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Consequentialist Rights: L. W. Sumner's The Moral Foundation of Rights*

Published online by Cambridge University Press:  13 April 2010

David Copp
Affiliation:
Simon Fraser University

Extract

It is commonplace to criticize utilitarianism on the ground that it does not take moral rights seriously; that it cannot account for the rights we have, and for their role in constraining our pursuit of the overall good. Wayne Sumner does not directly address this criticism in The Moral Foundation of Rights. Instead he attempts to show that consequentialism can defeat nihilism about rights: the view that there are no moral rights at all.

Type
Critical Notices/Etudes critiques
Copyright
Copyright © Canadian Philosophical Association 1989

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References

1 Such a strategy would not be available to a theory whose basic principles postulate the existence of moral rights, unless the theory could itself be defended. For example, on Sumner's account of what a “natural rights” theory would be (95, 104), such a theory cannot answer nihilism unless it can be given a meta-ethical foundation.

2 Sumner discusses Jeremy Bentham's nihilism about certain kinds of rights, namely natural and indefeasible rights. Bentham said that such rights would be “nonsense upon stilts”, and that “The assertion of such rights [is both] absurd in logic [and] pernicious in morals”. (Quoted in Sumner, 112.) Sumner defends Bentham's arguments, but his defense depends on construing the notion of a natural right as involving a metaphysical claim to objectivity and realism which may not be involved in common sense (107–108). For example, our belief that we have a right not to be enslaved does not appear to involve metaphysical claims to objectivity and realism. So even if Bentham's arguments, as updated by Sumner, show that there cannot be rights of a certain sort, they would not support a blanket nihilism about moral rights. Sumner does not think otherwise, so I do not discuss Bentham's arguments in the text.

3 Hohfeld, Wesley, Fundamental Legal Conceptions As Applied in Judicial Reasoning, ed. Cook, Walter Wheeler (New Haven, CT and London: Yale University Press, 1919)Google Scholar. See, for example, Lyons, David, “Rights, Claimants and Beneficiaries”, American Philosophical Quarterly 6/3 (1969)Google Scholar, and “The Correlativity of Rights and Duties”, Nous 4/1 (1970).Google Scholar

4 See below, footnote 7.

5 The example is from David Lyons, “The Correlativity of Rights and Duties”, 49ffGoogle Scholar., as cited by Sumner at 37.

6 It is not clear to me how a utilitarian, with a principle of justification formulated in terms of a “synoptic or global goal” (167–168), can make a distinction between clusters of Hohfeldian advantages justified on the basis that they protect welfare, and clusters justified on the basis that they protect autonomy. As we shall see, Sumner's theory of justification would say that a bundle of advantages is justified just in case it best promotes the one synoptic consequentialist goal. His theory makes available only one mode of justification, so I do not see how he can distinguish between bundles of advantages according to their having different bases of justification. Perhaps he intends only to invoke differences in putative justification, or in non-moral justification. I shall not pursue this point, for nothing seems to turn on it.

7 Sumner proposes that rights correspond to clusters of Hohfeldian advantages justified by the protection they offer to our autonomy. Therefore, he ought to say that a conventional system of appropriate rules brings conventional rights into existence only if it is both efficaciousness and appropriately justified. Perhaps he intends to convey the justification requirement by speaking of an “appropriate” bundle of Hohfeldian advantages. However, inclusion of the justification requirement would create difficulties in his overall position, given his positivism, his theory of moral rights, and his theory of justification. As we will see, he proposes that moral rights are morally justified conventional rights. It would therefore be awkward if every conventional right had to have a justification; this might mean every conventional right is a moral right, if justification in terms of autonomy is a kind of moral justification. And it would undermine his positivism regarding conventional rights. Moreover, his theory of justification recognizes only one mode of consequentialist justification, justification relative to a global consequentialist goal. So it would be awkward if his analysis of rights entailed that if there are any rights at all, even conventional rights, there must be justification in terms of autonomy. This would put constraints on a consequentialist theory of justification which aimed to be compatible with the existence of rights.

8 Sumner's argument against natural rights theory is discussed by Thomas Hurka in his essay on Sumner's book, in this issue of Dialogue.

9 This approach is by now well established in the literature. See, for example, the recent studies of Mill by Lyons, David: “Mill's Theory of Justice”, in Goldman, Alvin I. and Kim, Jaegwon, eds., Values and Morals (Dordrecht: D. Reidel, 1978)Google Scholar: “Human Rights and the General Welfare”, Philosophy and Public Affairs 6/2 (1977)Google Scholar; “Mill's Theory of Morality”, Nous 10/2 (1976).Google Scholar

10 I am uncertain exactly how Sumner's principle of justification is to be formulated and integrated into the theory of rights, but the text expresses the rough idea.

11 Sumner cannot hold that the existence of a moral right would itself provide a justification for the conferral of a right with the same scope and content by the conventional moral system of a society. If a moral right consists in a justified conventional right, it cannot be cited as the justification for conferring the conventional right. See 148–149, where he says, “the claim that we have a moral right to worship freely is logically equivalent to the claim that the policy of conferring the corresponding conventional right on us is morally justified. The former therefore cannot constitute the justification for, or the ground of, the latter”.

12 In case some readers were not persuaded by the Chevron example, I should point out that the example in this paragraph could be used in its place. It is a counterexample to Sumner's unamended theory that moral rights are morally justified conventional rights. And the example of the last paragraph could also be used against his original theory, with slight modification. For the evil genius might threaten to kill the entire population if we give our allegiance to, or bring into force, any conventional system of rules which conveys a right to worship freely. If so, it arguably would be morally best if no conventional system conferred the right to worship freely. Yet there is no contradiction in holding that, even in these circumstances, we would have a moral right to worship freely. Therefore, a moral right is not a morally justified conventional right.

13 Parfit, Derek, Reasons and Persons (Oxford: Clarendon Press of Oxford University Press, 1984), 32.Google Scholar

14 Sumner addresses the objection that, on his account, moral rights cannot be “independent reasons for action”. Therefore, he constructs his reply in terms of Parfit's notion of “rational irrationality”, rather than in terms of his notion of “moral immorality”. These notions are introduced in Parfit's Reasons and Persons, 13, 32Google Scholar. Given the objection I am proposing the notion of “moral immorality” is the relevant one. See Sumner. 196–197.