Must Theories of Justice Confer Rights?

In his paper, “The Impossibility of a Theory of Intergenerational Justice,” Wilfred Beckerman argues that it is incoherent to speak of intergenerational justice because future generations cannot hold rights. His argument is fairly simple:

1. “Future generations – of unborn people – cannot be said to have any rights.” (53)
2. “Any coherent theory of justice implies conferring rights on people. (54)
3. “Therefore, (3) the interests of future generations cannot be protected or promoted within the framework of any theory of justice.” (54)

Of the two, I think that he has the least difficulties defending the first premise. To have a right in the normal sense of the term ‘to have’ you must exist. He says, as an example, that if he were to describe to us how his friend X has a fantastic music collection, and we were to ask who X is, and he replies that there is no X, we would rightly think that he is crazy or is talking nonsense. It does not make sense to us to talk of something that X has if X does not exist. (55)

A further difficulty when speaking of future rights holders is that the right which they have must be something we can satisfy. If my collection of rare and one of a kind stamps were destroyed in a fire, it is meaningless to say that I have a right to have my collection restored. As Beckerman says, ‘ought implies can’, meaning that I can only have a right to something if that thing is possible for someone to fulfill.

The second premise is much more difficult to defend since it is necessary to show that there are no theories of justice which do not confer rights on people. Or to clarify, if there is a single theory of justice which does not confer rights on people then his second premise is false. This is important for his argument since his aim is to not only show that future people cannot be rights holders, which has already been argued by many people before him, but the stronger claim that justice does not apply to future people.

His argument is difficult to decipher from his paper, but I think it can be summarized as follows:

1. The well-known theories of justice in the literature focus on the distribution of something. For instance, Rawls defines justice as the way in which fundamental rights and duties are distributed.
2. In an article written by Vlastos, he defines the main theories of distributive justice by the way they finish the sentence ‘to each according to his…’ where the various theories will fill in the sentence according to the good distributed (hard work, need, worth, etc.).
3. Any theory which can be defined as above can be rewritten to say ‘everybody has a right to…’. So if we said ‘to each according to his needs’ we can rewrite this as ‘everybody has a right to what he needs’, and so on.
4. Therefore, “a defining feature of any coherent and morally acceptable candidate for a theory of justice is that it attributes rights(and hence counterpart duties).” (64)

The first thing to note in premises (1) and (2) is that they add nothing in their present form to the logic of the argument. For (1), merely having an example of a theory or set of theories which confer rights does nothing to show that all theories of justice confer rights. For this reason premise (1) should be excluded from the argument. The claim in premise (2) is a bit more complicated, since Beckerman’s point is that even theories which do not explicitly use rights language can be rewritten in terms of rights. The first thing to note about his argument here is that premise (2) refers directly to distributive justice rather than justice on its own. It may very well be the case that all theories of justice can be interpreted as forms of distributive justice, and therefore rewritten in terms of rights, but that point needs to be argued.

Suppose that we subscribe to some form of justice which says that justice is acting virtuously in public life. In order to outline this as a form of distributive justice we might say that the good being distributed is honour, so that the sentence from above is ‘to each according to his virtue’, and ‘everyone has a right to honour’. But, as might be seen, to say that virtuous people have a right to honour goes against the common notion of what honour is supposed to be. As soon as you treat it as the sort of thing which can be claimed or justly distributed you destroy part of its character. To use an example from Plato’s Republic, he thought that the perfectly just person would be seen as completely unjust (and therefore lacking honour), whereas the perfectly unjust person would be seen as perfectly just. Even if we were to concede that our system of honour ought to be distributed according to virtue, it seems contrary to the theory to say that we have a right to honour.

This example also attacks the third premise on the basis that even if a theory can be outlined using the statement ‘to each according to his…’, that does not necessarily mean that it can be understood as conferring a right to something.

To put my criticism of his argument into a simple term (or terms), on the first he is equivocating the terms distributive justice with justice since there could be theories of justice which cannot be written in the form of ‘to each according to his…’. While my second criticism is that he provides no clear reason why all sentences of the above form can be rewritten as a right. He says in defence that “[i]t is obvious that all such principles of justice imply certain rights.” (63) He then goes on to list examples of the well-known theories. My argument is that (2) does not imply (3) in all cases, his premise is not obviously true.

Of course this does not mean, even if his argument is successful, that we do not have any duties to future people. Beckerman says that most of the rights we are concerned with for future people are of the type that are called claim rights, using Hohfeld’s terminology. (56) A claim right is a type of right which has a corresponding obligation tied to it. So if I have a right to clean air, then there must be someone who has a corresponding duty to provide clean air (whether this be some individual or the government). While claim rights have corresponding obligations, rights are not the only way to derive obligations. As an example, Beckerman says that if your neighbour’s house is on fire, you may have an obligation to let your neighbour use your phone without admitting that they have a right to do so.

So, for future people we may still have moral obligations to provide consideration for them without that consideration being a requirement of justice or a right. So not only is it impossible for future people to hold rights, and also impossible for them to be subjects of justice, but (luckily) it is not necessary for them to be so. Many theorists seem to think that our obligations are exhausted by obligations of justice tied to rights, but that leaves out an entire set of obligations.

On this point I agree with Beckerman. For most issues it should be possible for our normal system of moral obligations to deal with issues which arise in the intergenerational sphere. But to reiterate, I do not think that he has given us an argument sufficient to show that intergenerational justice is always an incoherent term.

References:

Beckerman, Wilfred. “The Impossibility of a Theory of Intergenerational Justice.” In Handbook of Intergenerational Justice, edited by Jörg Tremmel, 53-71. Cheltenham, UK: Edward Elgar Publishing, 2006.

Vlastos, Gregory. “Justice and Equality.” In Theories of Rights, edited by Jeremy Waldron, ch.2. Oxford: Oxford University Press, 1984 [originally published 1962].

Can Future Generations Correctly Be Said to Have Rights? By Ruth Macklin – Summary and Analysis

Summary:

In this article, Macklin argues that future generations cannot properly be said to have rights, but that we ought to still give them moral consideration when acting in the present.

Her main argument is fairly simple, she says that future generations cannot have rights because they do not exist to be subjects of rights. She asks us to compare how we treat duties and rights, stating that these ought to be treated the same way unless we have a good reason to do otherwise. Typically we do not say that non-existent people have duties (I put this too weakly, I have never heard people say this). If a non-existent person cannot have duties then, since duties and rights almost always travel in a single package, non-existent people cannot have rights either.

But, says the critic, we commonly give people or other things rights without giving them duties. Macklin lists the mentally disabled, the young, the sick, and the old, but I would also like to add non-human animals to this list (although all of these are still under dispute, let’s assume that they do in fact have rights). However, according to Macklin these groups have rights solely in virtue of the fact that they are sentient. And, as it turns out, sentience is sufficient for rights, but it is also a necessary condition. So, concedes Macklin, there is a slight asymmetry between rights and duties, but nothing to be worried about as these two still go together in the case at hand.

Assuming that her argument was successful, she concludes that future people cannot have strict rights, but might still be subject to our moral consideration. She says that under a utilitarian type calculus the overall balance of pleasure over pain would take future people into account, so we can give future people some consideration without giving them the strong protection of absolute rights.

Analysis:

The first point of criticism is that the utilitarian calculus might be subject to the same problem as the one she identified for rights (Parfit calls this the non-identity problem). As she said in a footnote, she wants to work within the same framework that Parfit described, so she is certainly aware of the non-identity problem. The problem is that when we speak of maximizing the good, while there aren’t any explicit constraints on how far we can calculate into the future, it seems to me that the calculus could conceivably be restricted to existent sentient beings. I’m not confident on this criticism, and I don’t know what modern scholarship on the non-identity problem says, so I leave this as an open criticism for the moment.

The second point of criticism is against her approach in distinguishing between rights and lesser (utilitarian) morality. In addition to the problem I described above, we might wonder what rights are supposed to do in the context of justice and human rights in general. For instance, we might reject all rights as just a veiled way of saying that ‘such and such judgments of morality are so central to our thought that we give them the name rights’. If that is the case then we might be able to expand ‘rights’ to anything we find central to morality. In other words, describing rights as ontological entities that only living beings can have is a rather limited view of rights.