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May 31, 2006
Mirko Bagaric, the head of the law school at Deakin University, and author of It's a Matter of Opinion: An Analysis of the Defining Issues of our Time, has a crack at rights in the Canberra Times. It is more sophisticated that the usual attacks launched by The Australian's conservatives, such as Janet Albrechtsen, who view 'the alluring language of right as cementing into the law a radical left-wing political agenda.' Albrechtsen is pmore or less a conservative warrior in the culture wars on behalf of Murdoch.
Bagaric's op.ed: introduces rights in terms of the way that:
...the distorted individualist moral code that pervades our collective thinking. Over the past 60 years there has been a slow but unmistakable change in the manner in which we approach moral issues. Our personal morality is central to our conduct because it impacts, often subconsciously, on all of the important decisions we make in our daily lives. You don't need to be a philosopher to recognise the fundamental shift. We are now wired in a way that the standard currency for dealing with moral issues is that of "rights". Rights claims emerged in response the atrocities during World War II as counter-ideologies to combat tyrannical regimes.
Then we have the critique:
It's easy to invent rights claims because rights are intellectual nonsense. No one has yet been able to provide tenable answers to questions such as: Where do rights come from? How can we distinguish real from fanciful rights? This allows people to make up rights as they "go along".
That ignores the tradition of natural right doesn't it? Or the way that libertarians ground rights on private property.The 'intellectual nonsense' is a reference to Benthamite utilitarianism, isn't it.
Bagaric continues. He says that rights are seductive because they are individualising claims and seem to give us a protective sphere. They appeal to those of us who have a "me, me, me" approach to life.
So what is the problem with this? Self-interest is what liberalism is grounded on. That foundationalism means me, me, me doesn't it?
Bagaric says rhe problem with rights is that:
... they limit our moral horizons to ourselves - the moral compass is suspended in an inward direction. But buried only slightly beneath such an approach are the inescapable realities that as people we live in communities; communities are merely the sum of a number of other individuals; and the actions of one person (exercising his or her rights) can have a (negative) effect on the interests of others.
If you want to know what interests we have, the answer is simple. It is a matter of biology and sociology, not misguided social and legal engineering. To attain any degree of flourishing we need the right to life, physical integrity, liberty, food, shelter, property and access to good health care and education.
Bagaric's phrase 'the moral compass is suspended in an inward direction' ignores the external relationship between right-bearing individuals --we can do what we desire (freedom) provided we do not infringe on the rights of others. Note the way that the individual 'interests' is is a matter of biology and sociology and that communites are merely the sum of of a number of other individuals. What surfaces is utilitarianism.; a utilitarianism that sees a Bill of Rights as social engineering. Doesn't the self interest of utilitarianism also mean me , me, me, provided I don't harm others?
Bagaric then says that the:
Talk of rights beyond these interests is destructive of human wellbeing. The most dispiriting aspect of the rights wave is that it has swept from our psyche the most important concept that is central to our wellbeing: the common good, measured in terms of net human flourishing. The common good is a notion that has become a relic of the past. We are paying heavily for the disinterest shown towards others. As with most short-term pursuits, it is self-defeating.
We still talk in terms of public interest:-eg., irrigators taking a reduction in water entitlements to ensure the sustainability of water as a natural resource for a regional community. That indicates that there is not 'the disinterest shown towards others' that Bagaric claims. Therei s a recognition of some form of commonality, albeit one expressed in utilitarian terms.
Bagaric is confused. You cannot get wellbeing-- the common good, measured in terms of net human flourishing--from utilitarianism. What the latter gives you is happness as merely the sum of the happiness of all individual's desires or interests. Human flourishing is an Aristotlean term that refers to a way of living.
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Higher order forms of (spontaneous) self-organisation, such as society, culture etc are not possible without individual liberty.
He is also side-stepping the point that rights are a form of restraint as well, whether legislatively, or individually. So rather than being selfishly, or internally focused, they form a just basis for individuals and larger bodies to interact.