Chapter ǴǺ: Rights, Contract, and Utility in Policy Espousal ȃȆȈbut rather as normative propositions. A definite list of rights is unnecessary
here. Suffice to say that rights are persons’ entitlements to freedom from
coercive interference by their fellows and by government; they concern
life, liberty, property, and the pursuit of happiness. (When embodied in
constitutions or statutes, of course, normative propositions like that take
on an additional, legal, status.)
To identify assertions of rights as value judgments is emphatically not
to disparage them as mere expressions of emotion or whim. It is instead
the claim of imprescriptible ontological status for them that disparages
them by exposing them to easy ridicule, as in Jeremy Bentham’s remark
(ȀȇȃȂ/ȀȈȆȂ, p.ȁȅȈ) about “nonsense upon stilts.” Although they are nor-
mative, assertions of rights can be supported by appeal to facts of human
nature and other aspects of reality and to the findings of psychology, eco-
nomics, and other disciplines.
As the philosopher Paul Edwards (ȀȈȅȄ) and the economists Sid-
ney Alexander (ȀȈȅȆ, esp. pp.ȀǿȄ–ȀǿȆ,ȀȀȃ–ȀȀȄ) and A.K. Sen (ȀȈȆǿ,
esp. pp.ȅȁ–ȅȃ) have argued explicitly and as many other writers have
recognized, fact and logic can be brought to bear in trying to clear
up disagreement over all but fundamental value judgments. (Support-
ing considerations appear in AdlerȀȈȆǿ.) It can be a constructive enter-
prise to try to clear up disagreement over specific or nonfundamental
values. (Examples are the judgments that Jones should be sent to jail,
that lying, cheating, and stealing are wrong, that private property is a
desirable institution, and that specified rights should be recognized and
respected.) It is anti-intellectual simply to chalk disagreement up to irre-
solvable emotional differences. We can give and discussreasonsfor value
judgments.
Reasons for and against specific value judgments might include pos-
itive analysis showing why accepting some tends to promote and accept-
ing others to subvert a society of a kind conducive to its members’ suc-
cessful pursuits of happiness. An important objective element, utilitar-
ian in a broad sense, thus enters into the vindication of human rights.
Only when we finally have nothing left to appeal to beyond some such
fundamental value judgment as one favoring happiness and abhorring
misery have we exhausted the relevance of facts and logic, investiga-
tion and discussion. But bona fide disagreements in the real world sel-
dom if ever center on fundamental values, openly avowed. For prac-
tical purposes of policymaking, then, the fact-value distinction fades
away.