Why aren't always defeated rights, legal rights?

Question

Source: Benatar, David. Better Never to Have Been (2008 1 edn). pp. 104-105.

  It is widely thought that these considerations are sufficient to justify a legal right to have children. However, those who think that there ought to be a legal right to have children but also accept the conclusion that it is always a harm to come into existence face the following difficulty. A legal right to have children is not an absolute entitlement but instead a very strong presumption in favour of having children. It is in the nature of a presumption that it can be defeated. Thus one defender of a right to procreative freedom notes that ‘those who would limit procreative choice have the burden of showing that the reproductive actions at issue would create such substantial harm that they could justifiably be limited.’⁹

 ⁹  Robertson, John, Children of Choice (Princeton: Princeton University Press, 1994) 24.

This is not very controversial. However, if one thinks that coming into existence is always a great harm, then the presumption in favour of a right to procreate is always defeated. But a right that is always defeated is not really a right. Although it might still be argued that it is a right in principle—a presumption that has to be defeated, even though it always is defeated—such rights are not suitably enshrined in law. To make the case that people ought to have a legal right to have children, one must surely demonstrate that there should be a presumption in practice, and not merely in principle, to choose whether to have children. The problem, then, is that a defeasible legal right to have children is not a plausible candidate for a legal right if the defeasibility conditions are always met.

The emboldened sentence feels wrong to me, as legal (e.g. constitutional) rights have remained legal, notwithstanding their being violated by humans daily.

Answer 1

But a right that is always defeated is not really a right. Although it might still be argued that it is a right in principle—a presumption that has to be defeated, even though it always is defeated—such rights are not suitably enshrined in law.

It seems to me that these two sentences are merely saying that words are not enough, and that the law should reflect a practical reality, not just an abstract principle.

As another example, take Black suffrage in the United States. Legally, Black men have been allowed to vote since 1870, thanks to the Fifteenth Amendment. However, it took nearly 100 more years, with the Voting Rights Act of 1965, before this "on principle" legal right became a practical, real right.

The Fifteenth Amendment was pretty explicit in the fact that skin colour should not be an obstacle to the right to vote. However, in practice, most Black men remained unable to vote. There was a real effort in some states to pass laws that in appearance did not contradict the Fifteenth Amendment, but effectively prevented Black men from registering to vote and from voting.

So it can be said that between 1870 and 1965 in the United States, the right to vote for Black men was a legal right, protected by the Fifteenth Amendment, but this right was often defeated and thus was only a right "on principle", and was not "suitably enshrined in law".

Answer 2

There are two main school of thoughts regarding laws and the rights they implement, jusnaturalism and legal positivism.

Jusnaturalism considers there is a natural, objective form of justice, and human laws merely try to approximate what is objectively just and implement rights we have naturally. Wether those rights come from God, reason, or are derived from the laws of nature, we are entitled to them, and the quote you are mentioning would not really make sense under this conception of justice. A right is a right, if it is always defeated it is an injustice but you still would be entitled to it.

Legal positivism considers our rights are defined (posited) by laws and institution enforcing those laws. under this theory, in a country where no law exists to guarantee freedom of speech, people simply don't have a right to freedom of speech.

I think your quote "a right that is always defeated is not really a right" implies legal positivism. It makes sense in this conception of justice: even if there is a law nominally guarranteing, for exemple, the right to vote, but no election is ever held, or citizens can be barred from accessing the polling place with no recourse, then those citizen effectively have no voting rights.

For this to be the case, of course, defeat should be the norm and not the exception. If from time to time a bad cop beats innocent people but recourse can be found in legal institutions and the cop punished, people effectively have a right against police brutality. But consider the situation of a dictature where laws do exist in law books against such brutality, yet this nominal right will always be defeated because no tribunal will ever hear your plea.

Of course one can still make the moral judgment that people should have the right to vote, or should be protected against abuse of power, what your quote calls "a right in principle", but effectively the fact is they have no such right.

On the other hand jusnaturalism, in this situation, would say that citizens do have a natural right to vote or for protection, but this right is infringed by an unjust ruler.

Answer 3

Strangely enough, I would argue against the right to have a child on account of the fact that it can only happen with two, not one. I don't see that there is a class of rights that is applied to couples, and it would be a disaster to entitle individuals to procreation.

Nevertheless, I think it is probably wrong for an authority to abolish procreation for any person or class of person... but not because "procreation" is a right. Maybe the right that individuals have is "the pursuit of procreation", to borrow an expression from the writers of the US Declaration of Independence.