A Defense of Natural Procedural Rights,
ABSTRACT: In this essay, I argue that we should believe that agents have what I call natural procedural rights. On the one hand, agents have rights to prevent their rights from being violated, rights to stop those who are violating their rights, and rights to rectification when their rights are violated. In pursuing these rights, I argue that—at least under some conditions—agents have an obligation to inform others of the extent to which they are prepared to go in enforcing these rights. This obligation is grounded in an agent’s right to know if he is a rights violator in the first place. There is broad agreement that, in most cases, a knowing rights violator is rightly subject to penalties that unknowing rights violators are not. These procedural rights thus target the epistemic space between a knowing rights violator and an accidental rights violator.
KEYWORDS: procedural rights, Barnett, Block, Nozick, natural rights, rights
Lamont Rodgers ([email protected]) is professor of philosophy at Houston Community College.
In this essay, I argue that we should believe that agents have what I call natural procedural rights.1 On the one hand, agents have rights to prevent their rights from being violated, rights to stop those who are violating their rights, and rights to rectification when their rights are violated. In pursuing these rights, I argue that—at least under some conditions—agents have an obligation to inform others of the extent to which they are prepared to go in enforcing these rights. This obligation is grounded in an agent’s right to know if he is a rights violator in the first place. Rights, after all, are a two-way street. I have a right to kick you off my property, but you have a right to resist that kicking if you’re not actually on my property. I argue that you may resist my eviction if you have no reason to believe that you are trespassing. Similarly, if you graze the edge of my lawn, you do not expect me to engage in an eviction of any sort, let alone a violent one. I argue that before I engage in any sort of eviction, I have to inform you that I will evict you. This is because you have no reason to expect me to enforce my eviction rights in cases such as this. There is broad agreement that, in most cases, a knowing rights violator is rightly subject to penalties that unknowing rights violators are not (Nozick 1974; Mack 2006; Block 2011; Werner 2015). These procedural rights thus target the epistemic space between a knowing rights violator and an accidental rights violator.
Three bits of clarification are in order before I begin the central argument of this paper. First, I will assume here that individuals have robust rights over their own persons and over the private property that they legitimately acquire. I will also assume that these rights entail the right to exclude others from accessing the property in question. If I own my belly, I may stop you from touching it. Similarly, individuals have rights to stop rights violators. If I own my house and you enter it without my permission, I may throw you out. Finally, these rights entail the right to seek rectification. If you take my prized garden gnome, I have a right to see that you return it. I will not defend any of these positions here.
Second, the central argument of this paper is focused only on showing that there are cases in which individuals have procedural rights. I do not deny that there may be concerns of urgency, history, or the like that excuse agents from abiding the procedural rights of others. If someone is throttling me, I do not need to croak out a warning before, say, shooting that person. Similarly, if a person is a serial rights violator, I might not have good reasons to warn him before using force against him. Of course, it seems that all natural rights are contingent upon factors like this.
Finally, I do not offer a full account of the necessary and sufficient conditions under which individuals’ procedural rights hold. Instead, my interest here is in presenting an argument to show that such rights exist in some cases. The necessary and sufficient conditions for the existence of those rights is beyond the scope of this article.
SKEPTICISM ABOUT PROCEDURAL RIGHTS
Robert Nozick observes a practical problem with the natural rights tradition. The problem is that it focuses only on rights themselves and not what evidence we owe to individuals subject to punishment for violating rights. He holds that the natural rights tradition “offers little guidance on precisely what one’s procedural rights are in a state of nature, on how principles specifying how one is to act have knowledge built into their various clauses, and so on.” He holds that “persons within this tradition do not hold that one may not defend oneself against being handled by unreliable or unfair procedures” (Nozick 1974, 101). This is a problem for the natural rights tradition, because we often do not know if someone has violated our rights, or if we have violated theirs.
In response to this, Randy Barnett argues that “the natural rights tradition does hold or, at least, should hold…that there are no natural procedural rights.” His argument for this focuses on the distinction between the metaphysical question of whether someone has violated a right and the epistemological question of how we can know that someone has violated a right.
Though only the innocent party may rightfully use self-defense, it is often unclear to neutral observers and the parties involved just who is innocent. As a result there exists the practical problem of determining the facts of the case and then the respective rights of the disputants. But I must stress here that this is a practical question of epistemology not a moral question. The rights of the parties are governed by the objective fact situation. The problem is to discern what the objective facts are, or, in other words, to make our subjective understanding of the facts conform to the objective facts themselves. (Barnett 1977, 17)
What Barnett wishes to show is that a procedure’s reliability is irrelevant to the question of whether a right has been violated. Instead, all that matters is that the procedure, whatever it is, gets the right answer. When it does, no rights are violated. When it does not, rights are violated. He then argues, contra Nozick, that “You have the right to defend yourself against all procedures if you are innocent, against no procedures if you are guilty.”
The actual rights of the parties, then, are unaffected by the type of procedure, whether reliable or unreliable. They are only affected by the outcome of the procedure in that enforcement of an incorrect judgment violates the actual rights of the parties however reliable the procedure might be. (Barnett 1977, 17)
I confess that Barnett’s remarks just seem to grant Nozick’s point. For the natural rights tradition to be useful in lots of real-world cases, it needs to provide guidance when we do not know if we have right to defend ourselves against a particular procedure or if our rights have been violated. In the following section, I make three arguments in favor of procedural rights. The first two are that there are rationales—or motivations—for such rights already in the natural rights tradition. The third is that belief in procedural rights explains our reactions to several thought experiments in which epistemic considerations bear on the permissibility of rights enforcement.
MOTIVATING PROCEDURAL RIGHTS
In this section, I offer three considerations in favor of procedural rights. The first is that such rights preserve the practical advantages of compossibility. Proponents of natural rights often lament the proliferation of rights that has occurred since the middle of the twentieth century (Steiner 1977, 1995; Lomasky 1987, 4; Block 2011). One of the many criticisms these theorists make of “new” rights, such as the right to healthcare, paid vacation time, and so on, is that they seem to introduce tension into a system of rights. If you have a right to healthcare and I am the only person who can administer it, do you have a right to force me to provide it? If you do, this seems to impinge on my right to self-determination. I do not mean to say (here, at least) that there is no way of squaring self-determination with the enforceable obligation to provide a service. Rather, the point is that natural rights theorists tend to oppose rights to services in part because such rights seem to make a set of rights incoherent. Part of the appeal of a coherent system of rights is that it makes exercises of rights compossible, as Hillel Steiner puts it (Steiner 1977, 1994).
A possible set of rights is such that it is logically impossible for one individual’s exercise of his rights within that set to constitute an interference with another individual’s exercise of his rights within that same set. (Steiner 1977, 769)
Systems that see individuals as having rights that can come into conflict are prima facie incoherent. Insofar as moral claims are to be true, these systems cannot be right, for contradictions cannot be true.2 However, for a set of compossible rights to celebrate the fact that its rights can be exercised without contradiction, I contend that advocates of those rights should not throw their hands up when epistemic questions arise.3 Otherwise, it may be true that in lots of cases only one person has a right to do something, but multiple agents may justifiably believe that they are acting on their rights given the information available to them. This may happen even when the agents are thwarting each other’s actions. The victory of compossibility is thus
Article from Mises Wire