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Where Do Rights Come From? (Or, A Weird Consequentialist Reason Why Pure Consequentialism Fails)

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Utilitarianism, a form of consequentialism, may be informally defined as a moral system in which each actor is expected to maximize utility (and minimize suffering) with his actions. Deontological systems, in contrast, grant certain rights to people that other people may not violate, even if, by violating those rights, the actor could increase overall utility. An agent may not violate someone’s rights, even if doing so would reduce the overall level of violation of these very rights in the world.

In The View from Nowhere, Thomas Nagel explains rights and obligations in terms of a distinction between agent-neutral values (values we have a reason to promote from an objective perspective, such as the prevention of pain) and agent-relative values (values each person might have a reason to promote, but which we have very little reason to promote from a neutral perspective, such as a particular person climbing Kilimanjaro). Unless I seriously misread him (a distinct possibility, I must admit), Nagel seems to argue that, just as we might have agent-relative reasons to pursue our own goals that others might not have a reason to help us with, we might also have real agent-relative reasons for avoiding doing harm ourselves, even if doing harm ourselves could prevent someone else from being harmed by another person. Perspective matters. “A fully agent-neutral morality is not a plausible human goal,” says Nagel.

In “Personal Rights and Public Space,” however (Philosophy and Public Affairs 24:2, pp. 83-107), he seems to argue in favor of inviolable rights – rights that may not be violated, even to prevent major harm, including greater violation of those same rights by other – for a very different reason. Nagel says, on universal human rights such as freedom from torture and political persecution:

First, it means that these are forms of treatment to which no one should be subjected – that every person, everywhere, is wronged if maltreated in these ways. Second, that the wrongness is not a function of the balance of costs and benefits in this case – that while in some cases a right may justifiably be overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case. Rights are universal protections of every individual against being justifiably used or sacrificed in certain ways for purposes worthy or unworthy.

Nagel posits a few rights in particular in this essay – the right to be free from torture, and the right to freedom of speech and thought, including sexual fantasy, are discussed. But where do these rights come from? And what is their justification as rights that should be free from utilitarian calculation (at least below a certain threshold, perhaps that of moral catastrophe)? Why these, and not other rights?

Even though Nagel favors the view of rights as intrinsic, rather than instrumental (valuable only to the extent that they promote happiness and other goods), oddly, extremely oddly, I think Nagel is offering what might be considered a consequentialist justification for a set of deontological rights.

Nagel certainly does not see himself as making a consequentialist argument. Quite the opposite:

I shall try to defend the distinct (but perhaps complementary) position that rights are a nonderivative and fundamental element of morality. They embody a form of recognition of each individual’s value which supplements and differs in kind from the form that leads us to value the overall increase of human happiness and the eradication of misery – and this form of recognition of human value is no less important than the other. The trouble with this answer is that it has proven extremely difficult to account for such a basic, individualized value so that it becomes morally intelligible. The theory that rights are justified instrumentally, by contrast, is perfectly clear and based on uncontroversial values.

To make the argument for inviolable rights in what he considers a “morally intelligible” way, he first defines a status of inviolability (possession of rights that may not be violated, even to prevent a greater violation of rights) as a non-consequentialist value:

Being inviolable is not a condition, like being happy, or free-just as being violable is not a condition, like being unhappy or oppressed. To be inviolable does not mean that one will not be violated. It is a moral status: It means that one may not be violated in certain ways – such treatment is inadmissible, and if it occurs, the person has been wronged. So someone’s having or lacking this status is not equivalent to anything’s happening or not happening to him. If he has it, he does not lose it when his rights are violated – rather, such treatment counts as a violation of his rights precisely because he has it. [Emphasis Nagel’s.]

In Nagel’s sense, inviolability is a non-consequentialist value because it doesn’t correspond to subjective states of the actual violation of a right, but rather the moral status of having the right to be free from the violation, and, consequently, of being wronged in the case that the right is violated. Inviolability is valuable above and beyond the value of not having one’s rights actually violated. But is this really escaping consequentialism? Being inviolable is not the same as being happy. But what, then, is the value of inviolability? People are certainly happier when their rights are inviolable, in the sense that people would prefer to live in a free state with a fairly high murder rate than live in a police state with a murder rate of zero, but in which those suspected of having murderous desires were occasionally summarily shot in order to prevent murders. In this sense, the right not to be murdered – inviolability – must be said to be responsible for real utility gains, since it is preferred (and, I would say, rationally preferred) to a situation where rights are more likely to be violated, but where their violation is a wrong. Indeed, Nagel’s “non-consequentialist” explanation of the value of inviolability sounds profoundly consequentialist:

It is true that a right may sometimes forbid us to do something that would minimize its violation – as when we are forbidden to kill one innocent person even to prevent two other innocents from being killed. But the alternative possibility differs from this one not only in the numbers of innocents killed. If there is no such right, and it is permissible to kill the one to save the two, that implies a profound difference in the status of everyone – not only of the one who is killed. For in the absence of such a right, no one is inviolable: Anyone may be killed if that would serve to minimize the number of killings. This difference of status holds true of everyone whether or not the situation will ever arise for him. [Emphasis mine.]

I suppose my main disagreement with Nagel is that, as I see it, inviolability is a condition “like being happy” – it is one that has subjective value, and a situation that includes inviolability may be preferred to a situation that is materially better for the agent, but in which his rights are violable. In my view, it is strange to think that only subjective affect and material consequences should count toward utility. Nagel himself lists “being free” as a possible consequentialist value, as opposed to, say, the appearance of freedom. If being free is a consequentialist value, why not inviolability? This is especially true since inviolability, like freedom from pain, seems to be one of what Nagel would define as an agent-neutral value – one we have an objective reason for promoting.

This is not an instrumental argument. I am not arguing that people should have rights because rights may be exercised to make people happy, or that agents may be unhappy if morally required to violate the rights of others. I am arguing that the very status of inviolability makes people “happy,” to put it a bit reductively. I think Nagel wants us to look at the world and figure out which rights are really important – meaning, in which cases does inviolability make people feel valuable, special, and happy? Even if rights are violated in the actual world, there is a certain solace in inviolability – sympathy of the community, for instance, and the basic knowledge that the harm to one was a wrong. The possibility for moral outrage in the face of a violation of rights is a basic good.

To put it in a bit more consequential and certainly oversimplified terms, in our current world, we are all vulnerable to succumbing to organ failure. A certain percentage of us will die from lack of organ donors. More people might be saved if we, as a society, held a lottery and culled a certain number of randomly-chosen individuals, transplanting each person’s organs into the bodies of several waiting recipients. More people would be saved, fewer people would actually suffer the harm of dying – materially, society would be better off. But most people would consider this a worse world. This might be because the right not to be murdered – a morally inviolable right – gives us substantial utility, even though we are more likely to die of organ failure in our current world. The right not to be (painlessly) murdered is worth a substantially greater risk of (miserable, prolonged) death. (This example compares a little murder to more natural death; see my earlier example for a comparison of more murder to less murder minus inviolability.)

While my formulation is admittedly a bit flippant, and might be looked upon skeptically especially since it purports to put a consequentialist argument in the mouth of Thomas Nagel, it does have certain advantages. For one, it gives us a place to start when figuring out what our inviolable rights should be: rights occur where the “value of inviolability” is substantially greater than the expected utility gains that might come from the occasional utilitarian violation of the right. (Even Nagel is willing to allow for violation of “inviolable” rights to prevent moral catastrophe; we need only look at things below a certain catastrophic threshold.)

I would go so far as to define an inviolable right – and perhaps the skeleton of an entire moral system – this way: An inviolable right should be recognized, that cannot be violated even to prevent greater harm, including a greater violation of the same right by others, when the value of the right’s being inviolable is greater than the potential utility gains that could be made from its occasional violation.

Unfortunately for my simple little system, in a pluralistic world, few people would agree on the value of the inviolability of all but a few basic rights. Perhaps this is why Nagel limits himself to discussing such basic rights as the freedom from torture. A new question presents itself: how do we measure the value of inviolability? Certainly, it can’t be the average importance accorded to the right among actual members of a particular society. So is it, after all, a sort of first-order utilitarian calculation? Perhaps we need to think of inviolability from the perspective of a potential member of society, as in Rawls’ original position. In our current political system, I feel that the inviolability of the right to die is systematically undervalued, because cognitive bias prevents people from understanding the suffering of the suicidal, and because the competence of the suicidal is too easily dismissed with reference to broadly defined mental illness. But, as Benatar points out, the value of the inviolability of not being born may be undervalued even in a perfect Rawlsian original position – because the decision makers, in order to make decisions, exist, and it is difficult for an existent person to understand the value of nonexistence and the terrible violation imposed on one by being brought into existence.

(I changed the title based on a conversation with Jim – thanks!)


Written by Sister Y

May 28, 2008 at 10:37 pm

3 Responses

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  1. Great post, curator. I’ve been thinking about this for the last few days, but lacked the concise approach you’ve accomplished here. Thanks much!I think the problem is when people confuse inviolability with ‘natural’, or ‘intrinsic’. I see inviolability as sort of a meta-untilitarian principle, derived from utilitarian concerns, and then granted special status on the assumption of its universal appeal. Of course, when things come down to pragmatic assessments (as they always do), inviolability becomes less than its name seemingly confers. It’s all sort of a pretend game- which is all to the good, as far as it goes, as the idea promotes a cautionary approach when we consider overriding the prohibitions set in place to support whatever sacrosanct principle is in jeopardy. But it IS a pretend game; of that I have no doubts. And that’s why inviolable principles always crack when enough pressure is applied. In the final reckoning, everything is about utility, IMO; though the utilitarian nature is often hidden under layers of complexity, and/or unexamined pre-suppositions. Altruism isn’t really a special state at all…we’re all self-servers in the end. The difference is the line between purely concentrated egoism, as I’ve seen demonstrated lately in some correspondence on another blog, and empathetic resonance, where our sense of self expands beyond the boundaries to embrace the concerns of other selves i.e. empathy. Then, of course, it’s all about the nuts and bolts, where it’s my belief that situational ethics emerging from a sympathetic zeitgeist will trump pre-fashioned inviolabilities every time. By your post, you’ve obviously recognized the consistency problems in Mr. Nagel’s arguments; that’s because he’d dearly love to pull a rabbit out of his hat, but all there is, is a small mirror at the bottom. Maybe a little fur. Oh, and a carrot. Yeah.


    May 29, 2008 at 1:16 am

  2. Hey Jim, I don’t think Nagel’s being inconsistent, exactly – he’s certainly way smarter than I am, and I’m just scratching the surface of his work. I’m just poking at the weird idea that there might be consequentialist reasons why pure consequentialism fails.And I certainly don’t buy that “we’re all self-servers in the end.” Certainly, we often act to benefit others. I think it’s reductive (and mistaken) to claim that what’s “really” going on – 100% of the time – when we think we’re acting based on altruistic reasons, is that we’re really acting to produce positive mental states in ourselves. We do suffer to benefit others based on moral reasons. It seems odd and artificial to categorically define this suffering as ultimately self-interested. Self-image, and avoiding the negative feelings occasioned by hurting others, might be some reasons why we act in altruistic ways, but why must they be the only reasons?

    Sister Y

    May 29, 2008 at 6:56 pm

  3. Curator: I should probably expand on my idea that altruism is just extended self-interest, either through application or recognition (or both), but I’ll leave that alone for now. I really AM working on succintness! hehehe!I think where we differ is here…“…rights are a nonderivative and fundamental element of morality. They embody a form of recognition of each individual’s value…”IMO, and like I’ve said before, intrinsic value has no more meaning that intrinsic tallness. Same goes for rights. Rights are devised, then bestowed. I’ll agree there’s an aspect of recognition involved, in that we search our feelings, adust the moral milieu as we find it necessary, then invent new rights to cover our new bases. And that’s all I have to say!


    May 29, 2008 at 8:45 pm

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