This book will be of interest to persons working in legal theory and in political philosophy in universities and colleges. And it will, I think, be of great value to its primary intended audience – upper-level undergraduates and postgraduate students in law, philosophy and politics.
Edmundson's book falls readily into three main parts. Chapters 1–4 are historical, chapters 5–10 are concerned with conceptual and normative issues raised by rights, and the final two chapters (11 and 12) summarize the main conclusions reached and provide a look at ‘the future of rights’.
The main organizing idea of the book is that there have been two expansionary eras in the theory of rights: the seventeenth and eighteenth centuries (culminating in the period 1776–94) and the current period, after the Second World War.
The historical chapters are briskly but competently done. Though Hobbes is presented somewhat sketchily, the sections devoted to Locke, Kant and Bentham are for the most part solid, and give a good quick overview of the main points. Especially valuable is the inclusion of discussions of a large number of thinkers who typically get short shrift in many, perhaps most, introductory texts. Thus, we find here sensitive and helpful accounts of Grotius, Pufendorf, Paley, Burke and Godwin. There is, though, no discussion of the nineteenth-century British idealists (such as Green and Bosanquet) who did so much to set rights theory on new foundations and helped lay the groundwork for its revival (in the second expansionary era).
I did encounter a few problems in the historical chapters, however. No mention is made of Peter Laslett's thesis that Filmer (not Hobbes) was the primary target in both of Locke's Treatises. Perhaps more serious (in a text especially directed to students) is that a nondescript edition of the Second Treatise is cited, leaving students unaware of Laslett's canonical edition in the Cambridge Texts in Political Thought series. Bentham is said to have held the view that to be a rightholder is simply to be the beneficiary of the satisfaction of a duty that has utilitarian endorsement and some sort of support by sanctions (typically legal sanctions). But no notice is taken of David Lyons' important contention, against Hart, that only qualified or designated beneficiaries (and not merely all beneficiaries) are proper Benthamic rightholders. Finally, I take exception to Edmundson's claim (pp. 81, 83–4) that the Supreme Court decisions in Griswold (1965) and Roe (1973) are in the ‘spirit’ of Lochner, a now infamous decision of 1905. Lochner was decided on so-called substantive due-process grounds. Griswold was not; its main ground (as Douglas's majority opinion makes clear) is the idea that the Bill of Rights has been selectively ‘incorporated’ as holding against the states and that a right of privacy, though not mentioned by name there, is a sort of essential attachment to several of the rights actually named in the Bill of Rights.
Even though he carries forward (on pp. 123–4) his dubious ‘beneficiary of a duty’ account of Bentham, Edmundson's chapter 7 (on choice versus interest theory) is, nonetheless, one of the best and most original of the conceptual/normative chapters in the book. In the course of this chapter, Edmundson deftly distinguishes various ways in which the two root ideas, choice and interest, can structure such diverse matters as the concept of rights, the normative justification of rights, and the issue of who can count as a proper rightholder. And Edmundson develops a telling critique of choice as the essential part of the concept of rights (pp. 124–9). In the end, Edmundson finds it most useful to turn to an account of the justification of rights that draws on both of the root ideas, choice and interest. And this notion of justification he uses (e.g. on p. 180) throughout the remainder of the book.
Chapters 8 and 10 carry this justifying account forward nicely. In these chapters Edmundson focuses on the interesting question whether one can have a right to do wrong. To canvass this question he distinguishes ‘protected choice’ (X has a moral claim right versus Y that Y not interfere with X's doing ϕ) from ‘protected permission’ (which adds to that claim right the notion of a bilateral liberty or permission, that is, that X has no duty to do ϕ and no duty not to do ϕ). In a protected permission one has no right to do ϕ, when it happens to be wrong to do so (for the moral duty not to ϕ rules that option out). The discussion here is not only extended but interesting (and the examples are helpful). Edmundson opts for protected choice (p. 171); nonetheless he provides a nuanced line of argument (pp. 166–72) to suggest that inhibiting factors can still be imposed (in the form, e.g., of censure or criticism or added costs) on a wrong or wrongheaded act the performance of which is within one's rights. In sum, rights provide protections against some interferences (those that are designed simply to prevent ϕ) but not against all inhibitions imposed by others (p. 193).
But I think, in line with the contemporary understanding of rights (as expressed, for example, in the UN's Universal Declaration of Human Rights of 1948), that it might be best to stress three main functions of rights. Thus, the central content of some rights will be something that one does or can do (e.g., a liberty of conduct of some sort), paired with non-interference by second parties. But at the core of other rights will be the way that one is treated by second parties, either by not being injured by them or, alternatively, by the second parties providing aid or a service to the rightholder. Edmundson's emphasis on protected choice captures the first of these (liberty of conduct) quite well, but the other two it handles progressively less well. Thus Edmundson might want to temper his flat assertion that moral rights are ‘best understood as protected choices’ (p. 193).
The final chapters (11 and 12) are far-ranging. Here Edmundson addresses a number of questions, of so-called third generation rights (rights of collective entities), of rights inflation or undue proliferation, and of international distributive economic justice. Most interesting, in my view, was his distinction of human from natural rights. Talk of natural rights in the eighteenth century, the heyday of natural rights, presupposed the idea of a created hierarchy and of fixed natural kinds (p. 187). Talk of human rights is not committed to these presuppositions and human rights can be usefully distinguished from natural rights on that very basis. But Edmundson's proposed rectification of names does not end there. We may find, he suggests, that basic rights (e.g. the right not to be tortured) may require us to go beyond the category of the distinctively human as well.
This book by Edmundson is a very good one in my opinion. It combines a readable and pertinent view of rights history with a careful and useful survey of the main conceptual and normative issues raised by rights. And it draws conclusions from this survey. Beyond that it raises challenging questions about the future of rights. As I've already indicated, I especially commend here chapters 7, 8, 10, 11 and 12.
The book is also a model text for students. The style is accessible and engaging, the analysis and arguments are sophisticated, and the text itself is clearly written and uncluttered by notes. (All the citations in the text are simply followed by page numbers; inclusive but short bibliographical notes for each chapter are gathered at the end of the book, followed by an alphabetical list of full bibliographical references.) It is certainly a book that could be recommended to the student clientele that Edmundson had primarily in mind.
