> [!summary] Progressive Summary # Structured Notes ## Definitions ## Chapter Summaries Key figures in the development of rights - Hugo Grotius - Wrote "Of the Law of War and Peace" in 1625, in the midst of the the Thirty Years War. This was a religious war pitting Catholics, Lutherans and Calvinists, and involved all of the European powers. Holland was dependent on sea trade, and contending with the superior maritime might of Spain. Grotius, a Dutch lawyer, had an interest in establishing international law and the law of war as serious subjects. - There was already a tradition of studying "municipal" law, that of particular nations. But there was skepticism about the idea of justice between nations. It was widely assumed that only the imperative of self-preservation existed between nations. - Grotius thought that humans have a social nature, just like some animals. However, humans also possessed language and understanding. Sociability and understanding combine to form justice. He believed that human nature was determinate enough to propose laws that govern justice. He made an even bolder statement when he said that these laws would apply even if God didn't exist. He departed from a centuries-old Christian tradition that placed morality under theology. He saw this as key to resolving disputes between nations of different religions. - Grotius was the first to analyse the whole subject of justice as a matter of individual rights. He defined a right as "a moral quality of a person, making it possible [for that person] to have or to do something lawfully." "To this sphere belong the abstaining from that which is another's, the restoration to another of anything of his which we may have ... the obligation to fulfill promises, and the inflicting of penalties upon men according to their deserts." Governments could be understood as pacts among men, formed to further the aims of sociability. War itself was occasioned by rights violations and "ought not to be undertaken except for the enforcement of rights." - Grotius invoked 3 channels by which rights can be known: a vivid quasi-sensory perception, a purely intellectual power akin to mathematical reasoning, and the concensus testimony of many times and places. - Grotius accepted the alienability of rights - the power to irrevocably transfer it to another. "To every man it is permitted to enslave himself to anyone he pleases for private ownership, as is evident both from the Hebraic and from the Roman Law. Why, then, would it not be permitted to a people having legal competence to submit itself to some one person ... in such a way as plainly to transfer to him the legal right to govern, retaining no vestige of that right for itself?" - Grotius rejected the idea of a single, best form of government. "Just as, in fact, there are many ways of living, no one being better than another, and out of so many ways of living, each is free to select that which he prefers, so also a people can select the form of government which it wishes; and the extent of its legal right in the matter is not to be measued by the superior excellence of this or that form of government, in regard to which men hold different views, but by its free choice." This was a big break from the past. Whereas previous thinkers from Plato to St Augustine concerned themselves with the problem of specifying the ideal political state, Grotius rejected the possibility of solving it. Grotius was, in modern terms, a pluralist of values. - Grotius made a distinction between perfect and imperfect rights. A perfect right is one that is enforceable, ie a right not to be murdered. An imperfect right is one that is unenforceable, ie the right of the state to ask a man to sacrifice himself for the benefit of the state. [Imperfect rights are so called because they follow the law of love, which impels duties that are potentially infinite. It is therefore not fair to punish someone for failure to complete an endless obligation. - Samuel Fleishacker] - Thomas Hobbes - Hobbes did not share Grotius' belief in the innate sociability of man. He famously said that without government, life would be "solitary, poor, nasty, brutish, and short". He said that sovereign power is necessary in order to avoid the "state of meer nature", which is a condition of war "of every man, against every man." - Hobbes believed that in a state of nature, everyone has a "right" to everything he judges necessary to his survival. "The Right of Nature ... is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgment, and Reason, hee shall conceive to be the aptest means thereunto." - The rights a person holds are not naturally tailored to be compatible with the rights held by others. "Because the condition of Man ... is a condition of Warre of every one against every one ... It followeth, that in such a condition, every man has a Right to every thing; even to one another's body." If I judge it necessary to enslave you for my survival, and you vice versa, then we are at war, and no appeal to natural rights can settle our dispute. - Conflicts of rights are inescapable in a world of limited resources. So people voluntarily surrender their rights and create a state, a sovereign power, or Leviathan, possessing all the rights and powers that have been surrendered to it. - People only retain the right to resist being killed or confined, since that is what they gave up their rights in order to avoid. If a sovereign sentences me to hang, I have no duty to submit to the hanging. This does not mean the sovereign has a duty not to hang me; it only means that the sovereign does me no wrong by hanging me, nor I him by resisting. If the sovereign sentences me to hanging, a third party may not resist the command. - Hobbes starts with very intuitive premises (our desire to live with security), and ends up justifying the most tyrannical government. - Pufendorf - Consolidated and refined what he read of Grotius and Hobbes - He challenged Hobbes' careless attribution of rights to men in a state of nature. "It must be recognized that not every natural faculty to do something is properly a right, but only that which concerns some moral effect ..." Horses may graze in a meadow, but it would be senseless to attribute to them a right to graze. A "natural faculty" only becomes a "real right" when it has a moral effect upon other creatures of the same kind. - He was one of the first to notice an important aspect of rights - the correlativity of rights and duties. You can't give a right to someone unless it implies a duty of non-interference from others. - When it comes to property rights, "nature does not define what particular things belong to one man, and what to another, before they agree among themselves on their division and allocation." Initial allocation of rights is determined by agreement, and thereafter any rights not already allocated obey the law of first occupancy. - He refined Grotius' division of perfect and imperfect rights. Perfect rights are honored by others' performing or omitting specific types of act. My (perfect) right to my life correlates with your duty not to kill me, and my (perfect) right to expect you to keep your promise correlates with your duty to do as promised. But my (imperfect) right to gratitude or assistance in dire need does not correlate with any specific duty. - Like Hobbes, he thought that humans were innately vicious. He saw sociability as a needed corrective. He saw a "fundamental natural law: every man ought to do as much as he can to cultivate and preserve sociality ... all that violates sociability is understood as forbidden." - Each person owed 3 fundamental duties to others: 1. Not to harm others; 2. Value and treat others as equals; 3. Be useful to others. - John Locke # Quotes