Reading: Avineri and De-Shalit (eds) Communitarianism and Individualism Chapters 1, 2 and 7
In this essay I will try to defend the idea of the primacy of rights against criticisms made of it by Sandel and Taylor. I will argue that the assertion that we have certain primary negative rights and that people must be treated as ends in themselves rather than simply as means to a common good, does not entail that a defence of atomism is necessary. I will firstly look at Sandel's claims that, although theories of the priority of rights seem to fail philosophically, we nevertheless seem to live by this liberal vision. I will then turn to a discussion of Taylor's article on atomism and examine his argument that it is incoherent to assert the primacy of rights within a social theory. I will conclude by arguing that a rights-based theory that does not hold that individuals must be self-sufficient is possible. Accepting that people need other people around them in order to be able to develop their capacities does not lead to the conclusion that we therefore have an obligation to a political society.
Sandel first of all gives an account of the liberal vision, which he understands to have at its core the idea that:
"a just society seeks not to promote any particular ends, but enables its citizens to pursue their own ends, consistent with a similar liberty for all; it therefore must govern by principals that do not presuppose any particular conception of the good." (P 13)
So, unlike goal-maximising theories such as Utilitarianism, rights-based theories claim that principals of justice must not be founded on any particular conception of the good, but rather they must 'conform to the concept of the right'. Hence rights-based theories overcome one of the main criticisms of goal-maximising theories like Utilitarianism, which is that under the latter people are treated as means to an end rather than as ends in themselves. So there are two main foundations to a theory of the primacy of rights and these are as follows:
(i) That individual rights cannot be sacrificed for the general good, and
(ii) The principals of justice which specify these rights cannot be premised by any particular theory of the good.
This view has an intuitive appeal, especially since it is evident that there exist many very different conceptions of the good. Kant argues that justice needs an independent sanction because moral law needs a categorical, and not merely contingent, foundation. He states that:
"Only when I am governed by principals that do not presuppose any particular ends am I free to pursue my own ends consistent with a similar freedom for all". (P15)
Kant argues that the basis of the right is the transcendental subject. Rawls argues along similar lines as Kant, but substitutes the original position for the transcendental subject. His argument is that the principals of justice chosen under the constraints of the original position will be fair because they will not presuppose particular ends. Hence the unencumbered self is prior to and independent of particular purposes and ends. As Nozick argues, individuals may join in a voluntary association with others but we have no moral obligation to be bound to a community antecedent of choice. However Nozick departs from Rawls in that Nozick, in his Entitlement theory, does not acknowledge the arbitrariness of fortune. Rawls on the other hand argues that, since talents are a matter of luck, we cannot say that we deserve them or the benefits we get from them. He argues that talents must be viewed as, and treated as, common assets. I would agree with Nozick on this point and would argue that talents are not assets to be shared out in the same way as, say, fossil fuel is. I would argue that, although it is morally admirable to use your talents for the benefit of others, it would be an infringement of your right to do what you want with your own to be forced to share the benefits of your talents with others, or indeed even to develop your talents. Even if we were to grant Rawls the point that we do not deserve our talents, as Sandel points out, it does not follow that talents are common assets. They are equally arbitrarily placed in society. So Rawls' theory seems to undermine the Liberal idea of the separateness of persons. Sandel argues that we cannot view ourselves as unencumbered selves either, because our loyalties and convictions are integral to who we are. I would agree that Rawls' original position excludes too much so that we would not be able to make a decision under the veil of ignorance. Therefore the original position fails as a way to determine independent principals of justice.
Sandel concludes from this that the idea of priority of right fails philosophically. However, it does seem plausible that there could be another way of determining what rights we have other than principals of justice that we would select from the original position. If you take a view similar to Nozick's, that rights are essentially negative rights of non-interference, then it is not clear that this idea can be dismissed so easily just by appealing to the notion that we are not 'unencumbered selves'.
Sandel then gives a historical account of the procedural republic and from this hopes to show that although he thinks that the theory of the priority of right fails philosophically, it still works practically. He states that because the population of America is too diverse to enable any politic of the good to be successful, the move has been made towards politics of the right (ie. from common purposes to an emphasis on fair procedures). He concludes by saying that the procedural republic, although seemingly paradoxical, is nevertheless workable and the crux of it is that liberty is:
"an individual's guarantee against what the majority might will".
Taylor, in his article entitled 'Atomism', argues that a theory of the primacy of rights cannot be reconciled with a theory of community, and therefore a defendant of the former theory must give a defence of atomism (that is the idea that people are essentially self-sufficient). Defendants of atomism would argue that an individual and his rights have priority over society (Locke and Nozick subscribe to this view, although Nozick prefers to call it 'individualism') Central to this doctrine is the idea that rights are unconditionally binding, whereas social obligation is not. Taylor also acknowledges that this view is intuitively appealing, but argues that it can only be defended by appealing to the truth of atomism. He defines atomism thus, it:
"affirms the self-sufficiency of man alone." (P 32)
There are three main points to his claim,
(1) To affirm a right is to say that person A lays a moral claim on us not to interfere with his right, X
(2) Given that E is the essential property of properties, A has a natural right to X if doing X is essentially part of manifesting E (ie. if E is being a life-form, then A has the right to life), or if X is a causally necessary condition of manifesting E.
(3) E should be developed as well, not just not interfered with.
It is this last point with which I would take issue. Taylor thinks it is inconsistent to allow that a person has a right to, say, free speech and deny that this capacity ought to be developed or be indifferent to its development. However I am not sure that this is obvious at all. Surely it is possible for someone to have a right to do something (ie. the right to remain silent when under arrest) and yet not choose to make use of that right? It seems as though Taylor is talking about duties rather than rights. His argument may hold against a right such as the right to be kept alive, but that is quite different from the right not to be killed. One person having a right to be kept alive means that other people are restricted with regards to what they do with their own property and have a certain active duty towards others, whereas someone having a right not to be killed does not infringe on other people's rights to decide what to do with their own property and talents. It seems that a distinction can be made here between positive and negative rights. It seems possible that one could formulate a rights-based theory that only consists of rights of non-interference and private property, so that people can do what they want with their own lives and possessions as long as they do not harm other people.
Taylor then discusses the argument that complete freedom of choice requires that we do have a choice. So liberalism is connected with worth unless, "human agents possess the full capacity of choice as a given rather than as a potential which has to be developed." (P 35)
If this is true then the theory of primacy of rights can be undermined by showing that men are not self-sufficient. So a right-based theorist has to come up with a convincing defence of atomism. However, Taylor points out that there are two ways of avoiding the issue of self-sufficiency, the first being that you could assert a schedule of rights. You could argue that you have a right to life on the grounds of sentience and, as this is something which can't be developed, there is no room for a social thesis and hence, under this view, we are self-sufficient. However, this view sacrifices the central good of freedom, since this relies on capacities which have to be developed, like freedom to choose life plans and form one's own convictions. Taylor refutes Locke's claim that private property is essential to life, but I would tend to agree with Locke here. Taylor says that people have lived successfully in communal societies, but I would argue that even in these situations, when you eat something you have to make it your private property because nobody else can have access to it any more.
The second way in which a primacy-of-rights could tackle the issue of self-sufficiency without having to defend atomism is by acknowledging that individuals do need other people around them (like family and friends) to develop fully, but that this fact does not mean that they have to belong to a political society. Taylor challenges this view by saying that public moral and political debate is essential to human freedom. However, I do not see why there couldn't be public discussion under a minimal state which protects people's rights. As Nozick argues, under a minimal state people would freely choose to make associations. A primacy of rights theorist would simply argue that Taylor's points do not show why we should have any obligation to a political system. Taylor replies that:
"Since the free individual can only maintain his identity within a society or culture of a certain kind, he has to be concerned about the shape of this society or culture as a whole." (P47)
But it still isn't obvious that this means one ought to be bound to a political institution. Surely the most important thing is that people respect your right to non-interference? It seems that Taylor's concept of freedom is a positive one - that one should have freedom to develop one's potentials as far as possible and be given all the relevant help to do that, rather than a negative right which stipulates that one has freedom from interference by others.
To conclude I would argue that a theory of rights can be formed without the need to adopt an atomistic standpoint.
© Anne Witton 1996. No part of this article may be copied without my permission.
