On being entitled

I had reason to look at the entry on Rights in the Stanford Encyclopedia of Philosophy and was struck by the opening sentences.¹

Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.

Rights dominate modern understandings of what actions are permissible and which institutions are just. Rights structure the form of governments, the content of laws, and the shape of morality as many now see it.

What is striking is that the direct equation of rights and entitlements is taken by the authors to be entirely uncontroversial in the context of 'modern understandings' of permissibility and the shape of morality. Regarding legal rights or or political rights or human rights as entitlements might be entirely uncontroversial, so if moral rights are just another species of right, the equation follows. But this stark statement of it in the case of moral rights should give us pause.

The reason is simple: the description of someone's actions as 'entitled' is a moral criticism of them.

Of course the sorts of entitlement that moral rights give one is not the same as white, male privilege gives one. However, it would be too quick to stop there without asking what the difference consists in and why that makes one entitlement good and the other bad.

Universality

The obvious difference is that moral rights and the ensuing entitlements are equally distributed to all and equally impose duties and constraints on all. When entitlement is being used as a moral critique, it is pointing out that the behaviour rests on an assumption of difference. However, entitlements deriving from moral rights rest on no such assumption: on the contrary they rest on a basis of equal standing.

Now that certainly is a morally relevant distinction. However, it tells us that e.g. white, male entitlement is worse than moral rights entitlement, but not that the latter is good, or even just not bad.

Even if entitlements are equally distributed, each entitlement is in itself an unequal relation. This can be masked by an overly quantitative conception of inequality, for if x > y it cannot also be the case that y > x. However, the inequality built in to all forms of entitlement is that it gives the holder a power over someone else.

Suppose my moral right to bodily integrity gives me the entitlement that you do not touch me (without consent). That gives me a power over you: the power to determine what you may or may not do. If the right is equally distributed, you have the same power over me. Mutual constraints are still constraints.

Rights as self-defence

The justification for - the primary purpose of - legal, political, and human rights is that they help mitigate a power imbalance created by social structures. For example, if there is a system of national health care, then role-holders or bodies within that system have to be given the power to make decisions about what individual treatments to provide. Careless, negligent, or inappropriate use of this power is mitigated by patient rights. We have to create power imbalances, and then mitigate for the risks to those over whom the power is wielded by giving them powers in the form of rights.

However, my moral right to bodily integrity, and consequent power over what you may and may not do, is not a mitigation against a power you have over me.

This point is easy to miss if we are not careful in distinguishing powers. You may be stronger than me or in a position of authority or granted social immunity in virtue of gender, and those may give you a power to touch me without consent. Does my moral right to bodily integrity mitigate that power you have over me? Does it offer me protection?

Yes and No. Yes: The moral right entitles me to decide whether your touching me is morally permissible or not, so in so far as you are sensitive to considerations of moral permissibility, it will offer me protection.

No: There are still situations where it is permissible to touch me without consent - e.g. pushing me out of the way of immediate danger - and times where it is impermissible to touch you with consent - e.g. when it would violate another moral duty.² At best what the moral right entitles me to is an apology, perhaps protecting me to some extent from negative emotions.

Demanding an apology

If you push me out of the way of a bicycle I hadn't seen, and you are a morally sensitive person, you will probably apologise. If you are English, you definitely will - and probably to the cyclist as well. And that would be a good thing.

My moral right to bodily integrity takes this a step further, entailing not only that it would be a good thing if you apologised, but that I am entitled to an apology. And not just as a formality: you must 'Say it like you mean it'. The value of such a coerced apology is that, however reluctantly, you admit fault. This raises two questions:

1. Supposing that you are at fault, what is the value to me, as opposed to society in general perhaps, of you admitting fault? Admitting fault is variously claimed to reduce the chance of erring again, be a lesson for others, allow readmittance to the moral fellowship etc. By why should any of those have a special value for me such that I have an entitlement to the apology no other person has? (Of course, the apology would be directed at me, but the need for to you to apologise might be entirely general and not based in my entitlements.)

2. The cases we are considering are ones where you are not at fault, where you did the right thing. While doing the right thing might have involved pushing me and it may be good if you apologise, it is hard to see how I can be entitled to an apology in such a case.

It is important to be clear about the dialectic here. The problem we are addressing is why being entitled in the way moral rights entitled their holders is a good thing. We are ready to admit that there are worse forms of entitlement, but why is this a good one?

Structure of the argument

Suppose that moral agent A has the physical power to do X to moral patient P. P has the moral right not to be X-ed, which is an entitlement to decide whether A's X-ing is permissible or not, and if A X-es impermissibly, to demand an apology etc. A wants to do X to P. Does this moral right mitigate A's power over X?

If A is morally insensitive, then P's entitlement to make X-ing impermissible and to demand an apology makes no difference to whether A X-es or not.

So suppose A is morally sensitive, then P's entitlement to make X-ing permissible or not does not determine whether A's X-ing is permissible, all things considered, and thus does not determine whether A X-es or not.³

What P's moral right does determine is whether P is entitled to an apology when A X-es.

Suppose A was wrong to X all things considered - perhaps A should have called out rather than pushed P. The apology is an admission of fault, and we might think that A admitting fault is a good thing, perhaps reducing the chance of further similar wrongs, etc. This does not entail that P has an entitlement to an apology, that P can demand it and use social and emotional pressure to coerce it. A's apology may be a good thing, it may make P in particular feel better about the incident, but that does not make P's entitlement a good thing.

Suppose, finally, that A was right to X all things considered. In such a case the apology may benefit P, even though it is not an admission of fault. It may be good for P if A makes explicit that the X-ing only happened because it brought about a better outcome etc. and A, being morally sensitive, may find that sufficient reason to apologise. Not only does this fall short of making P entitled to an apology, but also in such a situation, P's demanding an apology looks like a case of bad 'entitlement'. You cannot argue that the entitlement is good if it would be wrong to exercise it.

Conclusion

The equation of rights with entitlements opens rights-based moral theorising to the criticism that entitlements are a bad thing. The even distribution of moral entitlements does not show them to be good, just less bad. The claim that moral entitlements are like legal, political, and human rights in protecting the weak against the strong does not hold up.

We can avoid the problem by denying that moral rights should shape moral theory, by allowing theoretical space for directed duties while denying it to correlative entitlements. This possibility is obscured by a subtle ambiguity in the passage we started by quoting:

Rights structure ... the shape of morality as many now see it.

What is the subject matter of this claim? It is true that many moral philosophers see the shape of morality as structured by rights, but their theory may be wrong. It is also true that many non-philosophers in western societies shape their moral thinking around a structure which looks like it has a central place for moral rights. That is hardly surprising because, over the course of a few decades, dominant moral philosophies tend to influence first-order moral culture, and the Stanford Encyclopedia has been telling us this is dominant for more than 20 years.

When moral philosophers defend their theories on the basis of moral intuitions, we get a closed feedback loop: for their moral intuitions are merely an expression of the moral culture they live in. Thus closing off the possibility of the alternative just suggested.