Editors, Rights and the Market (pp. 44-63)


1.       Utilitarianism fails to respect persons (p. 46, 1st paragraph)

          a.       It ignores the inherent value of persons and can’t account for the idea that individuals should be treated with dignity and respect

          b.       It requires sacrificing any interest of a person, no matter how basic, when this is necessary to achieve the collective welfare

          c.       Sees persons as mere tools for achieving aggregate interest satisfaction (happiness)

          d.       Persons have no intrinsic value, only instrumental value

          e.       Treats people as mere means to ends, rather than ends in themselves


2.       Rights-based moral theory designed to respect persons by preventing certain treatment of them

          a.       Even if it promotes the collective welfare

                    i.        It thus places a restriction on utilitarian arguments

          b.       Even if majority votes to treat them that way

3.       Definition of rights

          a.       Legitimate/justified claims

          b.       To certain treatment (behavior/obligations/duties) on the part of others

                    i.        “Correlativity thesis:” Rights (of one individual) entail duties (of others toward that individual)

          c.       Based on--and for the sake of--protecting interests

                    i.        Interest: Whatever is good for an individual is in their interest

                    ii.       Editors prioritize rights based on the relative importance of the interests/goods they protect

                              (1)     When rights conflict, one must give way and the right that protects the less important interests should give way

          d.       That can be demanded as one’s due

                    i.        Respecting rights not a matter of charity for which thanks is appropriate

                    ii.       Claiming rights does not involve begging or saying “please”

          e.       Are not to be sacrificed for mere utility gains or majority rule


4.       Legal rights distinct from moral rights

          a.       Legal rights: Based on a particular legal system and enforced by courts

          b.       Moral Rights: Based on principles of a moral system, enforced by social sanctions

          c.       Examples:

                    i.        Alexa has a legal right to park in area on street shoveled clear of snow by her neighbor while she may not have a moral right to do so (her neighbor posses that moral right)

                    ii.       Drug companies may have a legal right to charge high prices for anti-AIDS drugs they sell in African communities ravaged by 20% HIV infection, but they may have no moral right to do so (those suffering from HIV may have moral rights to affordable prices for the drugs)

          d.       Theres two types of rights can overlap


5.       Connection between idea that persons have dignity (and are owed respect) and persons having rights

          a.       Persons have dignity and deserve respect (unlike mere things, like tables)

          b.       Why? Because they are rational and free beings–they are autonomous

                    i.        Autonomy is the capacity to make reasoned, deliberate choices about how to act

          c.       How, practically, can we respect that autonomy?

                    i.       Not complete control: Can’t be by giving people complete control over their lives (letting them act in any way they choose) as this would prevent others from doing what they want

                    ii.      Not mere formal choice:  Can’t be by guaranteeing mere more formal choice (thief who puts a gun to your head and gives you the “choice” between your money or your life)

                              (1)     Not compatible with autonomy

          d.       We can respect autonomy by insuring that people have a real opportunity to control their lives

          e.       Protecting people's fundamental interests allows them control over their lives and rights offer that protection


6.       What are the basic (fundamental) interests that rights ought to protect?

          a.       Interest in life

                    i.        Rights to the real opportunity to acquire minimal necessities for life (e.g., food, clothing, shelter)

          b.       Freedom from bodily harm

          c.       Freedom to express opinions

          d.       Freedom to associate with others

          e.       Freedom to exercise one’s religious commitments

          f.       Ability to collectively determine the conditions of a shared social system

7.       Basic rights secure autonomy and respect

          a.       By securing these basic interests of individuals (via rights), we insure that people have substantial control over their lives and are able to exercise their autonomy meaningfully

          b.       If people had to constantly worry about these interests, their freedom to control their lives would be radically reduced

                    i.        Consider people who lack food or physical security

          c.       These interests are constitutive of a decent human life

          d.       And violating them shows disrespect for a person


8.       One justifies a rights claims by showing how it is necessary to protect basic human interests

          a.       E.g., right to freedom of speech

                    i.        If central to being a person is autonomously choosing how to live one’s life

                    ii.       Then considering ideas about how to live is crucially important

                    iii.      But free expression of ideas, opinions and criticisms is necessary for properly considering these ideas

          b.       So right of freedom of speech is shown to be important by how it contributes to human autonomy

9.       Rights claims are ranked in terms of the relative importance of the interests/values they protect

          a.       Right to freedom of speech more important than right to drive a car

          b.       Right of freedom of speech more important than right of privacy which is more important then right to take a tax deduction for interest on a home loan

          c.       Right to smoke versus right to breath clean air


10.     Positive and Negative Rights (and positive and negative duties)

          a.       Positive rights entail positive duties (duty to do something)

          b.       Negative rights entail negative duties (duty to refrain from doing something)

          c.       Example of right to life

                    i.        Positive right to life requires that others assist

                              (1)     Child drowning in a pool

                    ii.       Negative right to life requires that others refrain from killing others

11.     Do only negative rights exist? No positive rights?

          a.       Some argue that only negative rights are real rights (or that negative rights are more important)

          b.       Is there a moral difference between pushing a person's head underwater and drowning her/him and failing to lift his/her head out of the water (after person being accidentally knocked unconscious)?

          c.       Editors argue that both positive and negative rights exist and are of equal importance and against claim only negative rights exist. Their arguments for this view are

                    i.        Negative rights depend on positive rights: Negative rights depend on people contributing $ to pay for their enforcement (and this means they require positive duties/rights)

                    ii.       Whole point of rights shows must be positive rights: If rights are based on respect for others’ autonomy and such autonomy involves having the real opportunity to choose and control one’s life, then failing to require that such opportunities are secured (e.g., failing to require positive duties that food be provided to a starving person) is to fail to respect the autonomy of others (which is the point of rights)

12.     Everyone thinks that positive duties/rights exist when

          a.       (1) Contractual arrangements exist (lifeguard)

          b.       (2) When a person has caused another to need assistance (I knocked you into the water)

          c.       Do they exist even when neither of these conditions are met?

13.     Editors agree with philosophers who have argued that positive duties to assist exist [even in the absence of these special circumstances (1) and (2), mentioned above] when

          a.       There is a clear and important need

          b.       A person/institution can respond effectively to that need

          c.       Providing assistance involves no serious risk or great loss

          d.       No guarantee that others will provide the assistance

14.     Consider Kitty Genovese who was stabbed to death outside her apartment and none of the witnesses called the police or yelled to try to stop the attack

          a.       Did they fail in their responsibilities? Did they have a duty to aid? Did Genovese have a right to their assistance? (Editors answer these questions yes and suggest this is an example of a positive right violated by inaction)


15.     Question:

          a.       Does the (unregulated) free market best protect individual rights?

          b.       Or are individual rights better protected by greater government involvement in the market (and by business people seeing themselves as having more extensive moral responsibilities than simply maximizing profit)?


16.     Editors consider two rights and ask if the free market best protects (or is necessary to protect) those rights

          a.       Right to liberty (Is a free market is required to protect liberty)

          b.       Right to private property (Is a free market is required to protect private property)



17.     Argument that free market best protects liberty:

          a.       Government regulation of the market interferes with people’s liberty (and moral constraints on business people pursuit of profits interferes with their liberty)


18.     Editors’ replies

19.     Right to liberty can’t be absolute and unrestrained

          a.       Absolute right of liberty would involve social chaos; sometimes people must be prevented from doing what they want

          b.       Absolute liberty for all is impossible because people’s liberty conflicts

          c.       People interfering with what others want is a fact of social life

20.     Question is: Which interferences (liberties) should we prohibit?

          a.       Answers editors think won’t work:

                    i.        People should be at liberty to do what they want only when it does not interfere with others' liberty

                              (1)     Problem is that this assumes we already understand what appropriate liberty involves

                    ii.       Prohibit the (quantitatively) greatest interferences

                              (1)     Ignores that what matters is not the number of interferences but the importance of what is interfered with

                              (2)     We don’t want people to have the greatest amount of liberty but to have the most important liberties


21.     Editors believe we should protect the more qualitatively important liberties and restrict the less important ones (when they conflict)

22.     Examples

          a.      Should we allow suburban homeowners liberty of erecting 20 foot fences around front lawns or allow neighbors the liberty to set zoning ordinances requiring open vistas along streets?

          b.      Should we allow private college fraternities the liberty to exclude minorities or allow every person the liberty to belong to fraternities

          c.      Should we allows contemporary consumers liberty of driving large and inefficient private autos or should we allow future generations the liberty of access to more plentiful fossil fuels

          d.      Should we allow people the liberty of computer file sharing or should we allow the music/software companies the liberty of limiting access to only those who have paid for the music/software?


23.     Question is: Is the liberty of unhindered economic activity more or less important than the liberties with which it conflicts?

24.     Economic liberties can conflict with civil liberties

          a.       Freedom to hire/fire at will would allow managers to

                    i.        Refuse to hire Jewish people

                    ii.       Fire employees who spoke in favor of liberal causes

25.     Sometimes government regulation can better protect liberty

          a.       Government regulations can increase liberties (overall)

          b.       Examples:

                    i.        Stop lights (increases freedom of auto driving, by restricting that freedom)

                    ii.       Zoning restrictions: prohibiting 20 foot tall fences (one person’s freedom is restricted so that all the neighbor’s freedom of vision is enhanced).


26.     Editors conclude that a right to liberty does not justify a free (minimally regulated) market

          a.       More important liberties require curtailing economic liberties



27.     Property rights argument for (unregulated) free market

          a.       Property rights mean an owner should be free to control his or her property

          b.       Regulations of the market (or moral constraints on profit maximization) take away from this freedom and thus are inconsistent with a commitment to property rights

          c.       In short, market regulations unjustly infringe on property rights

28.     Editors’ reply

          a.       Everyone agrees that property rights are not absolute and are sometimes justifiably restricted

                    i.        E.g., Can’t use one’s property (car or gun) to coerce or harm others

          b.       The question is when are they justifiably restricted and whether specific market regulations that restrict uses of property are justified

          c.       Wetlands regulations example:

                    i.        Are federal environmental regulations that prohibit filling wetlands illegitimate government restrictions of private property because they limit ability to develop the property and potentially reduce its market value?

                    ii.       Or are wetland regulations legitimate governmental authority that protects health and safety of citizen by ensuring clean water supplies and flood control?

          d.       Plausible that property rights are justifiably restricted to protect the general welfare

          e.       Property rights (to fill wetlands) might also be restricted to protect other property rights (flooding on neighbor's land)

29.     Analysis of property rights

          a.       A bundle of separable rights; to possess, to use, to benefit from, to exclude others from, to dispose of or sell

          b.       Property rights give the owner various types of control over the thing owned

          c.       Most everyone accepts the legitimacy of some property rights

                    i.        Even socialists who reject private ownership of productive resources–land, machinery, industries–accept ownership of personal property

          d.       Question is how extensive should property rights be?

                    i.        Owning species/genes?  Owning airwaves? Owning clean air?

          e.       Defenders of the free market want to extend property rights as far as possible and want people to have virtually unlimited ability to do what they want with their property

30.     To determine whether this is the best view of property rights or whether property rights need to be more limited, editors consider the justifications for the existence of private property rights



31.     Justifications for property rights

          a.       Utility: allowing private property and the ability to accumulate it gives people incentives for productive labor

          b.       Autonomy: allowing private property gives individuals control over their lives by allowing them to control the things the need to survive (food, shelter, clothing)

          c.       Fairness: I made it hence it is mine; or I mixed my labor with this land to produce these crops, and so they are mine

32.     Editors argue that if these are the justifications of private property then uses of private property must not undermine these values that justify the institution

33.     When uses of private property fail to maximize utility, or undermine autonomy, or involve unfairness, these uses need to be restricted.

34.     Examples

          a.       Letting owners of private property dump toxic wastes on their land is arguably not conducive to social welfare (fails to promote utility)

          b.       Letting owners of business fire workers for any reason they want (because the business is their private property and they have the right to control access to it) or pay them the smallest wage the market will bear (no minimum wage) undermines the value of fairness (runs counter to the fairness justification of private property)

          c.       Extreme economic liberty can undermine autonomy (of those who are discriminated against and whose civil liberties undermined) or do so by allowing concentrations of wealth that allows for influence over the political process

35.     The free market conception of unrestricted uses of private property results in undermining the very values that make private property legitimate

36.     Must limit owners' ability to use their property in ways that enure private property systems achieve goals of utility, autonomy and fairness

37.     Hence the appeal to private property does not justify an unregulated free market (for the justification for private property show that it must be limited if it is to achieve its goals)