Rights: nonsensical, empirical and hypothetical
If there is one thing that characterizes contemporary political discourse, and contemporary political liberalism in particular, it is the obsession with “rights.” Individual rights are absolute, or “trumps,” that do not permit to be overridden by collective goals, and can only be defeated by another trump. But since every right implies a corresponding obligation (a cost), increasing the number of rights we have also increases the number of obligations. If many of these rights are perceived to be equally important, or to be weighed differently in different circumstances, the scope and depth of collective choice will expand and creation and enforcement of rights will come to reflect the moral and political fashions of the day. Of course, this will largely defeat the trump-like nature that rights were supposed to have in the first place.
The fundamental question is where these “rights” come from in the first place. Rights are supposed to be “self-evident,” can be deduced from God’s will, the logic of reason, or the nature of man, etc. Unfortunately, attempts to find a solid foundation for rights have not been very fruitful, and even philosophers that agree on the same foundation for rights have often derived wildly different conclusions about the nature of those rights. But despite the failure to find objective evidence (either empirical or logical) for the existence of rights, “rights-talk” increasingly dominates public discourse. This is not just confined to modern “egalitarian” liberalism but has been a dominant feature of libertarianism as well, as evidenced by the writings of Ayn Rand, and Murray Rothbard, and the early Robert Nozick.
How do we reconcile the popularity of “rights-talk” with the lack of evidence for the existence of rights? The most obvious explanation is that by presenting an individual preference in the form of a “right” we depersonalize the nature of the claim. The “right” element confers credibility because it evokes truth, not individual preference. This effect is further enhanced by the fact that historically a lot of rights were assumed to be “self-evident” or derived from God’s will. The liberal philosopher Anthony de Jasay notes that the popularity of rights may be explained by its feature of hiding its redistributive nature and costs:
“‘Rights’ survive and crowd ‘goals’ out of circulation even if both convey the same substantive message, because rights-talk cheers and gratifies all who are accorded rights by it, and threatens no one overtly. Goals, on the other hand, unless they are innocuous, usually suggest not only the promise of something beneficial, but also the cost of attaining it, the effort it takes, and sometimes (in the case of visibly redistributive goals) an implication that if some gain by it, others must lose. Rights-as-goals are presumably easier to propagate and fitter to survive in the public consciousness than goals tout court.” (Anothony de Jasay, Choice, Contract, Consent: A Restatement of Liberalism)
Right can exist in an empirical sense when they reflect a contract between individuals to perform or refrain from certain actions. But in this case rights follow from actual agreement. The evidence that such rights exist can be found in a (written) agreement. And the existence of such rights is usually confirmed by both parties because it is advantageous for them to accept the benefits and obligations of the agreement. The situation is different in the case of rights that do not reflect (implicit) agreement by the individuals who have to incur obligations and costs. Anthony de Jasay notes that “a ‘rights-based’ political theory in general, and rights-liberalism in particular, is losing determinacy and self-restraint when it loses sight of where the burden of proof lies.”
The existence of specific rights and obligations are often defended with the argument that they reflect a “social contract,” similar to a contract between two individuals. A major weakness of this line of thinking is, of course, that such a contract has never been agreed to in reality. This would not necessarily present a major obstacle in case the rights involved would be minimal and non-distributive, but most modern rights do not have this characteristic. For example, an agreement to abstain from harming someone can be complied with by doing nothing, but an agreement that says that “every person has a right to food and shelter” comes with far reaching obligations that will not likely generate universal agreement.
Some modern liberal philosophers (such as John Rawls) do not prefer a social contract so “trivial” and claim that more extensive rights can be justified by means of an hypothetical contract in which rights are derived behind a “veil of ignorance” in which individuals are deprived of information about the individuating characteristics of the citizens they represent. This raises the question of what the relationship is (or should be) between such agreements and what actual individuals would agree to in real life. The reason why such hypothetical agreements should create moral (and legal) obligations in real life is that they correspond (or should correspond) to our conception of justice. Unfortunately, such a justification runs into the same problems as the more straightforward derivation of rights earlier; it lacks objective empirical or logical content. So far the only credible attempt to derive rights (or explain their existence) from non-moral premises is found in Hobbesian contractarianism as represented by Thomas Hobbes, David Gauthier and Jan Narveson.