8.1 RIGHTS AND INTERESTS

In a groundbreaking article, the American philosopher and legal scholar Randall Peerenboom has argued that contemporary Chinese human rights theorists understand rights as a kind of interest.

In this section I will explore the relation between rights and interests, putting off the question of harmony until the next section. As Peeren- boom would no doubt acknowledge, rights and interests may have more complex interrelations than his simple framework of utilitarian versus deontological rights theories suggests. Spelling out these different possi­ble relations will help us to understand what Chinese rights theorists may be saying when they link rights and interests. I show that Chinese theo­ries can be understood along lines similar to a prominent Western theory which, I argue, is in certain ways superior to the Western theories on which Peerenboom focuses.

8.1.1 Western Theory on Rights as Protected Interests

Many contemporary Western rights theorists take interests to be central to the idea of rights. Some who do this are indeed utilitarians, which I will define precisely in a moment, but it is crucial for my purposes to note that many philosophers who tightly link rights and interests are not util­itarians. In order to better understand, and ultimately engage with, Chinese thinkers who talk about rights as a type of interest, we need to review the range of perspectives that Western thinkers take on this question.

Utilitarians believe that (1) the right actions to take are those that best promote people’s interests, and (2) all interests can be measured on a single scale, typically that of utility or pleasure. For it to be right to respect someone’s rights, therefore, utilitarians hold that the rights in question must maximize interests.^[211] We ought to respect property rights, on this view, because the institution of property leads to more utility (or pleasure) than any alternative institution. It is a bit misleading to say that utilitarians believe that rights are interests. It is indeed in our interest to have rights, since - according to the utilitarian rights theorist - when rights are respected, our interests are maximized. That is, rights are a par­ticular way of promoting or protecting our interests. Of course, “our” here refers to the entire group whose members enjoy the rights in ques­tion; it might maximize my own interests to have a unique right to anyone else’s property, but such a right is unlikely to maximize all of our inter­ests, summed together, so utilitarians would reject it.

Contemporary Western philosophers have raised a variety of objec­tions to the utilitarian approach to rights. Among other things, they question whether there really is a single scale on which all our diverse interests can be ranked, as well as whether rights that are justified only by their promotion of interests can adequately protect us from compet­ing interests.

As a starting point, consider the following statement by Ronald Dworkin, which Peerenboom quotes as an example of Western (anti­utilitarian) rights discourse: “A right is a claim that it would be wrong for the government to deny an individual even though it would be in the general interest to do so” [Dworkin 1977, p. 269]. Dworkin often puts this in terms of rights “trumping” interests. Another author whom Peerenboom sees as representative of American rights discourse puts the point this way: “Rights are one thing; interests are another; and when they collide, rights are trumps” [Pennock 1981, p. 5].

The simple theory suggested by these two quotes might be thought to explain satisfactorily the sense in which someone’s right can protect her interests. Consider Mary, the owner of a single-family home with a drive­way leading up to her garage.^[213] She has a right to use her driveway - it is her private property - which cannot, at least in ordinary circum­stances, be violated by her neighbors, even if parking in her driveway would be convenient for them. In Dworkin’s language, her right “trumps” other people’s interests, so she does not need to worry about a daily weighing of her interest against those of her neighbors. Even if their interests in parking in the driveway seem stronger than hers on a given day, her right still trumps their mere interests.

In fact, however, this simple theory is far too strong. It is also a cari­cature of Dworkin’s actual view, though perhaps not of some of the other theories that Peerenboom cites.^[214] Certain kinds of interests ought to be able to override at least certain kinds of rights.

Someone who claims that citizens have a right against the Govern­ment need not go as far as to say that the State is never justified in overriding that right. He might say, for example, that although citizens have a right to free speech, the Government may override that right when necessary to protect the rights of others, or to prevent a catastrophe, or even to obtain a clear and major public benefit (though if he acknowledged this last as a possible justifica­tion he would be treating the right in question as not among the most important or fundamental). What he cannot do is say that the Government is justified in overriding a right on the minimal grounds that would be sufficient if no right existed. [Dworkin 1977, pp. 191-2]^[215]

Now it is one thing to say that one right can override another; bridge players are familiar with the fact that a higher trump defeats a lower trump. Allowing that certain strong interests can defeat at least some rights, though, suggests that “trump” may not be the best metaphor for Dworkin’s understanding of rights: In bridge at least, even the ace of a non-trump suit will lose to the deuce of trumps.

I will say more about this in a moment, but for now let us note that Dworkin recognizes the requirement that rights be protective, since there must be some grounds, like the neighbor’s convenience on a given day, insufficient to override a right. At the same time, Dworkin wants to allow that at least some rights (albeit not fundamental ones) can themselves be overridden by general interests. Finally, notice that the citation from Dworkin with which we began, “A right is a claim that it would be wrong for the government to deny an individual even though it would be in the general interest to do so,” is, taken out of context, ambiguous.

The substance of Dworkin’s view, in short, seems to provide the notion of (limited) protection of interests that we are after, but the metaphor of rights as trumps is misleading. It may be apt for “fundamental” rights, but we are after a way of understanding the way that rights can protect interests in general, not in some narrower range of cases. In search of a more widely applicable view, let us turn now to the views of Joseph Raz. Raz’s work is relevant for several reasons. First, though he is a leading proponent of the view that rights are grounded on interests, he is no util­itarian. He is a value pluralist: He believes that there is an irreducible plurality of goods (e.g., pleasure, autonomy, virtues, etc.) and that no cal­culation of consequences can measure individual well-being [Raz 1986, chs. 11-13]. Second, he has introduced the notion of a “protected reason” that may provide a satisfactory account of the kind of protection which rights afford to interests. Third, he has views on the harmony between individual and collective interests that will be important to my discus­sion of those topics in subsequent sections of the chapter.

Raz defines a right as follows: “‘X has a right’ if and only if... an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty” [1984, p. 195].^[216] In other words, one has a right whenever one has an interest that is sufficiently impor­tant to ground a correlative duty.^[217] Rights are not the same as interests, but the two bear intimate relations to one another.We can say that while rights are not themselves protected interests, they are that which pro­tects interests.

In deciding whether one ought to obey the authority’s directive, one ought to exclude all the reasons, both for and against [the act], which were within the jurisdiction of the authority. One ought to weigh the directive in the balance with whatever reasons, for or against the act it requires, [that] are outside the authority’s jurisdiction, adding to them whatever reasons arise out of the duty to support just institu­tions in the situation at hand. [1990, p. 192]

While the idea of jurisdiction may need some further spelling out, it is clear that we have an idea here well-suited to the kind of limited pro­tection of interests that we have already seen rights play.

Thinking back to Mary’s situation, her interest in parking in her drive­way, as well as the common interest in private property (as explained later), grounds her right to so park. By recognizing her right, we under­stand her neighbors, among others, to be under duties not to park in Mary’s driveway. We can now flesh out the neighbors’ duties with the idea of a protected reason as follows: The neighbors’ duties are both reasons for them not to park in Mary’s driveway, and reasons for them not to consider a range of reasons for (or against) parking there. The neighbors’ convenience when unloading groceries, for instance, is a rel­evant reason that could be taken into account if this were a mere bal­ancing of interests. Since Mary’s interest is protected by a right, this convenience cannot be considered.

Other considerations, outside the “jurisdiction” of Mary’s right, can be considered. We might imagine that the jurisdiction in question covers everyday interactions in normal situations. Ambulances, fire trucks, and perhaps even moving vans represent abnormal intrusions into the neigh­borhood, and we can readily see how the interests they represent might be appropriately weighed against Mary’s interest in a free parking space. If we see these abnormal situations as falling outside the jurisdiction of Mary’s right, that is, her right may - in such special cases only - play no role in the balancing of reasons beyond providing a simple reason to let her park. In these cases, in other words, Mary’s interest is no longer protected.

Raz’s account of the ways in which rights protect interests has many virtues. Unlike Dworkin’s notion of “trumps,” it provides a consistent account of how and why interests are protected across a range of rights. It is easy to see, for example, that those rights we take to be “funda­mental” have wide jurisdictions, some protecting the relevant interest against even the greatest social benefits. Still, my goal here is neither a complete defense of Raz’s theory nor a thorough critique of Dworkin’s. I am instead interested in understanding the general texture of the rela­tions between rights and interests posited by leading Western rights the­orists. As we turn now to Chinese rights theories, we will see that rights are taken by most theorists to protect interests in a manner quite con­sistent with Raz’s ideas.

8.1.2 Chinese Interests

Based on what we have seen in previous chapters and what I will discuss in the balance of this one, it is clear that the dominant view of rights, both now and throughout the history of Chinese rights discourse, has been that rights are closely tied to interests. Indeed, we saw that “quanli” was originally adopted as an equivalent for “rights” in large part because it readily expressed the ideas of both legitimate powers and legitimate benefits or interests - ideas with which one strand of the Confucian tra­dition had been concerned for centuries.

To grant this tie between rights and interests is not the same as agree­ing with Peerenboom that Chinese theorists today understand rights as interests, nor does it concede that their theories are utilitarian. As we saw earlier, there are several ways to understand how rights might relate to interests. I argue here that contemporary Chinese thinkers see rights as protecting interests in a manner compatible with Raz’s theory. Chinese theories are not as vulnerable as Peerenboom believes them to be, nor need they be weak.

I will start by looking at what an important representative of the activist strand of Chinese rights discourse has said about the relation between rights and interests. The most significant outpouring of theo­retical writings by activists critical of the government occurred during the 1978-9 Democracy Wall movement. The writings ranged from big­character posters to sophisticated essays in underground magazines; the range of perspectives one finds in these different sources is almost as varied.^[218] The most famous of the radical activists from De­mocracy Wall was Wei Jingsheng, editor of the magazine Explorations. Wei believes that the rights people have are “inherent,” rather than “bestowed” on them by the state [Wei 1980b, p. 142]. He writes that “From the moment one is born, one has the right to live and the right to fight for a better life.” This does not mean that rights are natural and eternal, as those terms are often understood in Western rights discourse; Wei adds that

At the same time human rights only exist in relation to other things, for people do not live in a vacuum but are surrounded by other things and relate, directly or indirectly, to their environment. Thus, human rights are limited and relative rather than unlimited and absolute. This limitation constantly grows and changes with the development of the history of mankind and with man’s quest to tame and control his surroundings. [1980b, p. 142]

Wei believes that rights are closely related to the idea of equality. This is one of the ways in which rights are relative to our social environments; Wei believes that human rights are those assurances or protections that can be given to all people equally. He says that “Rights are opportuni­ties to be recognized by the external world” [ibid., p. 143], which in another essay he suggests means the “conditions [necessary] to lead a normal life” [Wei 1980a, p. 65]. He is adamant that rights are not guar­antees of anything, but simply equal opportunities to satisfy one’s desires and live well. In a remark that I will examine more closely later when I turn to the issue of harmony, Wei concludes that “On the basis of freedom,” democracy and human rights “encourage voluntary coopera­tion and achieve unity of relatively unanimous interests” [Wei 1980b, p. 145].

Nowhere in his work from the Democracy Wall era does Wei address more clearly the status or origin of rights. Right are protections of the fundamental capacities or interests which all humans have and need in order to pursue their aims, though these capacities and aims can change over time, and rights will change with them. Wei’s final remark about seeking a unity of interests shows that justifying rights in terms of inter­ests is not far from his mind, though he does not make that connection explicit. Wei was in jail throughout the 1989 Tiananmen movement, but wrote a letter from jail on June 15, 1991, about human rights that has been published in the United States. In the letter he stresses that, con­trary to government claims that rights are bestowed on people solely by state laws, “human rights... have objective standards that cannot be modified by legislation and cannot be changed by the will of the gov­ernment.” He goes on to characterize them as “natural” and “instinctive,” though he still recognizes their basis in “primary-level social relations” - namely, the social relations which “emerge from man’s basic nature” rather than those which are “stipulated or manufactured by man” [Wei 1997, pp. 167,175].

Wei seems to have moved some distance from his position of a decade earlier, since this talk of instinct and natural rights is less amenable than his earlier formulations to justifying rights by their contribution to, or protection of, interests. While his is an important voice in the overseas activist community (since 1999 he has been living in exile abroad), it is now time to look at what less radical academics publishing in China have said about interests. I will begin with Li Buyun, a legal scholar who is the associate director of the Chinese Academy of Social Sciences’ Human Rights Research Center. In a well-known article published in 1992, Li writes that “The foundation of rights are interests. In essence, the relationship of rights and duties between people is a kind of inter­est-relationship” [Li 1992, p. 11].^[219] He qualifies this by noting that inter­ests should never be considered in isolation from social and productive relations, and that these relations change as social forms evolve. The existence of social relationships, in fact, leads directly to the need for rights:

Social relations between people are the source of people’s “due rights (yingyou quanli)” and the grounds for the production and development of human rights.... The existence of social relations is a premise on which the existence of human rights rests. If an indi­vidual existed in complete isolation, he would not need anything in the form of rights and duties to mediate (tiaozheng) the various kinds of contradictions and conflicts of interests that arise between people. [Li 1992, p. 11]

Rights, in this formulation, “mediate” between different interests. Li does not say more about how this mediation is to take place. The basic idea is rather clear, however: Some interests win out over others on account of their connection to rights. In the idiom I was using earlier, we would say that rights protect certain interests and not others.

As we saw earlier, there is an important difference between saying that rights protect interests, and that rights are merely one kind of interest that can be weighed against others. Protected interests - whether we follow Raz or some other account - typically cannot be compared with other kinds of interests. Li sees that “due rights” must defend certain interests from incursion in order for healthy social relations to exist. Where, though, do due rights come from? Li writes that

People’s due rights, and the duties that exist in tandem with them, come about in part through the concrete reflection of the principles of laws and other social regulations, and in part through the manifestation in actual social relations and social intercourse of acceptance of and support for the people’s moral, social, and polit­ical concepts, as well as their traditions, habits, and customs. [Li 1992, p- 9]

That is, due rights emerge from social practices, rather than from any one transcendent source (like natural rights) or foundational ethical princi­ple (like utilitarianism’s “greatest good for the greatest number”). To determine what norms should guide us, we look to the norms implicit in our actual practices.^[220]

Li is not the only one to explicitly connect rights and interests. Zhang Wenxian, a law professor at Jilin University, says that “rights are a means by which the state, through passing legal regulations... allows people to choose and acquire interests that are within the scope of a state’s inter­ests” [Zhang 1992, p. 38]. He adds that

When the state establishes or utilizes law to proclaim various kinds of rights, it has already weighed individual, collective, and social interests in accord with the people’s general will and publicly acknowledged standards of value. Individual and collective rights, like social rights, thus internally manifest the unification of individ­ual, collective, national, and even human fundamental interests, [and thus] all are affirmations of legitimate interests. [1992, p. 40]

There is clearly much here of relevance to the topic of harmony, which I will take up later. For now, let us concentrate on what is being said here about interests. Zhang goes on to point out that there are proper and improper interests, but no improper rights. When we have a right to something, therefore, we can certainly conclude that the thing is in our interest, and we can further conclude that it is properly in our interest: It accords with the general will and public standards of value. As such, we might expect that interests which have been “affirmed” by rights cannot be straightforwardly weighed against interests which have not been so affirmed. As was the case with Li Buyun, rights for Zhang are not a special type of interest, but rather a protective device which applies to certain kinds of interests and not to others. By saying that we have rights to these interests, we mark them off as not tradeable against other types of interests. Whether interests protected by rights can be overridden by other interests also protected by rights - that is, by other legitimate interests - is a topic I will take up later.

The role Zhang gives to the state in stipulating rights, and the explicit mention of the law, deserves some comment. Later in the article Zhang agrees with other theorists that “due rights (yingyou quanli)” are more fundamental than legal rights.^[221] When we compare this notion of due rights with Zhang’s earlier statements, we see that the earlier quotations deal with idealized legal rights. Zhang explains that “the concept and advocation of due rights guides legislators; so long as conditions allow it, [they] ought to promptly establish the citizens’ due rights as legal rights. If the actual situation allows for people to enjoy one hundred percent of their rights, then they shouldn’t be given only ninety percent” [p. 42]. There are no countries, he says, with perfect systems of legal rights; all are constrained by the need for further economic and political develop­ment and cultural progress. This is not yet the place to assess claims like this. Suffice it to say here that even when we take on board Zhang’s dis­tinction between legal and due rights, it still makes sense to say that rights (in general) are grounded on interests, but are not simply interests themselves.

As we did with Li Buyun, we can ask how one knows what a person’s due rights are. Zhang says that due rights are “the rights-needs (quanli xuyao) and rights-claims (quanli yaoqiu) of the people of a specific society that are produced based on their particular conditions of social and material life and on their cultural tradition. They are the rights people ought to have in order to be people” [Zhang 1992, p. 41]. This parallels the view of Li Buyun, with the striking addition of that last sen­tence, which resonates strongly with rights discourse from earlier in the century. As we saw once again in Chapter 7, Chinese theorists have reg­ularly seen rights as defining the interests needed to be a whole person. Zhang in fact elaborates on this theme, writing that the rights of “person and personality (renshen renge)” are the logical point of departure for human rights, since they define what is necessary for both natural and social existence [ibid., p. 46].

A third essay that expands on the themes we have just seen is “On the Individual-based Properties of Human Rights” by Luo Mingda and He Hangzhou.The explicit target of Luo and He is the tendency among their contemporaries to place too much weight on the collective or “gong (general)” dimension of rights, and too little on the individual or “si (self­regarding)” dimension [Luo & He 1993, p. 56]. Luo and He begin by arguing that the category of “quanli” is, logically speaking, a summary of two social phenomena: quan or power and li or interests [ibid., p. 56]. This is a nice example of the ways in which Chinese theorists clearly understand themselves as working within a Chinese discourse, rather than as outsiders commenting on a foreign discourse (about “rights”). In any event, Luo and He say that quan and li are intimately linked because whether one receives one’s due interests can often depend on one’s powers. They write that “seeking rights is in fact seeking the interests that correlate with a [certain] share of power” [ibid., p. 56]. Rights are a means to secure certain interests; rights give us the power, in other words, to protect these interests.

I said a moment ago that Luo and He see themselves as resisting a tendency to place too little weight on the “self-regarding” dimension of human experience. They are not egoists, however. Interests must be understood in social contexts. They distinguish between “self-interest (zili)” and “selfishness (zisi),” for instance, as follows: “selfishness is when one tries to take for oneself interests that are legally (or rationally) enjoyed by all or by others” [ibid., p. 56]. I would say, therefore, that they are striving to strike the same balance that theorists have been aiming for from the very earliest moments of explicit discourse about quanli in China: recognizing legitimate interests while not giving in to selfish egoism. What makes something a “self-interest,” which seems to be by definition legitimate, is that it exists in harmony with the goods appro­priately enjoyed by others and by the entire collectivity.

Unlike Zhang Wenxian, Luo and He do not restrict the applicability of rights to legitimate interests. Rights simply protect interests; if there are “selfish interests,” rather than “self-interests,” then the rights are ille­gitimate. Luo and He argue that “human rights (renquan)” are the same for all people in a given historical era, and are simply those rights which all can simultaneously enjoy. If one’s rights exceed what all can enjoy in a given historical era, then these rights are called “privileges (tequan)” rather than human rights, and one is liable to have one’s privileges forcibly taken from one by the collective will [ibid., p. 59]. They explic­itly connect the enjoyment of privileges with selfishness (si) [ibid.].

For something to be a human right, then, it must pass two tests. First, it must be something that can, at a given level of development, be enjoyed by all. Hidden in this formulation is the idea that it be in each individual’s interest: something relevant not just to a few people, but so basic as to be relevant to anyone. This leads Luo and He frequently to characterize human rights as based on those interests necessary for “people to be people (ren zhi wei ren)” [e.g., p. 56], nearly the same for­mulation we saw Zhang use a moment ago. Second, for something to be a human right, it must also be protected so that people actually enjoy the interest in question; otherwise, it would simply be a human interest, not a human right.

One of the central themes of Luo and He’s essay is that we should understand “human right” in this way because doing so gives us the best understanding of the historical development of, and current challenges facing, human rights. They assert that subjective self-interest has, appropriately, been the engine driving the development of human rights through the ages, from slaves versus masters to feudalism to capitalism [ibid., p. 59]. The levels of interests enjoyed were rising from age to age, but disparities drove the historical process on. They stress that even in socialist states, self-interest-driven human rights movements are necessary and appropriate to fight bureaucratism, corruption, and so on.

To any who would argue that a gradual awareness of our true natural rights has driven these historical developments, they respond that while “natural rights” has been a useful slogan, it has no more basis in “nature” than a mouse would have if he claimed a right to life when pursued by a cat [ibid.,p. 57]. Like both their predecessors and their contemporaries, Luo and He are concerned to ground normative discourse on concrete, tangible interests rather than on questionable metaphysics. They add that self-interest (as they have defined it) does not work behind the scenes to realize itself, independent of human will. Abstract rights based on interests of which people are not conscious are really no rights at all, since the “power” component is missing. Sounding a theme that is strik­ingly reminiscent of Liang Qichao ninety years earlier, they argue that we must be conscious of our self-interests, and thus of our rights.We must claim and exercise these rights, for only then will the rights be real and the aims they seek come within our grasp.^[222] Luo and He conclude that the lack of rights consciousness among Chinese citizens is a greater obstacle to modernization in China than any institutional failings. Devel­opment depends on awakening the people to their self-interests [p. 61].

While in many ways they agree with their Confucian and communist forebears on the evils of selfishness, they believe that the goods of self­interest must be emphasized so that the people will embrace their just rewards and society can struggle forward.

8.1.3 Engagement

We have not found unanimity in Chinese rights discourse on the subject of the relation between interests and rights, nor on the larger issue of the origin of rights. I have used Wei Jingsheng to represent some of the changes that have occurred in the last quarter-century, including a move­ment toward the idea that we have rights simply because they are innate features of our humanity. As I noted earlier, although Wei is now in exile abroad, the writings that I have drawn on were written in China and based, according to Wei, solely on Chinese sources (Marxist and other­wise). We might expect to find even larger differences between a thinker like Li Buyun, on the one hand, and Western rights theorists, on the other.

Indeed, this is what Peerenboom finds when he contrasts Chinese utilitarian thought with Western deontological thought. On close inspec­tion, though, we have found something both different and more compli­cated. First of all, Chinese thinkers are not best understood as utilitarians. Many participants in contemporary Chinese rights discourse clearly believe that we have rights because they are necessary to protect certain interests, and thus that rights have an extrinsic value, in that they are means to achieving valuable ends - such as realizing our legitimate, non- selfish interests. Nowhere do these theorists suggest, though, that rights are justified solely by their contribution to overall utility. Instead, they tend to tie the idea of legitimate interests together with the notion of “being a person” or achieving “personality.” They explain how we know what it is to “be a person” in much the same way that they say we know what rights we ought to have: through reflection on the ways we inhabit our physical, social, and cultural environments. Implicit in these practices are ideals for which we strive and norms to which we seek to hold our­selves. These ideals and norms, and thus rights and notions of personal­ity, are the dynamic products of the ways we live in our environments. Where there are economic, social, or cultural differences among different groups, these authors maintain, we should expect to find at least some differences in norms, and thus some differences in concep­tions of rights.

It is striking that while there are such cross-cultural differences - on which more in a moment - there are nonetheless also strong cross- cultural resemblances. Peerenboom’s deontologists are far from holding the day in Western rights theories; as we saw earlier, the writings of Joseph Raz provide but one example of a Western theory which is neither deontological nor utilitarian, and which bases rights centrally on interests. We can also see that Raz’s views engage rather well with those of his Chinese contemporaries, raising questions that further develop­ment of the latter’s ideas might answer.

Think, then, of the dimensions of difference and similarity that we have uncovered in this chapter so far: some striking similarities between earlier and contemporary Chinese theorizing; some equally striking cross-cultural similarities, which, however, exist side by side with impor­tant differences of the kinds to which Peerenboom points. Nor is differ­ence confined to cross-temporal or cross-cultural dimensions. Wei shows us that the meaning of rights is contested even within contemporary Chinese discourse, and to a lesser extent there are differences among Li, Zhang, and others.

A great strength of Brandom’s view of conceptual meaning, and the principal reason I have chosen it for the abstract, linguistic basis of my account, is its ability to help us understand these various dynamic dif­ferences. It emphasizes the ways in which what we say can mean differ­ent things while still allowing us to communicate, and this because of the ways in which communication is a shared, cooperative practice. Our many differences will never go away, but they can change and be reduced when we cooperatively engage with one another. Community means holding one another to shared norms, even if the norms apply differently thanks to differences in material commitments. Engagement means seeking to learn from one another, without abandoning our own com­munity and our own norms - even if we allow them to change as seems appropriate (from our own perspective). I will pursue these themes further in the book’s Conclusion. For now, I will end this section with an example of how engagement might lead to mutual learning. We will see that just as Li and his contemporaries may have something to learn from a Western theorist like Raz, so Raz may benefit from considering the Chinese theorists’ views.

Recall that Raz defined a right as “‘X has a right’ if and only if... an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.” We then explored Raz’s sug­gestion that the distinctive protective function of rights can be under­stood on analogy to the idea of a “protected reason,” which both gives us a reason to do something and excludes other reasons from consider­ation. Mary’s right to park in her driveway means that her (and our - see later) interest in private property is a sufficient reason for holding others to be under a duty to allow her to park, which can be interpreted as these others having protected reasons to let her park, which means that they both (1) have a reason to let her park and (2) cannot consider other sorts of reasons not to let her, like their momentary convenience.

That’s certainly a mouthful... and perhaps it is the right way to under­stand the nature of our duties to Mary. Certainly it seems to capture the sense in which rights seem to protect interests, as we discussed earlier. Notice, though, how quickly “rights” dropped out of that analysis. Based on what I have said so far, at least, rights seem to do no more than signal when duties, and thus protected reasons, are warranted. But do we really need the idea of rights for that? Why not just say that in certain sorts of cases, people’s interests create duties for others to protect them? Isn’t it redundant to speak of rights?

Raz believes that rights are not simply the passive flip side of duties, in part because he says that rights can dynamically create new duties in new situations. The right to education can ground certain sorts of duties in, say, a rich American suburb, but very different duties in a poor Amer­ican inner city [Raz 1984, pp. 199-200]. One can see his point, but it is not clear why we cannot just say that individuals’ interests in education can generate different duties in different circumstances. Raz’s account seems to have no central motivation for all our talk of rights, and given his explicit goal of capturing our everyday use of the term [Raz 1992, p. 141], this seems to be a serious shortcoming. What is the point of saying that interests can ground rights, which then lead to duties?

In a famous article, Joel Feinberg asked what would be missing in an otherwise morally exemplary world which was devoid of the notion of rights. His answer is that the world would lack the activity of “claiming” for oneself, on which, he argues, self-respect is based. Feinberg believes that

Having rights enables us to “stand up like men,” to look others in the eye, and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is not to be unduly but properly proud, to have that minimal self-respect that is necessary to be worthy of the love and esteem of others. Indeed, respect for persons... may simply be respect for their rights, so that there cannot be one without the other; and what is called “human dignity” may simply be the recognizable capacity to assert claims. [Feinberg 1970, p. 252]

A world without rights - and more importantly, a world in which we could not claim or assert our rights - would be a world with neither self­respect nor respect for others.

Craig Ihara has recently argued that Feinberg overstates his case; Ihara grants that rights-claiming may be one route to self-respect, but insists that Confucianism, while making no mention of rights, does have “a significant and interesting conception of human equality and human worth, [and] respect for persons and proper pride might plausibly be thought to arise out of these human capacities and their exercise” [Ihara in press]. Ihara suggests that whenever one can “assume a basic cooper­ativeness and honesty, or... reliable impartial authority or mechanism,” then individual rights may be less important or even unnecessary for human self-respect [ibid.]. Only when communities break down, common goals are forgotten, and “the desire for individual advancement or other forms of competition dominate, [will] each person want and need individual safeguards or rights” [ibid.]. Ihara concludes that moral systems devoid of rights might not be “practical” in the modern world, but that this is a different failing from the kind of moral unacceptability for which Feinberg had argued.

I believe we should agree with Ihara that claiming rights need not be the only route to self-respect and human dignity, unless those notions are defined so narrowly as to beg the question against a non-rights morality like Confucianism. Ihara’s conclusion, however, is based on too sanguine a view of moral reality, and we can see this by looking back at Chinese rights discourse. At least as early as the beginning of the twentieth century, Chinese thinkers argued that the Chinese people needed to develop “rights consciousness.” As we saw earlier, Liang Qichao and others believed that their contemporaries needed to put more stress on individual achievement and individual interests. This idea is repeated, in almost the same words, by Luo and He in the article we examined a short while ago. Luo and He argued that rights take on reality through being claimed; people must awaken to their self-interests for them and their entire nation to progress morally, socially, and economically.

The idea that we have rights only if we claim them, which may have originated with Jhering, makes particularly good sense in light of the pragmatic theories about the origin of rights which, as we have seen, most contemporary participants in Chinese rights discourse hold. If the norms to which we hold ourselves are implicit in our practice, then what we do - whether or not we recognize our interests and claim our rights - matters. This is not to say that what we do wholly determines what rights we have; it is possible that we can have important interests which merit protection without always being aware of it. Our commitment to the importance of such interests may, for a time, be implicit in others of our commitments, rather than fully explicit. Still, as Luo and He argue, it is more convincing to see the ever-broadening scope of rights as a process of new rights being created when new groups articulate and claim their legitimate self-interests, rather than as a process of the gradual discov­ery of the natural rights that we have all always had.

The upshot of all of this is that Raz can borrow an answer to my query from the Chinese tradition. Rather than say, with Feinberg, that we care about rights because they provide the only route to self-respect, he should say, with Liang and the rest, that we care about rights because only this kind of caring assures that rights and their correlative duties will exist at all, and thus that our important self-interests will be pro­tected. Now I do not mean to imply that such an answer settles this matter conclusively; my proviso a moment ago about the possibility of being unaware of important interests, for instance, may suggest that more needs to be said to clarify how this affects the underlying argument. Be this as it may, my main point here is to illustrate the ways in which Chinese and Western theories can apparently engage productively with one another.