By Joshua Aasgaard, (C) 1995
According to Lomasky, project pursuit is not the whole of how people come to hold rights. If it were, there would be difficulty in explaining how children, some seriously disabled persons, those in a coma, and other examples of people commonly understood to have rights somehow lack them because at the moment they seem to have no pursuit of any individually chosen project. For example, Rif the basis of rights is found in personhood, it may be noticed that the account denies to very young children the status of person. Then they are not rights holders.S15 More than this, rights would be relegated to people like us and not extended to those whom we (whomever the dominant elite happened to be) disapprove of, the perennial them.
Lomasky appropriately explains that a thorough theory of rights will include multiple sub-arguments which together to create a multivalent theory of basic rights. His theory shows that there is not just one all-purpose property of a basic rights-holder to which one can look to check whether X is a rights-holder or not. Rather, basic rights resemble a large river that flows from many tributaries. These sources and origins to the river may be small, fast rushing streams or slow, wide-ranging bayous. They may act alone or, like a raindrop falling into a puddle, combine together to give a greater overall effect. For Lomasky, it is necessary to account for the streams which are distinct from project pursuit, so as to be able to answer the critics who ask, what about X? where X represents a person or other rights-holder who is unable to pursue projects.
The other reasons which account for rights for non-project pursuers include a number of arguments. One of these arguments shows that individuals have rights because of the social connections between themselves and actual project pursuers. They gain rights in virtue of being part of a society that protects such pursuers. Lomasky says there is a biological motivation to protect those, like children, who are not yet project pursuers. And, in fact, there may be other explanations. To avoid denying rights to those whom we have strong intuitions in favor of admitting to the rights holding community, we look to other theorists in order to find appropriate justification. Henry Shue and Joel FeinbergUs insights may prove valuable in helping to account for these cases. To start, I quote Shue at some length:
Basic rights are a shield for the defenseless against at least some of the more devastating and more common of lifeUs threatsI Basic rights are an attempt to give the powerless a veto over some of the forces that would otherwise harm them the mostI And it is not surprising that what is in an important respect the essentially negative goal of preventing or alleviating helplessness is a central purpose of something as important as conceptions of basic rights. For everyone healthy adulthood is bordered on each side by helplessness, and it is vulnerable to the interruption by helplessness, temporary or permanent, at any timeI Although the goal is negative, the duties correlative to rights will turn out to include positive actions. The infant and the aged do not need to be assaulted in order to be deprived of health, life, or the capacity to enjoy other rights.16
This means that those who are currently unable to pursue their own projects come to have rights based upon their helplessness because without the protection of their basic rights, no other rights will be available to them. According to Feinberg, to be deprived of what is needed is to cause a harm. And to cause a harm is to violate a right. This is not to say that needs alone create rights, but they play an important part in how rights come into being17 Feinberg, however, does think acute needs, which are not brought about through oneUs own actions and choices, give rise to rights claims.
The reason why non-project pursuers come to have rights is thus three-fold: 1) They are connected within a society to project pursuers, who have some other interest, biological or otherwise, in seeing the non-project pursuer protected; 2) non-project pursuers can experience serious harms which cannot be justified; and 3) non-project pursuers will become project pursuers if they are accorded such rights during the time they are not able to pursue projects.
The first and third seem to provide better explanations of the marginal cases. However, the critic might say the non-project pursuer should not be accorded rights in the first case, that the right of the project pursuer to provide or withdraw his or her connections with the non-project pursuer, as in the case of an infant or a fetus. The second would contradict the first, in that it would grant protection without saying why the non-project pursuer should be granted such protection, only that the lack of protection wasnUt justified. Where the line is drawn quickly becomes important. For Shue, a right will exist, if, and only if, a rationally justified demand can be made in its favor. Of the three parts, the third seems to hold the most weight for this thesis. Since we can understand what it would be like if we hadn't been granted the support necessary for our growth in our infancies and the aid necessary to become project pursuers, we can see our present obligation to the non-project pursuer as part of a past debt we owed to those who allowed us, through non-interference and positive aid, to grow into who we are now.
In discussing this justification, Lomasky explains, RHaving children is often an integral component of a personUs projectsI a polity can be liberal yet recognize that patterns of attachment widespread within the community create a legitimate demand18 for the creation of social structures within which these attachments can achieve fitting expression.S19 One such expression will be the recognition of rights on behalf of those who are attached or connected socially or intimately with active project pursuers. LomaskyUs argument here is weak; A has rights because B is socially connected or cares about A. When B stops caring or purposely breaks the connection, this justification for AUs rights have been withdrawn.
Thus far, I have simply looked at the presuppositions for the foundations of basic rights. I have not explained how project pursuit justifies rights but rather have explained that claims not based on project pursuit seem to be weak. Specifically, the foundations of rights can flow from multiple sources, and the difficult cases must be explained through reference and association with clearly defined rights holders. The next chapter will examine how rights are derived and how to distinguish claims of rights from claims of preference. We will see which claims deserve merit and which donUt. The fourth chapter will then show how welfare rights can be justified once basic rights have been justified.