A JUSTIFICATION FOR RIGHTS David Benatar Town Thesis Presented for Capethe Degree of DOCTOR OFof PHILOSOPHY in the Department of Philosophy UNIVERSITY OF CAPE TOWN August 1992 University The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University • CONTENTS ABSTRACT 1 ACKNOWLEDGEMENTS 11 INTRODUCTION 0.1) THE RHETORIC OF RIGHTS 1 0.2) A BRIEF HISTORY OF THE CONCEPT OF NATURAL RIGHTS 6 0.3) CLARIFYING SOME TERMS 10 0.4) THE AIM OF THIS PROJECT 17 CHAPTER 1: THE NATURE OF RIGHTS 1.1) HOHFELD'S ANALYSIS AND THE CORRELATIVITY OF RIGHTS 19 1.2) THE STRENGTH OF RIGHTS 23 1.3) WHY NATURAL RIGHTS MUST BE NEGATIVE 26 CHAPTER 2: JUSTIFICATIONS FOR RIGHTS 2.1) INTRODUCTION 33 2.2) AUTONOMY AND KANT 34 2.3) AGENCY AND GEWIRTH 38 2.4) CONTRACTUALISM AND RAWLS 43 2.5) CRITIQUE 59 CHAPTER 3: UTILITARIANISM AND RIGHTS 3 .1) WHAT IS UTILITARIANISM? 65 3.2) PROBLEMS WITH UTILITARIANISM 66 3.3) RULE-UTILITARIANISM 74 3.4) DWORKIN: UTILITY AND THE RIGHT TO MORAL INDEPENDENCE 83 CHAPTER 4: INDIVIDUALS AND SOCIETY 4.1) INDIVIDUALS AND UTILITARIANISM 89 4.2) NON-REDUCTIONIST VIEW OF SOCIETY 91 4.3) REDUCTIONIST VIEW OF INDIVIDUAL PERSONS 94 4.4) UTILITARIAN IMPLICATIONS 98 4.5) THE MORAL SIGNIFICANCE OF INDIVIDUALS 105 CHAPTER 5: WELL-BEING 5.1) PLEASURES, DESIRES AND NEEDS 108 5.2) SUBJECTIVE AND OBJECTIVE VIEWS OF WELL-BEING DEFINED 119 5.3) SUBJECTIVE AND OBJECTIVE VIEWS OF WELL-BEING EVALUATED 121 5.4) SUBJECTIVE AND OBJECTIVE THEORIES 126 CHAPTER 6: CONNECTING RIGHTS TO WELL-BEING 6.1) WELL-BEING AND THE VARIETY OF MORAL CONCEPTS 128 6.2) THE IMPORTANCE OF RIGHTS 130 6.3) AN ABSOLUTE RIGHT AS EXISTING FROM A THRESHOLD ON A SCALE OF HARM 135 6.4) QUALIFYING THE IDEA THAT ABSOLUTE RIGHTS EXIST FROM THRESHOLDS ON SCALES OF HARM 141 6.5) NON-ABSOLUTE NATURAL RIGHTS 142 CHAPTER 7: WHAT ABSOLUTE RIGHTS ARE THERE? 7.1) INTRODUCTION 144 7.2) LIFE 145 7.3) INJURY 147 7.4) PAIN 148 7.5) LIBERTY 149 7.6) WHY THERE IS NEITHER A NATURAL NOR AN ABSOLUTE RIGHT TO PROPERTY 151 7.7) DETERMINING THE LEVEL OF RIGHTS THRESHOLDS 156 CHAPTER 8: WHAT CREA TURES HA VE RIGHTS? 8.1) INDIVIDUALS AND MORALLY RELEVANT WELL-BEING 159 8.2) ANIMAL PAIN 161 8.3) ANIMAL LIBERTY 162 8.4) ANIMAL INJURY 163 8.5) ANIMAL LIFE 164 8.6) THE MORAL STATUS OF DIFFERENT CREATURES 166 CHAPTER 9: GROUP RIGHTS 9.1) GROUPS AND RIGHTS 168 9.2) THE APPEAL OF GROUP RIGHTS 170 9.3) WHY THERE ARE NO ABSOLUTE GROUP RIGHTS 172 9 .4) THE IMPORTANCE OF GROUP INTERESTS 175 CHAPTER 10: ANSWERING OBJECTIONS TO RIGHTS 10.1) INTRODUCTION 180 10.2) BENTHAM: MORAL RIGHTS AS ANARCHICAL FALLACIES 180 10.3) AGAINST RIGHT-BASED THEORIES 192 10.4) AGAINST THE ONTOLOGICAL INDIVIDUALISM OF RIGHTS 197 10.5) MORAL OBJECTIONS 198 10.6) OBJECTIONS THAT RIGHTS ARE HISTORICALLY LIMITED AND ETHNOCENTRIC 205 CHAPTER 11: CONCLUSION 11.1) A THEORY OF RIGHTS 208 11.2) THE PROBLEM OF CATASTROPHIC SITUATIONS 210 BIBLIOGRAPHY 217 i ABSTRACT A JUSTIFICATION FOR RIGHTS This thesis provides an argument in favour of there being natural rights. Such rights are rights which creatures necessarily have in virtue of their nature alone. These are to be distinguished from non-natural rights which may or may not be acquired. It is argued that natural rights possess three features: (1) they have correlative duties; (2) they have great strength; and (3) they are exclusively negative. It is argued further that that the strength of some natural rights must be absolute. One chapter is devoted to arguing against the justifications for rights advanced by Immanuel Kant, Alan Gewirth and John Rawls. Another chapter shows that the problem with utilitarianism is that it cannot satisfactorily accommodate rights. This thesis claims that morality must be connected to well-being and that well-being should be understood objectively rather than subjectively. Further, it advances the view that since individuals, rather than societies or temporal stages of individuals, are the morally significant units of existence, morality should be connected to the well-being of individuals. It is then argued that a moral tool possessing the features which absolute natural rights possess is essential to moor morality to individual well-being. Given the great strength of absolute rights, they must protect only the most important objective interests an individual subject has and they must protect against only the most severe violations of these interests. Various scales of harm to the individual are envisaged, including scales of pain, injury and restriction of liberty. The view is advanced that absolute rights come into existence at a particular threshold on these I I scales, absolutely protecting the individual from having to make a sacrifice of that I degree or greater. Although absolute natural rights have this important function they I are not seen as being the only principles on the moral landscape or even the only non- derivative ones. A few chapters are devoted to applying the theory to a number of questions, including what absolute rights there are and what creatures have rights. The thesis also answers a number of common criticisms of natural rights. David Benatar 41 Willow Road, Newlands, 7700, Cape Town, South Africa. August 1992 J _ ___./,__·-~------ --- . ii ACKNOWLEDGEMENTS I sincerely thank my supervisor Dr Denise Meyerson for her conscientious attention to my work and for her incisive and critical comments which have been invaluable. I presented some of my work at staff seminars in the philosophy department at the University of Cape Town and am thankful for the comments which were offered. I was privileged to spend some time visiting the philosophy department at the University of Arizona at the beginning of 1991. I was made to feel very welcome and I benefi tted from attending seminars and lectures as well as from discussions with Professor Joel Feinberg and other members of the department. Special thanks are due to Professor Allen Buchanan for facilitating this visit and for the useful comments he made on the drafts of a number of chapters. I am grateful to the University of Cape Town for awarding me a Research Associateship in 1992. Finally I should like to thank my family for their encouragement - my brothers for their support and computer assistance, my mother who first introduced me to philosophy many years ago and my father who has come to share my interest in philosophy. j 1 INTRODUCTION 0.1) THE RHETORIC OF RIGHTS Popular moral and political debate in this half-century is characterized and dominated by talk about rights. This is witnessed at the international level by the numerous international statements about human rights: the Charter of the United Nations (1945); the Universal Declaration of Human Rights (1948); the European Convention for the protection of Human Rights and Fundamental Freedoms (1950); the Covenant on Economic, Social and Cultural Rights (1966); the Covenant on Civil and Political Rights (1966); the Helsinki Accord '( 1975) and others. At the national level numerous liberation struggles have appealed to a right to self-determination. At the Individual level, moral and political conversation is riddled with talk about and claims of rights. Furthermore, talk about rights has not been characteristic of only one culture during this period. Appeal to rights has not been the preserve of the west. Almost everybody has at least declared support for the concept of rights, although the interpretation of what this means and what rights there are has varied considerably. Rights are in vogue. Everybody wants them and everybody wants to say that they respect them. To say otherwise is to be morally and politically impolite, even boorish. Governments and individuals do not wish to have it said of them that they violate rights. It is regarded as a slur of the worst order to be accused of rights-violation. The preoccupation with rights over the last five decades is due in no small part to the, horrors of Nazism during the Second World War. The planned and methodically executed murder of millions of innocent people for the purposes of racially purifying 2 Europe shocked the conquering allies and spurred concerns about rights. Hence th~ numerous declarations of rights in the post-war years. The reaction to the Nazi. atrocities is understandable. However, the pendulum has swung its full arc. So headstrong was the attempt to restore the dignity of persons by recognizing their rights, that these rights have become an obsession. Though rights dominate contemporary popular moral debate, it is a rhetoric of rights, not a coherent theory of rights. The concept of rights has been and continues to be abused. In popular circles this trend is not easily criticised because critics of rights discourse are seen as moral heretics. As I see it, there are two important manifestations of the abuse of the concept of rights. Firstly, appeals to rights have popularly become a substitute for moral argumentation. Instead of carefully arguing what one ought to do in a particular situation, people simply claim a right. They then believe the moral question settled because, as I shall show in the next chapter, rights are a particularly strong kind of moral consideration.