Ihara.txt Page:1 JOURNAL OF BUDDHIST ETHICS ONLINE CONFERENCE ON BUDDHISM AND HUMAN RIGHTS 1-14 October 1995 WHY THERE ARE NO RIGHTS IN BUDDHISM--A REPLY TO DAMIEN KEOWN CRAIG K. IHARA Department of Philosophy California State University Fullerton CIHARA@ccvax.fullerton.edu Publication date: 18 September 1995 Copyright (C) 1995 Craig Ihara COPYRIGHT NOTICE Digital copies of this work may be made and distributed provided no charge is made and no alteration is made to the content. Reproduction in any other format with the exception of a single copy for private study requires the written permission of the editors. All enquiries to JBE-ED@PSU.EDU. ABSTRACT Keown argues that even though there is no word for rights in Pali or Sanskrit that "the concept of rights is implicit in classical Buddhism." This paper argues that there is no concept of rights in classical Buddhism and that introducing it would significantly transform the nature of Buddhist ethics as Keown describes it. The paper begins by discussing Keown's arguments for the view that some concept of rights does exist in classical Buddhism, and then presents the author's view view why there is not. Finally it argues that while rights cannot be added to classical Buddhism without substantially transforming it, it is still possible it should be done. TEXT Although this is a critique of a serious paper--Damien Keown's "Are There Human Rights in Buddhism?" [1]--on a serious issue --whether there are or are not human rights in Buddhism--I would like to begin by considering an example that may well seem irrelevant--ballet. In any ballet, the male lead is at some point or other responsible for lifting or catching the prima ballerina. This is his role responsibility and if he fails to do it well or not at all, he has failed to do what he ought. In such circumstances others, including the choreographer, the other dancers, or the prima ballerina might express disapproval, criticism, even anger for his failure to do his part by saying any of a number of things, such as: "You're supposed to catch her there", "What's the matter with you?", "You're not doing your job (or playing your part)", "You're incompetent (or irresponsible)". Suppose instead that the choreographer or any of the other dancers came up and rebuked him by saying, "You've wronged the prima ballerina", or "You've violated her rights". Or imagine that the prima ballerina picks herself up and angrily proclaims, "My rights have been violated ..." Now I maintain that doing so would be bizarre to say the least and that in fact no one in that situation would resort to the language of rights. Of course this only one instance, but I maintain that it is indicative of ballet in general, as well as many cooperative enterprises, including team sports. [2] In any specific ballet, each Ihara.txt Page:2 dancer has a specific role to play. Each therefore has role responsibilities which dictate what each dancer should do at a given time on the assumption that others are also doing their part. A failure to do what one ought would be described simply as poor or faulty performance, and definitely not as a violation of anyone's rights. Now assuming I am correct about this, does it follow that there is no concept of rights in ballet? Not according to Keown and Gewirth. As Gewirth says, it is "important to distinguish between having or using a concept and the clear or explicit recognition and elucidation of it ...Thus persons might have and use the concept of a right without explicitly having a word for it". [3] Granting Keown and Gewirth this possibility, the answer to the question--Is there a concept of rights in X?--depends on the criteria for deciding when the concept of rights exists or is being used either in ballet or in any other context, such as Buddhism, where there is no explicit mention of it. Keown argues that even though there is no word for rights in Pali or Sanskrit that "the concept of rights is implicit in classical Buddhism", [4] although he later concedes that: Until rights as personal entitlements are recognized as a discrete but integral part of what is due under Dharma, the modern concept of rights cannot be said to be present. [5] I shall argue that there is no concept of rights in classical Buddhism and that introducing it would significantly transform the nature of Buddhist ethics as Keown describes it. I shall begin by discussing Keown's arguments for the view that some concept of rights does exist in classical Buddhism, and then presenting my own view why there is not. Finally I will argue that while rights cannot be added to classical Buddhism without substantially transforming it, that it is still possible it should be done. I. Keown's argument depends heavily on a suggestion by Finnis in his anthropological study of African tribal regimes of law in which "due" is taken as "the best English translation" for a word normally translated as "ought." [6] Because "due" looks both to what one is due to do, and to what is due to one, Keown concludes, "It seems, then, that the concept of a right may exist where a word for it does not". [7] Keown's argument that there is at least an "embryonic" [8] concept of rights in Buddhism parallels Finnis' argument. He says that "In Buddhism what is due ... is determined by reference to Dharma" and claims that because dharma establishes reciprocal duties, that it establishes not just "what one is due to do" but also "what is due to one", and hence: Since Dharma determines the duties of husbands and the Ihara.txt Page:3 duties of wives, it follows that the duties of one correspond to the entitlements or "rights" of the other. [9] The central flaw in the arguments given by Keown and Finnis is to assume that every kind of "ought" or "duty" entails a corresponding right. For Finnis this error takes the form of holding "ought" equivalent not only to what is "due to do" but also what is "due to one". For Keown the mistake is thinking that reciprocal duties always "correspond" to reciprocal rights. The general point about the conceptual relationship between rights and obligations was made long ago by Joel Feinberg in his well-known article, "The Nature and Value of Rights". [10] In it he points out, among other things, that: ...there seem to be numerous classes of duties, both of a legal and non-legal kind, that are not logically correlated with the rights of other persons. This seems to be a consequence of the fact that the word 'duty' has come to be used for any action understood to be required, whether by the rights of others, or by law, or by higher authority, or by conscience, or whatever. [11] Furthermore he provides some convincing examples which show that although rights entail duties, duties do not always entail correlative rights: When traffic lights turn red ... there is no determinate person who can plausibly be said to claim our stopping as his due, so that the motorist owes it to him to stop, in the way a debtor owes it to his creditor to pay. [12] When we leave legal contexts to consider moral obligations as other extra-legal duties, a greater variety of duties-without-correlative-rights present themselves. Duties of charity, for example, require us to contribute to one or another of a large number of eligible recipients, no one of whom can claim our contribution from us as his due. [13] That duties themselves do not entail corresponding rights can also be seen in contexts where duties are essentially role-based responsibilities. Ballet is one example. Every dancer has his or her own role, and with each role comes certain responsibilities to do certain things at certain times. But what a dancer ought to do is not comfortably analyzed in terms of what that dancer owes another, or what is due to another. Even the prima ballerina whose own performance has been compromised because of the male lead's failure to support her, has not been wronged. This is because while the male lead has a responsibility to support the female lead, this is an obligation he has solely because of a role whose point and purpose is to contribute to the Ihara.txt Page:4 overall performance. To conceptualize either his role-responsibility as an obligation to the female lead or his shortcomings as injuries to her is to misconstrue what is going on. Both are participants in a larger project, and what they ought to do is not a function of, nor properly analyzed into, what is owed to others. To take another example, consider a sport such as soccer. Unlike ballet, such a game includes not only role-responsibilities among members of a team, it also has rules which regulate play. Such rules of play provide a different kind of parallel to duties determined by dharma. In soccer, for example, there is a rule which prohibits the players, excluding the goalie, from using their hands to catch or touch the ball while in play. Players who violate that rule are penalized and are thought to have done something wrong, but they not thought to have infringed on anyone's rights. As Feinberg says duties and obligations are indicators of requirements of various sorts. They do not all presuppose or entail the existence of rights. Team sports in particular are good examples of contexts in which the language of rights is both unused, and unnecessary. Furthermore, contrary to what Keown infers, the fact that husbands and wives have reciprocal responsibilities according to dharma does not entail that they have reciprocal rights. Consider the analogous case in ballet. There is no contradiction in supposing that while the male lead has a responsibility to catch the prima ballerina at a particular point in the ballet and the prima ballerina has a responsibility to leap into the arms of the male lead at the appropriate moment, that either has a special claim against the other to their performance. The most they might be said to have is a reasonable expectation that they would perform in such and such a way. We might call that a right, but it would be an epistemological, rather than a moral, right. This is not a right in any of the senses Keown identifies. What Keown fails to distinguish is a duty which involves another, perhaps cooperatively, with a duty to another. According to dharma a husband may have a duty to perform a certain sort of action, such as provide for his wife, but this need not be analyzed in terms of having a duty to his wife. So for example, as in the case of a guardian or the executor of a trust, the obligation might either be to someone else, for example, the deceased husband, or to no one at all, as in the case of someone who has been legally appointed to execute trusts of that sort. Of course in this case although the obligation is not to the wife, there may be an obligation to someone else. The point I am making with this example is that an obligation to help someone need not be an obligation to that person. In other words, all rights might in some sense be benefits, as Keown maintains, but not all benefits are rights. "Reciprocal duties" might mean "duties which mutually involve or benefit" or it might mean "duties to each other". Duties in the first sense clearly exist in the dharma system just as they do in ballet or soccer, but whether they exist in the latter sense such that a failure to do one's duty entails wronging someone is much less clear. Ihara.txt Page:5 Now it might be argued with regard to the example provided above that the duty of an executor really is to the widow, since the widow can complain "You (the executor) should be providing for me", and in doing so expect to gain some specific benefit. In Feinberg's terminology, she appears to have a "claim to" the benefit. But even this does not establish the existence of a claim right, since she might just be pointing out what anyone could maintain, that the executor is failing in his role-responsibility. Similarly the ballerina could complain that "You (the male lead) are not supporting me" or "You should support me". This charge, if true, might lead to greater support but does not establish that she in particular has been wronged or has a right against him. All it might be doing is to point out that the male lead is not performing his part in the dance properly. I maintain that the notion of dharma may be part of a vision of society in which human life is ideally a kind of dance with well defined role-responsibilities. This is a view that I believe is common to many traditional cultures, Confucian China for example. [14] Although there are beneficiaries in such a society, it does not follow that it embodies a point of view in which there are "others to whom something is owed or due, and who would be wronged if denied that something." [15] Contrary to Keown's opinion such a system does not entail or require having or using the concept of rights in order to be intelligible. II. What I have argued to this point is that Keown's arguments are inconclusive. There is at least a different model by which to conceptualize dharma which does not lead us to conclude that there are rights in Buddhism. Keown might actually be willing to concede this for two reasons. First, he has in several places qualified his claim from "the concept of rights is implicit in Buddhism" to "in classical Buddhism the notion of rights is present in embryonic form". [16] Second, even without a concept of rights in classical Buddhism, it might still be possible to achieve his principal objective of establishing "an intellectual bridgework" which will link human rights to Buddhism. I do not take the former response too seriously, simply because it is extremely unclear to what an "embryonic" sense of rights would amount. If the claim is merely that any moral system with the concept of a duty must contain an embryonic sense of rights because duties always correspond to rights, this begs the question. It simply reveals our own biases. The latter response might be thought to be more significant. However assessing the task raises several perplexing questions: One, why "must" this bridgework be put into place for rights to be introduced into Buddhism? Two, what kind of bridgework is needed? Perhaps all Keown needs to show is that the concept of rights can be introduced without doing classical Buddhist ethics any violence. In other words perhaps the important issue is simply whether rights are conceptually compatible with Buddhist ethics, even if it does Ihara.txt Page:6 introduce something quite new. From this point of view Keown may be arguing for the implicit prior existence of rights in Buddhism because that would demonstrate, //ipso facto//, the compatibility of Buddhism and rights. But if compatibility is the crucial issue, such a demonstration strictly speaking would not be necessary. Obviously the answer to the question of conceptual compatibility depends on two things: the analysis of rights and the essential nature of Buddhist ethics. As to the former, Keown provides us with an excellent history of the concept of rights, and a working definition of a right as "a benefit which confers upon its holder either a claim or a liberty", but he most frequently appeals to the notion of a right as a "subjective entitlement." [17] In effect he adopts Finnis' view which he cites and which includes the following critical phrase: [The modern vocabulary and grammar of rights] provides a way of talking about "what is just" from a special angle: the viewpoint of the "other(s)" to whom something is owed or due, and who would be wronged if denied that something. [18] The second part of the compatibility issue depends on the analysis of Buddhist ethics. Keown identifies it closely with dharma. Now I have serious doubts whether the best way of understanding the fundamental nature of Buddhist ethics is by way of dharma. However if we follow Keown and take dharma as our starting point, I will argue, in contrast to Keown, that rights in the sense of subjective entitlements are conceptually incompatible with classical Buddhist ethics and their introduction would require a fundamental conceptual transformation. To see this it is helpful again to reflect on systems of role-based responsibilities. Doing so can help us see that conceptualizing such systems in terms of rights often misconstrues their fundamental nature. Think, for example, what it would be like to construe the responsibilities dancers have in a ballet as consisting of rights dancers have against one another. To do that would be to confer an importance on the point of view and the welfare of individual dancers that is not part of ballet. Among other things, mistakes would have to be construed as injuries to specific parties, rather than failures to perform one's role properly. It might even mean that changes in a dance routine would require negotiations and concessions on the part of the dancers whose rights are threatened. If so, ballet could no longer be conceptualized as a cooperative enterprise with common objectives, but would focus on preserving the potentially conflicting interests of individual participants. [19] This is just one example of how a cooperative enterprise would be conceptually transformed by reducing it to the interrelationship of the duties and rights individuals have to and against one another. The dharma system, insofar as it should be construed as such a cooperative system, would likewise be transformed by the introduction of rights. Ihara.txt Page:7 Keown points out something important about rights when he says, "One important feature of any right is that it provides a particular perspective on justice". [20] Sometimes he identifies that perspective simply as "the point of view of the person(s) who benefit(s)". But this, even on Keown's own analysis, is not really enough, for one can benefit without having a personal claim to that benefit. A right is a kind of moral property that an individual has over and above what she has a right to, and it is precisely that kind of moral property that is absent in a variety of cooperative activities such as dance. If duties in Buddhism are best understood in terms of dharma, and dharma is the same kind of cooperative enterprise as dance or soccer, then it is impossible for rights to be introduced without changing Buddhist ethics in a very fundamental way. Keown tries to convince us that the introduction of a modern conception of rights, including human rights, into Buddhism is unproblematic, at most the shift from one perspective on justice-- that of duties--to another--that of rights. According to Keown classical Buddhism has at least an embryonic concept of rights, and all that needs to be done is to make explicit a modern concept of rights as subjective entitlement and to introduce the notion of human rights. In my view there is a much more significant change being proposed and which I fear not only Keown, but many others as well, are overlooking. The change to a modern concept of rights is one from conceptualizing duties and obligations as the role-responsibilities of persons in a cooperative scheme to seeing them as constraints on individuals in their interactions with other individuals all of whom are otherwise free to pursue their own objectives. III. Given that I have argued there is no concept of rights in classical Buddhism, and that introducing rights significantly distorts classical Buddhist ethics, it might seem that I must therefore be opposed to introducing rights into Buddhist thought. But this does not follow. Certainly I do hold that there should be an intellectual presumption against doing so, but even such a presumption should not be respected under all conditions. It might be that given the nature of modern moral discourse, not only in the West, but increasingly around the world, and including the increasingly multi-cultural and often chaotic nature of modern society, that rights-talk is the best way of coping with a world without common customs and traditions. Whether introducing rights-talk into Buddhism is or is not justifiable is a complex matter which I will not take up here, but the non-existence of rights in classical Buddhism, and the radically transforming effect rights- talk would have on classical Buddhist ethics, are only two considerations. More important from a Buddhist point of view are the practical implications of such a revision. Would rights-talk serve as an //upaaya// (skilful means) toward the overall elimination of suffering? Would a revised Buddhist ethics which included rights-talk and a correspondingly increased concern for social justice, prove to be the basis of a new //sikkhaapada// (training rule) for Buddhist Ihara.txt Page:8 practitioners? If so, Buddhism has never been so dogmatically wedded to scripture, tradition, doctrine, or language that it could not adopt new ways of reaching those in need of help. [21] Furthermore I do not deny that there are conceptual materials in Buddhism out of which a theory of rights could be constructed. Keown has picked one likely candidate, a sense of human dignity grounded on the potential for enlightenment. Whether human dignity should be given such a prominent place in Buddhism, and whether dignity should be the basis of a Buddhist theory of human rights are questions which I do not have time to discuss here. However I agree that under some conditions both can and should be done. To that extent I do not disagree with Keown. What I hope to have done is to call into question his effort to show that rights are already present in classical Buddhism, and to suggest that the introduction of rights would be a much more radical departure for Buddhist ethics than he thinks. NOTES [1]. Damien Keown, "Are There Human Rights in Buddhism?". _Journal of Buddhist Ethics_ (1995) 2: 3-27. [2]. I omit some of these from the body of the text because such examples require considerable specific background knowledge of the game in question. For example, in baseball a player who does not at least try to lay down a bunt during a called squeeze play has failed to do what she ought. There is every reason for her team members and manager to berate her for her failure to fulfil her role-responsibilities, but it would extremely odd for anyone, including the runner tagged out at home, to complain that her rights had been violated. Talk of players' rights is appropriate when contracts are being negotiated, but not on the field of play. [3]. Quoted in Keown: 8. [4]. Ibid: 10. [5]. Ibid: 10. [6]. J. M. Finnis, _Natural Law and Natural Rights_ (Clarendon Law Series, ed. H.L.A. Hart, Oxford: Oxford University Press, 1980): 209. [7]. Keown: 9. [8]. Ibid: 10. [9]. Ibid: 9. [10]. Feinberg, Joel. "The Nature and Value of Rights" in _The Philosophy of Human Rights_ ed. Morton E. Winston. (Belmont, Ca.: Wadsworth Publishing, 1989): 61-74. [11]. Ibid: 62. Ihara.txt Page:9 [12]. Ibid: 62. [13]. Ibid: 62. [14]. Craig K. Ihara, "Are Claim Rights Necessary?: A Confucian Perspective", Unpublished manuscript. [15]. Keown: 8. [16]. Ibid: 10. [17]. Ibid: 8. [18]. Ibid: 8 (emphasis added). [19]. Ibid: 7. Keown recognizes that certain sorts of social structures, in particular hierarchical ones, can stand in the way of the recognition of natural rights, but he assumes that they are compatible with subjective entitlements, at least embryonic ones. [20]. Ibid: 8. [21]. In passing I must say that I believe it probably would be a mistake to introduce the notion of rights into Buddhist ethics. First of all invoking rights has the inevitable effect of emphasizing individuals and their status, thereby strengthening the illusion of self. While Buddhism has a holistic view of life, the rights perspective is essentially atomistic. Secondly, as an ethic of compassion there is an ample basis for a rich social ethic even without invoking the notion of rights. In fact while Keown sees duties grounded in dharma as one perspective on justice between individuals, I have argued that duties as found in Buddhism may well be about role responsibilities. Morality from the former perspective is about respecting the rights of others; from the latter it is playing one's part in a cooperative enterprise. Finally, given the problems with rights-talk, for example, the lack of consensus on their scope and content, and on any methods by which disagreements about rights might be settled, it isn't clear that adopting the language of rights furthers the cause of cross-cultural communication. Focusing cross-cultural discussion on suffering rather than rights might be the more fruitful tack.