i. Joel Feinberg's RLegal Paternalism,S RIs There A Right To Be Born,S and RVoluntary EuthanasiaS in his excellent collection Rights, Justice, and the Bounds of Liberty (New Jersy: Princeton University Press, 1980). Alan GewirthUs Reason and Morality (Chicago: University of Chicago Press, 1978), H.L.A. Hart. The Concept of Law (Oxford: The Claredon Press, 1961), Wesley Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1923), RDirectorUs Report: You Can Be Fired For Your Politics,S Civil Liberties, No. 327. April 1979), J.E.S. Fawcett, RThe International Protection of Human Rights,S Political Theory and the Rights of Man (Bloomington: Indiana University, 1967). Michael Tooley, RAbortion and Infanticide,S Philosophy & Public Affairs 2(1972) which attempt to justify both abortion and infanticide on the grounds that they lack moral agency or personhood. The list of articles dedicated to arguing for one legal right or another is extensive, yet few of these works give justifications for the grounding of rights, only that the rights exist in virtue of there being people who have them. ii. Joel Feinberg, Social Philosophy (New Jersey: Printice Hall, 1973). H.L.A. HartUs RAre There Any Natural Rights?S Philosophical Review, vol 64 (1955), Loren Lomasky, Persons, Rights and the Moral Community, John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1970), Barrington Moore, Jr. Injustice: The Social Bases of Obedience and Revolt (White Plains: M.E. Sharpe, 1978), and last but not least, Henry ShueUs Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (New Jersey: Princeton University Press, 1980).iii. Most notable, for our purposes, are Alan Gewirth, Henry Shue, and Loren Lomasky. iv. For a more detailed literature review see appendix A. v. This is discussed fully in chapters 2 and 3. vi. While I will provide justification for the above claim later in the paper, the circularity in Shue's argument is seen in the following.
1. Everyone has a right to something.
2. Some other things are necessary for enjoying the first thing as a right, whatever the first thing is.
3. Therefore, everyone also has rights to the other things that are necessary for enjoying the first as a right." Basic Rights, p. 31.
The circularity appears because his definition of "rights" uses "rights " without saying how one comes to have a right in the first place.vii. Though it can be argued that Lomasky's unexplicated assumptions lead to his stated premises, they do not presuppose the conclusion which is derived from the explicit premises of his argument. The conclusion isn't stated as a premise as in Shue. Op. cit. footnote 2. viii. More is said about Gewirth's theory in chapter four. ix. It is an ethic of taking individual maxims and giving them widest (or categorical) application.x. While arguments along these lines exist in ethics discussions, especially among neo-Kantians, going back to Plato, when the issue is "keeping a promise," I believe the issue of expectations giving rise to rights claims holds a strong place here.
1Mill, John Stuart. Utilitarianism, On Liberty and Considerations on Representative Government. RUtilitarianismS Ed. H.B. Acton. (London: J.M. Dent & Sons, Ltd., 1972) p. 47, 50. 2Ibid. p. 50.3Ibid., p. 51.4Lomasky, Loren. Persons, Rights, and the Moral Community, (Oxford University Press: New York, 1987), p. 4-5.5Ibid., p. 5.6Rawls, John. A Theory of Justice. (Belknap Press: Cambridge, 1971), p. 60.7Persons. p. 11.8Persons. p. 11 Lomasky quoting Feinberg.9Ibid. p. 14.10Ibid., p. 14,15.11Ibid. p. 26.12Ibid., p. 26.13Ibid., p. 35.14Ibid., p. 36.15 Ibid, p. 40.16 Shue, Basic Rights, p. 19.17 See especially Chapter 3 and 4.18 Expectations, as will be seen later, can also create rights, but usually not basic rights. This will be made more clear in chapter 4, which explains GewirthUs theory related to rights, and how we can move from basic rights to the sorts of rights created by expectations.19 Lomasky, Persons, p. 167.20 Of course, religious clergy, poets, writers, artists, and philosophers have always given people what they see as the One Right Way or their version of the Good Life.
21 Lomasky, Persons, p. 58.22 Lomasky, Loren. Persons, p. 59.23 Ibid., p. 58.24 See especially, Robert NozickUs Anarchy State and Utopia. 25 Thoreau, Henry David. RCivil DisobedienceS (1894), The Dolphin Reader, (University of Missouri Press: Boston), 1986, p. 688. 26 Lomasky, Loren. Persons, p. 97. 27 Ibid., p 97.28 Shue, Henry. Basic Rights, p. 74, 31.29 Shue, Henry, Basic Rights, p. 21. 30 Shue, Basic Rights, p. 41-43. "Suppose the largest tract of land in the village was the property of the descendant of a family that had held title to the land for as many generations back as anyone could remember. By absolute standards this peasant was by no means rich, but his land was the richest in the small area that constituted the universe for the inhabitants of this village. He grew, as his father and grandfather had, mainly the black beans that are the staple (and chiefQand adequateQsource of protein) in the regional diet. His crop usually constituted about a quarter of the black beans marketed in the village. Practically every family grew part of what they needed, and the six men he hired during the seasons requiring extra labor held the only paid jobs in the villageQeveryone else just worked his own little plot.
"One day a man from the capital offered this peasant a contract that not only guaranteed him annual payments for a 10-year lease on his land but also guaranteed him a salary (regardless of how the weather, and therefore the crops, turned out--a great increase in his financial security) to be the foreman for a new kind of production on his land. The contract required him to grow flowers for export and also offered him the opportunity, which was highly recommended, to purchase through the company, with payments in installments, equipment that would enable him to need to hire only two men. The same contract was offered to, and accepted by, most of the other larger landowners in the general region to which the village belonged.
"Soon, with the sharp reduction in supply, the price of black beans soared. Some people could grow all they needed (in years of good weather) on their own land, but the families that needed to supplement their own crop with purchases had to cut back their consumption. In particular, the children in the four families headed by the laborers who lost their seasonal employment suffered severe malnutrition, especially since the parents had orginally worked as laborers only because their own land was too poor or too small to feed their families.
"Now, the story contains no implications that the man from the capital or the peasants-turned-foremen were malicious or intended to do anything worse than single- mindedly pursue their own respective interests. But the outsiders offer on the contract was one causal factor, and the peasantUs acceptance of the contract was another causal factor, in producing the malnutrition that would probably persist, barring protective intervention, for at least the decade the contract was to be honored. If the families in the village had rights to subsistence, their rights were being violated.S31 Lomaksy, Persons., p. 112. 32 Lomasky, Persons. p. 109.33 Shue, Basic Rights, p. 13. 34 Ibid., p. 52-53. See footnote 30 for a further discussion on how the third correlative duty doesn't necessarily entail welfare transfers.35 Lomasky, Persons. p. 94.36 We can understand Lomasky's point here by reference to the tax-payer revolts. The cost here can be understood in terms of the mainstream America's disdain for groups which seek to advance rights claims. These groups would include the ACLU, the NAACP, Right-To-Life activists and others.37 Ibid., p. 96. 38 The duties referred to are those enumerated by Shue, more specifically, a duty to provide aid. 39 The next chapter is dedicated to trying to provide just this justification. 40 Lomasky, p. 83. 41 This assumes he's not the fanatic for whom no amount of justification will convince...that he's not the person who causes the society of project pursuers to join together to institutionalize their moral norms in the form of rules and their corresponding enforcements.42 Ibid., p. 83. 43 Ibid.44 Ibid., p. 83. 45 See ShueUs example in extended footnote in last chapter. 46 Lomasky, p. 83. 47 For example, if a health care system were initiated in the United States, Lomasky would hold that the costs should be distributed across the society, and that before it was initiated, the people themselves would have to agree to rationale behind it.48 Lomasky, Persons. p. 96, and p. 83.49 Gewirth, Alan. Reason and Morality. p. 59.50 Ibid., p. 59.51 Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press, 1982), p. 51-52.52 See above, p. 56-57.53 As Feinberg and some liberals and socialists argue.54 Kant, Immanuel "Groundwork of. the Metaphysics of Morals," p. 424 in Frederick Copleston's A History of Philosophy, Volume V. "Kant (5): Morality and Religion." (Image Books: Garden City, 1960), p 325. While the idea of promises creating obligations is seen most clearly in contract law, it was Kant's discussions of promises which lead to my seeing "social expectations" as an extension of the idea of a promise.55 If and only if there is also the requisite ability to provide for the need.56 For example, all first-world countries except the U.S. recognize this rights claim.57 i.e., for an alcoholic or a smoker. Of course, charities will exist for those who are emotionally led to help those who wonUt help themselves, i.e., in Lung Cancer Research.58 Lomasky, Persons. p. 87.59 Ibid., p. 83.