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The Concept of Rights: A Tool or a Hindrance for Jurisprudence?

Is the language of rights necessary or at least useful for jurisprudence? Professor Robert George argues that although it is useful, the concept of rights is not sufficient to explain all moral duties or obligations of justice. The philosophical basis of jurisprudence needs to be traced farther back than rights to the fundamental human goods that provide the basic motivations for human action. https://youtube.com/watch?v=zsIN458vXWA


As long as we are careful to avoid overdoing it, I think the language of rights gives us a supple and powerful way of expressing important moral propositions, like the right of a human being not to be directly killed or unjustly killed. I see rights as expressing principles of justice, like the one I just articulated. They are principles of justice and they express requirements of justice from the point of view of the beneficiary of the requirement, the rights bearer. That's what a right basically is. So, I'm not in the strong anti-rights talk crowd, but I don't think we can do all the moral analysis that needs to be done with the language of rights. And I don't think we actually need the language of rights to do any of it, need the language strictly speaking. We can translate propositions of rights talk into other language while capturing the core insights. Still, I think it is useful and we ought not to get phobic about rights language and refuse to ever speak in terms of rights. There's a reasonable position where we don't throw the language of rights entirely overboard, but we also don't imagine that we can solve all our problems, handle every moral issue, by analyzing the issue in terms of rights, or that there's no other language to express certain important principles of justice apart from the language of rights. I benefited enormously in my own education on this issue from reading the work of the Yale legal scholar Wesley Hohfeld, who wrote in the 1920s and 30s, I believe. He gave us a very useful way of analyzing rights, whether we're talking about legal rights or moral rights. One of his key insights is that we tend to speak of rights as two-term relations. So, consider free speech, the right to free speech, there's me and there's free speech. I have a right to free speech. Hohfeld points out that's really not analytically very useful. I mean, it might be good political rhetoric. It's really not analytically useful. To be analytically useful, we have to think of rights as three-term - relationships between two persons, at least two persons, and a subject matter. So, my right against, say the President of the United States or the Governor of New Jersey, not to forbid my criticizing the government or criticizing him. My right that a person who owes me $15 pays me the $15 is another good example. Rights are three-term relations. Hohfeld’s other big insight was that rights are correlative. There are different types of rights. Certain rights are correlative to duties. Certain rights are really liberties and are correlative to the absence of a duty. Rights in a certain sense are not philosophically basic or foundational. If we keep tracing back chains of practical reasoning to the first principles of practical reasoning, we're not going to end up at rights. Rights are rather conclusions down the line of chains of reasoning that begin with the identification of human goods or values, the constitutive aspects of human well-being and fulfillment, the more than merely instrumental reasons for action that we humans have. What Aquinas calls the first principles of practical reasoning refer to the basic human goods that give people their most fundamental reasons for acting. From these first principles of practical reason, we can on reflection, reflecting that is on their prescriptivity or directiveness, identify duties, moral duties, moral norms for example, including duties or norms of justice. And correlative to those duties, at least in some cases, are rights. We look at the duty from the perspective of the beneficiary of the duty, the rights bearer. But rights are not, as I say, philosophically foundational. Human goods or values, the things that give us the most basic reasons for action, the non-instrumental or more than merely instrumental reasons for action that we have, are at the foundation of all practical, including all moral thinking. Including all thinking about justice.

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