Saturday, May 20, 2006

Institutional Rights

According to my indirect utilitarianism, we should institute whatever legal rights would best promote human flourishing. Legal rights derive whatever normativity they have from this consequentialist foundation. We have no reason to believe in such entities as "natural rights" -- they are at once metaphysically mysterious and ethically inadequate. Moreover, it would be fetishistic to care about such entities fundamentally and for their own sakes. What really matters are people, and rights are only important insofar as they benefit real people.

Moreover, it is a contingent matter what rights would most help people. (To prove this point as strongly as possible, my next post describes a hypothetical situation wherein a society would be morally required to limit even the right to life itself.) So you cannot just start off with some set of rights as "given", a priori. What rights are worth having will depend on empirical facts about their likely consequences. So the rights themselves cannot be fundamental. They're instead derived from a utilitarian foundation, in conjunction with contingent empirical facts.

This means that rights may legitimately vary from society to society, in much the same way that the moral status of an act-type like "lying" might vary across situations. The difference is not due to different opinions, "beliefs", or other such relativistic nonsense. Rather, it's because the objective facts about consequent harms and benefits may differ between the situations, and the moral facts must be responsive to these non-moral facts. (That's why moral absolutism is so misguided -- it entails a gross insensitivity to morally relevant considerations. Just think of the standard "enquiring murderer" cases, where lying is entirely appropriate.)

Now, we must distinguish between two levels of moral criticism. At the 'practical' level, we assess particular actions "internally" against the standards of our everyday morality and legal/institutional processes. This is appropriate insofar as those standards are themselves justified. But to "externally" assess the standards themselves, we must ascend to the 'critical level' of utilitarian assessment. As previously explained, we should settle on whatever practical standards would do the most good.

Now, my previous post sought to illustrate the oft-neglected fact that property is a contingent "social construction", and hence we should "open our eyes to the possibility of various different systems of property rights" in order to "make an informed moral choice" between them. Along the way, I pointed out that the propertarian claim that "taxation is theft" involves a category error. Theft is an 'internal' violation of instituted property rights, whereas taxation is part of the institution and hence must be critically assessed against the appropriate 'external' standard (which I take to be utility).

It is important to recognize this external standard as part of my view. That's why I emphasized in my previous post that not all possible institutions would be equally legitimate. This is not some wishy-washy "anything goes" relativism. (Again, I took care to make this very explicit.) Governments are very much open to criticism if their institutions are detrimental to human wellbeing. They are morally required to establish the basic legal rights that would do the most good -- and hence morally culpable to the extent that they fail to do this. 

(It's also worth noting that government actors might violate their own institutional requirements. Just look at the Bush Administration's disregard for the U.S. Constitution and limits on executive power. It would still be wrong to amend the Constitution to achieve the same effects. But it would clearly be wrong in a different way. It is a virtue of my theory that it can account for this.)

If one is particularly enamoured of "rights"-talk (and I'm not), one could go beyond legal rights by adopting a conception on which "Human rights are... moral claims on the organization of one's society." In this sense, talk of a "right" to X is really just shorthand for saying that we ought to establish institutions which grant us a legal right to X. That may be true enough, but we should recall that the ultimate basis for the "ought" claim is a utilitarian one, as argued above. On my view, moral significance fundamentally derives from real harms and benefits, not abstract quasi-magical "natural rights".


  1. I really don't find what you once called "The big force" of ethics any less metaphysically mysterious whether it's consequentialist or non-consequentialist ethics we are talking about.

    Your claim that there is something fetishistic about rights, because the ultimate value lies with people, fails. What if you, because you value people, regard them as having rights. The value of persons can still form the foundation of ethics even if we accept rights.

    I think ethics needs what you call fetishes. Isn’t there something fundamentally alienating to you about the idea that peoples happiness is the only thing that matters? To me it seems our happiness most often comes from implicitly believing that we have done something intrinsically valuable or have something intrinsically valuable ( even if it is just a wonderful view of something beautiful, or friendship).

  2. I certainly don't think that happiness is the only thing that matters. I prefer an ideal-preference theory of welfare, as explained here. (People shouldn't assume that all utilitarians are hedonists. These days, most aren't.) It also sounds like you might be confusing two senses of intrinsic value: we should certainly desire some things for their own sakes and not merely as a means to something else. But that doesn't mean that they would still have value in the absence of us valuers.

    I think that to value a person is to value their welfare. So if you value rights for the person's sake, then this is also to value rights for the sake of their welfare. So any rights you accept must derive from this utilitarian foundation, rather than being foundational in themselves (i.e. no matter whether they actually make people better or worse off).

    Rational or normative force is always a little mysterious, I guess, but at least the ontology of my position is perfectly naturalistic and straightforward, with no mysterious entities or existence-claims. See here.

  3. I worry that your zeal to do away with "mysterious entities" by way of rejecting natural rights goes a little too far. Now I too think that natural rights is a bunch of hog-wash, but the fact is that people do feel that rights are natural. I fear that this feeling plays a very important role in moral practice, but your version simply doesn't seem to allow for this feeling to play any positive role, except when it happens to be in accord with whereever your consequentialism leads you. It is on this point that I think non-cognitivism provides a better account, though this is not to say that they don't have their own problems to deal with.

  4. there are a number of ways you could apply a philosophy to a population

    In the case of utilitarianism imagine

    1) you could have total buy in by everyone to the same philosophy
    2) you could have buy in ONLY from the ruling elite - the workers are converted to something like Islam (or something similar) to ensure they work hard and stay in line (you could allow them to know there are exceptions but it is probably optimal not to).
    3) any sort of permutation including having the entire population oblivious to the actual rules and just creating them through how the players are arranged.

    (2) is rather like the indirect utilitarian compartmentalization where you segment off parts of your behavior as having to live by certain rules.

    An interesting example is robots/empire/foundation where Azimov has robots (impartial) secretly (avoids justice issues) guiding everyone.

  5. "I think that to value a person is to value their welfare. So if you value rights for the person's sake, then this is also to value rights for the sake of their welfare."

    Well I agree with you about welfare but I believe that part of welfare is having rights, that is you are better of if you have rights even if they do nothing for you.

  6. I really don't see what is so mysterious about natural rights. Certainly, they are no more mysterious than the normativity you associate with a person's welfare.

    Also, might there not be some instability in having two levels of morality? I assess my action A by my society's standard S and I in turn assess S by the consequentialist standard C. I notice that in this particular case A does not maximize the moral goal as set forth by C, even having S seems to do so in the long run. Then I notice that there is another standard much like S will allow me in this one case to not perform A and will otehrwise be just like S. This new standar is thereby preferable according to C. Repeat this a few times and suddenly C is the only standard that matters. (I'm pretty sure this a standard critique of rule utilitarianism, but I dont' recall where I've seen it before.)

  7. Daniel, the problem is that people are generally not in a position to reliably make such judgments. The reason for accepting the indirect rule S is that you know that if people in your position tried to follow C directly, then it would lead to worse consequences. I discuss this further here. In short, the general optimality of S ought to undermine your confidence in your particular judgment that following S in this case seems sub-optimal.

  8. I'll concede for the sake of argument that ethics should be about human welfare ( though I remain undecided about this principle, I suspect beauty has fundamental significance). But I think that part of welfare is having rights, having your rights respected increases your welfare quite apart from anything else it does for you.

    Our ethical practice should never be slave to our ontology so I think that worries over mysterious entities shouldn't carry any sort of weight in this discussion. Besides as a consequentialist you at least have to believe in a property "good" which is a mysterious entity.

    Your right on the point about the different kinds of intrinsic value, though I still feel a strong intuition that beauty, for example, is probably valuable even in the absence of a valuer.

  9. I guess there is a certain value in rules that we can all understand and seem immutable (e.g. rights), I guess there is also some value in a strange and beautifully unpredictable world.
    Could we say it depends on the person which is more important?
    Or should we design experiments to measure the two against eachother in their totality?

  10. Timothy - "But I think that part of welfare is having rights, having your rights respected increases your welfare quite apart from anything else it does for you."

    I'd allow that part of welfare is having security, and being granted secure (well-respected) legal rights is a good way to achieve this. I don't think that contradicts anything I've said here.

    I too feel some force to the idea that other things matter besides welfare. It's a little tangential to the present issue, but I discuss it more here.

  11. "I'd allow that part of welfare is having security, and being granted secure (well-respected) legal rights is a good way to achieve this."

    Because of what you said about security I don't know if you understand what I am saying, if you are I am sorry. I'm saying having rights intrinsically not just extrinsically to welfare. I think that two people who are on utilitarian grounds equally well of might not be equal in their welfare status on the grounds that one has more rights than the other.

  12. Since utilitarianism is simply concerned with promoting welfare, it wouldn't be true on your view that the two people are equally well off "on utilitarian grounds". (Perhaps you mean on hedonistic grounds, or some such. In any case, I must emphasize that utilitarianism is not a theory of welfare. Rather, it's a moral theory which tells us to maximize welfare, whatever that may be.)

    Now, I can allow that two people who are equally well off on (say) hedonistic grounds might not have equal welfare because the one person's happiness is more secure than the other's. That is, he is happier across all nearby possible worlds. The other person, though she happens to be lucky in the actual world, could very easily have been miserable instead. (Perhaps she is a slave whose master effectively grants her total freedom, but could have revoked this at any moment had he so wished.) I could then say the free man is better off than the slave, due to the counterfactual security of his happiness, as provided by his "rights". Is that what you meant to say? (If not, then I have no idea what you mean in suggesting that rights make one intrinsically better off. Perhaps you could illustrate it with an example, and explain how it's inconsistent with the claims in my original post.)

  13. "is more secure"

    That's not what I am saying. I am saying that even if two people are equally secure in their happiness and both are equally happy one can be better of just in having better rights. Rights intrinsically increase welfare, not just in making you happier or more knowlegable or something like that. Similarly I believe that one can be better of if one is more virtious, even if that virtue does not make you happier or more safe in your happiness.

  14. Maybe I can ask some questions that miht flesh this out...

    So lets say you were given a right you would never use - lets say the right not to be killed while dancing a jig on pluto.
    would that add value?

    Alternatively, would it add value in relation to your likelyhood of using it?

    So if you were likely to walk down your road but for some odd reason you never did the right not to be killed there would be valuable to you even though you never knew you had it?

  15. Richard,

    You may indeed find natural rights mysterious. I appreciate the autobiography, but so what?

    They may also be inadequate, or not, depending on what end you think they should serve. Indirect utilitarianism is inadequate to serve my ends. So what?

    Said another way, if I rejected your argument on the grounds that indirect utilitarianism was a mystery to me, and that it was inadequate to whatever ends I'm assuming into my position, would you find that persuasive?

  16. James,

    When I claimed that natural rights are metaphysically mysterious and ethically inadequate, this was a first-order claim about natural rights, not about myself. (You change the subject when you reinterpret assertions as mere "autobiography".)

    Now, you can't reject indirect utilitarianism on the same grounds, because it doesn't have the same flaws. (Maybe it has other flaws, but you've yet to identify them.) As covered in the above discussion, there's nothing metaphysically mysterious about utilitarianism. It doesn't posit any additional fundamental entities.

    As for ethical adequacy, again there are reasons you must engage with here, rather than dismissing my objections as mere subjective preference.

    For example, here are two facts that any adequate moral theory must explain:

    (1) Rights are contingent, as illustrated here; and

    (2) Due process makes a normative difference. Compare magistrates and vigilantes, for example. (Or, as in the original post, violating the constitution vs. amending it.)

    Indirect utilitarianism can better account for these facts, making it an objectively better moral theory.

  17. Richard,

    I realize this is an old post but I followed the link from your recent comment on EconLog.

    When you claim that natural rights are mysterious, what are you claiming about the world? This seems like a philosophical slur disguised as an objection to natural rights. I call it autobiography to be charitable.

    I don't know that an ethical theory needs to explain any facts, but you can't just assert without proof that natural rights theory must explain the two you mention as if you were stating a principle of proper reasoning. So what if natural rights theory can't be used to derive the conclusions of a rival theory? (It's as though I had said indirect utilitarianism must explain the fact that rights are not contingent. If indirect utilitarianism is correct, "rights are not contingent" is not a fact and there is no need to explain it.)

  18. Those two claims are not "the conclusions of a rival theory", they're pre-theoretic (i.e. intuitive) data that most anyone will agree with upon reflection.

    Of course, you can stubbornly reject whatever premises your opponents offer, however plausible they seem, and argument will be impossible. But that doesn't show there's anything wrong with my arguments. It just means that you're not receptive to them. Cest la vie.


Visitors: check my comments policy first.
Non-Blogger users: If the comment form isn't working for you, email me your comment and I can post it on your behalf. (If your comment is too long, first try breaking it into two parts.)

Note: only a member of this blog may post a comment.