Lecture 4: The Justification of Human Right Philosophy of Human Rights All text 2008, T Storm Heter 1.

.Overview The justification of a right refers to how we argue for its existence, what philosophical assumptions and theories we use to defend & define the right. Politicians and states people dont necessarily use any explicit philosophical theory to support their views, or to explain why they believe in certain laws or basic rights. But, they inevitably have some type of theory. Also, the nature of public policy is compromise & mish-mash. Usually, no one philosophical theory wins out. Instead, policies reflect compromises between different theories. Be aware, then, that the way Philosophers talk about Ethics (Human Rights is a sub-branch of Political Theory, which is a sub-branch of Ethics) is not necessarily the way that public policy makers talk about ethics. Perhaps the most interesting discussions arise from judges who must explain their jurisprudence (defined: the philosophy and science of law; from the latin jrisprdentia, meaning experience in public law). In common law systems, as opposed to statutory systems, judges must have vast experience in past precedence, legal theory and common customs. Their job is to explain publicly the justification (rationale) for particular decisions. Unlike moral philosophers, judges in common law systems must explain how their current decisions are consistent with past decisions. (Define: common law is law based on precedence or past procedure.) But like moral philosophers, judges in common law systems must reason logically and consistently. Also, judges at common law must use the skills of interpretation, as well as common sense. Also, since common law refers to customs and habits, common law judges must explain what these (moral) customs are and how they are related to the case at hand. Today, we will look at two philosophical justifications of rights. These two theories (Kantianism and Utilitarianism) have opposite views about the nature of a right. Many of the public policy debates about rights are in effect debates between a Kantian Conception of Rights and Utilitarian Conception of Rights. The basic debate is whether or not rights are flexible or absolute, and whether human dignity or human happiness is more fundamental. After laying out the basis, we are going to look at a case study: torture. 2. Kantian Conception of Rights - Kant is writing 100 years after Locke. His major work Critique of Pure Reason is published in 1781. The Grounding for the Metaphysics of Morals was published in 1785. (Many of you have read this work already) - While Kant is associated with the social contract tradition, his Ethics has become selfstanding. Kantian Ethics is one of the most widely endorsed ethical systems, and has been since the 18C when Kant founded it.

Dignity is the major concept that separates Kant from Locke. Look at the quote on page 40 :In the realm of ends everything has either a price or a dignity. Whatever has a price can be replaced by something else as its equivalent; on the other, whatever is above all price, and therefore admits of no equivalent, has a dignity. Here is a practical experiment so that you can better understand Kants point: How much would someone have to pay you to voluntarily amputate your right arm? Kant believes that there is no price which could repay this loss. There are some losses which are irreplaceable, and which are beyond market value, and all utility value. Dignity refers to the absolute value we confer on human life and human freedom. [Utilitarians, as we will see, reject the claim that human life and freedom have an absolute value.] We can summarize the Kantian view of human rights as the claim that: basic human rights like life and liberty are absolute. This entails two things: (a) Human Rights are not derived from Utility (their usefulness for some further purpose, ex. to promote human happiness); (b) Human Rights are inflexible and cannot be derogated (modified or abridged).

3. John Stuart Mill - Mill is a 19C British thinker whose major works include Utilitarianism (1863) and On Liberty (1859), and Considerations on Representative Government (1861). - Mill co-developed the philosophy of Utilitarianism, which is a system of Ethics based on a single principle, the Principle of Utility (PU), which states that an action is moral if it promotes the greatest good for the greatest number. - The Utilitarian View of Rights holds that while individual rights are important, their importance is justified by their contribution to human happiness. Rights are not thought of moral absolutes. The only moral absolute for Utilitarians is that human beings naturally seek their own happiness. If rights contribute to human happiness, then society should protect these rights. If rights do not contribute to human happiness, then society should not protect these rights. - The major disagreement with the Kantian view of dignity is apparent. Kantians think that the right to life and the right to liberty are absolute. There is, for instance, no monetary price that could replace a loss of human life, limb or self-esteem. Utilitarians believe that a right to life is only an instrument which protects a persons happiness; so if the persons happiness is not promoted by the existence of a right to life, then society should not give that person a right to life. 4. Case Study: Right to not be Tortured. - http://www.npr.org/templates/player/mediaPlayer.html? action=1&t=1&islist=false&id=18549133&m=18553889 - Consider the difference between a Kantian and a Utilitarian view of the right not to be tortured. - Kantian View: There is an absolute right not to be tortured. Torturing a person would destroy his dignity. The cost of a loss of dignity is infinite. No benefits flowing from the torture (ex. saving lives) would offset the loss of dignity. - Utilitarian View: The right not to be tortured is important but not absolute. If the greater good is served by torturing a person, then the right to not be tortured can be abridged.

However, the cost of torture is twofold: (a) the loss of individual happiness of the person tortured and (b) the general social effects of derogating a standard right. Summary: Kantians believe in an absolute right not to be tortured, whereas Utilitarians believe in a derogable right not to be tortured. Comment: Law makers and politicians are by nature pragmatic, and prefer the Utilitarian approach. Among Philosophers and Legal Scholars there is no consensus about which of these approaches is correct.