By Joshua Aasgaard, (C) 1993-5
Contemporary works on rights have fallen into two categories, those concerned with legal rightsi and those concerned with moral rights.ii Of course, some works have bridged that gap between the two categories as well.iii Most, however, do not focus on the foundations of rights but rather focus on specific types of rights claims: the right to privacy, the right to counsel, to free speech, and rights to life or rights to death with dignity, rights to health care, or rights to X. Most of these studies have focused rather narrowly on specific issues with only a handful of authors looking past the issues to more firm foundations for the rights claims put forwardiv.
Related to this thesis are the works of Loren Lomaksy, Henry Shue, and Alan Gewirth. Loren Lomasky provides the clearest, most understandable justification and explanation of basic rights in the literature. Assuming only individualism, he builds the foundations of a thoroughly defensible justification of basic rights. He clearly shows how rights come into existence in moral communitiesv. Morover, he explains the limits of basic rights. This thesis starts and ends with his justification for basic rights. However, to expand rights beyond the very narrow scope Lomasky chooses, other theoristsU ideas are necessary.
In Basic Rights, Henry Shue develops an extensive justification and definition of basic rights, but a main part of his argument suffers from circularity; his conclusions are contained in his premises.vi However, the structure of Shue's arguments can be modified so as to avoid the circularity by using Loren Lomasky's justification of basic rights.vii The two theories can be integrated to give a firm foundation from which to draw the later conclusions of this thesis that rights-recognition leads to the justification of a state greater than the minimal state.
Alan Gewirthviii, like Shue, assumes basic rights in order to advance his claim that for individuals to be moral agents they are entitled to freedom and well-being. A large part of this thesis is dedicated to providing justification for Gewirth's assumptions concerning basic rights in order to get to his conclusions concerning the welfare state.
The project of this thesis, however, is to examine Loren Lomasky's libertarian conception of basic rights. It will show that if one accepts his process for deriving basic rights more extensive positive or welfare rights are in fact justified. I expand this conception by applying a neo-Kantianix ethic to Lomasky's foundations by using the work of Alan Gewirth. The goal of this thesis is to use the works of several human rights theorists, taking what is best in each to show the firm justification of positive (welfare) rights.
The first two chapters discuss the foundations of basic rights and the presuppositions with which Lomasky begins, namely, individualism and a pluralism of values. The third chapter shows the weakness of basing rights so extensively on individual "project pursuit" but explains why Lomasky doesn't rely too heavily on self-interest as a key brick in the foundation of basic rights. Without some basis in self- interest the rights-claims pushed would become mere "preaching." No appeal to each individual's reason could be a justification for obligations claimed to be due and owed of an individual. This chapter shows that although Lomasky wants to grant full rights-status to non-project pursuers, the reasons he gives (social connectiveness, best interests of the community) seem weak at best. I turn to other authors in order to strengthen this weakness.
From here I show how historical rights-advances among formerly marginalized persons (or non-rights holders) arise naturally as extensions of social expectations. I will examine how these expectations, rather than other competing reasons, lead to justified rights claims on the part of individuals within their societies.x
Chapter three paints a more detailed picture of how Lomasky derives and justifies basic rights. This derivation of rights gives Henry Shue's arguments for positive rights a more secure foundation. Lomasky's conception of "project pursuit" can provide grounds for Shue's explanation of the correlative duties attached to rights.
In chapter four, I show how more extensive, positive, welfare rights are justified, using both Gewirth's arguments and Lomasky's conception of basic rights. I also show how the counter-arguments to this approach that are offered by Lomasky and other libertarians themselves lack cogency. Thus, extensive welfare rights can be justified from the perspective of self-interest.