Rights and Demands: A Foundational Inquiry 9780198813767, 0198813767, 9780191851506

Table of contents :
Copyright
Preface [p.v–viii
Acknowledgments [p.ix-x
Introduction: Rights in the Conversation of Humanity [p.1–12
I.1. The Long History of Rights
I.2. Rights as Valuable Possessions
I.3. Rights and Revolution: Natural Rights; Human Rights
I.4. The Proliferation of Rights Talk
I.5. Contemporary Questions about Rights
I.6. The Focus of This Book
I.7. Going Forward
Notes
Part I A Problem Posed [p.13-4
1 Some Central Distinctions from Rights Theory [p.15–27
1. Hohfeldʼs Four-Fold Distinction
1.1 Claims
1.2 Liberties
1.3 Direction in the Hohfeldian scheme
1.4 Powers
1.5 Immunities
2. Powers and Immunities Revisited
3. Some Arguments for the Primacy of Claims
3.1 A common assumption: rights correlate with duties
3.2 A tendency to speak of “rights” only when claims are present
3.3 Thomsonʼs argument from conceptual priority
3.4 A genealogical argument
4. Asserting a Right
5. The Importance of Claims
Notes
2 Two Realms of Rights [p.28–46
1. Two Realms of Rights: Institutional and Moral
2. Legal and Other Institutional Rights
2.1 Legal rights as artifacts of legal systems
2.2 Institutional rights in general: ontology
2.3 Institutional rights in general: their (lack of) normativity
2.4 Institutional rights and rules
2.5 Institutional rights, moral criticism, and moral rights
2.6 Institutional rights: summary
3. Moral Rights: A Broad Conception
4. Morality: Some Central Features
4.1 Normativity
4.2 Independence of recognition
4.3 Morality versus moralities
4.4 Moral requirements and context-sensitivity
4.5 Morality and value
4.6 Morality, desires, and interests
5. A Partial Characterization of Morality
6. Morality, Decisions, and the Normative Realm
6.1 The normativity of decisions
6.2 Excluded considerations
7. Two Realms of Rights: Normativity and Epistemology
Notes
3 Hohfeld’s Claims and Thomson’s Doubts [p.47–55
1. Hohfeldʼs Claims
1.1 The nature of equivalence
1.2 The object of a claim
2. Directed Duties: Their Relationship to Plain Duties Is at Best Unclear
3. Thomsonʼs Reductive Approach to Hohfeldian Directed Duties
3.1 Thomsonʼs fixed points
3.2 Thomson on Hohfeld
3.3 Note on the idea that rights “impose” constraints
3.4 Assessment of Thomsonʼs argument
4. Review and Prospect
Notes
4 Demand-Rights—and the Demand-Right Problem [p.56–79
1. Hohfeld on the Label “Claim”
2. Demanding
2.1 Standing versus justification
2.2 Demanding versus requesting
3. Demand-Rights: A First Equivalence
3.1 Demands versus commands
3.2 Demands and enforcement
4. Hart on the Rights of Promisees
4.1 General versus special rights
4.2 The language of rights
4.3 Directed obligation
4.4 Owing
4.5 Wronging
4.6 Waiving and releasing
5. Demand-Rights: More Equivalences
5.1 Standing to demand, directed obligation, and owing
5.2 A possible further equivalence
5.3 Demand-rights and ownership
5.4 Setting aside further equivalences
6. The Rights Assertion Argument for the Primacy of Claims
7. The Demand-Right Problem
Notes
5 Contemporary Rights Theories: The Problem Remains [p.80–98
1. Rights Theory and the Demand-Right Problem
2. Contemporary Rights Theory
2.1 The standard aim
2.2 The standard method
3. Duties Concerning a Person
4. Do Thomsonian Claims Support Demands?
4.1 Thomsonian constraints
4.2 The permissibility of verbal attempts
4.3 The matter of “release”
4.4 Thomsonʼs theory of claims and the standing to demand
5. Interest Theories
5.1 Beneficiary theories: Bentham
5.2 Razʼs theory
5.3 Another type of interest theory
6. Moral Status Theories
7. Choice Theory and Directionality
8. Demand-Rights and Contemporary Rights Theory
Notes
Part II The Problem Solved [p.99-100
6 Agreements and Promises: Hume’s Legacy [p.101–25
1. Two Special Demand-Right Problems
1.1 Agreements, promises, and rights
1.2 The literature on promises and agreements
2. Promising: Some Fixed Points
2.1 Promising without “I promise”
2.2 Promising versus expressing an intention
2.3 Promising versus predicting
2.4 The promisor cannot unilaterally rescind the promise
2.5 Promises and agreements are close cousins
2.6 Everyday agreements and promises versus contracts in law
3. The Role of Acceptance
3.1 The promisorʼs input not conclusive
3.2 Acceptance as a form of concurrence
3.3 Motives for making and accepting promises
4. Promissory Obligation
4.1 Inevitability
4.2 Direction
4.3 Ancillary obligations
5. Historical Interlude: Hume on Promising and Its Obligation
5.1 No promising in a “state of nature”
5.2 The monological assumption
5.3 The nature of the obligation
5.4 Against the monological assumption (1): resolution, desire, willing
5.5 Against the monological assumption (2): “a manifest absurdity”
5.6 The turn to convention
6. After Hume
6.1 Two assumptions
6.2 The insu iciency of Humeʼs argument for conventionalism
6.3 Two types of non-conventionalism
Notes
7 Problems with Moral Principle Accounts [p.126–58
1. Moral Principle Accounts of Promissory Obligation
1.1 Two types of moral principle account
1.2 Two problems of too many stages
1.3 A problem for some practice accounts
2. Scanlonʼs Account
2.1 Scanlonian owing
2.2 The relevance of expectations
2.3 The content of a promisorʼs obligation
2.4 Principle F
2.5 The consent clause
3. The Inevitability Problem
3.1 Clarifying the inevitability point
3.2 Moral requirement versus inevitability
3.3 Immoral promises
3.4 Rights-transfer theories
3.5 Conflicting obligations
3.6 On what is intuitive
3.7 The problem of promissory obligation and another classic problem
4. The Problem of Promiseesʼ Rights
5. Scanlonʼs Principle and Promiseesʼ Rights
5.1 The violation of a moral principle
5.2 The consent clause
5.3 The “right to rely” on performance
5.4 The interests of a promisee
6. Adding New Rules or Principles
6.1 A social rule permitting “rebukes” if Principle F is violated
6.2 Subsidiary moral principles
7. Rescuing Scanlonʼs Principle—at a Cost
8. The Demand-Right Problem for Promises
Notes
8 A Fundamental Ground of Demand-Rights [p.159–87
1. The Argument of This Chapter with Some Reference to Kant and Hume
2. Preliminaries
2.1 Terminology
2.2 Commitment in general
2.3 Commitments of the will; personal commitments
3. Joint Commitment
3.1 Creation: participants
3.2 Rescission: participants
3.3 Content
3.4 Who or what is committed
3.5 Associated “individual” commitments
3.6 Creation: the process
4. Joint Commitment as a Ground of Demand-Rights
4.1 An intuitive judgment
4.2 A basis for the standing to demand
4.3 Demanding what is mine: an interpretation
4.4 Joint commitment, demand-rights, and ownership
4.5 A related sense of “my action”
4.6 Demand-rights and joint commitment
5. The Demand-Rights of Joint Commitment
5.1 Joint-commitment-based demand-rights and normative constraints
5.2 A function for demanding
5.3 The standing to demand what is wrong, all things considered
5.4 Demand-rights against the self
5.5 Waiving and releasing
5.6 Wronging
5.7 Who or what is owed conforming actions
6. Two Phenomena Akin to Joint Commitment
6.1 A di erent process
6.2 A di erent product
7. A Problem Solved—and a Conjecture
7.1 Joint commitment and the demand-right problem
7.2 The joint-commitment conjecture
7.3 Some implications of the conjecture
Coda: Kant on Contract Right
Notes
9 A Theory of Agreements and Promises [p.188–216
1. Agreements, Promises, and Demand-Rights
2. Agreements: Central Points
2.1 The inevitability of demand-rights
2.2 Performance and ancillary rights
2.3 Agreements are close cousins to promises
2.4 Only one party need have a performance right
2.5 Interdependent performance rights
2.6 Rescission
3. Toward a Theory of Agreements
3.1 Analogies between agreements and personal decisions
3.2 “We agreed” versus “We decided”
4. Agreements as Joint Decisions
4.1 The joint endorsement of a plan
4.2 The joint decision account of agreements
4.3 Note on the explicit expressions condition
5. Some Virtues of the Joint Decision Account of Agreements
5.1 It respects central pre-theoretical points
5.2 Advantages over moral principle accounts
5.3 A further virtue
6. Promises as Joint Decisions
6.1 The joint decision account of promises
6.2 Distinguishing promises and agreements
7. Some Virtues of the Joint Decision Account of Promises
7.1 It respects central pre-theoretical points
7.2 A response to Hume
8. Rescission of a Promise
8.1 The standard background
8.2 A promisor rejects rescission
8.3 A possible elaboration of the account
9. Agreements and Promises as Joint Decisions
9.1 Virtues of joint decision accounts
9.2 Another kind of joint decision
9.3 Two special demand-right problems solved
9.4 Three dogmas rejected
Notes
10 The Ubiquity of Joint Commitment [p.217–32
1. Joint Commitment beyond Agreements and Promises
1.1 Pertinent points about joint commitments in general
1.2 Topics to be discussed
2. Shared Plans
3. Doing Things Together
4. Social Groups
4.1 Historic appeals to contracting
4.2 Di erent senses of “group” and “social group”
4.3 Social groups as comprising jointly committed persons
4.4 Political societies and political obligations
5. Mutual Recognition
6. Collective Attitudes
7. Commanding
8. The Ubiquity of Demand-Rights of Joint Commitment
Notes
Part III Demand-Rights, Morality, and Law [p.233-4
11 Are There Any Moral Demand-Rights? Part I [p.235–61
1. Morality and Demand-Rights
1.1 The status of joint-commitment rights
1.2 “Moral demand-rights” defined
1.3 Individualized versus generalized moral demand-rights
2. Individualized Moral Demand-Rights: Some Negative Considerations
2.1 Questioning the moral requirement thesis
2.2 Elemental moral demand-rights? The grounding problem
2.3 A preliminary conclusion
2.4 Some prominent skeptical discussions
3. Hartʼs Transcendental Argument: Interpretation and Assessment
3.1 The argument as concerned with demand-rights
3.2 The proposed natural right
3.3 The argument
4. Some Arguments from Darwall
4.1 Darwallʼs terminology
4.2 Darwallʼs analogical argument
4.3 Presuppositions of serious address
4.4 A direct argument
5. Mutual Recognition Revisited
5.1 Darwall on returned address
5.2 Presuppositions of mutual recognition
6. Rights and Obligations in Mutual Recognition
7. Moral Demand-Rights: The Story So Far
Notes
12 Are There Any Moral Demand-Rights? Part II [p.262–92
1. Generalized Moral Rights
2. The Implications of Moral Language
3. The “Moral Community”
4. Moral Community and Joint Commitment
4.1 An empirical joint commitment?
4.2 An a priori joint commitment?
5. Generalized versus Individualized Moral Demand-Rights
7. Some Other Interpretations of “Moral Demand-Rights”
8. Demand-Rights and Moral Theory
8.1 Moral rights in moral theory
8.2 Direct duties, etc., in moral theory
9. Conclusions of Chapters Eleven and Twelve
Notes
13 Demand-Rights, Law, and Other Institutions [p.293–324
1. Legal Rights in Rights Theory
2. Two Conceptions of Law
3. Demand-Rights in Legal Systems
3.1 Legal rights in general
3.2 Demand-rights
4. The Existence of a Legal System: Two Questions
5. The Existence of a Legal System: Criteria for an Adequate Account
5.1 Two baseline criteria
5.2 Further possible criteria
i. Community
ii. Our laws
iii. Normativity
iv. Authority as content-independent exclusionary impact
v. Obligation
vi. Causal e icacy
vii. Relevant attitudes
viii. Enforcement
ix. Conformity?
x. Merit?
6. The Existence of a Legal System: Some Candidate Accounts
6.1 Invoking conformity, expectations, threats
6.2 Invoking Hartian rules or Lewisian conventions
6.3 Sustaining a legal system together: singularist approaches
7. A Joint Commitment Account—and the Two Questions
7.1 It satisfies all of the criteria
7.2 The population question
7.3 The demand-right-holder question
7.4 The law and enforcement
8. Conclusions: On Law and Demand-Rights
Notes
14 Human Rights in Light of the Foregoing [p.325–42
1. The Idea of a Human Right
2. Human Rights as Moral Rights
2.1 The Universal Declaration and other human rights documents
2.2 Demands and moral human rights
3. Human Rights as Legal Rights
3.1 Questioning the embodiment thesis
3.2 The standing to demand oneʼs legal human right
4. The Practice of Human Rights and Its Relation to Demand-Rights
4.1 What is a practice? Beitzʼs discussion
4.2 Treaties, joint declarations, and joint commitment
4.3 The demand-rights of individuals
5. Human Rights, Demand-Rights, and Joint Commitment
Notes
Conclusion [p.343–48
1. Main Theses
2. Overview of the Discussion
3. Last Thoughts
Notes
Bibliography [p.349-360
Index [p.361

Citation preview

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

Online ISBN: 9780191851506

Print ISBN: 9780198813767

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Copyright Page  https://doi.org/10.1093/oso/9780198813767.002.0003 Published: April 2018

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Margaret Gilbert 2018 The moral rights of the author have been asserted First Edition published in 2018 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the

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Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

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Preface  https://doi.org/10.1093/oso/9780198813767.002.0004 Published: April 2018

Pages v–viii

Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

We are all familiar with talk about rights, and understand them to be valuable possessions. But what are rights? And how do we come by them? These questions have attracted an extensive literature, with many distinguished contributors from both philosophy and legal theory. This book o ers a contribution to the theory of rights that is distinctive in several ways, including the following. First, it focuses on a particular, signi cant class of rights that has not previously received extended attention from rights theorists. In some cases, it is barely noticed. That is unfortunate since rights of this kind have some title to be thought of as rights par excellence. I call them “demand-rights.” In brief, someone with a demand-right to some action has the standing to demand that action of the relevant agent. In other words, he has the appropriate authority. Second, this book o ers a solution to a signi cant philosophical problem: how are demand-rights possible? In particular, how—at the deepest level—is it possible for one person to have the standing to demand an action of another? As I argue in the rst part of the book, this problem—the demand-right problem— cannot be solved by reference to the prevailing theories of rights. Third, the solution I o er draws on ideas developed in the course of work not speci cally concerned with rights theory, in the philosophy of social phenomena. There I noted that participants in many central social phenomena understand themselves to have associated demand-rights. These phenomena include doing things together, and social groups in a central sense of the term. Fourth, the book o ers—and argues for—carefully articulated accounts of agreements and promises, phenomena that are commonly taken to be a site of demand-rights. Neither rights theorists nor the many moral philosophers with interests in agreements or promises tend to o er such accounts. Yet such accounts are needed, if we are to explain how agreements and promises in particular ground demand-rights—itself an important philosophical task. At the heart of my accounts of both agreements and promises is a constitutive joint commitment: a commitment of two or more people that is co-authored by them all. This joint commitment, I argue, grounds the demand-rights associated with agreements and promises.

By probing the source of the demand-rights of agreements and promises, then, I arrive at one of the central theses of the book: any joint commitment is a source of demand-rights. In so doing I provide a solution to the demand-right problem. p. vi

Is joint commitment the only source of demand-rights? Another central thesis of the book is that the answer to this question may well be positive. As I argue, this allows for the realm of demand-rights to be an extensive one. In addition to agreements and promises, many central social phenomena, including those mentioned so far, can be argued to have a joint commitment at their core. Moral philosophers often refer to moral rights conceived of as existing independently of such phenomena as everyday agreements and the established institutions of society. Does the moral realm include demandrights that are independent of any joint commitment—moral demand-rights, for short? In the course of two chapters I discuss a number of arguments to the e ect that it does, and conclude that a positive answer is at best not proven. Law is often considered to be the central, if not the paradigmatic source of rights. Is law, along with institutions generally, a source of demand-rights that is independent of joint commitment? As a system of rules in the abstract a given institution may accord particular institutional demand-rights to those in speci ed positions. Yet before any actual person has the standing to demand anything of anyone else, the institution in question needs to “exist” in a way su

cient to ground that standing. What form of

“existence” is that? It is not enough, I argue, that a system of laws or other institution exists according to a wide range of accounts that have been proposed. What does su

ce is an appropriate joint commitment.

Demand-rights are valuable possessions. My argument overall leads to this conclusion: if we want them, we can and most likely must create them by forming appropriate joint commitments. This accords with the aspirations of those activists and political leaders who have urged the adoption of international agreements and collective declarations such as the Universal Declaration of Human Rights. The parties to such agreements and declarations gain demand-rights against each other to conformity to the agreements and declarations. In this connection, among others, it is important to emphasize that explicit agreements are not necessary for the emergence of the demand-rights of joint commitment: a given joint commitment can arise by less explicit, more gradual means, as in the case of a slowly growing collective practice. In order to make the book accessible to non-specialists, I have not presupposed any knowledge of the extensive contemporary literature on rights. As necessary to the development of my argument, I introduce central ideas, distinctions, and theories from that literature. There is a brief overview of the book at the end of the Introduction, and summaries of its parts and chapters p. vii

precede them. This should enable readers

who wish to focus on particular segments of the book to

understand their place in the overall argument. In writing this book I have drawn on material from a number of my own articles and books, several of which were published in the course of its production. The central references are given at appropriate places in the notes. The present work is, in e ect, the third in a trilogy beginning with On Social Facts (1989) and A Theory of Political Obligation (2006). Though each of these should be accessible to those unfamiliar with the others, the second and third draw on core ideas in the rst, further clarifying those ideas while arguing for their p. viii

relevance to the topic at hand.

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

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Acknowledgments  Published: April 2018

Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

There are many people and institutions to thank for their help in connection with this book. In its earliest stages I was generously supported by a research fellowship at the Humanities Institute at the University of Connecticut, Storrs, a research fellowship from the National Endowment for the Humanities, and a University of Connecticut Provost’s Fellowship. I am also grateful for sabbatical support from the University of California, Irvine, and to the family of the late A. I. Melden for the research support provided me as Melden Chair in Moral Philosophy at that University. Warm thanks to Oxford University Press’s commissioning editor Peter Momtchilo

for his longstanding

con dence in the project, to the production team at Oxford University Press for bringing it through the various stages of publication, and to the reviewers of the penultimate draft of the book, who provided many helpful comments. Thanks also to those who reviewed the book’s prospectus for the press. I have presented material related to the book at many universities and conferences. I thank those who invited me to speak on these occasions and all of those who o ered their comments. Special thanks to Peter Jones, Niko Kolodny, and Gopal Sreenivasan, o

cial commentators on three of these presentations.

There are many others to thank for helpful discussions over the years in which I was working on the book and related projects. These include Polly Allen, Anne D’Alleva, Richard Arneson, Paul Bloom eld, Michael Bratman, David Brink, John Broome, Richard Brown, Bruno Celano, Tom Christiano, Christopher Clark, Stephen Darwall, Francesca DiLorenzo Ajello, Jack Donnelly, Kit Fine, Gerald Gaus, John Goldberg, Alon Harel, Barbara Herman, David Ibbetson, Nicholas Jolley, Henry Krisch, Christine Korsgaard, Scott Lehman, Maura Priest, Graham MacDonald, Rex Martin, Diana Meyers, John Mikhail, Lanse Minkler, Stephen Munzer, Serena Parekh, Joseph Raz, Henry Richardson, Thomas Scanlon, Fred Schueler, Seana Shi rin, Kenneth Simons, David Slutsky, Horacio Spector, Andrew Sucre, Wayne Sumner, Julie Tannenbaum, John Troyer, Gary Watson, Samuel Wheeler, and Benjamin Zipursky. Among others, Matthew Dean, Cara Gillis, Chad Kidd, Jacob Heim, Daniel Pilchman, Maura Priest, Kyle Scott, Andrew Sucre, Darby Cameron Vickers, and Je rey Wisdom provided helpful research assistance at various stages.

p. x

Special thanks to Jeremy Waldron for encouraging me to start in on the project, to Leif Wenar for many initial discussions, and to Allen Buchanan, Sharon Burke, Rowan Cruft, Je rey Helmreich, Aaron James, Noa Latham, Karl Shafer, and Frank Stewart for thoughtful, engaged comments on one or more draft chapters. At various places in this book I discuss classic texts by contemporary rights theorists, including the late H. L. A. Hart, the late Joel Feinberg, Joseph Raz, and Judith Thomson. I should like to express here my admiration and gratitude for their inspirational work. Last but certainly not least, I would like to express my deep gratitude to family and friends in several continents for their continuing a ection and support.

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

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CHAPTER

Introduction: Rights in the Conversation of Humanity  Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.003.0001 Published: April 2018

Pages 1–12

Abstract Rights have long played a role in human thought. This can be argued by reference to everyday agreements and the familiar phenomenon of acting together. Those with rights of the kind involved therein have the standing to demand actions that respect their rights. Such rights are valuable possessions. Among other things, they provide a way to bring back on track those who fail to do their parts in cooperative ventures whose success is crucial to the well-being of all. This point is connected to revolutionary appeals to rights, to invocations of natural and human rights, and to the proliferation of contemporary debates invoking rights. Rights of the kind in question will be labeled “demandrights” in this book. The overall trajectory of the book is outlined.

Keywords: acting together, agreements, demands, human rights, natural rights, rights debates, revolutionary appeals, standing to demand, value of rights Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

Rights are frequently invoked in contemporary discussions of moral and political issues. What, though, are rights? Rights theorists have not agreed on an answer. This book focuses on an important kind of right to which these theorists have given relatively little attention. Though we take such rights to permeate our lives, they present a signi cant philosophical problem: it is hard to explain how they are possible. This introduction informally introduces this class of rights. It argues that they have long informed the human conversation, explains their importance, and places them in the context of contemporary “rights” talk generally.

I.1. The Long History of Rights Rights theorists often assert there have been human societies in which people did not think in terms of 1

rights. There is reason to doubt this contention. It may be that many of those who lived long ago did not have a word or phrase corresponding to the English “rights” or “a right.” It seems, however, that rights 2

could still have played a role in their thinking.

Indeed, there is reason to suppose that the concept of a right is close to an inescapable part of the human condition. If so, the human understanding of rights must go back very far indeed. p. 2

This is suggested in a famous article by Joel Feinberg, in which he invites his readers to imagine a world in 3

which people “have no concept of rights.” He calls that world “Nowheresville.”

It is not clear quite how far Feinberg wishes to go. He seems to qualify the idea that there is nowhere like Nowheresville when he writes “Surely, rights have to come in somewhere, if we are to have even moderately 4

complex forms of social organization.”

In this section I argue in broad strokes, and in my own terms, for the virtual inescapability of the concept of a right in the context of human life. Assuming, as Feinberg may imply, that there are human societies whose forms of social organization are not even moderately complex, I shall argue that rights—and thought about rights—will come in there, too. Before proceeding I should note that contemporary talk of “rights” has been described as “horrendously 5

ambiguous.” In other terms, such talk may express a variety of di erent concepts. That this is so is suggested by the fact that the accounts of rights that have been o ered by rights theorists have di ered 6

signi cantly.

In referring to “the concept of a right” in this section, then, I should be understood to mean “at least one extant concept of a right,” unless the context indicates otherwise. Similarly, in referring to “rights,” I should be understood to mean “rights according to at least one extant concept of a right.” 7

Consider now the contention that the ancient Greeks, for instance, lacked the concept of a right. One might 8

counter this by reference to everyday informal agreements.

I take it that the ancient Greeks made such agreements: agreements to meet at the agora at noon, to travel 9

to Delphi together, to attend tomorrow’s performance of Euripides’ Hippolytus, and so on. I take it, also, p. 3

that agreements, along with 10

accepted by rights theorists.

promises, their close cousins, are sources of rights, a point that is generally To focus on a particular example: if you and I have agreed to travel to London

together tomorrow, I have a right to your traveling with me to London tomorrow, and you have a right to my traveling to London with you then. More fully, and in more technical parlance whose precise meaning need not yet concern us, I have a right against you to your traveling with me to London tomorrow, and vice versa. Now, it is plausible to suppose that the parties to an agreement will generally understand that each has a right against each to his (or her) ful llment of its terms, and that this is so whether or not they are able to 11

describe their situation with a word synonymous with our words “rights,” “a right,” and so on.

Important

in connection with the point about language is that even when they do not have such a word, there are many ways in which they can manifest their understanding that they have the rights in question. Thus suppose that one day Socrates announces to his friend Glaucon that he is going home for the evening, having forgotten that he had agreed to attend a certain religious ceremony with Glaucon. Presumably his friend might object, demanding, perhaps, that Socrates act as agreed. Had Socrates gone home without any prior discussion, Glaucon might later have rebuked him, whether mildly or otherwise, and a contrite

Socrates might have o ered an apology in return. Demanding, rebuking, and apologizing are all actions 12

closely associated with the rights associated with promises and agreements.

In this case, the right in question is Glaucon’s right against Socrates to Socrates’ attending the ceremony with him that evening. Socrates has a similar right against Glaucon, given their agreement, though that p. 4

right is not the focus of

attention in the interaction just imagined. It is Glaucon’s right that is at stake.

Given Glaucon’s right, he is in a position to demand the action in question. Here, evidently, I use the term “demand” in a familiar, relatively narrow sense such that it is not the case that everyone is in a position to demand anything he pleases of anyone. In other terms, it is not the case that 13

everyone has the relevant standing or authority. I say more about this sense of “demand” in due course.

Returning to agreements, one might wonder how far back in history one can nd them more or less as we know them, allowing that di erent societies tend to develop their own conventions relating to agreements, as to most other things. They may, for instance, have established di erent ways of making an agreement. A handshake may be required, or it may not. And so on. There is no need to go into this particular issue. For one can make a similar argument by invoking something even more widespread and arguably harder to avoid: doing things together. Two or more people do something together when, for instance, they converse, make music together, build a house together. To be sure, people often preface their joint activity with an agreement. Nonetheless, one can fall into doing something with another person without any prior agreement to do so. People are quite likely to start to converse, for instance, without any such preamble as “Want to talk?” It is hard to dispute that the ancient Greeks engaged in conversation and discussion, made music together, built houses together, and so on. It is hard, indeed, to imagine a human society, however simple, in which people failed to do a large number of things together. Very long ago hunters hunted together. Nomads traveled together. Those less itinerant made dwellings together. People made love, argued, discussed pressing issues, sang and danced together, and so on and on. Now, one can argue that those who are doing something together will understand that they have certain associated rights against one another, whether or not they have a word synonymous with “rights” in their 14

vocabulary.

Consider in this connection the following brief passage in Plato’s dialogue Symposium in which

Socrates and Aristodemus start walking together to the drinking party that will be the subject of the dialogue. Aristodemus is the narrator: Socrates, absorbed in his re ections, walked a little bit behind me. When I waited for him, he told 15

me to go on ahead. p. 5

Here no one demands anything of anyone or rebukes him or apologizes, but there are other things that indicate the understanding that a right is present, as I shall explain. First I review the story and break it down into its central elements: Aristodemus and Socrates are walking to the party together. Socrates has inadvertently slowed down and created a gap between them. Aristodemus stops and waits for Socrates to catch up with him. Socrates, noticing what Aristodemus is doing, tells him to go on ahead. The following interpretation of these events makes good sense. Aristodemus sees that unless he does something, there will continue to be a gap between him and Socrates. Socrates is absorbed in his re ections and will therefore do nothing about it. Aristodemus acts as he does in part because, as he understands, Socrates has a right against him to his doing his best to keep their joint action on track, where what is his best will to some extent depend on what Socrates himself is doing. Aristodemus understands that he has the

corresponding right against Socrates, but, as he perceives, the oblivious Socrates cannot be relied upon to deal with the problem himself. In this situation, it is clearly best from a practical point of view for Aristodemus to stop and wait for Socrates, at least until Socrates realizes what is happening. Socrates, for his part, understands that he has a right against Aristodemus to Aristodemus’ doing his best to keep their 16

joint action on track, and that Socrates is in a position to waive this right should he choose to do so.

Socrates expresses this understanding when, realizing that Aristodemus is respecting his right by waiting 17

for him, he tells Aristodemus to go ahead.

The plausibility of the proposed interpretation suggests that those who are doing something together understand themselves to have the pertinent rights against each other, whether or not they have words corresponding to our words “rights,” “(a) right,” and so on. In particular, they will understand that each 18

has a right against each to his doing what he can to keep the joint action on track.

Even one who has in his vocabulary words corresponding to the English words “rights,” “a right,” and the like may well not use them when he wants to take appropriate communicative action. Thus one in Socrates’ position is unlikely to say, “I hereby waive my right to your waiting for me.” He will more likely say “You go ahead!” or simply wave the other person on. p. 6

Feinberg does not mention acting together as one of the contexts in which people understand that they have rights against one another. Had he considered it, he might not have suggested that the understanding that one has rights is a prerequisite only of “moderately complex” forms of social organization. In order to have anything worthy of the name of social life it would seem that people must to some extent do things 19

together.

So far I have argued for the long history of the idea of a right by appeal, rst, to everyday agreements, and, second, to acting together, which need not involve a prior agreement. In sum, most human beings will have made agreements with others in the course of their lives and—even more certainly—they will have done things together. Those who make agreements or do something with others can be expected to understand that they have rights against each other, and to speak and act accordingly, whether or not they have a term corresponding to “(a) right” at their disposal. My discussion so far suggests, of course, not only that rights have been recognized at all or almost all times in human history but also that they are and have been recognized in all or almost all places in the human realm. When and why rights of whatever kind received their own special label in a given context is a question I shall not pursue here.

I.2. Rights as Valuable Possessions 20

Rights are generally understood to be valuable possessions.

This certainly makes sense in the case of

rights of the kind accrued by the parties to an agreement and by those who are doing something together. For one thing, if any one party appears to be going o -track, the other party or parties are in a position to demand of him that he fall into line. In other terms, they are in a position to call him to order. In many cases being in this position will serve their most basic needs. Perhaps several people are hunting stag together, all are needed to catch the stag, and if they fail to do so, all 21

will starve.

Even when everyone understands this, and no one wants to starve, some may become

discouraged and stop participating. Then the other participants will be in a position to demand their p. 7

continued participation, spurring them on in that particular way. In less urgent

cases there may still be

much riding on whether or not those with whom one is acting fail to deliver their support and assistance.

As the case of acting together makes particularly salient, in a world in which people have a tendency not to respect one’s rights, willfully or not, being in a position to look someone in the eye and demand what one 22

has a right to is a signi cant practical good.

So looking or so speaking will not always produce a response that respects one’s right. Some people will be impervious to such attempts to stop them in their course. Even then, the speaker will have marked the fact 23

that in doing what they do, they fail him in an important way.

Further, though in the prevailing circumstances it may not be appropriate to use physical force to obtain an 24

action to which one has a right, one’s right provides a case for using such force.

Should one use force on

this basis, it would amount to an ampli ed demand, a demand one has the standing to make. Otherwise, as it is said, one would be using brute force.

I.3. Rights and Revolution: Natural Rights; Human Rights In the absence of further information, one may well feel o ended if an acquaintance fails to show up for a social appointment, even when little hangs on his showing up—one may have planned to be at the appointed meeting place in any case. Similarly, one may well feel aggrieved if one’s walking partner determinedly takes the right fork when the two of you have just explicitly agreed to take the left, even when little hangs on which fork is taken. That said, most people would not make a tremendous fuss over the violation of their rights in such situations, at least on the basis of a single case, and would regard one who 25

did as getting things out of proportion.

Thus demands and rebukes that a person has the standing to make

may not be voiced. Either nothing will be said, or some response gentler than a demand or rebuke will be made. p. 8

In other contexts people have fought and died for the sake of what they have spoken of as their rights, or, indeed, the rights of others, and the very reference to rights has surely had a galvanizing e ect. Two famous contexts of this kind are the American and French revolutions. In the American case, the Declaration of Independence was drafted in Philadelphia in 1776 with the intent of marking the separation—or, in other terms, secession—of the United States from Great Britain. It rst makes reference to a people’s being entitled by “the Laws of Nature and of Nature’s God” to a “separate and equal Station among the Powers of the Earth.” It then argues that it is necessary for the people in question to take advantage of this entitlement because “…all Men are endowed by their Creator with certain inalienable Rights” which include “Life, Liberty, and the Pursuit of Happiness” and a people has a “Right… to abolish” any form of government that is destructive of these ends, such as the then government of the United States by Great Britain. Following the issuance of this declaration many on both sides lost their lives in the Revolutionary War before the separation from Great Britain was rmly established eleven years later. At least in their e ects, the appeals to rights were “ ghting words.” That is something one would expect if along with one’s rights came the standing to demand pertinent actions. Such revolutionary appeals to rights had their philosophical antagonists. Jeremy Bentham famously inveighed against contemporary invocations of “natural” rights as “simple nonsense”; the idea of an 26

inalienable or “imprescriptible” natural right was “nonsense upon stilts.”

Edmund Burke also famously

27

spoke out against contemporary invocations of supposedly natural rights.

Nowadays political discourse tends not to speak of “natural” rights. Rather it invokes rights quali ed as “human.” Precisely how human rights are characterized varies from author to author. Su

ce it to say, here,

that failure to respect human rights under whatever conception is regarded by those who appeal to them as a signi cant matter, and most accounts of human rights suggest as much. Thus the second article of the Universal Declaration of Human Rights, promulgated by the United Nations in 1948, says of the particular rights it lists that they are “indispensable for [each person’s] dignity.” This characterization strongly suggests the importance of human rights. So, too, does the idea that, if a country is violating the human rights of its citizens on a large enough scale, there is a case for forceful international 28

intervention.

p. 9

I.4. The Proliferation of Rights Talk Talk of rights is ubiquitous in contemporary debates on moral matters. Many have suggested, indeed, that 29

such talk is out of control.

Why, one might ask, is it proliferating?

One aspect of the matter is that initial ascriptions of a right on one side of a debate are often countered by ascriptions of an apparently con icting right on the other. Thus in debates about abortion we nd the assertion that a human fetus has a right to life—entailing the right not to be aborted—countered by the assertion that a woman has a right to control what happens in her own body—entailing the right to abort 30

the fetus should she wish to do so. Examples like this can be multiplied.

The existence of such opposing pairs of rights ascriptions is not surprising, given that one party to a debate has initially appealed to a right that promotes his cause. One who says that someone “has a right” to something apparently ascribes to that person a position such that someone without an opposing right will be at a disadvantage. If I can say I have a right to it, and you can only say that, for instance, you badly want it, it seems that I win the debate as to who should have it. In other words, my right trumps my opponent’s 31

desire.

One can see that rights would have the character of debaters’ trumps if it is only right-holders, as such, who have the standing to make relevant demands. Those who invoke rights in these debates may well suppose 32

that this is so.

Their recourse on occasion to some kind of force on behalf of the supposed right-holders

has some tendency to suggest this also. It would then be seen as enforcement of the right.

I.5. Contemporary Questions about Rights Recent years have seen the extension of rights ascriptions from living human beings to other domains. Thus rights have been ascribed by one or more authors to, among others, future generations, members of other 33

species, and the earth or nature. p. 10

The validity of at least some such ascriptions has been questioned.

One basis for such questioning is that—as in all of the cases just listed—the supposed right-holders are 34

incapable of exercising their supposed rights by making appropriate demands.

Of course one who cannot

exercise his standing to demand an action could be provided with proxies entitled to exercise it on his behalf. If, however, one takes the or a central aspect of someone’s rights-possession to be his possession of the standing to demand what he has a right to, one is not likely to see entities incapable of demanding their rights as paradigmatic right-holders. The American Declaration of Independence refers to what “a people” is entitled to, and nations, religious organizations, labor unions, and other such groups are frequently said to have rights of one kind or another, rights that may be enshrined in law. The questioning of group rights tends to concern the possibility of rights possession by groups that are less organized or uni ed than those just mentioned. Another

discussion point is whether group rights whose existence is not in doubt somehow reduce to the rights of 35

the individual group members.

In addition to controversy about who or what can have rights—about, in short, the subjects of rights— people debate what rights particular subjects have, and the precise content or object of a given right. In the context of an apparent con ict of rights, people may argue for an interpretation of one or both of the rights involved such that the con ict is resolved. For instance, in the case of an apparent stando

between

an assumed right to life possessed by a fetus and an assumed right of a woman to determine what is done to her own body, someone might propose that though a right to life brings with it the right not to be killed, it 36

does not bring with it a right to be given the means to live.

They may go on to argue on this basis that some

forms of abortion avoid violating the properly speci ed right to life possessed by the fetus. Of course someone might counter that the fetus does have a right to be given the means to live, and so the debate may continue. Evidently, another possible move in a debate involving an alleged con ict of rights is to argue that one party lacks the right it is alleged to have under any plausible understanding of that right. It may be argued, for instance, that the party in question is not the right kind of entity to have rights. Or it might be argued that only entities of the right kind and in the right condition—they are at a su

ciently advanced state of

development, for instance—have rights. When both parties are agreed to have the rights they are alleged to p. 11

have, it may be argued on

some basis that, when both are present, a particular right—the right to life,

say, always prevails over another.

I.6. The Focus of This Book In the press of debates over rights, people rarely stop to ask what rights are. If talk of “rights” is indeed horrendously ambiguous, one might wonder what kind of answer to this question would be helpful. It will not be easy to provide a unitary account that subsumes all of the several senses of “a right” and excludes everything else. So something like “rights are advantages,” though of some help, will not su

ce. And even

if one succeeds in providing such a unitary account, it is unlikely to illuminate the special character of one or 37

more important classes of so-called rights.

In this book I focus on one central kind of right. Understanding such rights, and their provenance, is of great importance both for the theory of rights and for understanding our lives together. Certainly, one who aims to o er a unitary theory of rights needs to take them into account. These are rights of the kind one accrues when one enters an agreement, makes a promise, or acts together with another person. Such rights have received less attention than they deserve from rights theorists. They have already played a signi cant role in this chapter. Importantly, one with such a right against another person has the standing to demand a particular action 38

from that person. I say much more about such rights later, labeling them “demand-rights.”

As I have indicated, there is reason to suppose that demand-rights are at issue, implicitly at least, in revolutionary appeals to rights, in contemporary rights debates, and in at least some conceptions of human rights. We take ourselves to come by demand-rights by entering agreements and acting together, at least. But how precisely does this happen? How, more generally, does one person accrue the standing to demand some action of another? How is this form of interpersonal authority possible? Is there a single ground of such standing or are there several such grounds? These are the guiding questions of this book.

I.7. Going Forward It may be useful at this point brie y to review the overall trajectory of the book, which is divided into three parts. p. 12

In part I, chapters one, two, and three place the ensuing discussion in the context of some important distinctions from contemporary rights theory, including jurist Wesley Hohfeld’s seminal distinctions among fundamental legal relations, and the idea that rights are either legal---or, more broadly, institutional---or moral. Chapter three focuses on Hohfeld’s idea of a claim and its equivalent, a directed duty. Against this background chapter four reintroduces demand-rights, and raises the—general—demand-right problem: how are such rights possible? Chapter ve argues that a solution cannot be found in the most prominent contemporary theories of rights. Part II o ers a solution to the general demand-right problem, and to two special demand-right problems: how do such rights accrue—as is generally supposed—to those who make promises and agreements? How are these particular demand-rights possible? The initial focus is on promises, the main concern of the literature. Chapter six sets out some initial points about promising. It then reviews David Hume’s in uential treatment of a promisor’s obligation and relates it to contemporary theorizing on the subject. Chapter seven questions moral principle accounts of a promisor’s obligation, with special reference to Thomas Scanlon’s prominent account. Most important for present purposes, moral principle accounts have trouble accounting for the directed obligation of a promisor, an obligation that is equivalent to the demand-right of a promisee. En route to further discussion of promises and agreements chapter eight introduces a concept of joint commitment such that, it argues, any joint commitment is a ground of demand-rights of the parties. Here, then, is a solution to the general demand-right problem. Chapter nine returns to promises and agreements, arguing that each has a joint commitment at its core. It thus provides a solution to the special demand-right problems regarding agreements and promises. Chapter ten argues there are many joint commitment phenomena in the social world other than promises and agreements, and hence many sites of demand-rights of joint commitment. Part III considers whether there are any sources of demand-rights other than joint commitment. Chapters eleven and twelve focus on the moral realm, and chapter thirteen on the legal realm, assuming the working characterizations of these realms presented in chapter two. The answer in both cases appears to be negative. Focusing on two central conceptions of human rights, chapter fourteen considers the implications of the book’s argument as a whole for the topic of human rights. The conclusion reviews the main theses for which the book has argued. Each of the three parts of the book, and each of the individual chapters, is prefaced by a summary of its contents.

Notes 1

Jones (1994: 1) refers to “the conventional wisdom” that “neither the ancient Greeks nor the ancient Romans possessed the concept of a right.” Not all agree with this particular claim. Wenar (2005: 252) asserts that “rights were extant in

2 3 4 5

6 7 8

9

10

11 12

13 14 15 16 17 18 19 20 21 22 23 24 25

26 27 28 29 30 31 32

ancient law,” citing multiple authors. As will be clear from the text below, we do not need to review ancient legal systems in order plausibly to dispute the conventional wisdom in question. Cf. e.g. MacIntyre (1984: 67) agreeing with Gewirth (1978). For some pertinent discussion see the text below. Feinberg (1970). Feinberg (1970: 247). Kagan (1998: 170); Kagan describes several distinct, albeit related senses of “a right” that he perceives to be at issue in contemporary moral discourse. See ch. 12, sec. 3 below. Dworkin (1977: 268) lists several senses from the discourse of “politics and philosophy.” Surveying legal discourse, Hohfeld (1964) picks out four distinct relations that have been associated with the term “right.” See ch. 1, sec. 1 below. See e.g. the accounts described in ch. 5, including Thomsonʼs “constraint,” Razʼs “interest,” and Hartʼs “choice” theory. See the quotation from Jones (1994) in note 1 above. I mean to emphasize “informal” so as to draw attention to the fact that many agreements occur outside the legal arena. Nor would the agreements I have in mind tend to be characterized, except fancifully, as “bargains,” “deals,” or “contracts”, all referenced by Feinberg, whose focus in a list of important rights-involving things has a strongly mercantile-cum-legal flavor. For what seem to be convincing indications of this in the corpus of ancient Greek writings see the many places in Platoʼs Republic where Socrates proposes some procedure that he and his interlocutor should follow and his interlocutor agrees that this is how they should go on, e.g. Socrates: “If you are willing, letʼs first find out what sort of thing justice is in a city….” Adeimantus: “That seems fine to me.” (Plato (1978a: 368e–369a). See e.g. Hart (1955), Raz (1984a), Sumner (1987). In this section and in much of what follows I assume the correctness of this generally accepted point. In chapter nine, I o er accounts of agreements and promises that justify it. Some theorists may want to qualify the point so that it applies only to some agreements, such as those entered into voluntarily. For now I set such thoughts aside with the assumption that we are talking about agreements with no problematic features. There is extended discussion of agreements and promises, including those with certain problematic features, in chapters six, seven, and nine. In what follows I omit “(or her),” and the like, for brevityʼs sake. In writing of people “understanding” that they have certain rights in certain contexts, I refer to their conception of the situation—which, in the cases in question, I take to be correct. Feinberg emphasized the making of demands in the context of rights. He writes also of claiming, in particular, “performative” (as opposed to “propositional”) claiming. See Feinberg (1970: 257). Others who have associated rights with demanding include Haksar (1978), and Skorupski (2011: 307–17). See also Darwall (2006), discussed in chs 11 and 12 below. See chapter four of this volume in particular. I first argued for the association of acting together and rights in Gilbert (1989: 162–3) and Gilbert (1990). See also Gilbert (2014a: ch. 1), and elsewhere. Plato (1978b: 174d). Thanks to Paul Bloomfield for referring me to this passage. On “waiving” a right, see ch. 1, sec. 2 below. It seems that Glaucon might have refused to go on without Socrates, and it may well be that Socrates cannot relinquish his right without the concurrence of Glaucon. For now I set this aspect of the matter aside. As in the case of agreements and promises we are talking about unproblematic cases of acting together. For more on acting together see ch. 10, sec. 3. Cf. Lyons (1969). An example familiar in the contemporary philosophical literature from Lewis (1969) and Skyrms (2004), deriving from Rousseauʼs Discourse on Inequality. Here I echo the robust description of a right-holderʼs position in Feinberg (1970: 252). On the topic of this paragraph see the beautiful discussion in Feinberg (1992: 239–44) responding to Weil (1952). One who emphasizes the connection of rights with force is Hart (1955). See ch. 4, sec. 3.2; also ch. 11, sec. 3 of this volume. Regarding “at least on the basis of a single case”: there is a well-known tendency of people angered by their intimates to say (or shout) such things as “You never keep your promises!”—magnifying the cause of complaint far beyond the particular, prompting event. Bentham (1838–1943: vol. II, 501). Burke (2002). See e.g. Rawls (1999). See ch. 14 below for further discussion of human rights. See e.g. Glendon (1991). See e.g. Sumner (1987: ch. 1) on which I draw in this section. Dworkin (1977) famously described rights in the political realm as trumps with respect to welfare considerations. For further discussion see ch. 1, sec. 4, and ch. 4, sec. 6 below.

33 34 35 36 37 38

See e.g. Hiskes (2008) on future generations, Regan (1983) on animals, Nash (1989) on nature. The problem for future generations is that they are unable to exercise their putative rights now. Walzer (1977) suggests a positive answer. Cf. the famous discussion in Thomson (1971). Here, as elsewhere, my use of “so-called” is not intended to disparage the usage in question. Something is a “so-called right” if it is (at least sometimes) called a “right.” See especially chs 4 .

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

Online ISBN: 9780191851506

Print ISBN: 9780198813767

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PART FRONT MATTER

Part front matter for Part I A Problem Posed  Published: April 2018

Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

The rst chapter places the argument of this book within a framework of distinctions from rights theory, o ering working accounts of claims, liberties, immunities, and powers. The second chapter o ers working accounts of the two realms in which rights are usually held to exist: the moral and the legal or, more broadly, institutional realms. After this, the discussion starts to focus on claims. Legal theorist Wesley Hohfeld suggested that my claim against you is equivalent to a duty of yours to me. What, though, is a duty to someone, as opposed to a duty in the sense of requirement, or—in my terms—a plain duty? Chapter three urges caution as to the standard assumption in rights theory that a duty to someone—otherwise referred to as a directed duty—comprises in whole or in part a plain duty. Chapter four develops a particular understanding of (non-institutional) directed duties such that my having a duty to you to perform some action is equivalent to your having the standing to demand that action of me. Eliminating the term “duty” altogether, one can say, equivalently, that you owe me the action in question. I say that one has a demand-right when one has the standing to demand an action. This is the kind of right generally understood to be accrued by the parties to agreements, among others. Demand-rights have some title to be considered rights par excellence. They are the focus of the rest of this book. To say they exist in the context of agreements, for instance, is not yet to understand their grounds. Indeed, their presumed existence raises a pressing philosophical problem: how are they possible? As chapter ve explains, contrary to what is often supposed, the solution is not to be found in any of the most prominent contemporary theories of rights. Particular attention is paid to the constraint theory of Judith p. 14

Thomson, the interest theory of Joseph Raz, the choice theory of H. L. A. Hart, and similar views.

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

Online ISBN: 9780191851506

Print ISBN: 9780198813767

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CHAPTER

1 Some Central Distinctions from Rights Theory  Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.003.0002 Published: April 2018

Pages 15–27

Abstract Four relations distinguished by rights theorist Wesley Hohfeld are introduced: claims, liberties (privileges), powers, and immunities. A broader conception of powers and immunities than is standard is discussed and adopted. Hohfeld maintained that claims were rights “in the strictest sense.” Several arguments for the primacy of claims are outlined, and the idea that the assertion of a claim has a certain forcefulness is noted. Hohfeld argued that “correlative and equivalent” to anyone’s claim is someone’s duty to that person. The nature of a duty to a person or, in other terms, a directed duty, will be further probed in later chapters.

Keywords: claims, directed duties, duties, Hohfeld, immunities, liberties, powers, privileges Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

This chapter places the argument of this book in the context of a four-fold distinction between claims, liberties, powers, and immunities familiar to rights theorists, o ering working accounts of claims and so on. It argues for and adopts a broader understanding of immunities and powers than is standard, and reviews several arguments to the e ect that claims have a kind of primacy among the so-called rights.

1. Hohfeldʼs Four-Fold Distinction The term “rights” tends to be used indiscriminately to cover what in a given case may be a 1

privilege, a power, or immunity, rather than a right in the strictest sense.

The jurist Wesley Hohfeld’s four-fold distinction between privileges, powers, immunities, and rights “in 2

the strictest sense”—which he also called “claims”---is well-known to rights theorists. Hohfeld said less

3

about privileges, and so on, than he might have. Nonetheless what he does say continues to be a central 4

point of reference in the literature of contemporary rights theory.

This chapter is intended to place the argument of this book in the context of Hohfeld’s four-fold distinction p. 16

as it will be understood here. There are at least

minor disagreements among subsequent rights theorists

with respect to the best way to represent a given Hohfeldian relation. If I think something signi cant is at stake I explain my own choice in the matter. Though Hohfeld’s distinction is often seen as a distinction among rights, it can also be considered simply as a distinction among relations, something that accords with Hohfeld’s own sense of things. The latter will be 5

my practice in this chapter.

After setting out the four Hohfeldian relations as they are generally understood I argue for and adopt a broader account of powers and immunities than is standard. Finally, I review some arguments to the e ect that, whether or not one grants that the other relations are also relations of right, claims are rights “in the 6

strictest sense.”

Hohfeld himself was concerned exclusively with legal relations. In this chapter I make no reference to the legal or other realms in which such relations may hold. I say something about the two generally acknowledged realms of rights in chapter two.

1.1 Claims 7

Here are two examples of the ascription of a claim, using the relatively formal language of rights theory. (1) Josh has a claim against Nat to her waking him up. (2) Anne has a claim against Pete to his exercising daily. These are both instances of the following general schema for ascriptions of claims: 8

(SC)

X has a claim against Y to Y’s phi-ing.

A few notes on schema SC are in order. As the examples show, possible substitutions for “phi-ing” may involve both verbs with an object, as in “waking him up” and verbs with no object, as in “exercising daily.” p. 17

SC is intended to leave open whether X and Y are human persons or other entities. From what has been said so far it is not yet clear what conditions, if any, must be met by a person or other entity that occupies X’s position. Whoever or whatever stands in Y’s position must be capable of acting, since an action of Y’s is the content, substance, or object of the claim—that is, what the claim is a claim to. In what follows I shall assume for the sake of simplicity that X and Y are human persons, but the points made apply, with relevant changes, to other potential claim-holders and their addressees. I take the preposition “against” to indicate, crucially, that to have a claim is in and of itself to stand in a particular relationship to some person—the addressee of the claim. SC is intended to leave open whether X and Y are the same person. Some theorists deny that one can have a 9

10

claim against oneself. Some o er an argument for this position.

Others are willing to consider its

11

opposite.

Rather than taking a stand on this issue here, I allow that the cases most cited, discussed, and accepted as cases of claims involve distinct parties. The same is true of the other Hohfeldian relations to be discussed

later. In this book, therefore, I should be understood to have such cases in mind, except where I say 12

otherwise.

SC does not tell us what it is for one person to have a claim against another. I now turn to that question. According to Hohfeld the “correlative and equivalent” of a given claim is a duty of its addressee to the 13

claim-holder. Here I focus on what I take to be the stronger relation of equivalence.

I represent it by “if

14

and only if.” I say more about it in due course.

Hohfeld indicates that he would spell out the equivalence in question more fully as follows: (EC) p. 18

X has a claim against Y to Y’s phi-ing if and only if Y has a duty towards X to phi. 15

Note that Y is here said to have a duty towards, or, in the standard shortened form, to X.

Duties toward

16

someone are often referred to as “directed” duties. I shall adopt that label here.

Rights theorists generally accept the above equivalence. They di er widely, however, as to the nature of 17

directed duties.

Given Hohfeld’s equivalence, that means that they di er widely as to the nature of claims.

In the rest of this chapter I shall use the standard terms “duties,” “duties toward,” “duties to,” and 18

“directed duties” without attempting to say what they refer to. I say more about that in later chapters.

1.2 Liberties 19

Here are two examples of the ascription of a liberty, referred to by some, following Hohfeld, as a privilege: (1) Alex has a liberty against Beth to say what he thinks. (2) Jane has a liberty against Sam to address him. Both of these are instances of the following general schema for the ascription of liberties: 20

(SL) X has a liberty against Y to phi.

Crucially, X’s liberty concerns X’s own action. X is, as one might say, free or at liberty—in relation to Y—to act in the relevant way. With relevant changes my notes on SC, the general schema for claims, apply to SL, the general schema for liberties. I shall not repeat them here. Rights theorists distinguish between simple liberties and paired liberties. Alex’s liberty against Beth to say what he thinks is, on the face of it, a simple liberty. That is, he has a liberty against Beth to say what he p. 19

thinks, but he may or may not also

have a liberty against Beth to refrain from saying what he thinks. Alex

will not have such a liberty if, say, he has promised Beth that he will always say what he thinks. One has a 21

paired liberty if one not only has a simple liberty to phi, but also a simple liberty to refrain from phi-ing.

In further discussion, when I refer here to a “liberty” to phi, without quali cation or further explanation, I refer to a simple liberty that may or may not be part of a paired liberty. A given liberty may be combined with a protective claim against one or more others that they refrain from interfering with one’s exercise of the liberty in question. Thus Jane may not only have a liberty against Bill to address him, but also a claim against him to his refraining from stopping her doing so. Without a protective claim, one has what is often called a naked liberty. When such a claim is present, one has a protected liberty.

What is it to have a naked liberty? The Hohfeldian explanation is in terms of the following equivalence: (EL1)

X has a liberty against Y to phi if and only if Y has no claim against X to X’s abstention from

phi-ing. Given what has been said about claims, we can substitute “X has no duty to Y to abstain from phi-ing” for what follows “if and only if” in equivalence EL1, giving the further equivalence: (EL2)

X has a liberty against Y to phi if and only if X has no duty to Y to abstain from phi-ing.

Clearly, for EL2 to be truly helpful we need to understand what it is for one person to have a duty toward another. The nature of directed duties, then, is highly germane to one’s understanding not only of claims but also of liberties. It is clear from EL1—the rst equivalence for liberties above—that if we knew the distribution of all of the claims there are, we would know the distribution of all the liberties. Though the reverse is also true, the notion of a claim is clearly more basic than that of a liberty, which is understood in terms of it.

1.3 Direction in the Hohfeldian scheme Some theorists may construe the terms “claim” and “liberty” in a way that di ers signi cantly from the Hohfeldian construals just outlined. In particular, they may see claims as having “correlative duties” but p. 20

not describe the latter as duties

toward the claim-holder. They may, accordingly, describe someone’s

liberty to phi as equivalent to their lack of a duty to phi, neither the liberty nor the duty having an addressee. 22

They may or may not be concerned to say something that corresponds to Hohfeld’s statements.

The concepts with which these theorists work may be useful for their purposes and be relatively widespread. Further, as long as one has no problem with the notion of a duty, period, one will understand completely the nature of a claim, and hence a liberty, on their accounts. There is no need, in either case, to know what it is for a duty to be directed. The point I want to emphasize here is the inclusion of the direction of a duty in the Hohfeldian scheme. I turn now to the last two relations to be discussed here: powers and immunities. I start by setting out the most standard understanding of these. I then suggest a broader interpretation for each of them.

1.4 Powers Here are two examples of the ascription of a power: (1) Brenda has the power against Al to deprive him of his liberty to attend department meetings. (2) Paul has the power against Mary to extend his claims against her. These t the following general schema for the ascription of powers: (SP)

23

X has a power against Y to psi Y.

24

To have a power in the relevant sense is to be in a position to do something to the addressee of the power. One’s physical and mental powers are not at issue.

According to the standard characterization of the actions to which powers relate, to have a power is to be in 25

a position to e ect an alteration in the existing Hohfeldian relations of the addressee of the power.

The

foregoing examples t this characterization. After discussing immunities I shall adopt a broader characterization than the standard one for reasons I explain. p. 21

Rounding things out, Hohfeld’s equivalence for powers introduces the Hohfeldian relation of a liability which I shall not discuss further here: (EP)

X has a power against Y to psi Y if and only if Y has a liability against X to X’s psi-ing Y.

1.5 Immunities Here are two examples of the ascription of an immunity: 26

(1) Tom has an immunity against Beth to her depriving him of his claim to her assistance. (2) Liz has an immunity against Mark to his removing her liberty to re him. These exemplify the following general schema for the ascription of immunities: (SI)

X has an immunity against Y to Y’s psi-ing X.

According to the standard conception of an immunity, the action at issue—Y’s psi-ing X—is a matter of Y’s 27

altering one or more of X’s claims, privileges, immunities, and powers.

To say that Tom has an immunity against Beth to her depriving him of his claim, for example, is to say that Beth lacks a particular Hohfeldian power. In Hohfeld’s terms, the lack of a given power is a disability. Correlative and equivalent to any immunity, then, is the corresponding disability of its addressee. More formally: (EI)

X has an immunity against Y to Y’s psi-ing X if and only if Y has the following disability

against X: the disability that consists in his lack of the power to psi X.

2. Powers and Immunities Revisited In both law and everyday life there are situations that are not covered by the standard Hohfeldian account of powers, though they appear to be akin to the situations it does cover. Thus suppose Bob promises his friend Kate that he will come round for dinner tomorrow. Later that day he p. 22

calls to ask if she would mind his not coming to dinner

that evening. Kate responds “I would mind! You

must come to dinner—I insist!” If Bob were to reply “You’re not in a position to insist!” Kate could properly demur, citing Bob’s promise. In contrast, suppose Jack runs into an acquaintance, Phyllis, in the supermarket. After he mentions that he has been feeling low, she asks if he would like to go for a co ee. He hesitates, and she says, playfully, “You must! I insist!” She intends her playful tone to indicate that she knows she is not really in a position to 28

insist, in the sense at issue.

Rather, she wishes Jack to proceed as if she were. A familiar kind of case along

these lines is that in which someone who is dining with another person says he “insists” on paying the 29

whole bill.

In the case of Bob and Kate, one might be inclined to describe Kate as having a “right” to insist that Bob come to dinner. Her having this right is a matter of her being in a position to do something, namely, to insist that Bob come to dinner. Evidently she has something akin to a Hohfeldian power.

That said, her doing what she is in a position to do seems not to involve her altering Bob’s claims, liberties, or other Hohfeldian relations. Rather, she indicates that she has a particular claim—a claim to Bob’s coming to dinner that she has through his promise—and that she has no intention of waiving this claim. As she 30

might go on: “I’m not letting you out of this!”

If insisting on the performance of a given action expresses one’s intention not to waive a given claim, demanding the object of the claim from its addressee is a kind of enforcement of the claim, something for 31

which, also, one needs something akin to a Hohfeldian power.

Thus suppose that Bob, forgetting his promise to dine with Kate that evening, calls her about something else and mentions that he is on his way to a restaurant for dinner. Given Bob’s promise, Kate is in a position seriously to respond “Turn right back! You’re having dinner with me!” In contrast, it is at best unclear that p. 23

a stranger at the gas station where Bob has stopped momentarily, when apprised of

the relevant facts, is 32

in a position seriously to demand of Bob that he turn back and go to Kate’s on account of his promise.

Though Kate has something akin to a Hohfeldian power in this situation—the power to demand that Bob come to her house for dinner—her acting accordingly does not seem to be a matter of altering the 33

constellation of anyone’s claims or other Hohfeldian relations.

Rather, she enforces a claim she already

has. Or, equivalently, she enforces a duty Bob already has to her. In order to re ect these points one could characterize the actions over which powers range at least somewhat more broadly than is standard in rights theory. One could say that there are powers to e ect some alteration in the distribution of claims, liberties, and so on of the power’s addressee and also powers to perform those actions that imply possession of a claim by the one with the power, actions that include insisting on and demanding performance of relevant actions by the power’s addressee. I take it that a further power in the latter category is the power to rebuke the power’s addressee for failure to respect the relevant claim. For similar reasons, one could broaden the common account of immunities in the analogous way, such that the actions from which the immunity-holder may be immune either involve an increase or a decrease in the claims, and so on, that he currently holds, or imply the existence of another’s claim against him, actions that include demanding or insisting on some action, and rebuking for non-performance. Then in the case of Jack and Phyllis, for instance, Jack could be said to have an immunity against Phyllis’s insistence that he go for co ee with her, an immunity that corresponds to Phyllis’s lack of a claim against Jack that he go for co ee with her. As Jack might express his immunity, in the vernacular, “You can’t insist that I have co ee with you.” I shall adopt the suggested broadening of the standard account of powers and immunities. When I mean to refer only to the subset of powers and immunities that t the narrower, standard account I shall write of 34

alteration powers and immunities.

p. 24

3. Some Arguments for the Primacy of Claims In the quotation that opens this chapter Hohfeld suggests that in the “undiscriminating” legal usage he decries one can be said to have a “right” if one has a claim, a liberty, a power, or an immunity as he 35

understands these.

Evidently a variety of combinations of these relations is possible, such as the

combination of a simple liberty and a protective claim that characterizes a protected liberty. Indeed, it is generally agreed by rights theorists that in speaking of a particular “right,” people often, if not 36

always, have some such combination in mind.

For instance, in speaking of a “right of free speech,”

someone may be assuming—without putting things in so many words—that he has a liberty against all

parties to speak his mind together with a claim against all others to their not preventing him from doing so. 37

In short, he may assume that a protected liberty is at issue.

That said, claims have often been singled out as having some kind of primacy in the realm of so-called 38

rights, if only the primacy of being rights “in the strictest sense” of the term.

In the rest of this section I

brie y review several arguments in favor of the primacy of claims. All of these arguments proceed at a certain distance from the notion of a claim. That is, they go no further than Hohfeld does in their assumptions about what claims amount to. As I explain in chapter four, a new argument for the primacy of claims opens up once claims have been further characterized in the way I shall 39

propose.

3.1 A common assumption: rights correlate with duties Hohfeld appeals to what he takes to be a standard assumption “in ordinary legal discourse,” the assumption that rights are correlated with duties, in particular—as he elaborates the point—duties toward the rightp. 25

40

holder.

Since only claims are so correlated, it seems that jurists think of rights as claims, though their

unconstrained use of the term “rights” suggests the contrary. To refer to claims as “rights,” then, is to use 41

the quoted term in its “limited and proper meaning.”

3.2 A tendency to speak of “rights” only when claims are present An argument with some a

nity to Hohfeld’s has been put forward by Matthew Kramer and Hillel Steiner.

They argue that in the speech of lay persons and jurists alike, there is a tendency to restrict the use of the term “right” to cases where somebody else has a duty toward the right-holder, irrespective of the rightholder’s liberties, powers, and so on. Thus they write “No liberty or power would ordinarily be designated as a ‘right’ if it were wholly unaccompanied by claim-rights against many forms of interference with the 42

exercise of it.”

They go on to assert that in light of this and other facts about ordinary usage, “reserving

the term ‘right’ for claim-rights is singularly appropriate,” given the need for some regimentation of 43

ordinary language, among theorists at least.

Kramer and Steiner rest their case on a point about the extension of “rights” talk in law and everyday life and Hohfeld rests his case on how people (within the law) commonly think of rights. Since there are undoubtedly some outliers, including some rights theorists, in the former case and most likely in the latter also, one might wonder if there are any arguments of a di erent kind.

3.3 Thomsonʼs argument from conceptual priority 44

Judith Thomson trenchantly asserts that: “Claims are fundamental.”

Using the term “privilege” in the

sense of “liberty” as used here, she brie y argues for this as follows: a privilege is merely a lack of a claim [sc. in another], a power is an ability to generate claims, privileges, and powers, and immunities, and a cluster-right is a more or less fuzzy-bounded group 45

of rights of the other species.

One can see this argument, slightly recast, as having two steps. First, powers and immunities can reasonably be considered secondary insofar as they are—as Thomson understands them—higher-order Hohfeldian relations. Second, of the rst-order relations, claims are prior to liberties, since a liberty is de ned as the lack of a claim.

p. 26

The priority here relates not to a common assumption about what are referred to as “rights,” as with Hohfeld’s argument linking rights to duties, or to potentially refutable claims about usage, but to the way in which the four di erent Hohfeldian relations relate to one another conceptually.

3.4 A genealogical argument Thomson’s points may suggest something like the following “genealogical” argument. This, too, concerns the relation of ideas. It is couched, however, in terms of the way that talk of “rights” could in principle 46

spread over time.

More speci cally, it argues that should the label “right” rst have been applied to

claims, it would have been quite natural for its use to be extended to liberties, powers, and immunities—and no other such extension is as plausible. The positive part of such an argument might go something like this. Suppose that we start with claims as the only relations referred to as “rights.” Protected liberties are in part constituted by claims of the libertyholder against the addressee of the liberty. So one can imagine protected liberties coming to be referred to as “rights” by virtue of these constitutive claims. Naked liberties do not de nitionally involve a claim of the liberty-holder. Still, once protected liberties are referred to as “rights” it could seem like a natural enough extension of the term to apply it also to naked 47

liberties, central constituents of protected liberties.

Kramer and Steiner argue, plausibly, that a claim that can be removed at will is of less value to the claimholder than a claim that is accompanied by an immunity to such removal, and other immunities as well. In light of this one can imagine the use of the term “right” gradually extending from claims to immunities that protect claims and, eventually, to immunities generally. There is another route by which immunities generally might come to be crowned with the title “rights” given that claims are initially so crowned. Even an immunity to the removal of a given claim would best be protected by another claim, namely, a claim to action that respects the existence of the immunity. The same is true for immunities in general. Immunities with protective claims could come to be referred to as “rights” in the way described for protected liberties. As a result, naked immunities could also attract the label in due course. p. 27

As to powers, these include powers to create claims, among other claim-related powers. The term “right” 48

could have come to be used for at least one such power—and then spread to other powers of various kinds.

4. Asserting a Right Regarding “assertions of right,” Brian Orend suggests that, whatever other Hohfeldian relations are 49

involved, it is the inclusion of a claim that causes any such assertion “to strike with the force of a right.” Words of other rights theorists resonate with this. Thus Jeremy Waldron speaks of the “table-thumping

adversarial rhetoric of rights.” Shortly after, referring to claims, he goes on: “the right-bearer is one who 50

is…vigorously conscious of what she is entitled to demand from others…”

Consonantly with both of these,

51

Judith Thomson observes that to assert a right is to demand its object.

In chapters three and four the nature of claims will be further probed, as will the relation between the existence of a claim and the making of a demand. A further argument for the primacy of claims will then be 52

sketched.

5. The Importance of Claims There may well be some merit to Hohfeld’s contention that claims are “rights” in the strictest sense and the related proposal that we restrict our talk of “rights” to talk of claims if we wish to avoid ambiguity. Though this book will proceed to focus on claims, its central argument does not depend on the truth of that contention or the persuasiveness of that proposal. Clearly, any advance in our understanding of claims will be an important contribution to the theory of rights, with a signi cant impact on our understanding of rights overall. Before further considering claims, I o er working accounts of the two realms of rights generally distinguished in rights theory.

Notes 7 8

9 10

11 12 13

14 15 16 17 18 19 20

21 22 23 24 25 26

Hohfeldian claims are o en referred to in the contemporary literature as “claim-rights”. This avoids a possible misunderstanding of such claims as things a person does, as in “He claimed the prize.” I shall use throughout this book the capital letters “X,” “Y,” and (sometimes) “Z” as generic labels for whichever individuals are involved in a particular relation. If an author who is quoted uses, rather, “A,” “B,” and so on, I will use those letters within the quotation marks, and in commentary on the quotation, if switching to “X” and “Y” immediately would be confusing. E.g. Kamm (2002a: 480). Pogge (2008: 62), for instance, argues that we do not engage in the appropriate “claiming, defending, protesting, and punishing activities against ourselves.” It seems, however, that we do engage in at least some of these activities. See ch. 8, sec. 5.4 of this volume. E.g. Sumner (1987: 211). I discuss claims against oneself given a particular understanding of claims, and in a particular context, in ch. 8, sec. 5.4 below. An aspect of their practical relevance is discussed in ch. 14. “Stronger”: in the sense of less inclusive. I take it that if two relations are equivalent they are correlative, whereas one may be correlated with the other without being equivalent to it. Evidently the equivalence in question is not simply material equivalence. See ch. 3, sec. 1.1 of this volume. Cf. e.g. Rainbolt (2006: 2); Sumner (1987: 25–7); Waldron (1984: Introduction). Other qualifiers in the literature are “relational” (see e.g. Esper and Keating (2008), and “bipolar” (Weinrib (1995), followed by Thompson (2004), Darwall (2006), and others). See e.g. Sreenivasan (2010), who both describes two salient contemporary interpretations and o ers his own interpretation. See ch. 2 for a standard use of “duty” in rights theory, which I adopt; see chs 3 and 4 for more on directed duties. For more on Hohfeldʼs view of claim-rights see ch. 4, sec. 1. Sumner (1987), Rainbolt (2006), and others use the term “liberty.” “Privilege” is used by e.g. Wenar (2005). Thomson (1990: 45f) reserves the term “liberty” for a complex of Hohfeldian relations that includes a Hohfeldian privilege. With respect to Hohfeldʼs understandings one can infer this schema for privileges from what he says about claims and the relationship between privileges and claims. I say something about a di erent, non-relational, account of liberties in the text below. Simple liberties are also referred to in the literature as “half-liberties,” and paired liberties as “full” liberties. For related discussion see Sumner (1987: 33f). See ch. 3 below for discussion of one prominent rights theoristʼs focused discussion and ultimate rejection of Hohfeldian directionality. Here, as later in the text, where I want explicitly to refer to a verb and its object, I will write not of “phi-ing” but of “psiing…” where “…” is filled in with a term referring to the object of psi-ing. One may be in a position to do something, yet not be free to do it, in the sense of having the corresponding liberty to do it. By “the corresponding liberty” I mean a liberty with the same content and addressee as the power. See e.g. Finnis (1980: 199); Sumner (1987: 28–9); Thomson (1990: 59); Wenar (2005: 231); Rainbolt (2006: 2). In this and the next example the addressee of the immunity is understood to be the addressee of the mentioned claim (or in the next case, liberty).

27

1 2

3

4 5 6 28 29

30

31 32 33

34 35 36

37 38 39 40

41 42 43

44 45 46 47 48

Cf. Finnis (1980: 199); Sumner (1987: 29); Kamm (2002a: 479), referring to powers and immunities as “meta-rights”; Wenar (2005: 3); Rainbolt (2006: 3). See also Steiner (1994: 60–1), though note also the part of his discussion referenced in the next section. Hohfeld (1964: 36). Hohfeld introduces the term “claim” for rights “in the strictest sense” at p. 38. Around the same time John Salmond and Henry T. Terry made related distinctions; Hohfeldʼs discussion is generally regarded as having been the most rigorous and tends to be cited by those alluding to these distinctions. See Wellman (1985: 17). Cf. Sumner (1987: 18–19): “[Hohfeld] contented himself with organizing [his conceptions] into two tables of opposites (contradictories) and correlatives (equivalents).” Further pointers as to his meaning are given in other ways. I focus on one such pointer in chapter four. Contemporary rights theorists starting from Hohfeldʼs distinctions, though sometimes modifying them, include Jones (1994); Rainbolt (2006); Steiner (1994); Sumner (1987); Thomson (1990); Wenar (2005). As it is of others; see e.g. Kramer et al. (1998: 7). By “relations of right,” here, I mean relations that involve a right in one party. There may be a narrow sense of “insist” such that one requires a power to insist, and a broader sense such that one does not. The same goes for demanding; see the text below. See also ch. 4. It may be that one can accrue a power of the relevant type by falsely purporting to have it, and receiving a concessive response. If this is so, it can be explained in a way consonant with the general account I shall give, in due course, of the accrual of such powers. Here I understand waiving a claim to involve a commitment not to pursue its object. It does not involve elimination of the claim. On this understanding, one could waive an inalienable right, understood as a right of which one cannot divest oneself. Possibly insisting in the sense at issue here could also be considered to be a form of enforcement. I take it, however, that demanding is more naturally so considered. See chs 11 and 12 for discussion of, in e ect, the position of strangers specifically in relation to someoneʼs moral delicts. Steiner (1994: 61) writes of “powers both to waive and to secure…compliance with the duty or disability correlatively entailed by” oneʼs right and goes on to say that, according to the theory of rights that he is discussing, “something is a right if it is either a claim or an immunity to which are attached powers of waiver or enforcement over its correlative constraint.” Steinerʼs o icial and standard account of powers as capacities to alter “first-order” relationships and other second-order relationships (60–1) does not obviously allow for a power “to secure compliance” or “enforce” a claim or immunity. I shall not consider whether these always relate to claims as opposed to other first-order Hohfeldian relations. In this chapter I have not taken a position as to the truth of this suggestion, intending only an exposition of the relations themselves. Wellman (1985) argues that there is always both a core and one or more peripheral Hohfeldian relations constitutive of a given right. Cf. e.g. Ele heriadis (2008). Others are happy to consider a single Hohfeldian relation as a right, e.g. Thomson (1990: 38). Cf. e.g. Thomson (1990: 37) on the “right to life” and “the rights to liberty and property.” Hohfeld (1964: 36). H. L. A. Hart (1955: 179) refers to “the centrally important sense of ʻrightʼ which has ʻdutyʼ as a correlative.” For further concurring voices see the text below. Readers wanting to focus on the main argument of this book could omit the rest of this section. In support of his appeal to ordinary legal discourse Hohfeld (1964: 38) quotes from an 1894 case in which it is said that “ʻDutyʼ and ʻrightʼ are correlative terms.” In the illustrative example he gives immediately following the quote, prefacing the example with “In other words,” he himself refers to someoneʼs “duty toward” another. For the full example see ch. 3, sec. 1. Hohfeld (1964: 38). Kramer and Steiner (2007: 297). Kramer and Steiner (2007: 296). They assert that “the indiscriminate use of the term ʻrightʼ to cover each of the Hohfeldian entitlements is strongly conducive to muddled thinking and argumentation.” In discussion prior to the quotation in the text they tend to prefer to call “rights” only claims accompanied by immunities against their removal. Thomson (1993: 159). Thomson (1993: 159). Cf. Brandt (1964) on how the meaning of the term “obligation” has in fact spread over time. Hart (1955: 179) allows that sometimes an unprotected liberty is called a “right” but argues against this usage. Others, e.g. Thomson (1990: 49), citing Hobbes, accept it. At this point in the discussion the nature of claims has not fully been probed. In chapter four I develop an account of

49 50 51 52

claims such that they are powers of a certain kind. Given that interpretation, someone wishing to develop a genealogical argument for the primacy of claims would start, presumably, with the relevant type of power. He could then bring in powers of other types, then protected liberties as liberties conjoined with powers of the appropriate type, and so on. Orend (2002: 23), commenting on Jones (1994: 12–24). Waldron (2000: 123). Thomson (1990: 2). See ch. 4, sec. 6: “the rights assertion argument”.

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

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CHAPTER

2 Two Realms of Rights  Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.003.0003 Published: April 2018

Pages 28–46

Abstract Theorists generally see rights as inhabiting one or both of two realms: the legal or more broadly institutional and the moral realm. This chapter o ers broad working accounts of these realms, comparing and contrasting their denizens. Both law and morality involve systems of rules, including deontic rules. Deontic legal or institutional rules as such are abstract objects from which nothing follows about what anyone ought to do. In short, as such, these rules are not normative. In contrast, deontic moral rules are normative. Consideration of the normativity of personal decisions suggests that there is room for a realm of rights that is neither institutional nor moral.

Keywords: decisions, deontic rules, institutions, law, morality, normativity, realms of rights, systems of rules Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

Theorists generally see rights as inhabiting one or both of two distinct realms: the legal or more broadly institutional realm and the moral realm. This chapter o ers broad working accounts of legal and moral rights as denizens of the realms in question. Given these accounts, there are signi cant di erences between rights of these di erent kinds. There is also space available for rights of a third kind.

1. Two Realms of Rights: Institutional and Moral Rights theorists generally write as if there were two—and only two—realms of rights: the moral and the 1

legal or more broadly institutional realms. That said, there are skeptics among them as to the existence of each kind of right. The most common form of skepticism concerns moral rights understood as in some sense natural. Jeremy 2

Bentham is a famous proponent of such skepticism. Those who take this position generally consider legal

and other institutional rights to be unproblematic. Judith Thomson is one who, in contrast, takes it for granted that there are moral rights while questioning 3

the idea that there is any other kind of right. Thomson clearly has a particular idea of the genus, rights, and she means to say that so-called legal rights, and the like, are not a species of that genus. The same goes for Bentham, with relevant changes. This chapter presents simple working accounts of legal and other institutional rights and moral rights. More tentatively, it presents working accounts of these rights if such there be. p. 29

The accounts are intended to throw into high relief some central features of institutional and moral rights as they will be conceived of in this book. I take these conceptions to be relatively standard. Given these accounts, as I explain, rights of the kinds in question di er in signi cant ways. I do not argue that all possible rights are either institutional or moral. Indeed, some points to be made in 4

this chapter suggest this is not the case. That is clearly important to our understanding of the realm of rights as a whole. In chapter one I distinguished the four Hohfeldian relations that have been associated with “rights” talk. For the purposes of this chapter I generally refer simply to “rights.” Where necessary I refer to claims, liberties, and so on.

2. Legal and Other Institutional Rights Rights theorists tend to focus on legal rights as opposed to the broader genus of institutional rights. I start with a brief characterization of legal rights, in particular, then make some points about institutional rights in general, points which apply, of course, to the legal case.

2.1 Legal rights as artifacts of legal systems I shall take it that: Right R is a legal right if and only if there is at least one system of laws, S, within which R is accorded to some person or class of persons. Following a standard approach, I take the heart of a system of laws or, for short, a legal system to be a set of legal rules that are more or less consistent with one another and involve some degree of reference to or 5

presupposition of one another. It is in this relatively weak sense that they form a “system.”

I take it that a given legal system may involve some inconsistencies, something that even lawmakers aiming for consistency may fail to avoid. Indeed, even a “more or less” consistency requirement may involve some 6

degree of idealization. p. 30

For the sake of simplicity I shall sometimes speak as if a legal system is comprised solely of a system of legal 7

8

rules. I shall not explore here the many kinds of rules that may be involved. I say more shortly about the broad conception of rules I take to be at issue. The components of a given system of legal rules can be determined in various ways. Clearly, explicit formulations of rules, where they exist, will play a central role. Even explicit formulations, however, are open to di erent construals with importantly di erent practical consequences. Thus a judge may need to opt for a particular construal in coming to a conclusion in a particular case, his decision helping to

9

determine the further interpretation of the rule. Such practically important aspects of the situation will be set aside for present purposes. On the present conception of legal rights they are a matter of legal rules or more generally of law. What, then, is law? This is a longstanding question in the philosophy of law that has generated a vast literature. I shall not enter that discussion here. That is because I am more concerned with what is common to legal and 10

other institutional rights than what distinguishes the legal variety.

Legal rights are perhaps the most important of the institutional rights that exist within a given political society. Other such rights include those accorded to the members of particular educational and religious institutions and, at the more trivial end of things, particular sports and games.

2.2 Institutional rights in general: ontology For present purposes I characterize an institution as a system of rules that is a blueprint for human 11

behavior.

As with a speci cally legal system, the rules in question are understood to be more or less

consistent with one another and to some extent refer to or presuppose one another. 12

Institutional rights are artifacts of institutions as such.

To set this out in parallel with the account of legal

rights given earlier, which it is intended to subsume: p. 31

Right R is an institutional right if and only if there is at least one institution, I, within which R is accorded to some person or class of persons. 13

It is important to emphasize that the systems of rules in question are, as such, abstract objects.

Should the

rules of a given institution be to some extent inconsistent with one another that does not give us an inconsistent abstract object; it gives us an abstract object composed of—to some extent—inconsistent 14

rules.

While institutions are blueprints for human behavior, there may or may not have been any corresponding human behavior in fact. In particular, no one need ever have followed the rules or attempted to get others to follow them. To illustrate the point: I can make up a board game, call it “Blotto,” such that, among other things, the person who throws a six has the right to another turn, which he can forgo if he pleases. I take it that the rules and rights of Blotto are institutional rules and rights, even if no one will ever play Blotto. The foregoing does not imply that institutions exist in complete independence of the thoughts and actions of human beings. In the above example, the game of Blotto is made up by me. The previous point was that no one need ever play the game or try to, and the same goes for other institutions with relevant changes. Should one assume that an institution qua abstract object only exists if it has at least been contemplated in thought? I shall not try carefully to pursue this question here. Still, a positive answer has some appeal. In saying that I make up the game of Blotto, I seem to imply that—as far as I know—there was no such game prior to the time at issue. In this way Blotto seems di erent from, say, a numerical sum that no one has yet 15

thought of. We discover that sum, rather than inventing it—or so one story goes.

2.3 Institutional rights in general: their (lack of) normativity An important feature of institutional rules and rights as conceived of here is this: even when right R is accorded to some person or persons within institution I, it is an open question whether anyone has reason to take account of this right. In short, institutional rules and rights, as such, lack normative implications. In saying that something lacks normative implications, I mean that, given that thing, it is an open question whether anyone has reason to take account of it in any way. I now brie y expand on the point. p. 32

Someone has reason to do a certain thing, as I understand that locution, if there is a consideration in favor of his doing it. To have reason to do something in this sense is to be subject to a relatively weak form of normativity—perhaps the minimal form. In particular, it may well be that someone has reason to do a certain thing though one would not go so far as to say that he ought to act in the way favored by that consideration, all else being equal. Consider in this connection the pleasure I will nd in eating ice cream in a few minutes’ time, and assume, as seems reasonable, that it is a consideration in favor of my eating ice cream then. Assume further that there are no considerations in the o

ng against my eating ice cream then. It seems to be going too far,

nonetheless, to say that I ought to eat ice cream in a few minutes’ time; “ought” or “should” is simply too strong. I don’t have to pursue every little bit of pleasure I can achieve, even when there are no countervailing 16

considerations.

If institutional rights and rules, as such, give no one reason to do anything, then, they are radically inert from a normative point of view. As I understand them, considerations in favor of doing something di er signi cantly in type. Some have to do with the character of the act itself or of its causal consequences. The fact that eating ice cream this afternoon will give me some gustatory pleasure is of this type; it concerns a causal consequence of my eating ice cream this afternoon. Other considerations in favor of doing something seem to be of a di erent type. For instance, if this morning I decided to eat some ice cream this afternoon, and have not since changed my mind, that seems to be a consideration in favor of eating some ice cream this afternoon. It is, however, a consideration of a special sort. In particular, it does not concern the character of the action decided upon or its causal consequences. It is the fact that I decided to perform that action—and have not changed my mind—that is 17

in question. I say more in support of this point in due course.

The point about institutional rights subsumes both kinds of consideration and any other kinds of “favoring” considerations there may be. In and of themselves such rights give no one reason to respect them or, more generally, to take account of them in any way. In order for any given person to have reason to p. 33

abide by a particular legal system, for instance, or to take account of any rights accorded

within it, he

must personally stand in some appropriate relationship to the system in question as an abstract system. At this point someone may ask: isn’t it the case, though, that as long as a given legal system or other institution applies to someone, that person has reason to abide by it? Thus suppose the laws of England apply to both Jane and Pat, and Jane has a certain legal right according to those laws. Pat then surely has reason to respect Jane’s right? One obvious aspect of the question is what it is for a system of rules to “apply” to a given person. This may 18

mean only that the rules in question refer to those with certain features, features this person has.

Thus it

may be that, according to a particular legal system, those living in a certain region have a particular set of rights. It is by no means clear that this has any normative implications for the people in question, or for 19

anyone else. I take this point to hold whether or not the laws in question are morally sound.

To characterize legal and other institutional rights as I have done usefully leaves open the question of how and in what ways such rights can impact the normative situation of a given person. At the same time, this characterization highlights an essential point: such rights under whatever more complex de nition will be intimately related to, if not exhaustively determined by, the system of rules that at least partially 20

constitutes a given legal system.

In the literature on legal rights one comes across several phrases intended to indicate that, at a minimum, a given legal system is or has been in some way instantiated in the lives of members of a given population of human beings. I have in mind references to an “existing” legal system, a legal system that is “in force,” and related phrases. In writing of the existence of a legal system, without quotation marks, I should henceforth be understood to refer to existence in the sense just introduced, while acknowledging that all legal systems 21

exist in the way of any abstract object.

p. 34

2.4 Institutional rights and rules I am assuming for present purposes that an institution is primarily a system of rules. These rules, like the institutions they constitute, are abstract objects. I now say something about the ways they may be represented in language—di erent forms of words constituting the most perspicuous expression of di erent types of rules. Legal rules in particular are predominantly if not exclusively couched in general terms as opposed to proper names or indexical expressions such as “I” and “you” or “them.” They refer, rather, to drivers, males, children, heirs, and so on. As to their form, a standard kind of rule takes the form of an instruction with respect to what may, may not, or must be done, by the relevant class of persons. In other words, legal and other institutional rules may 22

constitute permissions, prohibitions, or proscriptions, and requirements or prescriptions.

Following

custom, I shall refer to such rules as deontic rules. The term “deontic” comes from the ancient Greek for what must be done, conjuring in particular a prescription or requirement. In the preferred language of rights theory, what one must do according to a given prescriptive rule is one’s 23

duty according to that rule. I shall adopt this terminology here.

Now, legal statutes and judgments often include such sentences as “Workers have a right to be compensated for being laid o ” where the right in question is understood to be part of the legal system. Allowing that such statements express rules, they are not, or not overtly, deontic rules. A natural question, then, is this: can rules that accord rights equally well be expressed by deontic rules with, perhaps, some special features? It may seem that if Hohfeldian claims are at issue, they are a good candidate for expression by prescriptive rules, given their correlative directed duties; the same would go, then, for Hohfeldian liberties. The nature of directed duties, however, is still open, so this question cannot be decided 24

here.

p. 35

2.5 Institutional rights, moral criticism, and moral rights I take it that, as such, an institution or a particular rule within it can be morally criticizable, even unconscionable. In saying this I set aside the question whether there can be unconscionable laws in 25

particular, a topic on which there has been some debate.

For the purposes of this chapter I am considering

legal rules qua institutional rules, about which, to my knowledge, there has been no such controversy.

When a given institution is criticized from a moral point of view, moral rights are often invoked. For instance, state laws in the United States restricting marriage to male–female couples have been criticized on the grounds that a person has the moral right to marry someone of the same sex and should therefore have the legal right to do so. As conceived of in the context of such criticisms, a given moral right may lack a legal counterpart in a 26

particular legal system or other institution.

Further, a given institutional right need not be the counterpart

of any moral right, though it is possible to have both an institutional right and a moral right to the same 27

thing.

What though is a moral right? What is it, in other words, for a right to be a denizen of the moral as opposed to the institutional realm? I turn to that issue shortly. First I summarize my discussion of legal and other institutional rights.

2.6 Institutional rights: summary Institutional rights, as such, are artifacts of institutions, conceived of as follows. They are systems of rules, in a broad sense, that are blueprints for human behavior. Often the expressions of the rules will be deontic in form, but they may explicitly refer to rights. Institutions are abstract objects whose existence may depend on their having been represented in thought. As systems of rules in the abstract they have no normative impact for any individual person. Generally speaking, institutions and the rights they accord are open to moral criticism. This criticism may or may not allude to the institution’s disregard of moral rights. An institution may, of course, pass moral p. 36

muster or, indeed, be morally admirable. Whether or not this is so, it has no normative import qua institution. Speci cally legal rights as they are conceived of here have the properties just listed for institutional rights in general.

3. Moral Rights: A Broad Conception Following a standard, broad conception, I shall take it that a moral right is a right whose existence can be 28

established by moral argument.

I allow that a moral argument may be no more than a clearly compelling

moral judgment. I also allow that certain empirical facts may be assumed as part of a moral argument. This account of a moral right raises the broader question: when are we dealing with a speci cally moral matter? Moral philosophers tend not to focus on this question. They write freely of moral goodness and badness, moral rightness and wrongness, of moral reasons and requirements, of what one morally ought or ought not to do, and so on. They say something is so from a moral point of view, or morally speaking. They comfortably speak of “morality” itself. That writer and readers will interpret these terms in the same way is taken for granted. For my purposes in this book I need at least a rough account of the moral realm to work with. The account that follows accords with the views of many, if not most, moral theorists. It is, I think, particularly common among theorists of moral rights. It accords with the idea that institutions as characterized above are open to moral criticism, and enables us to distinguish in signi cant ways between institutional and moral rights. I shall adopt it for the duration of this book.

4. Morality: Some Central Features I shall take it that with respect to its content morality is, centrally, a system of rules for human conduct. As I shall shortly explain, however, qua system of rules it is importantly di erent, in several ways, from institutions as characterized in section two. Moral theorists tend to write of moral principles rather than moral rules. In what follows, I generally use the terminology of rules when comparing the moral and the legal case; otherwise I will tend to write of moral principles. Similarly, I shall write of moral duties when comparing these cases; otherwise I shall tend to write of moral requirements. p. 37

One question arising from the conception of morality as, centrally, a system of rules is whether the rules are, necessarily, consistent with one another, so that conformity to one rule will never constitute failure to 29

conform to another. In the case of morality in particular, I nd a positive answer plausible.

In any case I

think nothing will be lost, for present purposes, in making this assumption. Given the conception of morality as a system of rules, there is a moral analogue of a question that was noted earlier for institutional rights. Can morality accord rights by means of a deontic moral rule, perhaps given some further conditions? It may seem that, here, too, Hohfeldian claims are a good candidate for expression by deontic rules, given their correlative directed duties. The nature of directed duties, however, is still open. 30

As with the parallel question for institutions, then, I set this question aside here.

4.1 Normativity Institutions as characterized earlier are systems of rules that, as such, need have no normative implications for anyone. This will be as true for the rules of wholly consistent systems as for others. In contrast, according to the common conception of morality adopted here, any moral rule, as such, has normative 31

implications.

Indeed, it has normative implications, at a minimum, for all of those human beings capable 32

of acting accordingly.

One can allow that morality is normative while remaining agnostic as to whether or not there is such a thing as morality on the present conception. One can construe the central claim as follows: if morality exists then 33

by its nature it is normative.

In order not to complicate things unduly, I shall concentrate on the case of moral wrongness in further discussion of the normativity of moral rules. I shall take it that it will be morally wrong for you to perform some action in the prevailing circumstances if an applicable moral rule forbids it. Given what has been said already, if it would be morally wrong for you to phi in the prevailing p. 38

circumstances, then, at a minimum, there is something to be 34

circumstances. That is, you have reason not to phi.

said against your phi-ing in these

Most theorists would say that moral wrongness

involves a stronger form of normativity than this. In my terms, they would say that if it would be morally wrong for you to perform a particular action, then, at 35

a minimum, you have su cient reason not to do it.

In other terms: you are rationally required not to do it,

all else being equal. That is, if you do it, then, all equal, you have not been properly responsive to the 36

applicable considerations. 37

have done it, all equal.

In other terms, you acted in error, all equal. In yet other terms, you ought not to

In what follows I shall assume that moral wrongness has at least this feature.

I do not take the notions of “having su

cient reason,” “being rationally required,” “acting in error,” and

“ought” to be speci cally moral notions. One reason for saying this concerns decisions. Suppose I have

decided to leave the house at six this morning. I have not changed my mind, but take so long getting dressed that I am unable to leave the house at six. Intuitively, all else being equal, I acted in error in taking so long— I was not properly responsive to the presence of my standing decision. Intuitively, this error is not a moral 38

one. I say more on these points in due course.

Note that I intentionally speak here of what you have reason to do, and of having su cient reason to act, rather than speaking of having a reason, or a su

cient reason. This is in part to allow for the normativity of

decisions and the like. That is best not described in terms of reasons, to avoid confusion with the kinds of considerations, commonly referred to as reasons, that incline one toward (or away from) making a particular decision. Insofar as morality is representable as a system of rules, then, it is a system of rules of a particular, inherently normative type: at a minimum, everyone has su p. 39

minimum, whatever you are

cient reason to abide by the rules. Thus, at a

required to do according to that system, in a given situation, you ought to

do, all else being equal. In other terms again, given the notion of duty introduced earlier, you have su

cient

reason to ful ll your moral duties. The last clause, above, may look like a tautology. I am not taking it to be one, given my understanding of the quali er “moral,” as opposed to my understanding of the term “duty.” Recall that a given duty—for instance, a duty accorded by a given system of legal rules—may have no normative force for anyone. A fortiori, one with a given duty may not have su reason (as opposed to su

cient reason to ful ll that duty. He may not even have

cient reason) to do it. To add the quali er “moral” is in part to imply that the

relevant duty has at least the kind of normativity in question: everyone with a given moral duty has su

cient reason to ful ll it.

In principle, like any duties, moral duties may be conditional or unconditional in content. They may be instructions to act in some way only in certain circumstances, or always to act in that way. 39

I say more about the normativity of morality later in this chapter.

I now turn to another feature of morality

that contrasts it with institutions as characterized earlier.

4.2 Independence of recognition Following a common assumption, morality will here be understood not to depend for its existence on its recognition by anyone. Thus, for instance, no one need have envisaged the moral wrongness of some course 40

of action in order that it be morally wrong.

Thus, assuming that lying is wrong, all else being equal, it would be wrong even if no one had ever understood that this was so, and even if people had always assumed the opposite. That is not to say that moral truths cannot be recognized. It is only to say that a given moral truth may not yet have been recognized.

4.3 Morality versus moralities There is a radical distinction between morality and moralities, understood as systems or at least sets of rules that purport to represent morality. Moralities are a kind of institution as characterized earlier in this chapter. Moralities or, in other terms, moral codes may be personal, as when a given individual accepts a particular p. 40

moral code for himself. They may also be societal

or collective, accepted by groups of various sorts and

sizes. It may be that no one accepts a particular morality, but it has, nonetheless, been envisaged by someone.

None of these moral codes need match up to morality itself. Perhaps some are a better match and some a worse; perhaps there is one that matches it exactly. Morality itself is in any case distinct from all of them. In itself a moral code is an abstract object with no normative signi cance. Insofar as it is accepted by a given person or group it has whatever normative force such acceptance has—presumably most closely a ecting 41

the parties to the acceptance themselves.

Whatever the implications of acceptance, an accepted code is in principle criticizable from the standpoint of morality. Thus suppose that the morality of a given society permits a man physically to attack his wife given 42

only that she has irritated him. Morality may nonetheless prohibit such action.

Of course the fact that a particular morality is entrenched in a given society is a morally relevant fact. It could lead one to judge a member of that society less harshly when he acts as it allows. In sum, moralities are a particular type of institution, open to moral criticism like any other, and, as such, lacking any normative implications. Any rights they ascribe are, by virtue of that ascription, no more than institutional rights.

4.4 Moral requirements and context-sensitivity It is generally granted that though it may be morally wrong for me to do something, S1, all else being equal, it may be morally better for me to do S1 than to do some alternative action, S2, in a given circumstance. Assuming that moral wrongness involves the failure to conform to a moral requirement, this shows that at least some moral requirements are context-sensitive: what one is morally required to do depends on the context in which one is placed. For example, it may be morally wrong for me to tell a lie, all else being equal. However, if in the circumstances I can save a life, for sure, by telling a lie, and only by doing so, most people would think that I am morally required to tell the lie, all equal. Though there are certainly disagreements in this area, I shall assume that if all else is equal and I am morally required to tell the lie, then, though my lying will be unfortunate or regrettable and may call for action of some kind in relation to the person to whom I lied, p. 41

telling the lie is not at the same time

contrary to my moral duty in the circumstances. In other terms,

there cannot be a con ict of moral duties in the sense of moral requirements on the basis of the same set of considerations. It may be that no particular action is morally required, given those considerations. Note that for all I have said so far about this case, it may be that in lying I fail to ful ll an obligation or duty that is not a matter of moral requirement, and can to that extent be upbraided for wrongdoing. I say much more about non-institutional obligations or duties that are not a matter of moral requirement in due course.

4.5 Morality and value In the course of moral argument it is standard to appeal to one or more values. The value may attach to a particular form of decision-making, or willing, or to the value of the outcome of conforming to a given moral principle, and so on. For example, in arguing for a particular moral principle of delity, and the consequent moral wrongness, all equal, of breaking a promise, Thomas Scanlon appeals to what he refers to 43

as “the value of assurance.” If the principle is adhered to, the value of assurance is promoted.

Note that such an appeal is not intended to base morality on anything supposed to be subjective, such as the subjective state of valuing something, or having any particular type of attitude or feeling towards it.

4.6 Morality, desires, and interests I take it that the range of morally relevant considerations include the desires and interests of particular individuals. That said, what morality requires of a person in a given situation, all things considered, can 44

con ict with that person’s current desires, inclinations, and urges.

My desires and my interests may diverge. Morality does not necessarily side with either. I might bene t very much should I take a vacation now, and I may want to do so, but it may be morally wrong for me to do so, given some further factors in the situation. Though it may do so, morality does not necessarily require that I ignore my own desires and interests, and p. 42

on occasion these will count for more, morally,

than anyone else’s, in relation to what it is morally

incumbent upon me to do. Moral action, then, is not equivalent to altruistic action.

5. A Partial Characterization of Morality The foregoing points about morality are abstract and essentially formal. They say nothing about, if you like, what moral wrongness is, or how you might decide if something is morally wrong or not. On this there is much disagreement, particularly if one takes the moralities or moral codes of di erent societies into account, or the historical record of a given society. Leaving aside the matter of moral rights, one xed point of the moral code with which I am most familiar is the following: it is morally wrong to in ict mental or physical pain on another human being, without some special justi cation. Another xed point is the moral wrongness of manipulating another human being—as in lying to them or making a false 45

promise, without some special justi cation.

Simply noting these and related points does not of itself answer the general question about the nature of moral wrongness. To attempt such an answer is to enter more disputed territory. It is the province of an important segment of moral theory. Compare Thomas Scanlon’s observation that: an unanalyzed property of [moral] wrongness leaves unexplained the reasons we have to avoid actions that are [morally] wrong and to criticize those who engage in them. I believe that it is possible to say more about what those reasons are, and one of the main aims of my contractualist theory is to do this. Many…other accounts are best understood as o ering alternative 46

explanations.

Scanlon sees these as rival accounts of the property of moral wrongness. I take it he would include Kant’s appeal to the categorical imperative, in various versions, and the variety of utilitarian/consequentialist 47

views that populate the domain of moral theory.

Having noted this area of disagreement, I rest with the points about morality sketched earlier as providing a partial characterization of the moral realm. It will serve for the purposes of this book.

p. 43

6. Morality, Decisions, and the Normative Realm Earlier I suggested that intuitively, I act in error if I act contrary to a standing decision, as such, all else being equal. I suggested, further, that, intuitively, my error is not a moral one. I now return to these points.

6.1 The normativity of decisions It may be observed that if my initial decision was, in e ect, to perform the best action available and if circumstances have not relevantly changed, my acting contrary to my decision will be mistaken insofar as I fail to perform the best action. This may be so, but the point in question concerns my acting contrary to my standing decision as such, as opposed to my failing to choose the best action available. It is worth noting in this connection that there will not always be a unique best decision to make. The balance of reasons may be a tie between two or more options. The point about the normativity of decisions can be made quite vivid in relation to such an example. Thus suppose I must decide between two courses of action, both of which will satisfy a vital need of mine, and there is nothing to choose between the options. I decide to go for one particular option, and have not changed my mind. My decision accords with the balance of reasons insofar as either choice would have been equally good. I then inadvertently proceed as if I had decided to go for the other option. I am not acting in a way intrinsically worse than the way I decided upon. I am, however, acting contrary to a standing decision, and appear to be criticizable on that basis. Possibly someone will say that the “decision” made in such a case is no decision at all. That seems wrong to me. More generally, I do not think it logically impossible to make a decision unless one understands that one has a reason for performing the particular action decided upon. In other words, I think it possible to decide to do something on a whim. For present purposes there is no need to debate points about usage. We can agree to use the word “decision” to include all decision-like acts of the mind—those expressible, roughly, by sentences of the form “I will phi” where this is not a prediction. In this usage, I decide when I explicitly settle on a particular plan of action. Given the intuitive point at issue, even if a decision is made on a whim, the decision-maker will act in error, all equal, if he acts contrary to that decision. In other terms, one’s acting contrary to a standing decision, is p. 44

a kind of error in and of itself, all equal. In particular, in my technical terms, given a standing decision, such, the decision-maker has su

as

cient reason to conform to the decision. In other terms again, he ought so

48

to act, all equal.

It is worth noting that, apparently, the normativity in question is not a matter of some likely detrimental consequence for the decision-maker’s power to make and keep to his decisions. Thus it is not a matter of, say, his increasing the likelihood of his taking his decisions less seriously in the future, though that is something that would stand signi cantly to hamper his life’s course. Someone who agrees that one’s decision gives one su

cient reason to conform to it may conjecture that

this is a matter of the value of consistency between one’s decision and one’s action over time. The value of consistency, however, suggests rather the following norm: I ought either to conform to my decision or rescind it, in which case I am free to act or not act as the decision dictated. In and of itself, this norm does not tell me that, if my decision stands, I ought to conform to it. As John Broome has put it: the wide-scope 49

“ought” of the norm in question does not detach in the required manner.

Independently of Broome’s contention, however, it seems that, intuitively, one ought to conform to a decision that one has not repudiated, all equal. That is, every standing decision, as such, gives the decisionmaker su

cient reason to conform to it. To say this is not to contradict what Broome says about the wide-

scope “ought” he envisages. It is not, indeed, to speak to that question. It is to make an independent claim. The normative situation of one who has decided to do A seems to be well described, at least in part, as follows: all equal, as long as you have not changed your mind, you ought to do A; you are, of course, in a

position to change your mind, and if you do, it will no longer be the case that you ought to do A by virtue of 50

your decision to do so.

For the purposes of my discussion here I shall assume that this is the situation of one who has made a personal decision. I shall refer to the “ought” in question as the “ought” of decision. What is it about my decision that makes it the case that I ought to conform to it, all equal? That is a signi cant question that may be set aside here. p. 45

As noted earlier, it seems to me that the “ought” of decision is not the moral “ought”: my failing to conform to my standing decision, when all else is equal, is an error in action, but not a moral error. Since I am not here o ering an explanation for a decision’s normativity I should perhaps maintain some caution on the nature of this normativity. Su

ce it to say that an explanation in terms of moral requirement will not

tend to be persuasive to one with my sense of the matter. What is important for present purposes is the following, which I phrase with caution: if the error involved in acting contrary to a standing decision, when all else is equal, is not a moral error, then the realm of the normative is broader than the moral realm. The standard assumption about rights noted at the outset of this chapter, then, may be false. In other words, it is possible that the overall domain of rights does not fall exclusively within the union of the legal and moral realms. I should emphasize that I have not meant to argue that the fact that decisions, as such, are normative is a matter of decision. I mean to say only that given a decision—the potentially capricious, potentially misguided exercise of my will—and only that, there is something I ought to do, all equal. The content of the decision, of course, is part of the “all” that needs to be equal, in order for it to be the case that, all things considered, I ought to act as I decided to act in a given instance.

6.2 Excluded considerations Given a standing decision to do something, it seems that certain kinds of consideration that favor acting 51

otherwise are not eligible for consideration.

A person’s inclination or desire not to do what he has decided

to do appears to be a consideration of this kind. Thus suppose that Sylvia doesn’t feel like going out tonight, though earlier she decided to do so because she was then so inclined. Her change of inclination may now lead her to rescind her decision. Given that the decision stands, however, this change of inclination, as such, seems not to be the kind of consideration that might prevail over her decision in determining what she ought to do, all things considered. From a practical point of view this may not seem to matter much: Sylvia is most likely capable of changing 52

her mind.

It is, nonetheless, a notable feature of the situation. To the extent detailed, at least, personal

decisions are peremptory or exclusionary with respect to the reasons that may appropriately be cited for acting otherwise given that the decision stands. p. 46

Unlike inclinations, moral considerations are apt to override decision considerations. Thus suppose that it would be a very bad thing, morally speaking, for Sylvia to act according to her unrescinded decision. In that case, I take it, Sylvia ought not to act according to her decision. She should rst change her mind if she can. In any case, morality should have the last word.

7. Two Realms of Rights: Normativity and Epistemology This chapter has o ered broad accounts of two generally acknowledged realms of rights: the legal or more broadly institutional and the moral realms. In characterizing these realms it appealed to the idea of a system 53

of rules including at a minimum deontic rules.

A key distinction between moral and legal rules has to do with their normative implications. Moral rules, as such, have normative implications. Legal rules do not. Moral rules are thus in an important way more powerful than legal rules. A second key distinction between moral and legal rules is epistemological. The content of a given legal system is relatively unproblematic from an epistemic point of view, because—at least in the case of explicit 54

rules—one has only to understand the language of a statute book or other appropriate document.

In

contrast, the existence of particular moral rules is relatively problematic, if only because one can never settle the existence of such a rule by simply looking at documents or at the moral systems various groups or individuals have articulated. Morality is not determined by anyone’s statements about it. The standard assumption among rights theorists is that the legal and moral realms exhaust the realms of rights. I have proposed that this may not be so. Consideration of the normativity of decisions suggests that the normative realm in general, and hence the normative realm of rights in particular, may not be exclusively moral. Evidently to say this is not to show that there is a third realm of rights. It is, however, to argue that such a realm is possible. This is the last of two chapters intended to place the argument of this book in the context of some central distinctions in the rights literature, along with a number of related points. In chapter three I begin to focus on claims, and the contested question of their equivalents, directed duties.

Notes 1 2 3

4 5 6

7 8 9 10 11

Though I tend to focus on the legal case in this chapter, I take what I say about that case to apply, with relevant changes, to the institutional case generally. See ch. 1, sec. 3. Thomson (1990: 73f; also 117: “The realm of rights is squarely within the morality of action.”) Thomson properly allows, meanwhile, that “our law is rich in declarations about who has rights against whom to what” (1). I take it that such declarations create a set of properly so-called legal rights. These are discussed in sec. 2 of this chapter. See in particular secs. 2.3, 4.1, and 6 of this chapter. These constitute a thread on normativity and di erent normative factors. Cf. Kelsen (1960); Hart (1961); Sumner (1987). This approach can be and has been criticized, but will su ice for present purposes. In relation to both rules and consistency one might ask: what of a society in which two judges decide cases on an ad hoc basis and their judgments appear to be inconsistent with one another? Possibly this case can be subsumed under the model of a more or less consistent set of rules by seeing it as involving “particularistic” rules, i.e. rules that apply only to the particular cases from which they are “extrapolated.” For present purposes such considerations may be set aside. On “particularism” in ethics, see Dancy (2004). Reference to the judgesʼ case was prompted by Je rey Helmreich. Here I gloss over a distinction between rules and principles, where the former are more determinate than the latter. See Dworkin (1967). One famous though debated distinction is that between “primary” and “secondary” rules in Hart (1961). In Hartʼs view a paradigmatic legal system is comprised of both kinds of rules. A major emphasis of Ronald Dworkinʼs jurisprudence has been the existence and implications of “hard cases” of this kind. See e.g. Dworkin (1977: xiv). Sumner (1987) refers to “conventional” as opposed to “institutional” rights. I do not mean to deny the possibility of institutions relating directly to the behavior of nonhumans but simply set aside

12

13 14 15 16 17 18 19

20 21 22

23

24 25 26 27 28

29 30 31 32 33 34 35 36 37 38

such questions here. So far, morality could be an institution and moral rights institutional rights. It will be clear as my characterization of institutional rights is amplified, however, that if morality is an institution it is an institution of a very special kind. In saying this I mean to distinguish morality from social moral codes. See the text below. An abstract object is, very roughly, an object to which one can meaningfully refer though it is not itself part of the physical world or a feature of consciousness. I thank Kit Fine for discussion on this point. So, too, does the standard account of morality that will be adopted here. See sec. 4.2 of this chapter. As I use the term, “countervailing” considerations are not necessarily stronger than the considerations initially in question, though they might be. They are simply considerations on the other side. See sec. 6.1 of this chapter. Cf. Gilbert (2006: 41–2) and references therein. In her discussion of the normativity of law, Thomson (1990: 70f) argues that (given a particular understanding of what a legal claim is) one may have a certain legal claim as a member of a particular community without really having a claim. She assumes that for X to have a legal claim against Y that Y not do such-and-such, is for the legal system under which they live to attach a penalty to Yʼs doing such-and-such to X. She then argues that to have a legal claim in that sense is not necessarily to have a claim, period. Her argument appeals to the case of an evil law. Some unexplored elements in her discussion may have required such an appeal. She does not explain what it is to “live under” a given legal system or for a law to be passed “in a community,” either of which could have normative implications for community members at least in the case of unexceptionable claims. See ch. 13 for discussion of such matters. Cf. MacCormick (1977). For extended discussion of the existence of a legal system see ch. 13. Some may be inclined to see permissions as not really rules at all. Others will observe that it is enough to invoke any one of these categories, including permissions, in order to describe the territory of rules. Thus, if we take permissions as primary, we can see both a prohibition and a requirement as equivalent to the negation of a permission. So “Persons of class C must not phi” is equivalent to “It is not the case that persons of class C may phi,” and “Persons of class C must phi” is equivalent to “It is not the case that persons of class C may refrain from phi-ing.” With respect to the move from talk of a requirement to talk of duty, I note that though it is natural enough to speak of requirements of rationality, as well as of the requirements of the law or morality, it sounds odd, to my ears at least, to speak of duties in relation to requirements of rationality. Su ice it to say that in the context of law and morality people feel comfortable speaking of (legal and moral) duties. The discussion in ch. 3 makes clear why caution is needed over the nature of directed duties. For some further discussion see ch. 13, sec. 5.2, item X. As indicated earlier, this allows for the possibility that in order to be a specifically legal system at all a system of rules must reflect one or more particular moral rights or at least have particular moral qualities. In this paragraph I use “counterpart” with respect to the content of the rights in question. Cf. Kamm (2002a: 476–7): “Moral rights are said to exist independent of any legal system: one shows they exist by moral argument.” See also Nagel (1995: 85): “That people have rights of certain kinds that ought to be respected is a moral claim that can be established only by moral argument.” Some cases that might seem to show otherwise—sometimes referred to as “moral dilemmas”—can, I think, be explained di erently. For a brief discussion see ch. 9, sec. 5.2. Development of the idea of a directed duty argues for a negative answer to both questions. See chs 3, 4 . Cf. Nagel (1995: 85): “the realm of moral rights is purely normative”. This assumption does not foreclose the o -asked question “Why should I be moral?” One can ask this question without doubting that morality is normative: one wants to know what makes it normative. For a skeptical approach to morality see e.g. Mackie (1977). See sec. 2.3 of this chapter, on “having reason.” My use of the phrase “having su icient reason” may not fit the prevailing use of normative theorists. It seems fitting, however, and is consistent with my own prior usage. See e.g. Gilbert (2006). Evidently, the notion of rationality here, and elsewhere in the book, is to be distinguished from rationality in the gametheoristʼs technical sense of utility-maximization. Here “ought” represents a final judgment given the considerations in question, while “all equal” indicates that there may be other considerations in the picture. See sec. 6.1. In writing here and elsewhere of what is “intuitively” the case, of “intuitive judgments”, and so on, I do not mean to appeal to a special “faculty of intuition”. Rather I use these terms in a way common to many philosophers, to indicate that the judgment in question expresses something like a conceptual truth from the point of view of the person

39 40 41 42 43 44

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49 50 51 52 53 54

whose judgment it is. For example, given my understanding of what acting in error amounts to, I take it that my failure to abide by a standing decision is to act in error, all else being equal. Again, given my understanding of what a moral error is, this failure is not a moral one. See secs. 5 and 6. Cf. Nagel (1995: 85). For a variety of possible modes of acceptance of a system of legal or other rules see the discussion, in ch. 13, secs. 4f below on the “existence” of a legal system. Thus Hart (1961: 301) distinguishes between “positive” and “critical” morality. For extended discussion of Scanlonʼs principle of fidelity, see ch. 7. Of these the notion of oneʼs desire may be the most complex. It may include a normative element. I assume here that it also involves something less cognitive, something like a disposition to go for the thing desired. That, at any rate, is roughly the kind of thing at issue in this subsection. Other existing moral codes may diverge from this in condemning only the unjustified infliction of pain or unjustified manipulation on members of oneʼs own tribe, for instance. There could, nonetheless, be common ground here insofar as it is deemed in both cases to be wrong to act in the relevant way in relation to those who are morally considerable. Scanlon (1998: 11); words in square brackets added by the present author. Kant (1991a); Mill (1998) is a classic version of utilitarianism. Suppose I have not rescinded my decision, but inadvertently act contrary to it, where all is not equal, and in particular, I do what I ought to have done all things, including my decision, considered. Even then my act is open to criticism. At a minimum, it would have been better to have rescinded my decision before acting as I did. I do not take up this aspect of the matter in the text. It is important in part because its explanation should throw further light on the normativity of decisions as such. For some discussion see Gilbert (1999b). Broome (2001), and elsewhere. “At least in part”: this is the aspect of the normativity of personal decisions on which I focus here. On the exclusionary aspect of a decisionʼs normativity see the next section of the text. Cf. Raz (1975: 35–6). It seems possible that, as an empirical matter, some people are incapable of changing their minds a er making a decision. I take it that most are not in this position. Cf. e.g. Feinberg (1970) who invokes both legal and moral rules; with an emphasis on legal rules. Here the word “document” may be construed in a broad sense to include such things as memories of prior judgments that are “inscribed” in the heads of lawyers. Cf. Ferraris (2013).

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

Online ISBN: 9780191851506

Print ISBN: 9780198813767

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CHAPTER

3 Hohfeld’s Claims and Thomson’s Doubts  Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.003.0004 Published: April 2018

Pages 47–55

Abstract This chapter focuses on Hohfeldian claims. One person’s claim against another is correlative and equivalent to that other’s duty toward him. The relevant notion of “equivalence” is explained, and the relational nature of claims against and duties toward others—directed duties—is emphasized. Evidently one way better to understand claims is through an understanding of directed duties. Rights theorists generally assume without argument that the latter are constituted at least in part by nondirected or plain duties. This standard assumption can be questioned. In this connection, Judith Thomson’s argument to the e ect that nothing useful can be made of the notion of a directed duty as opposed to a plain duty is reviewed and argued to be inconclusive.

Keywords: claims, directed duties, equivalence, Hohfeld, plain duties, Thomson Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

Returning to Hohfeldian claims, this chapter emphasizes that having a claim is a relational matter, as is having the correlative and equivalent directed duty. Rights theorists generally assume at the outset that a directed duty is constituted at least in part by a non-directed or plain duty. I argue that this assumption should be viewed with caution. In this context an argument of Judith Thomson’s in favor of it is critically examined.

1. Hohfeldʼs Claims The following quotation from Hohfeld is generally taken to express the core of his view of claims, and has become central to discussions of claims in rights theory:

if X has a right [i.e. a claim] against Y that he shall stay o

the former’s land, the correlative (and 1

equivalent) is that Y is under a duty toward X to stay o

the place.

If one only focuses on the term “correlative” in the quotation one may think that the claim and the duty in question are in principle separable not only in thought but also in existence. That is not Hohfeld’s conception. As expressed in the quotation, Hohfeld thought that X’s claim was not only correlative but also, 2

more strongly, equivalent to Y’s duty.

1.1 The nature of equivalence To say that X’s claim is equivalent to Y’s duty is to say that X’s claim against Y is Y’s duty toward X. In other p. 48

words, the statements “X has a claim against Y” and

“Y has a duty toward X” both ascribe one and the

same relation, call it “R,” to X and Y. Theorists have plausibly suggested that “X has a claim against Y” describes R as from X’s point of view, while “Y has a duty toward X” describes it as from Y’s point of view. Thus Joel Feinberg writes: “The creditor’s right…and the debtor’s duty…are precisely the same relation seen from two di erent vantage 3

points, as inextricably linked as the two sides of the same coin.”

Matthew Kramer invokes a di erent analogy, that of a slope—one and the same slope—that is a “downward 4

slope” from one perspective and an “upward slope” from another.

Roman contract law suggests such a tight relation by using one and the same word for the duty of one party 5

and the corresponding right of the other party: “obligatio.”

1.2 The object of a claim In describing the object of a claim, Hohfeld makes use of a clause beginning with “that”: “X has a right [claim] against Y that he shall stay o

6

the former’s land.” I take it that one can phrase the matter

di erently, without change of meaning. One can say: X has a claim against Y to Y’s staying o

his land. The

important point is that it is an action of Y’s that is at issue. In the example, X’s land plays a role in the speci cation of the right’s object, but that object is an action of Y’s. It might be queried whether, in Hohfeld’s terms, X might have a claim against Y that some third party, Z, stay o

X’s land. I take it that, if so, a full description of X’s claim would refer to an action of Y’s, as in: X has

a claim against Y to Y’s bringing it about that Z stay o

X’s land. In other words, in this case also, X’s claim

against Y would be a claim to an action of Y’s. If this is right, the logic of the fragment “X has a claim against Y.…” is similar to that of “X intends that Y wins the race.…” This seems best interpreted as meaning something like: “X intends to see to it that Y wins the race.” For one can ultimately only “intend” one’s own action, as is suggested by the phrasing “I intend to…” This, at least, is generally supposed.

p. 49

2. Directed Duties: Their Relationship to Plain Duties Is at Best Unclear Evidently, one way further to understand what it is for X to have a claim against Y is to focus on its 7

equivalent, Y’s duty toward X. But what is a duty toward someone, a directed duty? There is much dispute 8

among rights theorists as to the answer to this question.

It could be that the phrases “duty toward” and “directed duty” are apt to mislead. In particular, though they both include the word “duty,” their referents may not be constituted, in whole or in part, by duties, period 9

—contrary to the standard assumption among rights theorists. It may be helpful to say something more along these lines. Call a duty, period, a plain duty. I propose that in considering the nature of a directed duty one should initially regard the relationship between a directed duty and a plain duty as moot. In particular, one should 10

not assume at the outset that a directed duty is constituted in whole or in part by a plain duty.

Relatedly, rather than automatically thinking of directed duties and plain duties as species of a single genus, duty, it is better initially to be agnostic as to what they might have in common other than their both having 11

attracted a label that includes the word “duty.”

In support of this recommendation consider, rst, Hohfeld’s equivalence. The addressee of a claim has a “duty toward” the claim-holder. This directed duty is equivalent to the latter’s claim against the dutyholder. The fact that is constituted by the existence of the directed duty, then, can be identi ed without invoking a plain duty. On the face of it, then, it is at least intelligible to propose that a directed duty may not be constituted by a plain duty. Again, for X to have a claim against Y is, on the face of it, a relational fact. More fully, it is a matter of X’s relation to Y. So, presumably, is the equivalent fact that Y has a duty toward X. That X has a particular plain p. 50

duty, meanwhile, is not, on

the face of it, a relational fact. Indeed, the speci cation of X’s plain duty may

not require reference to any person Y. For instance, according to the rules associated with her position, Jess may have a plain duty to clean the oors in a particular building. It is at best unclear, then, how X’s duty toward Y—a relation that obtains between X and Y—might comprise in whole or in part a plain duty of X— the existence of which, as such, involves no relation. A plain duty of X’s may of course relate to some person Y in various ways. It may be a duty to treat Y in a certain way—with respect, for instance. It may be conditional on Y’s acting in some way, as when X has a duty to express his gratitude to Y if Y has recently helped X. And so on. In spite of any such relations between X’s plain duty and Y, X’s plain duty, as such, does not constitute a relationship between X and Y. One might put things as follows. Whatever it amounts to, a directed duty, as such, is internally relational. In 12

other words, it consists in a relationship between two parties.

In contrast, a plain duty, as such, is not

internally relational. To say this does not close the question whether a directed duty, as such, somehow incorporates a plain duty. It does, however, make the answer to this question less obvious, arguing for at least an initial agnosticism in the matter. It may be observed that when arguing for the pre-eminence of the claim among the so-called rights, Hohfeld says that people generally associate rights with “duties.” Further, in his table of correlatives he marks the correlative of a claim as a “duty” without quali cation. In both cases, however, he may have meant only to keep things brief, only making it clear when describing his focal example of a claim that a duty toward someone was at issue. For present purposes what is important is that the phrase “duty toward” came naturally to Hohfeld in the articulation of his focal example, perhaps as the natural counterpart to “right against.” It is this usage that is at issue here. For concision and to accord with common practice, I shall in what follows generally refer to plain duties simply as “duties.” When referring to directed duties in my own voice I should be understood not to be assuming that a directed duty is wholly or partly composed of a plain duty.

3. Thomsonʼs Reductive Approach to Hohfeldian Directed Duties Hohfeld does not go far beyond the quotation just examined in characterizing claims. Many rights theorists have been content to build on what he says there, focusing on directed duties and asking what it is for p. 51

someone to have a duty toward

someone. Though they have widely diverged from this point onwards, 13

they have generally supposed that a directed duty is in part constituted by a plain duty.

14

In The Realm of Rights distinguished rights theorist Judith Thomson arrives at a starker conclusion.

She

argues, in e ect, that there is nothing to a Hohfeldian directed duty but a plain duty. In this section I critically consider her argument. 15

Thomson’s discussion is subtle and complex. I sketch what I take to be its main lines.

3.1 Thomsonʼs fixed points In some stage-setting remarks that precede Thomson’s discussion of Hohfeld, she notes that she is 16

concerned with moral, not legal rights.

This should be born in mind in relation to what follows. 17

One of Thomson’s focal examples is: “I have a right against you that you not break my nose.”

She

maintains that the following, and more, are “consequences” of her having this right. Other things being equal: you ought not to break her nose; it is morally permissible for her to defend herself against an attempt at nose-breaking by you; you ought to pay her medical costs for the repair of her nose if you break it; there 18

ought to be laws dealing with nose-breaking.

Evidently, for Thomson, if someone has a right of the kind in question, there is more than one “ought” in the o

19

ng. In particular, there are several things that the addressee of the right ought to do.

3.2 Thomson on Hohfeld Turning to Hohfeld in Chapter 1, Thomson notes his contention that rights “in the strictest sense” are equivalent to duties toward the right-holder, and approves his term “claims” as a label for them. In Chapter 2 she focuses on Hohfeld’s references to duties, and in particular on the fact that: Hohfeld’s concept “duty” is a concept that attaches to two people: there are in every case of its 20

application the one who is under the duty and the one toward whom he or she is under it. p. 52

She refers to such concepts as “two-hat” concepts. “Ought,” in contrast, is a “one-hat” concept. It is never 21

coupled with “toward.”

As to the ordinary English “duty,” Thomson observes that this sometimes expresses a one-hat concept. For instance, when we say that a parent has a duty to have his child vaccinated, we do not think of this as a duty toward a particular person or group. The concept in question here, then, cannot be Hohfeld’s two-hat 22

concept.

What, then, does Hohfeld have in mind?

In pursuit of an answer Thomson asks whether any commonplace, everyday two-hat concept is identical with the concept of a—Hohfeldian—directed duty. The concepts she considers are: being committed to, being under an obligation to, and owing. She asks if someone with a Hohfeldian directed duty instantiates any of these, and says that he does not. She focuses on the rst of the three. By way of explaining what it is for one person to be committed to another she gives the example of a promise. One who promises another to do something will, she says, be committed to that person to do it. Indeed, he

will have committed himself to that person to do that thing. As I understand it the gist of her argument concerning what I shall call directed commitments is roughly as follows. Supposing that you and I are total strangers to each other, you can have a Hohfeldian claim against 23

me and—crucially—I can have a Hohfeldian duty toward you.

But I cannot have a directed commitment to

you, so Hohfeldian directed duties must be distinguished from directed commitments. This argument is problematic for several reasons. One problem is that it may be possible to have a directed commitment to a total stranger. Clearly this depends both on what a directed commitment is and what a total stranger is. Still, the following kind of example suggests that it is possible. A person can make a promise to “each and every one” of those in a large room, some of whom he has never met, knows nothing about, and cannot see, and his promise could be accepted by each one in a way that avoided the speaker’s acquaintance with him personally. For instance, rather than shouting out their acceptances, those in the room might signal their acceptances to a spokesperson who is visible to the speaker and communicates the tally of acceptances to him. Assuming that, as Thomson suggests, a promise p. 53

to someone engages a commitment

to them, this could reasonably be taken to be a case in which one has

made a directed commitment to one or more total strangers. A second problem concerns the assumption that a total stranger could have a Hohfeldian duty toward someone—the equivalent of that person’s claim against the total stranger—at a stage where we are not yet 24

sure what a Hohfeldian directed duty is.

This may not seem to be a problem in the legal case, where

Hohfeld’s central example of X and Y and Y’s duty toward X to stay o

X’s land suggests that one can indeed

have a Hohfeldian duty toward a stranger. The law, however, can say pretty much what it wants, by way of stipulation. Without a clearer idea of what is supposed to be at stake here, it is hard to know how, if at all, it extends to the case with which Thomson is concerned—the moral case—or to any other cases. After arguing that the concept of a Hohfeldian directed duty is not identical to the everyday concept of a directed commitment, Thomson says she is under the impression that it is also distinct from the everyday notions of being “under an obligation to” and “owing.” These, it seems to her, are “markedly narrower” 25

than Hohfeld’s idea.

26

She does not argue for this point, and I shall not pursue it here.

Having given up her search for a familiar two-hat concept with which to identify Hohfeld’s concept of a directed duty, Thomson starts afresh. Reverting to speaking of “rights” as opposed to “claims” but implying that she is talking about Hohfeldian claims, she proposes that one thing we know about X’s right 27

against Y is that it in some way constrains Y’s behavior.

As for Hohfeld, she proposes that what he does is “o er us the name ‘duty’ to refer to the kind of behavioral constraint—whatever precisely it may be—which, as we already knew, A’s having the right against B 28

imposes on B.”

This is one expression of Thomson’s reductive or de ationary conclusion on Hohfeldian

directed duties: a directed duty is a kind of behavioral constraint. On the face of it, and as Thomson assumes, the concept of a behavioral constraint is a one-hat concept. This is consistent with the point that a Thomsonian constraint on Y is representable by one or more statements of the form “Y ought to phi.” In other words, the constraint in question is normative. As we have seen, Thomson thinks that what a right’s addressee ought to do is a complex matter. She 29

elaborates it in di erent ways in di erent places, including the stage-setting remarks summarized above.

p. 54

3.3 Note on the idea that rights “impose” constraints It is currently quite common to speak of rights as “imposing” duties or more generally “constraining” their 30

addressees, as Thomson does in the last quotation.

Whatever one’s reasons for so speaking in a given

context, it is best not to speak this way in a discussion of Hohfeldian claims. Thomson suggests that Y’s Hohfeldian duty toward X is, in essence, a complex behavioral constraint on Y. Supposing that Hohfeld were to accept this, he would not then say that X’s claim against Y constrains or imposes a kind of constraint on Y—not if he still accepts that X’s right against Y is equivalent to Y’s duty toward X. Rather, he would say that X’s claim against Y is equivalent to a kind of behavioral constraint on Y. Not long after the passage just quoted Thomson herself emphasizes this aspect of Hohfeld’s discussion and 31

says that she accepts it.

3.4 Assessment of Thomsonʼs argument In e ect, Thomson starts with a particular understanding of the “consequences” of X’s having a right of the type with which she is concerned. These consequences constitute a complex behavioral constraint on Y, a set of “oughts” that apply to Y. This constraint, then, is expressible without leaving the terrain of “one-hat” concepts. Turning to Hohfeld, she observes that his concept of a directed duty is a “two-hat concept.” She asks if there is a familiar concept with this structure that can be identi ed with Hohfeld’s concept, and argues that there is not. This argument is not fully eshed out. Nor is it clearly conclusive as far as it goes. Finally— perhaps because she thinks this is the most charitable procedure—Thomson identi es Hohfeld’s supposedly two-hat concept with the complex behavioral constraint with which she began, and takes this to be the Hohfeldian equivalent of a claim. Clearly, as it stands, Thomson’s discussion does not force us to accept her reductive conclusion with respect to Hohfeldian claims.

4. Review and Prospect In this chapter I focused on Hohfeld’s idea that correlative and equivalent to a claim is a duty of the right’s p. 55

addressee toward the claim-holder. This raises the

question: How is one to understand the nature of such

a “directed duty”? I suggested that in spite of the inclusion of the word “duty” in the phrase “duty towards” the referent of that phrase should not be assumed at the outset to be, or to include, what I have called a plain duty. Though this suggestion runs contrary to the usual practice of rights theorists, it has some initial plausibility. On the face of it, a directed duty is a relation that holds between two parties. In other words, a directed duty, as such, appears to be internally relational. A plain duty as such is not internally relational, nor can the fact that Y’s plain duty relates to X in some particular way convert that plain duty, as such, into an internally relational duty. That is true not only when the content of the duty involves X—as in a duty to save X—but when, for instance, X is a ected by the ful llment of the duty or stands in some other such external relation to the duty. Having made this point I discussed Judith Thomson’s reductive account of Hohfeldian directed duties, which focuses on the moral case. In her view a directed duty is best understood as a set of plain duties or, as she prefers, “oughts.” I argued that her proposal is not compelling enough to forestall consideration of less reductive approaches to such duties.

Going forward, I shall not assume that directed duties are wholly or partly constituted by plain duties. I shall initially focus on duties as opposed to “oughts,” allowing that duties as such may lack normative force, as 32

they do in the institutional realm as I have characterized that here.

Notes 3 4 5 6 1 2 7

8 9 10

11 12 13 14 15 16 17 18 19

20

21 22 23 24 25 26 27 28 29 30 31 32

Feinberg (1970: 249–50). Kramer et al. (1998: 24). Nicholas (1962: 158) on Roman contract law: “The term obligatio denotes sometimes the right, sometimes…the duty, but more properly it denotes the whole relationship.” Hohfeld (1964: 38). Emphasis mine. Hohfeld (1964: 38). Cf. (EC), the equivalence for claims set out in ch. 1. See ch. 1, sec. 1.1. Upton (2000) emphasizes Hohfeldʼs reference to equivalence. Rainbolt (2006) replaces “against” and “towards” in all representations of the Hohfeldian relations by “wrt” (short for “with respect to”). The danger in this procedure in relation at least to claims is that “duty toward” (and “right against”) may be more apposite than “duty wrt” in terms of what is at stake. See ch. 5. For further discussion of prevailing assumptions in contemporary rights theory see ch. 5, sec. 2. Thompson (2004) contrasts directed duties (in his terms “bipolar” duties) with what he refers to as “monadic” duties or, more fully, “merely monadic” duties (p. 350), having contemplated “non-relational” and “monopolar” as alternative labels (p. 338). He also refers to a merely monadic moral duty as a “moral requirement, period” (350). The qualifier “merely” may suggest that directed duties are in part constituted by monadic duties. Thanks to Andrew Sucre for pressing me on this point. For present purposes these “two parties” could be one and the same person, who stands in the relevant relation to himself. See ch. 5 for some discussion. Thomson (1990: 33) sees her conclusion as reductive. Cf. Levenbook (1992: 459). Those wishing to restrict their reading to the main thread of this bookʼs argument could omit this section. Thomson (1990: 2). Thomson (1990: 2). Thomson (1990: 2). Harman (1993: 183–5) says that Thomson equivocates in her use of “ought”; Thomson (1993: 192) doubts he is right. In characterizing my own understanding of “ought” earlier I did not invoke morality. (See ch. 2, secs. 3 and 6.) I take it that Thomson sees “ought” as a moral matter. Thomson (1990: 62). It is not clear from this whether or not Thomson thinks of Hohfeldian directed duties as composed in part of plain duties. The way her discussion develops suggests that she thinks that they are so composed, though she prefers to speak of moral “oughts” rather than duties. Thomson (1990: 60). Thomson (1990: 62–3). Thomson is predisposed to this conclusion for another reason. In her view, everyday “duty” talk relates to jobs, roles, and positions, and one can possess a Hohfeldian claim irrespective of oneʼs job and so on. Thomson refers simply to “claims” but in the context of her discussion of Hohfeld it seems best to understand these as Hohfeldian claims. Cf. Thomson (1990: 64), interrogating herself. Thomson (1990: 63). I consider “owing” further in ch. 4. Thomson (1990: 64). Thomson (1990: 64), my emphasis. See also Thomson (1990: 200–1). I return to some details of her discussion in ch. 5. It is perhaps particularly common in the literature on human rights. For an example, see the title of Cohen (2004): “Must Rights Impose Enforceable Positive Duties?” Thomson (1990: 65–6). In spite of this acceptance Thomson has a tendency to speak in ways that suggest something else as when she writes of the constraints that “flow from” oneʼs having a right (p. 65). See ch. 2.

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

Online ISBN: 9780191851506

Print ISBN: 9780198813767

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CHAPTER

4 Demand-Rights—and the Demand-Right Problem  Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.003.0005 Published: April 2018

Pages 56–79

Abstract Starting with some important remarks of Hohfeld’s on legal claims, this chapter introduces and focuses on rights of the kind accrued by the parties to informal agreements, among others, which it labels “demand-rights.” One with a demand-right has, centrally, the standing to demand an action from the right’s addressee. This point is clari ed as, among other things, demands are distinguished from requests and commands. H. L. A. Hart’s discussion of a promisee’s rights is reviewed, and demand-rights are further characterized by means of a series of equivalences of Hohfeld’s type. Some possible further equivalences, including one suggested by remarks of Joel Feinberg, are considered. An argument for the primacy of demand-rights is sketched and the demand-right problem is raised: how are demand-rights possible?

Keywords: agreements, claims, commands, demands, demand-right, equivalence, Feinberg, Hart, Hohfeld, requests Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

Linking the discussion to some important remarks of Hohfeld’s on claims, this chapter introduces and focuses on the kind of right the parties to agreements accrue, referred to here as demand-rights. One with such a right has, centrally, the standing to demand the object of the right from the right’s addressee. This point is clari ed and demand-rights are further characterized by means of a series of equivalences of Hohfeld’s type. An argument for the primacy of claims construed as demand-rights is sketched, and the question of their source is raised.

1. Hohfeld on the Label “Claim” Why did Hohfeld nd the term “claim” a good label for his “rights in the strictest sense”? In his text he 1

cites as the virtue of this label that it is a monosyllable. He also nds the language of Lord Watson 2

“instructive” when he refers to the creation of a “right or claim in favor of an executor.”

He says a little more elsewhere, quoting with quali ed approval some statements of Mr. Justice Stayton’s, including the following: “it must necessarily be held that a right, in a legal sense, exists, when in 3

consequence of given facts the law declares that one person is entitled to enforce against another a claim.”

It is not clear precisely what Hohfeld approves in this statement. It is notable, even so, that an element new to his discussion appears here and is to some extent endorsed by him. That element is the reference to enforcement and, more precisely, to a legal “entitlement to enforce against p. 57

another” a claim. I say that this is a new element

insofar as in its terms it goes beyond the famous and

constantly cited Hohfeldian equivalence of one person’s claim to a directed duty of the claim’s addressee. Indeed, it suggests a particular way of lling out Hohfeld’s spare account of claims as equivalent to “duties toward.” First, we take the standard equivalence for claims introduced in chapter 1, relabeled to indicate that it is not the only such equivalence, and explicitly con ne it to the legal realm. (EC1) X has a legal claim against Y to Y’s phi-ing if and only if Y has a legal duty toward X to phi. We then add: (EC2) X has a legal claim against Y to Y’s phi-ing if and only if X is legally entitled to enforce Y’s phi-ing. Given these equivalences, we gain a new perspective on directed legal duties, through the following further equivalence. (ED1) Y has a legal duty toward X to phi if and only if X is legally entitled to enforce Y’s phi-ing. I shall not try to explicate further the terms in these equivalences. Nor do I want to press the idea that Hohfeld would have accepted the last two of those listed. His quotation from Stayton, however, suggests a resemblance between rights or claims “in a legal sense,” as he envisages them, and a central class of non-legal rights—the class of rights that will be the focus of this book. I now leave Hohfeldian claims and the legal arena, and develop an account of the central kind of right I have 4

in mind. I call such rights “demand-rights” rather than “claims” for reasons I shall explain.

2. Demanding There is a relatively narrow but central sense of the term “demand” that has already been invoked several 5

times in this book. In order to make a demand in this sense one needs the standing to do so. This standing is a matter of authority: the authority, that is, to make the demand in question. There are various ways in p. 58

which someone might indicate that another person lacks the standing to demand

a certain action of him, 6

including “Who are you to demand that of me?” and “You’re not in a position to demand that of me!”

We could appositely label demands in this sense “authoritative demands.” I shall use this label when it seems necessary to emphasize my meaning. Otherwise I should be understood to be using the unquali ed term “demand,” and so on, to refer to demands made with the requisite authority. There appear to be broader senses of “demand,” as there are of several verbs with a narrow sense that presuppose a special standing or authority in the subject of the verb, and a broader sense (or senses) that 7

does not. These include “order” and “punish.”

In the case of “demand,” an armed robber, for instance, may be said to have “demanded” cash from a bank 8

teller. He may have spoken as if he was making an authoritative demand but, we can assume, he lacks this standing. When referring to “demands” in a broader sense than the one at issue here I will make that clear. Some of the points I make about authoritative demands also apply to demands in a broader sense. I shall not pause to note when that is so. My aim is e ectively to characterize authoritative demands.

2.1 Standing versus justification To have the standing to demand an action is not the same as being justi ed in demanding it all things considered. For instance, I may have the standing to demand of you that you have dinner with me this evening since we agreed that you would. Still, I should not make this demand if your ailing parent needs your assistance. I would not, in other words, be justi ed—all things considered—in doing so. Suppose that I lack the standing to demand of someone that he act in a particular way. Then circumstances p. 59

arise such that I am justi ed in at least

purporting to demand that he act in that way. My being so

justi ed does not mean that I now have the standing to demand that he do it. Suppose now that someone issues an imperative in a demanding tone without the standing to demand the 9

action in question. Perhaps an irritable stranger notices that Joe is humming loudly as he walks by and calls out “Stop humming!” in a demanding tone. Joe might immediately stop humming and, turning to the stranger, apologize for his previous behavior. In other words, he might act as if the stranger had the standing to demand that he stop humming. In this way Joe and the stranger seem to have established between them the understanding that the stranger had the standing in question. This possibility may encourage some people to speak to others in a demanding tone though they know they lack the standing to demand the action in question. Their tendentious use of this tone may, in e ect, gain them the standing they desire. If I have the standing to demand a particular action of someone, is it the case that I am justi ed in demanding it of him, all else being equal? The answer to this question is not immediately clear. It appears to depend on the ground of my standing. I return to it in due course.

2.2 Demanding versus requesting Henry Shue, for one, associates demands with rights, and contrasts the former with “requests, pleas, 10

petitions.”

This contrast is worth drawing since, though distinct, demands and requests have much in 11

common. That is not to say that a demand is a type of request, or vice versa.

I start with their commonalities. One who makes a demand, like one who makes a request, implicitly intends to bring about his addressee’s performance of the action in question. Correspondingly, compliance with both a demand and a request requires performance of the action at least in part because it has been demanded or requested.

Though, typically, both are expressed in words, one can issue both demands and make requests by nonverbal means. A particular motion of the hand or facial expression may well do the trick. p. 60

When words are used, both demands and requests can be made with the use of a special type of “speech 12

act”—a “performative utterance.”

For instance, one may explicitly say “I demand that you do it!” thereby

(in the right circumstances) demanding that you do it. Similarly one may write “The favor of a reply is 13

requested,” thereby (in the right circumstances) issuing the pertinent request.

When demands and requests are made verbally, but not by means of a performative utterance, tone and manner can be important aids to understanding what is going on. One way to make a request is with the words “May I have…?” or “Could you…?” Given an appropriately demanding tone, however, a demand could be made with the same words. I now note some di erences between requests and demands. A standard way to express a demand is with an unadorned, seriously intended imperative as in “Give me that!” An imperative is seriously intended if the one who utters it is not, for instance, giving an example in a linguistics class. A request so baldly expressed would need a special nuance of tone, representable if at all not with an exclamation point but rather with a question mark: “Give me that?” Otherwise if an imperative is used to make a request it is likely to be preceded or followed by “Please,” as in “Pass the salt, please!” “Please” suggests the condition “If you please,” and one using it suggests that he lacks the standing to demand the action requested. Here, though—as with “May I have the salt?” or “Could you pass the salt?”—“Pass the salt, please” may constitute a demand if uttered in a demanding manner. In this case the 14

“please” is, we might say, purely “pro forma.”

A demand, however couched, is more peremptory than a request. Unlike a request, a demand implies that, in responding, its addressee should—at least—ignore such considerations as what pleases him, what he wants, or what he is inclined to do. Thus a demand implies that its addressee should comply irrespective of what pleases him, and so on. Whether or not requesting itself involves a special standing, then, that 15

standing will di er from the standing to demand something. p. 61

The same goes for urging, as in “You really should stay!” Urging puts more pressure on its addressee than does requesting, but neither one rises to the level of a demand. Both, however justi ed, are possible in the 16

absence of the standing to demand the action in question.

3. Demand-Rights: A First Equivalence Salient contexts for the standing to demand an action of someone are promises and agreements. Thus, if Y 17

promises X that he will phi, X thereby acquires the standing to demand of Y that he phi.

Evidently, at one

and the same time, X acquires a right to Y’s phi-ing. Following up this thought, and appealing to a Hohfeldian notion of equivalence, I propose that there is a central kind of right characterizable, at least in part, as follows: X’s having a right of this kind against Y to Y’s phi-ing is equivalent to X’s having the standing to demand of Y that Y phi. That is, one and the same relation is at issue in each case. When looking for a label for rights of this kind one might with some reason choose the familiar label “claim,” explicitly restricting it to these particular rights. Indeed, there is reason to echo Hohfeld when he was speaking of rights generally and refer to these rights as claims in the strictest sense. For it is natural to think of one who demands an action of another as claiming that action and, in that sense, “enforcing against another a claim.”

The labels “claim,” and “claim-right” have, however, been used in a variety of ways by rights theorists and others, sometimes in connection with a particular interpretation of the Hohfeldian directed duty. It is probably best, therefore, not to use those labels here. Preferring a label that is both appropriate and relatively new, one might adopt a special term such as 18

“claim*.”

Labels using such arti cial devices as asterisks, however, may be distracting.

The phrase “demand-right” is the obvious choice. In what follows, then, I shall use the term “demandright” in the sense indicated above. The rest of this chapter will further clarify the nature of demand-rights.

p. 62

3.1 Demands versus commands Reference to demand-rights allows us to distinguish between demands and commands or orders. A demand, made with the requisite standing, does not create for its issuer a demand-right to the action in question against the addressee of the demand. Rather, it presupposes such a right. A command, made with the requisite standing, does create for its issuer a demand-right to the action in question against the addressee 19

of the command.

Though there may be some slippage in the use of the terms “demand” and “command” in everyday speech, I take there to be this important di erence between central cases of each. I return to the topic of commands 20

later in this book.

3.2 Demands and enforcement In a well-known article H. L. A. Hart writes: “there is no incongruity, but a special congruity in the use of 21

force or the threat of force to secure that what is someone’s right to have done shall in fact be done”.

Hart’s reference to “the use of force” and “the threat of force” may give one pause. It suggests physical force, and, in many cases, the use or threat of such force to secure the object of one’s right will be judged to go too far. Thus suppose Sally gives her friend Harry reason to believe that she is going to break her promise to meet him for tea at Café Earth this afternoon. It would be wrong in most people’s eyes for Harry to threaten physically to harm Sally if she does not show up at the café as promised. Again, it would be wrong for him physically to harm her on account of her failure, in the event, to appear. Now, there is more than one kind of force or pressure that one person can impose on another in order to secure that his right be respected. In the case of demand-rights, in particular, there are the demands one has the standing to make in the face of an impending violation. Demands may be purely verbal, but there is something undeniably forceful about them. This is suggested by the fact that they are often made in a relatively heated manner as when someone shouts “Stop! You promised never to use that word!” p. 63

Even when there is nothing particularly heated about its delivery, there is something forceful about a demand. To quote John Skorupksi: “Even to say that you demand something is already to exercise a certain 22

degree of exaction…demanding is already a form of enforcement.”

Something similar is true of the verbal chastisements—in the form of rebukes and the like—that may follow noncompliance, such as “How could you not have done it? You promised you’d do it!” Rebukes can be 23

thought of as demands that acknowledge their own past frustration—“after-the-fact” demands.

I shall so

treat them in this book. How are we to explain the forcefulness of demands? The rst thing that may come to mind is their peremptoriness. As noted earlier, a demand—made with standing—implies that, in responding, the

addressee should comply irrespective of his own desires or inclinations. Digging deeper, it is natural to assume that this aspect of demands is a function of their being expressive of a demand-right. If X demands of Y that he phi, X thereby calls it to Y’s attention, emphatically, that X has a demand-right against Y to Y’s phi-ing—a right that X has not waived and clearly has no intention of waiving. Thus suppose Jack tells Jane that he plans to go shing that afternoon. Suppose, further, that this will deprive Jane of the object of a demand-right she possesses against him. She may well want to remind him, emphatically, of the existence of her right, while indicating that she has no intention of waiving it. Her demanding that he not go shing will achieve these ends. Jane having issued her demand, Jack will properly change his plan, all else being equal. He will properly do this even if, currently, his strongest desire is to go shing. To say this is not to explain how it is that Jane’s or anyone else’s demand-right is such that its addressee, in 24

taking account of it, should ignore his desires and so on. I return to this question in due course.

For a variety of reasons one may prefer not to get to the point of demanding an action to which one has a demand-right. It may simply seem too harsh or, indeed, peremptory. One may then choose a less forceful approach, such as, in Jane’s case, a friendly question as to whether he has forgotten their agreement. This may well serve to remind Jack of Jane’s demand-right against him, while indicating her unwillingness to p. 64

waive it, and her desire for its object, and this may be enough

to lead him to change his plans. Indeed, the

availability of less confrontational options, when it exists, may morally require that one try them rst, all 25

equal.

Whether or not one goes so far as to demand that someone respect one’s demand-right on a given occasion, the option of this more confrontational approach is always available, given one’s standing to demand the action in question. This is something that even a gentler approach is liable to bring to mind. It is possible that in some circumstances physical force is justi ed as a way to obtain the object of one’s demand-right. Whether or not this is so in a given circumstance is—I take it—a matter that goes outside the fact that one has the standing to demand the action in question. That fact may, however, play a central role in justifying one’s action overall. This, then, is one way in which there is, to use Hart’s term, a special “congruity” of rights and force itself: a demand-right is apt to justify the use of force, whether or not it does 26

so justify it in a given case.

Someone who lacks the relevant authority may act as if he is issuing an authoritative demand. Such actions may be e ective for one reason or another. For instance, they may be perceived as the making of demands 27

proper and treated accordingly.

A bold and clear-eyed addressee, however, may well call one out on one’s

lack of standing, and otherwise ignore one’s intervention.

4. Hart on the Rights of Promisees If I have promised you that I’ll meet you at Café Rouge at 5pm, and later indicate that I am thinking of staying home then, you have the standing to demand that I come to the café, on the basis of my promise. “Hey!” you might say, in a demanding tone, “You’re supposed to meet me at Café Rouge!” Your standing so to address me will not be in doubt. One way of developing a fuller account of demand-rights, then, is to focus on the rights of promisees and see where that leads. 28

This was H. L. A. Hart’s approach in the well-known article referred to earlier. 29

the substance of this article.

He later repudiated some of

That does not detract from the signi cance of the material on which I draw.

The passage on which I concentrate makes a set of points intended to explicate what it is to have what Hart would refer to as a “moral” right. The example in the context of which these points are made is that of a p. 65

promise, where Hart sees the

promisee as having a speci c moral right against the promisor as a result of

the promise. He did not, clearly, mean to restrict his discussion to the case of promising. Precisely how Hart would explicate the quali er “moral” in his use of the phrase “moral right” and related phrases need not detain us here.

4.1 General versus special rights Before turning to what he says about the rights of promisees speci cally I note the distinction Hart makes between “general” and “special” rights. 30

General rights are introduced as rights “against everyone.” 31

everyone that not everyone had.

Now, in principle there could be rights against

Later Hart ampli es his characterization of general rights so that they are, 32

at the same time, close to being possessed by human beings generally.

In spite of the impression given by one passage, Hart sees general rights, qua rights, as having the same 33

features as do special rights.

His focus in the body of his paper is on special rights.

In contrast to general rights, these arise out of special transactions between individuals or out of some special relationship in which they stand to each other in such a way that: “both the persons who have the right and those who have the corresponding obligation are limited to the parties to the special transaction 34

or relationship.”

It seems that in principle there could be a special right that was also a general right

according to Hart. That would be the case if there were a special transaction between all individuals, by virtue of which each had a right against each. For the purposes of this chapter I set this thought aside. Among the special rights, and indeed, the paradigm of the species for Hart, are the rights of a promisee. He refers to these simply as “rights.” Now, a promisee’s rights are paradigmatic demand-rights. For that and other reasons it is reasonable to take Hart’s discussion to be concerned speci cally with demand-rights. Certainly, what he says is of great interest in that connection. Since Hart puts his points in terms, simply, of “rights” I shall so represent them in what follows.

4.2 The language of rights Focusing on a case involving a promisee, Hart emphasizes a number of features of rights. I use his terminology in the numbered list that follows. p. 66

(1) One has or possesses a right. (2) Corresponding to a right is another person’s obligation to the right-holder. (3) The obligated person owes the right-holder what he has a right to: it is the right-holder’s due. (4) If the obligated person fails to ful ll his obligation to the right-holder he will have done wrong to the right-holder. (5) The right-holder has a claim on the person who is obligated to him. (6) The right-holder is entitled to have his right respected. (7) The right-holder can waive the claim and release the person who is obligated to him from his obligation.

The italicized terms are all commonly used in connection with rights, forming part of what we may call the language of rights. Many of them have already come into the discussion in this book at one point or another. I now discuss some key members of this list: directed obligation, owing, and, more brie y, doing wrong to someone, and waiving and releasing.

4.3 Directed obligation I start with feature (2): corresponding to a right is another person’s obligation to the right-holder. I set aside for present purposes Hart’s restriction of a right’s addressee to someone other than the right-holder, 35

and focus on other matters.

While Hohfeld and most subsequent rights theorists write of “duties,” Hart prefers to write of “obligations.” Importantly, however, Hart’s obligations are obligations to or toward the right-holder just as Hohfeld’s duties are duties toward the right-holder. Hart uses the term “obligation” only for the directed obligations he takes to correspond to rights. He takes duties—as these are generally understood at the time he is writing—to lack direction. He notes a broadening use of the unquali ed term “obligation” such that both “duty” and “obligation” are beginning 36

to be used without any implication of directionality.

In this book I generally use both of these terms, when unquali ed by “directed,” “toward,” and the like, in p. 67

this broader, contemporary way, along with the

term “requirement,” which may in these cases be

treated as their equivalent. I also understand directed obligations and directed duties to amount to the same thing. Hart’s discussion of directed obligation is of great interest. The following passage in his article is particularly instructive. Here he uses the case of promising to illustrate what he takes to transpire when special rights are created: we voluntarily incur obligations and create or confer rights on those to whom we promise; we alter the existing moral independence of the parties’ freedom of choice in relation to some action and create a new moral relationship between them, so that it becomes morally legitimate for the person to whom the promise is given to determine how the promisor shall act. The promisee has a temporary authority or sovereignty in relation to some speci c matter over the other’s will which we express by 37

saying that the promisor is under an obligation to the promisee to do what he has promised.

I take the last sentence in the above quotation to be intended to clarify the point immediately preceding it, namely that it is “morally legitimate” for the promisee “to determine how the promisor shall act.” As to what it is to determine how someone will act, Hart makes it clear in the article that in his view demanding 38

that someone do something is a way of doing this.

In the sentence on which I am focusing Hart says rst that the promisee has a temporary authority or sovereignty in relation to some speci c matter over the will of the promisor. Crucially, for present purposes, he goes on to say that we express this by saying that the promisor is “under an obligation to the promisee.” I take from this the suggestion that X’s being obligated to Y is a matter of Y’s having a certain limited authority over X’s will, something that is manifested, at a minimum, in Y’s standing to demand that X act in 39

a certain way, so determining how X is to act.

As Hart indicates in his discussion of promising, the authority in question may be temporary. The temporariness of the authority, however, is presumably not a crucial feature of directed obligations, even

those connected with promises, given that the promise has not been revoked. Thus, if Julia promises Tom to send him the goods tomorrow, and does what she promises, Tom’s authority over Julia’s will is at an end once the goods are delivered. On the other hand, if Tom promises to pay Julia a certain sum each month for the rest of his life, her authority over his will is about as permanent as it could be. Given that she survives him, it lasts for as long as he has a will, in the sense of the ability to act in the world. p. 68

The authority in question is limited insofar as what is in question is a right to a limited set of actions. Perhaps just one action is involved. Then that one action is all that is needed to ful ll the obligation in question. Precisely what actions are at stake may presumably be a moot point in a given case. Thus though a promise to pay a certain sum each month may be relatively clear-cut, a promise to love someone forever leaves more room for interpretation and uncertainty. One might nd oneself wondering precisely which acts, thoughts, and feelings are compatible with loving. For now I set this point aside. I do not say that Hart’s key statement about directed obligation tells us what it is by virtue of which such an obligation exists. Indeed, that question begs for attention.

4.4 Owing I turn now to feature (3) in Hart’s list: the person with the obligation to the right-holder owes the rightholder the object of the right: it is the right-holder’s due. 40

In some places Hart writes of the obligation of a right’s addressee being owed to the right-holder.

This way

of putting things nds echoes in the writing of many contemporary rights theorists, some of whom write of 41

duties being owed to the right-holder.

Presumably, however, what is owed is—as Hart says here—an

42

action rather than an obligation or duty.

What is owed is, more precisely, an action of the right’s addressee.

That is what ful lls the pertinent directed obligation. I take it that in the present context saying that the person with the obligation to the right-holder owes the latter what he has a right to is a terminological rather than a substantive point: instead of speaking of someone’s having an obligation to someone, one can equally well speak of owing an action to him. Though terminological, this point is signi cant. First, it shows that what is at issue when there is a directed obligation is a relation between persons. Owing is clearly a relational matter. One cannot simply “owe” something; one must owe it to someone. Second, it shows that one can dispense with any use of the terms “duty” and “obligation” in referring to the relation in question. Thus thinking in terms of owing allows one to think outside the box of plain duties, p. 69

plain obligations, or

requirements, and to grant that a directed “obligation” or “duty” does not include a 43

plain duty, obligation, or requirement.

A caveat is in order about use of the terms “owe,” “owing,” and so on in this or any other context. One way 44

of seeing the current situation with respect to usage is that these terms are ambiguous.

Another is that

they currently have such an expansive use that some forms of owing are signi cantly di erent from others. It is important, then, that a given theorist’s intent in using these terms be clari ed. I am taking it that Hart is concerned with a sense of “owing” that exactly ts the relationship of a promisor to his promisee with respect to the promised action. Be that as it may, I shall use it in this way myself in 45

what follows.

4.5 Wronging Feature (4) in Hart’s list introduces the idea of doing wrong to someone. I take it that what Hart has in mind can also be expressed in terms of wronging, where there is a contrast between wronging someone, and acting wrongly. 46

Hart proposes that if I fail to give someone what he has a right to from me, then I wrong him.

This requires

only that to violate someone’s right wrongs him, remaining agnostic as to whether wronging someone is, necessarily, a matter of violating his right. Though he puts things that way, Hart may well take there to be a tighter connection between wronging and violating a right. Namely, he may take it that neither is possible without the other: if I have wronged you, I have violated a right of yours; if I have violated a right of yours, I 47

have wronged you. Many theorists see things this way.

Certainly it is helpful to have a single word with

which to refer to what is done to a right-holder by one who fails to accord to him the object of the right. If one says that he is “wronged,” it makes sense to restrict one’s use of “wronged” and its cognates accordingly, if necessary narrowing a broader current use. I shall not focus on wronging in the rest of this chapter, but 48

return to it after further investigations into the nature of demand-rights, and their sources.

p. 70

4.6 Waiving and releasing Hart says that a right-holder can “waive the claim” and “release” the right’s addressee from his obligation. He does not elaborate on the nature of these actions or whether waiving and releasing are essentially the same. In one natural interpretation one could waive one’s right without implying that the right no longer exists and that, consequently, the right’s addressee has been released from his obligation. That would be so if waiving involves no more than committing yourself not to exercise your right whereas releasing involves nullifying your right. Certainly these are distinguishable processes.

5. Demand-Rights: More Equivalences Bearing in mind Hart’s points about the rights of promisees, and using some of his terminology, I now o er an ampli ed account of demand-rights that encapsulates key points made in this book so far through a set of equivalences akin to Hohfeld’s in character.

5.1 Standing to demand, directed obligation, and owing I give each of the rst three equivalences a label, in square parentheses. Then I derive from these two further equivalences that I do not label. All of the labeled equivalences contain “X has a demand-right against Y to Y’s phi-ing” on the right-hand side. I introduced the conception of a demand-right earlier in this chapter with, in e ect, the rst of these equivalences: (1) X has a demand-right against Y if and only if X has the standing to demand of Y that he phi. 49

[STANDING TO DEMAND]

The second equivalence links demand-rights to directed obligation or, in other terms, directed duty: (2) X has a demand-right against Y to Y’s phi-ing if and only if Y is obligated to X to phi. [DIRECTED OBLIGATION/DUTY]

The third equivalence replaces directed obligation with owing: (3) X has a demand-right against Y to Y’s phi-ing if and only if Y owes X his (Y’s) phi-ing. [OWING] p. 71

From equivalences (1) and (3) we can infer: (4) Y owes X his (Y’s) phi-ing if and only if X has the standing to demand of Y his (Y’s) phi-ing The analogous point holds for directed obligation. For from equivalences (1) and (2) we can infer: (5) Y is obligated to X to phi if and only if X has the standing to demand of Y his (Y’s) phi-ing. Equivalences (4) and (5) determine, in e ect, speci c interpretations of the ambiguous phrases “obligation to” or “duty to,” and the ambiguous term “owe.” Each of these interpretations corresponds to one of those in the literature. Further, they are well tailored to rights of the important type that accrue to promisees. I leave open here the relationship of these interpretations to others in the literature. I discuss some of these other interpretations in chapter ve. Together equivalences (4) and (5) imply that “Y is obligated to X to phi” refers to the same relation as does “Y owes X his (Y’s) phi-ing.” One can couch this point in terms of another equivalence: (6) Y is obligated to X to phi if and only if Y owes X his phi-ing. Here, as in (1), the single relation in question is not seen from two di erent perspectives, X’s and Y’s, but from one and the same perspective. The di erence in this case, then, is only in the terms with which the relation is described.

5.2 A possible further equivalence I now consider a possible further equivalence that might be added to the above set. Joel Feinberg speaks in 50

various places—without fanfare—of the right-holder demanding what is his.

This way of speaking nds 51

resonances in more than one author’s work, including Kant’s Metaphysics of Morals.

I discuss it here in my

own terms. For ease of reference I refer to it as Feinberg’s idea. It suggests a way to distinguish cases in which a person has the standing to demand some action from cases in which he lacks such standing, though we may speak of him as demanding that action in a broader sense of “demand.” Consider rst some cases that may be judged to involve demands in a broader sense. p. 72

Suppose a gunman says to you, “Do it---or I’ll kill you!” He is not here explaining his standing to demand that you do it—something he most probably lacks. Rather, he is explaining that you have a strong selfinterested reason to do what he says, irrespective of his standing to demand it or his lack thereof. Or suppose that, when asked “What makes you think you can demand that I do that?” someone replies: “I am justi ed in trying to get you to do it by issuing an imperative in a demanding manner, in case that will do the trick.” Once again, this is not an explanation of his standing to demand the action in question. Rather, it o ers a justi cation of his purporting to have that standing. The idea now in question is that someone’s saying of your action “It is mine!”—in the relevant sense— would make it clear that he is in a position to demand it—assuming that he speaks truly. More strongly, the suggestion is that it is precisely the fact of the action’s being “mine” in the sense in question that gives me the standing to demand it. Alternatively: it is this which makes demanding—in the sense in question— possible.

If this is to be a useful suggestion in the present context we will clearly not want to explicate “my action” as “action to which I have a demand-right.” After all, we are hoping that the idea that an action is, in a particular sense, mine will help us better to understand what it is to have a demand-right. The sense of “my action” just envisaged may or may not re ect any standard use of the phrase. Call it the demand-right sense. There is a standard sense in which, in this context, the action of the right’s addressee will not be the right52

holder’s, as such.

Rather, it will be the action of the right’s addressee. In this sense an action is some

person’s action if and only if that person performs the action—as when he reads a book or goes for a hike. Call this the performance sense of “his action.” This may be the default interpretation for the quali ers “my,” “his,” and so on, in relation to a person’s action—that is, the interpretation most likely to spring to mind. It is possible that the sense that we need plausibly to explicate Feinberg’s idea is not re ected in any standard sense of the quali ers “my” or “his” in relation to a person’s action. It may be that the sense in question, though not standard, is a plausible sense: one can see the aptness of the term in the relevant context. In short, one can see how this sense could have been re ected in language, even if it isn’t. That said, there are standard senses of “my action” and related phrases, that have not yet been considered. The following example drawn from experience illustrates one such sense. p. 73

On a tour of a great mansion the guide tells visitors that one of its previous owners had “planted tens of thousands of bulbs” in the gardens. She has previously explained that hundreds of gardeners worked for the owner. In hearing that he “had planted tens of thousands of bulbs” one would not think that he had planted each bulb with his own hands. Rather, one would assume that many hands—in particular those of many of his gardeners—were involved in the planting. In other words, one would not think that each bulb planting was the owner’s action in the performance sense. One may not even think that he was physically involved in the planting of a single bulb. Rather one would understand something like this: all of the plantings had been done, ultimately, on the basis of his instructions. We seem, then, to have arrived at another vernacular sense 53

of “my action,” having to do with the “chain of command” leading to the action in question.

At this point I shall not assume of any particular sense of “my action” that it is involved in Feinberg’s idea. Su

ce it to say that, should that idea be accepted, one could add the following further equivalence: (7) X has the standing to demand of Y his (Y’s) phi-ing if and only if Y’s act of phi-ing is in some speci able sense—call it S—X’s.

Given (7) one could add to the full list of equivalences the following. As with the other labeled equivalences, the portion on the left hand side is “X has a demand-right against Y to Y’s phi-ing”: (8) X has a demand-right against Y to Y’s phi-ing if and only if Y’s phi-ing is, in sense S, X’s. [RIGHT-HOLDER’S ACTION] The tentative equivalences just discussed coupled with those previously accepted entail several more. For instance, given (8) and (3)—OWING—above we have: (9) Y owes X his (Y’s) phi-ing if and only if Y’s phi-ing is X’s—in sense S. This idea of owing is consistent with the idea that when Y’s phi-ing is X’s, in sense S, Y may not yet have phi-d. It implies that, if the time for Y’s phi-ing has come and gone, and Y did not phi, then he did not give X what he owed him. The last of the equivalences related to Feinberg’s idea that I shall set out here is derivable from (8) and (2) (DIRECTED OBLIGATION):

(10) Y is obligated to X to phi if and only if Y’s phi-ing is X’s—in sense S. p. 74

I shall not at this point assume the correctness of these or any related equivalences, or of Feinberg’s idea, though I believe that something can be made of them. I will refer to them occasionally, as conjectural, and 54

return to them in due course.

5.3 Demand-rights and ownership None of the equivalences reviewed in section 5.2 refers to X’s owning Y’s action, as opposed to its being in some sense his. There are reasons at least initially to avoid using the verb “own,” the abstract noun 55

“ownership,” and even the quali er “his own” in this context, as I now explain.

One reason for not using these terms in relation to actions is that a person’s rst thought on the topic of what he owns is likely to lead to his citing a number of material things: his house, his car, his land. This kind of thing may also be referred to as his property. Though the category of “incorporeal property” is now well established in property law, it has seemed to some that corporeal or material property has a kind of priority 56

in the realm of property in general.

A deeper reason is as follows. The most familiar accounts of both material and incorporeal property are 57

couched in terms of one or more rights.

These accounts are generally found in legal discussions, and the

rights in question in such discussions are, of course, legal rights. Outside the legal realm, however, judgments on what counts as one’s property are also generally made in terms of rights, and at least some of the rights in question are demand-rights. That this is so is suggested by the following example. Bill and Jim have been shipwrecked and forced to live on a small uninhabited island where they are likely never to be found. One day they come across a glade full of mushrooms. Bill, who knows Jim adores mushrooms, says “I promise I will not use these mushrooms without your permission. I promise further to refrain from any interference with your use of them. Destroy them if you wish.” Jim accepts these promises. It seems that, intuitively, we are close to being able to say that, at least within their two-person society, Jim now owns the mushrooms. As Bill might say to Jim “I hope your mushrooms thrive this year.” p. 75

That is presumably on account of the demand-rights Jim now has in relation to the mushrooms, rights he has by virtue of Bill’s promises. In particular, he has a demand-right against Bill to Bill’s abstention from using the mushrooms; and he has a demand-right to Bill’s non-interference with his use of the mushrooms, however he chooses to use them. Assuming that speci c demand-rights play a central role in the constitution of what are, intuitively, cases of ownership, it may seem that any account of demand-rights in terms of ownership must be rejected as viciously circular. For one would be de ning demand-rights by reference to something involving demandrights, albeit demand-rights with the appropriate content. Clearly it would be best not to invoke ownership, or at least ownership in any demand-rights-involving sense, in an attempt better to understand the nature of demand-rights themselves. This point parallels that made earlier about the disutility of invoking a sense of “his action” equivalent to “action to which he has a [demand-]right.” Perhaps, though, there is another kind of ownership—something that is recognizable, intuitively, as such, such that anyone with any demand-right has that type of ownership over the action he has a right to. Whether or not there is anything intuitively characterizable as ownership that does not consist in part of demand-rights is clearly a pertinent issue for present purposes. The result of my eventual pursuit of Feinberg’s idea will bear on this question, though my expression of that idea will not involve the word “ownership” or cognate terms.

Ultimately, what is important is to discover what it is about the relationship between the demand-rightholder and the action he has a right to that puts him in a position to demand that action of the right’s addressee. One should not rest with the explicitly vague idea that this action is in some sense his, any more than one should rest with the explicitly vague idea that he in some sense owns the action.

5.4 Setting aside further equivalences Suppose that Angie promised Liz that she would come to her birthday party on Friday, but did not show up. On Saturday it makes no sense for Liz to demand of Angie that she come to her party, since the time for that has passed. It seems, however, that should Liz desire to rebuke Angie for not coming to the party, she would have the standing to do so. Indeed, as I noted earlier in this chapter, a rebuke can be seen as an after-thefact demand. This suggests a further equivalence to the e ect that one with a demand-right has the standing to rebuke the right’s addressee for not providing the object of the right. One reason for not doing so is this. Though I p. 76

believe, and shall assume, that

this would be appropriate for demand-rights outside the institutional

realm, things are not so straightforward within it. There the standing to demand an action may become 58

disjoined from the standing to rebuke for nonperformance.

To avoid possible issues in this area I shall not

include this equivalence in my initial list. Other equivalences may well be proposed. For now, however, I am going to focus on those already accepted. As I explain shortly, these equivalences already make pressing an important problem.

6. The Rights Assertion Argument for the Primacy of Claims As noted in chapter one, claims have often been singled out as having some kind of primacy in the realm of the Hohfeldian relations. Once claims are understood as demand-rights a related argument for such primacy suggests itself. The argument ts well with Judith Thomson’s claim that to assert a right is to 59

demand its object.

Let me say a few words about what I take to be intended by “asserting a right” in this connection. It is to be distinguished from asserting that someone has a right, as when someone says, musingly, “Judith Thomson, like everyone else, has many rights.” Asserting a right is, rather, a matter of doing something that presupposes one’s possession of the right in question. Thomson suggests that, more precisely, it is “to 60

demand what one has a right to.”

Irrespective of Thomson’s intent, her words t well with the idea that what is at issue is a demand-right. If someone has such a right, he has the standing to demand the object of the right, and his actually demanding it, in light of that standing, would aptly be referred to as his asserting his right in a sense that goes beyond his asserting that he has the right. Insofar as claims are understood as demand-rights, and it is only demand-rights, as such, that allow a supposed right-holder to assert his right, then one might argue that claims are primary for this reason. What kind of right is it, one might ask, that cannot be asserted? p. 77

In this connection recall Brian Orend’s idea that, given a cluster of Hohfeldian relations including both a liberty and a claim protective of that liberty, it is the claim within the cluster that “genuinely causes the 61

assertion to strike with the force of a right.”

This suggests the following.

Suppose someone says, in a demanding tone, “I am perfectly free to walk here!” One might at rst think that person is asserting a naked liberty. However, a naked liberty does not provide the liberty-holder with the standing to demand anything. Thus a plausible interpretation of the situation is that the speaker is asserting a protective claim in the sense of demand-right: a demand-right that the person addressed not interfere with the speaker’s walking in the place in question. Though many, though not all, rights theorists are comfortable with the idea that naked liberties are as much rights as any other Hohfeldian relation, it is surely signi cant that such liberties lack the important property of being assertable in the sense now in question. To spell things out, it is not the case that—without more— the naked-liberty-holder has the standing to demand that the liberty’s addressee respect the liberty. When a protective claim in the sense of demand-right is absent, the liberty-holder can assert that he has the liberty in question, but he cannot assert any right that so closely bears on his liberty. The same can be said, with relevant changes, with respect to apparent assertions of other Hohfeldian relations that are not equivalent to demand-rights. What gives the person in question the standing to demand anything is a protective claim: at its broadest a claim that the existence of the relation in question be respected. One might call the train of thought just reviewed the “rights assertion argument” for the primacy of claims. As I said in chapter one, it is not essential to the argument of this book that claims, in the sense of demandrights or any other sense, be the primary or paradigmatic rights. The rights assertion argument, however, goes some way to explain why one might reasonably think that they are.

7. The Demand-Right Problem Demand-rights are particularly valuable possessions. The right-holder is in a position authoritatively to intervene in the life of the right’s addressee. More precisely, the right-holder has the standing to demand the right’s object of its addressee. Such demands are a unique kind of enforcement mechanism. If someone understands that you have the standing to demand some action of him, he understands that his p. 78

performance of that action is not only his business,

but yours also. Indeed, as Hart puts it, you are a

small-scale sovereign with respect to him, a sovereign who is in a position to call him to order in the relevant domain. The Introduction to this book referenced demand-rights informally, when discussing some of the familiar contexts in which they are found—agreements and acting together. This chapter has o ered a more formal account of them. Though that account is open to further ampli cation, I shall focus on it for now, with the standing to demand a given action holding center stage. Demand-rights have been linked to several familiar terms through a set of equivalences. For instance: one has the standing to demand that someone phi if and only if he owes one his phi-ing. The idea of a directed duty has been interpreted accordingly. That is not to say that other interpretations of “owing” and “duty toward” have no currency or lack utility. That is certainly not the case. It is rather to say that one way of understanding these terms, a current and important way, is through the equivalences given here. Anyone who writes of “owing” or “duties toward” had best make his own meaning clear, if only because of the many options available. I discuss some of these, from a particular perspective, in chapter ve. One salient fact about the interpretation of “duty toward” through the equivalences is that a directed duty has not been characterized as in whole or in part constituted by a plain duty. No reference to plain duties occurs in any of the equivalences. In this respect the characterization of directed duties here is radically distinct from that of contemporary rights theorists generally, as will become clear in chapter ve.

The lack of reference to plain duties just mentioned may recall some questions raised in chapter two with respect to both legal and moral rights. Combining these: can rules that accord rights equally well be expressed by deontic rules, with or without some special features? If we are dealing with demand-rights, a negative answer appears to be in place. There is, however, a further question that needs to be addressed. Are there some conditions under which a plain duty is the ground of a demand-right—so that demand-rights are present whenever they are? If the answer were positive, a system of deontic rules could, in e ect, include demand-rights. The outcome of chapter ve is pertinent to this question. Brie y to anticipate: the answer appears to be negative, at least for a number of conditions that the rights literature suggests. Notably, the equivalences presented in this chapter do not posit a connection between the directed duty of a demand-right’s addressee and any normative constraint he may be under. That said, one who expresses his p. 79

demand-right by

demanding its object does presuppose that the compliance of the right’s addressee is 62

appropriate irrespective of that person’s inclinations, and so on.

I discuss this aspect of the matter further

in due course. I have discussed at some length Feinberg’s idea that if X has the standing to demand an action of Y, Y’s action is already in some sense X’s. In other terms, for someone authoritatively to demand an action is for him to demand it as his. One thing that is attractive about this idea is that it seems to o er us a way to go beyond the equivalences so far o ered, to the ground of demand-rights. For, I take it, if and only if an action is his in the relevant sense will a person have the standing to demand it as such. On account of its vagueness, however, this idea, along with the related idea that one with the standing to demand an action in some sense owns it, will not be a primary guide for further discussion. It will remain in the background, however, both as something of a puzzle—as to what sense of “his,” or “owns,” is at issue —and as potential support for an otherwise attractive answer to the general question that now presses. How are demand-rights possible? In particular, how—at the deepest level—is it possible for one person to accrue the standing to demand of another that he perform a given action? I call this the demand-right 63

problem or, more fully, the general demand-right problem.

It is the central concern of the chapters that

64

follow.

I take it that a solution to the demand-right problem will convincingly lay out one way in which one person may accrue a demand-right against another. If there are other ways it would, of course, be good to lay these out as well.

Notes 1 2 3

4 5

6

Hohfeld (1964: 38). Hohfeld (1964: 38); emphasis in the text. Hohfeld (1964: 71n16). His approval is qualified in frustratingly—and paradoxically—vague terms: “the language of Mr. Justice Stayton, though not recommended for precision, may well be compared” with what he himself is saying. The emphasis is Hohfeldʼs. I return to the legal arena in ch. 13. See esp. the Introduction, passim; ch. 1, secs. 2 and 4. One might refer to di erent types of demand rather than di erent senses of “demand”. I doubt that anything of importance to the present discussion is a ected by one choice over the other. Note that the word “standing” as used here is not used in a legal sense. On the latter sense see e.g. Raz (2010: 293–4). In that paper Raz suggests that the “standing to demand” an action is a matter of permission, i.e. I have such standing if I am permitted to make the relevant demand (293). That is not true of demands in the sense at issue here. One lacks the power to make a demand without the pertinent standing. What is at issue, then, is possibility rather than permissibility.

7 8

9 10

11 12 13 14 15

16 17 18 19

20 21

22 23 24 25 26 27 28 29 30 31 32 33 34 35

Cf. Gilbert (2006: ch. 1); on orders, or commands, see sec. 3.1 of this chapter. Mayo (1965: 232–3) says a robber may demand cash but not claim it. My point is that there is a sense of “demand”— presumably a synonym or near synonym of “claim” in Mayoʼs sense—such that a robber may not be able to demand cash. Feinberg (1970: 249) uses the phrase “righteous demand”. This could be intended explicitly to exclude the bank robber type of “demand” which he (perhaps) regards as a genuine (but non-righteous) demand. Or it could be intended to refer to a demand made with standing. That something like this is so is suggested by Feinbergʼs equation of righteous demands with claiming what is oneʼs due. I shall shortly relate oneʼs standing to demand to what one is owed (and hence to “oneʼs due” in at least one sense). “In a demanding tone”: in a way that suggests he has the standing to demand it. Shue (1996: 14). I discuss Shueʼs references to demands in ch. 14 of this volume. See also e.g. Buchanan (1984: 72); Haksar (2001: 12); Wellman (2005: 214). Hart (1955: 18–19) contrasts requests, pleas, and warnings with each other and with orders, to which “a suggestion of authority may be attached”. Owens (2012: 85–7), commenting on Raz (1986: 35–6, etc.), proposes that non-compliance wrongs the maker of an order, but not the maker of a request. I distinguish between demands and commands or orders in sec. 3.2 below. Here I diverge from Skorupski (2010: 310), who proposes that a permissible demand is a request it is morally permissible to enforce. Sustained general discussions of speech acts are to be found in Reinach (1983), Austin (1962), and, citing Austin, Searle (1969). The remarks I make here are no more than informal comments on particular, pertinent cases. Though, on the face of it, this is a request, it may, depending on the context, be understood as a lightly veiled demand. See the next footnote on “please”. The familiar “RSVP” at the end of an invitation is generally interpreted as more of a demand than a request in spite of its literal meaning of “Reply, if you please”. Does one need a special standing to make a request, as such? One might think not. Darwall (2006) suggests that a special standing—“second-personal” authority—is required for anything that involves “second-personal address”, including but not limited to both requests and demands. In his larger discussion Darwall tends to focus on demands, and some of his points may depend on this. Suppose, though, that a type of standing is required for any kind of second-personal address. It could be that requests, as opposed to demands, require only this generic type of standing. I explore aspects of Darwallʼs discussion in Part III. Cf. Harel (1997). The philosophical literature on promises tends to focus on the obligations accrued by a promisor. There is a focused discussion of promises and agreements in Part II below. I used “claim*” in Gilbert (2012: 307f). This does not preclude one who issues a command already having a demand-right against the commandʼs addressee to his performance of the action in question—through a promise, say. If the promise is rescinded though the command is not, the issuer of the command still has a demand-right to the action in question. See ch. 10, sec. 7; also ch. 11, sec. 4.2. Hart (1955: 178), my emphasis. Cf. Grotius (1925: 580), cited in Edmundson (2004: 21): “For an equal cannot be compelled by an equal, except to perform what is owed in accordance with a right properly so called.” I discuss other passages in which Hart discusses coercion in ch. 11, sec. 3. Cf. Skorupski (2011: 310). Hart (1961: 10) sees informal verbal reproofs and punishments imposed through the formal processes of law as versions of a single form of human activity. See ch. 8, sec. 5.1. Cf. the standards of conduct discussed in Cook (2001). For related discussion see ch. 11, sec. 3. Cf. the humming example in sec. 2.1 above. Hart (1955: 180–2; 183–4). Feinberg (1970) emphasizes a number of the same points. Hart (1982: 192–3). See also ch. 11, sec. 3 of this volume. Hart (1955: 183). On some views, the right of an appropriator of land is a right against everyone that only the appropriator has. See Hart (1955: 188). See Hart (1955: 187, 188n14). Hart (1955: 183). Hart (1955: 181) rejects the idea of an obligation to oneself, which, he says, “appears absurd” given a point made there to the e ect that when one has an obligation to another it is as if one is bound by a chain the other end of which lies in the hand of that other, “to use if he chooses”. In the text below I focus on another passage in which Hart uses less figurative

36 37 38 39 40 41 42

43 44

45 46 47

48 49 50 51 52 53 54 55 56

57 58 59 60

61 62 63 64

language to explain the relationship of the right-holder to the rightʼs addressee. I discuss the possibility of demand-rights against oneself in ch. 8, sec. 5.4. See also Brandt (1964). Hart (1955: 183–4); my emphasis. Hart (1955: 177n6). Hart could mean only to claim that the authority in question is su icient for the obligation, as opposed to necessary and su icient. That said, I pursue the alternative interpretation here. It seems to me the most plausible one. See e.g. Hart (1955: 179n7). See Jones (1994: 13), among many others. Feinberg (1980: 130–1) writes of the obligation to a right-holder as being owed to him. Possibly this usage envisages as oneʼs “obligation” the act one is obligated to perform; then saying that oneʼs obligation is owed would make sense. That said, the phrases “owing an obligation” or “owing a duty” sound odd to me, and I shall not use them. See ch. 3, sec 2. See e.g. Kamm (2002b: 333–6) on Scanlonʼs use of “owe” in What We Owe to Each Other (Scanlon: 1998). Kamm notes that “owing” is generally associated with being the addressee of a right, and that Scanlon appears to be using it in a di erent way. I take this not to be an unusual usage. Cf. e.g. Berger (1975: 300) referring to “something owed” to someone “in the sense that he has a right to demand it.” See also e.g. Jones (1994: 36–7). Cornell (2015: 111–12) presents pertinent quotations from Owens (2012), Anscombe (1990), Thomson (1990), and Bond (1996) who connects both rights and wronging with the standing to demand. See also Thompson (2004). Cornell himself argues, against these authors, that one can wrong someone without violating his rights. See ch. 8, sec. 5.6. Sec. 3. See e.g. Feinberg (1970: 251): “If Smith owes Jones five dollars, only Jones can claim the five dollars as his own”. See ch. 8, this volume, esp. the coda. I write “as such” because I am not excluding the possibility of oneʼs holding a demand-right against oneself. Thanks to Fred Schueler for discussion of this example. See ch. 8, secs. 4.3f of this volume. Here I have been influenced by concerns expressed to me by Frank Stewart and Leif Wenar, in particular, regarding earlier references of mine, in this context, to ownership. On a kind of priority of property in material things see e.g. Waldron (1988: 33) “there are good reasons for discussing property in material resources first before grappling with the complexities of incorporeal property.” A standard example of incorporeal property is oneʼs reputation, which may be treated as property in law. Waldron (1988: 34n17) contrasts his approach with that of Honoré (1962: 62) who maintains that “no rational distinction can be drawn” between property rights in material goods and property rights in incorporeal things. See Honoré (1987: ch. 8). See Gilbert (2006: ch. 9). Thomson (1990: 2). Thomson (1990: 2) goes on, congenially: “It would be no wonder if people who think government a mere creature of the governed, and each member of the governed the equal of every other, spoke to their government and to each other in the words ʻI have a right!ʼ.” I take the exclamation point to be crucial: this is not a mere assertion that I have a right; it is an assertion of my right couched as an implicit demand. Feinberg (1970: 251) makes a similar distinction between “propositional” and “performative” claiming. One who claims propositionally claims that [he has a right]; one who claims performatively claims what he has a right to. Orend (2002: 23). See sec. 2.2 of this chapter. I focus on some special demand-right problems in due course. See chs 6–7, and 9. Chs 5, 7–9, and 11–13, in particular.

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

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5 Contemporary Rights Theories: The Problem Remains  Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.003.0006 Published: April 2018

Pages 80–98

Abstract The most in uential theories of claims within contemporary rights theory are considered in relation to the demand-right problem. Starting with Hohfeld’s equivalence, contemporary theorists generally aim for an account of claims such that the members of a certain canonical set of claim-ascriptions are true. In pursuit of this aim they tend to focus on directed duties and to assume that these are in part constituted by plain duties. Reviewing the results obtained by adopting this aim and method, this chapter argues that in order to solve the demand-right problem we need to go beyond the resources of Thomson’s constraint theory, Joseph Raz’s “interest” theory, and similar views. The same goes for Hart’s “choice” theory and related positions, and several other approaches more brie y considered.

Keywords: choice theory, claims, directed duties, Hart, interest theory, Raz, rights theory, Thomson Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

This chapter surveys the most in uential contemporary theories of claims from the point of view of the demand-right problem. It argues that in order to solve it we need to go beyond the resources of Judith Thomson’s constraint theory, the “interest” theory of Joseph Raz, and related views. It then considers Hart’s “choice” theory and some related positions. These either fail to describe a situation su

cient to

ground the standing to demand, or they presuppose that the right-holder has this standing and are not, then, in a position to explain it.

1. Rights Theory and the Demand-Right Problem This chapter considers whether a solution to the demand-right problem can be found in the work of the most in uential contemporary rights theorists.

When characterizing demand-rights I began with the standard, Hohfeldian characterization of X’s claim against Y to Y’s phi-ing as equivalent to a duty of Y toward X—without elucidation of the nature of a duty toward someone. In what follows, where it is necessary for clarity’s sake, I shall refer to claims according to this characterization as claims in the thin sense. Otherwise I shall use the unquali ed “claim” in the thin sense. Considering contemporary accounts of claims I shall ask, of each account: is it such that, without more, a claim-holder has the standing to demand the object of the claim from the claim’s addressee? If so, does the account help to explain how demand-rights are possible? The answer to the rst question could be positive, though the answer to the second is negative, if the account simply posits or presupposes that one with a claim on that account has the standing to demand its object from its addressee. A given rights theorist may not be overly concerned if, on his account of claims, it is possible for a claimholder to lack a demand-right to the object of the claim. His explicit aims, indeed, may not reference p. 81

demand-rights as such. Even when this is

so, however, he or his readers may assume that a claim

according to his theory is a demand-right or somehow brings with it such a right. As we have seen, “demands” are often associated with rights and, where these are speci ed, claims. Whether or not the explicit aims of a given rights theorist reference demand-rights, then, there is reason to examine whether, given the conditions speci ed in his account, a claim-holder has the standing to demand the object of his right. Some of the theorists in question use the label “right” rather than “claim” throughout their discussions. In order to maintain the consistency of my text with the quotations I give from a particular theorist’s work, I will generally keep to that theorist’s terminology when discussing that work. My ultimate interest in this chapter is in the relation, if any, of the situations described, under whatever label, to demand-rights.

2. Contemporary Rights Theory Though the theorists I discuss di er in important ways as to their accounts of claims, they tend to judge their own and others’ accounts in terms of one and the same implicit aim and method. In this section I describe these in relatively broad strokes.

2.1 The standard aim The standard aim of contemporary rights theorists with respect to claims can be represented in the form of the following directive: give an account of claims such that at least the members of a certain canonical set of 1

claim ascriptions are true. In a more nuanced version, the theorist is to seek a kind of re ective equilibrium 2

between his account of claims and those claim ascriptions thought to be canonical. Theorists may not agree precisely on what falls into the canonical set, but there is a substantial area of overlap. 3

Thus consider Judith Thomson’s focal example: “I have a right against you that you not break my nose.”

Perhaps given certain quali cations, a generalized version of this claim is commonly considered to be part of the canon of claim ascriptions. It refers to bodily damage generally rather than to nose-breaking in particular. It is understood to be a claim of each human being against every other human being, or against p. 82

4

every other human being with the requisite capacities.

It might be considered conditional on the absence 5

of special justi cation in the right’s addressee, though Thomson herself does not see this as necessary.

Other members of the canonical set generally include the rights of promisees and the parties to agreements. Not only do individual rights theorists tend to pursue the aim just noted, there appears to be a collective judgment among these theorists that they are to pursue that aim. That this is so is indicated by the

following: if one’s account of a claim fails to include one or more of the canonical ascriptions within its purview, it may be received not only with impassive judgments to the e ect that it has failed to meet the goal in question, but with negative reactions with the character of rebukes: “How can you cast doubt on the idea that this claim ascription is true?” I take it to be a sign of the existence of a collective judgment that 6

members of the collective may be more or less emphatically rebuked for acting contrary to its implications.

2.2 The standard method In seeking to ful ll the standard aim, contemporary rights theorists tend to focus on the question: what is it for one person to have a duty toward or to another? What, in other words, is a directed duty? Unlike Thomson, they have not argued that a directed duty is simply a plain duty or, in Thomson’s terms, a normative behavioral constraint on a claim’s addressee that concerns how to treat the claim-holder. Many if not most have supposed, however, that the best route to an answer starts with the idea that the addressee of a claim, as such, has a plain duty. Then, in e ect, they ask: what external relational features of 7

the duty, when present, make it a directed duty?

What is a duty, as such, for the theorists in question? Though they are not always forthcoming on this p. 83

question, and may diverge in signi cant ways, I take

their meaning to approximate, at least, the

conception with which I have been operating. In particular, and most important for present purposes, duties 8

—as such—are generally thought of as, in Feinberg’s words, a matter of “modality” only. More perspicuously perhaps, a duty is what I must or must not do. In other terms, it is a matter of requirement. While operating with the assumption that a directed duty is constituted in part by a plain duty, rights theorists tend to assume that the duties or requirements in question are either institutional or moral. There is on this view no pertinent third category of duties, or, indeed, of claims. Suppose we put this two-realm assumption together with the standard assumption that a plain duty is part of the constitution of a directed duty—call this the duty-plus assumption. We can then amplify the latter assumption as follows: a moral or legal duty is assumed to be given, and the method of nding out whether it is directed is to ask what needs to be added to the fact that there is this duty in order to produce a directed duty. Possibly the focus on the directed duty “side” of a claim stems from the following line of reasoning: we are familiar with duties—that is, plain duties—so a good way to come to grips with the nature of claims themselves is to start with something that looks as if it involves a duty, namely, the directed duty that is the equivalent of a claim. We can then ask: what needs to be true of a duty to make it a duty with direction? As I argued earlier, the duty-plus assumption should be viewed with caution by those starting with 9

Hohfeld’s equivalence for claims, as do many of the theorists in question. Setting aside such concerns, this chapter will consider the potential of the central contemporary theories of claims from the point of view of the demand-right problem. This will both clarify the resources of those theories, and clarify the sources of demand-rights—in a positive or a negative way.

3. Duties Concerning a Person Contemporary rights theorists who, unlike Thomson, think that there is something special about duties toward a person generally agree that such duties are not, or not simply, duties concerning that person. That is, they are not, or not simply, duties to do something to, for, or with that person. These theorists tend to assume, rather, that the direction of a duty is determined by some external relational fact about it— irrespective of its content. p. 84

10

A duty toward a person was once more likely to be understood as a duty concerning that person.

Further,

there are contemporary legal theorists—theorists of tort law in particular—who appear to construe at least 11

some directed duties in terms of a particular kind of duty concerning a person.

It is worth asking, then,

whether the demand-right problem can be solved by reference to the idea of a duty concerning a person, or a duty concerning a person in some particular way. Now, duties concerning a person may result in action that person will wish to avoid, and so have no interest in demanding it of the duty-holder—for instance, a duty to report an assailant to the police. It makes sense, then, to focus on duties whose ful llment will most likely be welcome to that person. I should be understood to refer to such duties in what follows. I take the pertinent question to be this: if you have a duty concerning me, do I have a demand-right to ful llment of the duty precisely because that duty concerns me? Suppose you have a moral duty to take care not to collide with anyone who is on the street where you are walking. You are currently looking xedly at your phone while coming toward me. Evidently, you are failing to ful ll your duty to take care not to collide with me, among others. Presumably I would be justi ed in shouting something geared to stop you in your tracks. It is by no means clear, meanwhile, that the fact that your moral duty concerns me gives me the standing to demand that you stop. Now consider a case described by H. J. McCloskey as a “duty to” someone: a duty of gratitude to a benefactor. Suppose that there is such a duty—a moral duty—and that it is a duty to act toward a benefactor in ways expressive of gratitude toward him. It is not at all clear that one’s benefactor, as such, has the standing to demand that one act in this way. He may reasonably be distressed at and, indeed, grumble about one’s ingratitude, but that is not to have the standing to demand that one act in the ways in question. In accord with this point, if not echoing it, moral theorists generally agree that given a duty of gratitude, there 12

is no corresponding right to gratitude. p. 85

Most rights theorists, as noted, do not see a duty toward X as, simply, a duty that concerns X, or a duty that concerns X in some particular way. Rather they accept the duty-plus assumption, ampli ed thus: directed duties are plain duties distinguished not by their content but by certain relations in which they stand. In particular, they involve a speci c relation of the duty to the right-holder. As we shall see, there is considerable divergence as to the relation in question.

4. Do Thomsonian Claims Support Demands? 13

I start by revisiting Judith Thomson’s discussion of claims. previously discussed.

This includes a number of elements not

4.1 Thomsonian constraints I focused earlier on the account of claims that seems to predominate in Thomson’s thinking. According to that account, X’s claim against Y to Y’s phi-ing is equivalent to Y’s being under a complex behavioral constraint. That is, there is a variety of things that Y ought to do. It is by no means clear that one who has a claim on the account so speci ed has by virtue of that fact the standing to demand anything of the claim’s addressee. More generally: it is by no means clear that Y’s being under a complex behavioral constraint—in and of itself—gives anyone, including X, the supposed claim14

holder, the standing to demand that Y respect the constraint.

What if we ll things out, consistently with Thomson’s drift, so that X’s claim against Y is equivalent to Y’s being under a certain complex behavioral constraint with respect to his treatment of X? As I have just argued in relation to duties concerning someone, it is not clear that Y’s being subject to such a constraint gives X, in 15

particular, the standing to demand that Y behaves accordingly.

4.2 The permissibility of verbal attempts I now consider a point of Thomson’s on which I did not previously focus: when X has a claim, it is permissible, all else being equal, for X to make verbal attempts to obtain Y’s conformity to the relevant 16

behavioral constraint.

Is there something here to ground X’s standing to demand that Y conform to the

constraint? p. 86

On the contrary, it is hard to see how the fact that it is permissible for X verbally to attempt to obtain Y’s conformity gives X the standing to demand of Y that he phi—in the sense at issue here. That is not to deny that X is permitted to utter those imperatives that would be used by one with the standing to make the corresponding demands. To be permitted to issue these imperatives, however, is not to have the standing to demand the action in question. One who is so permitted may or may not have such standing. Finally, alluding brie y to Feinberg’s idea, the permission in question does not appear to su

ce for Y’s

action to be X’s in some intuitive sense.

4.3 The matter of “release” At one point Thomson says that the addressee of a claim ought if possible to seek “a release” from the 17

claim-holder before failing to perform the act in question.

That is part of the complex behavioral

constraint to which the addressee of the claim is subject. 18

Thomson does not o er an account of “a release” or related phrases such as “seek a release.”

For present

purposes I shall work with the following interpretations, which t her discussion reasonably well. One of their advantages is that they do not imply a kind of authority in the releasing agent, whose existence 19

remains to be explained.

Supposing that X has a claim against Y to Y’s phi-ing, then, where this is understood according to Thomson’s account, for Y to seek a release from X, is for Y to ask X if it is ne with X if Y does not phi. Y would obtain a release if, in those circumstances, X says that it is indeed ne with him if Y does not phi. If X’s release is obtained, and all else is equal, it is no longer the case that Y ought to phi. In Thomson’s terms, if X’s release is not obtained, and Y ought not to phi, all things considered, then Y will 20

infringe X’s claim, if Y phi-s. Otherwise, if X’s release is not obtained, Y violates X’s claim.

 Releasing the

addressee of one’s claim, then, is a matter of relieving him of the applicable constraints. Given all this, does the claim-holder have the standing to demand what he has a right to? The answer appears to be negative. More precisely, it is not necessarily the case that X has the standing to demand that Y phi when the following state of a airs obtains: Y ought to seek a release from X before failing to phi, and X has not yet released Y. p. 87

Evidently, in the situation envisaged, X is in a position to do certain things that a ect Y’s normative situation. First, X can make it the case that Y no longer ought to phi, all else being equal. X has, we might say, the power to release Y from the constraint in question. Second, X can maintain Y’s subjection to the constraint in question, should X so wish, by refusing to release Y. X has, we might say, the power not to release Y from his subjection to the constraint. Both of these powers are distinct from the power to demand, with standing, that Y phi. With respect to the second power, X can refuse to release Y and can observe that, therefore, Y ought to phi, all equal. Making such an observation, however, is distinct from demanding performance. Nor, evidently, is the ability to make this observation restricted to one with the power to release or refuse to release Y from the relevant constraint. Of course, to speak of one’s releasing the addressee of a demand-right from the constraints of that right presupposes that there is a demand-right there in the rst place. It seems, however, that unless she says more than she has, Thomson has not described anything that ensures that her supposed claim-holder has a demand-right, or, in other words, the standing to demand the object of the claim.

4.4 Thomsonʼs theory of claims and the standing to demand Though Thomson herself does speak of “demands” and links claims and demands (so that to “assert a right” is to make a demand), she does not emphasize this aspect of the matter. I have argued that it is at best not clear from the elements in her discussion just referenced that a claim-holder, on her account, has the standing to demand anything of the claim’s addressee. To have a demand-right is to have the standing to demand a given action or actions from others. The elements of Thomson’s discussion on which I have focused in this chapter, whatever terms we associate 21

with them, do not help to explain where such standing comes from.

I focus in the rest of this chapter on the accounts of two other eminent rights theorists and positions that relate to theirs in one or another way. I argue that none of these theories a ord us the means to explain how demand-rights are possible. Here my discussion enters the territory of the longstanding debate between interest and choice theories of rights. p. 88

This is normally conducted in terms of the standard aim of contemporary rights theory—coverage of a set of canonical claim ascriptions. In the context of that aim, each type of theory has been held to be open to 22

signi cant counterexamples.

that have been made within it.

I shall not enter that debate here, though I shall draw on some of the points

5. Interest Theories 23

Joseph Raz has developed an in uential theory of rights. It is a form of interest theory.

Raz’s account of

rights is untypical in several ways. First, he does not equate a claim with a plain duty or with a complex including such duties. Second, though duties play a role in his account, X’s having a right against Y does not even entail Y’s having a duty on that account. In discussing interest theories I rst consider Raz’s theory and, later, a generic version of the interest theory that more clearly ts both the Hohfeldian schema and the duty-plus assumption with respect to directed duties. I start by describing a well-known precursor of Raz’s and other interest theories, whose drawbacks have prompted the development of those theories.

5.1 Beneficiary theories: Bentham 24

As Raz notes, an earlier theory in some ways akin to his own is that of Jeremy Bentham.

Believing that

rights were essentially legal or more broadly institutional—as opposed to natural—Bentham o ered an 25

in uential theory of such rights. 26

rights as well.

His account has been seen as applicable, in essence, to non-institutional

His and some related theories have been labeled “bene ciary” or, sometimes, “bene t”

theories. p. 89

Bentham held, roughly, that in order for a right to be present there must be an obligation or, in other words, duty such that someone would bene t—all else being equal—were it ful lled. According to Bentham, the person (or persons) in question—the “bene ciaries” of the duty—have a right to the ful llment of the duty. In Hart’s paper “Are There any Natural Rights?” he criticizes this bene ciary theory in terms of an example that involves a “third-party bene ciary.” This type of criticism has become standard. 27

Here is an example of the kind Hart o ered, drawn from an example o ered by David Lyons.

Suppose Bess

has promised to pay Alvin a hundred dollars. Alvin privately decides to give a present of a hundred dollars to a third person, Clara, if and only if Bess pays Alvin the hundred dollars she promised to pay him. Intuitively, in these circumstances, Alvin has a right through Bess’s promise to her giving him a hundred dollars, while —given what has been said so far—Clara lacks a right to Bess’s paying Alvin the money. Bentham’s bene ciary theory seems to imply, on the contrary, that both Alvin and Clara have a right to Bess’s paying Alvin a hundred dollars, since each stands to bene t from Bess’s ful llment of her promissory duty in the circumstances described. In light of such examples a quali ed version of the bene ciary theory just mooted may be found more plausible. In one version, the right-holder is the “direct, intended bene ciary” of a duty. He is the “party to 28

be bene ted” by the duty.

Raz’s theory also allows for a distinction between right-holders and other bene ciaries of the performance of a given duty. It does so while eschewing any reference to intention. Such reference is perhaps most apposite to the case of legal rights, with which Bentham was concerned, whereas Raz wishes to cast his net more widely. He appeals rather to the ground of a duty or potential duty.

5.2 Razʼs theory 29

I discuss Raz’s theory as expressed in his in uential article “On the Nature of Rights.”

express apply to the other versions or progeny of Bentham’s bene ciary theory as well.

The concerns I

Prior to o ering his account of rights Raz suggests his intent as follows: “Philosophical de nitions of rights 30

attempt to capture the way in which the term is used in legal, political and moral writing and discourse.” p. 90

Supposing that he is successful in

carrying out his intent, it will remain to be seen what relationship, if

any, rights in the sense in question have to demand-rights in particular. Raz presents the following fairly complex de nition: “X has a right” if and only if x can have rights, and, other things being equal, an aspect of x’s wellbeing (his interest) is a su

31

cient reason for holding some other person(s) to be under a duty.

With respect to the clause “x can have rights,” Raz says that an individual is capable of having rights if and 32

only if “either his well-being is of ultimate value or he is an ‘arti cial person’ (e.g. a corporation).”

I shall

assume in what follows that we are talking about beings that can have rights, or, more brie y, “persons,” and will not discuss further this aspect of Raz’s de nition. Raz couches his de nition in terms of an aspect of one person’s interest being “a su 33

holding” some other person(s) to be under a duty.

cient reason for

Thus he does not say simply that an aspect of one

person’s interest accounts for some other person’s duty. I take it, however, that if an aspect of person X’s interest does account for person Y’s duty, Raz’s de nition would allow that X has a right to Y’s ful llment of the duty. To keep things simple I shall focus here on the case in which an aspect of X’s interest accounts for, or grounds, an existing moral duty of Y’s. Raz’s de nition may capture a prevailing use of the phrase “a right” among writers in the areas he speci ed, as he intended. It has certainly in uenced the way in which rights have been subsequently understood in much moral and political theorizing. What, though, of its relation to demand-rights? More precisely, given only that I have a right according to Raz’s account does that su

ce to ground in me, qua

right-holder, the standing to demand the object of the right from its addressee? It seems not. In other terms, the duty in question is not a directed duty in the sense that such a duty is equivalent to my standing to demand the object of the right of the person with the duty. I have no such standing. It is true that I gure in an important way in the explanation of the duty. Intuitively, however, that does not su

ce to

ground in me the standing to demand of the person with the duty that he ful ll it. And it is hard to see how it could be argued that it does so su

ce.

One might put things this way. Given the pertinent facts about my interests, morality set a particular duty. p. 91

Let’s say that you are the one with the duty.

Something more seems to be needed for the conclusion that I

have the standing to demand of you that you ful ll the duty than this fact about my interests and morality’s response to them. Someone might respond: when I have a right in Raz’s sense—for short, a Razian right—don’t I have the standing to demand the object of the right, morally speaking, given its relation to my interests? It is hard to be sure what might be meant by “having the standing to demand…morally speaking.” For one thing, it is not clear that having the standing to demand an action is ever a moral matter. It is not, remember, a matter of 34

justi cation, moral or otherwise.

I could be morally justi ed in purporting to demand of you that you perform a duty grounded in my interests. That would not mean that I had a demand-right to such performance. Purporting to demand is not demanding, and one can be justi ed in so purporting without having the standing to demand. Some may argue that if, as I put it earlier, morality set the duty, then everyone has the standing to demand 35

that I ful ll it. I discuss this idea later in this book.

Whatever its merits, it does not speak to the point at

issue, which is whether or not my Razian right grounds in me, qua right-holder, the standing to demand its object. In a discussion that follows his de nition of “a right,” Raz focuses brie y on the rights of promisees in particular. He does not doubt that there are such rights, and seeks an account of them according to which 36

every promisee has a right to the performance of the promise.

Now, a promisee may cease to care about

the ful llment of a particular promise. And it may not be in his interest that this particular promise be 37

carried out.

How, then, does Raz’s interest theory cope with the case of the disinterested promisee?

Raz suggests that, though anyone may cease to have an interest in the ful llment of a particular promise to him, each person has a pertinent general interest in being able to form “voluntary special bonds with other 38

people.”

This is the interest that grounds each promisor’s duty to his promisee to keep the promise in

question. Given that the promisee’s interest grounds the duty, the promisee has a right to the promisor’s ful llment of his duty. This may or may not be a good way for Raz’s theory to account for promisees’ rights. There is no need to enter that question here. Su

ce it to say that the right that every promisee has, according to Raz, does not

appear to be a demand-right. This follows from the points made earlier about Razian rights generally. Since p. 92

a

promisee’s rights are, intuitively, demand-rights, it seems that there are grounds here for serious 39

criticism of Raz’s account of promisee’s rights, whatever its other merits.

What does Raz say of the idea that a right is held against a certain person or that it corresponds to a directed duty? This is not a major focus of his, but he does emphasize, at one point, that “Rights are held against 40

certain persons.”

Raz sees this point as marking the fact that “even if a person has a right, not everyone is necessarily under 41

an obligation to do whatever will promote the interest on which it is based.”

Some rights are held against

“the world at large, i.e. against all persons or against all with certain speci ed exceptions.” Others are held against certain persons “in virtue of a special relation they have to the right-holder.” According to Raz, the reasons many rights are held against de nite people are varied. Sometimes the people in question are the only ones who can satisfy the interest in question. In other cases though many can satisfy the interest, only some are actually under a duty to do so. Contractual rights are an example of the rst type of case: “since contractual rights are based on an interest in being able to create special relations, they give rise to rights against other parties to the agreement as they are the only ones who can satisfy that 42

interest on that occasion.”

Not surprisingly, then, to have a right against certain persons as Raz understands this is to have an interest that those persons are under a duty to satisfy. This is not, in and of itself, to have a demand-right against these persons. Nor, as argued earlier, is it to have something that, in and of itself, grounds a demand-right against them. Nothing that I have argued here suggests that one with a Razian right cannot at the same time have a demand-right with the same object. The central point at issue is whether or not one’s having a Razian right is itself su

cient to ground such a right. My proposal is that the answer is negative.

Relatedly, I am not denying that it would be a good thing overall if one with a Razian right had a demandright with the same object. This is not something on which I shall attempt to pronounce. Generally speaking, however, I see no obvious way to derive “p” from “It would be a good thing overall if p.” More p. 93

speci cally, I see no obvious way to derive “X has a demand-right to Y’s phi-ing”

from “It would be a

good thing if X had a demand-right to Y’s phi-ing.” If there is no such way, and if it would be a good thing

overall if one with a Razian right had a demand-right with the same object, the need to understand the source or sources of demand-rights will be all the more compelling. Raz says at one point that a promisee may waive his right under the promise and hence terminate the duty 43

of the promisor.

He does not say that the promisee’s having a right against the promisor is wholly or partly

a matter of the promisee’s being in a position to waive or terminate the duty of the promisor. Some theorists, often dubbed “will” or “choice” theorists, do say something like this. Their position will be discussed shortly.

5.3 Another type of interest theory Many rights theorists have adopted a position on the directionality of duties that appeals to interests, though not in quite the same way that Raz appeals to them. Raz says, roughly, that a person, X, has a right if an interest of X’s is su cient to ground a duty in some other person Y. He does not say that for X to have a right is for Y to have a duty so grounded. On the contrary, he denies this equivalence. An alternative position 44

is to accept it, or something similar.

The points just made in relation to Raz’s account apply to such positions also. Indeed, in discussing Raz I focused on the case in which one person has a duty which is grounded in another’s interests. An “interest” account of directed duties may be appropriate, given one’s purposes. Such an account, however, is not an account of something equivalent to a demand-right—the matter of current concern. I recommend, then, the following general conclusion on interest theories of the kind now under discussion: X’s having a demand-right against Y is not a matter of Y’s duty being grounded in interests of X. More precisely, if Y’s duty is grounded in interests of X, that is neither equivalent to nor su

cient for X’s having a

demand-right to performance.

6. Moral Status Theories Some authors suggest something like the following: claim-holders—in the moral realm at least—are such simply because they are, in Raz’s terms, ultimately valuable beings. Indeed, their value is such that others p. 94

are under a duty to treat them in a particular positive way. Thus Donald Regan, discussing the case of animal rights, invokes the equal “independent inherent value” of both humans and certain nonhuman 45

animals.

Frances Kamm has explicitly preferred this type of account of rights—what I shall call a moral status theory 46

—to Raz’s interest account.

She makes important criticisms of Raz’s account. What I shall call moral

status accounts, however, are no better placed than it is to explain how demand-rights are possible. Suppose that morality has imposed a particular duty on Cal, on account of Rose’s having ultimate value as a human being, or, in short, on account of her moral status. This does not seem to imply that Rose has the standing to demand of Cal that he ful ll the duty in question. In other words, if Rose purports to demand of Cal that he ful ll the duty, and he questions her standing actually to demand it of him, it is not clear that she has a satisfactory answer. In particular, should she say “Morality has imposed this duty on you on account of my moral status” it seems he might reasonably answer: “I agree, but it is hard to see how that explanation of the duty gives you the standing to demand that I ful ll the duty.” There are duty-plus views of rights against persons which appeal neither to the interests of the supposed right-holder nor to any other facts about the grounds of the duty. I consider the most prominent theory of

this type in section 7.

7. Choice Theory and Directionality In arriving at my account of directed duties as equivalent to demand-rights I appealed to points made in Hart’s article “Are There any Natural Rights?” Primarily on the basis of another article written some years later, Hart has been seen as the representative of a position on directed duties that constitutes the classic 47

opposition to interest theories, broadly construed.

This position, of which there are various versions, is 48

often referred to as the choice theory. I adopt that label here. p. 95

Like the versions of the interest theory just discussed, this position construes a duty toward X as a plain duty, legal or moral, that bears a speci ed relation to X. In this case it is not a matter of X’s interest grounding the duty, or his being its intended bene ciary, or something along these lines. Nor is there any appeal to X’s ultimate value. Rather, X has a certain measure of control over the duty. Indeed, Hart’s and any similar theory might reasonably be referred to as the “control” theory of rights—the control in question being exercised according to the right-holder’s choice. Hart’s paper has to do speci cally with legal rights. Harking back to Bentham, he proposes substituting “for the utilitarian idea of bene t, as a de ning feature of a right correlative to obligation, the individual’s legal 49

powers of control, full or partial, over that obligation”.

Though in the earlier paper Hart emphasized a

distinction between obligations and duties, in the present discussion he seems to move smoothly between the two terms without intending a distinction between them. In his most expansive explanation of the mentioned powers of control Hart writes: The fullest measure of control comprises three distinguishable elements: (i) the right holder may waive or extinguish the duty or keep it in existence; (ii) after breach or threatened breach of a duty he may leave it “unenforced” or may “enforce” it by suing for compensation or, in certain cases, for an injunction or mandatory order to restrain the continued or further breach of the duty; (iii) 50

he may waive or extinguish the duty to pay compensation to which breach gives rise.

Ultimately, Hart rejects his choice theory as a theory of legal rights generally, since he believes that it does not fully account for the way in which the language of rights is employed. His concern, perhaps impressed upon him by others, is consonant with the standard aim of contemporary rights theory noted above: a desire to have one’s account of rights or claims in the thin sense t all of a canonical list of such rights. For present purposes, there is no need to follow the details of Hart’s discussion on this question. It is, however, important to note that he does not in this paper presume that all legal rights can be subsumed under his choice theory. He sees the proper sphere of this theory—as of the bene t theory of Bentham—as 51

“the rights of citizen against citizen; that is of rights under the ‘ordinary’ law.” p. 96

I return now to Hart’s discussion of the three elements constituting the fullest measure of control by a 52

potential right-holder. These elements are, Hart says, “legal powers…over a correlative obligation.”

The reference to the obligation as “correlative” may give one pause if one is thinking of correlativity as Hohfeldian equivalence. How could a power that is equivalent to an obligation be a power over that obligation? I take it that what Hart means to say here is this: if Y has an obligation (or duty) to phi, that obligation is correlative (and equivalent) to a right in X if and only if X has one or more of the speci ed powers over Y’s obligation. Then X has a right against Y to Y’s phi-ing and Y has an obligation to X to phi.

Another issue for present purposes is Hart’s focus on legal rights qua components of a given legal system. In endowing individuals with rights, the law “recognizes or gives them a place or locus standi” in relation to 53

the law.

More precisely, it gives them the listed powers against one another.

In relation to demand-rights, the most closely-related of Hart’s “powers of control” seems to be the power of “enforcement.” More particularly, it is one of the powers that constitute this power: the power to sue for an injunction or mandatory order to restrain the continued or further breach of the obligation in question. Though analogous to it, this legal power may seem to be a long, legal way from the standing to demand an action of the sort a promisee has. For one thing, there is no clear analogue of suing for an injunction or 54

mandatory order in that case. One simply demands of the promisor that he acts as promised.

I shall, then, consider a non-legal version of Hart’s choice theory. More precisely, I shall consider what might be said, along similar lines, of a right correlative to a moral obligation or (as I shall now say) duty. I focus on the second measure of control in Hart’s list, now construed as—in broad terms—a moral power to 55

enforce the duty in question.

We need to know what a moral power to enforce a moral duty amounts to. Suppose it is said to be or include p. 97

the moral power-holder’s standing to demand

ful llment of the moral duty. Then whatever else is true

of it, this version of Hart’s choice theory cannot help us understand how one comes by the standing to demand some action. It presupposes that one can come by that standing, and has it when one has the moral power to enforce a moral duty. The only version of Hart’s choice theory that can help with the demand-right problem needs to describe a situation such that we can see how the standing to demand the relevant action arises in that situation. It should not simply presuppose that the relevant person has such standing. I shall not here attempt to review a range of possibilities. One may su

ce.

Suppose that according to the theory one has a moral power to enforce a moral duty if one is morally justi ed in putting pressure on the duty-holder to perform the duty, should it seem that he will not do so otherwise. It is understood that such pressure may include uttering imperatives in a forceful manner, to the point of at least purporting to demand performance of the action. According to the theory, the duty of the duty-holder is then, by de nition, directed to the person with that moral power. These points are ne as stipulations. That said, they do not seem to help with the demand-right problem. For one can be justi ed in putting pressure on a duty-holder to ful ll his duty without having the standing to demand anything of him. Without pursuing the matter further here, it seems that the situation described by the moral analogue of Hart’s choice theory of legal rights will either involve a demand-right by de nition or be insu

56

cient to ground such a right.

8. Demand-Rights and Contemporary Rights Theory One with a demand-right against another person has the standing to demand of that person that he perform a certain action. How are such rights possible? In other terms, how is it possible for someone to acquire such a right? That is the demand-right problem. In this chapter I examined the relationship to demand-rights of the most prominent contemporary rights theories. Perhaps a solution to the demand-right problem could be found there. If not, that would be worth showing. Otherwise a given theorist, among others, may simply assume that when there is a right according to his theory, the right-holder has the standing to demand the object of the right.

I concluded that, with respect to what we nd in Thomson, Raz, and interest theories generally, the conditions on rights—or more speci cally claims—o ered or suggested do not su p. 98

ce for the right-holder

to have the standing to demand the object of the right. With respect to Hart’s choice theory, in a non-legal version, either it presupposes this standing, or, once again, its conditions do not su

57

ce to provide it.

I observed that in pursuit of a better understanding of Hohfeldian claims—understood only to be the equivalents of duties directed in a yet to be determined sense—rights theories generally adopt both a particular aim and a particular method. Neither one appears to be conducive to nding the source of Hohfeldian claims understood as demand-rights. The standard aim of covering a relatively wide range of canonical claim ascriptions may well lead to a set of conditions on claims too general for the purpose. In that case, though some of those with claims according to the theory may have demand-rights, the conditions posited by the theory will not su

ce to ground such

rights in the claim-holder. As to the standard assumption that in developing an account of directed duties one should start with plain duties, this may well not be the right approach to the equivalents of Hohfeldian claims. For it is at best not 58

obvious that a plain duty is any part of a directed duty.

Thus, though the duty-plus concept of a directed

duty articulated within a given theory may relate the supposed claim-holder to his addressee’s duty in some way—as do both Raz’s and Hart’s concepts, among others—it may well not be the right concept for the purpose. Another assumption of contemporary rights theory that is open to question is the two-realm assumption. From what we have seen so far it is hard to ground demand-rights in moral considerations such as the value or interests of persons, and legal rights of the sort described by Hart have a special, legal character, making them analogues of demand-rights rather than demand-rights proper. More will be said about morality, the law, and demand-rights later in this book. Su

ce it to note, for now, that there may be a third realm of

rights that is not generally acknowledged in the discussions of rights-theorists, a realm in which demandrights reside. Before attempting to decide this question it would be good to nd at least one source for demand-rights. That will be my task in the next part of the book. Once it is completed, I will consider the two-realm 59

assumption in light of the result.

From the point of view of the demand-right problem, the main conclusion of this chapter is negative. The most prominent contemporary accounts of claim-rights do not help us understand how demand-rights are possible. Whether or not this conclusion fazes the authors in question, one must go beyond their theories in order to make progress on this problem.

Notes 1 2 3 4

5

Cf. e.g. Raz (1984a). See Rawls (1971) on “reflective equilibrium.” Thomson (1990: 2). Infants and other “incompetents” (to use a common if unpleasant technical term) are generally included among the claimholders, a fact that has occasioned a tendency to dismiss one central class of rights theories (those in the spirit of Hartʼs theory, discussed at section 5.7 below). The range of potential addressees of a claim is not so o en discussed. Insofar as a claimʼs addressees are considered to be subject to a plain duty they are likely to be thought of first and foremost as agents capable of complying with such a duty. Thomson argues that the addressee of a right may in some circumstances be justified in not providing the object of the right to the right-holder. As she puts it, rights are not “absolute.” One who takes this position may be happy to characterize

6 7 8 9 10 11 12

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22

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25 26

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32 33

the right in question without qualification as in Thomsonʼs example: I have a right against you that you not break my nose, period. This allows that you may be justified in breaking my nose on some occasion, in which case, in Thomsonʼs terms, you infringe but do not violate my right. More fully, I take the existence of a collective judgment to entail specific demand-rights in the parties. I say more about the character of such collective phenomena in chapter ten. See, among many others, Sreenivasan (2010); May (2015). In spite of her o icial position one can usefully explore Thomsonʼs discussion as a whole for possible answers to this question. See sec. 5.5 of this chapter. Feinberg (1970: 244). See ch. 3, sec. 2; also ch. 4, sec. 5. McCloskey (1965: 122n11; also 118) observes that, at the time of his writing, people o en construed a “duty to” someone as a duty concerning that person. See e.g. Esper and Keating (2008: 1250) citing common ground with Goldberg and Zipursky (1998): “Relational duties are duties that are owed to other people; they prescribe or prohibit various ways of treating other people.” McCloskey (1965: 122n11). On duties of gratitude see e.g. Card (1988: 120). What Berger (1975: 300) says is particularly apt in the present context: “While we have no hesitation in saying there is an obligation to show gratitude for help or for a gi , we do not feel at ease in saying it is something owed the grantor in the sense that he has a right to demand it.” I take it that by “obligation” he has in mind a plain obligation or duty. Previously discussed in ch. 3, sec. 3. For her predominant account of claims see e.g. Thomson (1990: 200–2) in which she summarizes her position. I discuss some possible responses to this point in chs 11 and 12. Section 3 of this chapter. Thomson (1990: 108) gives the example of a threat of legal action—“Deliver those widgets or Iʼll sue!,” fiercely uttered. I take her point not to be limited to such cases. Thomson (1990: 92). This comes up in discussion of an example involving promising. The index to Thomson (1990) cites several pages under “release,” but I have not been able to find an account of release there. The main points are made at pp. 92–5. See ch. 7, sec. 2.5 below for an analogous interpretation of the “consent” condition in Scanlonʼs Principle F, and related discussion. See Thomson (1990: 92). Thomson refers in a number of places to the “moral status” of a right-holder, without much discussion. In section 8 of this chapter I consider an account such that the duties correlative to claims are grounded in the right-holderʼs moral worth or status. For instance, the choice theory has been held to have di iculties accommodating the rights of “incompetents” and inalienable rights. See e.g. MacCormick (1977). The interest theory has been challenged by reference to the possibility of third-party beneficiaries who are not right-holders (Hart 1955: 180); see sec. 5.1. For an extended discussion see e.g. Sreenivasan (2005) who attempts to break the deadlock between these theories by o ering a “hybrid” account. For criticism of his theory see e.g. Kramer and Steiner (2007). See in particular Raz (1984a) and Raz (1986). Those influenced by Razʼs theory include Arneson (2001) and Shue (1996). Darwall (2006) seems to rely on it in a crucial argument, briefly discussed in chapter eleven, section 4.4, this volume. Raz says that his definition of a right “draws on several elements of analyses of rights which stem from Benthamʼs beneficiary theory” (1984: 195n3). Among contemporary theorists Raz cites Dworkin (1977), MacCormick (1977), and, especially, Campbell (1979ms). Pertinent discussions in the literature include Lyons (1969), Hart (1982: ch. 7), Sumner (1987: ch. 4.2). Thus Lyons (1969: 173n2): “Bentham restricted his theory to legal rights, and in his attack on natural rights implies that there could not be any extra-legal rights. His reasons for holding the latter view seem largely independent of his analysis of rights in terms of beneficial obligations.” Lyons (1969) does not himself invoke a promise, as does Hart (1955: 180). Hartʼs own example has an extraneous feature that may confuse the issue. Both of the quoted phrases occur in Lyons (1969: 176). Raz (1984a). Raz (1984a: 195). Raz (1984a: 195); see also Raz (1986: 166). Raz (1986: 183) o ers a related account. For a comparison of the two accounts in Raz (1986) see Kamm (2002a). The quoted sentence reflects Razʼs use of a lower case “x.” Reporting his points in the text I revert to my own use of the upper case. Raz (1984a: 195). Note that Razʼs definition appears not to allow for rights against the self.

34 35 36 37 38 39

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56 57 58 59

For more on the idea that I have a particular demand-right “morally speaking” see ch. 12, sec. 7. In ch. 12, secs. 1–6. Raz (1984a: 203). Raz (1984a: 203). Raz (1984a: 203). Promisees may accrue rights of di erent kinds. I take it that we are talking here of the rights most closely associated with promises and, indeed, as Raz suggests, always so associated. For extended discussion of a promiseeʼs rights see chs 7, 8, and 9 of this volume. Raz (1984a: 209–10). Raz (1984a: 209). Raz (1984a: 210). Raz (1984a: 203). For discussion see ch. 9, esp. sec. 8, below. See e.g. the generic version of the interest theory in Sreenivasan (2005). Regan (1983). Kamm (2002a). In several places Thomson (1990: e.g. 373) refers to the “moral status” of the right-holder. Sometimes it seems that her idea is not that one has a claim by virtue of oneʼs moral status qua valuable being but rather that having a claim is itself having a (valuable) moral status—by virtue of what the claimʼs addressee ought to do. Entitled, simply, “Legal Rights” the essay constitutes chapter seven of Hartʼs “Essays on Bentham” (1982). He describes it as a version of his “Bentham on Legal Rights” (1962), revised following criticism from David Lyons (1969). I shall not pursue a possible distinction between “choice” theories and “will” theories. Hart (1982) refers to the debate between interest and “will” theorists; he emphasizes what he refers to as “choice” in his own discussion, but does not disavow the idea that his own is a will theory. A prominent choice theorist in the tradition of Hart is Steiner (1994). Hart (1982: 188). Hart (1982: 183–4); he also refers to the “civil” law in this connection. Hart (1982: 190). Hart (1982: 184). Hartʼs understanding of a “power” here is not, apparently, the standard Hohfeldian understanding. It is, I take it, more intuitive. See the discussion of powers in ch. 1. Hart (1982: 183). For further discussion of demand-rights and the law see ch. 13. Another Hartian power that might be thought pertinent is the power to “waive or extinguish” a given duty. As far as the potentially stronger notion of “extinguishing” goes, this is much like Thomsonʼs power of “release” as parsed in my discussion of Thomson, sec. 4.3 of this chapter. It amounts to the power to—in e ect—bring about the demise of the obligation by saying to the obligated person “it is fine with me if you donʼt fulfill the obligation.” This did not seem to engage the power-holderʼs standing to demand the fulfillment of the obligation, as opposed to the power to keep the obligation in place (by not releasing the right-holder). I therefore set it aside here. Cf. Thompson (2004: 350–1). This applies also to the reference to “enforcement” in Wenar (2013a). See ch. 3. See esp. ch. 8 for the source I uncover; see ch. 11, sec. 1.1, on whether or not it falls within the moral realm.

Rights and Demands: A Foundational Inquiry Margaret Gilbert https://doi.org/10.1093/oso/9780198813767.001.0001 Published: 2018

Online ISBN: 9780191851506

Print ISBN: 9780198813767

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PART FRONT MATTER

Part front matter for Part II The Problem Solved  Published: April 2018

Subject: Social and Political Philosophy, Moral Philosophy Collection: Oxford Scholarship Online

This part of the book provides a solution to the demand-right problem. It shows how demand-rights are possible. In terms that are explained, it argues, centrally, that the parties to any joint commitment have demand-rights against one another to conformity to the commitment. Joint commitment is introduced in the context of an extensive discussion of agreements and promises, generally acknowledged to be paradigmatic sources of demand-rights. If we can explain how agreements and promises ground demand-rights, we not only have a solution to the general demand-right problem. We also have solutions to two special demand-right problems