CHAPTER 1: The Foundations of Basic Rights

By Joshua Aasgaard, (C) 1995

Properly understood, rights are constraints attached to the actions and liberties of all people to which all other people are entitled. These basic rights are most often negative, requiring people to refrain from certain actions, but if firmly grounded, they also create positive rights or obligations which individuals owe to other individuals. Perhaps John Stuart Mill put it best: "Justice implies something which it is not only right to do, and wrong not to do, but which some individual can claim from us as his moral right...To have a right, then, is to have something which society ought to defend me in the possession of."1 Of course, when faced by objectors to proposed rights claims Mill simply said, "I can give no other reason than general utility."2 My purpose here is to give reasons for rights that go beyond mere utility.

Rights claims are important not only because they are ubiquitous, but because they provide an understanding of what is and should be permissible behavior. Today, rights claims are made in all corners of public and private life. Cries of rights range from the fetus to the elderly, from rights to life or rights to privacy, to rights to death with dignity to rights to universal health care. Returning to Mill, we see not much has changed since his time: "Not only have different nations and individuals different notions of justice, but in the mind of one and the same individual, justice is not some one rule, principle, or maxim, but many, which do not always coincide in their dictates, and in choosing between which, he is guided either by some extraneous standard, or by his own personal predilection."3 The goal of this thesis is to advance beyond this predicament of unending, unsolvable rights claims. A method is sought for sifting through claims which have "standing," so-to-speak, from those which don't.

When rights claims are advanced, discussion and compromise often take a back seat. As Lomaksy put it, "This heady proliferation of alleged rights claims is not the happiest of all possible states of affairs...If you and I have opposed preferences, then we find ourselves in a conflict situation, perhaps a bitter one."4 But if people are reasonable, then these disputes can be solved through persuasion and compromise. However, such is not the case where rights claims are advanced.

Disputes of alleged right against right differ importantly from disputes of preference against preference. One who is convinced that nothing short of a right is in jeopardy will not be motivated to pursue a strategy of compromise. Rights stake out chunks of moral turf that others are forewarned not to trespass; they issue demands with which others must (the Tmust' is moral, not causal or logical) comply. It is not for nothing that we tend naturally to speak of someone "standing" on his rights. One who is entitled as a matter of right to some outcome is under no obligation to move away from that result in his dealings with others. They must accede to his claim rather than open up a bargaining exchange in which each gives up something in order to secure something.5

Because rights claims have become too ubiquitous, some method must be imposed in order to determine which claims deserve merit and consideration and which do not. The merely rhetorical/polemical or political wishes must be discarded as invalid rights claims. Rights claims shouldn't be a mere list of pet programs or desires one has, but rather claims which have merit in virtue of some reason. When rights claims are appealed to, problems become more difficult to solve because of the rigidity behind the rights opponent's claims. One thing becomes clear in present-day discussions: rights to "life, liberty, and the pursuit of happiness" are anything but "self-evident."

Robert Nozick bases his "entitlement theory" on natural rights and uses rights when they advance his positions. Gewirth assumes basic rights in order to advance his claim that for individuals to be moral agents they are entitled to freedom and well-being. Rawls assumes rights and places them as primary to the first principle of justice which entails "the most extensive total system of basic liberties compatible with a similar system of liberty for all."6 Rawls thinks that if just institutions exist, then rights will be protected as part of an institutional framework.

If we are to have a clearer understanding of rights, we must be able to see what the necessary and sufficient conditions of having a right are and where these underpinnings come from. An adequate process is needed to Jdecipher arguments of preference from arguments of right. Lomasky's theory of basic rights does just this by developing a process by which people come to have and to understand basic rights. The process is concerned primarily with what it means to be a moral agent and what moral agents doQnamely, pursue projects.

Individualism

Before explaining this process of deriving rights through project pursuit, it is first necessary to explore the presuppositions basic to Lomasky's theory. Lomasky explains that to affirm rights is to first understand and affirm the "value of the individual and in turn reflect that commitment into the moral arena."7 The first assumption Lomasky makes is that the individual is entitled to a "sovereignty over his own life." To have sovereignty over your own life, means that you, frankly and non-tautologically, own your life and what you do with it. Though the history of mankind is filled with examples of violations of the individual's worth through any number of incursions by governments, an attachment to the value of the individual means an attachment to his or her ability to exist "within a wide and durable sphere of freedom from interference by others." People ought to be able to determine for themselves what is Tgood' for them. And these differing conceptions of the good should be allowed to flourish. So, the first foundation of basic rights is a sense of value and worth attached to the individual. It is not surprising that those systems which don't value individualism do so at the cost of individual rights. Individualism is defended upon the grounds that our deeply held intuitions don't push us toward seeing the most important thing about people's lives as their place within or as a part of the greater whole. We don't see ourselves as ants joined together to form the anthill. We don't see ourselves as mere cogs in the machinery of human society. Of course, these aren't the only models of a whole we can be a part of. However, they represent the type of model that denies individualism. The team concept, for example, is one that values the whole but also values each individual's participation. Models which place the individual's importance below that of the group, however, deny full human choice and interaction. Instead, we see ourselves as unique, important, and separate from those around us. Our associations are chosen by us to give expression to the feelings we have, quite apart from any larger group or society. Individualism allows us, as Joel Fienberg noted:

To look others in the eye, and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is not to be unduly proud, but to have that minimal self-respect that is necessary to be worthy of the love and esteem of others. Indeed, respect for persons...may simply be the respect for their rights, so that there cannot be the one without the other; and what is called "human dignity" may simply be the capacity to assert claims.8

As we see something important about each individual, not just about the individual as part of the whole, we notice something about ourselves, and our own worth. A person must have control to direct his or her life or that life is missing some important part of what it means to be a person.

The opposite claim is made by the communitarian and radical ecologist: people are only fully human when they recognize their role as part of the greater whole. Martin Buber's unification of the "I and You" leads to claims that we recognize our own self-worth better in terms of community than in terms of the vision of individuals acting freely in cooperation with other individuals under no obligations to anyone except, negatively, not to harm them.

Of course, there are balances between obligations to others and individualism. Individualism need not be blatant egoism, and communitarianism is not and need not be mindless goose-stepping to the needs of the "society." One of the foundations for basic rights is promotion of individualism.

Rather, if individualism is to be promoted, and greater security is to be had, basic rights will establish the boundaries which others must respect, even though doing so will limit their otherwise unlimited freedom. If individualism is denied, the question of rights doesn't arise. When individualism is denied, the group or majority is dominant, more important, and better respected than the individual. If one is guided by a vision of some "higher idea," basic rights, at best, become an annoying gnat flying in the face of the Greater Good. "At worst, they will be seen as a fount of the malignancies that infest society and that must be swept away for the Bright New Age to dawn."9

Lomasky understands also that too great an advancement of individual rights can place serious burdens and costs on the community in which they flourish. Some balance and flexibility is desired. Lomasky says,

If the extremes are avoided, neither individualism nor the possibility of harmonious social existence needs to be forfeitedIA community of such rights holders, secure in their own recognition of rights eliminates areas of potential conflict that will bedevil a society in which rights are less visible or altogether unrecognized. Not the least of the attractions of rights is that they function best when unobtrusive."10

Of course, if a right exists, and if it is founded upon the assumption of the individual's autonomy, how can one moderate his or her justified claim in avoidance of extremism? Lomasky answers that where the costs are too high the community will react in such a way as to crush both the individual and his or her rights. To promote rights is to promote the individualism they advance.

Pluralism of Values

Resting on the foundation of individualism, the first pillar on which the edifice of rights can be erected is Lomasky's argument for a pluralism of values, his argument against objectivity in determining ideas of The Good. There is no one standard which everyone can apply to his or her circumstances to determine what actions or ends he or she ought to secure. Though action is purposive and leads to some end, different actions have different costs attached to them. The choice is a matter of deciding which goals will be chosen over which other goals. One weighs benefits of doing some action against its disadvantages, and if one is prudent she skillfully maximizes the former against the latter. But what is valued for one person will differ from what will be valued for another person. The goods that each person advances are goods-for-that-person and not necessarily goods for the other. For example, one person may value graduating quickly as his end, while another may value going slowly because he more highly values other ends. If there were one standard to which people could look to determine the desirability of their actions and life choices, that standard would order people's lives. In the absence of such a standard, we know that:

Some ends are not once-and-for- all acknowledged and then realized throughout the successful completion of one particular action. Rather, they persist throughout large stretches of an individual's life and continue to elicit actions that establish a pattern coherent in virtue of the ends subserved. Those which reach indefinitely into the future, play a central role within the ongoing endeavors of the individual, and provide a significant degree of structural stability to an individual's life I call projects.11

What a person chooses as his or her projects can assume many different shapes: having a family, serving God, attaining material stability, creating the next great work of art, teaching Political Science, helping the homeless, striving to bring about revolution. Projects people pursue can be ends in themselves or can be the means to some other hoped-for consequences. But for Lomasky, projects explain more than just actions; "they help to explain a life."12 For example, "This is a someone who took a trip to Europe" explains less than "He's an ardent Communist," or "She collects Klimt's." So, though projects often include various actions, they make up something more than just the sum of the actions. If one were to say that people need three things in life: someone to love, something to do, and something to look forward to, projects would embody the three.

For Lomasky, projects and the lack of an impartial way to choose among them, are at the center of his derivation of basic rights. There are some lives people would value, applying an impersonal standard, more highly than others. For example, people might value the surgeon over the dog catcher, or the teacher over the politician, but there isn't a way that individuals can apply an impersonal standard to give them answers as to what projects they ought to pursue. Rather, project pursuit becomes a personal standard. A major part of who a person is, is determined by the projects she pursues. Moreover, a person's identity over time becomes intimately connected with the things which he does. While there are many different so-called impersonal standards, such as religious standards, to which a person may turn to guide her choices, there isn't an objective way to choose among the various standards. Religious or other standards can serve as guides to limit a person's actions, but they don't give a person reasons for choosing among similar types of life-projects. Impersonal standards simply guide the personal choice.

For example, while a person should be able to pursue his life-goal of becoming a corporate president, his choosing this goal does not allow him carte blanche to hurt others in order to reach that goal. Instead, "the ability of individuals to formulate and pursue their various projects with a substantial degree of freedom from interference will be prominent."13

The prominence, however, doesn't completely overshadow some claims of positive obligations individuals acquire in their project pursuit. Nor does the fact that projects pursued are personal mean that they can't be directed toward the welfare of other persons. Having a family stands as a strong pursuit which entails personally chosen ends, but these ends are directed toward others. In fact, "projects typically, almost inescapably, involve essential reference to the well-being of others."14

End of Chapter 1

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