Joseph Raz, Liberalism and the Nature of Human Rights

raz

According to one line of thought, rights protect the well-being of the individual against the claims and demands of others. Joseph Raz challenges this view. On the contrary, he argues that individual and societal interests are not necessarily at odds with one another. What is more, he claims that a right may in fact be conducive to both. In what follows, I will outline the basics of Raz’s account of rights, including his notion of “the general good.”[1] Next, I will employ his view in the analysis of an actual case-study—R. v. Keegstra. In doing so, I will raise certain concerns with regards to the parsimoniousness of Raz’s moral claims. Specifically, I will (1) question the role that democratic liberalism plays within his theory and (2) explore the epistemic limitations that might arise in the calculation of individual interests.

Raz’s view hinges upon two fundamental features of rights. The first is that a right must be in the interest of the right-holder. Indeed, it seems counterintuitive to suppose the opposite. Consider the proposition that criminals have the right to be punished. Likely, it strikes you as somehow odd. According to Raz, this is “precisely because being punished is not commonly thought to be in the interest of the punished.” The second feature of rights, moreover, is that the value of a right need not be proportionate to its value to the right-holder. Imagine that A owns something that is of little value to her, yet which happens to be of great value to B. Clearly, A’s right to it is not undermined by the relative weakness of her interest. Nor does B’s greater interest manifest itself as a right. Therefore, rights cannot be exclusively the function of individual interests.

But taken together, these two features of rights seem to beget a dilemma. For how can a right be inextricably linked to an individual’s interest and yet receive its value from elsewhere? Some theorists have opted to embrace one horn or the other. Raz, by contrast, attempts to sail between them. His strategy is to argue that the value of many rights lies not in their worth to the individual, but rather in their worth to others.

For instance, we might look to the right that a single mother has to child-support payments. Here, the right-holder is benefited insofar as it is in a mother’s interest to be able to support her family. But the mother’s right to child-support payments is also clearly in the interest of her children. And what is more, it seems likely that the value that we as a society assign to this right is primarily the result of its ability to satisfy these latter interests. As Raz himself writes:

The weight of the right does not match the right-holder’s interest which it serves, because […] the right is justified by the fact that by serving the interest of the right-holder it serves the interest of some others, and their interest contributes to determining the weight due to the right.

Even if the mother did not have a strong interest in feeding her children,[2] her right to child-support payments would nonetheless remain valuable, for its worth lies primarily in the benefit it confers to her children. As a result, we are now able to explain the disproportion that often exists between the value of a right and its value to the right-holder: the interest of the right-holder is not the only one that counts.

In the case just treated, we saw how a right can benefit both the right-holder (the mother) and additional parties (her children). But Raz also argues that some rights are able to benefit society at large. These rights serve “the common good”—i.e., “those goods which, in a certain community, serve the interest of people generally in a conflict-free, non-exclusive and non-excludable way.” Accordingly, there is a logical relationship between the common good and the interests of individuals: namely, if X is a common good for a particular society, then it is necessarily the case that X is in the interest of each of its members.[3] But what counts as a common good? To the extent that a common good supervenes upon individual interests, it is at least possible that what serves all the interests of a community will differ between societies. Nevertheless, Raz suggests the common good coincides with many of the principles of liberal democracy—e.g., freedom of expression, an open market and so forth.[4]

We might raise the following objection: insofar as most rights impose duties on others,[5] how can a right benefit everyone if at least some individuals are encumbered by it? Raz’s answer is that it is not necessarily the case that being duty-bound is counter to one’s interest. Quite the opposite, he suggests that “duties often define avenues through which one’s well-being can be promoted.” And certainly, to exercise one’s freedom often necessitates the self-imposition of duties: for instance, the freedom to pursue a university education entails the duty to complete academic assignments in a timely fashion.[6] Moreover, Raz notes that something “may be in one’s interest to have in some respect but not in others.” For instance, A might have an interest in both passing her physics final and staying up all night watching television. Nonetheless, it might better serve A’s overall interest to pass her exam. Indeed, the interests that count with regards to the common good are overall interests. As a result, although rights often impose duties on others, those rights that further the common good are necessarily (by definition) in the overall interest of all members of society.

This will become clearer if we look at an example. In what follows, I would like to focus on freedom of expression, which Raz believes to be a common good. If this is true, then freedom of expression within a society benefits all of its members—even those who are “neither speakers nor listeners.” As he explains,

If I were to choose between living in a society which enjoys freedom of expression, but not having the right myself, or enjoying the right in a society which does not have it, I would have no hesitation in judging that my own personal interest is better served by opting for the first option. I think that the same is true for most people.

That is to say, the right to freedom of expression is highly valued not because it allows the individual to propagate her opinions—nor even because it protects a more fundamental individual interest in freedom—but rather because this right contributes to a culture of liberal democracy.

Nevertheless, Raz’s account raises certain questions, both moral and epistemic. Should we equate democratic liberalism with the moral good? Can a common good truly serve the interests of all individuals in a “conflict-free, non-exclusive and non-excludable way”? And even if we grant that duties are not necessarily incompatible with individual interests, how can we be certain that the benefits conferred by a right outweigh the costs that it imposes? In order to explore such concerns, let us take a moment to examine Raz’s theory as applied to an actual case-study. The case we will look at is R. v. Keegstra (1990)—a landmark Supreme Court decision with regards to freedom of expression in Canada.

First, some back story. James Keegstra was a high-school teacher in Eckville, Alberta, who was caught disseminating anti-Semitic content to his students. In 1984, he was charged under section 319 of the Criminal Code, which “prohibits the willful promotion of hatred.” Nevertheless, Keegstra appealed this decision, claiming that it impinged his right to freedom of expression, as enshrined within section 2(b) of the Canadian Charter of Rights and Freedoms. The case eventually made its way to the Supreme Court, where it was ruled that although the Criminal Code did infringe upon section 2(b) of the Charter, this was nonetheless a justifiable limit under section 1. Importantly, the rationale the court provided in defence of its decision is consistent with Raz’s account of rights. Yet it also provides a good opportunity for raising certain issues with regards to his view. I will treat both in turn.

As we have seen, Raz argues that the right to freedom of expression is not valuable simply because it provides the individual with a means for propagating her or his opinions. Rather, the right’s worth lies primarily in its ability to contribute to the common good—i.e., a culture of liberal democracy. Such a view seems to be advanced by Chief Justice Dickson in R. v. Keegstra. In the majority opinion, he explains that at “the core of freedom of expression lies the need to ensure that truth and the common good are attained.” Yet in defending the court’s decision to limit section 2(b) of the Charter, he argues that the “brand of expressive activity” engaged in by Keegstra is “wholly inimical to the democratic aspirations of the free expression guarantee” and that “through rejecting hate propaganda that the state can best encourage the protection of values central to freedom of expression.” By construing rights as tools by which the “common good” may be attained, Dickson implies that the value of a right is directly related to its efficacy at achieving this end. Accordingly, insofar as Keegstra exercised his right to freedom of expression for anti-democratic means, it does not possess the same value that it is usually afforded. Therefore, the Crown was permitted to limit his right.

Yet if freedom of expression is a common good—and moreover, if it is endangered by the wilful promotion of hate—then Raz’s view entails that the limiting of Keegstra’s right to freedom of expression is actually in his best interest.[7] In other words, it would benefit him more to live in a society that (generally) promotes freedom of expression but prohibits the wilful promotion of hate than to live in one in which hate-speech is condoned but his 2(b) right remains intact. Of course, he need not be aware of this fact. Indeed, Raz suggests that many people are not conscious of the relation between rights and the common good. Nonetheless, this means that Keegstra’s choice to appeal the earlier ruling was the result of epistemic failure, such that he failed to recognize the benefits of living in a free and democratic society.

Raz’s account of rights thus involves a calculus of sorts, in that the benefits of rights are weighed against the duties they impose. When a right is to a common good, however, its benefits by definition surpass its costs, since a common good is simply that which is in everyone’s interests. Yet this raises a certain worry: for how can we know what Keegstra’s own personal interests are? And how can we know what they are better than he does himself? For might it not be possible for someone to prefer to live in a hateful and discriminatory society over one that is democratic and liberal? One response is to assert that a culture of democratic liberalism is necessarily in the overall interest of all persons, which appears to be the approach taken by Raz. But this is a controversial claim, both ethically and meta-ethically. By contrast, a more theoretically parsimonious tack might be to argue that a culture of democratic liberalism is in the interest of only most people. Dickson seems to hold such a view, insofar as he writes:

The extent to which the unhindered promotion of this message [i.e., hate-speech] furthers free expression values must therefore be tempered insofar as it advocates with inordinate vitriol an intolerance and prejudice which views as execrable the process of individual self development and human flourishing among all members of society.

Nevertheless, this qualification—“most people”—is not consistent with Raz’s concept of the common good, which he clearly defines as “conflict-free,” “non-exclusive” and “non-excludable.” Of course, a possibility here is that Raz is simply being overly scrupulous.[8] But what happens if we redefine “the common good” to mean that which coincides with the interests of most people, as opposed to that which coincides with the interests of all of them? Such an approach raises several issues. First off, it is not clear how we should define the term “most.” The majority? Only upstanding citizens? Both seem rather arbitrary. Additionally, it appears that Raz’s calculus of interests becomes even more complicated. When do the costs imposed by a right on a society exceed its benefits? And do the interests of some people weigh more than the interests of others? Moreover, we run into tyranny of the majority-type problems. For instance, what if the interests of most individuals are served by the institution of slavery? Or by the active persecution of minority groups? Or to phrase these worries more generally: what if the interests of the majority are served by limiting the rights of a minority?

But moral qualms notwithstanding, Raz’s view is still able to account for the two features of rights mentioned earlier: namely, that a right must benefit the right holder and that a disproportion may exist between the value of a right and its value for the right-holder. For the moment, let us entertain the possibility that Keegstra has a greater interest in disseminating anti-Semitic propaganda than living in a liberal society. Be that as it may, the decision of R. v. Keegstra demonstrates that the value attached to the right to freedom of expression—at least insofar as the Supreme Court was concerned—results from its ability to realize the interests of most people. In other words, a qualified version of Raz’s view can adequately explain how some rights function in practice. Yet the normative question—whether or not rights ought to function in this manner—is more problematic.

I have described the fundamental contours to Raz’s account of rights: that rights seem to possess two fundamental features, that the value of rights often lies in the benefits they convey to individuals other than the right-holder and that certain rights are tools by which to realize the common good. Moreover, I have shown how this account might be used to analyze an actual case study and how this raises certain moral and epistemic concerns. Nevertheless, there are many questions and issues that I have not had the time to discuss here—for example, Raz’s heavy reliance on philosophical intuitions,[9] or the fact that his view seems unable to furnish clear-cut recommendations for action in particular instances. Nonetheless, my intent throughout has never been to refute Raz’s view. Nor even to rebut it. Rather, I have merely attempted to underscore the complexities and difficulties that are inherent to the topic of rights.


Endnotes:

[1] I treat Raz’s argument insofar as it is articulated in “Rights and Individual Well-Being” (1992). Nonetheless, it should be noted that he offers a more robust exposition of the moral side of his view elsewhere. See, for instance, his book The Morality of Freedom (1986).

[2] She must have at least some interest, for otherwise she could not possess the right (see the first horn).

[3] At least insofar as the common good is truly “conflict-free,” “non-exclusive” and “non-excludable.” But this is a point I will return to later.

[4] Hence, Raz’s view requires some kind of substantive moral theory. However, it is not clear what exactly this theory needs to look like. For instance, his view seems to be compatible with more “relativistic” accounts of ethics, insofar as he defines a “common good” as that “which, in a certain community, serve[s] the interest of people generally.” That is to say, it does not appear that Raz’s theory necessitates that the principles of liberal democracy be “right” in a universal or objective sense—although there is some reason to suspect that this is Raz’s own personal view.

[5] According to Raz, “Rights always justify the existence of duties on (some) others.”

[6] Christine Korsgaard has argued that duties are in fact a necessary condition for all personal freedom (“The Authority of Reflection”).

[7] Of course, this conclusion requires that the common good be entirely “non-exclusive” and “non-excludable.”

[8] Indeed, Raz’s claim that the “politics of the common good […] are relatively free from conflict” sounds more plausible if we construe the common good to mean not that which is the interest of all people, but rather that which is in the interest of a certain critical proportion of people (as ill-defined as this figure might be).

[9] For instance, Raz’s arguments in favour of the two fundamental features of rights almost entirely rest upon intuitions. However, the epistemic role of intuitions is a hotly contested issue within contemporary philosophy. Even if these two features are consistent with our intuitions, does it thereby follow that they are legitimate foundations for analysis? And moreover, who exactly constitutes the “our” in the phrase “our intuitions”? Indeed, recent studies in the burgeoning field of “experimental philosophy” have cast doubt on the universality of many philosophical intuitions. I do not intend to pursue this line of argument here, but it is worth noting the assumptions operative within Raz’s argument.


Works Cited:

  • Bickenbach, J. E. “R. v. Keegstra.” Canadian Cases in the Philosophy of Law. 4th ed. Peterborough: Broadview Press, 2007. Print.
  • Raz, Joseph. “Rights and Individual Well-Being.” Ratio Juris 5.2 (1992): 127-42. Web.

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