Criticisms Against Ethical Theories
Criticisms leveled against Ethical Theories
Criticisms leveled against Consequentialism
Consequentialism is based on the consequences of actions. It is sometimes called a teleological theory, from the Greek word telos, meaning goal. According to consequentialism, actions are right or wrong depending on whether their consequences further the goal. The goal (or, “the good”) can be something like the happiness of all people or the spreading of peace and safety. Anything which contributes to that goal is right and anything which does not is wrong.
Actions are thought to have no moral value in themselves (no rightness or wrongness), but only get moral value from whether or not they lead to the goal. John Stuart Mill was a famous consequentialist. Consequentialists would say that killing people is not right or wrong in itself, it depends on the outcome. Killing an innocent child would be a bad thing because it would decrease the happiness of its family and have no good results. Killing a terrorist would be a good thing because, although it would upset his family, it would make people safer.
The main criticism of consequentialism is that it would allow any action in pursuit of a good cause, even actions that most people would say were clearly morally wrong, such as torture, killing children, genocide, etc.
Criticisms leveled against Deontology
The word deontology comes from the Greek word deon, meaning duty. According to this theory, it is your duty to do actions which are right and not do those which are wrong. Actions are thought to be right or wrong in themselves. For example, killing people and lying are wrong, sharing with others who are in need is right.
Immanuel Kant was a famous deontologist. E. g. While trekking in the Andes you come across a guerilla leader who has captured 20 local villagers. The guerilla says if you will shoot one hostage he will let the other 19 go free. If you refuse to shoot, he will kill all 20. In the thought experiment the guerilla leader is telling the truth and you have only two choices: to shoot, or to refuse. Choose to shoot, and you are a consequentialist, motivated by saving the 19 innocent people.
Choose to refuse, and you are a deontologist, motivated by the fact that it is always wrong to kill an innocent person. The main criticism of deontology is that it is selfish, a way of avoiding getting your hands dirty (in a moral sense) while still allowing terrible things to happen. For instance, in the thought experiment you would not have shot anybody but 20 innocent people would still die. You could have prevented this outcome if you weren’t afraid to take any guilt on yourself.
Criticisms of Utilitarianism
By far and and away the most common criticism of utilitarianism can be reduced simply to: “I don’t like it” or “It doesn’t suit my way of thinking”. For an example of this, here’s something from someone who might prefer to remain nameless. “Producing the greatest good for the greatest number is fine as long as you are not hurting someone you really love in the process. For instance, with the trolley situation, I would rather kill 5 people on the main track than my mother on the spur track. Utilitarianism runs into problems when sentiment is involved!! “
Utilitarianism is alleged to be faulty in the way it requires us to think about all kinds of actions – to apply the felicific calculus in disregard to any feared distaste of the result. For example, some issues or potential actions are (to a non-utilitarian) “morally unthinkable”: Utilitarianism does indeed have something to say on this issue – otherwise it would suggest that the life of this extra individual was of no importance. I suggest it as a virtue of utility, that it does not arbitrarily discount value depending on some detail of the situation: all interests count – imply and fairly. The fact that opponents of utilitarianism admit that they won’t even consider some situations seems to me to be most damning to their credibility, and indicative of their general irrationality on matters ethical. The argument from distaste is often expressed as a suggestion that utilitarianism doesn’t provide enough support for individuals’ rights. But what is a right, and what is its justification?
- If the justification of a right depends on its tendency to promote happiness and prevent suffering, then it is entirely redundant since this is the sole purpose of utility.
- And if rights aren’t justified in these terms, how are they justified – what on earth are they actually good for? Of what use are they?
- It is generally found that the proponent of ethical rights has very unclear thinking as to what rights are and why they (should) exist – and it is therefore of unclear importance that utilitarianism does not support them.
- Doesn’t utilitarianism imply that, if we found a drug which had the sole effect of producing happiness, we ought to mass produce and consume it?
And, since happiness is just an emotion which can be chemically induced, isn’t it a bit silly to make it the highest order objective? It is quite strange that many people will accept “the pursuit of happiness” as one of life’s fundamental entitlements, yet should suddenly develop ascetic inclinations as soon as the quarry appears obtainable. It seems they don’t have a problem with someone trying to achieve happiness, rather they are only concerned when that someone has a reasonable prospect of success in their attempts.
Perhaps their fixation with unhappiness would be satisfied by personally abstaining from joy – but, if it goes further such that they would attempt to prevent individuals from attaining happiness even at no cost to others, then (from a utilitarian point of view) such people are despotical and a menace to society. It is possible that many people’s aversion to the idea of everlasting happiness is caused by incomplete consideration of the issue. It could be that people have become so jaded by mistaken claims for the desirability of various intentional objects that they believe that drug-induced happiness simply would not be durably satisfying.
Since any notion of happiness worthy of the name includes that of satisfaction, it follows that a truly happy person cannot be dissatisfied, so this problem can never arise. Happiness, in the utilitarian sense, includes the exemption from suffering. A charge of triviality for pleasure can perhaps be made, if our only frame of reference is the knowledge of felicific states currently achievable, but it is altogether less plausible against the depths of suffering currently experienced by the world’s less fortunate beings.
The second most common criticism of utilitarianism is that it is impossible to apply – that happiness cannot be quantified or measured, that there is no way of calculating a trade-off between intensity and extent, or intensity and probability, or comparing happiness to suffering. If happiness was not measurable, words like “happier” or “happiest” could have no meaning: “I was happier yesterday than I am today” would make no sense at all – it can only have the meaning which we (or most of us, at any rate) know that it has if we assume that happiness can be measured and compared. one should face the fact that goods are not necessarily intersubstitutable and consider the case, for instance, of an intransigent landowner who, when his avenue of limes is to be destroyed for the motorway, asks for 1p compensation, since nothing can be compensation. ” One is reminded of the story of the mother handing out home-baked cookies as a special treat to her family. The youngest child, on finding his cookie to be slightly smaller than the others, smashes it up and storms out in tears. In his disappointment, he interprets a fine gift as an affront, and he would rather make things worse than better – but then he’s only a child.
Adults, of course, have much less obvious and more subtle means of smashing their cookies. ) Initially, it seems very odd that the landowner should ask for a penny. If nothing can be compensation, why does he not ask for nothing? What use is this tiny amount of money? Far from suggesting that the trees are invaluable, it suggests that any money he could get for them is worthless to him! But, we may still ask, why the penny? And then we realize: it’s a token; a chip in a psychological game.
One can imagine the penny being carried about by the ex-landowner, and produced to evict pity from those unfortunates he manages to convince to listen to his story. That will be his best effort at compensating himself. Now suppose the scenario is amended slightly: imagine the landowner’s daughter is dying from a terminal disease; that the motorway’s supporters offer to pay for the new and expensive cure (which the landowner could not otherwise afford) in exchange for the land; and that they will not proceed without his permission. Are we still to presume that “nothing can be compensation” for his trees, not even the life of his daughter?
- Or will the landowner decide that his daughter’s life is more important than his pretty view?
- It seems likely. But suppose not – suppose he chooses to keep the trees and lose his daughter. Does this show that the value of the lime avenue isn’t convertible?
- Of course not, just that he values the trees more than his offspring. If the two different values were inconvertible, he would have no way to decide one way or the other – no way to choose between them. The fact that people can and do weigh-up and trade-off values, for all types of things, shows that it is both possible and practical to do so.
- In the original scenario, the sensible thing to do would be to ask for enough money to buy a new bit of land, and to plant a new avenue of limes on it; but, since the principle of utility does not imply the absence of fools, this criticism has no effect, and we needn’t consider this matter further.
The third most common criticism is that it is too difficult to apply – that we cannot calculate all the effects for all the individuals (either because of the large number of individuals involved, and/or because of the uncertainty).
The principle of utility is, essentially, a description of what makes something right or wrong – so in order for it to fail, someone must give an example of something which is useful but obviously wrong. The principle does not imply that we can calculate what is right or wrong – completely accurately, in advance, or at all! It does not harm the principle of utility at all merely to comment that it is difficult for us to work out what is right – it is merely a lament against the human condition.
The idea of practicality is often used to suggest a problem exists in the theory, when it fact it does not. For example: “how far does one, under utilitarianism, have to research into the possibilities of maximally beneficent action, including prevention? “
The answer is simple, and entirely obvious: as far as it is useful to do so! That is, far enough so that we get the optimal trade-off between planning and implementing, so that we maximize our effectiveness as agents.
The does imply that, in some cases, it may not be best to apply the felicific calculus at all: if the problem is one that we have faced many times before, and always reached the same conclusion; or if the case presents itself as an emergency, and isn’t open to extended consideration; we can forego the calculus and act immediately.
Insufficiency (of scope)
One argument which some people propose as being more sensible than other criticisms, is that utilitarianism is “fine, so far as it goes”, but that it fails to consider some sources of value, and that it will therefore produce the wrong results when these different sources conflict.
There is potential for confusion here – sometimes “utilitarianism” is used to specifically for “hedonistic utilitarianism”; and, sometimes, it means a particular class of ethical theory (something like “value-maximizing consequentialism”) … under this meaning, an ethical theory which held the existence of plastic forks as supremely valuable, and therefore tried to maximize their number, would be “plastic fork utilitarianism”. So, theories which have other intrinsic values than happiness and exemption from suffering can be accommodated within a utilitarian scheme.
As for those other things that are suggested as having value, there are a few worth mentioning: “life”, “friendship”, and “knowledge” among them. I think it is notable that these things are valued, but that they also generally create happiness… I suggest the reason that they are valued is precisely because they promote happiness.
- But, if they didn’t, would we still value them?
- Does someone who suffers too much still value their life?
- Surely not, or else there would be no suicides. Do we value a friendship if we get no pleasure from it?
On the contrary, it is more likely that we would define our friends as those people about whom we enjoyed being. And is it worthwhile learning and philosophising, if our knowledge is never of any use at all?
Or, rather, is it just so much meta-physical stamp collecting? The case against these “other” goals is quite clear.
A Critique of Ethical Egoism
Ethical egoism, like all exclusively subjective philosophies, is prone to constant self-contradiction because it supports all individuals’ self interests.
It also can lead to very unpleasant conclusions, such as choosing not to intervene in a crime against another. Egoists have difficulty judging anything that does not deal with them, which is one reason why ethical egoism is so impractical for people who are very aware of the world. The very legitimacy of the theory is often called into question because it prevents its own adherents from taking reasonable stances on major political and social issues and cannot in itself solve these issues.
Criticisms against Ethical Relativism
A common argument against relativism suggests that it inherently contradicts, refutes, or stultifies itself: the statement “all is relative” classes either as a relative statement or as an absolute one. If it is relative, then this statement does not rule out absolutes. If the statement is absolute, on the other hand, then it provides an example of , proving that not all truths are relative. However, this argument against relativism only applies to relativism that positions truth as relative–i. e. pistemological/truth-value relativism. More specifically, it is only strong forms of epistemological relativism that can come in for this criticism as there are many epistemological relativists who posit that some aspects of what is regarded as “true” are not universal, yet still accept that other universal truths exist (e. g. gas laws). However, such exceptions need to be carefully justified, or “anything goes”. Another argument against relativism posits a Natural Law. Simply put, the physical universe works under basic principles: the “Laws of Nature”.
Some contend that a natural Moral Law may also exist, for example as argued by Richard Dawkins in The God Delusion (2006) and addressed by C. S. Lewis in “Mere Christianity” (1952). Dawkins said “I think we face an equal but much more sinister challenge from the left, in the shape of cultural relativism – the view that scientific truth is only one kind of truth and it is not to be especially privileged. “Aside from the general legitimacy of relativism, critics say it undermines morality, possibly resulting in anomie and complete Social Darwinism.
Relativism denies that harming others is wrong in any absolute sense. The majority of relativists, of course, consider it immoral to harm others, but relativist theory allows for the opposite belief. In short, if an individual can believe it wrong to harm others, he can also believe it right–no matter what the circumstances. The problem of negation also arises. If everyone with differing opinions is right, then no one is. Thus instead of saying “all beliefs (ideas, truths, etc. ) are equally valid,” one might just as well say “all beliefs are equally worthless”.
Another argument is that if relativism presupposes that “all beliefs are equally valid,” it then implies that any belief system holding itself to be the only valid one is untrue, which is a contradiction. An argument made by Hilary Putnam,among others, states that some forms of relativism make it impossible to believe one is in error. If there is no truth beyond an individual’s belief that something is true, then an individual cannot hold their own beliefs to be false or mistaken. A related criticism is that relativizing truth to individuals destroys the distinction between truth
Criticism of Virtue Ethics
According to critics, a major problem with the theory is the difficulty of establishing the nature of the virtues, especially as different people, cultures and societies often have vastly different opinions on what constitutes a virtue. Some proponents counter-argue that any character trait defined as a virtue must be universally regarded as a virtue for all people in all times, so that such cultural relativism is not relevant. Others, however, argue that the concept of virtue must indeed be relative and grounded in a particular time and place, but this in no way negates the value of the theory, merely keeps it current.
Another objection is that the theory is not “action-guiding”, and does not focus on what sorts of actions are morally permitted and which ones are not, but rather on what sort of qualities someone ought to foster in order to become a good person. Thus, a virtue theorist may argue that someone who commits a murder is severely lacking in several important virtues (e. g. compassion and fairness, among others), but does proscribe murder as an inherently immoral or impermissible sort of action, and the theory is therefore useless as a universal norm of acceptable conduct uitable as a base for legislation. Virtue theorists may retort that it is in fact possible to base a judicial system on the moral notion of virtues rather than rules. They argue that Virtue Ethics can also be action-guiding through observance of virtuous agents as examplars, and through the life-long process of moral learning, for which quick-fix rules are no substitute.
Some have argued that Virtue Ethics is self-centred because its primary concern is with the agent’s own character, whereas morality is supposed to be about other people, and how our actions affect other people. Thus, any theory of ethics should require us to consider others for their own sake, and not because particular actions may benefit us. Some argue that the whole concept of personal well-being (which is essentially just self-interest) as an ethical master value is mistaken, especially as its very personal nature does not admit to comparisons between individuals.
Proponents counter that virtues in themselves are concerned with how we respond to the needs of others, and that the good of the agent and the good of others are not two separate aims, but both result from the exercise of virtue. Other critics are concerned that Virtue Ethics leaves us hostage to luck, and that it is unfair that some people will be lucky and receive the help and encouragement they need to attain moral maturity, while others will not, through no fault of their own.
Virtue Ethics, however, embraces moral luck, arguing that the vulnerability of virtues is an essential feature of the human condition, which makes the attainment of the good life all the more valuable.
Some criticize virtue ethics in relation to the difficulty involved with establishing the nature of the virtues. They argue that different people, cultures, and societies often have vastly different perspectives on what constitutes a virtue. For example, many would have once considered a virtuous woman to be quiet, servile, and industrious.
This conception of female virtue no longer holds true in many modern societies. Alasdair MacIntyre responds to this criticism, by arguing that any account of the virtues must indeed be generated out of the community in which those virtues are to be practiced: The very word “ethics” implies “ethos. ” That is to say that the virtues are, and necessarily must be, grounded in a particular time and place. What counts as virtue in fourth century Athens would be a ludicrous guide to proper behavior in twenty-first century Toronto, and vice versa.
But, the important question in virtue ethics as to what kind of person one ought to be, which may be answered differently depending on the ethos, can still give real direction and purpose to people.
Lack of moral rules
Another criticism of virtue ethics is that it lacks absolute moral rules which can give clear guidance on how to act in specific circumstances such as abortion, embryo research, and euthanasia. Martha Nussbaum responds to this criticism, by saying that there are no absolute rules. In a war situation, for example, the rule that you must not kill an innocent person is impractical.
According to Nussbaum, it is the virtues that are absolutes, and we should strive for them. If elected leaders strive for them, things will go well. On the issue of embryo research, Alasdair MacIntyre suggests that people first need to understand the social situation in which although many people are negative about embryonic stem-cell research, they are not upset with the fact that thousands of embryos actually die at various stages in the IVF (in vitro fertilization) process. Then, says MacIntyre, people need to approach the issue with virtues such as wisdom, right ambition, and temperance.
Thus, some virtue ethicists argue that it is possible to base a judicial system on the moral notion of virtues rather than on rules.
Critiques of Normative Contractarianism
Many critiques have been leveled against particular contractarian theories and against contractarianism as a framework for normative thought about justice or morality. (See the entry on contemporary approaches to the social contract. ) Jean Hampton criticized Hobbes in her book Hobbes and the Social Contract Tradition, in a way that has direct relevance to contemporary contractarianism.
Hampton argues that the characterization of individuals in the state of nature leads to a dilemma. Hobbes’ state of nature as a potential war of all against all can be generated either as a result of passions (greed and fear, in particular) or rationality (prisoner’s dilemma reasoning, in which the rational players each choose to renege on agreements made with each other). But if the passions account is correct, then Hampton argues, the contractors will still be motivated by these passions after the social contract is drawn up, and so will fail to comply with it.
And if the rationality account is correct, then rational actors will not comply with the social contract any more than they will cooperate with each other before it is made. This critique has an analog for Gauthier’s theory, in that Gauthier must also claim that without the contract individuals will be stuck in some socially sub-optimal situation that is bad enough to motivate them to make concessions to each other for some agreement, yet the reason for their inability to cooperate without the contract cannot continue to operate after the contract is made.
Gauthier’s proposed solution to this problem is to argue that individuals will choose to dispose themselves to be constrained (self-interest) maximizers rather than straightforward (self-interest) maximizers, that is, to retrain themselves not to think first of their self-interest, but rather to dispose themselves to keep their agreements, provided that they find themselves in an environment of like-minded individuals. But this solution has been found dubitable by many commentators. (See Vallentyne, 1991) Hampton also objects to the contemporary contractarian assumption that interaction is merely instrumentally valuable.
She argues that if interaction were only valuable for the fruits of cooperation that it bears for self-interested cooperators, then it would be unlikely that those cooperators could successfully solve the compliance problem. In short, they are likely not to be able to motivate morality in themselves without some natural inclination to morality. Interestingly, Hampton agrees with Gauthier that contractarianism is right to require any moral or political norms to appeal to individuals self-interest as a limitation on self-sacrifice or exploitation of any individual.
In an important article, “On Being the Object of Property,” African-American law professor Patricia Williams offers a critique of the contract metaphor itself. Contracts require independent agents who are able to make and carry out promises without the aid of others. Historically, while white men have been treated as these pure wills of contract theory, Blacks and women have been treated as anti-will: dependent and irrational. Both ideals are false; whole people, she says, are dependent on other whole people.
But by defining some as contractors and others as incapable of contract, whole classes of people can be excluded from the realm of justice. This point has been taken up by other critics of contractarianism, such as Eva Kittay (1999) who points out that not only are dependents such as children and disabled people left out of consideration by contractarian theories, but their caretakers’ needs and interests will tend to be underestimated in the contract, as well.
David Hume was an early critic of the validity of social contract theory, arguing against any theory based on a historical contract, on the grounds that one should not be bound by the consent of one’s ancestors. He also questioned to what extent the fall-back “state of nature” which underlies most social contract theory is actually historically accurate, or whether it is just a hypothetical or possible situation. Others have pointed out that, with an assumed initial position which is sufficiently dire (such as that posited by Hobbes), Contractarianism may lead to the legitimization of Totalitarianism (as Hobbes himself foresaw).
Some commentators have argued that a social contract of the type described cannot be considered a legitimate contract at all, on the grounds that the agreement is not fully voluntary or without coercion, because a government can and will use force against anyone who does not wish to enter into the contract. In Rousseau’s conception of the social contract, even individuals who disagree with elements of the social contract must nevertheless agree to abide by it or risk punishment (they must be “forced to be free”).
It is argued that this idea of force negates the requirement that a contract be entered into voluntarily, or at least to permit individuals to abstain from entering into a contract. In response, it has been countered that the name “contract” is perhaps misleading (“social compact” has been suggested as an alternative), and that anyway individuals explicitly indicate their consent simply by remaining in the jurisdiction. Either way, social contract theory does seem to be more in accordance with contract law in the time of Hobbes and Locke (based on a mutual exchange of benefits) than in our own.
Other critics have questioned the assumption that individuals are always self-interested, and that they would actually want the benefits of society supposedly offered by the contract. A further objection sometimes raised is that Contractarianism is more of a descriptive theory than a normative guide or a justification.
Critiques of Rights Theory
Critiques of rights come in two forms. The first is an attack on the substance of doctrines that give rights a central place.
These critiques allege that the content of such doctrines is, in one way or other, malformed or unjustified. Here we find, for example, the criticism that natural rights doctrines are “so much flat assertion,” and that utilitarian rights tend to be implausibly weak. The second form of critique attacks the language of rights itself. The objection here is that it is inappropriate or counterproductive to express at least some kinds of normative concerns in terms of rights. We should, according to the second form of critique, reduce or avoid “rights talk.
Critiques of Rights Doctrine
Marx attacked the substance of the revolutionary eighteenth century American and French political documents that proclaimed the fundamental “rights of man”: liberty, equality, security, property, and the free exercise of religion. Marx objected that these alleged rights derive from a false conception of the human individual as unrelated to others, as having interests can be defined without reference to others, and as always potentially in conflict with others.
The rights-bearing individual is an “isolated monad… withdrawn behind his private interests and whims and separated from the community”. The right of property, Marx asserted, exemplifies the isolating and anti-social character of these alleged rights of man. On the one hand, the right of property is the right to keep others at a distance: the legal equivalent of a barbed wire fence. On the other hand, the right of property allows an owner to transfer his resources at his own pleasure and for his own gain, without regard even for the desperate need for those resources elsewhere.
Similarly, Marx held that the much-celebrated individual right to liberty reinforces selfishness. Those who are ascribed the right to do what they wish so long as they do not hurt others will perpetuate a culture of egoistic obsession. As for equality, the achievement of equal rights in a liberal state merely distracts people from noticing that their equality is purely formal: a society with formally equal rights will continue to be divided by huge inequalities in economic and political power. Finally, these so-called “natural” rights are in fact not natural to humans at all.
They are simply the defining elements of the rules of the modern mode of production, perfectly suited to fit each individual into the capitalist machine. Communitarians (Taylor, Walzer, MacIntyre, Sandel) sound several of the same themes in their criticisms of contemporary liberal and libertarian theories. The communitarians object that humans are not, as such theories assume, “antecedently individuated. ” Nozick’s “state of nature” theorizing, for example, errs in presuming that individuals outside of a stable, state-governed social order will develop the autonomous capacities that make them deserving of rights.
Nor should we attempt, as in Rawls’s original position, to base an argument for rights on what individuals would choose in abstraction from their particular identities and community attachments. There is no way to establish a substantive political theory on what all rational agents want in the abstract. Rather, theorists should look at the particular social contexts in which real people live their lives, and to the meanings that specific goods carry within different cultures.
This criticism continues by accusing liberal and libertarian theories of being falsely universalistic, in insisting that all societies should bend themselves to fit within a standard-sized cage of rights. Insofar as we should admit rights into our understanding of the world at all, communitarians say, we should see them as part of ongoing practices of social self-interpretation and negotiation— and so as rules that can vary significantly between cultures. These kinds of criticisms have been discussed in detail (e. g. Gutmann 1985, Waldron 1987b, Mulhall and Swift 1992). Their validity turns on weighty issues in moral and political theory. What can be said here is that a common theme in most of these criticisms—that prominent rights doctrines are in some way excessively individualistic or “atomistic”—need not cut against any theory merely because it uses the language of rights. Ignatieff (2003, 67) errs, for example, when he charges that “rights language cannot be parsed or translated into a nonindividualistic, communitarian framework.
It presumes moral individualism and is nonsensical outside that assumption. ” As we saw above, the language of rights is able to accommodate rightholders who are individuals as such, but also individuals considered as members of groups, as well as groups themselves, states, peoples, and so on. Indeed the non-individualistic potential of rights-language is more than a formal possibility. The doctrine of international human rights—the modern cousin of eighteenth century natural rights theory—ascribes several significant rights to groups.
The international Convention against Genocide, for example, forbids actions intending to destroy any national, ethnic, racial or religious group; and both of the human rights Covenants ascribe to peoples the right to self-determination. Such examples show that the language of rights is not individualistic in its essence.
Critiques of the Language of Rights
The language of rights can resist the charge that it is necessarily complicit with individualism.
However, critics have accused rights talk of impeding social progress: Our rights talk, in its absoluteness promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations….
In its insularity, it shuts out potentially important aids to the process of self-correcting learning. All of these traits promote mere assertion over reason-giving. Glendon (1991, 14) here draws out some of the detrimental practical consequences of the popular connection between rights and conclusive reasons that we saw above. Since rights assertions suggest conclusive reasons, people can be tempted to assert rights when they want to end a discussion instead of continuing it.
One plays a right as a trump card when one has run out of arguments. Similarly, the ready availability of rights language may lead parties initially at odds with each other toward confrontation instead of negotiation, as each side escalates an arms-race of rights assertions that can only be resolved by a superior authority like a court. One line of feminist theory has picked up on this line of criticism, identifying the peremptory and rigidifying discourse of rights with the confrontational masculine “voice. ” (Gilligan 1993)
It is not inevitable that these unfortunate tendencies will afflict those who make use of the language of rights. As we have seen, it may be plausible to hold that each right is “absolute” only within a elaborately gerrymandered area. And it may be possible to produce deep theories to justify why one has the rights that one asserts. However, it is plausible that the actual use of rights talk does have the propensities that Glendon suggests. It seems no accident that America, “the land of rights,” is also the land of litigation.
Another deleterious consequence of rights talk that Glendon picks out is its tendency to move the moral focus toward persons as rightholders, instead of toward persons as bearers of responsibilities. This critique is developed by O’Neill. A focus on rightholders steers moral reasoning toward the perspective of recipience, instead of toward the traditional active ethical questions of what one ought to do and how one ought to live. Rights talk also leads those who use it to neglect important virtues such as courage and beneficence, which are duties to which no rights correspond.
Finally, the use of rights language encourages people to make impractical demands, since one can assert a right without attending to the desirability or even the possibility of burdening others with the corresponding obligations. Criticisms such as O’Neill’s do not target the language of rights as a whole. They aim squarely at the passive rights, and especially at claim-rights, instead of at the active privileges and powers. Nevertheless, it is again plausible that the spread of rights talk has encouraged the tendencies that these criticisms suggest.
The modern discourse of rights is characteristically deployed by those who see themselves or others as potential recipients, entitled to insist on certain benefits or protections. Describing fundamental norms in terms of rights has benefits as well as dangers. The language of rights can give clear expression to elaborate structures of freedom and authority. When embodied in particular doctrines, such as in the international human rights documents, the language of rights can express in accessible terms the standards for minimally acceptable treatment that individuals can demand from those with power over them.
Rights are also associated with historical movements for greater liberty and equality, so assertions of rights in pursuit of justice can carry a resonance that other appeals lack. Whether these benefits of using rights language overbalance the dangers remains a live question in moral, political and legal theory.
The Critique of Rights
The critique of rights developed by critical legal theorists has five basic elements: o The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume. Legal rights are in fact indeterminate and incoherent. o The use of rights discourse stunts human imagination and mystifies people about how law really works. o At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection. o Rights discourse can actually impede progressive movement for genuine democracy and justice. Rights should not be credited with progressive political advances.
In “The Critique of Rights,” 47 SMU Law Review, Mark Tushnet emphasizes the first theme in arguing that progressive lawyers overestimate the importance of their work because of an inflated and erroneous view of the role of the Supreme Court in advancing progressive goals in the 1960s. That period of judicial leadership was aberrational in American history and also more reactive and pro-active, depending on mass social movements rather than lawyers’ arguments. Legal victories also are often not enforced; judicial victories do not obviate the need for ongoing political mobilization.
Legal victories may have ideological value even where they lack material effects; a court victory can mark the entry of previously excluded groups into the discourse of rights which holds ideological importance inside the nation. Nonetheless, legal and political cultures inside the United States can also produce large consequences from judicial losses for relatively powerless groups. Losing a case based on a claim of rights may in some cases lead the public to think that the claims have no merit and need not be given weight in policy debates.
Robert Gordon similarly argues that even noted legal victories for blacks, for labor, for the poor, and for women did not succeed in fundamentally altering the social power structure. “The labor movement secured the vitally important legal right to organize and strike, at the cost of fitting into a framework of legal regulation that certified the legitimacy of managements making most of the important decisions about the conditions of work. ” Robert Gordon, “Some Critical Theories of law and Their Critics,” in The Politics of Law 647 (David Kairys ed. , third edition, Basic Books: New York, 1998).
Moreover, rights are double-edged, as demonstrated in the content of civil rights. “Floor entitlements can be turned into ceilings (you’ve got your rights, but that’s all you’ll get). Formal rights without practical enforceable content are easily substituted for real benefits. Anyway, the powerful can always assert counter rights (to vested property, to differential treatment according to “merit,” to association with one’s own kind) to the rights of the disadvantaged. “Rights” conflict and the conflict cannot be resolved by appeal to rights”.
The content of contemporary American rights in particular must be understood as failing to advance progressive causes. Current constitutional doctrine, for example, heavily favors so-called negative liberties (entitlements to be free of government interference) over positive liberties (entitlements to government protection or aid) and thus reinforces the pernicious “public/private” distinction. That distinction implies that neither government nor society as a whole are responsible for providing persons with the resources they need to exercise their liberties, and indeed, any governmental action risks violating private liberties.
Current freedom of speech doctrine accords protection to commercial speech and pornography, limits governmental regulation of private contributions to political campaigns, and forbids sanctions for hate speech. Such rules operate in the often-stirring language of individual freedom, but their effect is more likely to be regressive than progressive. Rights are indeterminate and incoherent. As Mark Tushnet puts it, “nothing whatever follows from a courts adoption of some legal rule (except insofar as the very fact that a court has adopted the rule has some social impact the ideological dimension with which the critique of rights is concerned. Progressive legal victories occur, according to the indeterminacy thesis, because of the surrounding social circumstances. ” At least as they figure in contemporary American legal discourse, rights cannot provide answer to real cases because they are cast at high levels of abstraction without clear application to particular problems and because different rights frequently conflict or present gaps. Often, judges try to resolve conflicts by attempting to “balance” individual rights against relevant “social interests” or by assessing the relative weight of two or more conflicting rights.
These methods seem more revealing of individual judicial sensibilities and political pressures than specific reach of specific rights. Moreover, central rights are themselves internally incoherent. The right to freedom of contract, for example, combines freedom with control: people should be free to bind themselves to agreements: the basic idea is private ordering. But the laws reliance on courts to enforce contracts reveals the doctrines grant of power to the government to decide which agreements to enforce, and indeed what even counts as an agreement.
Even more basically, freedom of contract implies that the freedom of both sides to the contract can be enhanced and protected, and yet no one stands able to know what actually was in the minds of parties on both sides. Resort to notions of objective intent and formalities replace commitment to the freedom of the actual parties.
Legal rights stunt people’s imagination and mystify people about how law really works. The very language of a right, like the right to freedom of contract, appeals to peoples genuine desires for personal autonomy and social solidarity, and yet masks the extent to which the social order makes both values elusive, rite Peter Gabel and Jay Fineman, in Contract Law as Ideology, in The Politics of Law 496,498 (David Kairys, ed. , third edition, Basic Books: New York 1998). Contract law in fact works to conceal the coercive system of relationships with widespread unfairness in contemporary market-based societies. The system of rights renders invisible the persistent functional roles such as landlord, tenant, employer, and individual consumer of products produced by multinational conglomerates, that themselves reflect widely disparate degrees of economic and political power.
Contract law is a significant feature in the massive denial of experiences of impotence and isolation and the apology for the system producing such experiences. Similar points can be made about other areas of law. Property rights, for example, imply promotion of individual freedom and security, and yet owners property rights are precisely the justification afforded to the control of others and arbitrary discretion to wreak havoc over the lives of tenants, workers, and neighbors.
Contract law artificially constrains analysis by focusing n a discrete promise and a discrete act of reliance rather than complex and often diffuse communications and inevitable reliance by people on others than. Courts and legislatures recognize to some extent the power of these real features of people’s lives but the language of legal rules often leads decision makers to feel powerless to act on such recognition. Workers at a U. S. Steel plant in Youngstown, Ohio and their lawyers tried to buy the plant after the company announced plans to close it.
Federal trial and appellate judges acknowledged that the plant was the lifeblood of the community but nonetheless concluded that contract and property law provided no basis for preventing the company either from shutting down the plant or refusing to negotiate to sell it to the workers. Gabel and Feinman conclude: “it was not the law that restrained the judges, but their own beliefs in the ideology of law.
By recognizing the possibilities of social responsibility and solidarity that are immanent in the doctrine of reliance, they could have both provided the workers a remedy and helped to move contract law in a direction that would better align the legal ideals of freedom, equality, and community with the realization of these ideals in everyday life”. But the ideology of law made the judges feel they could not do so. Conventional rights discourse reflects and produces isolated individualism and hinders social solidarity and genuine human connection. The individualism pervading American law calls for “the making of a sharp distinction between ones interests and those of others, combined with the belief that a preference in conduct for one’s own interests is legitimate, but that one should be willing to respect the rules that make it possible to coexist with others similarly self-interested. The form of conduct associated with individualism is self-reliance.
This means an insistence on defining and achieving objectives without help from others (i. e. , without being dependent on them or asking sacrifices of them. ” Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685(1976). As implemented in law, individualism means that there are some areas within which actors (whether actual individuals or groups) have total arbitrary discretion to pursue their own ends without regard to the impact of their actions on others.
A legal right evokes the idea of a domain protected by law within which the individual is free to do as he or she pleases, and the arrangements ensuring that freedom are fair, neutral, and equitable. Judges must facilitate private ordering and avoid regulating or imposing their own values on the aggregate of individual choices. The state thereby polices all boundary crossings by private individuals and contributes to the pretense that individual, private, self-interested values are all that matter. Yet people need others as much as they need their own freedom.
Altruism has roots as deep as individualism, and altruism urges sacrifice, sharing, cooperation, and attention to others. Rights help people deny the equal tug of individual freedom and social solidarity on people’s hearts and assert that legal rules resolve the tension by assuring that people relate to one another through the recognition and respect for each other’s separate, bounded spheres of self-interest. Yet this very mode of thinking renders it more difficult for individuals and for the legal system to act upon altruism, social cooperation, and relationships of generosity, reciprocity, and sacrifice.
The legal structure of rules, and the abstracted roles (owner, employee etc. ) upon which it depends makes it more likely that people feel helpless to counteract existing hierarchies of wealth and privilege or any perceived unfairness. Robert Gordon explains: “This process of allowing the structures we ourselves have built to mediate relations among us so as to make us see ourselves as performing abstract roles in a play that is produced by no human agency is what is usually called reification.
It is a way people have of manufacturing necessity: they build structures, then act as if (and genuinely come to believe that) the structures they have built are determined by history, human nature, and economic law. ” Robert Gordon, Some Critical Theories of law and Their Critics, in the Politics of Law 650. Rights discourse actually can impede genuine democracy and justice. Rights discourse contributes to passivity, alienation, and a sense of inevitability about the way things are.
Even when relatively powerless groups win a legal victory, the rights involved can impede progressive social change. The victory may make those who won it complacent while galvanizing their opponents to do all they can to minimize the effects of the ruling. Conflicting rights or alternative interpretations of the same rights are always available. Conservatives can deploy the indeterminacy of rights for their benefit. Using the language of rights reinforces the individualistic ideology and claims of absolute power within individual’s spheres of action that must be undermined if progressive social change is to become more possible.
The language of rights perpetuates the misconception that legal argument is independent of political argument and social movements. Through rights language, those in power often grant strategic concessions of limits sets of rights to co-opt genuinely radical social movements. Progressives who use the language of rights thus lend support to the ideology they must oppose. With the notable exception of Roberto Unger, who has proposed an alternative regime with immunity rights, destabilization rights, market rights, and solidarity rights, most critical legal scholars argue that rights do not advance and may impede political and social change.
Rights are indeterminate and yet conceal the actual operations of power and human yearnings for connection and mutual aid. Contemporary legal and constitutional practice are less likely to provide avenues for challenging unfair social and economic hierarchies than political movements, and a focus on law reform can divert and disengage those political movements. Criticism: There is some element of truth in this theory, but difficult to believe that all rights enjoyed by people in a state are true to customs and traditions. Human society is dynamic and the custom change from time to time and from place to place.
Rights correspond the different stages in the evolution of human society. Rights enjoyed people in a capitalist society, for example, are different from the enjoyed by people in a feudal society. There can be no unanimity opinion as to what historical rights are. Laski says, “We do not mean by rights the grant of some his conditions possessed in the childhood of the race, but lost in the pr of time. Few theories have done greater harm to philosophy, or m violence to facts, than the notion that they represent the recovery of a inheritance. There is no golden age to which we may seek to return”.