Are individual rights necessary?: A confucian perspective

Confucian Ethics: A Comparative Study of Self, Autonomy, and Community

Volumn , Issue , 2004, Pages 11-30

  Ihara, Craig K ^a  

^a CALIFORNIA STATE UNIVERSITY   (United States)

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EID: 84928929858     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1017/CBO9780511606960.002     Document Type: Chapter

References (28)

1. An NEH Summer Seminar and its director, Prof. Thomas E. Hill, contributed significantly to the development of this chapter, as did the comments of many individuals present at readings of earlier drafts at the UCLA Law and Philosophy Reading Group, Moral and Political Philosophers of Orange County, the Pacific Division of the APA, and the Second Annual East Meets West Conference in Long Beach, California, as well as at University of Redlands, Chapman University, and my own campus, University of California, Fullerton. In particular I am indebted to the work of Henry Rosemont for many of the fundamental ideas presented here, and especially to Seung-hwan Lee for stimulating my thoughts on these issues. I have also received significant feedback and support from Kwong-loi Shun, David B. Wong, Paul Kjellberg, Carl F. Cranor, and anonymous reviewers for Cambridge University Press.
2. Alasdair MacIntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press, 1981), pp. 175ff.
3. Tu Wei-Ming, “Li as Process of Humanization” and “The Confucian Perception of Adulthood,” in Humanity and Self-Cultivation: Essays in Confucian Thought (Berkeley, CA: Asian Humanities Press, 1979), pp. 27, 54 (n. 23)
4. Henry Rosemont, Jr., “Why Take Rights Seriously? A Confucian Critique” in Leroy S. Rouner ed., Human Rights and theWorld’s Religions (Notre Dame, IN: University of Notre Dame Press, 1988), pp. 167-182
5. Roger T. Ames, “Rites as Rights: The Confucian Alternative” in Leroy S. Rouner ed., Human Rights and theWorld’s Religions (Notre Dame, IN: University of Notre Dame Press, 1988), pp. 199-216
6. Chad Hansen, “Punishment and Dignity in China” in Donald Munro ed., Individualism and Holism (Ann Arbor: University of Michigan Center for Chinese Studies, 1985), p. 360.
7. The claim is not simply that there is no concept of human rights in Confucianism, but there is no concept of rights at all.
8. Seung-hwan Lee, “Was There a Concept of Rights in Confucian Virtue-Based Morality?” The Journal of Chinese Philosophy, vol. 19 (1992), pp. 241-61.
9. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977)
10. Alan Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978)
11. Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990)
12. J. L. Mackie, Ethics: Inventing Right and Wrong (New York: Penguin Books, 1977)
13. A. I. Meldon, Rights and Persons (Berkeley: University of California Press, 1980)
14. Joel Feinberg, “The Nature and Value of Rights,” The Journal of Value Inquiry, vol. 4 (1970), pp. 243-7.
15. Alan Gewirth, “Why Rights Are Indispensible,” Mind, vol. 95 (1986), p. 343.
16. Feinberg, “Why Rights Are Indispensible,” Mind, vol. 95 (1986), pp. 243-7.
17. Although Feinberg and others use the term “rights” simpliciter, I maintain that their arguments are normally about the rights of individuals. More on this later.
18. I maintain that their arguments are normally about the rights of individuals. More on this later pp. 243-7. 249. This emphasis on claiming reflects Feinberg’s specific conception of rights. He specifically distinguishes his notion of claim rights from other Hohfeldian conceptions of rights such as liberties, immunities, and powers: “claim rights are distinguished from the mere liberties, immunities, and powers, also sometimes called ‘rights,’ (and) with which they are easily confused” (p. 249). For purposes of this chapter, I adopt Feinberg’s conception of rights understood as valid claims.
19. Obviously what Feinberg says about legal claiming is much more clear and forceful than those extrapolated to moral claiming.
20. Feinberg, Mind., pp. 252-3.
21. Mind p. 247.
22. I assume it is implausible that the runner has a right against the batter to lay down a bunt. At most the runner might be said to have a right to expect the batter to try and lay down the bunt, but such a right is epistemological, not a claim right. That is to say, it is a right based on having information that makes it reasonable to believe the batter will try to bunt (e.g., a bunt sign the runner sees the coach give the batter). It is not based on promises or commitments of any kind by the batter to the runner.
23. It strikes me that even those, like Seung-hwan Lee, who argue that there is a concept of rights in Confucianism agree that those rights have been seriously deemphasized. If so, and if the Western authors cited at the beginning are correct, then Confucian ethics is seriously defective for never giving rights and claiming their proper role.
24. For a discussion of the Confucian conception of human equality, see Donald Munro, The Concept of Man in Early China (Stanford, CA: Stanford University Press, 1967).
25. Herbert Fingarette, Confucius: The Secular as Sacred (New York: Harper Torchbooks, 1972).
26. Herbert Fingarette, Confucius: The Secular as Sacred New York: Harper Torchbooks, pp. 71-9.
27. There is also a case to be made, though I have only suggested it in this essay, that excessive individualism can undermine self-respect by, for example, depriving human beings of a social context within which actions have meaning. (I owe this point to Paul Kjellberg.)
28. Admittedly this analysis of rights argues for the importance of rights, but only under certain specific social conditions. This is in contrast with Feinberg and others who seem to argue for its importance without qualification. However, the view I present is not simply a utilitarian or even consequentialist conception of rights, since, as presented, it is compatible with a Rawlsian constructivism. In it, compatible with Rawls, rights can be understood as part of a reasonable solution to certain choice situations partly determined by specific social circumstances such as the lack of any shared conception of the good, and need not be conceptualized as an essential part of any morally acceptable system.