A mate in an online forum turned me onto Raymond Geuss, who’s got just the perspective I’ve been looking for. I’ve felt that the concepts of rights and justice are weak on etymological grounds, but Geuss’ critique is even more fundamental. In his Philosophy and Real Politics, Geuss undercuts the positions of both Nozick and Rawls. I’ve never been a fan of Nozick, but I do consider (have considered) myself to be a bit of a Rawlsian.
Nozick is a key figure underneath Libertarianism, as this movement is very centred on rights. Opting for rights as his starting place as his preface to Anarchy, State, and Utopia:
“Individuals have rights, and there are things no person or group may do to them (without violating their rights).” — Robert Nozick
As Geuss points out, Nozick ‘allows that bald statement to lie flapping and gasping for breath like a large, moribund fish on the deck of a trawler, with no further analysis or discussion, and proceeds to draw consequences from it’. In other words, Nozick leads with an unsubstantiated claim that ‘individuals have rights’, and then ‘advances’ his position tautologically.
As for Rawls, justice is his centrepiece. In his A Theory of Justice, the opening line is “Justice is the first virtue of social institutions, as truth is of systems of thought”. He merely starts from this emotional place and advances his theory based on this basis of justice, yet nowhere does he explain of defend why this should be the foundation. As with Nozick, Rawls simply conjures this out of thin air.
“Justice is the first virtue of social institutions, as truth is of systems of thought.” — John Rawls
On top of this, Geuss comments on the shaky etymologic foundation of both justice and rights. Harkening back to the Latin origin of justice,
As Geuss writes, ‘To begin with the question of the concept of “justice,” it is striking how unclear this concept is in ordinary language and to what extent conceptions of justice differ from one context to another and in different human societies at different times. Thus at the beginning of one of the standard treatises of Roman law, the codification made for the emperor Justinian — one of the most influential texts in European history — we find that the very first sentence gives us a definition of “justice”: “iustitia est constans et perpetua voluntas ius suum cuique tribuens.” That is, justice is “the constant and unflagging will to give each person what is due to him.”
“What have the Romans ever done for us?” – Monty Python
Then he goes on to clarify that “what is due to him” is radically different dependant on being a citizen, an alien, a slave, a woman, a minor, and so on. To simplify this, we are stuck in a tautological loop: one is due what one is due, as determined somewhat exogenously.
Rights don’t fare any better, being even more ambiguous, so I don’t feel so bad about pursuing the irrelevance of these virtue concepts on etymological grounds.