Irfan has been threatening a series of posts on rights (“Rethinking Rights” was the title for the series, I believe) for awhile now. I thought I’d start things out on that topic by saying a few things about the standard Hohfeldian formal characterization of rights. This is pretty much the place to start in thinking seriously about what rights are and what rights we have.
According to Leif Wenar’s Stanford Encyclopedia of Philosophy (SEP) entry on rights, here are the four more basic elements that compose rights on the Hohfeldian characterization (the “Hohfeldian incidents”):
- A has a PRIVILEGE to φ if and only if A has no duty not to φ
- A has a CLAIM that B φ if and only if B has a duty to A to φ
- A has a POWER if and only if A has the ability within a set of rules to alter her own or another’s Hohfeldian incidents
- B has an IMMUNITY if and only if A lacks the ability within a set of rules to alter B‘s Hohfeldian incidents
For example, my legal property right in the computer that I am typing on right now consists, in part, in my having the legal privilege to use and dispose of it “as I see fit” (but in the ways that do not violate any of my legal obligations), a legal claim against others that they not similarly use and dispose of the computer and a legal power to waive this claim against particular people (as when I give you permission to use the computer to check your email).
Here are some thoughts about this account (or that were prompted by revisiting it).
(1) Features of sets of interpersonal obligations. Privileges, claims, powers, and immunities are specified or characterized in terms of patterns of duties or (deontic) rules across members of a group or population of agents. Importantly, the relevant obligations, or at least the most central ones that give rise to normative claims, are distinctively interpersonal. They have the general form of X is obligated to Y to perform PHI (and the corresponding Y has a claim against X that X perform PHI). Their form is not simply X is obligated to perform PHI. (Wenar’s formulation of privileges allows for some of the obligations in the relevant set of obligations to be purely personal or monadic (as normative epistemic requirements, like the requirement not to believe that p against the evidence, are). For simplicity, I’ll speak as if the set of obligations are interpersonal obligations.) Even though the characterizations of privileges, claims, powers, and immunities are biconditionals and are not necessarily meant to indicate corresponding constitutive accounts, the most plausible sort of view is that these elements, and hence rights, are something close to this: features of systems of interpersonal obligations. (Questions for later: Which kinds of sets of obligations yield rights – does any old set do? Which sets of obligations yield the sorts of freedom-protecting, dignity-protecting rights that have been championed since the Enlightenment?)
(2) What are interpersonal obligations? Unlike monadic requirements, interpersonal obligations are not plausibly analyzed solely in terms of the reasons (or some subset of the reasons) of the person who is obligated (the obligatee). (The epistemic requirement not to believe that p against the evidence plausibly comes to something like one having conclusive reason, relative to one’s epistemic reasons, not to believe that p against the evidence.) The property here clearly involves a relation of some sort to the obligator. My hypothesis is this: interpersonal obligations concern (i) the conclusive reasons of the obligatee (to comply with a rule that concerns how the obligator is to be treated) but also (ii) the strong reasons of the obligatee (to make claims – object, demand, complain – with respect to obligatee compliance, in the relevant sorts of circumstances, like when obligatee compliance is in question). Roughly, interpersonal obligations are the first thing in relation to the second, while correlative claims are the second thing in relation to the first. Unfortunately, I don’t have anything like a full analysis or account, but that is the direction that I would go in.
(3) Action-coordinating social practices, rules, obligations and some remarks about the order of explanation. In his formulation of powers and immunities, Wenar switches from speaking of duties to speaking of rules. Likewise, above, I speak of reasons to comply with rules. Whereas duties or obligations are inherently normative in the action-guiding sense (unless we put ‘putative’ or ‘conditional’ out front), rules are not. This is important because we do things like characterize the obligations and rights of a proposed or actual legal system without assuming that anyone has any reason at all to do as the system would require or obligate. We might think of the relevant (not action-guidingly normative) rules as specifying how agents, or agents in roles in a social practice, need to behave if the social practice is to go as it is supposed to (or function well). If an agent has the relevant sort of normative stake in the social practice, then she has reasons, relative to her role in the practice, to do things like comply with its rules. This plausible picture suggests that the nature of relevant social practices, how they go when they go well, and the conditions that make participation in them valuable to agents are explanatorily prior to action-guidingly normative interpersonal obligations (and reasons to make claims).
(4) Legal obligations: the promise of a familiar path to explanation. We might think of legal obligations as obligations that govern a social system that enforces its requirements via the coercive power of the state. Since legal rules are more or less designed by us, publicly codified and at least mostly valuable in an instrumental way, it is plausible that the conditions for having legal obligations (to do as the law requires) are broadly similar to the conditions for obeying the rules of chess when you are playing: you are participating in the practice and you have sufficient reason to continue to do so. Also, specifying what legal systems are, what they do for us, and how – necessary to fill in the substance of an appropriate system of government and law for a social circumstance – does not seem like a daunting empirical task.
(5) Moral obligations: from a certain sort of basic, general non-instrumental reason to specific, actionable obligations. Explaining what things have to be like, normatively and social-practice-wise, for there to be moral obligations (and hence rights) – and saying what they are specifically and substantively – is harder because the all-purpose social practice of relating to others in the moral manner is not designed by us (at least not much), not something we can get a grip on by reference to specific, codified public rules, and is not something that is valuable to us mostly in an instrumental way. It is also hard to get a perspective on moral practice because we cannot help but participate in a version of it (however badly). Specifically, it is hard to step outside of it and contrast it with other ways in which we might relate to others. (Only the most extreme sociopath genuinely treats others like trees or rocks. Most violent criminals justify their actions in some broadly moral way, as when a murder is justified by having been “disrespected” or “dishonored” by the murdered person in some putatively important way.) How, then, to start outlining what the moral way of relating to others is, what it is for it to function well, and why this matters to us in such a way that we have conclusive reason to follow moral norms?
We might begin by proposing a list of elements in our set of basic, non-instrumental reasons and motivations that would count as moral. If accurate and complete enough, such a list would tell us something about the elements of moral practice, how they work together, and what work they might do for us, thus shedding light on our instrumental reasons to be engaged in moral practice. (However, having relevant psychological, sociological, anthropological results that pass scientific muster would be perhaps even more helpful in figuring out what moral practice is, how it functions and toward what ends, etc.) Such a list would of course tell us something about the basic substance of morality as well. Most importantly for my purposes here, though, such a list can throw some light on the relationship between (a) certain of our basic non-instrumental reasons that count as moral and (b) more specific, actionable moral obligations that are tailored to circumstances (and to competing non-moral and moral reasons).
Here is my rough-and-ready (and no doubt somewhat inaccurate and incomplete) list:
(i) strong reason to refrain from needlessly harming others,
(ii) strong reason to object (demand, complain) in relevant circumstances in relation to being needlessly harmed by others,
(iii) reason to feel guilty or ashamed and make amends or do better next time when such objections are (correctly) lodged against one,
(iv) reason to be angry (and to punish the wrongdoers) when others needlessly harm each other, and
(v) reason to care about and promote the welfare of others and general social conditions of stability, peace, trust.
(I have a broadly Humean view of basic non-instrumental reasons in mind, but I have framed things here in a neutral way.)
And here, finally, is the result that interests me: if the ‘needlessly’ of [i] references all of one’s reasons, then basic and general moral reasons like this are indefinite and hence do not constitute actionable obligations. In order to figure out what our specific, actionable moral obligations are, we would need to take into account our other reasons (including both personal and telic-moral reasons that may be in tension with them). Additionally, we would probably also need to distinguish between different ways of potentially harming others and formulate actionable obligations at this level of specificity. For example, plausibly, we are morally obligated not to interfere with others enjoying the exclusive possession, use and disposal of material (and other) things needlessly. For doing so is harming them and we have non-instrumental reason not to harm others needlessly. But this is a far cry from specifying what our moral (or appropriate legal) right to the exclusive possession, use and disposal of property consist in, in the context of modern society (or for that matter in the context of several-dozen-large bands of hunter-gatherer humans 10,000 years ago). What specific instantiation of a general sort of obligation like this is warranted in such a case may be largely a function of: (i) the sorts of impacts on the rule-followers that is appropriately morally or legally tolerated in a modern society like our own and (ii) the likely impact on the telic moral ends of people tending to follow the specific instantiation of the general obligation or rule. Combined with the Hohfeldian framework, this is, I hope, a promising “starter template” for getting an accurate bead on what moral rights (and morally appropriate legal rights) are and how to specify which ones we have.
I have quite a bit more to say (some but not all of it quite so meta-ethics-y), but for now I’ll leave it at these five points.