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Published online by Cambridge University Press: 09 June 2015
Disputes over the scope of specific rights, e.g., over the right to free speech, the right to property, or the right to equality, often originate in differing assumptions concerning the reasons that justify the protection of these rights. Thus, those who believe that reasons of autonomy justify the right to free speech will identify the scope of this right differently from those who justify this protection through, say, appeal to the marketplace of ideas. Despite the diverse subject matter of these disputes, there is a uniform structure characterizing them. Some supporters of rights, call them “traditionalists,” locate the reasons that justify the protection of rights within individualistic concerns. Others, call them “revisionists,” deny this traditional claim and argue that rights can be partially or exclusively grounded in societal interests.
Traditionalism’ and ‘revisionism’ are terms stipulated to clarify the conceptual difference between two different understandings of rights. These understandings are often implicit in the way the term ‘rights’ is used in political or legal debates concerning the scope of particular rights. At other times, these implicit understandings of the term ‘rights’ are articulated more or less explicitly by moral or political philosophers investigating the nature of rights. Thus, when the terms ‘revisionist’ or ‘traditionalist’ are used in this article, they are used in two different ways. Sometimes, they denote implicit fundamental presuppositions about the nature of rights—presuppositions which underlie many of the contemporary debates over the scope of particular rights. At other times, they denote philosophical theories exploring systematically the nature of rights and the reasons underlying them.
1. See Alon Harel, “Review Essay: Free Speech Revisionism: Doctrinal and Philosophical Challenges” (1994) 74 Boston Univ. L. Rev. 687 at 704–14.
2. See, e.g., Robert Alexy, “Individual Rights and Collective Goods” in Carlos Nino, ed., Rights (New York: New York University Press, 1992) 163.
3. For an examination of the normative motivation underlying this debate, see Leslie Green, “Two Views of Collective Rights” (1991) IV Can. J. of L. & Juris, at 315–18.
4. See Alon Harel, “What Demands are Rights? An Investigation Into the Relation Between Rights and Reasons” (1997) 17 Oxford J. of Legal Stud. 101 at 105.
5. See ibid, at 102–10.
6. See Harel, supra note 4 at 105–8.
7. See generally, Mari J. Matsuda et al., Words that Wound: Critical Race Theory, Assaultive Speech and the First Amendment (Boulder, CO: Westview Press, 1993).
8. Cass Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1993) at 34–43.
9. See Harel, supra note 1 at 704; Onora O’Neill, “Practices of Toleration in Democracy and the Mass Media” in Judith Lichtenberg, ed., Democracy and the Mass Media (Cambridge: Cambridge University Press, 1990) at 167.
10. Perhaps the best illustration of this traditionalist belief can be found in Ronald Dworkin, “MacKinnon’s Words” in Dworkin, Freedom’s Law (Cambridge, MA: Harvard University Press, 1996) 227 at 232. Dworkin infers from the fact that the society cannot grant rights to the provision of circumstances encouraging one to speak that the provision of such circumstances cannot be protected or reinforced by law at all.
11. On the difference between core and derivative rights, see Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 168–70.
12. I believe this is the view advocated by Raz who says: “Given the doubly harmonious relation between the individual interest served by these rights and the public good they contribute to and given that this mutual reinforcing relation is stable and secure, rather than coincidental, there is every reason to regard the value of the rights to the common good as part of their justification…. In the case of the central civil and political rights of liberal societies … part of the justifying reason for the right is its contribution to the common good.” See Joseph Raz, “Rights and Individual Well-Being” in Joseph Raz, Ethics in the Public Domain: Essays on the Morality of Law and Politics (Oxford: Clarendon Press, 1994) 29 at 40.
13. See Alexy, supra note 2 at 171.
14. This view follows from many of the formulations of what is called ‘the interest theory of rights’. The definition of rights provided by Joseph Raz provides an example. Raz states that ‘“X has a right’ if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person (s) to be under a duty.” See Raz, supra note 11 at 106. For a similar view drawing a contrast between rights characterized as “individuated political aim” and goals characterized as “nonindividuated political aims”, see Ronald Dworkin, “Hard Cases” in Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1984, 4th Impression) 81 at 91.
15. See Jeremy Waldron, “Can Communal Goods be Human Rights?” in Waldron, Liberal Rights: Collected Papers 1981–1991 (Cambridge: Cambridge University Press, 1993) at 345. Many disagree with Waldron’s statement that rights always secure goods for individuals rather than for other entities, such as nations or corporations. This article’s concern is not with who the rightholders are, but with the relations between rights and rightholders.
16. The term ‘directionality’ is borrowed from L.W. Sumner, The Moral Foundations of Rights (Oxford: Clarendon Press, 1987) at 39. See also Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions and Morals (Totowa, NJ: Rowman and Allanheld, 1985) at 96–99.
17. For a definition of public goods, see Dennis C. Mueller, Public Choice II (Cambridge: Cambridge University Press, 1989) at 11.
18. For a discussion of the distinction between goods which are technically public and those which are essentially public, see Leslie Green, The Authority of the State 129 (Oxford: Clarendon Press, 1988); Green, supra note 3 at 321. The term ‘communal goods’ was first coined by Waldron, supra note 15 at 354–59.
19. See Waldron, supra note 15 at 355.
20. In a previous article, I argued that this argument is erroneous. That one cannot characterize the benefit to X except by reference to the benefit that Y receives, does not mean that it is impossible to justify providing the good to X without reference to the benefits that Y will receive, ^s interests could logically provide the sole justification for imposing the duty even if promoting them logically entails promoting the interests of Y. See, Harel, supra note 1 at 79n.
21. See Neil MacCormick, ‘Taking the ‘Rights Thesis’ Seriously” in Neil MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford: Clarendon Press, 1982) at 143. A more sophisticated view based on the concept of public goods is advocated by Alexy. While Alexy believes that public goods can justify rights, he believes that public goods cannot be the sole reason justifying rights. Rights need to be grounded at least partially in individualistic goods. See Alexy, supra note 2.
22. Waldron, supra note 15 at 359.
23. Denise Réaume, “Individuals, Groups, and Rights to Public Goods” (1988) 38 U. of Tor. L. J. 1 at 10.
24. See Réaume, ibid, at 11.
25. The rebuttal of Waldron’s position entails inevitably the falsity of the stronger claim under which all public goods (and not only communal goods) cannot provide a justification for the protection of rights.
26. For a different attack on the view that rights cannot protect collective goods, see Green, supra note 3 at 320–24.
27. Alexander Meikeljohn, Political Freedom: The Constitutional Powers of the People (Westport, CT: Greenwood Press, 1960).
28. See John Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972) at ch. 4.
29. For a defense of the right to equal concern and respect, see Ronald Dworkin, supra note 14 at 272–78.
30. For a critique see Joseph Raz, supra note 11 ch. 9.
31. Waldron wishes primarily to deny the status of rights to what is labelled sometimes “third generation rights,” such as peace, or protection of the environment. See Waldron, supra note 15 at 339–44.
32. Réaume, supra note 23 at 13.
33. Ibid, at 1.
34. In contrast, Waldron acknowledges explicitly the possibility that communal goods can give rise to obligations. See Waldron, supra note 15 at 359.
