This is a very basic discussion of some of the topics addressed in the study questions I have designed for use with M. Velasquez Philosophy, Chapter 8. Although one could have an interesting discussion about Rawls' theory of justice in relation to rights, this webpage follows Velasquez and treats these topics separately. Rawls' version of the social contract process--his original position--is discussed in an earlier section of chapter and is not treated here.--Dr. Jan Garrett
22. Describe Rawls' principles of justice, giving special attention to the "difference principle."
Rawls holds:
1) [Principle of Equal Liberty] that everyone should have as many political rights and freedoms as possible, as long as everyone has the some rights and freedoms.
[Difference Principle]
2a) that desirable jobs and positions should be open to anyone who is qualified by his or her abilities (no discrimination on the basis of sex, race, sexual orientation. . . ), and that training and education should be supplied to make equality of opportunity effective
2b) that some inequalities are permissible when they serve to motivate individuals to contribute more to society provided that these contributions serve to improve the situation of the least advantaged members of society.
Manuel Velasquez gives an example of paying different salaries in order to motivate individuals to contribute more to society together with social welfare programs to relieve the plight of the least advantaged. But Rawls is willing to tolerate not only economic inequalities but also political inequalities -- provided certain special conditions. For example, a governmental official and a policeman have powers that ordinary citizens do not have. But those powers are justifiable only if this division of labor enables otherwise disadvantaged persons in society to improve their situation. Thus, Rawls permits a division of labor and a corresponding division of powers and incomes when this arrangement improves the well-being of society as a whole and it improves the situation for the least well-off groups.
Rawls wants especially to avoid a trap into which utilitarianism may fall. To simplify somewhat for present purposes, utilitarianism is a view that we should choose the option, out of the available options, that will produce the greatest total satisfaction for society. The danger or trap here is that the most powerful section of society and the moderately powerful middle section might gang up on the least powerful, reasoning that this (exploitative) treatment of the least powerful is justified because, as a whole, the satisfaction of society is being maximized. This rationalization of exploitation in terms of the "whole good" of "society" may have happened under slavery and colonialism, and some people are concerned that it is still happening today, with various minorities as the victims.
How does Rawls' second principle (2a and 2b together) produce a "win-win" situation for the most talented and the least advantaged persons in society? (625-26)
The most talented get a chance to use their skills and receive improved benefits while the least advantaged have their greatest and most pressing needs met.
23. What is a right? (See McCloskey definition, p. 638)
An entitlement or justified claim on others. A right to life would then be perhaps a justified claim not to be killed by others.
24. How are rights related to duties? (638)
Rights are not the same thing as duties but they always are associated with duties. A right to life is associated with the duties of others not to kill you. If I have a right to free medical care, then other people or social units like the government would have the duty to provide me with free medical care.
25. Distinguish moral rights from legal rights?
Legal rights depend upon the existence of laws enacted by a government. (Velasquez is wrong to limit them to laws of a nation or country; there are legal rights established by state and city governments as well as by international treaties. Moral rights do not depend upon governments. They are defended by appeal to moral principles or they are themselves moral principles. Moral rights may seem to be eternal and unchanging, while legal rights obviously change when governments alter laws.
What other term is sometimes used for "moral rights"? (638)
Human rights; they used to be called natural rights, meaning rights that human beings have simply because they possess human nature.
Do legal rights sometimes express and defend moral rights?
Yes, a legal right not to be killed, backed by laws against murder, defends the moral right to life.
Do they always?
No. A slaveholder's legal right, in the pre-Civil War U.S., to have his escaped slave returned did not defend the slave's moral right to liberty or any other moral right we would now recognize. We often appeal to moral rights as a basis for reform of existing laws and the establishment of new legal rights.
26. How are "positive" rights distinguished from "negative" rights? (638-39)
Negative rights impose on others a duty not to interfere with a person's activities in a certain respect. The right to liberty is a right not to be enslaved or kidnaped; the right to property is a right not to have one's possessions stolen or house burned down. Positive rights impose on others a duty to provide a person with some good that he or she needs. Positive rights have been defended in relation to education, adequate medical care, a fair trial, a clean environment.
What kind of rights do you think a libertarian or "classical liberal" like Nozick favors?
The most consistent libertarians recognize only negative rights. (We have to qualify this with the addition that libertarians believe that if you have promised or contracted to do something, then you have a duty to carry out your promise or fulfill your contract. But libertarians claim that we are free not to promise or enter into contracts.)
The UN Declaration (637) and Thomas Donaldson (640)?
The UN Declaration and Professor Donaldson recognize positive and negative rights. For example, the UN Declaration lists "the right to a . . . favorable remuneration . . . [and] the right to rest and leisure." Donaldson's rights 4, 5, 8, 9, and 10 would seem to be positive rights. (Rights 1 and 7 seem to be variants of the negative right to liberty; rights 3 and 6 are probably based on the negative right to life.)