, 88 and 270ff. that the determination of a basic structure by principles that respect everyone's interest in fair access to primary goods has priority over particular allocations and even over the decision as to whether there is to be private property in a whole range of resources.
74. Tushnet, An Essay on Rights, pp. 1386-1394.