Rethinking Rights (2): on the Hohfeldian formal characterization of rights

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.

23 thoughts on “Rethinking Rights (2): on the Hohfeldian formal characterization of rights

  1. I have two thoughts, both critical but not, I think, sufficiently strong to derail your basic project here.

    1. You write that the obligations in terms of which claims, powers, privileges, and immunities are specified “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.” It’s true that their form makes essential reference to others, so that the obligation is not simply to φ. But I don’t see that it follows that the obligation must be to the other person in any interesting sense. The essential reference to the other person might instead be understood as a part of what it is to φ. Additionally or alternatively, we might have obligations that govern our interactions with other people, but apply to particular, identifiable others only insofar as those individuals happen to be the beneficiaries of the actions. In other words, for all that the form shows, we might say not that X is obligated to Y to φ, but that X is obligated to φ to/for/with Y. It may be that your use of “X is obligated to Y” was meant to cover these cases, but I don’t think the difference between them is trivial. I find it strange, for example, to think of my obligations to drive safely and obey traffic laws as obligations to the particular, identifiable other people who are driving on the road at the same time I am. It makes more sense to think that I have a general obligation not to harm or endanger people with whom I share the road. That obligation makes essential reference to others, but not to any particular, identifiable others. By contrast, I have an obligation to my parents to support them in their old age, an obligation to my neighbor to pay him back the $5 he lent me, and so on. I don’t mean to suggest that it’s clear in every case how we should think about obligations — do I have obligations to my students, for instance, or do I have obligations to treat my students in certain ways? I dunno. What I mean instead is that there seems to be a difference between the ways obligations can involve other people. I’d insist that we shouldn’t restrict the concepts of rights to the narrow sense of obligations to a person, even if it turns out that the best way to understand rights, or the sort of rights you’re interested in here, is in those terms. My main point is just that it should be an open question to which we propose answers, not one that gets closed off by definitional fiat.

    2. I think you need to give a more refined account of the distinction between instrumental and non-instrumental reasons if it is going to be plausible that obligations in general or the obligations relevant to rights-claims have to be non-instrumental reasons. Does a reason to φ count as instrumental simply because it is of the form φing promotes/protects/respects ψ? But however you distinguish instrumental from non-instrumental reasons, I don’t see why we should think that the obligations that correlate with rights must be non-instrumental reasons. Hobbes certainly doesn’t think that they are non-instrumental reasons; the reasons he gives for recognizing and respecting rights are about as instrumental as reasons can get (viz. because this is how we can get along peacefully, and getting along peacefully is good for us regardless of almost anything else we want). Hobbes’ theory might be incomplete or even indefensible, but it doesn’t seem as though it fails simply by virtue of a sheer category error. People often objet to Hobbes that he leaves us with insufficiently stable reasons to be “moral,” and that the reasons he offers are unstable precisely because they’re only instrumental. But even if that’s so, it isn’t clear to me that no instrumental reasons could yield the desired stability. I don’t think I have non-instrumental reasons to breathe, for example, but I have pretty damn stable reasons to. Perhaps there are no similarly stable, merely instrumental reasons to recognize and respect the rights of others. But it seems to me that if so, that’s a substantive fact about what we have reason to do, not a fact about the concept of a right.

    I am not quite an eliminativist about rights, as I used to be, but I still strongly incline toward reductionism. It seems to me that all the justificatory/explanatory work in a theory of rights has to be done on the level of reasons, and all the really interesting and important questions in ethics and political philosophy can be asked and considered at least as clearly and insightfully, and probably more so, in terms of what we have reasons to do and refrain from doing than in terms of what rights we have.

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    • Hi, David! Much thanks for the helpful criticism (and encouragement). Really appreciated. Here are my responses to your points (numbers/marks correspond to your numbers/ordering).

      (*) I’m something of reductionist (or perhaps “constitutive explanationist”) about both obligations and rights as well. I suspect this does not mean that it is always best, at a given level of normative explanation, to put things in terms of reasons, but it often is and we should never lose sight of the fact that what is happening at a deeper level is people having reasons to do things (like comply with rules, object when the rules are broken at their expense, etc.)

      (2.1) I think I was assuming that if one is obligated to PHI then, as far as the possessor of the obligation goes, the obligation is constituted by her relevant non-instrumental reasons. Of course, this does not preclude her also having instrumental reasons to do as she is obligated. Nor does it preclude there being instrumental reasons for her to, say, value complying with a rule so that she continues to have non-instrumental reason to comply with the rule. I’m not sure if this takes care of your specific concerns here, but neither am I so sure – now – that my assumption here is correct. It is not clear, for example, whether my obligation, when I’m playing chess, not to move my rook diagonally consists in a conclusive non-instrumental reason, of or in the game, not to move my rook in this manner. I don’t think it is crazy to answer this question in the affirmative (and this is my inclination), but I need to think about this more.

      (2.2) As indicated by my response to your specific concerns here in your [2], you are right that a finer-grained account of instrumental versus non-instrumental reasons (and motivations) is needed. (I like the recent work of Nomy Arpaly and Tim Schroeder in this regard. I would like to blog their recent book IN PRAISE OF DESIRE at some point.) Speaking to this point (and addressing a related concern of yours), I take one’s reason to PHI due to PHI-ing realizing PSI-ing (and due to one having non-instrumental reason to PSI) is counted as non-instrumental. This is a stipulation that needs to be made explicit and justified. In particular, I need to say why this reason is more similar in relevant respect to one’s reason to CHI when one can directly CHI (and one has non-instrumental reason to CHI)
      than it is to one’s reason to PHI due to PHI-ing promoting state S (where S is something that one has non-instrumental reason to promote, respect, etc.). This is especially important if my sort of account is to say that we have non-instrumental reasons to abide by specific moral rules (in PHI-ing) due to having a non-instrumental reason to treat others in a certain more-general way (constituted by PSI-ing).

      (1.1) Your first point is dead on: it was an error for me to infer substantively interpersonal obligations (obligations that come along with correlative patient claims or standing to make claims) from their other-relational form. I do think there are obligations to others that do not come along with a correlative patient standing to make claims. I’m not entirely sure that such obligations are relevant to whether or not someone has a privilege to PHI (I’m inclined to think not). But Wenar probably references general obligations for a reason, so maybe the standard view is that it is sets of obligations that may include both interpersonal and monadic obligations that constitute rights. I need to read and think more about this, too.

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    • One more thought regarding the relationship between instrumental and non-instrumental reasons (or certain sorts of them): keeping in mind instrumental reasons to do things necessary for one to have non-instrumental reason to PHI (say, non-instrumentally valuing PHI-ing, on some kind of Humean account) might be necessary for one to continue to do those things (like non-instrumentally value PHI-ing) – and hence continue to have non-instrumental reason to PHI. So sometimes – as when one’s appropriately non-instrumentally valuing PHI-ing has become unstable – the most salient thing is stressing one’s instrumetnal reasons to non-instrumentally value PHI-ing. Plausibly, at least many of these will also be instrumental reasons to PHI. It might even be the case that, as a matter of how our motivational psychology works, focusing on the instrumental reasons to PHI (under this description) does important work in promoting the stability of one’s non-instrumentally valuing PHI-ing. though we would want to verify and understand why our minds work this way).

      I owe this sort of point (regarding what makes value-commitments adequately “stable” to do their work in allowing us to “endorse” the right sorts of lower-level motivations or common desires) to some of Valerie Tiberius’s ideas in her 2008 book, THE REFLECTIVE LIFE: LIVING WISELY WITH OUR LIMITS (and to my friend Derek Bowman, who pointed out Tiberius’s work to me and has the project of pressing this sort of point as a solution to “Pritchard’s Dilemma” about instrumental versus non-instrumental reasons to be moral, carry out one’s moral duties, etc.).

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      • Interesting. I think at least many people are inclined to say that if my reason to phi is that phi’ing promotes, protects, or respects psi’ing, then it’s necessarily an instrumental reason. I disagree, but I’d also be happy to describe phi’ing as a means to psy’ing in that case, just with the qualification that phi’ing isn’t an instrumental means. I’ve written a fair amount about instrumental vs. other kinds of reasons and goods in Aristotle, and the responses I’ve received have at times made me think that it would be best to drop the instrumental language entirely and adopt something else that is less susceptible to misunderstanding (but then everything in philosophy is susceptible to misunderstanding, so…).

        I think the main claim I’m committed to might be best put like this: it cannot be a conceptual truth that if X has a right against Y, then Y must have a non-instrumental reason to respect X’s right. It may of course be a substantive truth about what reasons and rights people actually have, but it doesn’t follow from the very idea of what a right is or what it is to recognize or respect one. Why not? Well, most simply, because there are what I take to be non-controversial cases of rights and correlative obligations — like those involved in driving on public roads — that don’t depend on non-instrumental reasons. So too, recognizing even a more ‘moral’ right like the right to free speech doesn’t seem to me to require having (or taking oneself to have) non-instrumental reasons to recognize or respect the right; there is nothing incoherent in supposing that the reasons why I should recognize and respect your right to free speech are entirely instrumental. But that doesn’t entail that an account of rights that posits only instrumental reasons to recognize or respect them will be especially plausible or even ultimately defensible. My own thoughts on the matter are at least somewhat akin to what I take you to be developing; the reasons I have to recognize and respect other people’s rights are to be explained by the way that recognizing and respecting those rights promotes, protects, and respects other things, but the reasons aren’t what I would think of as instrumental because recognizing and respecting rights isn’t a merely instrumental means to achieving the goods that ground my reasons to recognize and respect those rights. I like your chess example; I’d say that at least in the case of the important ‘moral’ rights that grab most people’s attention, recognizing and respecting them is internal to the achievement of goods in much the same way that our reasons to recognize and respect the rights of our opponents in chess are internal to the goods of playing chess. The difference, of course, is that the goods to which the recognition and respect of rights are internal are not merely optional in the way that the goods of chess are.

        But maybe I’d feel differently if I were good at chess, or as bad at being friendly and benevolent as I am at putting other people in checkmate.

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      • Additional thought: I don’t think it’s at all trivial whether we cash out ‘non-instrumental’ in the way that you and I seem to agree on. Plenty of philosophers object, for example, to the attempt to show that our most important reasons to respect others are grounded in the ways that respect is internal to the kind of social practices that it is good for us to engage. The objection is that this makes moral, other-regarding reasons too derivative and that even if it gives us reasons to do the right sorts of things in all the right circumstances, it gives us the wrong kinds of reasons; the right kinds of reasons are reasons that are grounded in the good or dignity of others, not in the good that we supposedly achieve for ourselves in respecting them.

        That sort of objection doesn’t depend on how we construe ‘instrumental’ vs. ‘non-instrumental,’ of course, but people who find the objection compelling will likely not be satisfied with grounding rights in reasons that are ‘non-instrumental’ in the sense that we’re allowing that term to have.

        I think objections of that sort are deeply misguided. A good treatment of them (and much else besides) is Mark Lebar’s The Value of Living Well, and in an earlier version directed more specifically at Stephen Darwall’s version of the objection, ‘Virtue Ethics and Deontic Constraints’, Ethics 119 (2009), 642-71.

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      • This is a response to David’s comments of 10 Sept. (I did not see a “reply” button after his comment, so my response appears here – hopefully that works).

        (1) A quibble or two. Though I realize that ‘promotes, protect, or respects’ is probably just a gloss on the kinds of response that we have reasons to exhibit, I think that reasons to respect something, if respecting is most fundamentally a type of attitudes, are different from reasons to promote or protect (and I’d say that protecting is a kind of promoting in the broad sense of making more likely that the relevant conditions obtain or continue to obtain – quibbles, quibbles). At least typically, respecting something goes along with that thing being non-instrumentally valuable in some way (I’d argue that it is some way that is partially constituted by our reasons to thus respect it – I’m inclined to analyze value in terms of reasons to respond to things rather than vice versa). But, at least in this case, the reasons to exhibit respect (in attitudes, in associated behaviors) do not appear to be instrumental because they do not appear to be reasons in virtue of promoting the thing that they respect. For these reasons, and for others concerning the analysis of rights in Hohfeldian terms, and hence ultimately in terms of sets of obligations that are, at least in the main, interpersonal (or are essentially related to patients having standing to make claims against the agent), I prefer addressing the relevant issues here in terms of reasons to fulfill obligations to others (who have a corresponding standing to make claims) – maybe the more accurate and felicitous tag here would be ‘reasons to fulful obligations that are owed to others’ – not reasons to respect rights. However, I fully realize that, in many contexts, the latter sort of construction is more intuitive or closer to how the non-theorist might speak of such things in natural language).

        (2) I’m not sure whether the reasons that constitute X owing it to Y that X perform PHI (I’ll try out this formulation in light of your point about the ‘to Y’ form of X’s obligations) can be instrumental. I’m inclined to think that they are not only non-instrumental reasons, but non-instrumental reasons of a particular strong sort (relative to the reasons of or in the relevant practice) that involve something like the endorsement of a kind of motivation that, in most motivational contexts, cuts off further deliberation about what to do. (In morality, there is the gut-wrenching ‘oh-no!’ sort of motivation when one breaks the rules – endorsed if one endorses the rules. In chess, the motivational means is more gentle, but functions that same way in the game.) The sort of claim that I am inclined to make here, is a claim about what constitutes obligations, but it may or may not be reflected in our concepts such that it strikes any competent user of the relevant concepts as incoherence to say such things as they we have only instrumental reasons to fulfill claim-associated obligations to others. I’m inclined to agree that there is no incoherence involved in making such claims. (It is worth noting that, to the extent that such terms as ‘instrumental reason’ and ‘reasons that constitute obligations’ are terms of art, any incoherence in the relevant sorts of claims would reflect our stipulated definitions and theorizing, not necessarily any information that is captured in ordinary language.)

        (3) Of course, the big, substantive issue lurking here in the background is that of how to properly individuate instrumental and non-instrumental reasons. I suspect that the important division here involves whether there is a need, in good reasoning, to gather and apply instrumental, causal information in order to reason well from (something along the lines of) the intending or being motivated to PHI from intending or being motivated to PSI (where one has non-instrumental reason to PSI). I suspect, then, that all reasons to exhibit response A (where this might be either an action or an attitude) to condition C that are not reasons to promote C are non-instrumental reasons. I realize that this proposal is pretty rough and it may raise more questions than it answers (or promises to answer), but that is where by implicitly-theory-informed inclinations take me. (The broadest issue here concerns the relationship between motivations, normative reasons, and good reasoning or rationality. As my teacher Jamie Dreier emphasizes, this is perhaps the central, deep issue in meta-ethics. In my gloss, I explain non-instrumental reasons in terms of motivations and reasoning that is non-instrumental in a pretty non-mysterious sense. Of course, we are left needing to explain what the goodness in good reasoning comes to and whether and in what sense this is normative. Critics might claim this constitutes a fatal flaw in the broadly “good reasoning first” – as well as perhaps “motivations first” – program for explaining normative reasons.) In any case, this sort of picture would provide a general pattern for and explanation of how, in virtue of having (strong, defeasibly conclusive) non-instrumental reason to avoid needlessly harming other people we might have (strong, defeasibly conclusive) non-instrumental reason to avoid needlessly lying to them.

        (4) I could be wrong but I take your position to be – at least in part – that we can construe what many would think of as instrumental reasons (say, to be moral or obey moral rules) as non-instrumental when the relevant relationship is one of partial (or wholesale) constitution, not promotion (at least in the narrow sense of ‘promotion’) – say, the partial constitution of life worth living (something that we have non-instrumental reason to “bring about” in the broad sense that includes realization or constitution as well as promotion). This is a familiar claim from Aristotelian (and some other) circles that, I take it, is not the received view (at least not in many of the rather distinguished quarters of Anglo-American philosophy). Typically, this sort of claim is made with respect to partial constitution as against promotion relationships. My model is more general and turns more directly on good reasoning (rather than metaphysical claims regarding constitution or realization as against promotion narrowly construed). Though it is not clearly unfriendly to what I take to be your sort of claim, neither is is necessarily friendly. I suspect the verdict would be “yeah, sometimes it works that way, but it is more complicated than this.” Let’s revisit the chess example. My sort of model would likely explain non-instrumental reasons not to move one’s rook diagonally when playing a game of chess by reference to the kinds of motivations required in order for the game to work (and the sort of reasoning, or specifically not engaging in instrumental reasoning, that having such motivations require or involve) and one’s reasons for playing the game (whether instrumental or non-instrumental) – rather than by reference to one having non-instrumental reason to continue to play the game and to following the rules of chess partially constituting playing the game.

        Again, David, much thanks for stimulating comments that are both helping me catch errors and prompting me to add additional clarifications and additional bits of theory needed for my proto-project to take shape and be worth a damn. In addition to agreeing on what my friend Errol Lord calls “the reasons program” of normative explanation (at least with respect to obligations, perhaps as well with respect to value), we seem to agree on a picture of morality (moral obligations, standing to make claims, moral rights, moral ends) according to which what “moral practice” does for us, when it goes well – as well as any non-instrumental motivations or reasons in favor of elements of moral practice – is quite important in formulating moral rules appropriately and figuring out what to do all things considered. In important respects, this puts each of us in a good position to constructively criticize the other. Cool beans. I definitely will take a look at the Mark Lebar’s book (I don’t know him, but I’ve heard that he is a really good philosopher).

        Apologies for any typos (just one ‘instrumental’ for ‘non-instrumental’ or vice versa can wreak havoc!) and bad or ungrammatical formulations – I’d like to review this before posting, but have some time constraints today. Hopefully, not too much harm done! (Irfan, I have not read your comment and Mark’s reply, but I’ll do that now, though likely will not have time to respond right away.)

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        • Take your time replying. Some of what I say in response to David involves Aristotle-talk at a distance from your interests; it’s just there to clarify my disagreement with David.

          On a separate note, as currently configured, the Word Press platform stops putting a “Reply” button after a certain number of replies, because after that point, the replies get narrow and unreadable. But as an Author, you can always get around that; you can comment on anyone’s comment by commenting from the “Comments” function accessible from the Dashboard. That allows you to edit comments, too.

          Anyway, I’ve been threatening to upgrade the site, so I’m hoping to get to that this weekend.

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      • On promoting, protecting, and respecting, you’re right that I was mostly just trying to gloss the whole range of ways in which we might treat something that we regard as good in some way. I’d also agree that there are important differences between promoting and protecting on the one hand and respecting on the other. But I just don’t see that respect goes typically along with the object of respect’s being non-instrumentally valuable. Of course, it often does. But when I come to a stop at an intersection and respect the other drivers’ right of way, I do not regard their right of way, their taking it, or my respecting it as non-instrumentally valuable except perhaps in some very broad and generous sense of that term. So too, when I respect my friend’s decision to leave behind a promising academic career for an unpromising medical career, I do not regard his decision, his exercise of it, or my respect for it as non-instrumentally valuable; in fact I might regard the decision as a foolish one that he is likely to regret, and the reason I respect it is that respecting it is the best or only way to express my friendship for him, to continue to support him more generally and to do the sorts of promoting and protecting of his welfare that are part of what it is to be his friend. More broadly, it seems to me that the main reasons I have to respect other people’s rights are that respecting them is the best or only way to promote their good and my own. Obviously in all of these cases we have to show how respecting something is connected to something that we have non-instrumental reasons to care about, but I don’t see that what I respect or my respect itself is even typically something that I regard as non-instrumentally valuable.

        That conclusion will be even stronger if we follow what you (rightly, I think) take as the received view and embrace a broader view of instrumental reasons and value than Aristotelians tend to. If my reason to φ is instrumental whenever it is grounded in promoting, protecting, or respecting some ψ that is not identical to φ, then it seems to me that a whole lot of my reasons will be instrumental – maybe even all of the reasons I have to do anything at all.

        You’re right that we have plenty of shared assumptions that might make disagreement fruitful, but I don’t think I’m on board with you at all in the “reasons program” of normative explanation. I think that talk about reasons is fruitful and helps to make disagreements more apparent and (at least sometimes) more tractable. But my own view of practical reasons is one on which what we have reason to do depends on what is objectively good for us. So I’m not one to try to explain value by appeal to reasons; rather, I think we can’t explain reasons without appeal to value. I’m also a pretty committed anti-Humean in that I don’t think our attitudes are what fundamentally make something valuable for us. But I do think that (quasi-)Humeans can, in principle anyway, agree with me in grounding reasons in value rather than the other way around. But I’m not sure I’ve fully understood how you see the “reasons program” and its essential commitments.

        In any case, I get along pretty well with lots of people that I disagree with, so I don’t think it really matters too much.

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        • Good points. I take it that respecting someone else’s course of action and simply not interfering with it (for whatever reason, maybe because the police will arrest me if I don’t) are different and that they are different due to behavioral respecting being motivated by attitudinal respecting. I was not precise here, but I meant to be concerned primarily with our reasons for having the attitude. In the case of the actions of persons, it seems that we are having a respectful attitude toward them (their well-being, their autonomy, etc.) by having a respectful attitude toward their actions in the sorts of cases you mention. Perhaps, then, we have non-instrumental reason to do the second thing because that constitutes a way of doing the first thing (and because we have non-instrumental reason to do the first thing). Of course, this aspect of the moral way of relating others is very much instrumentally valuable – it promotes many things that we have non-instrumental reason to promote. This is a bit different from what I initially said about reasons to respect and I may have been wrong in what I said earlier. (I was thinking that we have non-instrumental reason to have certain attitudes toward something whenever we have non-instrumental reason to promote it – this might be right, but respect is the wrong attitude). But I think the view that I am trying on here makes a similar point about the main sorts of reasons to respect things being non-instrumental. In any case, I think this is a minor issue relative to our main discussion… I’m actually very much open to the idea that at least certain sorts of value are not explained in terms of reasons (but can explain reasons) – but more skeptical that this works as a general model. Perhaps the right answer is: it’s complicated, sometimes the order of explanation goes one direction, sometime the other. I do sometimes get too excited by the idea of explaining value as well as obligation by reference to reasons. Best, I think, to stick to the particulars of the cases and see what we can, and cannot, plausibly explain by reference to reasons. I’m pretty sure all obligations can be and I think we agree on this. I’m more strongly committed to some form of Humean or psychological-state-relative view of normative reasons, but I try to reference this only when it has some good work to do for my project (like when I think it can help explain and justify the distinction between instrumental and non-instrumental reasons).

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          • I see why simply not interfering with something is not sufficient for respecting it. But I’m not clear at all on how you’re understanding respect in the sense that is relevant here, and I can’t think of a plausible conception of respect that would tie it so closely to non-instrumental reasons. Granted that it’s an attitude of respect that we’re talking about – and not merely refraining from interfering – it still seems to me that my examples are of cases in which we at least can have primarily (even exclusively) instrumental reasons for having that attitude. I agree that the issues about Humeanism and reasons being prior to value are tangential to the main question; I think a Humean should take the same view about respect that I’m taking here (indeed, I think Hume probably did take that view, given his generally utilitarian mode of explanation in ethics, though I actually can’t remember how long it’s been since I looked at Hume on these issues — maybe as long as 14 years! What a geezer!). As for obligations, I’d just say that they are reasons of certain kinds, so that explaining why we have the ones we do is just a matter of showing why we have reasons to act in accordance with those obligations (including reasons to take certain attitudes, etc.).

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  2. By the way, since I don’t really know you, I should make clear that I’m glad you’re developing these thoughts and look forward to seeing how you move forward. I suspect Irfan’s posts on the topic will be in the oven for a while with all the classes he has to teach, so if there’s going to be any rights theorizing on PoT, you might have to be be the one to get it started.

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    • “…I suspect Irfan’s posts on the topic will be in the oven for awhile….” Oh, so what you’re saying, David, is that my posts on rights should be burned? Now we see what kind of “eliminativist” you really are. I guess you don’t remember Heinrich Heine’s famous words on this subject, “When blog posts are put in ovens, people are sure to follow.” And to think that the discussion is about rights!

      Carry on, gentlemen (and any ladies who want to join the discussion). Good post, Michael, but it’ll be a few days before I get to commenting.

      P.S., I introduced Michael back in June, when I introduced David Potts. I guess he was in the oven all this time.

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  3. Michael,

    Thanks for coming up with the first substantive contribution to my series on rethinking rights. For the reasons David mentions, I hope readers aren’t/weren’t expecting the series to be driven by my contributions; I have some to make, but don’t have time to develop them right now.

    I have a lot to say about your post (which I found extremely useful), but given my time constraints right now, I think I’ll dribble out the comments one by one rather than list them all in one place.

    You open with this comment:

    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”)….

    I think the Hohfeldian starting place could use some further explanation. Many people start their analyses of “rights” with a description of the Hohfeldian incidents, but I’ve never quite understood why that procedure has become standard. It doesn’t seem intuitively obvious to me as a starting point, and doesn’t really strike me as capturing what’s essential to the concept of a “right.” Put it this way: if I were listing a series of platitudes about rights, my list wouldn’t map onto the Hohfeldian incidents. I’ve never read Hohfeld’s Fundamental Legal Conceptions myself, but I think we need some context as to what Hohfeld was up to before we assume that the Hohfeldian incidents are the proper starting point for an analysis of “rights.”

    One question that hits me right from the outset: what was Hohfeld’s purpose in offering this characterization of rights? Was he trying to analyze the concept of “rights” into its primitive conceptual elements, so that privileges, claims, powers, and immunities are more conceptually basic than “rights”? Or was he simply trying to make the bare descriptive point that claims about rights–all or most of them–map onto claims about privileges, claims, powers, and immunities, and have the structure he attributes to them?

    In the first case, Hohfeld’s approach would lead to a complex sort of reductionism. Claims about rights would be reducible to (maybe eliminable in favor of) claims about privileges, claims, powers, and immunities.

    In the second case, there’s no a priori pressure toward reductionism, but then, there’s a kind of arbitrariness about the Hohfeldian starting point. If Hohfeld didn’t mean that the incidents were basic to rights, then why start with the incidents in the first place? Maybe Hohfeld is right that lots of rights-claims map onto claims about privileges, etc., but that doesn’t entail that the Hohfeldian incidents are essential to a list of platitudes about rights. Among the (arguably) missing platitudes:

    1. Rights demarcate an agent’s exclusive zone of control over what the agent has a right to; rights are violated by interference over this zone.
    2. We have a right to do what’s morally wrong (arguably =we have a right to act contrary to our duties).
    3. Not every duty we have to another is a claim right they have against us.
    4. Rights have an essentially protective function.
    5. There’s an intrinsic conceptual connection between rights and (protection of) the exercise of autonomy.

    I don’t get why the Hohfeldian incidents is a better starting point than a list of platitudes like that. The preceding list may not ultimately block reductionism about rights, but it stands a better chance of doing so than a list consisting of the Hohfeldian incidents.

    Another oddity about Hohfeld’s account concerns the connection between rights, law, and coercion. Hohfeld thought that rights was an essentially legal concept, but nothing about the Hohfeldian incidents makes clear how or why that’s so. As Wenar reproduces Hohfeld, nothing about the Hohfeldian incidents makes powers, etc. inherently legal–inherently tied to a legal system or to coercion. E.g., was Hohfeld denying or endorsing the thesis that we can have rights in a (Lockean) State of Nature? If rights are inherently legal, we can’t have rights in a L-State of Nature. But as stated, privileges, claims, powers, and immunities are all the kind of thing we could have in a L-SON. The answer to the question is unclear, but that unclarity argues in favor of questioning the idea that we should begin with Hohfeld. It seems to me that the need to get clear on rights’ relation to law and the Lockean State of Nature is at least as fundamental to an analysis of rights as an account of the Hohfeldian incidents.

    Let me leave the point there for now, but I actually have objections to Hohfeld’s account of both privileges and claims. More on that later.

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    • Just a quick thought, but your platitudes strike me as controversial, whereas Hohfeld’s analysis of rights is just a conceptual framework for distinguishing between different types of rights. I can work within the Hohfeldian framework even if I’d prefer not to; I’m not sure I can get on board with your 1, 2, 4, or 5, but it’s an least to my mind an open question, whereas Hohfeld seems to be offering a set of concepts that may or may not be analytically useful. It’s claims resembling your 1, 2, 4, and 5 that used to leave me thinking that I just didn’t believe in rights, and Hohfeld’s analysis (as tweaked by Fred Miller in his Aristotle book) that got me started thinking about whether it’s more reasonable to think that rights are simply explainable entirely in terms of something else.

      I think Michael is in a better position to determine what the Hohfeldian analysis is supposed to be doing, but for what it’s worth I don’t see it as inherently reductionistic at all. I take it that Hohfeld’s distinction is between kinds of rights and that he intends to point to their logical connections. Strictly speaking, his conceptual analysis would be as compatible with the claim that rights are somehow a sui generis, underived, universal moral constraints on others as it is with the claim that all talk about rights could be reduced to talk about agent-relative reasons that each of us has for adopting certain modes of interpersonal conduct.

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      • I regard the controversiality of the list of platitudes as a feature, not a bug, of the list. The concept of rights is itself controversial, so it seems to me that platitudes about rights ought to reflect that feature of the concept. One problem with the Hohfeldian incidents is that they fail to do this. There is nothing particularly controversial about privileges, claims, immunities, or powers as Hohfeld conceives them. They’re normatively ordinary. But rights aren’t normatively ordinary, and it seems to me that that’s something that should be noted at the outset of an analysis. I would say that you can’t domesticate rights a la Hohfeld. Either “rights” has a justification or not, but it’s a platitude that if it’s justified, many of the platitudes about it are bound to be controversial, qua platitudes about a controversial concept.

        I take it that the “platitudinous” status of a list of platitudes doesn’t entail that the platitudes are uncontroversial per se; it entails that it’s uncontroversial that the list can truly be predicated of whatever item is under consideration. The legitimacy of the item itself may be very controversial. It seems to me that if someone is a skeptic about rights, the list of platitudes about rights should serve to clarify what it is about rights that characteristically induces skepticism in rights skeptics. My list does that; Hohfeld’s doesn’t. That’s why it seems to me that Hohfeld’s account misses the mark.

        Ironically, I reached my conclusion by reflecting on Fred Miller’s rationale for relying on Hohfeld in Nature, Justice, and Rights in Aristotle’s Politics. I don’t agree with Fred’s reliance on Hohfeld, and actually had a conversation with him about this very topic in 1991, when NJR was still in manuscript. My point was that in the quest to offer a supposedly “neutral” characterization of rights, Fred was gutting “rights” of their essential identity. The criticism I made was made in a slightly different form by John Cooper in his Review of Metaphysics commentary on Miller. Essentially, I agree with Cooper against Miller on that issue. Like Cooper, I would say that precisely because Miller relied on the Hohfeldian incidents, I don’t think he really demonstrated that Aristotle is committed to a conception of rights. He demonstrated that Aristotle is committed to some kindred rights-like norm (or set of them), but not to rights in the full-fledged sense.

        Incidentally, I don’t think Fred’s modifications to the Hohfeld scheme were mere tweaks. I regard them as substantive but ad hoc modifications explicitly motivated by Fred’s commitment to the substantive conception of rights captured by my platitudes. I don’t have his book here, and don’t want to go by memory, so I can’t be more specific than that right now. But I can explain further if that would be helpful.

        (Apology: the preceding two paragraphs won’t be intelligible to anyone who hasn’t read Miller’s book or doesn’t care about Aristotle’s political philosophy, but I think they help clarify what’s at issue between David and me.)

        I’ve always thought that the Hohfeldian schema’s claim to neutrality or uncontroversiality was a bit of an illusion. Take Hohfeld’s account of claim rights. On Hohfeld’s view, both of the following equally satisfy the description of a claim right:

        (1) I make an appointment with my doctor. No one interferes with my doing so. On the relevant day, I go to the appointment. No one interferes. The doctor does his medical work. No one interferes. I pay him with money I earned. No one interferes. He pockets the money. No one interferes. I leave. No one interferes.

        The interaction ends without interference by third parties, but each of us had claim rights to certain actions. The doctor had a claim right to my punctual appearance and my payment. I had a claim right to the doctor’s presence, expertise, and medical attention.

        (2) I am in medical need. I show up at a medical clinic with a duly constituted legal officer and demand medical attention as permitted by law. The officer has the support of the law and has a gun. He brandishes the gun at the doctor and orders him to act. The doctor acquiesces and gives me medical attention under the supervision of the legal officer. When the doctor is done, I leave. I make scrupulously sure not to pay the doctor, whether monetarily or non-monetarily (e.g., I resist the urge to thank him for his services). I incur no debt of any kind in accepting his services. I leave. The interaction ends.

        In this case, I have a claim right to the doctor’s medical services. The legal officer has a claim right to the doctor’s obedience. The doctor may have a claim right to not being shot if he obeys.

        The problem is this: On Hohfeld’s scheme, (1) and (2) are equally instances of Hohfeldian claims. They may be different sorts of claim, but they are fundamentally instances of the same norm. It’s therefore natural to describe both sorts of claims as claim rights, and thereby to infer that both (1) and (2) are instances of rights, however much they differ as instances of rights.

        That strikes me as desperately wrong-headed. Here I’m not making a point about whether (1) or (2) is the correct way of talking about rights, or whether (2) is justified, or whether (2) is what most people have in mind when they talk about a “right to health care.” (They don’t.) My point is: (1) and (2) are so vastly different from one another that it’s misleading to think of them as instances of the same norm.

        Yes, trivially, we can say that they both involve claims. But we should recognize that that’s a triviality. Normatively speaking, the reasons that underlie (1) and (2) are dramatically different: the reasons why no one should interfere with my going to the doctor (if no one should) are drastically different from the reasons why I should be allowed to demand medical care when I need it (if I should).

        Yes, we’ve nowadays come to refer to (1) as an exemplification of “negative rights” and (2) as an exemplification of “positive rights.” But given the stark differences between (1) and (2), that’s a misleading facon de parler. If anyone thinks that the facon de parler should govern how we talk about rights, he bears the burden of proof for that claim. He can’t just rely on Hohfeld’s account of a claim to do that work.

        The Hohfeldian scheme misleadingly gives the impression that no argument is needed for treating (1) and (2) as instances of the same norm. As far as Hohfeld is concerned, they’re both claims, and all interpersonal claims involve rights (another problem, as far as I’m concerned), so it’s natural to think that both (1) and (2) involve rights. That’s not a “neutral” set of claims at all; it’s a controversial one that seems to me to involve a misdirection of the analysis from the outset.

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      • Perhaps then our disagreement stems from an agreement (as often). One reason I think most of the scholarly criticism of Miller on rights in Aristotle is misguided is that it operates with a substantive conception of how rights are supposed to fit into the normative landscape, shows that for Miller’s Aristotle they don’t fit into the landscape in that way, and hence conclude that he’s mistaken to attribute a concept of rights to Aristotle. But the Hohfeldian analysis (whether in Miller’s tweaked/freaked version or not) is, I take it, supposed to lay out a conceptual analysis of rights that should be acceptable to proponents of rival theories of rights and how they fit into the normative landscape. To my mind, Miller’s argument is mostly successful because he shows that Aristotle can and at least implicitly does recognize normative judgments that fit the form of Hohfeldian rights. Importantly, thinkers as varied as Nozick in ASU and Amartya Sen in ‘Rights and Agency’ can and do also recognize normative judgments that fit those forms, even though they have huge disagreements about how those claims are to be justified and how they relate to other sorts of normative considerations (Nozick presenting rights as deontological side-constraints that are absolute and apparently not justified by their role in promoting the good, Sen presenting rights as one among many things that contribute to the overall value of the states of affairs to be promoted in a basically consequentialist scheme). We’re not left in a situation where Aristotle can’t be put into dialogue with Sen and Nozick because he simply lacks a concept that is central to them; rather, we’re given an analysis of the concept of rights that enables us to bring out precisely where their disagreements lie. I disagree with Miller’s central claim that Aristotle has a concept of rights, but I’m not sure he himself would reject my reason for disagreeing, viz. that while Aristotle has concepts that overlap with the concept of rights, there is reason to think that he has no concept that is even co-extensive with the concept of a right (of any or all of Hohfeld/Miller’s kinds), let alone one which has the same intension. But I think the really significant feature of Miller’s thesis stands nonetheless; there is enough conceptual overlap here that we can easily see how an Aristotelian theory of rights that preserves the basic structure of Aristotle’s own thinking would work, and Miller himself lays out a broad view of such a theory in the concluding chapter of the book.

        Why isn’t this just scholarly/historical quibbling? Because it seems to me that the impulse behind the Hohfeldian analysis is the right one. There is a concept of rights that at least seems to be shared among people who nonetheless have markedly different conceptions of rights, let alone theories of how rights fit into the rest of the normative landscape. It’s possible that this is an illusion, and we just have a bunch of rival theories that use the same symbol for a number of ideas that share no common conceptual core. But that seems false. If it is false, and there is a common concept with at least some roughly definite boundaries about which people disagree, then it’s valuable to have an analysis of the common concept.

        Of course, we might criticize Hohfeld’s analysis on the grounds that it doesn’t succeed in doing that job. I’m not sure the criticisms you offer on that score are very compelling, but it’s at least useful, I think, to distinguish criticisms of that sort from criticisms to the effect that Hohfeld’s analysis deprives rights of what makes them distinctive. The features of rights that you take to make them distinctive are, it seems to me, not uncontroversially features of rights; the claims that I called controversial are claims that someone could, and many do, deny even while working with a robust conception of rights. The central role you give to autonomy, for example, would rule out attributing rights to non-rational animals (and perhaps even some rational animals suffering from disability). It would also suggest that any conception of rights on which we have rights to, say, clean water or adequate nutrition or medical care are not simply false but incoherent, since such claims are often made without grounding the alleged right in the protection of autonomy. So too, conceptions of rights that purport to ground them in desert or human dignity without giving autonomy a foundational role in desert or dignity would seem to end up looking like category errors on your view. Similar problems seem to arise with your 1, 2, and 4 as well.

        It may be that I’m misunderstanding your intent. I initially supposed that platitudes were supposed to be at least relatively uncontroversial, but you say not. So perhaps I’m mistaken in taking your list as though it were intended to demarcate some essential features of the very concept of a right. Or perhaps you aren’t inclined to accept a distinction between the concept of rights and a substantive conception of rights. In any case, the discussion, along with some of Michael’s comments, raises a question for which I don’t have an answer: when and why are we constrained in our theorizing about a normative or normatively important concept by the way that concept is employed in everyday language or in philosophical argument by those with whom we disagree? I’m inclined to say that we can’t just stipulate that rights must be grounded in the protection of autonomy or (to take Michael’s example) that rights must correlate with duties that we have non-instrumental reasons to fulfill; it seems to me that we aren’t free to stipulate these things because the concept of a right as it actually figures in everyday and philosophical discourse does not make it incoherent to suppose that non-human animals have rights of precisely the same sort we do or that Hobbes’ theory of rights is either incoherent or not a theory of rights at all. At the same time, I can think of cases in which I would resist the claim that I can’t take a certain concept in a certain way because that’s not how people generally use it. So I’m not entirely sure what to think.

        Minimally, though, it strikes me as a problem for your list that many people could and would reject much of it while not being skeptics or eliminativists about rights, but simply disagreeing with you about what rights are and how they work. The relevant controversy is between rival conceptions of rights, not between proponents and opponents of rights.

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        • I have a lot to say about this, but simply don’t have the time to do justice to the whole thing, so here’s a quick comment that might help get at the issues.

          Imagine that we were trying to analyze the concept “crime.” I lay out a list of platitudes about crime, and one of them is: “Every crime requires at least one perpetrator and one victim.” A critic then says, “Well, what about victimless crimes?” I respond that there can’t be victimless crimes, since it’s a platitude that every crime requires a victim. Obviously, this dialogue could go round and round for a long time, at least conducted in that form.

          Here, I think, is the way out: The real underlying platitude here is that victimless and victim-involving crimes are fundamentally different phenomena. Given that, they should, barring some further discovery, be treated as two different concepts, and not as two conceptions of the same concept. Prima facie, if we look at their nature and not at how people talk about them, they are too different to be grouped together under the same concept. That is not to make any claim about which one has a better claim to the name “crime.” It’s simply to say that the differences between them are more apparent than any similarities. There aren’t any obvious family resemblances between them, and they aren’t species of a common genus (at least not an informatively common one). Though our speech makes them seem like species of a common genus–we speak as though both are species of crime–we should begin our analysis with a recognition that that’s either misleading or an illusion.

          It would then be legitimate to call victim-involving crimes crime(1) and victimless crimes crime(2), and analyze them separately, after laying out the platitudes about each one on its own. It would not be legitimate to assume that simply because “we” call them victim-having and victimless crimes, we must treat both as species of a common genus, or as conceptions of the same concept, so that there must be some single list of platitudes common to both. What would be worse would be to insist that it’s a condition of adequacy on any analysis of “crime” that it “account for the common belief” that both victim-having and victimless crimes have equal claim to being crimes, and that the platitudes “common” to them must constrain the analysis, simply to “save the phenomena,” i.e., save our habitual patterns of speech.

          The problem with the latter approach is that for one thing, it’s relativized to languages. “We” have always spoken that way only if we speak the languages that speak that way. But it’s just false to assume that everyone in every language speaks the way “we” do. Second, for virtually any controversial claim spoken of a certain way, there have been critics who have insisted that we not speak that way. In other words, for as long as people have spoken of victimless crimes, there have been reputable people who have insisted that we stop talking that way. So there is no clear way of following common belief here unless we simply go by the numbers. Third, speaking as though something is the case doesn’t make it the case or tend to make it the case. So it’s not clear why common linguistic practice should dictate how our analysis goes.

          All of that applies to rights, mutatis mutandis. There are two distinct phenomena called rights, negative and positive. Trivially, both involve claims. But that is trivial. What is far more obvious is that negative rights are fundamentally different from positive rights. I won’t fill out the rest, but I think you can see where I’m going with this.

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  4. Very brief response to one of two of your points, Irfan.

    (a) Though modeled on how the law requires and does not require us to do things (and our having reason to obey the law), I take it that the Hohfeldian framework is supposed to apply to moral rights, to rights we have independent of the existence of the state or any body of law (or even the possible existence of such). I agree that more needs to be said about why we should think this works. It is intuitive that it does (at least if you frame it in normative terms, in terms of obligations), but not at all intuitive why. My proposal (and this could not be an original thought): moral obligations and correlative standings to make claims concern the the sorts of rules that we should adopt in moral practice, whereas legal obligations and correlative standing to make claims concern being subject to legal rules (via overwhelming coercive power) that are in some sense “good enough” to command one’s allegiance. In this way, we can think of both moral and legal obligations (and correlative claims or standing to make claims) as essentially relative to (either actual or possible and ideal) social practices or institutions.

    (b) Suppose we all owe it to the one god, Xefron, and to none of our fellow humans, to do our moral duties, which include not abusing our fellow people in certain ways. On this system, only Xefron has rights. He has the Hohfeldian claim-right against us that we obey the moral rules. And us human have no rights. Since I don’t think this description does violence to our most general concept of a right, we should assume that what the Hohfeldian system calls a right in this sort of case (and any number of other contrary-to-fact cases) constitutes an adequate, if very general and function-neutral, analysis of rights.

    (c) The rights that we are more familiar with might be the sorts of rights that are also adequately characterized by a set of platitudes (maybe your list, maybe some other list). This might speak to there being especially important sorts of rights, stressed in Western society since the Enlightenment that function, at least in part, to reflect certain moral ends or a compatibility between moral obligations and ends and certain important personal ends. I have a lot more to say on this and related topics, but I’ll hold off for now. Though there may be good work to be done tweaking the Hohfeldian formal framework, I’m satisfied to more or less take it as it is in Wenar’s rendering (adding some friendly caveats or qualifications as necessary). This is because I think that all of your concerns are appropriately addressed by how different sorts of rights function (what the sort of social practice of institution governed by some set of rules does) and how this impacts all of the things we have non-instrumental reason to realize, promote, respect, etc. (in the social conditions in which we find ourselves). Of course, I might be wrong, but I don’t have time right now to go through all of our specific points (sorry!)

    Again, apologies in advance for not having time to review this before posting!

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    • One more thought: it does seem to me that one aspect of familiar modern systems of rights (and perhaps conceptions of rights) is that it is the injured parties, not some third-party ultimate authority (as in my “Xefron” scenario) that has standing to make claims. A practice that is structured so that claim-making goes like this is focused on individuals (and respect for their well-being and autonomy) in a way that the other sort of system of rights would not be. It also fits a system according to which the moral relationship is primarily a relationship to generic others – not primarily a relationship to a third-party authority like God. It is primarily this that we realize in meeting our moral obligations (and perhaps this that we may restore by making claims against those who would violate their obligations to us). I don’t think this is all that there is to rights in the distinctively post-Enlightenment, modern sense, but this seems to be a very important element. This sort of point speaks to your platitudes, I think, at least somewhat.

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  5. Pingback: Rethinking rights (4): a new proposal regarding normative claims (or the sense in which natural rights are institution-relative) | Policy of Truth

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