Rethinking Rights (and Freedom): A Series

I’ve decided to start what I envision as an ongoing series of posts here at PoT, called “Rethinking Rights.” A couple of posts have already implicitly discussed the topic: Though I focused on the “traffic ethics” angle at the time, part of the point of last summer’s series on honking at a dangerous intersection was to re-think how the concept of rights applies to noise-based nuisances. Rethinking rights is also related to Gordon Barnes’s post on the freedom fetish, and to my posts on self-defense and local government, among others. Though I meant it as a joke, my recent post on noisy neighbors was arguably on the same topic. There are probably some others as well. Since rights and freedom/liberty are on some accounts closely related concepts, feel free to regard the series as in principle extending to the topic of freedom/liberty as well. (I just happen to know a PoT reader chomping at the bit to become a PoT blogger and write on that topic.)

While any authorized PoT blogger can contribute to the series (and any approved commentator can comment on it), my own personal motivation for rethinking rights is that I find the issue overridingly important, but find myself dissatisfied by the conceptions of rights I’ve encountered in the philosophical literature and in ordinary discourse. The Objectivist conception of rights strikes me as either too narrow or ultimately indeterminate. The libertarian conception is on some accounts even narrower, but also problematically deontic. (Yes, I regard a commitment to deontology as a problem.) The standard left-liberal conception, which (on some accounts) includes a strong version of positive rights, and (on others) includes “collective” rights to ethno-national self-determination, strikes me as too broad, and problematically collectivist. (Yes, “collectivism” is a problem, too.) More radical conceptions of rights, which confer rights on embryos, fetuses, non-human animals, and non-living things, strike me as much too broad. Conceptions of rights drawn in positivist fashion directly from blackletter law strike me as arbitrary and insufficiently focused on moral essentials.

And yet I don’t want to let go of rights-talk, either: I don’t, for instance, buy the Benthamite, Burkean, Marxist, or MacIntyrean rejections of the concept of rights. I don’t even buy communitarian claims about the supposed excesses of rights talk. I’m convinced that there’s an account of rights “out there” that avoids the pitfalls of the existing accounts while bypassing the objections of rights-skeptics. It just needs to be worked out in an explicit way. (On PoT.)

My aim in the series (which need not be the aim of any other contributor) is to (begin to) work out a conception of rights that’s broader and more determinate than the Objectivist/libertarian conception, narrower than the left-liberal conception, and more focused on specifically moral essentials than the sort of account you’d get by perusing a standard textbook of criminal, tort, or business law. A further constraint on the theory is that it has to cohere with a recognizably Aristotelian conception of human flourishing and moral virtue. An aspiration of the series is to think about topics, or spheres of life, that go relatively (or completely) undiscussed in the Anglo-American analytic literature.

I don’t imagine that I can work out a theory of rights in a series of blog posts, even a few years’ worth of them. My aim is a bit more modest: to rebut some defective ideas; to sketch some promising new lines of thought; to uncover previously hidden areas of inquiry worth probing; and so on.

I have a first post in mind, which I’ll post sometime this weekend–most likely after I announce the publication of the new issue of Reason Papers (Spring 2015, volume 37.1).

13 thoughts on “Rethinking Rights (and Freedom): A Series

    • Thanks for the comment. I’m very interested in exploitation, and would like to work my views out on it, possibly here, but I don’t think it bears a clear or direct relationship to the issue of rights, at least as I conceive of it.

      Take two people, Smith and Jones. As I see it, Smith exploits Jones when Smith interacts with Jones for Smith’s intended benefit, but does so essentially (or fundamentally) by subverting (what Smith takes to be) Jones’s well-being. Typically Smith looks to take advantage of Jones’s perceived weaknesses. (I say “perceived” because a failed attempt at exploitation is still exploitation; Smith might underestimate Jones’s resources or resilience and fail in his attempt.)

      It’s a tricky question whether justified self-defense counts as exploitation by this definition, but if it does, I would say that some exploitation is justified (exploitation in justified self-defense).

      Now as for exploitation’s relation to rights, I’d say that exploitation straddles the boundary of rights-violative and non-rights-violative behavior. In other words, some exploitation is rights-violative, some not. Example: ordinary theft is (generally) rights-violative; verbal bullying is generally not. Conversely, some rights-violations are exploitative (e.g., slavery), some are not. To get a non-exploitative rights violation, find a rights-violation not motivated by the perpetrator’s intending to benefit himself by the act. Example: suicide-by-cop. The threat involved violates the rights of police officers, but the motivation is self-sacrificial, hence not exploitative. Or for a slightly different example: self-sacrificial secular terrorism (where there is no hope of an afterlife). Etc.

      Applying all this to the domain of economic transactions (which is what your comment seems to be hinting at) is tricky. But I would just say that on my account some exploitation in the Marxist sense will turn out to be exploitation in mine, but some will not. With respect to the Marxist-Khawajist overlap (for lack of a better way of putting it), some of it will be rights violative and some not. In other words, it’s a long story.

      And you thought I was being ambitious about rights!

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  1. Here, obviously enough, is a good place to start:

    Wenar, Leif, “Rights”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), URL =

    In particular, the Hohfeldian analytical framework (HAF) for thinking about rights is crucial (outlined in section 2.1 of the above SEP entry).

    (I have an addition to, or perhaps a change in, Wenar’s formulation and some ideas about some explanatorily deeper elements that might explain the broadly Hohfeldian features. And an application of this beefed-up version of the framework to both the rules of social interaction generally (morality), the rules specific to the state (politics), and to how the two systems can be compatibly rendered (in particular with regard to the moral obligations against using force and the state privilege-right to coercively enforce just rules). This is more in the way of what good justifications would look like content-wise (what rights do we have and of what kind?) than a provision of such a justification. I also have some things to say about the privilege-right of the state to make (the right sorts of) demands and the normative power of the state to generate obligations by making these demands. Again, the focus is how a good justification would go, not the provision of such. I’ll try to gather some or all of these notes together into something coherent and see if Irfan will let me post it…

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    • Both Wenar and Hohfeld are good places to start, but that raises an issue I had wanted to discuss in the original post and happened to omit.

      There are at least two fundamentally different ways of coming at this issue, one relatively top-down and another relatively bottom-up. By “top-down” I mean that you start with arguments about theoretical principles, settle them at the theoretical level, then apply them to cases. By “bottom-up” I mean that you start with cases, immerse yourself in the case, then ask about the sorts of principles necessary to clarify the case at hand. In my view, most theoretical inquiries require both approaches. (I also think that no matter what you do, you face some version of the problem of the criterion, but let me not over-complicate things.)

      Anyway, I intend to do a lot of bottom-up sorts of posting very different from what Wenar does in that article. The reason for that is that I think the analytic literature (taking SEP to be representative of it) has an unwittingly narrow scope. Wenar opens the article by acknowledging variety and complexity, but I think that a theorist has to do more than merely acknowledge in a pro forma way and move on.

      One largely ignored task in the “standard” analytic literature is that of doing meta-level analyses of extended case studies. I regard this as the basic strength of the Marxist and post-colonialist literatures (not on rights, obviously; on other topics). What I admire about a Marxist like Alan Gilbert or a post-colonialist like Robert Young, is the relative absence of zany, rationalistic “thought experiments” from their writing. (Same with Michael Walzer.) These are writers steeped in history, and a lot of what they do is to lead you through historiography with a theoretician’s eye. I don’t agree with the theorizing, but I regard the task they’re engaged in as crucial. Put crudely: Political philosophy needs to get out more.

      I think of it this way. What a rights theorist is trying to do is to produce a theory of rights for human beings qua human. That covers an extraordinarily broad range, well beyond the scope of current discussion. It includes Cro-Magnon hunting parties, contemporary Manhattanites going clubbing on a Friday night, feudal serfs farming in medieval France, Palestinians under Israeli occupation, Kenyan migrants en route to South Africa, nineteenth century Native Americans in conflict with the US Government, fourth century Greek Athenians doing their thing, 21st century Mumbai-based entrepreneurs selling stuff, and the readers of PoT reading PoT. The question is: what are the rights that all of these people have, doing all the things that they do?

      I may be wrong, but the analytic literature gives lip service to that complexity without really dealing with it. (Just look at the examples that recur over and over in the literature.) I can say with more confidence that the libertarian literature doesn’t deal adequately with it, and the Objectivist “literature” consists of ideological delusions on the subject.

      All this to say that my way of coming at things may disappoint your expectations. It may not look like Wenar’s article or like anything in his bibliography.

      I’ll send you an invitation to blog at PoT. Once you get it, you’ll have the right to blog here alongside the rest of us here on Mt Olympus.

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  2. I look forward to being the grumpy rights cynic in the corner. I’ve come to think of myself as inclined to reductionism about rights. It’s not that there are no such things or that the whole concept is at best a distorted and misleading way of talking about things that we’d be better off talking about in other terms (MacIntyre, communitarians), but it’s also not that rights-language is an innocuous way of talking about what is just (Fred Miller’s Aristotle) or that rights are some distinct sort of normative claim that even Aristotelian eudaimonists should recognize (Long, Rasmussen & Den Uyl), let alone some sort side-constraints wholly independent of eudaimonist rationales (Nozickian and other sorts of libertarian). We can make true claims about rights and duties; it’s just that when properly understood they turn out to be nothing but claims that we should or shouldn’t treat certain classes of people in certain ways, and there is nothing more than that to a true claim about rights; rights do no explanatory or justificatory work, but stand in need of explanation, and are at best a convenient way of talking about certain aspects of justice without pleonastic circumlocution. I’m sympathetic to the communitarians to this extent: the failure to recognize that rights are not irreducible tends to distort moral and political discourse and to render it absolutist where it need not be, and we’d all be a lot better off if the language of rights were to take a less prominent place in our discourse.

    We’ll see whether those convictions survive the dialectic!

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    • I don’t think that’s a grumpy or cynical view. It’s very close to the view I myself hold (and do I seem grumpy or cynical to you? Come now.) I think part of the issue is conceptual: what counts as a conceptual reduction? I myself certainly don’t hold a view like Mackie’s, which takes rights as normative primitives or normatively foundational. So I agree that rights stand in need of justification and explanation. Mackie holds a strong sort of anti-reductionism. We need a taxonomy of the weaker sorts.

      I would be content with the view that rights are a way of talking about justice without pleonastic circumlocution, and I agree to some extent that over-emphasis on some rights distorts moral language, though I wouldn’t say that the language of rights ought to be less prominent. I think it needs to be put in its place, but where it has a place, rights talk ought to be more prominent than it is. I am not entirely sure that counts as a “reduction,” but it might, and if so, I’d be content with reductionism.

      That said, I think there is more to rights than the preceding reductionist picture suggests, and I think Rand got this part of the picture right (i.e., correct). In her essay “Man’s Rights,” she says this:

      “Rights” are a moral concept–the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others–the concept that preserves and protects individual morality in a social context–the link between the moral code of a man and the legal code of a society, between ethics and politics. (Capitalism, p. 367).

      Unfortunately, the rest of the essay consists of a lot of bold-ass assertions and right-wing rhetoric that never quite explicates the claim in the preceding passage. But I think the passage is interesting. Here is my gloss on it. The idea is that we have an account of justice, or even of the-virtues-as-practiced-in-relation-to-others. In one sense, if we were all virtuous, and were casuistically omniscient, that’s all we would need. We would be just, full stop. No need for “rights.”

      But we’re neither all (always) virtuous nor casuistically omiscient. Some people are unjust, and sometimes even the virtuous non-culpably disagree about what justice requires here. Those phenomena give rise to disputes and conflict. Part of that conflict is adjudicated by the claims of justice without the need for invoking the rule of law,* but part of justice must be codified in law. Absent the rule of law, justice could not fully be done in those contexts. I take it that Rand’s point is that focusing on those contexts, “rights” plays a crucial boundary-delimiting function. The law legislates, adjudcates, etc. in the name of justice, but its doing so presupposes boundaries between those it governs. We need some way of marking out mine and thine.

      Among the many reasons we need it: the law cannot, in the name of justice, reach into and take away the autonomy necessary for the self-initiated dimension of a moral agent’s action. It can reach in and interfere where there is the relevant sort of boundary-crossing, not just to rectify any and every injustice as such. So I take rights to be legal boundary markers. The need is obvious in the case of the conventions of property rights, but I think it’s necessary across the board. For example, the law of assault doesn’t just tell you not to mistreat other people. It tells you something much more specific: when you’ve crossed a boundary that counts as a force-initiation {that invites a retaliation in kind}.** That sort of line-drawing is the distinctive function of rights. Whether that is “irreducible” in the relevant sense, I don’t know.

      Incidentally if that (boundary-marking) is the rationale for rights, it’s a mistake to insist that every analysis of “rights” begin with an account of Hohfeld’s incidents (as per the Wenar article, and Fred Miller’s analysis of rights in NJR). The Hohfeldian analysis may ultimately prove important to an analysis of rights, but it’s not the starting point of an analysis. The starting point is the rationale for having a concept such as “rights” in the first place. One of the problems I’ve long had with Miller’s account in NJR is that it leapfrogs over the need for giving a rationale for rights (common to all and only cases of “rights”) and starts with Hohfeld: “In making a fresh start on the question of whether there are any rights in Aristotle, this section begins with…” (NJR, p. 143), an account of Hohfeld. I remember arguing with FM then (in the 90s) that I didn’t think that was the right way to make a fresh start. I don’t have it here, but I seem to remember that John Cooper’s commentary on NJR in the Review of Metaphysics symposium (“Justice and Rights in Aristotle’s Politics“) correctly raises this problem.

      By the way, I still owe you a response on atomism, which I’ll do here rather than at Roderick’s blog (when I get to it). Incidentally, take a look at Wenar’s use of the “atom” metaphor in the article Michael cited.

      *But even this part, I suspect, requires appeal to institutional rules of some kind, and I suspect that these rules will involve rights-like features of the sort I describe here.

      **Bracketed portion added after the initial posting.

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      • In the sense I have in mind, an account is reductionistic if and only if it enables us to say everything we need to say about rights without using the concept of rights. That’s not to say that it might not be useful to speak in terms of rights in certain contexts, just that there is nothing more to rights than what we get in the account that makes no use of that notion. In the same way, an account of the mental would be reductionistic if it enabled us to say everything we need to say about the mental without using any inherently mental concepts. In that case, I think no reductionist account can be successful, because the mental inherently involves features — intentionality, most importantly, but consciousness as well, though I take it to be secondary — that can’t be reduced to the physical (conceived, of course, in a way that excludes intentionality and consciousness as such). But I don’t think it’s impossible in principle to explain the mental, in a sense, by appeal to the physical (not that anyone has done this so far), only that any such explanation could show that the mental is nothing but the physical. So too with rights: one need not deny that rights can be explained or justified at all in order to count as a non-reductionist in my sense; one simply needs to maintain that the correct explanation will not show rights to be nothing but something else. I take it that to maintain that rights cannot be explained at all is about as plausible as to maintain that the mental cannot be explained at all (i.e., not crazy, but a last resort at best). I also take it that to maintain that when we talk about rights we are not talking about anything at all is about as plausible as maintaining that when we talk about the mental we are not talking about anything at all (i.e., about as implausible as anything could get, and dubiously coherent to boot). So, to sum up: I’m not sure your line of thinking points in a reductive direction; my inclinations tend toward a view that does not eliminate the concept of rights, but does regard them as susceptible of explanation without remainder in terms of more fundamental concepts. To adapt Fodor: if rights are real, they must really be something else.

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        • Let me hold off on a response to that. I have a lot to say, but also a lot to think through–and a conference to run.

          I’ll definitely be addressing reduction-type issues in this series, but some of what I discuss will just presupposes rights and discuss other things, e.g., issues in casuistry (is this scenario rights violative?), and in taxonomy (what counts as a “right to health care”?). I do at some point want to use the blog to read through Tara Smith’s Moral Rights and Political Freedom, and I suspect reductionist-type issues will come up at that point. I’d intended to write a follow-up review of Smith’s book for Reason Papers twenty years after my first one (published in 1996), which I don’t like and would finally like to disown. And hey, if I own it, then I have the right to disown it, don’t I? Moral bedrock.

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  3. From the looks of things, it seems I’ll be the lone defender of (modest) deontology and a “broad” conception of rights.

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    • That depends on whether or not Gordon chimes in. We could do a tag team, me and David against you and Gordon. That’s assuming that David and I don’t fight one another. Meanwhile, Michael’s so eclectic you never know what he’s going to to say. You only know that he’s not going to agree with you, whatever you say.

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