Theories of Rights

Introduction
Modern human rights discourse has done much to advance equality, expand liberty
and curb the excesses of government. As such, rights discourse frames many
public debates. To raise just one example, far-right American conservatives insist
that the state must have the right to torture terror suspects when in pursuit of high
security objectives. Liberals object that torture violates victims’ rights to bodily
integrity and dignity together with the right to be presumed innocent until proven
guilty. What are the limits of rights and when can we abridge them? The answers
lie in an analysis of differing theories of rights. We shall focus on two theories
likely to be familiar to most law students – Kantianism (deontology) and
Utilitarianism.
Before discussing those theories, however, it is first useful to define what a “right”
is. Isaiah Berlin defines rights in terms of positive liberties and negative freedoms.
A positive right is an entitlement to. A right to free expression, for instance,
entitles one to voice opinions publicly. A negative right is a freedom from.
Freedom of person is a right to be free of bodily interference. Most rights are both
positive and negative. An entitlement to engage in particular conduct usually
implies a reciprocal freedom from interference when doing so.

Utilitarianism
For the utilitarian, the just action is that which, relative to all other possible actions,
maximises utility or “the good” (defining “the good” is the subject of philosophical
conjecture and beyond our scope here). This is the utility principle. Utilitarianism
is exclusively consequentialist; the justice or injustice of an action or state of
affairs is determined exclusively by the consequences it brings about. If an action
maximises utility, it is just. On this account, therefore, rights are purely
instrumental. It is also worth noting that many in the utilitarian tradition have
expressed hostility to the notion of rights of any sort. Jeremy Bentham (the founder
of modern utilitarianism) once referred to them as “nonsense on stilts”.
Nonetheless, modern rule utilitarians will generally accept the right to bodily
autonomy, for instance, not for any reason intrinsic to human beings, but rather
because, in acknowledging that right, individuals can be assured of the personal
safety necessary for pursuing a good life. This is an optimal consequence and
therefore desirable.
The utilitarian will honour a right if and only if it will lead to the maximisation of
utility. This statement also indicates the limits of all rights. If the exercise of a
particular will not maximise utility, the utilitarian is obligated to violate that
person’s rights for the sake of utility. The point at which the letter of the right
defeats the purpose (i.e. the point at which the exercise of a particular right will not
maximise utility) is the point at which society may justly curtail that right.
Prima facie, this approach is very commonsensical. It seems intuitive enough that
most things, let alone rights, are only worthwhile if they do some good. For
instance, no reasonable person would argue that the right to free expression
extends to the production, distribution or consumption of child pornography. The
harm done to children in its production, together with the social harms brought
about through the sexualisation of children, far outweigh the perverse pleasure that
paedophiles experience in viewing it. Given that it does not maximise utility, the
right to free expression cannot support child pornography. The law should reflect
that conclusion.
Rights are limited by the utility principle. If the exercise of a right maximises the
good, the right ought to hold. If it fails to do so, the right may be justly abridged.
Opponents of the utilitarian account of rights argue that in some cases it extends
rights too far and in other cases it restricts rights unjustly. To return to the child
pornography example, it is perfectly possible that a perverse adult with the intent
to make child pornography could guarantee that only one child would be harmed in
a particular production. Furthermore, he could plausibly guarantee an extremely
wide circulation. A great number of adults will experience pleasure. Only one child
experiences pain. The utilitarian calculus may well reflect the adults’ pleasure
outweighing the child’s pain. In such a circumstance, the utilitarian must limit the
child’s right to bodily integrity and favour the adults’ right to free expression. This
is obviously intolerable. There is no circumstance in which we ought to tolerate
such exploitation. As Kymlicka observes, an independent theory of fairness is
needed to determine the limits of what can be demanded of others for our own
benefit.

Kantianism (Deontology)
Kantianism, by contrast, is an explicitly non-consequentialist ethic. Kant believed
that the consequences of our actions are often determined by contextual factors
beyond the control of the individual. Honour and blame are only coherent notions
where the subject is responsible for what they have done. In all appeals to
consequences, the locus of responsibility must necessarily be displaced to a broad
array of factors, only one part of which is the agency of the individual in question.
Moral responsibility for consequence, therefore, is incoherent. Morality must be a
matter of intentions, these being the only things we can evaluate without extrinsic
influence. The right action therefore is that which is done in conformity with our
moral duty, regardless of consequence.
But what are those duties? In the Groundwork for the Metaphysics of Morals, Kant
argued that one ought to “act only according to that maxim whereby [one] can, at
the same time, will that it should become a universal law.” In other words – our
own conduct is only ever just if we can in all conscience will that every other
person acted the same way. In the same work, he also declared that one should “…
treat humanity… never merely as a means to an end, but always at the same time
as an end.” Similarly, our conduct is only just if, in acting, we do not use any other
person as a tool to achieve our own objectives. Speaking generally, our moral duty
is to only act where our actions satisfy the two tests outlined – universalisability
and the ends/means requirement. Kantians, for instance, believe that you have an
absolute duty to tell the truth. Lying fails the universalisability test because if
everyone lied the notion of truth (something we value very highly) would become
worthless. Similarly it fails the ends/means test because when we lie we are
attempting to deceive another person for our own ends; that’s treating them as a
means rather than an end in themselves as so cannot be just.
The human rights implications follow fairly intuitively. Human rights are
principles of justice that seek to guarantee that individuals are treated always as
ends in themselves, and ought to apply universally, regardless of the consequences.
To return to the child pornography example, the child’s right to bodily autonomy
(and the reciprocal duty of everyone else to respect that right) establish the
wrongness of the action in question. Violating the child’s right to autonomy has
resulted in treating that child as a means to others’ pleasure and could hardly be
considered a universalisable action. The action is wrong, therefore, based upon the
intrinsic rights of the child, not based upon a consequentialist calculus.
Rights therefore can only be limited where the exercise of the right in question is
one that is non-universalisable or where it would lead to treating another as a
means, not as an end in themselves.
Utilitarians respond that whilst their moral theory might require exploitation, it is
at least superior to a total disregard for consequences. Kant himself raises the
following example. Suppose that a friend knocks on your door late at night and
begs you to hide them because a murderer is after them. You admit them. The
murderer then knocks on your door and asks you if your friend is at your house.
You are obliged to answer truthfully, even if doing so will result in your friend’s
death. Lying to the murderer would violate the duty outlined above to always tell
the truth. This, again, seems absurd. The murderer must surely forfeit their right to
be treated as an end in themselves when their objectives will lead to such a horribly
immoral consequence. Our actions do not only affect ourselves; they also have
consequences for others. Those consequences are of moral significance and
deserve to be considered as a part of the moral calculus.

Applications
Which theory of rights one accepts will determine one’s view of rights-based
issues. Consider the issue of torture. Imagine that a terrorist has planted a bomb in
a full stadium. Security services have captured the terrorist. The terrorist has
refused to reveal the location of the bomb. Police have searched in vain.
Psychiatric assessments reveal (with absolute accuracy) that if the terrorist is
tortured he will divulge the information. Plainly, the terrorist’s rights to autonomy
and bodily integrity are at stake. Both the Kantian and the utilitarian have obvious
answers. The utilitarian would sacrifice the terrorist’s rights to save the lives of
thousands. The pain the terrorist will experience will be far outweighed by the
good of preventing the deaths of thousands. The Kantian, with an explicit disregard
for consequences, must refuse to torture the terrorist. Violating the terrorist’s rights
makes him a means to our ends (regardless of how altruistic our ends might be).
Further, it is clearly undesirable to allow violations of integrity or autonomy
universally. Analogous issues are manifold. Banning a particular religious sect
known for occasionally singing very loudly late a night and keeping entire suburbs
awake might increase everyone’s happiness overall, but would obviously treat
those individuals as a means to our own end of peace of mind. Ought we violate
the right to religious freedom? Confiscating all the property of an extremely
wealthy person and redistributing it to the poor would certainly promote social
utility but treat the wealth man as a means to our end of creating a more equal
society. Ought we violate the rich’s property rights?

Conclusion
The answers to rights-based moral questions depend almost exclusively upon
which account of rights one accepts. Engaging with the theory behind human rights
is therefore critical to developing coherent policy positions.

Lachlan Umbers
This article was first published in The Brief magazine in 2011. The Brief is
published by the Macquarie University Law Society
References
Will Kymlicka, Contemporary Political Philosophy: An Introduction, (2nd Edition,
2002, Oxford University Press).