Casual rights scepticism

by Micah on October 29, 2003

Group blogs seem to be picking up steam, especially among law students and “legal academics”: Over at “En Banc”:, “Unlearned Hand”:, who is now dividing his time between his eponymous blog and the very promising new one, argues, in this “post”:, that prisoners at Gitmo have no moral rights because such rights are impossible to identify.

bq. If “rights are intrinsic”, then define them. Come on, I’m really interested to hear all about my instrinsic rights. Which rights are these? Who gets to define them? What enforcement mechanisms? Don’t waste your time. It’s a bunch of pseudo-ethical mumbo jumbo that has little meaning in print and even less in practice . . . all this talk of instrinsic rights will get you absolutely nowhere, except perhaps into the good graces of a DPhil candidate at Oxford.

Jeremy Bentham smiles upon thee, Unlearned Hand. In the comments, UH summarizes his position this way:

bq. So even if there ARE such things as intrinsic rights, I don’t think we can know what they are, or at least not definitively enough to make that the basis of our laws, and I don’t think simply citing something as being intrinsic is actually what makes it protected.

There are two arguments here. The first is a kind of epistemic skepticism about moral rights. The second is a silly, and rather uncharitable, claim that moral rights are not self-enforcing. But then, no one (really) ever said they were. It doesn’t take much to see that the language of moral rights can be used to criticize laws (and legal rights) that don’t adequately protect them.

So setting aside the silly response (and it is silly even by the lights of many legal positivists, who believe that moral rights exist, even if the validity of law does not depend on any relation to them), the first response might be more troubling. I say “might be” because you might think moral rights are harder to identify than other moral norms. Or maybe you think all talk about morality is just a bunch of “pseudo-ethical mumbo jumbo.” If you think the latter, then you need to worry about skepticism regarding all moral claims, and not just claims about moral rights. And that’s rather worrisome, in part, because it makes it impossible to criticize laws on moral grounds. Now, I know some very smart philosophers who would happily walk down that road, but do we really want to join them? If not, then we need an argument for why it’s more difficult to identify (basic?) moral rights than it is to make other sorts of moral claims. For what it’s worth, I don’t think that line of argument is very promising. I don’t think it’s all that difficult to identify–which is just to say, make good arguments for–certain basic moral rights (e.g., rights to personal bodily integrity, subsistence, and freedom of conscience). And just to anticipate an obvious response: the fact that some people will disagree with me about their existence, let alone their nature and scope, is not yet an argument that they don’t exist. People disagree about all forms of moral argument. But this does not have to drive us toward skepticism about morality. There are lots of stopping points along the way. (Let me add: one of the nice things about reading for a dphil is that it gives you time to make some of those stops. As Larry Solum would say: highly recommended!)



dave hesman 10.29.03 at 4:22 pm

Oddly this “intrinsic rights” argument is one that more often than not sets Americans apart from Europeans. The Americans arguing for them, becausa, as I understand it, they’re “self-evident”.


Unlearned Hand 10.29.03 at 4:34 pm

I’ve posted some clarifications, and am interested to see whether it changes the silliness of my argument:


Unlearned Hand 10.29.03 at 4:57 pm

Oh, and for those who want the original post, go here:

Micah, is there any way you can add that link to your original post? Otherwise your readers might be searching all over En Banc to find the silly post.


micah 10.29.03 at 5:30 pm


I think what you say in your response clears a lot up, although I don’t think your South African interlocutor was trying to make a legal argument in the first place. I thought he was making a moral argument based on claims about prisoners’ rights–that is, an argument about what their legal rights should be. Now that I’ve read your response, maybe we were just talking past each other.


Unlearned Hand 10.29.03 at 7:30 pm

You might be right about the South African, in which case HE was the one who was talking past ME, and taking my original Gitmo post to be about much more than it was originally intended. Whatever the case, it certainly has been good food for thought.


Micha Ghertner 10.29.03 at 8:07 pm

One small quibble: I don’t think it is at all easy to make good arguments for a right to subsistence, just as it is not easy to make good arguments for a right to land-ownership. Intuitively, I believe in a right to own land, just as I’m sure you intuitively believe in a right to subsistence, but strong, solid arguments for either are difficult to make.


AL 10.29.03 at 9:38 pm

I agree with the first posted comment referring to Thomas Jefferson’s nuanced (and very American) approach to intrinsic rights – they are inalieanable rights granted by our Creator. The logical conclusion is that one cannot deny the existence of rights anymore than one can deny the existence of a creator. Jefferson’s interpretation is delicate because he acknowledges the intricate relationship between state (protector of rights) and church (giver of rights.)

Which is neither here nor there. It is increasingly interesting to me how often we – and I include myself – look to the founders of this country for answers. While this is good because they certainly had a few!, I am starting to think that at some point we need to do some of our own heavy lifting. The thinkers who founded this country bequeathed a large and valuable intellectual legacy, but it is being stretched thin and I think we should begin the process of actively contributing to the legacy.

Closing Question: if the legal scholars are not comfortable with the concept of ‘intrinsic rights’, does that imply the death of ‘sustainability’ as a concept governing growth and development. If we, in the present, don’t have intrinsic rights, then how can future generations possess rights that we are obligated to safeguard?


Mike Huben 10.30.03 at 5:24 am

Many people founder on the problems of morality because they do not have a positivist idea of how morality can be explained. Here’s my stab at it:

Price and Moral Relativism

Likewise, a positivist anthropological approach to rights seems to obviate many of the problems:

Nonsense On Stilts

I’ve since developed that idea a bit further, to make it jibe with some basic economics, if anybody is interested.

I’d really like to know if anybody has published similar ideas to either of these badly written essays.


raj 10.30.03 at 12:23 pm

This issue of “intrinsic rights” sounds a lot like “natural rights”–which some appear to base on what they see as “natural law.” It’s rather silly, of course.

There is in copyright law–primarily in France but also a few other European countries–that are referred to as “Droit Moral” (pardon my French) primarily relating to the right of an artist not to have his work defaced without his permission, but that is somewhat different than the issue being discussed in the post.


Chris Bertram 10.30.03 at 12:33 pm

_This issue of “intrinsic rights” sounds a lot like “natural rights”—which some appear to base on what they see as “natural law.” It’s rather silly, of course._

What extraordinary things people write on our comments boards! As it happens I was consulting John Finnis’s _Natural Law and Natural Rights_ whilst preparing a lecture only yesterday. I always thought that much of Finnis’s work involved mistakes, perhaps of rather deep kinds.

But now I find it is just “silly”, “of course”.


Invisible Adjunct 10.30.03 at 1:12 pm

“This issue of ‘intrinsic rights’ sounds a lot like ‘natural rights’—which some appear to base on what they see as ‘natural law.’”

That’s not surprising, since our ideas of human rights and moral rights derive from early modern natural law.

And I think Bentham had a point. Or at least, that his point is not easily dismissable. If we’re not prepared to say (as Locke-Hutcheson-Jefferson said) that we have certain inherent rights because providence says that we do, then from where do we derive our rights?

“I don’t think it’s all that difficult to identify—which is just to say, make good arguments for—certain basic moral rights (e.g., rights to personal bodily integrity, subsistence, and freedom of conscience). And just to anticipate an obvious response: the fact that some people will disagree with me about their existence, let alone their nature and scope, is not yet an argument that they don’t exist.”
I agree that we can make good arguments for these rights. Indeed, I like to think that we can make very good arguments for these rights. But I don’t see how we can argue that they “exist” in some intrinsic way (which I take to mean, exist outside of our own saying that they exist, and of course some of us will say that they don’t) without relying on a natural law framework that many people would now reject. That is, we can argue that our ideals of liberty, morality and justice are best served when we define human beings in a way that involves the idea of certain rights. But when a Bentham comes along, and points out, perhaps, that these rights are historically and culturally specific and contingent, what is the our response? Natural law provides a foundation, but most people would now discard that foundation.


David W. 10.30.03 at 3:19 pm

Chris et al, I’ll grant that some very smart and clever people have made some very smart and clever attempts to defend a concept of natural rights, which can make for interesting reading and thoughtful reflection. But surely, they’ve failed to make their case on philosophical grounds–right? Of course, opponents of natural rights can’t “prove” their case either, but the burden clearly lies with the affirmative case.

Your man Rousseau, it seems to me, helps us see base “natural rights” talk quite well, both through his take-down of Hobbes and Locke, and through his affirmative political theory in which he shows how profoundly unnatural and alienated political arrangements can and should be made to appear natural to their participants.


Chris Bertram 10.30.03 at 3:35 pm

Had I more time at the moment, I’d get into this argument. Suffice to say that it seems to me that once we’ve put to one side various metaphysical discussion about rights and law (not that I wouldn’t want to have those) and focus on whether we want to affirm that people have certain rights irrespective of what positive law or social convention happen to say, then the answer is “yes”. There are further questions of how and why that should be so, but it would be a mistake to think that we can’t respectably affirm such extraconventional rights without a satisfactory answer to those further questions.


Micha Ghertner 10.30.03 at 10:50 pm

I wouldn’t be so quick to dismiss natural law and natural rights as “silly” or mere social constructs. Of course, natural rights don’t “exist” in the sense that a table or a chair or you or I exist. But I would argue that they do exist in the sense that there are certain principles that societies must respect if they want their members to achieve certain results: happiness, fulfillment, etc.

Randy Barnett has an excellent account of this argument in the form of the hypothetical imperitive: Given the facts of nature and the world in which we live, if we want to create social relations that promote happiness, fulfillment, and all those other nice things, then we must respect certain individual rights.

There is no need to point to any supernatural constructs in order to make this argument – these rights flow simply from the shared consequences that we wish to achieve. The question then becomes what results we want and what rights get us there.

Comments on this entry are closed.