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Review Essays of Academic, Professional & Technical Books in the Humanities & Sciences


A Declaration of the Rights of Human Beings: On the Sovereignty of Life as Surpassing the Rights of Man by Raoul Vaneigem, translated by Liz Heron (Pluto Press) Pocket-size English translation of the original work in French, 2001, by one of the founding members of the Situationist movement, this text shows how progress towards true human rights is undermined by globalization. It sets out to create a new declaration of human rights, by updating earlier declarations; from the French Revolution to the UN declaration of 1948. This new manifesto of Human Rights critiques previous versions as holding implicit utilitarian commoditization of human beings because of an unexamined reification of property. Vaneigem creates in this short work a radical vision of the human spirit as fundamentally free and embedded within a social system that is not an inherent shadow of the late Capitalistic market system values and assumptions. This work offers a new anthropology, a implicit humane ethics that calls for a radical revision of laws that govern our social and economic institutions. Its terse formulations should inspire some fundamental re-envisioning of Human Rights especially as deformed by assumptions of property. Though the manifesto is profoundly life affirming, it seems to lack of an overt concern for a deeper ecology as a constraint upon simple human freedom. Read in the light of ethics it provides a clear idea of human rights undeformed by utilitarian trade-offs. Recommended.

Rights and Reason: An Introduction to the Philosophy of Rights by Jonathan Gorman (McGill-Queen’s) In Rights and Reason Jonathan Gorman sets discussion of the "rights debate" within a wide-ranging philosophical and historical framework. Drawing on positions in epistemology, metaphysics, and the theory of human nature as well as on the ideas of canonical thinkers Gorman provides an introduction to the philosophy of rights that is firmly grounded in the history of philosophy as well as the concerns of contemporary political and legal philosophy.

Gorman begins by asking whether rights can express independent authoritative standards and shows, by contrasting the ideas of Plato, Hobbes, and Locke and their appeal to reason with the empiricism of Hume, that the issue is inseparable from the longstanding and wider philosophical conflict between empiricism and rationalism. Kant's attempt to resolve this conflict is explored and how his ideas came to change our understanding of morality, and of rights in particular, is investigated. The language of rights and duties is analysed by examining the ideas of the American jurist W. N. Hohfeld. In the second half of the book Gorman investigates some substantive criteria for the application of concepts of rights. These include the beneficiary view of a right, group rights, non-human rights, the nature of the individuals who are the bearers of rights, the "interest" theory of rights, and the "will" theory of rights. Finally, the author examines the view that rights and duties are mutually supporting features of a just situation and discusses the influential ideas of John Rawls. Gorman concludes that we need to recognise and tolerate different points of view if we are to encompass all our moral understanding and, in a pluralist context of inconsistent rights, require pragmatic procedures rather than universal principles of justice to resolve conflicting claims.

In bringing a much-needed historical and philosophical perspective to the discussion of rights, Rights and Reason is able to give readers a clear sense that, just as there are arguments about the content of rights, and myriad claims to rights, there are pluralities of theories of rights that offer some understanding of the moral and legal realm and of the place rights may hold within it.  

Excerpt from introduction: This book is an introduction to rights, in the traditional sense in which philosophy is "introductory" to other subjects, which it intro­duces by presenting their foundations. Philosophy has four inter-related core disciplines: ethics, logic, metaphysics and epistemology. Our interest in rights clearly falls within ethics, and the particular issues that will arise here relate closely to the other three philosophi­cal disciplines. Logic names both the nature and the study of reasoning. Reason and its relation to moral thought has been a central issue in philosophy since ancient times, and its place in the under-standing of rights will be central for us also. Metaphysics covers a range of issues, from questioning the existence of God to the nature of free will, but at its heart lie problems about the nature of reality and how external or independent, relative to human beings, "reality" is. This will be a central concern as well, and the theory of human nature is an intrinsic part of this. Epistemology is concerned with the theory of knowledge: about what knowledge (including moral knowledge) is`and how claims to knowledge may be justified. Epistemology and metaphysics are linked through the simple thought that one cannot know what is not true, and what is true must in some way be real. Reason is linked to epistemology through the idea that one cannot know what cannot be justified, and reason (perhaps mathematical, perhaps experimental) provides the justification. Reason is linked to metaphysics not only by way of its connection with epistemology but also by a particular understanding of what human beings are: that is, as essentially rational. We will see that this view of human nature is a crucial element in our understanding of rights. Reason is an essential feature of all philosophical disciplines since it characterizes the philosophical method of understanding in all areas. It requires clarity and exactness of expression. All these matters have a bearing on our ethical concerns and so on our concern with rights…

Questioning the independent eternal existence of human rights is just one way of expressing the more general philosophical issue of whether any moral ideals or standards can have an independent eternal existence. As we shall see in Chapter 2, despite not using the concept of "rights", Plato, in his Republic, nevertheless locates this same central moral issue by asking the question "What is justice?". In Chapter 2 we will seek an understanding of two particular matters: the way in which we might understand a moral ideal to be fundamental and independent of human beings; and the way in which apparently separate issues of reason, reality, knowledge and morality articulate with each other.

We shall see that Plato understands human nature to have a threefold structure based on motivation: we can be motivated by reason, by respect for force or by desire, and different classes of people are motivated in these different ways. These three grounds of motivation are not merely that but are linked in an essential way to what it is to be of good or bad character. To be of good character is to have self-mastery by the rational part of the self. A just state is, in a related way, one that is ruled by those of such good character. Essential to Plato's position here is the claim that justice or goodness is something that is grasped through a rational intellectual understanding.

"Justice", on Plato's theory, is the "master moral concept". It expresses the sole unified standard of goodness. Other words of ethical evaluation differ only in superficial features; each expresses, as it were, a view of the same central idea: on the one hand, that moral perfection which is exemplified in the integrity of the good human character; and on the other hand, that same moral perfection which is exemplified in all the features that form a just and unified state. We may then understand rights to be authoritative just in so far as they are a way of expressing that central moral perfection.

On Plato's approach the authority of rights, indistinguishable from the authority of any other moral perfection, consists in their truth. He sets for us the central claim, which will guide us through to Chapter 5, that moral truth is to be understood in terms of an independent, unchanging and consistent reality known about in a special way. This truth is then interpreted "realistically", a philosophical term that in this context means that truth is seen as involving correspondence to a really existing abstract reality. This truth is grasped by the exercise of reason, and can be grasped in no other way. Plato conceives knowl­edge as directly motivating for those who have it. Morality is thus authoritative and effective. As to what our particular rights, if any, actually are, Plato gives us no answer.

We shall see that a distinctive feature of Plato's approach was his dialectical method, whereby the truth emerged into the public space of a conversation by questioning and criticism. Essential to the effectiveness of this is the view that the people involved share the same standards of reasoning. Reason, for Plato, provides knowledge of the ethical or just, and the ethical is conceived as a single unchanging consistent reality that is independently authoritative for all of us who have the rational capability to know it. Morality, for Plato, is something independent, eternal and consistent, and known through the exercise of reason. Following Plato, we may understand human rights in much the same way. Plato gives us reason to believe his approach to ethics by providing an understanding of reasoning involving a theory of knowledge and also a metaphysics that includes a theory of human nature. Plato will thus locate for us the ways in which the core disciplines of philosophy relate to each other, an overview necessary for a proper understanding of the philosophy of rights. Plato will show us that there are three elements of the "reality" of the central ethical standard – and so of human rights similarly conceived – that concern us, and these will set us the book's structure: that human rights are independent, that they are eternal, and that they are consistent.

In Chapter 3 we will turn to the seventeenth-century thinker Hobbes, who, unlike Plato, makes explicit reference to rights in his political theory. Our earlier mention of Hobbes shows how different from Plato's position his must be, for Hobbes does not allow morality to have some independent eternal existence but rather makes morality the child of law, and law is for him a consequence of human choice. Where Plato saw human nature as having a threefold structure, with different classes of people a consequence of this, Hobbes saw every-one as equal in their fundamental characteristics. For Hobbes, all reality is material and experienceable rather than, as for Plato, abstract and intellectually apprehended. Thus we will see that Hobbes has adifferent metaphysics, a different epistemology and a different theory of human nature from Plato. Even reason, for him, is weak, being sub­ordinated to the effective achievement of our desires. Nevertheless, our examination of Hobbes will show that foundational to Hobbes's theory is – as it was for Plato – an understanding of reason as setting all of humanity a common standard. Despite a very different super-structure of moral and legal understanding, Plato and Hobbes share a clear respect for the fundamental authority of reason. Both see reason as an independent and eternal standard. On the basis of such reason, Hobbes understands rights in what are effectively two different senses. First, rights may be unprotected freedoms that exist naturally. (Rights as unprotected freedoms, however, are not what we normally mean by rights, as we will see in our later study of Hohfeld.) Secondly, rights have no natural existence, but are rather a creature of rational human choice: rights are made by laws, and laws are made by those (the individual or consistent collective will) whom we choose to make them – what Hobbes calls the sovereign. Human rights as understood in the way permitted by Plato are not possible for Hobbes, yet for both Plato and Hobbes reason has independent authority as the ultimate justification in our thinking about rights…

It has long been a tradition in philosophy that reason should be in some way essential to moral understanding. It was exactly this under-standing of reason that, 40 years after Hobbes, Locke used to express, with an explicitness familiar to us today, the idea of natural rights. Locke claimed for us all, in particular, the rights to life, health, liberty and property. In Chapter 4 we will find that Locke, like Plato and Hobbes, sees reason as an independent and eternal standard. For Locke, this independence and eternity are warranted by the God-given nature of reason. Hobbes thinks that the requirements of reason are something about which people may disagree, while Locke thinks its requirements are plain to all. We will thus see in Locke a presenta­tion of natural rights as being eternal, consistent and independent of human choice. By this stage of the book, we will have come to see clearly the arguments for the alternative positions here: using in part the rationalism of Plato we can understand Locke's position as expressing objectively existing human rights; following Hobbes, by contrast, we may understand rights as created by people. Yet we will have seen that Hobbes relies on independent reason to warrant the legitimacy of the laws that create those rights. Plato, Hobbes and Locke all share the foundational view that the ultimate constraints on us are, again, independent, eternal and consistent.

By the end of Chapter 4 it will have become appropriate to question whether there is some independent eternal and consistent reality that underlies moral and legal understanding. We will deal with the three elements in order, examining "independence" in Chapter 5, "eternity" in Chapter 9 and "consistency" in Chapter 10. Our presentation of Locke's position in Chapter 4 will be followed in Chapter 5 by an examination of the eighteenth-century philosopher Hume's position. Hume cast doubt on the external authority of reason, and stressed

experience as foundational to all knowledge and ethics. We cannot, he says, be motivated by external standards of reason, and reason cannot give us the content of any standards independent of personal desires or experience. Since reason cannot express any externally authoritative eternal standard, then natural rights as permitted by Plato and as understood by Locke cannot exist for us. The idea must be "nonsense on stilts", as Bentham later expressed it. Moreover, reason cannot supply an external standard to warrant the legitimacy of Hobbes's sovereign, either. We will see, from the contrast between the empiri­cism of Hume and the rationalism of Plato, that the issue of whether rights can express independent authoritative standards is an issue within the long-standing conflict between empiricism and rationalism.

Who is right, Plato or Hume? The conflict between rationalism and empiricism was one that, towards the end of the eighteenth century, Immanuel Kant tried to resolve, and in Chapter 6 we will present the major contribution that he made to our understanding of morality and of rights in particular. In an important way Hume was right: reason is not independent of human beings. Kant explains that reason is authoritative for us and can motivate us because it structures us as human beings and is also an essential part of our own structuring of the experienced world. Yet reason, and the morality that it underpins, while losing its metaphysical independence, does not lose its eternal character. There is a fundamental and eternal consistency both of human nature and of experienced reality. It is that consistency of reality that makes modern science possible. The world, as Hume noted, is a regular place. The success of science both supports and is warranted by Kant's rational foundation of human understanding. The character of human understanding is an essential feature of what it is to be human, and reason is thus able to express our human nature and thereby what is valuable about us as human beings. We may then understand human rights as expressing and protecting our eternal dignity and autonomy as rational human beings. Human rights, on this approach, are not independent but they are universal.

Kant's philosophy was importantly based on his analysis of human language, because the way we use language expresses the structures of our minds and so of our understanding. The rationality of the world and of morality is reflected in this. In Chapter 7 we shall see that the analysis of language has come to be central to modern philosophy. Once we have left behind the idea of rights or other moral ideals as existing independently of human beings then, following Kant, we may understand their dependent existence and content as crucially bound up with the rationality that is essential both to human nature and to the scientific world. Central to grasping the place of rights in our understanding will be an analysis of the language we use to talk about them, and this approach will also be explained in Chapter 7.

At the beginning of the twentieth century, Hohfeld made a major contribution to the "scientific" analysis of the ambiguous language of rights and duties, and in terms of this we shall be able to locate universal human rights and also those other moral and legal rights that feature in specific cultures and jurisdictions. Hohfeld offered his system as a way of making sense of the full range of practical legal concerns and as a way of solving legal problems. As we present Hohfeld's exact analytical jurisprudence in Chapter 7, and analyse the nature of his analysis in Chapter 8, we shall see that he partly sought to describe existing linguistic practice and partly sought to prescribe a corrected use of the language of rights according to eternal standards of reason. Reason was, for Hohfeld as for so many before him, an important value that should be fostered, and his analysis presupposed a Kantian respect for eternal standards of consistency.

Moral reality was originally presented by Plato as independent, eternal and consistent, and this permitted human rights to be under-stood in the same way. We have seen the essential role of independent and eternal standards of reason in this. By Chapter 6 we will, with Kant, have removed the early commitment to the independence of these standards and replaced it with the idea of universality. There yet remain two further difficulties: the commitment to the unchanging nature of these standards, whatever their status; and the commitment to consistency. Chapters 7 and 8 will show both of these traditional features of reason to have been accepted by Hohfeld. Moreover, that, ultimately, rights are essentially consistent with each other is a wide-spread modern conviction. We shall, however, see weaknesses in using reason in this way to ground an understanding of rights. The limitations and political implications of an appeal to reason are matters to which, in the

twentieth century, a number of postmodern writers drew attention, but the difficulties here were introduced by Kant, introduced, indeed, in a way inconsistent with the core of his philosophical approach. A traditional understanding of rights as eternal and as essentially consistent with each other is undermined by these difficulties. In Chapter 9 we present Kant's view that human nature and its supposedly fixed rational structures change over time and so make plausible the denial of the traditional requirement of the unchanging nature of moral standards. The attempts to ground human rights in unchanging human nature fail just because, and in so far as, there is no such thing as unchanging human nature.

In Chapter 10 we will note the further Kantian implication that reason changes over time and so permits the inconsistency of absolute moral standards like human rights. We will illustrate the idea of such a plurality of inconsistent standards by referring to Isaiah Berlin and to Ronald Dworkin, and restate their somewhat metaphorically expressed positions by arguing for the intelligibility of the idea that our moral reality, and with it our understanding of rights, may indeed be inherently inconsistent. We nevertheless respect consistency throughout: we will argue that a pluralist reality cannot be completely and consistently described within a single point of view, but that it can be if a multiplicity of points of view are adopted and tolerated. We will need to recognize different points of view if we are to encompass all our moral understanding. We will conclude the relevant parts of the arguments of the preceding chapters by observing that human rights have no independent metaphysical existence, are not plausibly universal, may with reason change over time and may be intelligibly inconsistent with each other.

In Chapter 11 we will argue that problems of the clarification of rights remain, and we will show that Hohfeld's position requires an understanding of the concepts of right and duty which is prior to his analysis. Distinguishing the meanings of moral terms from the criteria for their application, and avoiding unwanted metaphysical commit­ments, we shall see that three points of view for a full understanding of rights are required: that understanding rights is prior to under-standing duties; that understanding duties is prior to understanding rights; and that understanding rights and understanding duties are mutually supporting.

There has been historical change over long periods of time in our beliefs about what our rights and duties are. In Chapter 12 we will present John Finnis's explanation of a change of priority ofunderstanding from a justice-based to a rights-based approach. We will use this account to analyse the rights-based approach, in which the point of view of the beneficiary of a just situation is primary. We will look at the nature of the "individuals" who might be bearers of rights understood in this way, and examine whether groups and non-humans might have human rights. We will examine one feminist idea that rights are essentially held by individuals who are selfish and incapable of full association with others so that reference to "rights" is essentially reference to a male-based morality. We will distinguish the "interest" from the "will" theory of rights and show that the point of view of the beneficiary does not imply the will theory.

To continue towards the fuller understanding sought, in Chapter 13 we will examine duty-based and justice-based conceptions of rights. We will try to make sense of Kant's moral philosophy as a duty-based conception of rights, and will show that only part of his philosophy permits this. In so far as we follow Kant in valuing the freedom and autonomy of another person, then we shall find that his moral philosophy places rights as prior to duties, rather than duties as prior to rights. We will suggest that only if we understand morality and law entirely in terms of what can be enforced might we be able to make sense of duty as the prior concept in our understanding. We will conclude Chapter 13 by examining the view that rights and duties are in some way mutually supporting features of a just situation. This priority of justice will be explained in terms of John Rawls's A Theory of Justice.

The concluding chapter, Chapter 14, will begin with a summary of the argument so far. We will then note that, just as there are arguments about the content of rights, and just as there are myriad claims to rights, so there are pluralities of theories that offer some under-standing of the moral and legal realm and of the places that rights may hold in it. Philosophical theories themselves conflict just as rights can do, and we will present an understanding of such conflicts by using the concept of toleration.

The proliferation of opposing rights and their theories means that rights, and particularly human rights, cannot themselves be the ultimate ground for determining the ordering of conflicting moral demands. Moreover, we are no longer in a position to insist on con­sistency. At this point we will examine the approach of Steiner, who suggests that rights supply adversaries with reasons to back off from interference when they have no other reason to allow the perform­ance of the actions they wish to interfere with. He insists in his own answer on the compossibility of rights, which again begs the question justice" is then required to determine by localized pragmatic in favour of consistency, but he usefully characterizes an adversarial procedures, which maximize freedom, which rights claims take situation in terms of three moral points of view that map onto the priority in specific conflict situations. There is no other philosophy points of view we present in Chapter 10, where we recognize the need for prioritizing philosophies of rights.

to make intelligible a pluralist view of moral reality by referring to an observer who is external to the contestants.

Drawing on the argument of Chapter 10, in our concluding] chapter we will hold that such an external observer needs a criterion for moral truth, but that this criterion cannot have the content of any contestant-centred criteria for rights, for that begs the question he faces in deciding between them. We will argue by analogy with Steiner's argument, but ignoring his insistence on consistency, that, since contestant-centred criteria for rights cannot be eligible to serve as a standard of choice for the observer, it follows that any difference between contestant-centred criteria for rights cannot be regarded by the observer as relevant. For the observer, all contestant-centred criteria are then equivalent. Thus the content of a right and its justify­ing rights theory cannot be provided by the content of what the contestants disagree about, since the disagreement remains to be decided even when one contestant admits that the rights of his oppon­ent provide him with a reason to tolerate the position of that opponent. Disagreement is a presupposition of toleration. Where it is rights or their theories that are disagreed about, then the very fact of conflict means that neither contestant's moral code contains a reason to accept, as opposed to tolerate, the relevant part of the moral code of the other.

Where a right is claimed that, in the pluralist situation, requires toleration, then from the point of view of the observer it is only a formal demand for freedom without further moral content that can justify that right against another. As Steiner rightly asks, the observer should ask "Who should have the freedom here?" As Kant said, "right is ... the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom". Kant and Steiner, however, insist on universal consist­ency. A pluralist account of inconsistent rights and rights theories is possible by recognizing that the question "Who should have the freedom here?" is one for a specific context. We need not insist on the answer being generalizable. A narrowly understood "theory of justice" is then required to determine by localized pragmatic procedures, which maximize freedom, which rights claims take priority in specific conflict situations. There is no other philosophy for prioritizing philosophies of rights.

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