Rights, Interests, and the Problem of Generality

Disagreements over the existence of specific moral rights pervade public political discourse, as political and social movements routinely claim that certain groups already posses particular controversial rights, morally speaking, for which these movements now demand legal and political recognition. Disagreements over the existence of specific moral rights also lie at the heart of many debates in political theory, and to resolve such disagreements many theoretical contributions utilize an interest-based approach to the justification of moral rights (Scanlon, Raz). This interest-based approach is particularly popular in the human rights literature (Tasioulas, Miller), although it has also found prominent application in many other debates, for instance about territorial rights (Angeli, Stilz) or animal rights (Cochrane, Ladwig). The popularity of this approach is hardly surprising, as it promises to deliver a transparent and empirically grounded methodology for the assignment of moral rights, which forms a bridge between abstract moral debates about the nature of the good life, and concrete political debates, say about whether we should recognize a human right to immigrate (Oberman). In this article, I develop a constructive critique of this interest-based approach to the justification of moral rights that significantly complicates this optimistic picture. In Part I, I show that the interest-based approach faces a profound methodological challenge, which I call the problem of generality because it resembles the problem discussed under the same name in epistemology (Feldman). This problem arises because the interest-based approach conceptualizes moral rights as decision-rules for the adjudication of practical conflicts. These practical conflicts can be described at different levels of generality though, so multiple incompatible assignments of moral rights can be derived from the same underlying distribution of interests. Unless the theoretical choice to assign moral rights at a specific level of generality can be justified, the results of interest-based arguments are indeterminate. In Part II, I propose a solution to this problem of generality, which draws on ideas from rational-choice theory and the literature on rule-based legal reasoning (Regan, Schauer). I argue that the level of generality at which moral rights should be assigned is determined by the reasons for which we rely on rights in our moral reasoning in the first place, i.e., the rule-generating rationales for rights-based moral reasoning. I then develop this proposal for one such rationale in an exemplary fashion, which holds that rights function as heuristics in our practical reasoning. My discussion shows that the interest-based approach delivers a cogent methodology for the justification of moral rights, although this methodology is substantially more complex than is commonly assumed. In Part III, I respond to the objection that the problem of generality does not arise under an alternative interpretation of the interest-based approach. According to this alternative interpretation, rights are not justified in terms of the balance of interests affected by their recognition, but rather in terms of the intrinsic importance of interests that relate to fundamental aspects of well-being (Waldron). However, I show that this alternative interpretation of the interest-based approach is methodologically flawed for independent reasons.