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Article Excerpt
The paper makes two related claims. The first is that an ideal theory of rights is mistaken. The second claim follows on from the first: if an ideal theory of rights is mistaken, then some ideal theories of justice are either implausible or impoverished.
In the first part of the paper I argue that ideal rights are not real rights. Put another way, my claim is that adopting an "ideal theory" approach to the analysis of rights will yield an implausible and overly expansive catalogue of rights. Rights are unique in that they are associated with moral urgency and pre-emptiveness; to adopt an ideal account would leave us with rights that lacked these distinctive conceptual features.
The second part of the paper considers the implications of the first argument. If ideal theories of justice deny that facts about compliance, resource scarcity, and history are relevant in determining principles of justice, I argue that they must also either (1) deny that rights are considerations of justice; or (2) defend an ideal theory of rights. Following the first course would lead, I argue, to an impoverished conception of justice; following the second would lead to an implausible one.
Part I: Real Rights
1. Rights in general and human rights
The language of rights is a language of entitlement, of priority, and of immediacy. In the case of ordinary moral rights it is not typically the importance of the interests they protect, but the peculiar nature of the duties to which they give rise that accounts for their peremptory nature. (1) Duties are not just good or adequate reasons to do things. They tell us what we must do, not what it would be good, reasonable, or rational of us to do. (2) This does not mean, of course, that duties are absolute requirements of justice; nor does it mean that duties necessarily have greater weight than other moral reasons for action.
If I promise you that I will pick up your dry-cleaning then I incur a duty to do so and you have a right that I do so. My duty is easily outweighed. If my child gets sick, or I get stuck in traffic and would need to break the speed limit to make it to the dry-cleaner's before it closes, it doesn't follow that I ought to breach these other norms and laws in order to comply with my dry-cleaning duty. What is true is that unless something extraordinary or unexpected happens to me, I am expected to fulfill the duty. It would be wrong to breach it if, say, I really wanted to go the movies or I was tired. It is when we turn to talk of human rights that the peremptory feature of a right's duties is combined with a sense of the moral importance of protecting the interest that it protects.
The precise nature of human rights is controversial. The largest and most persistent controversies center on the nature of their grounds, the content of the catalogue, and the agents who hold primary responsibility for ensuring that these rights are met. (3) Are welfare rights genuine rights? Are human rights grounded in autonomy or dignity or basic needs? Do they hold against all states, my state, or everyone in the world? I want to leave these questions aside. (4) The urgency and priority associated with human rights are less controversial, and these features are the ones that make ideal rights particularly problematic.
2. Ideal rights vs. real rights
The contrast between ideal rights and real rights is not the familiar one between moral rights and legal rights. A person can sensibly be said to have a right to borrow the dress you promised to lend her; the right is not any less real because it is not enshrined in law or likely to be enforced by the relevant authority. Rights are real when the duties they posit are binding on real duty-bearers. A moral duty is a real duty.
This is surprisingly controversial. Susan James has recently revived a positivism of fights that denies the reality of ordinary, unenforced moral rights. (5) For James, a right is only real when social institutions have both the capacity and the will to enforce it. (6) It seems to follow from her account that if social institutions fail to enforce my right to borrow your dress, then I have no right to it. This is true even if you in fact comply with your duty to lend me the dress.
There is then a cost to the reality of the fights that emerge from the enforcement account. The claim that a fight's existence is contingent on the will to enforce it makes speaking of a right's having been violated difficult, if not impossible. (7) If the relevant duty-bearer lacks the inclination to comply with the duties attached to a would-be fight, then the fight does not exist. The torturer does not violate the rights of his victim; instead, the act of torture is itself evidence of the fight's nonexistence.
The advantage of the "Enforcement View" is, according to James, that "we avoid the irony of announcing that a group of famine victims has a right to food, or that a group of women has a right to abortion, in circumstances where neither group has a significant chance of getting what they ... are said to have a right to." (8) Her use of the words "significant chance" suggests a possible amendment to the claim that the Enforcement View does not allow fights to be violated, for James does seem to admit the possibility that a right could be infringed without losing its status as such:
If ... a single corrupt judge has unexpectedly dismissed a ease in an otherwise well-regulated legal system, but we have every reason to believe that it will be heard by a court of appeal, we shall probably conclude that the lack of a right to be heard by the lower court is an aberration, made less serious by the right to bring the case elsewhere. But if corruption is widespread among the judiciary, we may have to recognize that certain rights are only patchily and intermittently realized, and if the situation deteriorates still further these rights may disappear. (9)
In this somewhat confusing passage, James seems to suggest that an infringed right can be said to exist so long as its infringement amounts to an "aberration." On the Enforcement View, then, we could say that a right can survive its violation, but only if that violation is statistically unlikely. Thus, X would have a right not to be tortured if she could expect that others would have the will to comply with the relevant duty. (10) The emphasis of this more moderate version of the Enforcement View remains on a language of rights that is descriptive rather than critical or transformative. Rights tell us what people are actually (or likely to be) able to lay claim to in the social worlds in which they find themselves.
The problem with the enforcement account is not its descriptive focus, but that it describes the wrong thing. A list of genuine rights does not capture the sum of what a person can realistically expect from the state or her fellow citizens; it describes what she is entitled to claim from them. And, what she is entitled to claim is importantly different from what she is likely to get from those who fail to recognize the force of her claims. The language of entitlement is inescapably normative.
We have good reason, then, to resist the enforcement move and to continue to insist that moral rights are real rights. This still leaves room for a contrast between real moral rights and ideal moral rights, but the contrast is not between those rights we in fact enjoy and those we do not. Of course, when a person is imprisoned by her government for antigovernment speech, she might say, "in an ideal world, I'd have the right to free speech." Her right to free speech despite being...
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