One of the things I found interesting in the reading was how much of the things relating to the right to privacy came from the invention of the camera. It seems like the courts didn’t really have a framework to go off of in addressing this new technology, and relied on older legal principles such as property to make their decisions. It seems like this is still a problem as the legal system tries to make decisions about new technologies and their uses. I can understand the rationale for applying principles related to property to the idea of privacy, but it seems to be a bad fit.

I was also surprised by the amount of influence philosophers had on our conceptions of rights. The idea of the isolated man in his natural state seems odd to me. Glendon especially points this out on page 69 where she says that these philosophers never addressed women or the concept of family in their “state of nature”. Given what we know about anthropology, the idea of the isolated man in some natural state seems to just be a myth. Secondly, even if this was the state of nature at some time in the past, it still seems odd that it would have so much influence in a world that is so different. It would seem more beneficial to deal with the current way society works, instead of some mythical version.

Lastly I found the contrast between US and Germany’s approaches to abortion to be very interesting. It puts things into perspective and is a reminder that our views of rights are distinctly American. The idea of absolutism in rights seems even more ineffective given the legal alternatives that have appeared in other countries.

Glendon

"A war over the family is, to a great extent, a war of words, and about words." (121)
I found this passage very interesting. Many view the family as the most private and important part of their lives, yet "the family" enters political and legal discourse all the time. Glendon explains how, through history, the idea of family has been viewed and discussed in society. One of the most interesting examples she notes is one about divorce. Although divorce has been a legal as well as personal choice, Glendon claims that in the recent years divorce has become almost and individual right, one that either party can chose to exercise. "In constitutional law, the image of marriage shifted suddenly from a community of life to an alliance of independant individuals." From this, other ideas about family have shifted as well. People are not finding community, but a loose alliance, with family members. Ofted, one can see that these relations are not interwoven, and as Glendon claims, they are "detachable". Instead of a unit, a family is seen as a sum of parts, or individuals. The "lone rights bearer", as the members have become, is becoming self-interested and focused. Rights talk has entered family structure.
There are many reasons why the family unit is not based on community, but individuals. Many socially accepted relations have changed. Premarital sex is widely accepted, and many individuals form families without legal ties. Further, marriage is considered a union, even if the individuals are not legally bound. Abuse, rape and violence have entered the conversation and that is where the prevasive rights talk has taken place. Unfortunately, the social services and community is not in place to substitute legal means. Many problems could be solved through counseling, and perhaps violence and crimes could be prevented.
There have been claims that children are the center of family and it's place in society. Children have become important in discourse because society sees them as vital for the future, and therefore places the interest and importance on their well being. Although, this leaves out families without children.

"The lack of public discourse regarding responsibility, sociality, and civil society, leaves us to work out our own vision of the kind of people we are and the kind of society we want to become, mainly in terms of the individual, the state, and the market. Our overblown rights rhetoric and our vision of the rights-bearer as an autonomous individual channel our thoughts away from what we have in common and focus them on what separates us." 143
Perhaps that is why there is so much hatred and violence in the world. People are becoming more individualized and forgetting community and relations to eachother. Like Prof. McCrickerd's neighbor said, he has the right to say what ever he wishes. He has that freedom of speech. Even so, his behavior and speech is disgraceful and should not be uttered. Although we are becoming more inwardly focused, there is only so much that individuals can do by themselves. By nature, we are social beings, and I feel that we are going against nature by shifting to inwardly focus and relying on rights as the only means of communication.

Rights #2

Chapter 3 & 4

My understanding of Glendon’s chapter 3 is the creation of the right to privacy. Nowhere in the constitution does it state the right to privacy. However, due to personal values about the right to property and rhetoric of the law, the notion of right to privacy was created. Surprisingly enough, on page 50, the creation of privacy rights started off from the constant gazes of the paparazzi. Two lawyers wrote an article about the right to privacy to the Harvard Law Review. On page 52, there was a quote that caught my attention. “Thought the right to privacy, the right to life had now blossomed into ‘the right to enjoy life,-the right to be let alone.’” It is reasonable to understand the moment to right to property was created; also gave creation of a personal sphere. Thus, when the land and the walls of a house are gone, all that is left is the “invisible sphere” (52). In a sense, the right to privacy is a narrow concept of the right to property. Nevertheless, the right of privacy wasn’t recognized until the landmark case of Roe v. Wade, where the right to life meant the right to privacy to either gave birth or not.
In chapter 4, responsibility comes into play in right. It was surprise, but it should been obvious to me, that legal rights do not creates duties, only protection and claims. I found the example of the swimmer and the baby to be interesting and clever, at the same time horrible (78). Yet, there is nothing in the law or the constitution that mentions anything about duty to another. This, then, make me understand clearly about the difference between the legal rights and moral right. With moral rights, a person has a right to something; at the same time creates a duty to another that s/he ought to do or not do. Legal rights, to me, only seem to specific and offer protection and justification about claim to something. Nevertheless, it is reasonable to understand that these to concepts could be misunderstood as the same, since there are both “rights.”

Chapter 4

I like that Glendon restates in a different way this time the fact the America is set up on the value of property rights. Which in turn makes us have our legal rights to privacy. How man gives up thing according to Lock to become part of society. Which means he then need individual rights. And the first time this actually became an issue in America was the invention of photography, I found this part really fascinating. I have taken sociology and I have talked about deviants before, and how someone is not a deviant until a person gets caught in the act of doing something deviant; that’s what it reminded me of while reading it. That before the invention of the camera, people really had a lot less documented evidence against another person. The need for personal space to be put into law was never apparent until the need for it came.

Glendon on responsibiltiy

I think Glendon sticks to the most important part of her argument in chapters three and four. To reiterate: Glendon is not critiquing the concept of rights as a whole, nor is she denying the ability of rights to play an important role in politics or political discourse. She is criticizing what she sees, primarily, is an American obsession with and over reliance on rights/rights discourse. Moreover, the instances in which rights are invoked most absolutely are when it is to the advantage of those with an upper hand in the legal system. To me, this is why property rights have been defended most staunchly and, as she addresses some in the Lone Rights-Bearer, rights of homosexuals to privacy/sexual freedom are ignored (60).

The most important lesson in this is--and something Glendon has clearly laid out in every chapter thus far--is that we would have to stretch pretty far to make any claim that the rights our country has established are natural in any sense. We have arrived at them through very particular historical processes and they can be changed based on particular social moods and conditions. This should serve both as a wake up call and a warning not to approach legal codes with dogmatism.

I particularly like her focus in chapter four. As citizens, if we want something done we should not let everything work through the courts but instead channel energy into democratic politics and get laws changed. Why do we need to have a right to be saved by Michael Phelps? Good Samaritan laws (as far as I remember) have improved since 1990 but they are not perfect. There are ways to fix the problem without resorting to rights claims, our default move when law fails to align with moral intuition.

I think a point Mackie makes (although with different intention) is telling here. Rights are attractive; duties are just plain ugly. Who wants to live their life in servitude? Glendon, with America as a case study, presents a significant disadvantage to the acceptance of a rights-based moral theory. As I noted in my last post, Raz might find a good ally in Glendon.

“We have met the enemy and they is us.”

As she talks about the controversy of abortion and how the two sides are deadlocked, both fighting for their rights, pro-life side are claiming right to life and pro-choice are standing on the woman’s right to privacy. Neither side is moving nor is much progress being made with respect finding common ground, because as she points out it is an “all-or-nothing contest.”(64).

She states, “The exceptional solitariness of the American rights-bearer is but one aspect of the hyper individualism that pervades our American rights dialect.” The way our laws and rights are set up and given to us, is one of the biggest reasons why political discourse is impoverished. Duty in our laws is nearly obsolete. I found it interesting that when she asked the question of “Should there be a legal duty to come to the aid of another in peril?” and she gave the incident of the Olympic swimmer and the two year old, then talked about first year law students who were challenged to come up with a theory, only to be taught that there was nowhere in our legal system to impose such a duty. And that the only way to impose a duty is to tie it to a special relationship from one individual to another or link a responsibility to one individual.

One of the most interesting points she made was when she was talking about how other countries have used our constitution as an example to create theirs, and have successfully added in a duty concept amongst the citizens. While Americans lack the concept of duty and grasp the rights as absolute.

Finally, she talks about family structures and social institutions. “Like Property, Family has now become a pigeonhole into which lawyers try to fit all sorts of relationships even as the category itself is crumbling.”(124) perhaps this is one contributing factor to rising deficient family life. She makes the point about how healthy families enable individuals to reach their full potential, the debate then is what a healthy family consists of and how to go about creating and promoting healthy families, both the right and left have different views on family structure. The Kauai project was also very interesting.

One thing I do disagree with however and im not sure if she is supporting this or not, maybe just stating a theory, is “The current generation might be no more or less self-centered or politically apathetic than their parents once were.”(128) I would say in our day and age, with the family structure breaking down, the increasing influence the media has on the young and old alike, and the young growing up in an age where the proliferation of rights movement is in full throttle, this generation is more self-centered and less politically engaged than any previous generation.

Glendon

In chapter three, I saw that Glendon was taking a particular right, the right to be let alone, and how she related it to different legal cases. The different cases brought up different interpretations as to what that statement/right means. She shows how during different periods of time, the right to be let alone was interpreted many different ways; interestingly enough it was first known as the right to life. How can the right to life be changed to the right to be let alone? I don't understand how she can see that the right to life can mean that. She uses different examples from how the Supreme Court's decision in different cases have supported the understanding of the right to life. The main argument was by Warren and Brandeis who went fishing for information about how it was actually the "inviolate personality" that was actually being protected (51).

The main question I have is how she got from the right to life all the way to the right to be let alone. I thought I understood the argument but if I don't understand the connection I don't think I can really understand the argument.

I thought the argument between individual rights and collective rights to be interesting the these chapters. When she re-looks at the flag burning issue she draws the distinction between the flag burners making an appeal to individual rights while those against it tend to make a claim to societal norms and standards that ought to be respected. This creates an interesting ethical delima of what importance should be put on societal norms versus what we ought to be allowed to do based on a claim to individual rights. What struck me as most interesting about this argument is how it is typically handled in American society. What she claims happens is that groups that are claiming a right or an obligation tend to be viewed as a large group of individuals who are united in the pursuit of some individual goal rather than as a group pursuing a collective goal. This way of viewing the problem Glendon says shapes our way of how we view the arguments groups make on issues insofar as we tend to view claims to individual rights aas being more rational and logical while claims to collective rights or duties we tend to try and break them down to an individualistic level and thus find the arguement to be less logical and rational.

Glendon

I really like Glendon’s use of law to back up her argument in these chapters. Particularly, I thought her analysis of tort law and responsibility (especially when she was drawing from legal textbooks) to be particularly interesting. Also, one of her larger points—that we freely exert rights to structure our relationships with others in our communities without stopping to ponder (or to accept) responsibility to others—to be something that has broader and equally interesting applications in our everyday lives.

But, I digress. I’m wondering (and this might be quite a stretch) what Glendon would have to say about the trolley problem. In particular, she seems to assert that individuals do not usually care about others. So, I’m left with two questions. First, what would Glendon say that Boggs (as a typical American) would think about any potential duty he had to flip the switch? Second, what would Glendon say Boggs should think about any potential duty that he had to flip the switch? This might be outside the bounds of what we’re talking about, but I see some connection between the idea that Boggs is flipping the switch to help others (in other words, to help them by saving their lives) and Glendon’s arguments about Americans’ lack of felt responsibility toward others.

Glendon

I found the legion guy pretty funny, that he was upset that people were burning the flag and got asked what the flag symbolized to him. And his answer was the same reason why the people could burn the flag in the first place. Glendon was pointing out the major misconception we as Americans have about rights. And she also points out the miss conception people have about what living in America and being proud of America means as well. People in the book were saying that they were proud to live in America because it was a place where they do what they pleased, unlike other places.

RIghts

When I read Gleann’s chapters 1 and 2, I get the overall picture that in America, people tend to misuse or misunderstand the concept of rights. I also get the fact that people use rhetoric to justify a right. When they said something like, this is my right; I have a right to property therefore this is my property and I can do what I want with it. This, according to Gleann, is a sign of people claim a right that is absolute and that nothing can infringe, even for the greater good of the public or majority. Therefore, people act in a greedy, irrational, uncivilized, and selfish way to gain some power over, at least, some property. I want to call it “personalization,” where a person tries to claim that something that belongs to them and nothing can take it away. John Locke claims that the right to property is a God-given right. Therefore, it is natural for man to own land, which he works hard with his hands. However, it would seems, and Gleann pointed this out too, that nothing in the constitution mentions anything about rights to property, except for in the 14th amendment. However, the 14th amendment only mentions that state cannot deprive people of property without just compensation. It mention nothing about owning property, however makes room for eminent domain.

Glendon 1 & 2

One of her first examples she gives is Mr. Sokolow’s story. How he fought for his absolute right because it was his castle (a rented castle). It is interesting to me that this absolute notion of rights concerning property has carried over to rented property as well. I am not sure nowadays one could get away with that, probably depends on the lease; but then again even in his contract it said that one could not make disturbing noises. Even though his kids were the one’s making the noise, he was responsible for his kids and I found it very interesting that the judge favored him in the case.

I agree with Ernie, as he has pointed out, that Glendon says that rights talk merely avoids reasonable conversation to come to the best solution. If one is stubborn and feels they have this absolute right to their property, they will fight it until the bitter end. I remember about five years ago, back when I was living in Aberdeen, the state wanted to put in a four lane highway (expressway) from Aberdeen to I-29, about 75 miles. The construction of this road would go through many land owners property (farmland), and the state ended up paying them a lot of money because they fought it until the bitter end. My assumption is that they felt they owned their land and they did not want to give it up, even though it would be better for the whole of society. Obviously this kind of stuff happens all the time, but makes the point Glendon is making.
Another interesting point she makes, a quite good one too, is that no one can be an absolutists for all our constitutional rights. How then, does one chose or can one chose between what they want to be absolutists for? She says “Because taking any one of them as far as it can go soon brings it into conflict with others.” One would think this alone would bring an end to absolutism.

Does it really take a war to make drastic changes? She points out that after both WWII and the French and American revolutions; we experienced drastic changes considering rights. Why were these two of the biggest movements? I realize she isn’t asking this nor answering this question, but just food for thought.

Glendon continues a theme we found in Wellman. One might think, "what is the harm of having too many rights? Sure, some of them might be superfluous. Why not err on the side of caution?" The first problem is absolutism, as shown in chapter two. Rights are not absolute, and it would be difficult to argue that a lot of rights we have are objectively and unchallengeable. Private property is a great example--a long time ago it was written about as if it was a natural, god given right; now, its taken for granted by everyone and leads to disastrous consequences. Of course, the way that rights can be manipulated allows certain rights to be more objective and concrete for certain people.

This is hinted at in chapter one (and perhaps is discussed in more detail later) but rights tend to prevent discussion. Instead of reasoning out what might be the best or most fair result, we default to rights language without having an actual discussion. This problem is demonstrated when Glendon discusses gives the example of people reaching for rights alanguage when backed into a corner.

I think this article goes very well with Raz's. Raz talks about the limited ability for a rights language to capture everything we want with morality. Glendon discusses how rights tend to prevent real discussion and give us everything we need in terms of...well, what is right. Neither wants to throw rights out the window; it seems, to the contrary, that both want rights to play their role as part of a larger system. I'll be interested in seeing what sort of vision Glendon has at the end of the book.

As a note, I find it repugnant the extent to which we associate private property and liberty.

the value of rights

What really struck me as interesting was the short example of our rhetoric during the naturalization process as opposed to the Canadian process. Our naturalization process is about being granted the right to exercise our unalienable rights and talking about the rights which one now holds. In Canada there is some rights talk abut the biggest concern for them is more about getting along with those you live around and being involved in the country. When I think about it I am not shocked at all that ours is more about rights than other peoples are because as the author pointed out and i am sure most of us have noticed we talk about what rights we have and don't have pretty much every chance we get. It just struck me as odd how other countries that I always take to be so similar in ideology to the USA would have what would seem to be a very different set of values they hold most important.

Glendon

I found Glendon to be a much faster read than anything else we’ve read this semester; at the same time, I really like how she frames rights discourse as part of a larger scheme of individual versus collective and entitlements versus obligations. Those descriptors make intuitive sense to me, so I liked them. However, I suspect that I will continue to like the arguments that she is making as well. With that said, I wonder how she would respond to the concept of solidarity rights that we briefly discussed in Wellman. Would she argue that solidarity rights discourse is equally damaging because it still creates an ingroup and an outgroup, or would she have something different to say about the concept?


I really appreciated Glendon’s extensive discussion of the takings clause. It seems to me that she sets up a paradox dealing with the takings clause. Through writers like Locke and Blackstone, early Americans valued the right to public property as an (almost) absolute right; both writers argued that individuals have nearly exclusive control over their own personal property. In this sense, it seems that private interest in property has the power to trump any common good or community interest in the property. On the other hand, the Constitutional texts that Americans wrote, selected, and popularly ratified as a foundation for their government contains an exclusive exception for government usurpation of individual private property rights. And, she notes that the takings clause was used often in early America. I had read Locke and Blackstone as well as most of the Supreme Court cases that she cited before I read Glendon, but I had never put the puzzle together like that. The way in which she frames the takings clause makes that portion of the Constitution deeply contradictory to me now. I really liked this portion of her argument.

Trolley

For me, the Trolley problem draws many parallels to the argument Gewirth made in our earlier reading. Both propositions can be said to rest on the proposition of fate, in that the person controlling the switch is not the ultimate cause of the entire scenario in either Gewirth's or Thomson's example. However, the person making the decision must take into account certain values. This is where Gewirth and Thomson differ, as Thomson does not have to content with ideas of loyalty-only with the value of life (which seems funny to say "only with," as life is of utmost importance). For Thomson, it seems there is an intent on providing an explanation of why one can morally and rationally choose to kill one person and save the five when, in other situations, killing one person for five seems wrong. Although the arguments that Thomson makes are interesting, it seems fishy that she is unable to base her argument on a more pertinent example. In other words, it seems odd that she admits her scenario contradicts the norm (in that her example could be an exception to killing one to save five is wrong) but she still uses that oddity to prove her larger points. Maybe this is just a matter of taste, but concepts seem better understood/applied if not only confined to limited examples of a rare nature--being able to apply the principles elsewhere is necessary (Thomson claims she is dealing with just a group, the amount of lives lost within that group, and how that affects the dynamic of flipping a switch-how else can that be applied?) However, Thomson's arguments were cohesive enough in their arrangement and delivery, although there was lacking clarity towards the end of Chapter 7....

Trolley is a problem

Trolley problem is a problem

I, first, have to say that the Trolley Problem is a serious problem. It is easy to say that, through a Utilitarian’s perceptive that, one should die for the safety of five people. However, I would have to agree that problem is too broad and there’s not enough information to make a good or good enough decision. Obviously, if we know the circumstance of the 5 people and the one person; we can, at least, weigh the facts of the people. Then again, life never gives us all of the facts in a sliver planter.
The idea of consent also comes into play in this problem. However, it is hard to ask for consent from either the five people or one person, act exact moment of the incident. Surely, without asking, there is consent to be saved because (1) life is valuable and desiring and (2) there is no reason or truth to believe that person would not want to be saved. Yet, this applies to both the 5 people and the one person.
So what is the right answer to this problem? Quite frankly, I glad that Judith Thomson did not answer the problem because either way, someone is going to die. The person is charge of changing the course of the trolley was put in a situation where that person would and could be consider a murder. However, a decision has to be made and I have notice that in any decision, there’s always going to be something good or bad out of it, in some degree.

I think it is interesting that Thompson does not defend that on argument is underdeveloped here (perhaps because it is dealt with earlier one is morally required to pull the lever. What is the "Central Utilitarian Idea" she references on 196? Is this something from the chapter we read that I'm forgetting or something farther back? Why is believing that this matter should be left to fate a way around the problem? Wouldn't his miraculously being in a position to hit the lever be just as much a part of fate as the other considerations? I feel like her).

I, like Mike, got last over the last four pages or so and would really like to go over this as a group. I am also unsure what she means by "deflection" on page 180.

A primary distinction, Thompson claims, between trolley and transplant is that there is no way we could ever get people to consent in the instance of transplant--one's health is a matter of choice, so this would create what she deems moral hazard. Plus, she notes, there is never a time when we do not know what our health is. First, could a system like Rawls veil of ignorance be informative here? Couldn't we project the necessary conditions to come to a rational decision about actions? In this sense, there could be some way in which the transplant is analogous to the trolley. Of course, Thompson goes on to not emphasize hypothetical consent, so it doesn't matter all too much.

I think I understand her claim about "whatever it is about them in virtue of which they would consent" but I'd like to go over this too.

Trolley Problem

I think I followed Thomson fairly well until the revised the tradeoff idea at the end of the article, and then I had more difficulty following her, so hopefully we can talk through it in class (and, more likely, when I go back and reread it, it will make more sense too).

I particularly liked the distinction she drew between the fact that Bloggs may flip the switch, but he isn’t required to do so. The entire time I was reading the chapter, a little voice in the back of my head was saying “What about fate? What about fate?” So, I was pleased to find that she had incorporated a brief discussion of fate into the larger argument. I’m not necessarily persuaded by the fate idea; it, for some reason, just kept popping up in the back of my head. In the end, I found that Thomson’s distinction matched what I was thinking throughout the article—Bloggs may, but it is not necessary for him to do so.

One area of confusion that I had was her discussion of the personal characteristics of the victims on the top of 180. She said that it is important to examine the personal characteristics of the victims to determine if Bloggs can flip the switch. I’m confused as to her reasoning why we must take those personal characteristics into account. Of course, her examples with the gardeners, workmen, and beam fitters provide examples of how the personal characteristics could be useful when trying to determine whether or not the switch could be flipped, but I don’t understand why we are required to do so.

Tradeoffs

Is it that tradeoffs are ok as long as there is a greater good coming out of doing the trade off? And I don’t quite understand what High-Threshold Thesis is, it has something to do will millions or billions of people dyeing and may cause me to have fear but I guess I don’t understand what it is.

The Realm of Rights - Thomson

Wow, Thomson is awesome! There are so many things she covered in her article, all of which I found beneficial to guiding my thoughts about rights - specifically, all of the complications and examples that she mentioned and articulated so well.

I am a little confused on the good v. value distinction, as well, Ernie. Initially, when she states that value is irrelevant and that "we are to be asking only how good it is for those who would be affected by the acts if the acts do or do not take place or, alternatively, how bad it is for them if the acts do or do not take place" (151), I was unsure as to how 'good' or 'bad' can be determined without putting value on them? Then, when reading further, I think what she means by saying that value is irrelevant is when she states, "The Tradeoff Idea in particular is to be understood to say that what matters is not how good those affected by a claim infringement would feel, not how good they think the claim infringement would be for them, but rather how good it really would be for them" (152). So, we should look at the 'good' or 'bad' objectively instead of subjectively by putting value on the terms. How we should look at 'good' or 'bad' objectively, though, I'm still not sure I understand. However, my favorite sentence of her piece, by far, is the following: "The answer is that there is no answer" (153). I like how she humbly admits that she certainly does not have all of the answers, she can only guide us through her thought process, because if one thing is clear, it is that coherently justifying and articulating rights is difficult.

The most important thing I took away from this chapter is that, "...a theory of rights cannot be expected to supply a nonvague general formula by means of which it can be decided, quite generally, when it is permissible to infringe a claim" (165). Well said!

Tradeoffs

I don't have a lot substantive to say about this article right now, but I did have one comment. I just wanted to say I think her strategy is really smart. Defending positions like this is really difficult--after all, she notes, much of it goes against our general intuitions. So, she starts by laying out her premises. Then, one by one, she goes through and adds in objections/complications, while always being able to fall back on the premises that she has talked us into believing. The premises all are rather simple, reasonable things to believe. I learned something about this topic area, but more importantly, I learned something about writing and methods of philosophical/argumentative persuasion.

Oh, one thing though--why does she make such a big deal about the difference between a "good" and a "value?" Why does this matter to her argument? Is it just to point out the difference between subjectivity and objectivity?

I'm looking forward to discussing this.

Trade-offs

The article is trying to figure out the best way that the Tradeoff Idea would be applicable; the tradeoff idea is if infringing a claim is better for those whose claim would be infringed or not infringing if the claim is better for those whose claim is not infringed. For example, if A was to do an act c on B, it would be permissible if and only if infringing it would be better for B. This is the main topic that Thomson reiterates with different circumstances; with each new circumstance becomes new additions or subtractions to the Tradeoff idea. This article, to my understanding, seems to just be talking about how the Tradeoff idea will work between claim rights. THe problem is that, I had a difficult time understanding the outcome of the idea. I am not sure exactly if this is what Thomson was talking about, therefore, if we could talk about what exactly the point of this article is, I think that would help me better understand Thomson's point.

Raz

And another one...



So Raz is arguing against Mackie and saying there is no way that moral theory can be based on rights becauses it fails to included all that we consider to be moral, such as, what we "ought" to be doing, supererogatious acts, and virtuous pursuit of excellence (185). He tells us that in rights based theory there is no room for the intrinsic value of a collective good and that it's focus is clearly individualistic and leads to real moral loss (186). When reading this I was wondering if he is linking rights and duties to closely. He explains that it's based on benefit but couldn't a right's benefit be that we have no duty to do something that we have the right to make that choice? For example, I have a right to an abortion but I also have a right not to have one. To me the later seems to have no duty attached. Maybe I'm mistaken...

Mackie

In this article Mackie takes a new approch to moral theory and claims that, not duties or goals, but rights are the correct way to talk about moral theory. Rights considers the individual's wants first as a part of the collective and not just the collective, or societies, wants that often scilence certian individuals. I thought that this was a good arguement it seems that he is defending utilitarianism in a way by saying that ulitity still has the potential to be maximized but on an individual basis. He says that a critque might be that his theory is to individualistic but that it's o.k. because individuals are the primary bearers of rights. This totally makes sense it seems that in other things that we have read that theories steered clear of talking about rights as an individual thing but maybe we should. I think this may support the point of the last article in that if rights were individulized the minority would have just as much say so and just as many rights as the majority and that is truely moral.

how can we rank rights?

What we seem to be dealing with is the issue of what to do when our duties/rights seem to be in conflict. In this chapter we examine, at least most closely, the example of what ought to be done in the case of the doctor who can kill one young boy to save 5 lives by transplanting his organs. The issue breaks into several different issues. We first end up trying to establish whether or not the patiants have a claim that the doctor save them and also what claim the young man has. The essay then looks at things like how equal do we see these claims if we agree that both have some form of claim over the doctor. What I took from this section is that the patients have a claim that the doctor has a duty to try and save them while the patient has a claim that the doctor not kill him. Both have severe enough consequences when violated that it is not an likely that someone would say there is an obvious(or at least seemingly obvious) solution. However, some might say that the difference between killing and saving are such that these are not equal either thus it is not merely a coin toss about what one is better. This clarifies his main issue in establishing a higherarchy of rights as being no simple matter. He argues that if it is based on the good which comes out of it then how do we know how much good allows for violating a right and how we measure such things and this is after we have established an agreement on what rights people can legitimately claim.

Trumps

O-Kay so first of all I want to say sorry I've missed you all in class. My daughter was sick last week and I came to school for class on Tuesday and got sick before I got there (I'll spare the details). Anyways I have been reading so I would like to post my thoughts sorry if thier late it;s catch-up time!

So rights as trump... I liked this article I had posted before I read it that the title made me think of a card game that's because I am a fan of the game spades, where spades are trump. So while I was reading this I kept thinking that the concepts were similar. I believe what he wsa saying that in order to make utilitarianism work with rights we have to think of rights as trump. The reason he gives is that by doing this we will include not only the majority but the minority opinion as well. Which totally made since to me because I've always believed that rights should extend to everyone but like we have seen through out history, like with his nazi example, that they have not. However, thinking of rights as a trump changes this it includes the minority, perfect. When you play the game of spades you follow suit, in fact you have to play in suit if you have it but once they run out, bam, you hit them with the trump and that's how you take books, that's how you win the game. Maybe my thinking is a little abstract but this is how I pictured this theory.

I'll be back soon with more...

Raz

Raz’s purpose is to prove morality is not right based. Pg.183 “A persons interest is a sufficient reason for holding some other persons to be under a duty.” Pg. 184 “The common view is that one ought to do that which one has a duty to do but that one does not always have a duty to do that which one ought.”

Right-Based Moralities - Raz

I understand Raz's argument about right-based moralities being "impoverished." The second part of the argument, about why such impoverishment leads to moral loss, was a little less clear for me, but what I took away from it is what he states on page 195, "There are fundamental moral duties which do not derive solely from the rights and interests of their potential beneficiaries or which have no potential beneficiaries at all." A rights based approach is not enough to cover our notions of morality. There are things which we hold intrinsically valuable for which a rights-based approach cannot account.

I think the overall argument is that if we believe that collective goods are valuable in themselves, then "it is to be expected that they provide the source both of personal goals and of obligations to others" (200). I understand that as saying that we need more than one approach if we want to cover not only individualistic values but also collective ones, which is what I've been thinking all along by saying that just because one theory may not necessarily account for our notions of morality or moral rights, it should not discourage us because as long as we are able to articulate the legitimacy of moral rights, singling out which theory is more important may not be as big of a concern.

Raz

Overall I think I grasp the article fairly well with the exception of a few areas. One thing which I am a bit confused on is the whole idea of humanism and how he is using it. I understand that his view on right-based moralities is missing something, like Ernie points out, so he is putting forth a pluralistic view by which morality should be founded on? Morality should be founded on fundamental principles and one of these fundamental principles is humanism. So is he suggesting that humanism is founded on rights? And how does he use the word humanism?

I understand most of his argument concerning that right-based moral theories are impoverished; most use ought and duty interchangeably, don’t allow for supererogation (beyond the call of duty), and cannot allow intrinsic moral value or virtue and the pursuit of excellence. Then he goes on to talk about how right-based moral theories have a real moral loss, by being individualistic, how is he using individualistic humanism? And goes onto to say that individualistic moralities say that collective goods have instrumental value only, is this where he proves that humanism cannot be individualistic because of the fact that they can allow for collective goods to have intrinsic value, such as art and art being a public good enriches the lives intrinsically?

Right-Based Moralities

I really like this article because after Raz makes a point, he explains himself afterwards to make sure that I understood it the way he was trying to say it. In the beginning he talks about what other philosophers have said about rights and duties; focusing a lot on Dworkin. He then goes on to prove "right-based moralities are impoverished moral theories and are unlikely to provide adequate foundation for an acceptable humanistic morality" (183). I understand this to mean that right based moralities do not provide enough to be an acceptable morality as defined by humanists. He says that the way rights are perceived by utilitarians are very individualistic even though they might be trying to steer clear from that. He gives three examples as to why right-based moralities can be impoverished; 1) he shows the difference between what one ought to do and what one's duty is; 2) that they don't allow the moral significance of supererogation (beyond requirements of duties); 3) they can't allow intrinsic moral value (184-185). After that he begins to describe what he thinks is the best way to understand right-based moralities.
This is about all the farther that I got; I will try to finish the rest an bring questions to class tomorrow morning.

Raz

I found it important to recognize that Raz is making a very particular claim in this article: it isn't that rights can't be apart of morality, but that a moral theory can't be based entirely in rights. The quote Mike provides below summarizes this well.

Overall, Raz seems to be arguing that something is missing when we reduce morality to the language of rights. It can only be, as he notes on 198, "morality in the narrow sense." It fails to take account of what Raz calls the "art of life;" it cannot take account of the fact that sometimes we ought to do something even if we aren't obligated to. I feel like Raz doesn't develop this claim all that well, but instead shows how his argument alligns with our moral intuitions. And it does. The advantage of his theory is that it better explains what we mean when we talk about something moral. Of course, he does advance arguments for rejecting a pure rights based theory--most clearly when he discusses collective goods. This argument makes argumentative sense, but isn't quite as appealing as his claim that a rights theory is severely diminished. These arguments are probably less separate than I am treating them to be.

To be honest, I'm not sure I fully understand his argument about why we ought not destroy the painting. I'm also confused about the gay marriage argument on 192/3. At what point has society provided enough acceptable life options under a theory that takes this to be necessary? I also got lost on his description of different collective goods on 188, but I have some understanding of his conclusion on this issue--either that means its not important for our purposes or I didn't actually understand the conclusion.

Raz

Since we spent so much time in class last Wednesday discussing and unpacking the differences between goal-based, rights-based, and duty-based theories of morality, I was especially interested in how Raz handled this issue. Instead of arguing against the theory of a rights-based morality by positing a goal-based or duty-based theory of morality, he posits another type of morality, arguing that “among its fundamental precepts are to be found values, rights, and duties” (183). This “pluralistic” morality system seems, at least on its face, to be some type of hybrid between the three systems we discussed in class. The question I’m left with is this: is Raz’s pluralistic system something completely new, or is simply a hybrid system? Is the pluralistic system really something new, or is it simply something constructed by Raz as a means to further his argument?

We’ve also talked in class a few times about the argument that rights-based theories are inherently individualistic. I really appreciated what Raz had to contribute to the debate. As we said in class last week, much of our conversation in this arena has been tied back to Wellman’s conception of solidarity rights at the beginning of the semester. Raz offers a very different treatment of collectivity in his defense of a pluralistic morality system. Still, I’m having trouble tying the distinctions he draws between instrumental and inherent goods back to the broader argument that he is making about collectivity. How do the two relate?

Prima Faecis...or however you spell it...

My understanding of these prima facie rights are that they are the end point, and that we get there from understanding duty and working out conflicts. I don't see how, if prima facie are the end rights, that there won't be any conflicts. After all, if we called the right to life a prima facie, that's still being challenged, and the challenges that it has been facing over the years haven't diminished. How can we rise to the prima facie? They seem out of reach.

Right-Based Moral Theory

The idea of a right-based moral theory makes sense to me because I never thought of a goal-based moral theory as even plausible, and while a duty-based theory seems conceivable, there are many problems, as Mackie points out. There is something special about having the status of a right. It is complicated, however, when talking about moral rights, because "we are not looking for objective truth or reality in a moral system" (171). Where do these moral rights stem from then? "Moral entities" are "within human thinking and practice" (171). But this thinking and practice is varied and diverse. Perhaps there's not an umbrella moral theory that can cover such diversity? Mackie recognizes the diversity in arguing for a right of persons to choose how they shall live. This reminds me of the third-generation right to self-determination, except on an individual level. Mackie admits that the theory is individualistic, in one sense. I have a general understanding of his argument, but not a clear one, yet.

Right-based Moral Theory-Mackie

For the most part, I understood her argument. The part I got confused on was when she was talking about the well-being of one person shouldn't be given up for the well-being of others (172). I understood it as if B, C, and D are happy based on separate experiences that takes away from the well-being of A, that the happiness of B, C, and D should continue regardless of A. Is this where she says that this idea is wrong and embarassing to utilitarianism and her argument about right-based moral theory? I understood it as it is wrong to violate the well-being of one person even though the 'majority' are happy. I am not sure if this is right or if I am understanding it correctly. Other than that, this article was difficult but understandable. She sets the article up by explaining how other philosophers have talked about rights; then goes into ideas that don't work; then follows up with the explanation that does, I think.

Mackie

Overall, I enjoyed Mackie’s argument, and I’m interested in seeing the other side for Tuesday. With that in mind, I think I’m missing a big piece of the larger puzzle he is trying to construct. He says: “When we think it out, therefore, we see that not only can there be a right-based moral theory, there cannot be an acceptable moral theory that is not right-based” (176). After reading his lengthy critique of utilitarianism, I think I have a decent grasp on the first part of the statement (that such a theory can exist), but I’m not sure how he makes the leap to the second clause; in other words, why must an acceptable moral theory be rights-based?

Second, his fundamental right (the “right to certain opportunities of living”) is, in his own words, “somewhat indeterminate” (178). My issue with this right is the opposite of the problem I had with Gewirth’s right of a mother not to be tortured by her son. While I thought Gewirth’s right was too specific, I feel that Mackie’s is too generic. While I agree that such a right does exist, I’m thinking that such a right is so broad that it may lack any substance; if it lacks substance, I’m wondering what real purpose it would serve. In other words, I’m wondering what “certain opportunities” means (and who defines what those opportunities are). I understand that he says that such a theory has not been fully explored, but I feel that, by making such a generic fundamental right, he may be setting up a straw man argument. After all, in the absence of a firm definition of “certain opportunities,” I think it may be hard to deny the existence of such a universal right (or, on the contrary, maybe that just means that Mackie did a good job).

Rights based moral theory?

Mackie claims that "in general, people do not and cannot make an overall choice of a total plan of life" (pg 175). Moreover, "there cannot be an acceptable moral theory that is not right-based". (pg 176). From these two premises Mackie contends that the fundamental right in which other rights are based off of is the right of "persons progressively to choose how they shall live" (pg 176). Ideally this right does not sound that bad. However, after speculation one realizes that a person's choice of how to live interferes with the choices of others. In theory, to combat this problem Mackie offers up a version of an inverse square law saying, "a right decreases in weight with the remoteness of the matter on which it bears from the person whose right it is" (pg 177). Again, when trying to apply this things can get messy. Mackie even acknowledges in the postscript that "we may have to tell a busybody that something is not as vital to him, from the point of view of his moral theory, as he thinks it is" (pg 181). Nevertheless, Mackie has many questions left unanswered about the implications of his theory. To combat these Mackie simply states that "what I have offered is not an algorithm or decision procedure, but only, as I said, a model, an indication of a framework of ideas within which the discussion of actual specific issues might go on" (pg179). Lastly, what I found interesting was a distinction that Mackie made at the end of the reading regarding moral theory saying "it does not seem to me to be a reasonable requirement for a moral theory that it should, even when fully developed, be able to resolve all conflicts" (pg 181). I think in class we really have not considered this a possibility, that a moral theory is not required to resolve all conflicts. It seemed to me that we were looking for a perfect theory. Mackie contends that this is not necessary. I understand how this can help in terms of applying a theory, but should we be so laid back about judging our moral theories?

Mackie

Morality so far as we understnad it might conceivably be thus based on divine commands, and therefore have, for us, a duty-based form; but if we reject this mythology abd see morality as a human product we cannot intelligibly take duties as its starting-point. (171)
I found this very interesting, especially his choice of the word "mythology". It seems to me that he is calling this divine thinking nonsense. My confusion lies in the end of the statement. Why does a human invented theory of moraliy not account for duties, or them as a starting point? Perhaps I have misunderstood so far, but one can have rights or duties as premises, and there are duties or rights that follow, respectively. Why does the creating matter in this case?

I also found the passage on the bottom of 174 and top of 175, when Mackie talks about individualism and the members of A and B. He claims that those who are more co-operative, less quarrelsome and more successfull will do better in the group. Why shouldn't they? He further explains that some inequalities are indeed justified. For some reason, this example reminded me of Social Darwinism....

Further on that page, Mackie's views align with Dworkin. The homosexuality example came to mind when he says: "People differ radically about the kinds of life they choose to pursue...based on such comparative evaluations." (175) He ties this into his larger arguement that people have a right to "progressively choose how they shall live". It is their fundamental freedom.

I will try to re-read this, because I am not understanding all of it.

Memory--

I remembered my problem with Mr. Dworkin. It's that I couldn't see how his examples would work in real time, in the world today.

While Mike enjoyed Dworkin's conceptualization of rights as trumps, I did not. I thought that the analogy was easy enough to understand and not unreasonable to make, but it didn't line up in significant ways. It almost seemed as though Dworkin was using these rights as trumps as a check and balance system against unrestricted utilitarianism, which is certainly a different interpretation of rights than has been presented in class as yet.

In card games, trump is the ultimate play, the one which brokers no argument. I think that to refer to rights as trumps is to give them more power and importance than they would have, especially in a standard utilitarian system like the one Dworkin envisions. Rights are more like the rules of the game, agreed upon and followed for the most part. The exceptions to rights or rules, assuming that the rights are not absolute, would then be the trump card, effectively making the normal rules no longer apply.

"Rights as Trumps" - Dworkin

Mike, I agree, this was an enjoyable, more understanding read for me, as well.

Here is how I break his argument down, in particular with the Nazi example: Dworkin states that the "most fundamental tenet" of utilitarianism, is "that people's preferences should be weighed on an equal basis in the same scales" (156). [Because of that fundamental tenet of the theory itself, the goal of utilitarianism, in consistency with its appeal to egalitarianism, then is to not have some people's preferences count for more than other people's preferences.] On the next page, he goes on to say in the second paragraph that utilitarianism cannot simultaneously accept (1)not agreeing with the idea that some people's preferences should count for more than other people's; while (2)fulfilling the political preferences of those who accept that some people's preferences should count for more than other people's. Because it cannot accommodate number 2 above while at the same time fulfilling the fundamental tenet of the theory in number 1 above, it cannot agree with Nazi political preferences, which rest on the belief that some people's (i.e. Aryans') preferences should count for more than other people's (i.e. Jews). Because if it were to agree with Nazi's, it would disagree with its fundamental tenet of egalitarianism.

With this understanding, I can see, then, Erma why you would be struggling with Dworkin's defense of the claim that utilitarians need not or should not take all preferences into account. He defends this by arguing that this sort of restriction on certain preferences can be achieved by (1) adopting a right to political independence and (2) adopting a right to moral independence. The way that he defines each is essential to the theory's egalitarian consistency. Political independence is defined as "the right that no one suffer disadvantage in the distribution of goods or opportunities on the ground that others think he should have less because of who he is or is not, or that others care less for him than they do or other people" (158). He states that moral independence can be similarly defended. He argues that if utilitarianism rejects that some people's beliefs or conceptions are "inherently degrading," then it cannot take the moral preferences of people who hold such beliefs or conceptions as a justification in restricting their rights (158).

On a final note here, Ernie you raise a really interesting question about comparing different theories of rights. I clearly don't have a concise answer on this one, but my initial presumption is that which ever rights our society wants realized, it really need not matter which particular theory is "correct," as long as those rights are realized in the end, or as long as we are able to convince other people that we believe that right should be realized, the means may not necessarily be as important as the end result. Secondly, as far as other concrete examples that would align with Dworkin's reasoning, one that comes to mind and which (I think) is consistent with his argument is homosexuality (specifically referring to his discussion on moral independence, which I refer to in the paragraph above). I think that other rights that would be included are those which ought to be realized independently of whether or not they are convenient for a society, as long as there are justified grounds for such rights.

Rights as Trumps-Dworkin

To my understanding, Dworking is explaining how there should be equality of all rights and it should not be a majority rules; because if the majority rules then the entire minority's right is being violated. He states that there is no right or privelige for one person greater or lesser to another. For example, he uses Sarah and the people that adore her; she should not receive more preferences because people ask for her to because she is such a good person. He argues that no one has greater value or greater preferences than another. He also uses the example of the Nazi's; it is not right for Nazi's to say that a Jew has less preferences or rights than an Aryan (156). This sounds a little like what Gewirth was talking about with absolute rights, to me at least. I understand it as there being no one who is more likely to receive a right or no one who is more privileged to receive a right than another. With that being said, no one has the right to infringe on someone else's right or to say that the majority has everyone's best interest in mind because no one knows what is better for the other person. This is what I understand Dworkin to be saying, but I do not fully comprehend is arguments about Hart's response to his article.

Dworkin

Dworkin’s part in the book about, Harts Objections, is Dworking talking about the same reading we read or has he had multiple conversations with Hart on the matter? Pg. 154 “Utilitarianism owes whatever appeal it has to what we might call it’s egalitarian cast- or…would lose whatever appeal it has but for that cast.” Then on page 167, “My hypothesis, that the rights which have traditionally been described as consequences of a general right to liberty are in fact the consequences of equality instead, my instead may end prove to be wrong. But it is not, as Hart says it is, ‘fantastic.’ Is Dworkin saying he might end up being proven wrong, but that Hart is more wrong than he is?

I think when Dworkin is noting that his theory isn't "fantastic" he means that it isn't "out there" or off base. I think he's referencing (I'm assuming Hart) using the term about his work with that connotation. Its funny how catty philosophers can get.

I think this article is fairly straight forward (which probably means I misunderstood some stuff). Rights are necessary in order to prevent utility from collapsing under itself. Any meaningful utilitarian principle has an egalitarian base; to allow some preferences to be enacted would allow them to deny the equal worth of others. This would, then, undermine the concept of utility, which we are supposing is the basis for the original decisionmaking process.

I have two big questions that came to mind as I read this section. First, I wonder what sort of method one would use to compare the different theories of rights. I had this same issue in moral epistemology. It seems like appealing to the ideas of truth and falsity will leave us without an answer. Do we prefer particular systems based on the benefits that acceptance of theory gives us? Explanatory power? How should I decide which way of understanding rights is most beneficial? If all these smart folks disagree, I wonder where this leaves me. This also happens in other disciplines such as science, of course; is the disagreement over things like conceptions of rights the same kind of disagreement that occurs in other fields?

Second, I echo Mike's concern (sort of) and wonder both A. Whether his theory encompasses the entire role that we might wish rights to play and B. What sorts of rights would be "covered" under his theory. So the Nazi couldn't deny equal say to the interests of Jews, and Sarah can't have her preferences counted twice. What are other concrete examples?

I'm not sure how to articulate this (so I'll wait til tomorrow to really try) but is it possible that the sort of equality that utility is founded on is conceptually different than the kind he claims would be violated? I'm also not sure I understand what would and wouldn't be a violation of an area an individual should have a trump over, which I suppose is just a reiteration of question number two above.

RIghts as Trumps

From my understanding, Dworkin is arguing that if utilitarianism is to be a practical theory qualifications must be made or else some of our liberties will be infringed upon. Dworkin's answer is that certain rights can trump certain decisions because they infringe on our constitutional liberties. "Indeed, in the absence of an adequate constitutional system, the only hope for justice is precisely that people will vote with a disinterested sense of fairness" (pg 163).

I did have a bit of trouble understanding what "fantastic" meant in terms of Harts' critique. Dworkin summarizes by saying "My hypothesis, that the rights which have traditionally been described as consequences of a general right to liberty are in fact the consequences of equality instead, may in the end prove to be wrong. But it is not, as Hart says it is, 'fantastic'" (pg 167). Did anyone else have trouble with this?

Dworkin and his Utilitarianism

I can see that Dworkin is defending utilitarianism. Dworkin describes an interesting scenario:
“If the constitution sets out a version of utilitarianism which provides in terms that Sarah’s preferences are to count for twice as much as those of others, then this would be unacceptable, non-egalitarian version of utilitarianism. But now suppose that the constitutional provision is the standard form of utilitarianism, that is, that it is neutral towards all people and preferences” (155).
This scenario suggest and Dworkin mention in the previous page that he is interested in defending the standard form of utilitarianism rather than defend a version of utilitarianism, such as rule utilitarianism or actual utilitarianism. I think he argues that under the utilitarianism, people do have right because the government views and treats everyone equally. It is good for a society that people have rights. And it is under extreme circumstance that peoples’ right are infringed for the good of the whole. Of course, he also argues that there should be very good reason too.

trumps

From what I am gathering from this article Dworkin is making the argument that in a utilitarian system there must be some rights in order to prevent the system from undermining itself. The right he talks about is the right to equality which is a trump against a society with Nazis or Sarah-lovers in that it prevents peoples preferences(no matter how strong) from creating a system that counts some people as more than others. He explains that if we allow for rights as trumps then utilitarians concerned with preferences will now have the tools necessary to assert its own system above others preferred in a society without contradicting themselves.
This makes sense to me if we are dealing with a utilitarian system that is based on maximizing preferences but what about a system of utility that is not concerned with maximizing preferences, instead the system is interested in looking to experts to see what would be most likely to be the best for society. Would this form of utility still need rights? It seems to me his argument for why a right is important to utilitarians would not make sense in this system because preferences(no matter how strong) wont in a meaningful way change what is actually best for society. The right would probably end up being respected most of the time anyways but that isn't really the point.

Trumps

Dworkin writes, “We might argue that further analysis of the grounds that we have for accepting utilitarianism as a background justification in the first place – further reflection of why we wish to pursue that goal – shows that utility must yield to some right of moral independence here.”(154). He calls these rights, rights as trumps. To take this position, as stated above, one needs to correctly understand utilitarianism; some utilitarian’s and non-utilitarian’s perhaps, do not always define utilitarianism and understand the position “correctly” as Dworkin would argue. When one fully understands the utilitarianism position, then one would understand that in utilitarianism, this trumping of some rights over other rights will justify itself.

The neutral-utilitarianism positions is self-contradictory, because it tries to defeat the false theory (that some people’s right should count more for others) and strives to fulfill the political preference of those who believe in the false theory. And he argues that in order for a utilitarian political theory to be attractive enough as to be taken serious, it needs to be qualified to be able to "restrict the preferences that count by excluding political preferences.”(158). What I am taking from this, and correct me if I am wrong, is that the current widely held utilitarian view is self undermining and it tries to accommodate two different sets of preferences but it cannot without contradicting itself. So he is talking about how rights should be seen as trumps, and thus justified in that sense, because the right to moral independence is and should be a utilitarian view, so that it does not undermine itself by not allowing some rights to take preference over others. So that what utilitarianism really stands for, equal rights for all, in some cases some rights need to be allowed or accepted even though the majority may not view them as “moral”. But because if some of these rights deal with morals, they cannot be taken away without having to take away many more rights that would coincide with certain positions.

Trumps

Dworkin writes, “We might argue that further analysis of the grounds that we have for accepting utilitarianism as a background justification in the first place – further reflection of why we wish to pursue that goal – shows that utility must yield to some right of moral independence here.”(154). He calls these rights, rights as trumps. To take this position, as stated above, one needs to correctly understand utilitarianism; some utilitarian’s and non-utilitarian’s perhaps, do not always define utilitarianism and understand the position “correctly” as Dworkin would argue. When one fully understands the utilitarianism position, then one would understand that in utilitarianism, this trumping of some rights over other rights will justify itself.

The neutral-utilitarianism positions is self-contradictory, because it tries to defeat the false theory (that some people’s right should count more for others) and strives to fulfill the political preference of those who believe in the false theory. And he argues that in order for a utilitarian political theory to be attractive enough as to be taken serious, it needs to be qualified to be able to "restrict the preferences that count by excluding political preferences.”(158). What I am taking from this, and correct me if I am wrong, is that the current widely held utilitarian view is self undermining and it tries to accommodate two different sets of preferences but it cannot without contradicting itself. So he is talking about how rights should be seen as trumps, and thus justified in that sense, because the right to moral independence is and should be a utilitarian view, so that it does not undermine itself by not allowing some rights to take preference over others. So that what utilitarianism really stands for, equal rights for all, in some cases some rights need to be allowed or accepted even though the majority may not view them as “moral”. But because if some of these rights deal with morals, they cannot be taken away without having to take away many more rights that would coincide with certain positions.

Dworkin

Dworkin’s article was much easier for me to read. I’m not sure if it was simply my mind playing tricks on me because it was shorter or because the prose was less dense, but I suspect it was the latter. Either way, I enjoyed the article (despite his rampant use of double negatives).

I particularly liked Dworkin’s way of conceptualizing rights. The idea of a right as a trump seems to me to be a fairly easy-to-understand way to define a right. But, at the same time, the conception may become a bit strained when one begins to talk about rights that can be overridden. In other words, I think that the idea of the right as a trump works well with absolute rights, but I think it may lose some of its strength when one begins to consider that other things may trump the trump. It seems to me like there only should be one trump in play. But, I could be wrong here.

I was particularly interested in Dworkin’s assertion that “We need rights, as a distinct element in political theory, only when some decision that injures some people nevertheless finds a prima-facie support in the claim that it will make the community as a whole better off on some plausible account of where the community’s general welfare lies” (166). Is this really the only time that we need rights? I can see an argument that such a time is the only time that we need to use rights, but are there other times that we need rights? This, of course, assumes that need and need to use are two different things; in other words, it assumes that there is a difference between needing a right and using a right. Put another way, are rights worthwhile to have even when we do not need to use them? I’m torn here. On the one hand, I think that rights are only useful when you can assert them. It makes little sense to assert a right unless you need to assert it. On the other hand, it seems to me that there may be instances when we need rights, but we have no need to assert them. Does anyone have any other thoughts?