Sooooo, The Stone has done it again. We have a piece on natural rights by Prof. Michael Boylan of Marymount U in Virginia. It is a mess.
Look, I understand that writing for this particular venue requires brevity and some eschewing of the precision normally expected in philosophical writing. And, I’m sure one is supposed to tie the philosophical work in with something in the news, or whatever. But this piece offers up such a parade of horribles as to embarrass the rest of us.
For example, Boylan implies that the legal positivists such as Hart and Austin were not moral universalists. Apparently, if one is a utilitarian rather than a natural rights theorist, one believes morality is committed to “radical moral relativism.” To imply that one must choose either natural rights theory or relativism is a grotesque misrepresentation of moral theory as a field.
Similarly, to suggest that one must choose between accepting natural rights theory and the belief that moral rights are “an arbitrary social construction” is a logical error that Hart certainly never made. He did not think there was anything slightly ‘arbitrary’ about the emergence of the concept of moral rights. (In fact, Hart conceded that there might be one natural right: the right to equal concern and respect.)
Then there is the dreadful leap from rejection of natural rights to the idea that “each nation would be free to treat its citizens as it chooses, subject only to the rule of power.” Again, this ignores the variety of moral theories, suggesting that only natural rights theories offer any basis for conceptions of legitimacy and limits on use of power. Boylan implies that utilitarian legal positivists must be committed to the conclusion “Hitler would not have been wrong in carrying out the Holocaust, but only weak because he lost the war. “
Do we really want non-philosophers to believe that thinkers such as Bentham, Austin, the two Mills, and Rawls held that there is no distinction between authority and de facto power? If one wants to claim that all non-rights moral and political theories are just modes of Hobbesianism, one should let one’s readers know that this is one’s claim. An argument would be nice, as well.
Boylan’s treatment of Rawls is also – dare I say it – unfair. It merits a fuller quotation:
“ There are, of course, other justifications of human rights that are not universalist but rather based upon conventional criteria such as general agreement (the Social Contract approach). These depend either upon real people signing treaties in the world as we know it (often multi-lateral agreements via internationally recognized institutions such as the United Nations) or they are hypothetical contract situations set in a fictional context (such as John Rawls’ original position or John Locke’s Social Contract, et al.). These foundations for human rights may be conceptually appealing, but they are subject to variation according to the real people involved or the particular philosopher or practitioner playing out the scenario according to his or her vision of the good. “
Well, that was quick. Obviously, the same critique that one might offer of an empirically based contract theory would apply to Rawls’ notion of the Original Position. Because, yeah, he didn’t develop that entire concept precisely to model universal reasoning. In fact, Rawls’ whole project was to find a universalist basis for political morality. Boylan may think he failed, but the readers of the New York Times deserve to know what Rawls was trying to do.
Nor does Boylan explain to his readers how he moves from citing Locke as one of the early human rights theorists to writing him off as a mere contractarian. Somehow, that whole inalienability thing just got lost in translation.
Many of us philosophers would like to see The Stone fare well. But that means the articles published there must do philosophy well. If it continues to present poorly argued, contentious presentations of individual’s philosophical hobby-horses, more of us will just be wishing it "farewell."
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