The language of rights has become the dominant way of communicating moral claims. The French Declaration of the Rights of Man and Citizen (1798) concentrated on 17 freedoms in corresponding articles, the Universal Declaration of Human Rights (1948) 30, and with each passing year new proclamations are advanced.
These seek to guarantee freedoms that go far beyond the freedom from physical harm or persecution and emphasise the freedom to do certain things, or to obtain certain benefits from the wider community.
Coupled with this expansion of rights has been the growth of sectoral rights – children’s rights, women’s rights, LGBT rights, indigenous people’s rights and so on.
While there may be strong reason for promoting each set of new rights, there is concern among political scientists and jurists that “rights inflation” could bring the entire human rights framework tumbling down. The way in which rights are used in common parlance has become detached from their theoretical foundation.
Duties
Dr Alexa Zellentin of the UCD School of Politics and International Relations says one should acknowledge "some rights are much more important than other rights". Moreover, there's a need "to bring duties back into the debate". This is partly for practical reasons – rights are meaningless unless someone is charged with delivering them – and partly to create a more balanced moral perspective. She emphasises that we don't just have entitlements; we are also "duty-bearers", with specific responsibilities to uphold other people's rights.
Zellentin, who will be speaking at the launch of the UCD Centre for Ethics in Public Life by President Michael D Higgins next week, believes the Oxford-based political scientist Henry Shue has come up with a good, working definition of a right, saying it involves a rationally justified demand that is "socially guaranteed against standard threats".
A key concept here is the social guarantee. Rights are delivered or protected, not by the state on its own but by society as a whole. Another key concept is “standard threats”. Because women, for example, face threats that men don’t there are specific women’s rights. So the argument runs.
This week's Unthinkable guest, Zellentin says Shue's thinking helps to overcome some theoretical problems with rights but "it is no fool-proof guarantee against the worry that the focus on rights might lead to a more ego-centric and entitlement-focused climate in society".
Whose duty is it to protect or deliver rights?
Alexa Zellentin: “Shue’s answer is that it has to be society as a whole. Politics plays a huge role but there are some contexts where the government can do very little…
“The relevant duties in the context of a right against rape, for example, can be differentiated out in a nuanced manner. It obviously includes the general negative duty of all to refrain from forcing themselves on others. It also quite straightforwardly includes the institution of legal provisions, law enforcement, judiciary, etc. However, Shue’s formula also allows us to consider, for example, the promotion of the idea that ‘good women say no even when they mean yes’ as a standard threat and thus impose a duty on all members of society generally – and in particular those considered role-models – to position themselves against such assumptions or other forms of rape culture.”
Where do the duties end in such a case?
“That is one of the hardest questions – where to draw the line? – because, on the one hand, there are some duties that should be enforceable. If you really want to guarantee the right to bodily integrity there has to be has to be some enforcement, and consequences for those who attack people…
“And there also has to be some guidelines and education on what’s alright and what’s not. So it wouldn’t be counterintuitive to think that a company that doesn’t have basic rules on sexual harassment has failed in its duties by its employees and should be fined. But if you go down that route you could come up with: what about the parents of rapists? Should they be charged with failing to educate their children to be minimally decent people? And that seems to be extremely problematic.”
There seems to be a connection between the claiming of rights and inequality in that we find it morally repugnant to limit a good - for example a type of medical care or standard of education - to the wealthy. Does the presence of inequality then produce a right?
“I don’t think inequality in itself produces a general right. But I do think that if we regard a certain interest - for example a certain type of health care - as of fundamental importance to all people then there should be a social responsibility to create structures to make it accessible to all people. But if it’s a luxury - not needed for a decent life - I don’t see how inequality should create a right.
“In some circumstances, inequality does have implications for the duties that a particular right entails. I like Shue’s approach with the standard threat [in understanding this]. For very poor people, one of the standard threats is getting decent nutrition that is cheap, fast and nutritionally valuable rather than junk food. That is not a standard threat for rich people or even middle-class people. So if you want to argue that we all have a right, not just to get baseline calories but, to a decent nutrition then you could say - as a society - we should make sure that everyone can access this.
“That might lead to particular provisions for those who are faced with the standard threat but don’t do anything for those not faced with the standard threat.”
Should there be a right to third-level education?
“In the context of the kind of societies we are living in today, there are really good reasons to argue there is a right to third-level education because in many European states it is a minimal condition for getting any kind of decent job.
“What this right particularly looks like and how the corresponding duties might be designed is a different issue. To argue everyone should have access to third-level education doesn’t necessarily mean it should be free for everyone. But it should definitely include provisions so that those who would otherwise not afford it get supports so they can afford it.”
And you’d argue that it’s not just the state which has a duty to deliver this right?
“Absolutely. I think teachers can do a lot to encourage or discourage people to apply for third-level education.
“I was 10, back in Bavaria, when the decision was made on whether I should go to grammar school leading to university or the other track which would lead to apprenticeships. At that point, my parents happened to be divorced, I happened to have a number of siblings, and my teacher told my mother: ‘Her grades are at the border but you will never be able to give her the support she needs to go to university’. So I was sent to secretarial school which was a complete disaster in the sense that I made a horrible secretary but it turns out I made a fairly good academic.
“It took longer because I had to finish secretarial school and had to go onto grammar school and they had a special class for people who came from outside grammar school, and most of us had a migrant background and the rest of us were not quite middle class. So it was clearly a class thing; it was clearly a race thing.”
In your work in the field of climate justice, you also draw on the thinking of John Rawls to make the case for cultural rights? How can these be justified?
“I think there are different routes to justifying what might be called cultural rights. The root I usually take is the Rawlsian route linking it to the social basis of self-respect and bringing [WILL] Kymlicka on board with the idea that there are preconditions for us to understand ourselves as a full member of society and some of these are linked up with our culture. But this limits the scope for cultural rights quite extensively because it’s only one of the social bases of self-respect…
“Then I think, in some contexts, the right to self-determination as a group could lead to cultural rights.”
But who exactly should be afforded cultural rights? What about a community of white supremacists?
“There are some preconditions that have to be fulfilled before we can say this is a candidate that could potentially lead to a right.
“If we take the idea that white supremacist groups have the right to meet, exchange views, or bring up children in their own views under the normal liberal understandings of rights they have all these rights.
“If they want to have exemptions that is where it gets interesting - where they say ‘We don’t want to be forced to have our children attend normal public schools where they are exposed to these crazy liberals telling them about equal human dignity’. Then one could argue: Is this kind of culture, this social basis of self-respect, the kind of good that should trump a child’s right for a broad education? And I very much doubt this could be reasonably argued.”
*****
Ask a sage:
Question: Why does the media matter?
Jeremy Bentham replies: "Publicity is the very soul of justice."
