Jason Brennan discusses what rights are and contrasts rights‐​based thinking about ethics with utilitarian thinking.

Jason Brennan is the Robert J. and Elizabeth Flanagan Associate Professor of Strategy, Economics, Ethics, and Public Policy at Georgetown University. He is the author of Against Democracy (2016), Markets without Limits (2015), Compulsory Voting: For and Against (2014), Why Not Capitalism? (2014), Libertarianism: What Everyone Needs to Know (2012), The Ethics of Voting (2011), and A Brief History of Liberty (2010). Brennan also blogs at Bleeding Heart Libertarians.

Brennan discusses what rights are and contrasts rights‐​based thinking about ethics with utilitarian thinking.

Further Reading

Ursula K. Le Guin, The Ones Who Walk Away From Omelas

Robert Nozick, Anarchy, State, and Utopia

Ronald Dworkin, Taking Rights Seriously

Wesley Newcomb Hohfeld, Fundamental Legal Conceptions

John Stuart Mill, On Liberty


Brennan: So let’s talk a little bit about why rights might be important. I’m not really going to talk so much about what rights we have. That’ll be a big debate. But just why, it might be important.

So to start, let’s think about the following. Most people agree with the following that pleasure is good and pain is bad. Happiness is good and suffering is bad. So many moral norms if you think about it, they seem to have the tendency to reduce suffering and pain and have the tendency to promote happiness and pleasure and wellbeing. And so that leads to many thinkers to think, well maybe that’s what morality is fundamentally about. The purpose of morality is just to promote pleasure over pain, to maximize aggregate happiness among all people. And that view is called utilitarianism. You’re just going to add up everybody’s happiness and add up everybody’s suffering and try to maximize the happiness over suffering. Subtract the suffering from the happiness to maximize total aggregate happiness. And if you think about it, it seems reasonable to allow certain kinds of tradeoffs between happiness and pain in our own lives. So if you decide to start a new exercise regimen like say Insanity 30 led by Shaun T, right? You’ll probably suffer a lot when you do it because it’s hard but you’re okay with that because you think, “I’m suffering right now as I do the exercising but it’s worth it in the long term because I’ll get some sort of health benefits.” Or maybe you have some money in your pocket and you’d like to buy some toy for yourself but you decide to invest it for your retirement instead. You suffer a little bit now but you’re making a tradeoff with your current pleasure or pain in order to get more pleasure in the future. We make these kinds of tradeoffs all the time for ourselves. The worry though is can we do that kind of tradeoff among people or between people, not just in our own lives? Can I have you suffer a whole bunch for my benefit or shall I suffer a bunch for your benefit? So utilitarianism seems to say yes. If we say the purpose of morality is to maximize aggregate pleasure and it seems to like when we hurt these people a little bit, and these people benefit a lot, that’s okay. And it’s not clear that that’s really just. And then rights are going to be kind of response to that intuition.

So to sort of show you a way that might matter, I’ll give you a couple quick stories. So there’s a thought experiment that occurs in the short story, The Ones Who Walk Away From Omelas, and it’s often seen as a counter example to utilitarianism. In the story, what happens is a world is described, a city called Omelas, and it’s a beautiful wonderful city. Everything about it seems really grand, the way that it’s organized, and all the people are healthy and beautiful, they have great relationships with one another, and so on. But you learn over the course of the story that the reason the city is doing so well is because of some magic. There’s a small child who’s kept in a filthy closet and basically tortured and kept in her own filth. And magically having her suffer like that makes everyone much better off. And as part of your education when you grow up in Omelas, sometime around middle school, you’re brought to see the child. And then the reason it’s called The Ones Who Walk Away From Omelas is at the end of the short story, it describes how some people at night will just choose to slip away and walk away from Omelas and to not turn back. So Omelas at first glance seems to be utopian and perfect but then we find out all of this is because they’re exploiting, hurting one person. And most people of the intuition this is deeply unjust even though Omelas has lower crime rates, and more health, and all the other social factors, it’s way better than any other country on Earth.

Another thought experiment going along with this is introduced by the philosopher named Robert Nozick, and it’s what’s called the Utility Monster thought experiment. So he says imagine that there’s a sadist like I’m a sadist and I have almost unlimited capacity for pleasure, and I really enjoy watching other people suffer. So like however much you suffer I will enjoy that type of happiness squared. So if you suffer 3 suffering units, I get 9 happiness units. And I have an unlimited capacity for pleasure. So if this utility monster existed, utilitarianism has a clear implication. It says if there were utility monsters, then what you ought to do is offer yourself up to be sacrificed for its benefit. And that just seems obviously false even though you’re maximizing aggregate happiness by doing that.

Now some people think “Well these thought experiments, they’re just kind of highfalutin nonsense. There isn’t any magical thing where you can torture a kid and help a bunch of other people. There is no real utility monster.” These are meant to be extreme thought experiments to sort of illustrate the point but we do have actual tradeoffs like this in the real world. So if you’re working for say the US Army and you’re thinking about “There’s a terrorist here and I can bomb this person, kill 50 people around him and possibly save more lives down the road,” is that okay? Is that just? Or if you’re working for the government you say, “I’m going to spy on most Americans in order to prevent a terrorist attack,” is that just or unjust? Or think of say if you’ve ever heard of this thing called the Tuskegee Syphilis Experiment, at one point, the US government gave people syphilis in order to see what would happen. And the goal here was to see, study it, and then maybe from that, they’d learn something about medicine and then help more people down the road. So in each of these cases, the government is hurting one person to benefit other people. The thought is they’re benefiting some people more than the ones that they’re hurting so it’s worth it. A lot of people when they react to that, they think “This is unjust. Sure you’re maximizing total happiness and total pleasure by doing this perhaps but even if you are, it’s not the right thing to do.” And this is why rights seem to be important.

So a lot of philosophers react to utilitarianism and say the problem with utilitarian thinking is that it doesn’t respect whom I call the separateness of persons like it’s okay for me to tradeoff my pleasure against my pain because I’m only one person but it’s not okay if you hurt me for your benefit or hurt you for my benefit because we’re different people. We can’t just put our utilities together in one scale. So instead, we need rights perhaps. So Ronald Dworkin, a famous philosopher says that rights are kind of like trump cards. What a right does is it forbids society from using you in different ways for its own benefit. So society might say, “If we do this to you, it’ll benefit us a whole bunch” and you can pull up your right and say, “No, you can’t. This is a trump card. It trumps your ability to make social calculations at my expense.”

So we’re not here to talk about which rights we have. We’re just going to talk about how rights work in general. What are they? And the legal theorist, Wesley Hohfeld says rights have a kind of common way of working which is this. When I have a right to something, what that does is it imposes upon you, the rest of you, a bunch of duties. My right to life is equivalent to you all having an enforceable obligation not to kill me. My right to free speech is equivalent to you having an enforceable obligation not to interfere with my speaking. My right to freedom of conscience means that you have an enforceable obligation not to force me to believe in one religion or believe in one ideology. So that’s how rights work. For one person to have a right is for other people to have a number of corresponding enforceable duties whatever they might be. So one of the big questions would be “What rights do we have? How strong are these rights?” For it to really be a right, it has to be a strong obligation. It can’t be something that you can just give up very quickly. “Do we have negative rights or positive rights or both?” So, negative right would be a right against being interfered with, or harmed in some way; whereas a positive right would be something that actually imposes upon other people an obligation to do something for me. So for example my sons have a positive right held against me to be fed. It’s not enough that I don’t kill them. I actually have to feed them. I owe it to them to do something for them. So everyone now after Hohfeld wrote this essay, they agree that this is how rights work. Rights are things that impose obligations upon other people. And one reason that rights might be important is because they allow us to live together without us constantly using each other and sacrificing one another harming one another.

Now Robert Nozick added a ripple to this and said “If philosophy or political philosophy can take into account rights but still fail to respect rights the right way, it could still fail to give proper value to rights.” So imagine a theory. Let’s call it a utilitarianism of rights. This is the view that what we ought to do is minimize net rights violations. So rights are important so let’s minimize the number of rights violations. Now the problem with that view is if you’re just trying to minimize rights violations, then it might occur to you “Well one way I can rights violations is by violating some rights.” So Nozick says this is a theory that respects rights in some ways but fails to really take rights seriously. The goal here, rights, are a side constraint. What they do is they forbid you from doing certain things or they require you to do certain things. And then only after you discharge these obligations, you’re forbidden from doing these things required to do these things can you worry about these other factors. So after Nozick said this, most philosophers agree with this as well. They’re like “Yeah, that’s how rights work. Rights are side constraints. They forbid people from doing certain things in order to discharge various social goals.” So that’s just how, the concept of rights, how they work. We haven’t really talked about what rights people have, why they might have them, what different philosophers said about that. We’re just thinking about what are rights and what’s their function.

One final thing to think about this too is rights are constraints that forbid you from doing things to people in order to maximize social utility. That doesn’t mean that rights are bad for social utility. It might very well turn out that having rights is one of the things that produce a lot of utility for people. It might be that having rights is the thing that lets us live together in peace and prosperity. So as we talk about the various rights people might have and the arguments for and against them, one common factor that you’ll see is people argue that a good reason to give people rights is because it benefits others. So it’s an interesting almost paradoxical sounding thing to say that if you want to maximize utility, don’t allow people to try to maximize utility, instead respect rights.

Question: When there’s disagreement as to what freedoms and liberties matter or are and freedom from and freedom to, how can you even begin to answer questions of utilitarianism before there’s even a consensus on those?

Brennan: Yes. That’s a really good question. Some utilitarians say there aren’t rights. We don’t have to worry about rights because all that matters is happiness and pleasure versus pain and suffering, and we’re just going to see what maximizes that and get in the way. Other utilitarians maybe more sophisticated ones say that figuring out what maximizes pain and pleasure and so on is the thing that tells us what rights we have. So the philosopher John Stuart Mill wrote a book called On Liberty where he advocated giving people extensive civil rights including extensive rights against paternalistic interference and ultimately, his argument was we’re going to draw a sphere of freedom around each individual person, and the way we decide where the boundaries will be is what will maximize overall utility if we draw it here or here. And he thought we have to give people really extensive sphere if we really want to generate the best overall outcomes, and even thought that giving people the right to make very dumb and self‐​destructive choices even though that will lead to them making self‐​destructive choices from time to time is the thing that overall will maximize utility. So you get kind of interesting argument for that. But you’re almost pushing on a kind of a broader topic or broader question which is that people disagree about what’s just and unjust, what’s morally right or wrong. And it’s an interesting facet to that but people disagree about everything. They disagree about mathematics, they disagree about science. And sometimes, we can resolve these disagreements by noting that we have some common ground. So if you think about it like you have a bunch of moral beliefs. You have a bunch of moral intuitions and judgments but it’s unlikely that all of your moral beliefs and judgments form a consistent set. Most likely, you can’t hold all of your beliefs in your head at one time. So if you were to write all your beliefs down and look at them, you’d see that there are some inconsistencies there. A lot of political philosophy is doing is noting that there is this inconsistency and trying to resolve the tension one way or another. And so one way we resolve moral disagreements is by finding common ground and seeing what that implies so we can say things like “You and I disagree about this topic but we agree on these principles, we agree on these facts. What are these principles and these facts imply together?” So we’re looking for that common ground and seeing where it leads us. And you’ll see that the arguments we’ll be looking at today will have that kind of format or someone will say “I’m a left liberal and you’re a libertarian but we agree to this claim here, and this claim seems to imply my position, not your position.”