Wednesday, February 4, 2009

Wellman Ch. 7

To attempt an answer and the previous post, I’ll posit the following. I don’t think we “issue” rights at all; instead, rights always exist, and we, at some point in time, decide to realize or formalize them. So, I think that women (for example) always had the right to vote, but they were denied the opportunity to exercise their right until it was recognized by the Constitution. It seems odd to me that rights would be something that magically materialize out of nowhere, so I think they would have to be omnipresent. But, I could be completely wrong.

In the last chapter of his book, Wellman moves beyond his attempt to provide a neutral analysis of a variety of arguments, and he begins to state his own positions. In the process, he comments on legal rights, moral rights, and rights discourse. I’m in a state of confusion about some of Wellman’s claims about the legal and moral rights.

First, when assessing the proliferation of legal rights, Wellman chose to center his discussion around the following question: “Has this proliferation of legal rights improved our international and domestic law?” (168). I’m a little confused why he chose this question as the touchstone of his discussion. As we discussed in class, Wellman argued earlier in the book that legal rights should be assessed on procedural grounds; one should try to determine if the right in question is effective when put into practice. Why, I wonder, is this missing from the central question of his analysis of the proliferation of legal rights? I suppose that “effective legal rights” are included in a possible “improvement” to the legal system; at the same time, I wonder on what grounds or by what criteria one can assess a possible “improvement” in the legal system (and, I wonder, if the purpose of a legal right is to improve the legal system at all). It seems to me that we can assess the “improvement” of the legal system based on such normative considerations as efficacy, fairness, and justice, but I don’t think that a proliferation of rights necessarily forces the legal system to improve (or not improve). Am I missing something here?

Regarding moral rights, I was confused about Wellman’s claim that “Because the existence of moral rights is independent both of our moral convictions and of the moral code of any society, it is hard to know if any alleged moral right is genuine. Whether some moral right really exists depends upon whether it has adequate grounds, whether there are moral reasons sufficient to justify its assertion” (172). My question is the following: how can moral rights be independent “of our moral convictions and of the moral code of any society?” If they are independent of these factors, then upon what do they depend? Also, who determines if there are “adequate grounds” for a moral right? What happens if reasonable people disagree about the grounds (or is that even possible)? I hope we have time to discuss this in class on Thursday.

2 comments:

  1. Mike, we have three books to read that will touch on the question you bring up at the end of your post. Not to worry. This question will not be neglected as it is one of the primary ones of the course.

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  2. You bring up some interesting points. Perhaps I can help clarify a little confusion. When talking about legal rights being an improvement to the legal system I think he is taking into account the effectiveness into account when asking whether it is an improvement. My reasoning for this is that when he examines the rights he does bring up how the right has been used and what change has happened sense the rights creation. Thus the reason for not claiming that it needs to be effective as its own criteria is that it falls within the overarching criteria of needing to be an improvement. As far as what counts as an improvement he makes the assertion that we can only really know if the effective legal right is an improvement is whether or not it's grounding is correct. Thus he says we must first make a stance on the proliferation of moral rights before we can then move on to whether or not the proliferation of legal rights has been an improvement.
    When talking about moral rights rights being independent of our moral convictions is the same as your assertion in the begining, if I understood what you were saying. You seemed to say that the rights were not created, they were always there, we just began to recognize them and incorporable them into our understanding of rights. He is not necessarily claiming that rights exist in the natural world. He is merely making an argument that claims that there may be rights which we do not recognize as rights by our moral code or social rules. Kind of like there had once been a time where women were viewed as property and there was no real moral code claiming women were equal to men but now we have found a strong grounding in asserting that women are in fact equal in rights to men. Now the question of what makes adequate grounds and is there disagreement between reasonable people about rights, we have yet to find a way to "prove" the correctness of any moral theory thus there is still strong and lively debate over the issues. All we can hope for is continued discussion on the issue in hopes that theories will continue to be tested and more firmly grounded.

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