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BU PHIL 345 - April 14

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April 14th, 2015 The Nature and Value of Rights Joel Feinberg - Think of a society without rights - Kant says there are no actions (in themselves) that have the supreme kind of worth o Actions have to have duty, and if duties exist, do rights exist too? - “doctrine of the logical correlativity of rights and duties” o Doctrine that says that all duties entail other people’s rights and that all rights entail other people’s duties  E.g. there is the duty to pay taxes, with people who have the right to collect taxes - But there are also duties that aren’t logically correlated to rights of others o There are actions we feel we must do, but not necessarily for rights of others (e.g. for law, higher authority, conscience, etc.) - We have duties to be charitable, but the people receiving charity don’t have a right to receive charity (personally, this logic is stupid) - In the society, someone may deserve something for a certain action, but have a right to it o There’s a fittingness/propriety to it  Similar example with servant doing good job and master feeling need to reward him - In Hobbes’s Leviathan, ruler only had duty to God not to mistreat subjects (and subjects had no rights against mistreatment) o But subjects had ordinary rights against each other - “Sovereign Right-Monopoly” o People have rights/duties amongst each other, but (this is the twist) the obligations will be to God or some sovereign under God - Any other-worldly commands are given in the name of the right-monopoly who in turn are the only persons to whom obligations are owed o Even intermediate superiors do not have claim – rights against their subordinates, but only legal powers to create obligations in the subordinates - Claim – rights logically entail other people’s dutieso E.g. duty not to interfere with a person’s property - Making legal claim o Legal performance with legal consequence  Claiming that - Literally just claiming (no legal force) and getting someone’s attention when you claim- To respect a person may simply be to recognize their rights - Some may ID claim o Right, others (and Feinberg) say right is justifiable claim (and that not all claim are valid/justifiable) - Rights are held against others - To have a right is to have a claim against someone whose (claim’s) recognition as valid is called for by having some set of governing rules or moral principles o To have a claim is to have a case meriting consideration, that is, to have reasons or grounds that put one in a position to engage in performative and propositionalclaiming - Semantic Distinctiono Right to vs. Right against  My right against being killed is different from my right to life - Duties leads to claims, which leads to rights, and he agrees with Dworkin - Having a claim is being in a position to claim or to claim that there is some sort of evidence toward you having a legitimate claim o A claim does not have value in itself it has value in its evidence - You can have a claim without knowing ito Rights are inherent - There is some connection between having a right and a claim o A claim without validity is a demand (theft)  Have to be supported by some sort of legitimacy - To have a right is to have a claim whose recognition is valid because a set of moral principles - To have a claim to have evidence it is your claim - Rights are always rights to, not rights against (my right to life is not my right against others) - Opposite of Dworkin in that the rights are viewed in the positive - Special rights (promises, contracts) are the only time when you have rights against others - The constitution is that you have a right to, not a right againstHard Cases Ronald Dworkin - What Dworkin means by hard cases in general? o Require some kind of legal interpretation through the application of legal principles - Two different ways to justify political decisions as a whole o This overarching idea that somebody, a legislature or a justice, is either correct orbeneficialo Justifying political decisions as a whole involves legal principles and policy  Two different objectives catering to two different groups  Principles regard individual justice or group rights- Minority rights, for example, or individual rights as people  Policy is large, broad decisions made by a legislature that have the objective of benefiting a society as a whole - They don’t take into consideration your own personal role - An inherently utilitarian policy (benefit the majority) basically o Calculates on a broad scale what is beneficial for a particular nation- Principles should be referred to by justices, and policy is the wrong idea to use, and we often conflate the two - Dworkin advocates for the right thesis o Plainly states that judicial decisions enforce existing political rights o Legal rights:  Rights granted by law o Concrete right that might not be a legal right could be rights that go beyond the constitution (human rights)  That in itself is the different between legal rights and concrete rights - Judge Hercules is basically the epitome of a perfect judge - Even though there is a precedent involved, not every plaintiff will get the same course ofaction What is Hard Cases? - They require interpretation, it’s not easy to come to a decision - They cannot be solved merely by looking at the statutes themselves through the application of legal principles. 2 Ways to Justify Political Decisions - Principles o Offer respect to individuals (me and you) or group rights like gay rights, black rights, minority rights.  Rights we have as people to be autonomous beingso What judges should refer to when making judicial decisions  Policy wrong to use and we often confuse the two o Used over policy even when deciding over hard cases - Policy o Legislative body making large broad decisions, benefit the entire society as a whole  It is inherently utilitarian because trying to calculate on a broad scale what is beneficial for a majority or particular nation Possible Objection to Idea of Judicial Originality - Judicial originality o Just like judicial activism  Making new legal interpretations - Can function o Can be good thing because it protects minority from majority  By justices coming up with their own interpretation of law, they are held accountable for ex-post facto law o Possible objection against this- The rights thesis o Judicial decisions enforce existing political rights which citizens have against the


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BU PHIL 345 - April 14

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