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Jeremy Waldron Source: Proceedings of the Aristotelian Society, New Series, Vol Participation: The Right of Rights Author(s): Jeremy Waldron Source: Proceedings of the Aristotelian Society, New Series, Vol. 98 (1998), pp. 307-337 Published by: Wiley on behalf of The Aristotelian Society Stable URL: http://www.jstor.org/stable/4545289 Accessed: 26-08-2014 17:48 UTC Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The Aristotelian Society and Wiley are collaborating with JSTOR to digitize, preserve and extend access to Proceedings of the Aristotelian Society. http://www.jstor.org This content downloaded from 128.122.149.145 on Tue, 26 Aug 2014 17:48:47 UTC All use subject to JSTOR Terms and Conditions XV*-PARTICIPATION:THE RIGHT OF RIGHTS by JeremyWaldron ABSTRACT This paperexamines the role of political participationin a theory of rights. If political participationis a right, how does it stand in relation to other rights aboutwhich the participantsmay be makingpolitical decisions? Suppose a majority of citizens vote in favour of some limit on (say) the free exercise of religion. If their decision is allowed to stand, does that mean that we are giving more weight to the right to participatethan to the right to religious freedom? In this paper, I argue that talk of conflict (and relative weightings) of rights is inappropriatein a case like this. I arguethat the special role of participationin a theory of rights is not a matterof its being given moral priorityover other rights. Instead it's a matter of this being a right whose exercise seems peculiarly appropriate,from a rights-basedpoint of view, in situations where reasonable right-bearersdisagree about what (other) rightsthey have. I ; T he greatright of every man', said WilliamCobbett, 'the rightof rights,is the rightof havinga sharein the making of the laws, to whichthe good of the whole makesit his dutyto submit.'1What sort of rightis this?How is it justified?And how importantis it in relationto otherrights? Cobbett called it 'theright of rights',a phrasewhich when read carelessly might suggest that participationis moreimportant than the otherrights with which it might conflict. For example:exercising their right to political participation,the membersof a majorityvote in favourof some limit on (say) the free exerciseof religion;if participationis the rightof rights,it looks as thoughthe rightto religiousfreedom is goingto have to give way, in cases like this,in orderto vindicate the rightof participation.In thispaper, however, I shallargue that talkof conflictof rightsis inappropriatein this sortof case.I shall arguethat the specialrole of participationin a theoryof rightsis not a matterof its havingmoral priority over other rights. Instead 1. William Cobbett, from Advice to YoungMen and Women,Advice to a Citizen (1829), quoted in LJ. MacFarlane,The Theoryand Practice of HumanRights (London: Maurice Temple Smith, 1985), p. 142. *Meeting of the Aristotelian Society, held in Senate House, University of London, on Monday, 22nd June, 1998 at 8.15 p.m. This content downloaded from 128.122.149.145 on Tue, 26 Aug 2014 17:48:47 UTC All use subject to JSTOR Terms and Conditions 308 JEREMYWALDRON it's a matterof this being a right whose exercise seems peculiarly appropriatein situations where reasonableright-bearers disagree about what rights they have. II To begin with, what sort of right is this 'right of having a share in the making of the laws'? Karl Marx distinguished famously between the rights of man and the rights of the citizen. The rights of man-such as property, security and religious liberty-are 'nothingbut the rightsof... egoistic man, man separatedfrom other men and the community'. But the rights of the citizen-voting, eligibility for office, and the freedom to discuss and criticize the conduct of public affairs-are quite unlike the traditionalrights of man. The rights of the citizen, far from being atomistic, are 'political rights that are only exercised in community with other men.'2 The point is undeniable:one cannot understandpolitical rights in terms of the drawing of boundaries around autonomous individuals;3they are to be understoodinstead as establishing a basis on which large numbers of right-bearersact together to control and govern their common affairs.Certainly, it would be a mistake to regard political participationas a merely 'negative' right,protecting people from interference.The distinctionbetween positive and negativerights-that is, between a right correlativeto another's duty to actually do something for the right-bearer's benefit and a right correlative to another's duty to refrainfrom doing something that interfereswith the right-bearer'sfreedom- is arguably unhelpful anyway. It has all the difficulties of the philosophers' distinctionbetween acts and omissions. It faces the additionaldifficulty that a given right is usually correlativenot to single duties but to arrays of duties, some of them duties of omission, others duties of action.4And it is particularlyunhelpful in the case of political rights. 2. Karl Marx, 'On the Jewish Question', in Jeremy Waldron(ed.) Nonsense Upon Stilts: Bentham,Burke and Marx on the Rights of Man (London:Methuen, 1988), pp. 144-6. 3. Or 'hyper-planesin moral space', or whatever other nerdy jargon we use: Cf. Robert Nozick, Anarchy,State and Utopia (Oxford:Basil Blackwell, 1974), p. 57. 4. See JeremyWaldron, 'Rights in Conflict' Ethics, 99(1989), 503-19, reprintedin Liberal Rights: Collected Papers 1981-91 (Cambridge:Cambridge University Press, 1993). This content downloaded from 128.122.149.145 on Tue, 26 Aug 2014 17:48:47 UTC All use subject to JSTOR Terms and Conditions PARTICIPATION:THE RIGHT OF RIGHTS 309 We can see this if we consider Maurice Cranston'suse of the distinctionin his attackon the inclusion of 'economic and social' principlesin the 1948 UniversalDeclaration of HumanRights: The traditional'political and civil rights'can... be readilysecured by legislation;and generally they can be securedby fairlysimple legislation.Since those rights are for the mostpart rights against governmentinterference with a man'sactivities, a largepart of the legislationneeded has to do nomore than restrain the government's ownexecutive arm. This is no longerthe case when we turnto 'the rightto work','the right to socialsecurity', and so forth.5 Whatever the case with civil rights such as religious freedom, political rightscertainly cannot be securedby legislationthat does 'no more than restrain the government's own executive arm'. The right to vote is not a matter of negative freedom to express a preferencefor one's favouritepolitician, and it is not secured by the individual'ssimply being left alone by the stateto do this when he pleases. One has the right to vote only if one's vote is counted and given effect in a system of collective decision that determines policy, leadershipand authority. To vote is to exercise a Hohfeldian power6 (albeit a heavily conditional power): it is to perform an action which (if enough others also perform it) alters the assignmentof rights and duties in the community.(It is more like executing a power of attorneythan like makinga speech.) Respect for such a right is costly, in at least two ways. First, to institutean effective system of voting requires manpower and resources. Secondly, the right to vote is costly to officials inasmuch as it makes their tenurein office vulnerableto decision-makingby the voters and requiresthem to abandonoffice whenever the voters renderan adverse verdict. It is wrong thereforeto contrastthe kinds of demandsmade in the name of political rights and the kinds of demandsmade in the name of economic and social rights. Though the latter are not Hohfeldianpowers, still rightsof both sorts requirethe institution and operationof administrativesystems; both involve manpower and resources; both presuppose a relatively stable and well- 5. MauriceCranston, 'Human Rights, Real and Supposed,' in D.D. Raphael(ed.) Political Theoryand the Rights of Man (London:Macmillan, 1967). 6. For 'power', see Wesley Necomb Hohfeld,Fundamental Legal Conceptions,asApplied in Judicial Reasoning (New Haven:Yale UniversityPress, 1919), pp. 50 ff. This content downloaded from 128.122.149.145 on Tue, 26 Aug 2014 17:48:47 UTC All use subject to JSTOR Terms and Conditions 310 JEREMYWALDRON organizedsociety; and both require governments and government officialsto do certainthings under certain conditions, not merely refrainfrom doing certain things. Butperhaps this is to taketoo superficiala view.Someone who wantedto insistthat the right to voteis a negativeright might argue as follows.The right to voteis importantonly because the exercise of politicalpower is a matterof moralconcern. And the exercise of politicalpower is a matterof moralconcern because it restricts the (negative)liberty of individuals.We argue for the right to vote, therefore,by saying (1) that individualshave a fundamental negativeright against the coercion that exercises of politicalpower involve, (2) that this fundamentalright is respectedeither by limitingthe exerciseof politicalpower or by securingthe consent of those who are subjectto it, and (3) that voting
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