Rights and Autonomy
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H. L. A. Hart has recently taken note of and applauded a discernible paradigm shift in political and legal theory from the “widely accepted old faith that some sort of utilitarianism . . . must capture the essence of political morality” to one of “basic human rights . . . , if only could find some sufficiently firm foundations for such rights.” Hart argues that recent exponents of this paradigm shift, whether associated with libertarian conservatism (Nozick) or the liberal welfare state (Dworkin), powerfully make their negative point against utilitarianism, but fail to lay adequate foundations for their constructive alternatives. Such theorists are, in the terms of Hart’s paper, “between utility and rights”: they have begun to develop the long overdue transition from one paradigm to another, but they are too much in thrall to the utilitarianism they reject clearly to justify a constructive alternative. In this essay, I take Hart’s argument as both premise of challenge to my own inquiry; his arguments, with characteristic brilliance and incision, reveal our needs for fundamental conceptual work in the concept of human rights in a spirit which puts behind it the obsession with the inadequacies of utilitarianism and freshly faces the taks of clarifying the deontological alternative. In order to do so, we must, in the spirit of the recent works of John Rawls and Alan Gewirth, articulate in defensible contemporary terms the perspective on human rights of its greatest classical philosophers, in particular, Rousseau and Kant. The idea of human rights represents a major departure in civilized moral thought. When Rousseau and Kant gave the idea its first articulate and profound theoretical statements, they defined a way of thinking about the moral attitude to personality that was, in ways I must explain, radically new. The practical political implications of this way of thinking are a matter of history. The idea of human rights was one among the central moral concepts in terms of which a number of great political revolutions conceived and justified their demands. Once introduced, the idea of human rights could not be cabined. In American institutional history, the idea of human rights lay behind the American innovation of judicial review: since human rights are not the just subject of political bargaining and compromise, countermajoritarian courts with the American power of judicial review are a natural institutional way to secure such rights from the incursions of the institutions based on majority rule. In our own time, the language and thought of human rights has been elaborated to articulate a number of social and economic rights (anticipated, strikingly, by Tom Paine), and has, in the international sphere, been the central moral idea in terms of which colonial independence and postcolonial interdependence have been conceived and discussed. An adequate theory of human rights would cast light on why the notion of human rights has naturally been put to such uses in the history of human institutions and how it should continue to be elaborated and extended. My aim in this essay is to clarify the human rights perspective (i.e., the underlying structure of the language and thought of human rights). I take this structure to include certain fundamental attitudes to human personality which find expression in the weight which considerations of human rights have in practical reasoning; often claims of such rights override other considerations, and sometimes they justify revolution, rebellion, and ultimate resistance. I characterize and explicate this structure in terms of the autonomy-based interpretation of treating persons as equals.
Source Publication
The Inner Citadel: Essays on Individual Autonomy
Source Editors/Authors
John Christman
Publication Date
1989
Recommended Citation
Richards, David A. J., "Rights and Autonomy" (1989). Faculty Chapters. 1922.
https://gretchen.law.nyu.edu/fac-chapt/1922
