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Can „rights“ be expressed in terms of „duties“?

und on 6. März 2014

Our blog authors Raffael Fasel and Adriano Mannino exchange their thoughts on the relation between rights and duties: Can „rights“ be expressed in terms of „duties“, i.e. are the former reducible to the latter?

Adriano: For every statement containing the term “right”, there seems to be a synonymous/equivalent statement only containing the word “duty”. If statements about “rights” are translatable into statements about “duty”, then the term “right(s)” is theoretically redundant. It can still be useful in practice, of course, but we would not need it when formulating our theory. As a matter of fact, I currently think we would probably gain clarity by leaving it out.

“X has a right” probably means something like “If moral agents A1 and/or A2 and/or A3 and/or … exist, then they have a duty towards X”. If all statements about rights can be translated into duty-talk, then we should probably avoid “right(s)” when formulating our theory, for using the term might mislead us into believing that we are talking about something more than duties (and their content) when talking about “rights”, which does not seem to be the case.

Raffael: Although I agree with you that “rights”, as we conceive of them, somehow relate to “duties”, I do not think that we can do without the term “right”. This is because I do not share your reductionist position according to which “rights” after all amount to nothing else than a set of duties.

Although being closely linked to the concept of “duties”, “rights” have their own legitimate use. “Rights”, as I conceive of them, are a conceptual device, a tool – if you like – that allows to protect particular interests of particular beings (namely those who can possess these particular interests).

Let us think about a right, say the right to a family life, as a special type of house, with our society being its landlord. This house, let us assume, has been erected for a certain purpose (although this purpose itself might be subject to change), for example to give shelter to individuals and their families. Yet, although there is this abstract purpose of the house, the precise content of the house, that is, to whom and under what conditions its walls will serve as a sanctuary, will depend on the evolving needs and the changing circumstances that will lead persons to seek shelter in this house. Only in case a certain person is allowed in, the purpose materializes itself, takes shape, and allows to determine which duties arise to whom in order to guarantee that the person is granted the needed shelter. While the idea of protecting the family life of persons first was an abstract aim of the house (or the right), its concrete implications become clear as soon as specific cases are admitted to fall under its scope of protection. When, for example, the landlord opens the door for a homosexual couple in order to enable them to marry – as it has recently been the case in some Western legal systems with their provisions on the right to family life – then the precise content (and the precise duties) of the house – or the right – take form: henceforth, also homosexual couples must be allowed to marry and be provided with certain help in this regard. By clarifying the content of the right to family life, it also becomes clearer who the duty bearers of this particular aspect of the right will be, albeit we may never have complete clarity on this issue, since rights are subject to constant (re)interpretation by courts and other judicial actors.

In any case, to argue that to a right, there is one or several equivalent or corresponding duties (and that therefore, the term “rights” is redundant) is falling short of what rights really are. The right not to be tortured, for example, is supposed to guarantee the protection of my foremost interest not to be subjected to severe suffering. This right has a claim of validity (Geltungsanspruch) regardless of whether it is already determined which duty bearer will have to comply with what duties in order for my interest to be sufficiently protected. There is therefore a meaningful sense in which ”a right to x” can be used when it is not clear as to which duties this right gives rise to. As a matter of fact, due to the dynamic nature of rights, these duties will never be entirely determinable.

Even if we assume – arguendo – that we might know which actual duties and which possible future duties will be designated for a certain right, then the “right to x” is still not reducible to these duties d1, d2, d3, … dn. This is because the “right to x” is a tool, as I have mentioned, which serves as a bulwark – or a ‘trump’ in Dworkinian language – against trade-offs that would violate the interests these rights ought to protect. By reducing talk about interest to duty talk, as you seem to suggest, we will be confronted with the problem that we might end up with contradictory duties, for example the (positive) duty to protect person A’s right to life and the (negative) duty not to torture person B (assuming that B possesses the necessary information to save A’s right to life). Utilitarianism of course has a straightforward answer to this conflict of duties: whichever solution yields the greater benefit for all should be adopted. This, however, is also the problematic aspect of pure utilitarianism. In my opinion, the core idea of rights precisely is to say “No!” to certain trade-offs which would impair the important interests they serve to protect. Thus, rights generally forbid trading off individual interests with the greater good.

Maybe you have a solution to the problem of conflicting duties. I, however, am afraid that a conflict of duties will lead to a weighting of the importance of duties that arises when duties collide. Such a conflict will inevitably lead to the adoption of the option which is best for the common good and therefore lead to a neglect or violation of certain individuals’ interests. Against this utilitarian logic, which does not take into account the separateness of persons, the deontological nature of rights defends certain interests just for the sake of it.

Adriano: I wonder whether what you’re pointing out, especially regarding the claim of validity of a right and that there is a meaningful sense in which “a right to x” can be used when the arising duties are not determined yet, is an argument against the claim that for every statement about rights there is a synonymous statement about duties. In order for this claim to hold, it does not have to be determined which duty bearer will have to comply with the duty in question. Could you give a specific example for “a right to x” where it is not clear which duties we are talking about? I cannot think of one. It seems to me that “A has a right to x” could be translated into “If moral agents (with such and such properties) exist, then they have a duty not to interfere with A doing x” and/or “If moral agents (with such and such properties) exist, then they have a duty to provide A with x”. It seems to me that for all statements containing “right” there should be a translation only containing “duty”.

But you can easily disprove this claim by giving just one specific example of a statement containing “right(s)” that I will fail to accurately and completely translate into a statement only containing “duty/duties”.

Raffael: I suggest that we take a – what is commonly but not quite correctly referred to as – “positive right” as an example of a right that is not directly translatable into synonymous duties. Article 12 of the International Covenant on Economic, Social and Cultural Rights, for example, states that everybody has “the right to the enjoyment of the highest attainable standard of physical and mental health”.

It is disputed amongst legal philosophers whether this right is a real human right or not, but let us grant here that it is at least a right that should, if rights were translatable into duty statements, give rise to certain particular duties that can be named. However, I argue, that due to the abstract nature of such manifesto rights, we are unable to determine once and for all what synonymous duties correspond to this right.

We could, of course, argue that a “right to x” can be translated into “a duty to protect/fulfil the right to x” in order to show that there is always a synonymous duty to a right. Yet, this would be begging the question. “A duty to protect/fulfil the right to the highest attainable standard of health”, for example, would still leave us ignorant of what precise duties this right entails. To know that we have “a duty to protect/fulfil the right to x” equates to not knowing at all what duties we have to discharge.

Taking again the example of the right to the highest attainable standard of health, the problem becomes evident that what duties this right entails cannot be determined in abstracto but only in a case-by-case implementation of the right. One day, for example, an imaginary moral court – to stick to the example of moral rights rather than legal rights – will decide that in a particular case, where Bob (who was in dire need of drug D) did not receive this drug from Jim (although the latter possessed drug D in abundance and could have easily provided it to Bob), Bob’s right to the highest attainable standard of health was violated. Henceforth, we will know that the right to the highest attainable standard of health confers a duty to us to provide others in need with drugs if we do not require them ourselves.

Thus, case by case, the right to the highest attainable standard of health will receive contours that allow to determine (more or less clearly) who has what duties to fulfil against whom. These contours, as I have mentioned above, are however subject to change due to the dynamic nature of rights.

To sum up, I argue that although rights may eventually give rise to certain duties, rights cannot be reduced to a certain number of allegedly synonymous duties. Rather, rights are the vehicles from which duties derive. Because the vehicle itself is moving and changing, however, the duties it gives rise to are of a nonconstant nature as well. To reduce talk of rights to mere duty talk would be like describing only the emissions of a car (e.g., the exhaust fumes, the skid marks, the damages it causes) whilst not mentioning the car itself. Obviously, this would be ignoring the proverbial elephant in the room which is why I suggest not to reduce rights talk to duty talk.

Raffael: By the way, I have stumbled upon a very nice passage in Joel Feinberg’s “The Nature and Value of Rights” where he describes what he calls “manifesto rights”. I think this passage illustrates quite well the idea that I have tried to spell out above:

“Still for all of that. I have a certain sympathy with the manifesto writers, and I am even willing to speak of a special “manifesto sense” of “right,” in which a right need not be correlated with another’s duty. Natural needs are real claims if only upon hypothetical future beings not yet in existence. I accept the moral principle that to have an unfulfilled need is to have a kind of claim against the world, even if against no one in particular. A natural need for some good as such, like a natural desert, is always a reason in support of a claim to that good. A person in need, then, is always “in a position” to make a claim, even when there is no one in the corresponding position to do anything about it. Such claims, based on need alone, are “permanent possibilities of rights,” the natural seed from which rights grow. When manifesto writers speak of them as if already actual rights, they are easily forgiven, for this is but a powerful way of expressing the conviction that they ought to be recognized by states here and now as potential rights and consequently is determinants of present aspirations and guides to present policies. That usage, I think, is a valid exercise of rhetorical licence.”

Adriano: A nice passage indeed, and I agree with it. I do not think it contradicts the translatability claim, though. That claim says that for every statement containing the word “right” there is a synonymous statement containing only “duty”. This does not imply that the duties that the translation of a right-statement will speak about cannot be hypothetical duties! Implication for Feinberg’s “manifesto rights” (using his terms directly):

(1) a right to X of some being B
(2) being B’s real claim to X, maybe only upon hypothetical future agents not yet (or, maybe, never) in existence
(3) maybe only hypothetical future agents’ duty towards being B not to violate or to grant X

(3) is synonymous to (2), and (2) is synonymous to (1), so (3) is synonymous to (1). (1) contains “right”, (3) only contains “duty”. “Permanent possibilities of rights” = “permanent possibilities of duties”, and the possibilities of duties become actual as soon as suitable agents appear.

Furthermore, you said:

“Thus, case by case, the right to the highest attainable standard of health will receive contours that allow to determine (more or less clearly) who has what duties to fulfil against whom. These contours, as I have mentioned above, are however subject to change due to the dynamic nature of rights.”

I think I see what you mean, and I agree in substance. But I would characterize this as follows: Because rights are translatable into duties, it is not surprising that as long as rights do not have clear contours, duties do not have clear contours either. This is so precisely if and because the translatability claim holds. (If it did not, then it would be possible for rights to have very clear contours while the duties still remain fuzzy, or for the duties to be clear and the rights unclear – but that is impossible.)

So a statement about the right to the highest attainable standard of health without clear contours will translate into a statement about respective duties without clear contours. And the clearer the contours of the right, the clearer the contours of the duties, too (which appear in the translating statement). Unsurprisingly, duties have a similarly dynamic nature. The duties that manifestos speak about are often unclear and underdetermined and they then evolve into more specific forms that vary over time.

However, I argue, that due to the abstract nature of such manifesto rights, we are unable to determine once and for all what synonymous duties correspond to this right.”

Yes, but this set-up is rather unfair. You give me an abstract rights-statement and ask me to translate it into a concrete duty-statement. But the translatability claim was only that for every rights-statement there is some synonymous duty-statement, not necessarily a very concrete one. And in fact (and as I said), rights and duties could not be correlative if abstract rights-statements could translate into concrete duty-statements. So all is well if abstract and very general rights-statements translate into abstract and very general duty-statements.

One last thought; an analogy of what I think is going on: The claim is that all statements about “bachelors” could be translated into statements only including “unmarried men”. The objection would be something like: The statement “Some tall bachelors went into a bar last week” cannot be translated into a statement only containing “unmarried men” because one could not say 1) how many men, 2) how tall, and 3) when precisely last week. But the reply is that it is no wonder that general and imprecise statements about bachelors cannot be translated into particular and precise statements about unmarried men. General and imprecise manifesto bachelors will translate into general and imprecise manifesto unmarried men.

Let me end by saying that from the beginning, I felt like we did not really disagree at all on this point. Your claim essentially seemed to be that some (general) rights-statements cannot be translated into precise duty-statements with precisely identifiable existing duty-bearers. And I totally agree. My statement, on the other hand, was that even general and imprecise rights-statements can be translated into statements only containing the word “duty”, but these statements will of course be similarly general and imprecise. And maybe you agree, too?

Dieser Artikel wurde ursprünglich bei Humanimal Rights publiziert.