The morass that is "rights"

I have been involved in discussion about the death of Savita Halappanavar on other boards. Inevitably this led to wider discussion about abortion, a topic I have an interest in and which I have debated many times in different forums. I do not propose to reopen that discussion here, but I do want to clarify some of my thinking about "rights", because that (and many other issues) are often discussed in those terms. It seems to me that the word has multiple meanings, and that it contributes more confusion than clarification in nearly every case when it is employed, for that reason.

There is a widely accepted system for the classification of rights, called the Hohfeldian system. It is a good place to start. Hohfeld defined 4 kinds of rights and helpfully supplied different terms for them. When the word is employed in any given context it is sometimes useful to consider what kind of right is being referred to

According to this system rights may be:

Privileges: in these cases the assertion of a "right" to do something really means that there is no duty not to do it. So, for example, you have a "right" to collect stamps; or to make curry. What is puzzling is why that is described as a "right" at all. What is distinctive in this kind of "right" is that it does not make anybody else do anything, or not do anything. If I choose to collect stamps and you choose to stop me, I have no recourse in terms of my "right" to collect stamps. I might be able to charge you with assault if you physically prevent me: but if I am a child, and you are my mother, if you do not provide me with the money to collect stamps I have nowhere to go. My "right"exists: but it has no meaning in practical terms

Claims: These are rights which exist because there is a corresponding duty to uphold them. For example, if I have a right to an education someone or something must provide a teacher or a school. That kind of right may be positive or negative. It may exist because one other person has the duty, or because some people do, or because everyone does. This is the sense which seems most familiar, I think. It is often asserted that there are no rights without corresponding duties: but that is not true unless you define the word "right" in this particular sense. Therein lies a world of confusion. For this kind of right it is helpful to think about who owes the duty, and how they came to have that duty. Because someone with a claim basically holds an IOU from whoever owes that duty.

Power: this is a right which allows you to change the rights other people enjoy. So, for example, a police officer may have the right to detain you for questioning for 24 hours. If his power is legitimate within the rules of the society, he has used that right to remove your normal privilege to go about your business, for that period: and he has removed your claim on other people to defend you from being forcibly taken somewhere against your will. The essential feature of such a right is that it is not something enjoyed by everyone: the right derives from a power structure or from a set of rules. It is described as a secondary right, in this system. Obviously the power to change other people's rights can be positive or negative: you have no right to eat my banana: but I have the power to give you that right

Immunities: these are rights which limit power. For example, in the normal course a legitimate government can pass any law it likes without interference or censure: but certain things cannot be done under international law because of the notion of universal human rights. This is also a secondary right, in this system.

Obviously in real world situations more than one type of right may be in play, and for me we must then turn to the question of what a right is, and what it is for.

We immediately run into trouble, and once again it arises from the confusion which surrounds this concept. In the first place it seems to me that rights attach to individuals. That is, there must be someone who has the right; and their right must be recognised by others. We do talk of rights in relation to groups but I do not think that alters the case. I think what that means is that rights belong to every individual: not that they belong to a group. Indeed the idea of group rights is incoherent to me: but that does not stop us talking of them as in such phrases as "minority rights" or "women's rights". But even if every member of a group is denied rights enjoyed by others, it is still the case that the consequences are suffered by each of them separately. The humiliation of the back of the bus is a personal humiliation: the lack of an education is a personal loss. This is part of the imprecision of our language, and therefore of our thought.

It is implicit in my conception of the word that rights are universal. If I do not choose to collect stamps I still enjoy the right to do so, if such privilege is properly considered a right, as our ordinary speech implies. If I do not make a contract of a particular sort, my ability to make such a contract is intact, so long as I enjoy the same rights as everybody else. If it is not so it is clear that nobody has the right in question: for if I am deprived of it, so can anyone be. Such a conditional state cannot be part of the definition of a right, I suggest.

As I have already noted I have trouble with seeing privilege as a form of "right". One can resolve the problem if one adopts a distinction between positive and negative rights: but that is not satisfying, and if there is no way to enforce a right I do not think it exists. If that is true then it is obvious that rights must be upheld by a group and not by an individual. While I may have the power to enforce a claim in some circumstances, mostly I don't. The party which owes the duty which correlates with that claim must accept the same rules I do: and where there is breach I must have recourse. That recourse is to the group which makes and upholds those rules. So it seems to me that a right must entail a duty and that duty must be accepted within the system of rules adopted. That system may be formal or informal: but it is often embodied in the laws we make. And it is no accident that equality before the law is a fundamental tenet.

Nonetheless there are groups which make differential laws, and so we get apartheid, or other forms of legal discrimination. If rights were determined by law alone, there would be no difficulty. We would have the rights the group endorses, and no others. Yet that is not the case. Most people accept that there are some overarching rights which supersede the prescriptions of community or government. We have the concept of "human rights" and they are seen to exist whether the law in particular place says they do or not. Very often that is more honoured in the breach - so we see such nonsense as "equal but separate development". That does not work, and the reason is easy to see: there is no reason for doing it at all if one is serious about both parts of the formulation. But to me that illustrates that this is yet another different use of the word rights: and I do not think it is apt for such overarching principles.

So it seems to me that a right is something which is universal; is derived from the group which makes the rules; and is upheld by that group when it is under attack. The requirement of enforceability means that rights fall within the arena of law, ultimately. They are concerned with the relation between the citizen and the society, at their very core. Most often the society part of that equation is represented by government, and so that is what is most often at issue. Rights, in that sense, are conferred by government, but they also limit what that government can do to a citizen. Because once the content of rights is decided the role of government is to defend those rights impartially for all.

The question of what rights are for is even more difficult. There are some who argue that they serve to give the holder authority over another's behaviour by imposition of a duty. Others say that they function to further the interests of those who have them. Although those are short hand versions of the two main theories, neither of them is satisfying to me. Here, again, we stumble over ambiguity. Some rights do entail duties, and so long as there is power to enforce the claim the individual does have the right to determine another's behaviour, through establishing their right to their claim. But other rights are not like that at all. It is intrinsic to that conception that the holder of the right can waive it: that is part of the power. But we do not allow people to waive their right not to be enslaved: they have to hang on to that one. Nor is it enough to say that rights further your interests if by that it is implied one has rights in anything which does that: I have a lot of interest in becoming a millionaire but no actual right to be a millionaire .

It might be argued that rights serve to ensure our freedom and our security and I have seen it suggested that privilege and power rights promote our "freedom to", while claim and immunity rights promote our "freedom from". Rights have become central to many political debates particularly in the group rights situation mentioned above. That is because, to quote Andrea Dworkin, "rights are trumps" The reason that became important is precisely because rights attach to individuals; so one cannot meet a claim based on right through a utilitarian counter: the child in Omelas is trumps by virtue of his human rights. Because of the intimate relationship with law, that is important. It is the justification for the prohibition on torture even when the need for the information is pressing, and for many other constraints which serve to recognise the value of the individual, on that conception.

For me that is all true but it is not enough. Rights are trumps within the narrow conception of law and the citizen's relation to the group. But this is where we return to the problem of human rights. Rights are what those overarching principles are called and I think that is largely because such matters are generally dealt with in the field of international law. But I do not think they are appropriately dealt with there precisely because law is properly concerned with interpretation and enforcement of political and social decisions: it is not properly concerned with morals except tangentially. As I have mentioned elsewhere, I am a moral absolutist. I do not think that a right not to be a slave is a matter of group consensus, no matter how big the group. If international law decided tomorrow that slavery was just peachy it would not make it correct. And I consider that the right not to be enslaved would be as valid then as it is now. But it would not be enforceable. For that reason I do not think such a thing is a right at all. It is something else and it should not be subject to a rights discourse, just as privilege should not.

This ties in to the Savita discussion for me in one specific point - the thought that the right for a woman to choose to have an abortion should be limited by the viability of the fetus, as espoused by Roe v Wade.

I have read FionaKabuki's posts, which have mentioned her thoughts on this, on CiF in the Guardian, and if I remember what she said correctly there, she said that such viability discussions were not acceptable to her, that the right of the woman to control her own body is paramount.

My previous thoughts were that a time limit were acceptable, provided that exceptions for the health of the mother, and for potential cases where a woman was forced into not being able to effect her will (in certain cases of sexual assault or incest, this is certainly a possibility).

But this requires that safe access to abortion services is available to all women; in most places, and definitely so in Ireland, it is not.

I am uncomfortable still with Fiona's thoughts on viability; I would set the basic limit at 27 weeks.

And there is no record of the consultants in Savita's case attempting to deliver the fetus by Caesearian, and placing it in a NICU ward; if they had done this, without any cost imposed to Savita or her family, I could possibly see this as being acceptable, provided that the consultants obtained her informed consent.

I am even more angered by the news I am reading about the Savita case (missing and incomplete notes, official government pressure on her husband to submit to the enquiry on their terms of remit, and so on). But that does not matter.

I have to reluctantly agree that, in the world as is now, where the anti-choice brigades will never permanently agree with one viability test, it is better for the woman to have complete choice, regardless of how uncomfortable anyone else, including me, is with that.

I have always believed that anyone who believes that a woman should be banned from choosing to terminate her pregnancy beyond the limits that I am comfortable with is an immediate threat to all persons, including men, because if they can do that to a woman, what would stop them from doing something like that to me?

To impose any limitation on a woman's right to choose to terminate her pregnancy is now unacceptable to me, since there is no limitation that I would consider acceptable to me to impose that would be satisfactory to the anti-choicers - they want all abortions banned, full stop.

Needless to say, any limitations based upon viability that I could possibly support would also require full and unfettered access to contraception, as well as a ban on any attempt by any other person or organization to place any personal pressure, of any sort, on her (even if it restricts their right of free speech, as I would consider this secondary to a woman's right to control her own body). And all these are things the anti-choice brigades would never agree to.

I do not found on rights in the context of abortion, Theoacme. But the terms of the debate are such that it is difficult to explain my position without recourse to the term. And that leads to confusion.

What you seem to be saying is that you would prefer there to be a limit, but you recognise that, in granting that, you open the way for anti abortionists to continue to erode those limits, if they are founded on any concept of viability: your position therefore seems to be a pragmatic one. Nothing wrong with that, of course. But I do not see how you can set any limit which will hold. And that is because I do not see any justification for the setting of a limit at all. If it does not rest on viability, then what does it rest on?

For me the question is far simpler. It founds on moral agency. I do not believe that women are less able to make moral judgements than anyone else. Since someone must make a decision in every single case I see no reason at all why that someone should not be the woman. She is the one who understands the circumstances; she is the one who must live with the consequences of the decision. A blanket limit of any sort quite simply denies her moral equality.

As has been argued elsewhere, we do not make general rules for such situations and the useful example of the man who wrote "Touching the Void" is the most recent illustration of what we are talking about which everyone can relate to. In that situation the writer was in the horrible situation of being roped to a climbing partner who had fallen. He could not raise him, and the writer had to make a decision whether to cut the rope, in full expectation that his partner would die if he did that.

In that situation both people had what the anti-abortion lobby call "the right to life". They had all the other human "rights" we enjoy as well. Such "rights" would form part of the moral decision which the man took, presumably. But they do not settle what should happen in those circumstances, and in fact they don't help much. The decision is not based on "rights": it is based on a far more complex weighing of lots of things such as the perceived probability that both would die if the rope were not cut; fear of death; fear of how the decision would be viewed if the story became known; judgement about how the person making the decision will live with himself after the event; and on and on. Such judgments are moral judgments and only the person in that situation can make them. We do not make rules. We leave that kind of decision in the hands of the person facing them, and we trust that they will exercise that judgment responsibly, and do at least as well as we would do ourselves. There is no correct answer. There is no certainty that the person who makes the decision takes the same things into consideration as we do: or that they give them the same weight. We accept that the situation is horrible and that each moral agent faced with such a situation deserves our support and sympathy for whatever they decided to do. We know that there is likely to be pain for them if they survive and the other person dies.

A woman contemplating an abortion is in that kind of situation. The only difference is that it happens more often (though even that is not completely certain since we do not normally hear about such things if the outcome is the expected death: it wasn't in this particular instance). Moral principles do not change with numbers You cannot argue that we would make rules about how people should deal with the rope situation if there were more cases. Nor can you argue that we should make rules. That makes no sense, and it is impossible to see why we should displace the decision to another even if we could. For the other is not there.

The truth of that analysis is demonstrated when you consider the arguments often rehearsed by those who are against abortion. They go to great lengths to recount the woman who is very late into her pregnancy and suddenly decides, for no good reason, to abort the foetus. They heap scorn on women who "just can't be arsed to be a mother"; or who just decide to use abortion as a method of contraception. Every single such argument aims to deny the moral capacity of women: all women. And that is profoundly arrogant and insulting. It is perfectly true that someone on the end of the rope might not be a very moral person: but the default assumption is always that he is. Unless, apparently, he is a she

Edited by FionaK - 25/11/2012, 03:06

I cannot object to your reply, Fiona, since the way in which you replied to me, taking great care as you always have, from all that I have observed of you, is something that I truly appreciate.

And your objections to my internal logic which I once held are certainly valid; the fact that I have adjusted my thoughts on this subject, in large part due to what you have written previously on CiF in the Guardian, is proof of this.

I think that I must share some more of myself, for you to understand where I am coming from.

You may have noticed that I used the term "crisis of faith" in my "hello" post. My mother was raised a Catholic from birth. When I was young, she left the church, but when I was in fourth grade, my mother had some serious issues with the local public elementary school, so I wound up in a parochial school until I completed sixth grade.

In the course of her spiritual journey, she tried various Protestant denominations, and wound up becoming a nondenominational Christian. However, in some ways, she was rather conservative - on the subjects of same-gendered marriage, on pre-marital sexual relations, and on abortion, she was fairly close to the current Catholic doctrine.

My journey has diverged from hers, because while she was very conservative on such issues, she was not willing to strictly impose those doctrines upon me. In fact, she taught me that my conscience should inform what I believe, and that I was required to interpret the Bible for myself, and not rely upon anyone else's thoughts, even hers. As she put it to me, "When you appear before God, and He asks you, "Why did you follow those men blindly?", and you reply, no matter how, He will ask you, "Can't you read?!"

And my mother also meant, and she was clear about this as well, that I should read other sources, and not just rely on the Bible for facts, to inform my conscience and my thoughts.

There are several issues of faith that were affected by my own interpretation of what was written in the Bible, and by my subsequent learning; the issue of abortion is merely the latest, and the most acute, issue that I have had to deal with. And when I said that I experienced a crisis of faith, I meant that in the most severe terms - that I questioned the existence of God, and whether, if he existed, I could possibly worship him.

I have a lot of Christmas decorating to do today, and a nine year old niece here too, so I will explain further about how Savita's case incited a severe crisis of faith in me, later on. (I have to be off the computer, so she does not want to go on hers )

That is going to take a bit of time for me to compose, Vninect, given my schedule, probably a couple days - I'm going to have to do it in MS Word, then Ctrl-C, then Ctrl-V it

The Leveson report has things to say on "rights" which I think serve to put some of the principles in the OP into a practical context. At page 85 there is a report of the evidence from one witness. The issue is the "public's right to know", and that is one of many formulae trotted out uncritically in defence of the behaviour of the press. These are examples of trite cliches which we have been taught to accept, and which have little validity under the surface plausibility. Ethics by slogan does not serve us well, IMO. The witness puts this very clearly:


That this confusion (fostered by the press itself, and thus seldom explored in this way in public) is widespread was brought home to me again in an exchange on another board. What the poster said was this:


Not only is it not important, it could not be important, in any way that makes sense to me: yet this is the public's right to know applied uncritically and without any consideration of other ethical or public interest considerations which are also in play. If the MP is against gay marriage then that is how he will vote if elected: if he does not we have the usual option of not electing him next time. And that is the only power we have in the present system: it applies to this issue as to all others. His sexual orientation is of no consequence whatsoever to how he fulfills his electoral platform. However it is certainly true that some members of the electorate would like to know: if they are prejudiced against gay people that might be sufficient reason not to vote for a person whose platform might well accord with their own in all the important ways: for others group identification might lead them to vote for him even if they disagree with all of his positions: we saw that strand when Mrs Thatcher was elected: some women voted for her because she was a woman, or so it is said: though her policy was detrimental to women in quite profound ways.

If the public has the right to know about this MP's sexual orientation it seems to me to follow that they have the right to know about every MP's sexual orientation. It is, after all, a right to know. But consider the justification for it: one thing that same poster said was that his right to know partly founded on "character" and he wished to be informed if the candidate was
. On that reasoning we would have to be informed about every MP who had an affair, or did anything at any time which we might disapprove. To be sure we would still have to vote for someone who did those things, because there are no saints standing for election. So one might say it would not matter: but that is the point, surely?

It is also obvious that on that reasoning the MP has lost his right to privacy: and so has his wife. It is explicitly stated that one reason for the importance of knowing is that he is the sort of person who cheats on his wife. Well we do not and cannot know that unless she is prepared to come forward and say so: for it is possible she married him knowing he was gay and is content with the situation. It is not obvious that she will be equally content to have that known to millions.

This is the kind of assumption smuggled in under "right to know". We do have a right to know some things: where those things directly impact on how an MP does his job. For example if he is paid to lobby for commercial interests (the press, for example) it is relevant: but being gay or not gay is not like that.

If one disagrees with that it seems to me that it is inescapable that we also have a "right to know" about the sexual orientation of every journalist who reports on those issues: they are powerful people and if an "agenda" can be hidden by an MP it can also be hidden by a journalist. We do not have the option of voting that journalist out at the next election, so any "right to know" has more force, not less. One may argue that journalist do not make law: but insofar as they shape opinion and tell us what is important to know (and they do) they should be the first to disclose those pertinent facts, surely?

Edited by FionaK - 1/12/2012, 12:28

http://www.newyorker.com/reporting/2012/04...e?currentPage=1

It is not often that the media publish a long and interesting article on any subject at all. The New Yorker may be an exception to that rule. It is not a publication I know much about.

The linked article is 8 pages about gun control legislation in America, and its somewhat surprising history. It is topical given the latest school massacre: but it hinges on the question of rights and so is relevant to this thread

I think this is a very good article. It avoids the overblown rhetoric which normally attends this debate, though it is clearly on the side of gun control. It aims to show that the commitment to gun ownership on the basis of "rights" and constitutional "freedoms" is a relatively new development: and that is something well worth considering in terms of the principles avowed. It also contains some figures which surprised me and which lead me to question whether it is true that the majority of Americans really do support the rights of the individual to bear arms in the way we are told they do.

It is not for other nations or peoples to tell the americans what to do about the situation vis a vis guns in their country. Even if we had a locus, the gulf in understanding of the issues which matter is too great to bridge; and this has been shown time and time again in debates over this issue

For myself, that attitude to guns is one of the major reasons why I will never set foot in America: it is their decision, but I can have no part of it. I can resist following their lead in my own country, should that become a real possibility, and I can try to spot the "drift" in that direction, which I consider as likely as the "drift" which is dismantling our welfare state (for "drift" read introduction of measures by stealth which would never gain electoral support if done openly), and oppose it. I can take the view that americans are utterly crazy to allow what appears to be a minority to determine that they all live in an armed society: especially when at least one of the justifications is fear of an overmighty government which will tyrannise the people if the people are not armed: and this from a group which says that they cannot exercise democratic control through the ballot box because.......er, no reason given, bar corruption such as they exercise themselves in spades through political donations and advertising and paid for research etc. Well they should know.

I recommend reading the article, even though it is long.