Rights and Their Relation to Conventions

Reasons for an interest in rights as well as obligations
It might seem that even though virtually all moral codes are couched in terms of rights as well as obligations, a code that limited itself to obligations would be preferable because it would be both more clear and more economical conceptually. There are, however, important reasons for including rights.
First, saying that x should respect y’s right usually has stronger moral force than saying that x has an obligation to y: it would be an understatement to say that rights entail obligations instead of duties. For instance, while you would have a duty to help your wife in an emergency, it would be an obligation in the case of a stranger.
Second, rights center on the question of what a person is entitled to do, to have or to enjoy, and in general to what is important to his or her welfare, even though an exception is the right to vote.
Third, the recognition of rights encourages persons whose rights are violated to feel resentment, protest, and take a firm stand.
Fourth, you needn’t be a deontologist to justify rights. Despite J.L. Mackie’s (1978) claim that a goal-based theory cannot include rights (which would certainly apply to act utilitarianism), rule utilitarians can justify rights by the benefits of including them in a moral code[1]. I should add that the most beneficial kind of rule utilitarianism has rules that are strict (though not absolute) in some areas including keeping promises, respect for property, and against killing innocent persons; and since it must be viable, like most actual moralities, it is less demanding in others, and leaves room for supererogation. For instance, we are only required to save lives when the gain to others would be a number of times our personal sacrifice. And oddly enough the area with rules that simply require optimific behavior is limited.

The status of rights depending on whether they are justified and established, imperfect but established, or candidate rights

Although I defend certain rights, my primary concern is with determining the various kinds of status that a right may have depending on whether it is fully justified and established, i.e., backed by conventions, established and defensible though not ideal, or established but not defensible, and also what I call candidate rights, those which are not backed by conventions but which should be backed by conventions. For the last I have in mind, for instance, a right to abortion on demand, and a right to equal pay for equal work; and it is important to add that animals raised for food should have a right to have lives worth living rather than miserable lives on factory farms. There are also candidate rights that cannot be fully established, and rights whose duties are not assigned.
It might be argued that “rights” should only be used in the narrower sense of being justified and established on the grounds that this would provide a tight conceptual boundary. However, this would not leave room for rights that were established though not ideal, candidate rights, or candidate rights that could not be fully established. In any case, holding that rights must entail duties to respect them is sufficient to provide a clear conceptual boundary.
Furthermore, acknowledging that there are rights that are not established, candidate rights, candidate rights that cannot be fully established, and also that animals can have rights does not involve a change in usage because the term is commonly used in this relatively broad way as well as in various narrower ways. It is commonly held, for example, that, as in the case of abortion, there are various rights that should be backed by conventions, even though they aren’t. And there can be rights without the powers normally associated with a right such as the right of a child to its inheritance even though he or she does not have the power to either sell it or give it away.
As for conventions, besides the fact that conventions provide support for rights, we usually need conventions to determine the contents of a right. This clearly applies, for example, to property rights since they differ from one society to another. For instance, behavior that would count as theft in one society might be regarded as borrowing in another, and while owning land in some societies gives you a virtually unlimited right to do with it as you please, most contemporary societies limit your rights by imposing restrictions not only on what you can build on your land but on the kinds of activities in which you or your employees are allowed to practice in it.
There are also what are called natural rights, including the right not to be killed, that do not need conventions to determine their contents; and there are reasons to honor them even if they are not established by conventions. Nevertheless, if there was a society in which the right not to be killed was not established, it would be reasonable to provide further support by adding the convention; and it would be in accord with ordinary usage to advocate it by saying that people have a right not to be killed, meaning in this case that they have a justified candidate right. The right not to be killed, is of course, backed by a convention in most contemporary societies, but many of the most important rights are candidate rights rather than rights that are already based on conventions. Unfortunately this applies in many societies to a woman’s right to choose to have an abortion and to homosexuals’ right to marry.
Candidate rights such as the right to abortion on demand, and the rights of homosexuals can also be supported by benefits to others, in both cases by the problem of overpopulation. And homosexuals’ right to marry can derive further support from the fact that it would decrease promiscuity and the spread of sexual diseases including AIDS. Furthermore, There is also a simple answer to the common objection that homosexuality is unnatural and therefore immoral, namely that the percentage of homosexuals is roughly the same in all cultures. Moreover, even if it was learned, besides the fact that their behavior isn’t harmful, insofar as they are somewhat less likely to have children, this is an advantage in an overcrowded world.
Most of animals’ rights are also candidates. These include the right to lives worth living for animals raised for food, and, as far as possible, for animals used for experimentation. When candidate rights “graduate” to the status of established rights they are correlated with duties and entitlements in the same straightforward way as other established rights, and it is this anticipated correlation that justifies calling them rights. Nevertheless, their relation to duties and entitlements is much more vague and more complex before they are backed by conventions, as I explain in the next section.


Justified established rights, defensible established rights, established rights that are not defensible, utopian rights, rights without assigned duties, and candidate rights

1.     Justified established rights
Though justified established rights may be backed by implicit or explicit contracts, it is not necessary. Rather, to be established, a right only needs to be included in a society’s moral code.
2.     Established rights that are defensible though not ideal
Some established rights that are less than ideal morally are still defensible on the grounds that it is better to have them than to have no rights in the that area, or else on the grounds that improved alternatives would for one reason or another be, as I say, Utopian.
3.     Utopian rights
A Utopian right is one whose incorporation in a society’s moral code would be desirable but such that the costs of fulfilling the right would be too great. This could be because the costs of the transition would be too great to justify the change, or because it would be impossible to fulfill the right even if a society tried to do so, as in the case of ascribing a right to a life worth living to animals in the wilds as well as to animals bred for our own purposes.
4.     Established rights that are not defensible
An obvious example is a slave owner’s right to own and control his or her slaves was established in some cultures, including at one time that of the southern part of the United States, even though it was certainly not defensible.
5.     Rights without assigned duties.
It is sometimes convenient to talk about rights rather than duties because it is clear that there are individuals who should have the rights, but not clear who will be required to fulfill the duties or as I sometimes say demands. For instance, when you say that an individual has the right to food, shelter, and education you may not have decided who would be required to provide them. You may, for example, mean that any society that is prosperous enough should provide them but still leave open the question of whether the duties should be fulfilled by the government or by private charities. In such cases it is useful to start by considering what is required for those who have the right, since there is more agreement about that than as to where the duties should be assigned. It is true that rights are worthless unless they not only entail duties but the duties are assigned. Nevertheless, it is often useful to begin by defending the rights.
6.     Candidate Rights.
A right that is both justified and could be established with justifiable transition costs is a candidate right. Though candidate rights impose demands, the demands are usually different from and less clear than the demands they would entail if the rights were established.
First, violations tend to be less harmful than violations of established rights because they do not run counter to expectations. Second, since a candidate right may not become an established right, the degree of probability of its being established may limit its demands while it is only a candidate. Nevertheless, both respecting a candidate right and making the entailed demands are likely to be necessary steps towards getting the right established. Persons with candidate rights can assert their rights, complain when they are not respected, and take their defense as central projects in their lives. Unfortunately animals cannot, but people like Peter Singer (1975) can do so for them.
7.     Candidate rights that cannot be fully established.
The most obvious examples are women’s right to choose abortion and homosexuals’ right to be married. In such cases the alternative to their establishment in a generally accepted moral code is to make them legal rights. It is worth adding that these rights can be supported by the interests of others as well as their possessors. Allowing homosexuals to marry would decrease promiscuity and with it the spread of sexual diseases including AIDS. And a legal ban on abortion would, among other kinds of harm, lead to a sharp increase in the population of an already overpopulated world[2]. Furthermore given our current industrial practices a legal ban would increase the already formidable threat of global warming. Note too that though it is objected that homosexuals do not have children, insofar as this is true here too that is an advantage in an overpopulated world.
8.     Projects supporting candidate rights
Candidate rights need to be supported by persons who make them major projects in their lives as well as by persons who already treat them as though they were established. Consider for example, the candidate right of animals raised for food to lives worth living instead of wretched lives on factory farms. It is unlikely that this right will be established if there aren’t people who spend a major part of their lives campaigning for the right as well as individuals who limit themselves to avoiding meat from animals whose right to such a life is not respected. This is particularly important because of the enormous number of animals in question. Though it is sometimes held that their pleasure and pain should count less than ours because they are less intelligent than human beings, this won’t do since we do not use the level of intelligence to determine the importance of pleasure and pain for human beings. For instance, we do not regard the suffering of an idiot as less important than that of a normal human being. The case is of course more complicated for rights when there hasn’t been a decision about both the specific nature of the duties and who will have them.

The relation of rights to both demands on other persons and benefits for them

1.     Some rights impose demands on others. These include the right to an education and the right of animals to lives worth living instead of on factory farms despite the higher cost of meat.
2.     All rights must benefit their holders but some rights are also justified in part by benefits to others. This applies to education as well as to homosexuality in an overpopulated world. This is important for education because it justifies the costs for others. It is also worth noting for Christians that since Christ never said a word against homosexuality, its opponents must look to Leviticus where the objection to homosexuality is combined with the acceptance of slavery.

The justification of rights
1.     Factors relevant to their justification
These include the value of having a right, the costs of respecting it, for a legal right the costs of enforcing it, and whether the likely degree of respect would be sufficient to make the right worth having. Though I’ll discuss the justification of certain rights briefly to show how we should go about justifying a right, rights differ in the degree to which they are justifiable. A right may be justifiable solely to the extent of passing the basic requirement given above so that its establishment would be preferable to having no established right in the area in question; a right could be superior to other rights that would pass the minimum requirement but not ideal; or it could be ideal.
2.     Justifying new rights
Showing how an established right would be justified can provide a rationale for the justification of candidate rights. A key problem is to admit some rights that we do not have to rely on without allowing the burdens imposed by respect for rights to become overwhelming. Fortunately some of these rights are not particularly burdensome, and others may be assigned to the state or charitable organizations rather than to individuals.
An example is commercial free entertainment on the radio and television.
Let me add that while it may seem odd to speak of a right to entertainment as well as the prevention of distress since we are willing to undergo pain to get pleasure, the promotion of pleasure is as important as the prevention of pain.

Kinds of rights
1.     Rights concerning harm
If there were a right to help in a life-threatening emergency, it would be less important than our right not to be killed. Suppose, for example, that in visiting a foreign country you wanted to see the stained glass windows of a famous medieval cathedral, but that it was located in a part of town where you would not be helped in a life-threatening emergency. Even so it might well be worth the risk, while we would respond quite differently if it were a part of town where murder was permissible. Though I have used our right not to be killed as an example, the same holds for lesser forms of deliberate harm.
2.     Rights for help
The claim that there is a right to help is most plausible for life threatening emergencies, but, in marked contrast with refraining from killing, this is likely to involve a significant amount of effort. Thus, aside from special commitments, it would be better to speak of an obligation to provide help in emergencies unless, as in the case of a spouse, you have a special relation to the person in question in which case it can be a duty.
In contrast, we should speak of rights when it is usually both easier and more important to respect them, and predictability is a major factor, as in the case of legitimate property rights and the right not to be killed. I say easier because a morality’s requirements should not be overwhelming.
Turning to the moral significance of the distinction between killing and letting die, it depends on the greater importance of protection from killing even though the outcome is the same, and on the fact that it is easy to refrain from killing while saving lives may not only be difficult, but that, except for help in emergencies, a requirement to save all of the lives that we could both near and far would be overwhelming.
3.     Why animals raised for food have the right to lives worth living
Raising animals for food is optional. We do it, but we do not need to do it, because we do not need to eat meat. Nevertheless, it is arguable that before the era of factory farms a large proportion of animals raised for food were given lives worth living, and such lives are valuable even though the animals are eventually killed. But when animals are raised on factory farms it is obvious that they do not have lives worth living, and that their misery far outweighs any benefits to people from having cheaper meat, even if, in addition, we would not be worse off if we ate less meat or became vegetarians. Thus if we do raise animals for food, a rule utilitarian morality or even a reasonable deontological morality can only sanction this practice if instead of raising them on factory farms we raise them in ways that enable them to have lives worth living. In order to insure this, we need to acknowledge that they have a right to such a life[3]. The enormous number of chickens and hens raised in such conditions makes this particularly important for them. It might be argued that the strict requirement of a right is unnecessary that a straight utilitarian requirement would suffice. But it is surely obvious that many people responsible for their care would rationalize their way around a straight utilitarian demand.
Given the requirement that the various kinds of animals raised for food should be provided with the necessary conditions for lives worth living plus the fact that even providing close to ideal conditions would not be very costly in proportion to the likely benefits to the animals, we should insist on such conditions. This applies particularly to chickens and hens because of the enormous number of them in contrast with the much smaller number of larger animals. If in spite of these considerations it is claimed that raising animals for food in ways that would meet this requirement would be too expensive or that the money would be better employed in other areas, the only morally acceptable response would be that we should not raise animals for food.
4.     The impossibility of honoring a similar right for fetuses
It might seem that demands should also include a rule against having children unless they would have reasonable prospects of having lives worth living. Unfortunately this is more problematic. Most women have an intense desire to have children at some time in their lives, and although having children should not be encouraged in an overcrowded world with a rapidly deteriorating environment, it is arguable that even women in impoverished countries who cannot do much more than provide food and shelter for their offspring nevertheless have a right to have at least one or two children. Furthermore, in impoverished countries men as well as women not only want to have children but want to have large numbers of them in order to make it as sure as possible that, despite high infant mortality rates, at least some of their children will survive to provide for them in their old age.
Thus we have a conflict of rights, the right of a fetus to be aborted if it is unlikely to have a life worth living vs. the right of women, and to some extent men, to have at least one or two children. Unfortunately, however, the latter right should prevail. In large parts of the world fetuses cannot be given the right to be raised in circumstances that would give them a reasonable chance to have lives worth living without violating rights that it would be impossible to withhold from prospective parents.
In contrast we could stop raising animals for food without violating any important rights, and if we do raise them it is in general much easier and less costly to provide the conditions needed for such animals to have lives worth living than it is to do this for human beings. Thus paradoxically while we can give animals raised for food the right to a life worth living, it would be impossible to implement such a right for a large proportion of human beings. Since even persons whose lives are not worth living want to survive and there would be chaos if we allowed them to be killed, we can give them the right not to be killed but paradoxically not the right to a life that would make it better to be alive than dead.
5.     The right to a healthy environment
It is arguable that our most important duty is to do what we can to prevent further deterioration of the environment, and that the most important right of our descendants as well as members of other species is the right to a healthy environment. We can make some contributions as individuals, but it is mainly a task for governments. Certainly major governmental expenditures are required. This will entail increased taxation (preferably very progressive) insofar as it will increase revenues rather than being counter-productive, and it will also require major decreases in expenditures in other areas, sometimes at the cost of violating lesser rights. In democracies, this means that a majority of the population must vote for measures that entail considerable sacrifices in the near future. For young people such sacrifices will be amply repaid by effects on the environment that will benefit them in the long run so that for them voting for environmentally sound policies is prudent as well as moral, while for older persons the requirement may be moral but not prudent. It may be difficult or even impossible to convince enough people of this even though, like it or not, that is the truth of the matter.
It follows that we cannot rely on this right in the way in which we rely on property rights. If our right to a healthy environment is not respected, we may do our bit to try to reduce the decline, but, in contrast with property rights, that is all we can do to protect ourselves against losses. Nevertheless, if my arguments for a broad concept of rights are sound, the difference in question shouldn’t lead us to deny the right to a healthy environment. Instead, given its enormous importance, the project of bringing about the establishment of the right should be given the highest priority.
Though this is already regarded as a right in some societies, I don’t know of any in which there has been an adequate assignment of demands let alone obligations. In general the duties of individuals would pertain primarily to abstaining from or at least limiting activities that would harm the environment. This demand is supported by the fact that far greater demands are commonly made to defend their country in a war, while the threat now is not just to your own country or even some group of countries but to the entire world. Furthermore, it is very probable that the disaster would be permanent.
The environment can also be protected by people who accept its protection as supererogatory projects. Some individuals may elect to devote as much of their lives as they can to such projects, while others will devote less time to them. In both cases there is the reward in the sense of a meaningful life. Nevertheless, the most important duty is for governments to protect the environment by imposing constraints on the activities of industries as well as individuals.
Some may suppose that making the demands on governments runs the risk of requiring unnecessary sacrifices for its protection. Politicians often take this line, though their real reason is that they are primarily concerned with the negative influence on voters of short-term sacrifices including higher taxes. In any case since the losses of doing more than we need to do to protect our environment would be far less than the catastrophic losses of doing less than we need to do, it is far better to take a chance of doing more than we need to do to protect our environment than to run the horrible risks of doing less.
6.     Rejection of the right to a healthy environment based on either personal egoism or group egoism
The fact that protection of the environment is less important in the short term for persons in the countryside with less pollution may lead them to reject the right and the entailed sacrifices, and the same holds for groups that profit from practices that generate pollution. Furthermore, persons near the ends of their lives may not live long enough for their sacrifices to be repaid.
But acting as though the total benefit for your group would be your personal benefit is a straightforward fallacy, and regarding benefits of its members as far more important than equal benefits for anyone outside the group is not subjectively rational in the sense that it could retain your approval after critical scrutiny plus a vivid idea of the matter in question[4].
7.     The right to abortion and information about contraception
These rights are commonly defended on the grounds that women are entitled to make their own choices in issues concerning their own bodies, and that it would be supererogatory for a woman to go through pregnancy and childbirth for the sake of a fetus[5]. There is some merit in such arguments, but there is another far more potent argument that is commonly ignored, namely that both rights are justifiable on the grounds that the world is dangerously overcrowded and that the eventual results of banning contraception and abortion would be catastrophic. Though it is customary to use the interests of their possessors to defend rights, they can also be defended by the interests of others. Furthermore, this reason is well suited to the justification of demands because the bad effects of violating these rights are likely to be ignored or underrated.
There is, however, a strong form and a weak form of the right to abortion. The strong form would require the state or some other group to provide the means for an abortion, while the weak form would only entail the liberty to pay whatever it costs to have an abortion performed. Similarly there is a strong form and a weak form of the right to information about contraception. But even the strong forms of these rights would not impose an undue burden on the state, and, for the weak forms, the rights, like most rights to liberties, impose virtually no burden at all for the state.
It is reasonable to hope that at least the weak form of the right to information about contraception will be established in most secular societies. However, in most societies abortion is likely to continue to be frowned upon by at least a sizeable minority. The same is true of the right of any fetus or neonate to a painless death if, as in the case of spinal bifida, it is far more likely to have a life worth avoiding than a life worth living. (For a defense of this view see Peter Singer  [2002].)
The main reason for the last two is that in these cases the problem is not that providing for the right would, as in the case of a universal right to food or education, strike some people as costing too much in terms of taxes or whatever. It is rather that fulfilling the rights is seen by many as morally wrong, and this response is no doubt due in part to a mistaken generalization from our normally beneficial repugnance to the killing of any innocent persons.
8.     Things to which you have may a right even if you cannot pay for them
Even on a maximin theory these will vary with the resources of a state.
a)     Though the right to healthy food obviously takes precedence over the right to more expensive food including meat, healthy inexpensive food can be more enjoyable than many dishes involving meat.
b)    Preventive medicine will tend to be easier to justify than other forms of treatment. It may be justifiable to provide funds by imposing a tax on kinds of medical treatment that cannot be provided for people who are unable to pay for them. Care for the young will be easier to justify than care for the aged. Funds for extending the lives of the terminally ill may be the hardest to justify.
c)     There can also be a right to things that aren’t necessary to survival or even the prevention of suffering provided that they are inexpensive to provide in proportion to the number of people who can enjoy them. As I have observed this applies to government supported commercial free radio and television stations, though this role is at least as often left to charitable organizations.



References:
Brandt, Richard B. 1992. Morality, Utilitarianism, and Rights. Cambridge: Cambridge University Press.
Mackie, J. L. 1978. “Can There Be a Right-Based Moral Theory?” Midwest Studies In Philosophy 3, no. 1: 350-359.
Singer, Peter. 1975. Animal Liberation. New York, N.Y.: New York Review of Books.
Singer, Peter. 1981. The Expanding Circle: Ethics and Sociobiology. New York: Farrar, Straus & Giroux.
Singer, Peter, and Helga Kuhse. 2002. Unsanctifying Human Life: Essays on Ethics. Oxford, UK: Blackwell.
Warren, Mary A. 1978. “Do Potential People Have Moral Rights?” Chap. 2 in Obligations to Future Generations, edited by R. I. Sikora and Brian Barry. Philadelphia: Temple University Press.




[1]For more on rule utilitarianism and rights see (Brandt 1992).
[2]For support see (1978).
[3]The use of animals for experimental purposes presents a somewhat more complicated problem, but even there I'll argue that such animals should be given the right to lives worth living although in a very small proportion of cases conditions may be sufficiently extreme to justify violating this right.
[4]I once assumed that my notion of subjective rationality was the same as (Brandt 1979) despite my use of a different term, but I was mistaken. Unlike Brandt, I hold that a desire can survive what he calls cognitive psychotherapy, but, like the innate desire for retribution, not be subjectively rational because the kind of freedom needed to justify it is incompatible with indeterminism as well as determinism. Thus, for example, you are likely to retain to some extent your desire for retribution but disapprove of the desire because we can't have the kind of freedom needed for you to approve of it. Furthermore the same holds for desires based on indoctrination or conditioning. This is a version of emotivism, but it is very different from the original version since it requires your approval or disapproval to be S-rational. Nevertheless, though I disagree with Brandt in some respects I have gained a great deal from his work and agree with Peter Singer that he was America's foremost ethicist.
[5]For a defense of this view see (1978).