Monday, September 20, 2004

"O introducere la Drepturi"

Nu am timp deocamdata sa traduc recenzia de mai jos, dar o postez in speranta ca vreunul dintre voi va avea mai mult timp decit mine....

An Introduction to Rights, by William A. Edmundson.

LAW AND POLITICS BOOK REVIEW ISSN 1062-7421 Vol. 14 No. 9 (September 2004), pp.711-715(recenzie publicata de ...The Law and Politics Book Review, from the University of Maryland, College Park.)...

An Introduction to Rights, by William A. Edmundson. Cambridge: Cambridge University Press, 2004. 240pp. Cloth $55.00 / £40.00. ISBN 0-521-80398-5. Paper $22.00 / £15.99. ISBN 0-521-00870-0.

Reviewed by Kenneth Einar Himma, Department of Philosophy, Seattle Pacific University, Seattle, WA.

AN INTRODUCTION TO RIGHTS is an outstanding comprehensive introduction to the subject of rights. The volume provides an accessible but sophisticated discussion on a variety of topics related to the theory of rights. The topics of the book include the empirical (an analysis of the history of the concept and associated practices), the metaphysical (an analysis of the concept of a right and how it is different from other normative concepts that figure into moral and legal analysis), and the normative (a discussion of the various moral and legal norms giving rise to rights). The volume discusses the logic of rights and explores the prerequisites for having rights (e.g., can non-human sentient animals have rights?), as well as the relationship between rights and other morally significant concepts like well-being and community.

Chapter 1 is largely concerned with the "prehistory" of rights - that is, the history leading up to the development of the concept of a right and its incorporation into widespread moral and legal practices. As Edmundson points out, the concept of a right is, as an historical matter, a fairly novel concept; the idea that a human being might have rights in virtue of having a special moral status as person would have struck many conscientious people in cultures ranging from ancient Greek to medieval cultures as implausible. Though the more basic notion of a duty has either explicitly or implicitly grounded moral and legal discourse for most of human history, the idea that certain duties give rise to entitlements was first developed during the Enlightenment and gained ascendancy during what Edmundson calls two "expansionary periods of rights rhetoric"-the first occurred during the period between the U.S. Declaration of Independence (1776) and the French reign of terror (1794);!
and the second began with the Universal Declaration of Human Rights (1948) and extends to this day.

Chapter 2 explicates the views on rights held by the most important philosophers of the first expansionary period, the Enlightenment. Hugo Grotius grounded his entire theory of justice on the idea that persons have certain rights that are "natural" in the sense of being grounded in natural law. While one might expect that Grotius would understand these rights as setting limits on legitimate lawmaking authority, Edmundson observes that he took the position instead that persons are entitled to alienate to government as much of their natural rights as they see fit. Thomas Hobbes believed there are no other natural rights than the "the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own nature" (p.23). John Locke rejected Hobbes's view that there are no moral constraints [*712] in the state of nature, arguing that human beings are obligated to respect life, liberty, and property even in the state of nature. While Locke believed !
that consent to state authority is needed to ensure that these obligations are satisfied, the state is nevertheless obligated to respect the natural rights of life, liberty, and property.

Chapter 3 explores early criticisms of the view that there are natural rights. Edmund Burke, for example, argued that the only limits there can be on lawmaking authority are those defined in the conventions that bring law into existence; justice, in his view, is entirely conventional. William Godwin held a strong form of act utilitarianism that committed him to arguing that "We have in reality nothing that is strictly speaking our own" (p.47) - including rights. The most influential early criticisms, however, originated with Jeremy Bentham who derided the idea of natural rights as "nonsense upon stilts." According to Bentham, there is no moral protection that would prohibit any act that maximally promotes human happiness. While the law might afford legal rights, the justification for doing so must be that protecting those rights maximally promotes human happiness; when a legal right ceases to promote human happiness, it loses its moral rationale and should be abolished.

Chapter 4 explores the evolving importance of rights talk and theory in the 19th Century. The 19th century saw an interesting version of utilitarianism emerge in response to the challenges to act utilitarianism: John Austin and J.S. Mill both argued for a form of utilitarianism that advocated that persons should follow those rules that, if adopted, would maximize utility. Instead of evaluating acts according to whether they maximized utility, these "rule utilitarians" evaluated acts according to whether they conformed to rules that would maximize utility if generally adopted. This feature of the theory allowed rule utilitarians to take consistently the position that people had some moral rights; moral rights were those that were defined by the moral rules that protected certain interests and allowed persons to seek recompense for violation of those rules. Mill, of course, went further in ON LIBERTY to argue for a sphere of morally protected autonomy that is illegitimatel!
y restricted by the state. These important developments formed the background against which the U.S. Constitution and Bill of Rights were ratified.

Chapter 5 provides a very helpful discussion of Wesley Newcombe Hohfeld's famous analysis of the concept of a right as it is used in legal discourse. As Edmundson explains, Hohfeld believed that the term "right" was being used in legal discourse to refer to a number of distinct but related concepts: claim-rights, privileges, powers, and immunities. Hohfeld clarified the notion of right by defining these terms and showing how they relate to each other. For example, in Hohfeld's view, X has a claim-right against Y to perform some act j only if Y owes a duty to X not to interfere with X's performance of j; X has a privilege against Y with respect to j-ing only if Y has no claim-right against X that X not j. Though Hohfeld's analysis was concerned with the language of rights as it functioned in legal discourse, Edmundson explores the applicability of the Hohfeldian analysis to the use of [*713] "right" in moral discourse - especially its applicability to rights held by group!

Chapter 6 starts an account of the second expansionary period of rights. The adoption of the Universal Declaration of Human Rights coincided with the rise of rights within moral philosophy. The new prominence of rights discourse in philosophy was largely fueled by a growing dissatisfaction with the way in which utilitarian moral theories treated individuals. As Edmundson explains, theorists complained that utilitarianism did not see individuals as anything more than receptacles of utility and thereby subordinated the value of individuals to the general utility. Many theorists began to argue for a contractualist foundation for moral rules, explaining the authority of such rules in choices that rational self-interested individuals would make under appropriate starting conditions. The most famous of these theories, of course, is Rawls' theory, which requires that such choices be made from an original position in which individuals have limited information about their abilit!
ies and circumstances. The hope was that a contractualist foundation could do what utilitarianism could not - namely provide a firm foundation for individual rights such as were articulated in the Universal Declaration.

Chapter 7 explains two theories about the nature of legal rights, interest theory and choice theory. According to interest theory, the justifying point or function of a right is to protect the interests of the being who holds it. While interest theory is agnostic with respect to which interests are protected by rights, it presupposes that only beings with interests can have rights. According to choice theory, the justifying point or function of a right is to foster autonomous choice by providing the right-holder with a power to enforce or waive enforcement of a duty; thus, choice theory presupposes that only beings with the capacity to choose autonomously can have rights. While choice theory seems to better cohere with the judicial practice of recognizing as rights only duties that can be enforced by the beneficiary, Edmundson points out that choice theory has some problematic consequences: it rules out, in advance of any substantive argument, the idea that animals or in!
fants might have rights.

Chapter 8 sorts out two conceptions of moral rights - the protected-permissions conception and the protected-choice conception - according to whether they cohere with the idea that we can sometimes have a moral right to do wrong. Most people believe that, while breaking a promise is morally wrong, it would be wrong in most ordinary circumstances to coercively prevent a person from breaking a promise, suggesting a right to do wrong. The protected-permissions conception holds that a moral right to j includes a moral permission to j or not-j as well as a claim-right to be free of coercive [*714] interference in exercising this option; on this conception, there cannot be a moral right to do wrong because the right to j implies that j is morally permissible. The protected-choice conception of moral rights holds that moral rights are pure claim-rights; while they may sometimes come with permissions, they need not come with permissions. On this conception, there can be a right !
to do wrong, which simply amounts to a claim to be free from coercive interference in performing some morally wrongful act (like breaking a promise).

In Chapter 9, Edmundson considers the question of whether rights are absolute trumps over all other considerations. While the "rights trump consequences" view is favored by many legal, political, and moral philosophers, Edmundson points out that it "invites the objection that it would unrealistically forbid imposing sacrifices to avoid massive catastrophe" (p.145). It seems clear, for example, that it would be permissible to sacrifice one innocent life if necessary to save a billion. Although one could attempt to redescribe the scope of the right to life to prohibit being killed except in such circumstances, such a move would be difficult to reconcile with the idea that it is regrettable to sacrifice the vital interests of one innocent person even when needed to prevent catastrophe: if the former's rights have not even been infringed (much less violated), it is not clear why such situations should be regarded as regrettable. Edmundson argues that it is more plausible to !
think of rights as "defeasible" in the sense of being overrideable in extraordinary circumstances.

In Chapter 10, Edmundson explores the notion of interference as it functions in rights discourse. Rights typically imply duties of non-interference (i.e., duties to refrain from certain acts, even when they also involve affirmative duties to act), but it is not always clear exactly what acts would constitute "interference" in violation of such duties. Edmundson points out that duties of non-interference do not preclude imposing some social costs on the exercise of a right. If people have, say, a moral right to perform some wrongful act, then it would be wrong for the state to criminalize that act but not for individuals to impose informal social sanctions like group censure. To say that an act is wrongful is to say it may justly be censured. Edmundson argues that the relevant duty of non-interference is determined by reference to proportionality and standing norms. What costs are permissibly imposed on the exercise of a right will be determined by how wrongful it would!
be to exercise the right; the more wrongful, the greater the social costs that may permissibly be imposed.

Chapter 11 explores the future of rights, particularly as it is determined by views about human rights. In this chapter, Edmundson discusses the relative primacy of first-generation liberty and political rights to second-generation economic rights. Proponents of the latter rights sometimes claim that (1) every human being has a right to a minimally decent standard of living, and (2) the right to a minimally decent standard of living takes precedence over liberty and political rights since such a standard is a necessary precondition to the meaningful exercise of liberty and political rights. Critics of these claims sometimes argue that, as a matter of empirical fact, societies that suppress the exercise of liberty and political rights are far less likely to ensure a minimally decent standard of living for their citizens. As Edmundson points out, such disputes might involve conceptual disputes, but they are primarily substantive in character and, as such, must be resolved !
by recourse to substantive moral norms.

AN INTRODUCTION TO RIGHTS is an outstanding text. As should be evident [*715] from even this sketch of the work, Edmundson is in full command of the topic. His expertise on the various areas of research on rights is evident not only from the depth and breadth of the topics covered in the book, but also from the consistent clarity of his writing. Even the most difficult details of a theory are clearly explained and illustrated. Edmundson is a leading philosopher of law and has much that is both new and important to say about the history and theory of rights.

In consequence, the book can fruitfully be used in a variety of courses. Its breadth and accessibility make it appropriate for introductory courses in political and legal theory offered in political science, public policy, government, and philosophy departments. Its depth and rigor makes it suitable for not only upper-division courses in these departments, but also graduate-level courses - including courses in legal theory offered in law schools. Indeed, I do not think it a stretch to recommend this work to theorists specializing in the area. It is an excellent work.

Hohfeld, Wesley Newcomb. 1919. FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING. New Haven: Yale University Press.

Mill, John Stuart. 1869. ON LIBERTY. London: Longman, Roberts & Green.

Rawls, John. 1971. A THEORY OF JUSTICE. Cambridge, MA: Harvard University Press.
Copyright 2004 by the author, Kenneth Einar Himma.


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