© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_9
9. Rules and Rights
University of Silesia, Katowice, Poland
The relation between rights and rules has always been one of the basic conceptual problems of legal and moral philosophy. Since Bentham’s “nonsense upon stilts” the traditional idea of “natural” rights has been an object of devastating critique. In particular, all positivist accounts of law regard rights to necessarily derive from rules. This paper defends a redefined priority of rights. I assume that when rights are conceived as a content of specific mental states in which something is represented as due to someone, they may precede any fully fledged social rules effectuating them. Moreover, in many cases, such right-feelings cause the development of instrumental rules created to protect and enforce such rights. In this sense, the priority of rights thesis is fully reconcilable with the contemporary approaches to naturalizing explanations of legal phenomena. Since my argument claims that the development of rules may depend on more primitive mental representations of rights or proto-rights rather than seeks any objective justification of any “natural” or “inherent” rights, it has very little (if anything) in common with the natural law tradition.
One of the most interesting and controversial aspect of rules is their relationship with subjective rights. Rules can be treated as the only conceivable source of rights, but also as just a means to protect some independently existing rights. Various versions of both these positions have been endorsed in philosophical and legal thought. My aim is to reexamine this relationship in view of the contemporary science contributing to our understanding of the phenomenon of normativity, as well as the naturalistic approach to moral and legal rules.
9.2 The Priority of Rights Thesis
According to the popular idea, there are at least some rights that are held by human beings just “by virtue” of their being human. Thus, they are not derived from any rules, but rather precede any rules declaring or enforcing them. The conceptual and ontological distinction between subjective rights and objective rules has deep, even if unclear, historical and philosophical roots. The beginnings of an idea of subjective right distinguished from an objectively “right” behaviour (justified by a rule) can be traced back to the famous medieval argument advanced by William of Ockham in defense of the Franciscan order against Papal accusations of heresy. Yet, even in the much later writings of Thomas Hobbes, Jean Bodin, Hugo Grotius, or Samuel Pufendorf it remained ambiguous whether right meant subjective entitlement or conduct justified by objectively binding rules.
The modern idea of rights as inherent “endowments” of human beings was born in the Age of Enlightenment 1 As Thomas Paine put it, “natural rights are those which appertain to man in right of his very existence,” originating ultimately in the divine creation of man and providing foundation for all civil rights.2 Since that time, as J. Griffin has pointed out, the “extension” of the concept of inherent human rights has evolved considerably, but its “intension” has remained practically unchanged.3 Thus, contemporary ideology of human rights remains fully subscribed to an idea of an inborn rights held by human beings just by virtue of their membership in the human species.
Moral and legal rules should reflect such inherent rights of human beings instead of pretending to create or justify their existence.4 An illuminating example of this idea can be found in Article 30 of the Polish Constitution, which affirms that “an inherent and inalienable dignity of the person is the source of all rights and freedoms of persons and citizens. The respect and protection thereof is the duty of all public authorities.” Interestingly enough, the political success of the idea of inherent human rights has coincided with a noticeable decline of the idea of natural law as a system of universally binding, objective rules. I will call the claim that some rights may exist without any prior rules “the Priority of Rights Thesis.”
9.3 The Priority of Rules Thesis
When only the Priority of Rights Thesis had been openly formulated, it attracted the severe criticism of many moral and legal philosophers. One of the earliest and probably most famous rebuttals came from Jeremy Bentham. According to the leader of the group of “philosophical radicals,” each right may be nothing else than a “child of law.” The notion of a right without a previously assumed rule is like an offspring without parents. The very idea of such a right amounts to “simple nonsense.” There might be good reasons to wish that there were rules instituting and protecting some rights, but this does not entail that such desired rights can “exist” in any sense even if there are no rules establishing them. As Bentham puts it clearly: “wants are not means, hunger is not bread.”5 From this perspective, the fallacy of the Priority of Rights Thesis relates to a well-known gap between “ought” and “is.” The belief in rights prior to rules conflates a wish that some rights “ought” to exist (through the adoption of postulated rules) with rights that actually do exist. Moreover, as Bentham claimed, the idea that one’s desired, imagined rights constrain all present and future rule-making authorities amounts to “self-conceit exalted into insanity” and commits its advocates to an extremely dangerous “anarchical fallacy.”
An extensive argument against the Priority of Rights Thesis was developed by Bentham’s famous follower, John Austin.6 Later on, in the twentieth century, similarly penetrating critique of the concept of independently existing subjective rights was provided by another champion of positivistic legal thought, Hans Kelsen.7 According to his “pure” theory of law, subjective right is nothing more than the very legal norm (rule) taken in its relation to a certain subject (its beneficiary). Any subjective right, as well as the corresponding obligation of another agent, has to be established by a norm. Subjective right is just the content of a rule described from the perspective of its beneficiary.8 Hence, any dualism of subjective rights and objective rules is illusory. They are the same thing conceived from two different perspectives. Further analytical critiques of the Priority of the Rights Thesis, together with the concept of right itself, were offered by leading Scandinavian realists such as Karl Olivecrona and Alf Ross.9 I will consequently call the views according to which all rights necessarily derive from rules the “Priority of Rules Thesis.”
9.4 Conceptual Confusions and the Noble Dreams
Despite devastating critiques of the Priority of Rights Thesis, contemporary legal, political, and public discourses have been dominated by an idea of inherent natural human rights. This “rights-talk” seems to flourish despite its weak philosophical foundations, mainly due to the nobleness of an ideological dream of a world in which each human being is duly respected, independently of the caprices of any rule-making authorities. Even if the Priority of Rights is based on an incoherent idea of rights not awarded by any rules, there can by hardly any doubt that the world would be much better if the Priority of Rights Thesis were actually true. Therefore, attitudes toward the modern ideology of human rights (as a version of the Priority of Rights Thesis) seem rather ambivalent. On the one hand, it may exert beneficial effects on the respective political communities only as long as it is widely shared by their members and their authorities. Effectively undermining its philosophical foundations may bring dangerous and unwanted outcomes. On the other hand, beliefs in the existence of some inherent human rights lack sound foundations. They either rely on an act of pure faith, involving an incoherent idea of rights existing independently of any rules, or remain committed to a kind of naturalistic fallacy where the potential moral consequences are held to make related statements concerning the existence of rights descriptively true. It seems that this kind of ambivalence permeates most legal and philosophical accounts of the versions of the Priority of Rights Thesis that remain popular today.