Chapter 2 - What Are Rights?

The Concise Oxford Dictionary defines a right as including "a thing one may legally or morally claim; the state of being entitled to a privilege or immunity or authority to act."1 This definition comprehends the fundamental distinction between legal and moral rights mentioned in the Introduction to this paper. To reiterate, a legal right will arise whenever the operation of a pre-existing legal rule gives an individual an entitlement enforceable at law. It is usually accompanied by a legal duty on another party to fulfil that entitlement or refrain from denying it.2 Moral rights need not be enforceable at law, and hence their existence is much harder to demonstrate. An examination of the source and scope of moral rights will take up the remainder of this chapter.

1. Deontological and Teleological Theories

Moral rights may be further divided into deontological and teleological variants. Deontological liberals believe that human beings possess "natural" moral rights. Natural rights derive their name from John Locke's intuition that certain rights vest in human beings simply by virtue of their having been born into a free state of nature.3 Immanuel Kant extended this notion by looking at it from a social perspective. His theory was that human beings intrinsically deserve to be treated with equal dignity, and that this justifies the imposition on others of duties to respect that dignity.4

Similar justifications to those of Locke and Kant have since formed the basis of almost all subsequent deontological theories of rights. Of the few alternative bases for natural rights which have been put forward, Ronald Dworkin's is perhaps the most notable.5 However Dworkin himself acknowledges that his is not a complete theory of moral rights, merely one which is necessary to preserve the practical coherency of utilitarianism.6 Thus to this day, there is no generally accepted basis for natural rights more concrete than the intuition that human beings ought to possess them.

Natural rights have met with a change of nomenclature since the time of Locke and Kant. With the advent of secular legal realism it has become untenable to justify moral decisions by appeal to the pre-moral natural order. To accept the realist view, as most jurists do, entails the recognition that natural rights are only as natural as the moral attitudes implicit in liberalism. For this reason I will henceforth employ the term "autonomy rights"7 instead of "natural rights", because this acknowledges a common formulation of the basis of such rights - the individual's moral interest in leading an autonomous life.

Teleological liberals do not believe in natural or autonomy rights. For them, the positing of rights is an instrumental process. Moral rights will arise whenever the operation of a posited moral principle justifies the protection of recognised interests. The most common such principle, of course, is utilitarianism, and so these rights are conveniently called "utility rights". An example is the right to private property, which has been justified because it encourages efficient investment decisions. 8

In this paper, I will be focussing on autonomy rights. Henceforth when I speak of rights, I refer to morally justified claims to the protection of a person's autonomy interests against unjustified interference by others. My primary reason for thus restricting the scope of the paper is that corporations' ability to claim utility rights has already been exhaustively demonstrated.9 A utility right is posited simply because this increases social utility, not because of the desert of the persons to whom it is granted. Moreover, utilitarianism is no longer as widely accepted as it was as a sufficient teleological theory of the good,10 and a satisfactory alternative has yet to emerge.

2. The Basis of Autonomy Rights

A question which has not yet been addressed is, what exactly is this notion of autonomy which rights are designed to protect? Formulations differ; some authors couch it in the language of liberty,11 and others in the language of equality.12 The preferable view seems to be that these are merely differences of form.13 Autonomy is a measure of liberty in the sense that it is prerequisite to one's ability to pursue one's own conception of the good life.14 However it is also a fundamental liberal principle that the opportunity to seek one's own good be accorded equally to every human being, and in this sense the protection of individual autonomy promotes formal equality.

The selection of autonomy as the fundamental basis for rights is open to dispute. It is nowhere written in stone,15 and whether it is written in the moral intuitions of every human being is a matter hardly susceptible to proof. However since Australia is a signatory to the Universal Declaration of Human Rights and possesses a legal system based around liberal values, the question becomes largely irrelevant. I am content to assume that whether or not autonomy rights have any transcendental validity, they are a natural and plausible construct for a liberal democracy such as Australia to adopt.

3. The Bearers of Rights

Most of the literature on autonomy rights assumes that they may only be borne by human beings, which accords with Kant's injunction that only human beings may be treated as ends in themselves.16 However since this is based on nothing more tangible than an intuition, it is very easy to challenge it with a counter-intuition. On this basis, some have claimed an intuition that the rights of animals ought to be recognised,17 and even that the natural environment has a moral right to preservation, which should be protected by according legal rights to natural objects.18

Whether a similar argument can be made of corporations depends on the definition of a corporation that we adopt. In chapter 2 above I defined a corporation as a corporate organisation, and noted that one of the characteristics of organisations is that they are social entities. For the moment, however, I propose to assume that Meir Dan-Cohen is correct in characterising organisations as mere intelligent machines. If even these can bear rights, it will be unnecessary to pursue the implications of my disagreement with his definition.

3.1. Can Intelligent Machines Bear Rights?

It is far from self-evident that intelligent machines are incapable of bearing autonomy rights; after all, human beings could be described as intelligent machines themselves. Both are capable of acting autonomously, responding to their environments, behaving rationally and accepting responsibility for their actions. Thus on one view corporations bear all the required characteristics to be classified as moral persons for the purposes of criminal responsibility.19 Indeed, in some respects corporations are moral superhumans. For instance,

a large corporation has available and can make use of more information than any one individual can. Moreover, the corporation is in principle "immortal" and so better able to bear responsibility for its deeds than humans, whose sins die with them.20

If rights and responsibilities go hand in hand, as is commonly supposed,21 it is a small step to conclude that corporations should be granted rights as well.

An obvious objection is that rationality, free will and so on are not sufficient qualifications for the grant of rights, and that human beings possess uniquely human characteristics such as emotions and self-consciousness, which corporations necessarily lack. However it is easy to deny that these characteristics are required of rights bearers, and harder to explain why they are required. Authors arguing for animals' rights have endeavoured to narrow the capacities required of rights bearers by reference to the rights of "marginal" humans such as mentally handicapped persons and neonates.22 If it is accepted that these marginal humans have rights despite lacking emotions or self-consciousness, then it seems to follow that these characteristics are not required of rights bearers.

However in my submission it is pointless to attempt to exhaustively list the psychological capacities required of rights bearers in a bid to discover whose rights we should recognise. No matter how many traits non-humans may share with human beings (marginal or otherwise), rights are not accorded to those who score a certain number of points on a checklist. They are accorded to those whom we feel a moral intuition that they should be accorded to. On this basis, an apparently logical argument by analogy for the rights of non-humans may be defeated by the simple intuition that rights should be accorded to humans, and humans alone.

3.2. Non-Human Rights From Human Intuition

In any event, according rights to non-humans presents an even greater conceptual problem. Namely, why should the rights of non-humans be derived from human intuition? In the case of animals, that intuition may well be misguided.23 In the case of non-sentient natural objects, it can be nothing but misguided, since trees and minerals care neither one way nor the other for their own autonomy or preservation. In other words, autonomy rights cannot be morally relevant unless those who accord the rights have access to the moral intuitions of those to whom the rights are accorded. Since humans have no such access to the intuitions of non-humans, we cannot coherently accord them autonomy rights. By purporting to do so, what we are likely to be doing in reality is according them utility rights, based on our own utilitarian calculus. Thus the only rational basis upon which to accord rights to a tree would be if human utility (including, perhaps, the utility of future generations) was thereby promoted.24

For this reason I conclude that corporations viewed solely as intelligent machines are not bodies capable of bearing moral rights. Unless the rights or the good of human beings are thereby promoted,25 according rights to intelligent machines can have no moral basis and is a necessarily incoherent exercise. However in my submission this problem does not apply to corporations viewed as social entities. The fact that social entities are groups of human beings affords a basis for human beings to accord such groups autonomy rights. So long as it is the status of corporations as social entities which forms the basis of their claim to rights (as I will submit in the following chapter), that claim can be coherently formulated and evaluated by human beings.

Thus no barrier is presented to the recognition of corporate rights by the fact that they must derive from a human intuition. But, as suggested above, it is quite another question whether such an intuition can plausibly be maintained in respect of entities other than individual human beings. Even if it can, there remains the further question of what weight to give corporate rights. These questions will be addressed in chapter 3.

3.3. Derivative Rights

It should be noted that the above conclusion only relates to what Dan-Cohen has called original autonomy rights, not to derivative autonomy rights. Derivative rights are rights which are designed to further the interests of persons other than those to whom the rights are granted. Thus, utility rights are at least partly derivative, because they are designed to increase social utility, rather than the utility of the bearers of those rights.

The moral rights of corporations have been characterised as derivative autonomy rights by several authors. The first may have been philosopher Ayn Rand, who stated:

In a free society, the "rights" of any group are derived from the rights of its members through their voluntary, individual choice and contractual agreement, and are merely the application of these individual rights to a specific undertaking.26

Robert Hessen agreed in his well-known work In Defence of the Corporation, noting "that these rights are not suddenly forfeited when a business grows beyond some arbitrarily defined size ...".27 Most recently Roger Pilon has argued that if a corporation's "right to exist were limited, then to that extent the rights of individuals to property, association and contract would also be limited."28 Meir Dan-Cohen has criticised these arguments for ignoring the possibility that a particular attack on corporate autonomy might not infringe any individual's autonomy rights.29 In his view, this possibility greatly reduces the scope for derivative autonomy rights to be granted to corporations. Since this paper is concerned only with the original autonomy rights of corporations, the reader is referred to the discussion of corporations' derivative autonomy rights in the works of the above mentioned authors.

4. What Rights Are There?

The above discusion of rights has been very theoretical. Now I wish to briefly consider the more practical question of what autonomy rights humans actually have. This may yield some insight into what kind of rights corporations might require to protect their autonomy.

An exhaustive justification of the accepted body of human rights is beyond the scope of this paper. Accordingly I will simply assume that a plausible list of individual autonomy rights is comprised in the Universal Declaration of Human Rights, which was proclaimed by the United Nations General Assembly in 1948.30 The rights and freedoms contained in this document include the right to "life, liberty and security of person" (article 3), freedom from slavery and torture (articles 4 and 5), the right to a fair trial (article 10), private property (article 17) and freedoms of religion, expression and association (articles 18, 19 and 20).31

Aside from the right to private property, the Universal Declaration seems to omit those legal rights which corporations possess under our legal system by virtue of their status as juristic persons. In my submission this is because these correspond to utility rather than autonomy rights. For instance, a corporation's capacity to enter into and enforce contracts is protected purely for commercial reasons. The torts which a corporation can sue over, such as negligence and passing off, are also utilitarian in nature. Although there are certainly some personal torts which are designed to protect autonomy interests, such as battery and false imprisonment, these are not applicable to corporations.

5. By Whom Are Rights Owed?

As mentioned in the Introduction above, the proper role of the liberal state is a matter of some disagreement.32 Deontological liberals grant a more limited role to the liberal state than teleological liberals, because they believe that it should be morally neutral. But even deontological liberals33 agree that it is permissible for this "neutral state" to protect autonomy rights; indeed, that is its only legitimate function.34 This is because autonomy rights arise not from any particular substantive conception of the good, but from the fundamental moral intuitions upon which the liberal state is based. This philosophy underlies the international law of human rights, under which members of the United Nations are bound to recognise and protect the rights of their citizens.

How, then, does the state protect its citizens' autonomy rights? Simply put, by ensuring that these moral rights are reflected in legal rights. Such legal rights may form part of the civil or criminal law, and thus be enforceable through courts of law. Examples include the common law tort of battery, and the prohibition in s.75 of the Criminal Code 1913 (WA) of interference with political liberty. However legal rights may also be enshrined in constitutional law, administrative law or unwritten rules of criminal procedure. In Australia, human rights are found in each of these sources, as will be examined in chapter 5.

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