The Unequal Distribution of Rights
While the argument by Alan Gewirth in Are there any absolute rights? is convincing, it contains a major flaw. Assuming rights are equally distributed by all agents is problematic. From this initial assumption, Gewirth argues no rights of any group Is superior if everyone has an equal distribution of rights. An equal claim to rights between two innocent groups creates an absolute right that must be fulfilled and never capable of being overridden justifiably. However, his initial assumption is flawed and serves to weaken the rest of his argument. Rights are not equally distributed making the existence of absolute rights hard to imagine.
Equal distributions of rights are difficult to imagine among agents for a variety of reasons. Reproduction rights for example, are not equally distributed. Women for example are solely entitled to the right of an abortion. The right to abortion for the male does not exist. Both sexes are agents, but the right is not shared. A possible objection to this argument would be limited to arguing on physical difference between male and female. A male is only prevented of having the right based on his physical make up and if he were to share the same properties of a female he too would share the right. Basically, while men may not have the right they still have the capacity to have the right. However, men still do not have the right initially rather it must be brought about.
Another objection that is not answered by Gewirth is whether or not rights distributed could be given away. For instance some government officials such as police officers or military personal are held to a higher standard than most civilians. Contrary to Gewirth, there are cases where one innocent person’s right to life conflicts with another innocent person’s and there are no equal rights. (pg. 94, Theories of Rights, Waldron, Jeremy). Take the given situation; Sam is in the navy and Adam is a rich businessman. Both are in a life boat too heavy to support them both and it is slowly sinking. Based on his military service, Sam has a duty to ensure the survival of Adam. Adam’s right to life in this situation far outweighs Sam. If Sam lets Adam die he is morally responsible for his death where as if Adam allows Sam die he is not morally responsible. Both individuals have a right to life, but Adam right is superior to Sam’s. Prisoners as well for example are not given the same rights as an innocent person. Hence, rights can be taken away and distributed back again.
An equal distribution of rights sounds correct, but reality says otherwise. By showing the initial assumption is problematic I have shown rights can be overridden. If rights can be overridden it is hard to imagine an absolute right. Absolute rights may exist conceptually, but it is difficult to know what one may be.
March 15, 2009 at 9:28 pm
In “Are There Any Absolute Rights?,” Gewirth persuades us to answer that question in the affirmative. He builds a successful argument against both absolute consequentialism and abstract absolutism by presenting the case for a concrete, rule absolutism that (1) provides for at least one absolute right, and probably many others (107), and (2) accommodates a concern for consequences (101).
He begins by clarifying terms. Taking for granted that an absolute right is a Hohfeldian claim-right with correlative duties, he maintains that an absolute right is one that cannot be justifiably violated (92). He says this kind of right is “doubly normative,” because it includes (1) the idea of a justified claim (alongside a correlative duty) and (2) the idea of exceptionless justifiability (ibid.). Criteria of justifiability must rest on some certain “supreme principle of morality,” viz. what Gewirth chooses to call the Principle of Generic Consistency (PGC) (93). Generic rights consist of rights to action, the freedom to act, and successful action (well-being). The PGC “provides ultimate justificatory basis for validity” of such rights by showing that every person has them; it also provides guidelines for ordering priorities in case of conflict (rights most critical to action take precedence) (ibid.). After a brief survey of types of absolutism, Gewirth picks rule absolutism to defend. In this kind of absolutism, rules describe the content of the right and the correlative duty. Rights considered through rule absolutism, then, “vary in degree of generality,” and the subjects, objects, and respondents of such rights are only more or less specified. This is the problem Gewirth builds his main argument to resolve: If absolute rights are always justifiable, then, since Gewirth claims such rights must be properly specified, there are no absolute rights (for what specific right could always be justified?); or all rights are absolute, for they only need proper specification to become inviolable (95).
It is as he outlines his criteria for permissible specification that he is forced to reckon with consequentialism. The argument’s poignancy is instantly clear. Having jumped into a similarly disturbing thought experiment earlier, Gewirth points out the problem we imagine when we consider the existence of absolute rights, namely the inevitable dilemma of having to decide between upholding someone’s absolute right at the expense of another’s. We so readily foresee this because the argument for absolute rights is connected with the notion that humans also have equal rights (94). We get stuck when we consider scenarios like the one Gewirth offers: According to a bunch of terrorizing villains, if Abrams does not torture his mother to death, a bomb will drop on a densely populated city. Abrams cannot kill his mother; the PGC identifies it as an act so rotten a moral person wouldn’t even consider doing it (98-100). The consequentialist asks, though, what about the other lives? There are several reasons Abrams does not seem culpable; the one that shields absolutism from consequentialism is “the principle of the intervening action.” If the bomb drops, it will be because of the terrorists’ actions (103-104). Furthermore, if we distinguish abstract absolutism from concrete absolutism, we see that the concrete absolutist can stay focused not only on Abrams’ inculpability but “on the basic rights of persons not to be subjected to unspeakable evils” (105-107). So, keeping consequences in mind, Abrams and the police force can do things to prevent more deaths. What holds is “the unjustifiability of violating rights that are on the same level of necessity for action” (108). Thus the mother’s right not to be tortured is absolute.
Nothing is wrong with Gewirth’s argument per se. The PGC snips off otherwise unseemly argumentative threads, allowing Gewirth to make the case for absolute rights in a closed system (like the ones we live in: cities, bodies of law, nations, etc). I find myself agreeing with Gewirth, or at least seduced by his argument’s force, which seems to lie in (1) the way he encloses consequentialist concerns inside his argument for absolutism, and in (2) the anthropological nature of it (we do invoke principles like the PGC; when others break them, we hold them morally culpable and sometimes seek to punish them). [See Scanlon for what is in my view a better-grounded version of Gewirth’s argument (having done more to explain what I identify above as (2)).]