By Joshua Aasgaard, (C) 1995
Thus far I have explained the firm foundations of basic rights, rooted in a moral agent's ability to pursue projects of his own choosing, predicated on individualism, with duties toward all other moral agents correlated with each given right. I have shown that in order for something to be a right it must meet the conditions of being 1) a rationally justified demand which can be 2) socially protected against standard threats45 which 3) impose moral restraints on others such that "the vast majority of community members is rendered better off if they and all others respect that right than if no one were obliged to respect it."46 A "stable regime of equal rights for all requires that the amount of required deference be close to the level of the deference ideal for the most deferential members of society." Also, reasons must be given which will give "rational motivation [to] persons to accede to a rights claim." Basically, the costs of providing for rights should be distributed fairly across the moral community. Moreover, before any costs accrue the members of the moral community must be provided the rationale behind their expected contribution.47
Basic rights thus require the "minimal demands on the forbearance of others such that individuals can pursue projects amidst a world of similar beings, each with his own life to lead, and each owing the same measure of respect to others that they owe to him."48 The rights which develop in a moral community must be based on the experiences of that community in developing the normative standards which shape the size and depth of rights protection. Though the arguments that follow are derived from those set forth by Alan Gewirth in his Reason and Morality, I will show how Lomasky's requirements for a rights claim can be extended to more extensive claims.
I base this move on Lomasky's justification of rights rather than on Gewirth's because Gewirth's definition of "well-being" presupposes basic rights as well as more extensive rights. For example, Gewirth breaks well-being, the "generic features of action," into three component parts: (1) basic rights to achieve "purposiveness" of action, free from outside restraint, that is, those rights Lomasky accounts for through "project pursuit"; (2) basic nonsubtractive capabilities, the ability of "retaining" the goods one has, and (3) additive goods for "obtaining more specific and particular goods." If one sees how these features of action on the part of all moral agents "must control their behaviors by their unforced choices, they must be able to make certain minimal plans for what they will do in order to achieve what they want, and they must have or maintain the general abilities and conditions required for exerting such control and making such plans."49 One begins to notice the rational justification for more extensive rights. Gewirth explains:
The generic features of successful [project pursuit] also comprise purposiveness in the achievemental mode and well-being in all three of its dimensions...for the successful actions the agent achieves his purposes, so that he has not only the minimal abilities required for any purposive pursuits but also further abilities and conditions needed for avoiding losses and making gains.50
Gewirth explains not only those minimal requirements justified by Lomasky, but he provides a justification for allowing people to keep what they already have, and for providing for the necessary conditions for moral agents to increase their goods.
However, I reiterate what Kant explained about the requirements for duties or "oughts" to be required on the part of others. To say that people have rights is to say that people have duties, and these duties cross the "Is-Ought" divide: to say that something more than basic rights ought to be required presupposes that those under obligation have the ability to fulfill such obligation.
For example, to say someone ought to save a drowning person presupposes an ability by that someone to save the drowning person. If one is unable to save, or isn't aware of the drowning person, then one is not under the ought obligation. In the case of rights more extensive than basic ones, the moral community would first have to have the ability to provide for greater rights before it would be under the moral ought obligation to do so. Of course, just because ought implies can does not mean can implies ought. Just because someone or some community has the ability to do something does not mean that they are under an obligation to do so. The obligation stems rather from necessary conditions for living a life compatible with basic rights and what we will come to see as the role of social expectations.
Lomasky argues that more extensive rights create social costs which can denigrate respect for even basic rights. He explicitly understands that people will not feel an obligation where they don't have the ability to carry out such actions to ensure more extensive rights claims. This is why the extent to which welfare rights are guaranteed will vary from society to society. In fact, the extent to which rights greater than basic rights can be guaranteed rests on their rational justification. As Kant saw continual moral progress as a part of the very fabric of humankind, the extension of rights in advanced societies can lead to empirical evidence for such moral progress.
Gewirth tries show how the immoralist, a person who lacks any belief that he ought to do something, can be shown through reasoned arguments that the ought-judgement should be applied to him. Gewirth offers the following proof in his Human Rights: Essays on Justification and Applications:
[A moral agent] must accept (1) 'My freedom and well-being are necessary goods.'' Hence, the agent must accept (2) 'I, as an actual or prospective agent, must have freedom and well- being,' and hence also (3) 'All other persons must at least refrain from removing or interfering with my freedom and well-being.' For if other persons remove or interfere with these, then he will not have what he has said he must have. Now suppose the agent denies (4) 'I have rights to freedom and well-being'. Then he must also deny (5) 'All other persons ought at least to refrain from removing or interfering with my freedom and well-being.' By denying (5) he must accept (6) 'It is not the case that all other person ought at least to refrain from removing or interfering with my freedom and well-being,' and hence he must also accept (7) 'Other persons may (or are permitted to) remove or interfere with my freedom and well-being.' But (7) contradicts (3). Since, as we have seen, every agent must accept (3), he cannot consistently accept (7). Since (7) is entailed by the denial of (4), 'I have rights to freedom and well-being,' it follows that any agent who denies that he has rights to freedom and well-being contradicts himself.51
As was noted earlier, however, Gewirth's proof means that if well-being entails more than the minimal rights painted by Lomasky, it does so for reasons implied in our own rights. Hence, our obligations to assist or aid in the provision of the well-being of others in need are predicated upon our own rights to assistance in case we were in the position of those who are currently receiving the benefits from our aid. If a person were to deny that he should receive aid when otherwise unable to take care of himself, that person would, in terms of Gewirth's argument, be either not fully rational or a liar.
So, we have seen that to go from minimal rights to more extensive rights requires two steps. It requires 1), that more extensive rights are can be guaranteed52, and, 2), that they are justifiable to those who must accede them. Again, "Unless [it is] the case that the vast majority of community members is rendered better off if they and all others respect that right than if no one were obligated to respect it," then the right shouldn't be recognized. For example, if the moral agent recognizes her own ability to pursue projects, she will see that it is important not just to protect that ability (step 1), but also to protect the products of that ability (step 2). Her nonsubtractive rights (to keep what she has attained) and her additive rights (to attempt to add to what she previously attained) will be highly valued. This follows from Lomasky's arguments on the derivation of rights; it also follows from the experiences societies are likely to have in providing freedom and well-being.
It must be noted, however, that well-being, as defined by Gewirth, may "contain" some circularity with regard to rights. All three aspects of well-being assume both basic rights and more extensive rights. Gewirth admits this weakness, but bases it on his clearly defined concept of action which is similiar to Lomasky's concept of project pursuit. In fact, the differences between the two terms are almost negligible. The different shades of action can be confused by a reader, while Lomasky's term project pursuit is clear and distinct.
At this point, we do reach a problem. I argue that Lomasky's arguments justify rights more extensive than he would admit and that if "well-being" is recognized, then needs will give some support to rights claims. There will be needs to the preconditions that give an agent the possibility of attaining freedom and well-being. Lomasky's first objection to the idea that needs justify rights is that there will be cases in which the ability to satisfy the need is not present. Since I have clearly admitted as much, Lomasky's objection doesn't address the extent to which needs matter when they can be addressed.
The second argument Lomasky makes is that arguments from need fail to take seriously into account the sacrifices upon others' liberties in order to satisfy the requirements of the needy. Instead, Lomasky believes those in need should have mechanisms of support and encouragement without placing obstacles in the way of their own cultivation. We see this in the libertarian argument that minimum wage laws prevent people from meeting their own needs. This argument fails because the requirements to help the needy are justified since, were they to become needy themselves, the support mechanisms would exist for them. Moreover, when people's needs are denied, they are in fact harmed. And if one has a right not to be seriously harmed, then a denial of a need, if shown to be serious, constitutes a violation of his rights provided the provisos given in the following paragraph obtain.
In this vein, we must explain that it is not need alone which creates a right53, but rather a societal expectation on the parts of members within a moral community that such needs will be met. Legitimate rights claims are associated with needs, but needs alone do not create rights. There must be something more, a social expectation created through the historical experiences of a given moral community. Social expectations when combined with needs give rise to rights in the same way that promises create obligations. In fact, social expectations can be seen as an extension of the idea of a promise. As Kant clearly saw, promises54 create obligations. Social expectations in our discourse here refer to a special type of promise created by a society to its members. Thus when combined with needs, social expectations create legitimate rights claims55
By way of example, we can see women's claims to rights to work for equal pay as growing out of need, but not just a need. There is also a societal expectation. Prior to World War II, women who made claims for rights were often marginalized and ignored, because there was no expectation at that time within the moral community to give women such rights. But after women had worked during the war, women showed not only that they could do the work, but that they could do it well. When the war was over, the society had created an expectation on the part of women that they would be able to work. Because this expectation was created and was followed by a need (a one-income family couldn't make ends meet), a substantive right beyond basic rights came into being. Similarly, other such rights are created when needs have appropriately coalesced with societal expectations. Rights to health care, for example, are rights which are recognized in some societies56 because the social expectations and a need have coalesced. In America, the question of expectation, needs, and ability hasn't been fully decided.
Finally, if needs alone created rights, absurd conclusions could be drawn. For example, a blind person might need an eye or an alcoholic might need a new liver. But such a need doesn't create an obligation on our part to provide what is needed. While it is imaginable that the means for providing the unsighted with eyes could (after much time and change in technology) become expected, it is highly doubtful, however, that a society would ever create an expectation for the care of someone who has purposely harmed him or herself57. For example, imagine eye transplants. When a person dies, their eyes might be put into a stockpile of other eyes for people who happen not to have them. The government or a community might create an expectation which, when combined with a need, would lead to a legitimate, justifiable rights claim. But in the absence of such actual social expectations, the jump from needs to rights is illegitimate.
Lomasky's also states that the argument from need cannot yield rights because that argument denies personal choices on the part of moral agents. The argument subscribes to some impartial form of judgement rather than to one based on experience. "The individual called on to be a donor is not rationally obliged to weigh impartially his own ends and those of the would be recipient. He acts rationally if he assigns special valueQpersonal value, value-for-himselfQto his own ends simply in virtue of their being his. Therefore, there can be no general obligation to give up that which is of considerable instrumental value to the pursuit of one's own projects on the grounds that someone else has pressing needs."58
This argument seems compelling at face value, but giving up some of one's liberty to provide for the needs of others, through taxation, for example, is not tantamount to giving up "considerable instrumental value." The amounts contributed, even far in excess of current levels of taxation, wouldn't prevent one from making the choices meaningful to his or her project pursuit. They are not equivalent to giving up "considerable instrumental value." Moreover, since rights are reciprocal, the instrumental value given up at one time of relative wealth may be equivalent to the instrumental value gained from others at another time of relative poverty.
The crucial question, then, is: "When can we tell if societal expectations are great enough, when combined with actual need, to yield more extensive rights claims?" Lomasky provides the answer clearly enough: Members of the moral community have been given a "rational motivationIto accede to a rights claim" because "the vast majority of community members is rendered better off if they and all others respect that right than if no one were obliged to respect it."59