Rethinking rights (3): what it is for B to have a claim against A that A perform PHI?

Plausibly, patients having claims against agents comes to patients having standing to make claims (object, demand, complain, etc.). What does such “standing” come to, though? In order to understand this, perhaps we need to think of the relevant system of rules as being rules for a rule-governed social practice.  In short, perhaps we need to think in terms of social practices, how they function, what their aims are.

We can invent social practices and we might start by looking at these sorts of social practices. It is intuitive to say that I might invent a game in which, when player A lands on spot X (in her way around the board, the object being to be the first player to complete the circuit around the board in accordance with the rules), player B, who is the player to the right of player A, has standing to demand that player A relinquish her next turn. Plausibly, B having this claim (standing to make the relevant claim) against A comes to: (i) B being permitted, according to the rules of the game, to demand that B relinquish her next turn when A lands on spot X and (ii) everyone else collectively, or whoever is the “master” of the game if the game works that way, being required to enforce B’s claim against A (in some particular way), should B make the claim. In this way, standings to make claims are features of deontic systems of rules that implicate obligations to enforce claims that are obligations possessed by whoever is that is in what I’ll call the compliance-enforcement role.  In this way, claims are a function of the deontic rules of a practice that has agent, patient, and compliance-enforcement roles (in virtue of which one possesses obligations, permissions, etc.).  This seems like a better hypothesis than my earlier idea that claims come to practice-relative reasons for the patient to make claims (demands, objections, etc.).

It is possible that things like demands, objections and complaints get to be claims, when they are, only by being related to such a social practice (and one with the requisite general enforcer role).  It is possible, in other words, that a speech-act being a claim requires that it be part of a social practice characterized by the roles and role-associated obligations (or lack of obligation) as indicated.  I have to think more about what (descriptive) claims are and how they are different from objections, complaints, demands, etc.

21 thoughts on “Rethinking rights (3): what it is for B to have a claim against A that A perform PHI?

  1. I’m not sure this really elucidates what it is to “have standing,” to be “permitted,” or to have an “obligation.” Suppose I’m a very inept Martian anthropologist: what are you talking about?

    Obviously it’s not as though I have no idea what you’re talking about, but I do think that all these ideas are more often appealed to than elucidated, and I’m not wholly convinced that they actually make complete sense. My historicist hackles are especially inclined to raise at talk of “permissibility” and the like; why shouldn’t I go full Anscombe/MacIntyre on that language and dismiss it as an outmoded relic of late Medieval/early Modern divine command ethics and its legalistic conception of morality?

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    • Thanks, David. Helpful.

      I’m trying to elucidate the non-normative (or conditionally normative) Hohfeldian incident of having a (broadly normative) claim in terms of having standing to make (descriptive) claims – and this in terms of the deontic rules (or their absence) as they apply to agent, patient, and compliance-enforcement roles in a social practice. This would also help us analyze inherently-claim-involving interpersonal deontic rules (maybe think of these as prescriptions?). I’m really just talking about how certain sorts of social practices go (or really ought to go), here.

      In the case of games, there are some pretty well-established ways of explaining one having conclusive reason to follow the rules of a practice (perhaps via one participating in the practice and having sufficient reason to do so) – a normative obligation of sorts – in terms of the deontic rules that specify how the game goes. I suspect that legal obligations can be explained on something very much like this model.

      The hope, with respect to moral obligations and rights, is that, when we get to the adding-in-the-normativity part of the story, what we get is (genuinely normative) obligations that are not so mysterious that one is tempted by the Anscombe/MacIntyre line. On the other hand, at this point on down the explanatory line, an intuitionist might claim that moral obligations are sui generis, somewhat mysterious things and that what I could come up with in this way could not account for such things. I’ve suggested, pretty much just in passing without working out any details or fielding any objections, that we both have no choice about interacting with others in the moral manner (as evidence, at the deepest level, by our reactive attitudes and the sorts of actions that they motivate) and have strong non-instrumental reasons – perhaps as a function of relevant non-instrumental desires – to realize the general methods of the moral way of interacting with others and to achieve or promote the substantive aims that this way of interacting with others tends to bring about. (An apt comparison here is with our belief-forming processes and our non-instrumental reasons to achieve true belief and form beliefs in an evidence-sensitive way.)

      The proof is in the pudding and I haven’t really made the pudding yet – and don’t really intend to, here and now. I would hope that this general picture has some promise in upholding the existence of something that counts as moral obligation (contra Anscombe/MacIntyre, who are fairly enough characterized as eliminationists about moral obligation) but something that is not as mysterious as intuitionists like Mike Huemer (and perhaps commonsense morality in some cultures, perhaps ours) would have it. One way in which I could fail is by the Anscombe/MacIntyre line being right!

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      • Here is another proposal (along the same lines, but somewhat more promising, I think). Perhaps this is true: In practice P (that we may or may not have any reason to participate in and may or may not be participating in), B having standing to make a claim against A that A perform PHI comes to: B’s making the relevant claim against B being a reason, in P, for A to comply with the correlative rule (obligation, requirement). On this proposal, claim-making (and sensitivity to claim-making) is a “second personal” way of enforcing the rules and (normative) claims concern the normative powers (the reason-providing nature) of claim-making (that is of the right sort to motivate compliance with the rules).

        I think this is a simpler story and a more intuitive one. Though the idea of public, third-personal compliance-enforcement (and perhaps special roles in a practice for them) might turn out to be important for a full description of moral or legal practice, I’m not sure we need it to explain what (normative) claims are.

        This kind of model neither answers the normative question nor answers the question of what (descriptive) claims come to attitude-wise.

        It seems likely that (descriptive) claims – and appropriate-claim responsiveness or appropriate-claim-provided reasons for compliance – concern reactive attitudes and that these are at the core of what puts us in the moral relationship to others and makes us naturally “fall into” a manner of interacting with others that counts as a kind of moral interaction (however short of relevant moral ideals it might fall). We may, then, need to understand reactive attitudes and the sort of social relationships these motivate (i.e., moral practice) before we can fully understand how multi-player, rule-governed games of the sort I described in my post work. It seems likely that we make use of moral attitudes and moral patterns of interaction in constructing such social practices. So the game or generic-rule-governed-social-practice model, though perhaps helpful in some ways, may be limited in important respects.

        Though further input on this issue is welcome, I feel like I’ve done enough metaethical “groundwork” to have some tentative idea of what sorts of things the Hohfeldian incidents refer to. In my next post, I think I’ll focus on moral obligations and how different patterns of them (specified in Hohfeldian terms) would function in different ways in actual moral practice if we followed them well enough (e.g., to realize a respect for agency or free choice, to realize a respect for dignity, to promote well-being, to assure that needed aid is rendered, etc.).

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  2. If I’m understanding you correctly, I think your project here is not only at least broadly on the right track, but the right way to make sense of things like obligation, “permissibility,” etc. One reason the game analogy seems helpful is that we have no trouble making sense of these ideas in the context of games; if we can see certain practices as analogous to games that we can’t reasonably opt not to play, then we get all the “inescapability” of moral obligations and the like that we need.

    That won’t satisfy some folks, who would object that your project makes morality too derivative, but to my mind it’s precisely that “derivative” character that is one of the main virtues of your account. I don’t think it’s only intuitionists who think of moral demands in some sort of non-naturalist, sui generis way who would object. I once heard Stephen Darwall, for example, respond to a question by saying something like, “no, you just can’t do that, that’s a human being you’re talking about”; from his objections to eudaimonism I suspect that he would object to any attempt to ground what he calls “second-personal” reasons on anything else.

    But — and here’s where you and I might go in different directions — I don’t think it’s really sensible to suppose that acceptance of second-personal demands or their equivalents is not optional for us because our reactive attitudes are so deeply engrained in our psychology. As a matter of psychological fact, it seems clear that people violate moral demands pretty frequently without suffering any sort of dissatisfaction. Even if we suppose that the reactive attitudes give everyone some reason to adhere to moral demands, and hence that everyone who has those attitudes can be motivated to adhere to them, it won’t follow that they have decisive reason to do so. Otherwise put, my objection to views like Darwall’s, as I understand him, is that they don’t secure the “inescapability” of moral demands, and that any view that refuses to ground moral obligations on the agent’s own well-being will likewise fail to secure it. To the extent that your approach seeks to give reactive attitudes a foundational role, I think it will fail for the same reasons. Since you are a Humean, you may not be bothered by the implication that morality is in principle optional so long as adherence to it will be psychologically compelling often enough. I just don’t think it is psychologically compelling often enough.

    For what it’s worth, I don’t read Anscombe or MacIntyre as eliminativists about moral obligation. At least, if they’re eliminativists, then you are too I think. What they reject is the notion that there are sui generis moral obligations that do not depend for their content or their obligatory force on the agent’s own good. They opt for rejecting the language of “moral obligation” because they identity it with the conception of moral obligation most famously and starkly articulated in Pritchard’s “Does Moral Philosophy Rest on a Mistake?” MacIntyre and Anscombe both believe that there are many things that are unconditionally just or unjust and that unjust acts are never good human acts; Anscombe simply thinks that an atheist cannot adequately support the claim that it is never under any circumstances permissible to do something that is unjust. In part this is because she thinks the very concept of permissibility makes sense only in a legalistic context that can be genuinely inescapable only if God exists and is a law-giver. In part it is because she thinks that without the wider theistic context it can’t be shown that nobody should ever do something unjust, even when refusing would have horrendous consequences. I think she’s pretty much right about that; it seems sensible for a theist to deny the possibility of tragic dilemmas, for example, but not for an atheist (though I suspect Irfan disagrees!). These are obviously somewhat trivial exegetical points; I make them only to suggest that Anscombe and MacIntyre might be less opposed to your sort of project than Darwall & co.

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    • Thanks, David. There are some very broad agreements, here.

      Some feedback:

      (1) INESCAPABILITY. As a preliminary in understanding and making use of the Hohfeldian formal characterization of rights, I’m trying to get a grip on what interpersonal obligations (and corresponding claims) are. Since games can be structured so that players have, relative to the game and their participation in it, obligations and corresponding claims (that seem to come to having standing to make claims, where claims are speech-acts), they seem to provide a promising model for understanding moral (or legal) obligations and corresponding claims. Since these things are pretty hard to understand (and fit into the natural world), we should jump on any opportunity we have to potentially explain and understand them. Using this model, I would distinguish between merely-conditionally-normative standards that govern practices (the nature of the practice and its rules) and things we might be able to do (or conditions that we might meet) such that we have genuinely normative obligations (and standing to make claims). Just what this additional relevant-normativity-providing element might be, I have not said (not in any detail). But I’m pretty skeptical of the idea (suggested by you, on my behalf) that we get the right kind of “inescapability” (say, for basic moral obligations) by it being, say, psychologically impossible for us not to relate to others in the moral way. Though this might secure something analogous to one participating in a rule-governed game (and inescapably, in an obvious sense), I think that, fundamentally, the “inescapability” element needs to be normative. It might be something like having overwhelmingly strong reason (whether non-instrumental, instrumental or both) – inescapable relative to the basic psychological make-up of humans – to engage others, or continue engaging others, in the broadly moral way (and hence take seriously the procedural and telic functional standards or norms inherent in thus engaging others). Plausibly, it goes something like this in the case of our coming to be governed by the norms of responsibly managing our beliefs (having relevant true beliefs, and hence managing our beliefs in an evidence-sensitive way, being both in some respects inherently reason-giving and tremendously instrumentally valuable in a general or systemic way).

      (2) REACTIVE ATTITUDES AND NORMATIVITY. I’m not supposing the reactive attitudes provide us with reasons for action. They might, but their relevance for my purposes is that (most of us) cannot help but have them in interacting with others (and in response to particular sorts of things, like others causing us negligent or intentional harms) – and, more importantly, in having and behaving on the basis of them we come to be participating (however badly or well) in the practice of morally engaging others. How, precisely, we get the normativity (or the right sort of normativity) into the picture is at least something of a different issue.

      (Compare our motivation not to maintain beliefs against conclusive evidence to, say, our motivation to object to others intentionally doing us harm for no reason beyond her own convenience. Arguably, we don’t – yet – have normativity in either case. We might get it, though, if these motivations are sanctioned by the agent in light of the nature and functional standards of the practice (epistemic, moral) in which she is engaged – and in light of ubiquitous, strong non-instrumental and instrumental reasons to be engaged in the practice. On this sort of Humean view, you need more than motivation for normativity. You also need the agent participating in a rule-governed practice and evaluating her performance in the practice, and perhaps herself, in light of the procedural and telic functional standards of the practice and in light of the instrumental and non-instrumental use of the practice and its elements.)

      (3) EUDAIMONISTIC REASONS FOR BEING MORAL. We both seem to agree that the broadly instrumental (including “realizational”) use or value of relating to others in the moral manner (broadly construed as following rules against harming others, others having standing to make claims against one if there is a danger of one breaking the rules, etc.) is important to giving moral obligations their full normative “oomph.” But I think we differ on the issue of whether reference to personal well-being and an antecedent reason to realize or promote it is what does the explanatory work (you say ‘yes’, I say ‘no’). I give my answer because I’m concerned to explain normativity per se – and because I don’t think that moral reasons are explained by reference to eudaimonistic reasons plus relevant instrumental/constitutional/realization-related facts). However, as indicated in the above parenthetical, I suspect that the story of moral normativity does include reference to the sorts of non-moral desires and values that humans strongly tend to have (many but not all of which are aptly described as benefits to the agent). Additionally, it is plausible that the rules and aims of moral practice are perhaps uniquely helpful in providing standards for self-evaluation and thus helping us fulfill the basic human desire to evaluate particular desires, behaviors and ourselves in a positive way, by reference to correct or reasonable standards (this suggestion is similar to Valerie Tiberius’s Humean view). So despite not following your explanatory model here, I think my proposal has quite a bit of potential overlap with eudaimonistic approaches to the why-be-moral question.

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  3. Michael,

    I’ve been away for a bit, so I’m just now trying to catch up on PoT discussions. I’ll try to go back and comment on your other rights post this week, but I have a quick comment on this one: I am totally baffled by what you say here. I not only don’t understand the rationale for the first move, I can’t think of one that would motivate it:

    Plausibly, patients having claims against agents comes to patients having standing to make claims (object, demand, complain, etc.). What does such “standing” come to, though? In order to understand this, perhaps we need to think of the relevant system of rules as being rules for a rule-governed social practice. In short, perhaps we need to think in terms of social practices, how they function, what their aims are.

    Why does standing have anything to do with systems of rules or rule-governed practices? I agree that it’s plausible that patients having claims against agents comes to patients’ having (moral) standing, but why isn’t having-moral-standing just a matter of being a human being, or perhaps more neutrally, being a morally relevant kind of entity? In other words, why isn’t it a matter of metaphysics rather than social rules?

    I also don’t see why having standing should be cashed out in terms of speech acts as opposed to being potentially violable (as the kind of moral entity that has claims that can be violated). What if the patient can’t speak, in the sense of being literally incapable of speech?

    There just seem to be a huge number of examples of paradigmatic cases of patients having claims against agents, especially in rights-type contexts, that have nothing to do with rule-governed social practices or patients’ literally making the relevant claim in a speech act.

    1. A stray cat wanders onto my property. I pour gasoline on it and light it up. Possibly, the cat is a patient with a claim on me to refrain from that behavior. At least we wouldn’t want to exclude that possibility at the outset.

    2. A child wanders onto my property. I realize that the child has an IQ of 60 and can’t string together a coherent thought (is therefore incapable of making speech acts). Turns out that the child is an orphan with no living relatives or even friends. I pour gasoline on her and light her up. Plausibly, she’s a patient with a claim on me to refrain from doing that.

    3. I’m walking in the woods. I’m armed. I see someone (a person), who’s a complete stranger to me. I don’t own the woods, so he’s not trespassing (ex hypothesi, the woods are unowned). There is no sense in which the stranger has aggressed against me, or that I feel threatened by him. I just think, “Wouldn’t it be fun to put a bullet in his head?” I do that. Plausibly, the stranger had a claim to my not shooting him.

    4. I homestead a previously unowned piece of land in a Lockean State of Nature. What I’ve appropriated is very modest in size and scope. In other words, I’ve met some equivalent of a Lockean Proviso (whether specifically Lockean or not doesn’t matter), and have clearly marked out my property. You make an appearance. You come from some faraway land. Neither of us knows anything about the property system of the other party, and there is neither a legal system nor even an informal system of rules governing us. Though we can both speak, neither can speak to the other: we don’t speak the same language. Don’t I have a claim against your just barging in and taking my stuff? There’s no need for any “system” of rules here, just for adherence to the norm that people’s property rights ought to be respected.

    5. Same example as 4. Don’t I have a claim against your barging in and deliberately giving me smallpox?

    6. Same example as 4. You make camp nearby (off of my property), but are careless with your campfire. Don’t I have a claim to your care-with-fire, so that you don’t put me at risk of having a fire? We’ve never exchanged a word (let’s say) and there is no public system of rules governing campfires where we are. Now suppose that you are careless, but that by sheer good luck, nothing bad transpires, and I never learn about your carelessness. Doesn’t your carelessness still violate my claim to your care even if my objection/claim/demand to that carelessness is purely counterfactual?

    Cases 1-6 suggest to me that there are paradigmatic instances of moral standing involving claims that are much more basic than ones that are to be cashed out in terms of socially governed systems of rules.

    PS. I was responding above to the original post; I hadn’t read the comments when I wrote the above, so what I say above may not apply to what you say in the comments.

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    • It’s for Michael to defend, but I took it that (a) he’s focused on the paradigm case, not on what holds in every case, many of which we might need to understand in relation to the paradigm, so that when it comes to people (or animals) that can’t actually engage in speech-acts, we might still nonetheless understand them as rights-bearers by virtue of relevant similarities to people who can. I also understood that (b) there is not really a social/metaphysical dichotomy here, or at least need not be one; if the idea is that human beings need to engage in certain kinds of rule-governed social practices in order to live well, then objecting that the account is social rather than metaphysical is pretty much a non-starter.

      But of course that’s me talking about how I think my version of Michael’s basic approach might go, and he and I are clearly at odds on some things, so we should hear from him.

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      • I guess the issue here goes to what counts as paradigmatic. I see two distinct issues here.

        (1) I agree that speech-capable agents are paradigmatic, and non-speech-capable patients are not, qua makers of claims. But it’s not clear to me that speech-capable agents are paradigmatic qua havers-of-claims-against-others. Let’s put aside animals as overly controversial. Isn’t it a platitude that if “we” have claims against being-murdered, both infants have them and adults have them? Or is the platitude, rather, that if infants have them, they have them in virtue of whatever similarities they bear to adults, who paradigmatically have them? Two very different starting points. Whatever the answer, it seems to me that that meta-issue has to be resolved before Michael can make the move he makes in the post.

        Incidentally, I put an animal case on the list not because I think they literally have full-blown rights (I don’t) but because if one takes Michael’s line, animals become non-paradigmatic in the sense of being not just “marginal” but of marginal normative significance. Animals are so far from Michael’s starting point that it’s unclear that one can understand them as rights-bearers by virtue of relevant similarities to that paradigm. That’s not a conclusion that bothers me, since I don’t think animals have rights. But it’s a conclusion that would bother anyone who did insist that they have rights. Such a person would regard sheer capacity for pain and suffering as sufficient for moral standing (vis-a-vis having claims), and regard Michael’s starting point as question-begging.

        (2) I do regard State of Nature-type cases as paradigmatic, and think that cases involving claims relative to practices and rule guided systems ought to be defined in terms of them. We tend to forget that a theory of rights is (at least) supposed to be a theory of the rights of human beings qua human, not a theory of norms governing societies under legalistic systems of rules. So a theory of rights has to apply both to human civilization and to human pre-history (as Michael himself mentioned in a previous post). At a conservative estimate, human pre-history constitutes about 90% of the history of the human species, and all 490,000 years of that time was spent in a Lockean State of Nature making claims like (1)-(6). Putting aside a few anachronisms (e.g., guns) that’s what my examples were intended to capture. An account of claims or rights that can’t explain 90% of human history fails, in my view. But an account that can, should also be able to explain why rule-guided systems and practices are improvements on the more primitive norms that handle the primitive cases. By contrast, an account that treats a (somewhat cuturally bounded conception of) rules and practices as paradigmatic threatens to be too narrow to handle the primitive cases. That’s my worry about Michael’s move. In effect, he’s taken our civilization as paradigmatic and abstracted from the systems and practices to be found in it. Normatively perhaps it is paradigmatic; descriptively, it definitely isn’t.

        Of course a lot of this turns on what we mean by “paradigm case.”

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  4. (1) I don’t think either of the candidates for platitude status should be taken as platitudes. I think whoever wants to take one view needs to defend it and criticize the other. I might be a coherentist, but I’m not an intuitionist, and I don’t think Michael is either. Granted that he needs to address the point, I don’t think his approach is baffling at all, nor that he needs to address it before he makes the moves he makes in his post. Part of an argument for taking his approach might be that it can produce a better account overall than the alternative. We can’t know whether that’s so until he addresses the sorts of objections you raise, but why should we think that the apparent disagreements between you and him can be resolved without appeal to some sort of broader theory like the one he’s laying out? What are the undeniable, neutral starting-points supposed to be? Certainly nothing you’ve put forth so far could play that role.

    (2) Perhaps we have a deep disagreement here, or perhaps we’re simply thinking about social practices differently. If the state of nature is just a condition in which there is no state, and so no public, explicitly formulated rules enforced by a publicly recognized authority, then there can be and are still rule-governed social practices in the state of nature. If the state of nature is supposed to be a condition in which there are no established rule-governed social practices, I’m not sure why we should take it seriously, but we can do that without any problems, I think. To say that rights are internal to social practices need not entail that people with whom we do not actually share in social practices have no claims on us; it is merely to say that we can understand the point and rationale of rights only within the framework of social practices. Of course, that could mean that there are no rights where there is not an established social practice of the right sort. But if part of the point of Michael’s approach is to show that we have reason to recognize and respect rights claims against each other because participating in the relevant sorts of social practices and relations is crucial or even strictly necessary for our living well, then we will rightly regard ourselves as having reasons to initiate and sustain those kinds of relations and practices with others even when they haven’t yet been established.

    Considerations like these reinforce my impulse to minimize the importance of the concept of rights and make justice the more foundational notion. Ultimately I think it’s just terminological, but the ideas that rights are somehow foundational, that they are something like monadic properties of individuals, and that they somehow constrain the reasonable acts of others quite independently of those others’ own welfare all seem to creep back in one way or another. Perhaps you don’t intend to head in that direction, but it’s difficult for me to see from what you’ve written above how you would be satisfied with anything else. You’re an egoist, right? So you should think that the rights you have “against” others are actually grounded in part in the role that respecting your rights plays in those others’ achievement of their own genuine interests, rather than an external constraint on their pursuit of their own genuine interests? If so, how could you fail to see rights as inherently social, and how much does your view really differ fundamentally from Michael’s? If not, how is your conception of rights consistent with your egoism?

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    • On (1): I think your response misses the basic point of the question I’m asking Michael. Michael’s in the position of having made a suggestion that p, and fundamentally, all I’m committed to is asking: why p? The rest is just an articulation of a possible motivation for wondering why p, not the articulation of an independent thesis. Surely asking why p doesn’t commit me to all that much. If I deleted everything that follows my question “Why p?” my point would stand–mostly because it’s not an independent “point” at all, but a question.

      But I do find p pretty baffling because I don’t a priori see why it would be better than an alternative account of claims. Michael articulates the thesis but doesn’t explain the motivation for it. His claim is that in order for A to have moral standing to make a claim on another person, B, they both have to be part of the same system of rules, engaged in the same sets of social practices with a common enforcement mechanism: “It is possible that things like demands, objections and complaints get to be claims, when they are, only by being related to such a social practice (and one with the requisite general enforcer role)” (my emphasis).

      Only? Ignore everything else I say: isn’t it a legitimate question how that “only” becomes a starting point, or constrains the rest of the inquiry? The thesis entails that if A and B are not at all related to a common social practice/social system, then they can make no claims on one another at all. If you specify the thesis, it seems to entail that A can kill B at will. I’m neither an intuitionist nor a coherentist, so I think that we ultimately need an argument (even) for the wrongness of killing at will; a fully justified believer has to be justified in believing that killing at will is wrong in virtue of some first principle that does the justificatory work.

      Still, you don’t need much theoretical machinery to see that there’s potentially an astronomical price to be paid here on Michael’s view. Recall that his thesis is about claims, not rights. Neither he nor I was saying that rights were “foundational.” If the claims he’s discussing are claims of justice (perfectly compatible with everything he says), then it’s not going to help him to insist that justice rather than rights is foundational. On the face of it, there’s just a mismatch here between Michael’s approach and beliefs that we three interlocutors presumptively share in common. I assume that the three of us agree that one can’t kill people at will, regardless of whether we share systems or practices with them or not. But then how would he account for that, given the tack he takes?

      It certainly seems more obvious that it’s wrong to kill human beings at will than that we can only make claims (whether of rights or justice) relative to membership in a common social system. If you had to give up one claim, it seems obvious to me that the latter is the one to go. But I’m not using “seems obvious” as a means of establishing either claim. I’m just trying to figure out how Michael wants to handle the kinds of cases I mentioned, and trying to figure out what price he’s willing to pay on what. It seems to me that you’ve turned my query into a full-blown thesis. But it’s a query, not a thesis. Michael is the one asserting a thesis. He bears the burden of proof, and I’m pressing him to satisfy that burden.

      (2) I don’t think your comment about the State of Nature really makes contact with what I’m saying. Yes, the State of Nature is a condition in which there is no state (government), no legal system involving the rule of law, no common enforcement mechanism, hence “no explicitly formulated rules enforced by a publicly recognized authority.” Yes there can be rule-governed social practices in the State of Nature, but the point is, there need not be.

      The challenge to Michael concerns the gigantic proper subset of cases in which there are no common rule-governed social practices between persons, where those persons stand to one another as agent to patient, and where the patient could plausibly be construed as having or making a claim on the agent. You dismiss such cases as though they could somehow be ignored, but I’m saying that they’ve been ubiquitous for half a million years of human history. A modern example: If I am sitting at a computer console in Florida with power over weapon-bearing drones, I can send those drones to Waziristan or Yemen and kill hundreds or thousands of people who are in no sense part of any social system or practice of mine. They’re in a State of Nature with respect to me (and vice versa). To say that they have no claims is a large bullet to bite.

      The drone example is modern, but non-modern examples are easy enough to drum up. People have been facing in-group/out-group conflicts since the rise of Homo sapiens. Columbus’s encounter with the Arawak is just the most familiar version of an encounter that happened a million times before 1492, and happened a million times after. Legal systems have only come into existence at the tail-end of human history. It’s the State of Nature and not rule-guided social practice that characterizes the bulk of human history. Cro-Magnon hunting parties may well have had social practices and rules from the outset, but the point is, one hunting party need not have shared practices or rules with out-groups.

      You (David) say:

      To say that rights are internal to social practices need not entail that people with whom we do not actually share in social practices have no claims on us; it is merely to say that we can understand the point and rationale of rights only within the framework of social practices.

      But Michael is not saying that rights are internal to social practices. He’s saying that claims are. If claims as such are internal to practices (and rights are a species of claim), then I don’t see why the entailment doesn’t go through. Does Hunting Party A from the North not have claims against Hunting Party B from the South if they’ve never engaged with one another before? If the answer is “yes,” the thesis relativizes assertions about claims in a pretty drastic way.

      As for this:

      But if part of the point of Michael’s approach is to show that we have reason to recognize and respect rights claims against each other because participating in the relevant sorts of social practices and relations is crucial or even strictly necessary for our living well, then we will rightly regard ourselves as having reasons to initiate and sustain those kinds of relations and practices with others even when they haven’t yet been established.

      The consequent is only plausible if those others are entities sufficiently like us so that the reasons that apply to us would also apply to them. That was the point I was making about metaphysics. I didn’t take it to cut against the social character or function of rights, but to be more fundamental than that. I think it makes more sense to begin with what it is about us that makes it the case that the claims that apply within social practices could in principle apply to those outside of them. That’s what gives standing to make (moral) claims, and what explains why social animals can’t make claims even when we can model their behavior on exactly the kinds of games that Michael is invoking in his post (as we can). It’s not sociality per se, or even rule-guided sociality with goods internal to practices, that does the explanatory work. It’s that specifically moral entities have a dignity or status that other entities don’t. I know how Kantian that sounds, but I don’t think the Kantian-sounding language is incompatible with egoism. It just specifies the kind of thing that can be an egoist in the first place.

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      • Hi guys. I would like to try my hand at a reply to Irfan, despite my feeling of being underqualified compared to you all. I am unfamiliar with a lot of the literature that forms the background to this discussion. Nevertheless the topic has puzzled me for a while, and I welcome the chance to explore it with the discipline of written discussion, especially in a group with as many shared premises as we seem to have.

        By “the topic,” I should explain that what interests me specifically in this ongoing discussion is the relation of rights to ethics in general. We treat rights deontologically, as rules whose normative force does not depend on their accomplishing or promoting any ends; i.e., as rules that are to be followed “just because.” We also treat them as having a peculiar degree of importance capable of trumping most or perhaps even all other considerations. To violate or fail to honor someone’s rights is universally treated as a very grave matter, justified only in the gravest of circumstances. Many people think it can never be justified at all.

        This is not how we think of ethics in the broader sense of living a morally admirable life. It is morally admirable to have the courage of one’s convictions, not to mention other forms of courage, to have integrity, to avoid vanity and boastfulness, to be charitable, to be kind, especially toward those in circumstances inferior to one’s own, to not “keep count” of favors, debts, chores and the like with one’s associates, to be happy for the success of others, not resentful, to exercise prudence, not wantonness, to keep one’s cool under stress, and so forth. When I observe anyone who seems better at following any of these precepts than me, I think that in that respect he’s a better person than I am. And it makes me sorry that I’m not a better person. But it does not make me think that I have “done wrong.” We do not treat these precepts as trumping nearly all other considerations, nor do we treat them as deontological rules we have to follow just because. Rather, they seem to be part of what it is to live well and happily.

        For just this reason, some people would not regard them as moral precepts. For some people, morality just is a set of rules directing us in certain circumstances to sacrifice our interests to other people’s. For such people, there is no mystery about the special status of rights, because rights don’t have a special status. For such people, rights are just moral rules of fundamentally the same sort as any other, only in a political rather than a personal context.

        But we are not such people. (I think most people are not such people.) This is part of what I meant by shared premises. I have the impression we would all agree that ethics in general is fundamentally about promoting human well-being and is therefore in a loose sense a consequentialist enterprise. For this reason also, violation of the personal moral precepts I mentioned above may be unfortunate, bad, suboptimal, etc., but to call it “wrong” sounds off key.

        So the problem is this: Assuming that rights derive from some more fundamental, general ethical theory, and that this theory is consequentialist in the loose sense I just described, how is it that rights have the deontological character they do? How are deontological rights derived from consequentialist ethics? And what exactly is the status of rights? What if any limitations does this situation impose on rights?

        Now as to the discussion at hand, I hope the foregoing makes it slightly less baffling why rights should exist only as part of a system of rules laid down explicitly by a given society. I currently find it hard to see how else they could exist. What exists otherwise are precepts or guidelines or principles for happy living. If one fails to follow them to the letter in a given instance, well tant pis, try harder next time. Rights aren’t like that. Rights must be followed regardless of particular outcomes, and to violate them requires a mighty good excuse. This makes sense if rights are conceived as rules of a game like chess. Why do we play chess in accordance with the rules we do? Because them’s the rules. Within the game, they are absolute, reasonless, “deontological” rules. And you must play by those rules, or you violate the whole game. You have stepped outside the game. Of course, we can step outside the game and ask why these particular rules. The answer is, they make it a good game. They make for happy players in a happy game. Why follow the rules? Why not cheat? Why not step outside the game? Well, why indeed? The rough answer seems to be that we need the game, and not merely for its pragmatic benefits but also because we are a game playing animal. We don’t seem able to be really happy in any other way.

        It seems to me that this analogy holds good for rights in every major respect. Within a given society, we treat rights as deontological givens. At least, normally we do. It is possible to question our fundamental rights and propose changes—“amendments to the constitution.” In that case, we ask why certain rights should or should not be respected and enforced. The answer is that they do or do not promote our good. We also might ask, as individuals, why not to cheat and violate rights if we are pretty sure we can get away with it. This is a valid question, and a very hard one. It is Hume’s problem of the sensible knave, Hobbes’s problem of the foole, Plato’s of the ring of Gyges. It is no easier to answer in the case of rights than in the case of chess. I take this as further confirmation of this approach to rights.

        It follows that rights are relative to the society in which they are constituted. Different societies may define different sets of rights with more or less equal validity, because (a) the link between what promotes human well-being in a social context and a specific code of rights is surely not so tight as to uniquely determine an optimal code, and (b) different societies will have different cultural and historical backgrounds, a different social character, making slight differences in rights appropriate for different societies, and (c) different environmental and technological contexts may make slightly different sets of rights of appropriate. I say slightly different, because I don’t expect great differences. I can see different societies having different attitudes about the extent to which caveat emptor applies, but I don’t think there will be any society without property rights and prohibitions on fraud.

        It also follows that there are no rights outside the society that constitutes them. Here we come at last to Irfan’s main challenge.

        I assume that the three of us agree that one can’t kill people at will, regardless of whether we share systems or practices with them or not. But then how would he [Michael] account for that, given the tack he takes?

        I mean to challenge this. Throughout your comment, in speaking of the state of nature, you say things like that one “can’t” do X, such a thing would be “wrong,” it would violate a person’s “moral claims,” and so forth. I am saying this sort of language is inappropriate. It implies that there is some sort of deontological, rights-like prohibition that would be violated by doing X in the state of nature. But there isn’t. There is only the ethics of well-being. I think, certainly, that other things equal it is best to deal with others on the basis of voluntary trade relations, not by force of arms. Just as I think it is best to exhibit courage, integrity, and so forth. These policies lead to better outcomes in many ways (not just in economic terms). But if on some occasion one fails to deal with others in the state of nature on a voluntary basis, one has not violated their “moral claims.” These do not exist between people in the state of nature.

        This is not to say, I should stress, that for example killing relatively powerless people in the state of nature in order to take their stuff is just fine. Clearly not. I would regard such a thing as very bad and would have a low opinion of the person who would do such a thing. I also regard wantonness as very bad and have a low opinion of wantons. But just because certain actions strike us as very bad and perhaps make us angry does not license us to invoke a conceptual apparatus—of rights—that is not in fact applicable.

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        • David (Potts),

          Thanks for the comment. I guess I have a disagreement right at the outset, with your way of setting up the topic.

          By “the topic,” I should explain that what interests me specifically in this ongoing discussion is the relation of rights to ethics in general. We treat rights deontologically, as rules whose normative force does not depend on their accomplishing or promoting any ends; i.e., as rules that are to be followed “just because.”

          People often insist that rights are deontic rules, but I don’t accept that. What’s essential to rights (we agree) is their stringency as norms go. Rights aren’t mere rules of thumb; they’re in some sense indefeasible, and they trump contrary considerations. I’m calling indefeasibility and trumping-power “stringency.” I don’t think a commitment to stringency entails a commitment to deontology. In other words, it’s possible to conceive of an object of pursuit–a complex end, like human flourishing or well-being–so that realization of that end requires stringent adherence to some norms.

          There are different ways of putting the point: In Anarchy, State, and Utopia, Robert Nozick says that rights-like constraints are “built into” valuable goals. In Moral Rights and Political Freedom, Tara Smith says that adherence to stringent norms like rights is part of the “select route” to the realization of the end of human flourishing. In “The Objectivist Ethics,” Rand says that her cardinal values and virtues are “the means to and realization of” the end of survival qua human. Some people will say that adherence to the norms is “constitutive of” realizing the end, or is “part of” realizing a valuable end. But these are all ways of saying the same thing: that teleology is perfectly compatible, in principle, with norm-stringency. A relatively simple case: If I want to be optimally healthy, I ought never to smoke. Or if you want a cheap-shot but more obviously stringent norm: if optimal health is your end, never take any poison in a toxic dose.

          As the preceding examples suggest, it may take some doing to formulate the norms so that they’re, say, genuinely indefeasible. The norms may apply contextually, so that you have to define the relevant context in a nitpicky way so as to get bona fide stringency. But Aristotle admits as much when he tells us that the feelings of schadenfreude (epikarekakia), shamelessness, and envy, and actions like adultery, theft, and murder always imply evil (Nicomachean Ethics II.6, around 1107a10). Maybe he’s just reporting a common belief, but he sounds to me like he’s endorsing the thought. Arguably, Aristotle is referring to rightness and wrongness in that same passage, but whether he is or he isn’t, I don’t see the conceptual difficulty in saying that his view implies norms like the following:

          1. Never act in such a way as to promote schadenfreude, shamelessness, or envy in yourself or others.
          2. Never commit adultery, theft, or murder (on some suitably refined account of these things).
          3. For any X that admits of a mean, never aim at excess or deficiency with respect to X.

          So far, we have no reference to “rights,” but we also have no reason to accept the sharp distinction you’ve introduced, between stringent norms and an ethic of well-being. So it seems to me that the distinction between what you’re calling deontological rules and “ethics in the broader sense of living a morally admirable life” is a false dichotomy. There is no conceptual need to insist on a sharp distinction, and I doubt whether the latter is really possible without a commitment to the former. In other words, I doubt anyone could live a morally admirable life without being committed to some very stringent rules. If something like integrity is a virtue (one of your examples), the virtue itself seems to require adherence to stringent rules. A person of integrity sticks to his principles in the face of contrary temptations. Same thing with honesty (my example). An honest person won’t lie even when a non-honest person might be tempted to. And so on.

          You say that when someone is better than you at following ethical precepts, you’re sorry you’re not as good a person as he is, but you don’t feel as though you’ve “done wrong.” First thing to note: what makes the other person better is their regarding the “precept” as a stringent norm when you regarded it as less than that. Doesn’t that suggest that well-being is compatible with stringency? Second, I think it’s perfectly natural to say that if your failure to adhere to a precept falls below a certain threshold, you’ve done wrong. It sounds counter-intuitive or counter-linguistic to say that you’ve done wrong simply because you’ve failed to do your best at adhering to a certain precept, but personally, I’d say that you have.

          Incidentally, I don’t agree that not keeping count of favors, debts, chores etc. is morally admirable. It only seems admirable because when morally admirable people interact, they typically maintain a rough parity re those things, so that there’s no need to keep count. But if one party stops returning favors, stops paying debts (etc.), it’s perfectly appropriate to keep count (and send them a bill for what they owe you).

          So here’s the question you pose. I guess my answer is obvious at this point.

          Assuming that rights derive from some more fundamental, general ethical theory, and that this theory is consequentialist in the loose sense I just described, how is it that rights have the deontological character they do?

          My answer is that they don’t. Rights are a species of the stringent norms required by the goal of living a morally admirable life, but we needn’t invoke deontology to explain their stringency any more than we need to invoke deontology to explain the stringency of an absolute ban on, say, self-deception. Rights are just one species of a well-populated genus of stringent but non-deontic norms.

          That helps explain why I reject your account of rights as norms to “be followed regardless of particular outcomes, and to violate them requires a mighty excuse.” I see what you mean, but I don’t agree. The quoted formulation seems to me to get things wrong with both conjuncts.

          Re the first conjunct: As I conceive of them, rights are sensitive to outcome. There are no (genuine) rights adherence to which subverts the agent’s good. If there aren’t, we have to conceive of rights ab initio so that they satisfy that description.

          Example: If you own something, X, then your right to X has to be understood in such a way that I never have the right to violate your right to X–with or without an excuse. Note that that doesn’t quite mean that I don’t have the right to use X in some odd circumstance without your permission. I have that right because you don’t have unlimited rights to use X in that odd circumstance. The standard Objectivist formulation is that rights are “contextually absolute.” I don’t know who coined that phrase, but I agree with it: for any right, there is some context such that, if properly specified, any violation of the right is always wrong (unjust).

          I hope that explains my rejection of the second conjunct: when rights are properly formulated (sensitive to context, etc.), then they’re (really) indefeasible, and no excuse will permit you to violate one.

          Given all that, I don’t see the attractions of modeling moral rights on games as you and Michael (and many others) want to do. The example you adduce, of amendments to the Constitution, seems to me (and I think, to you), to cut against the idea that rights have to operate within a system. Before 1863, slaves didn’t have rights within the American system. By 1865, there were no slaves. We changed the system on the basis of extra-systemic reasons. At this point, historians might come in and split various historiographical hairs, but that’s beside the point. Whatever the historical details, we all know what is meant by saying that before 1863 slaves had no rights within the American constitutional system; precisely because we stepped outside of that system, we gave them rights because we realized that they had rights. You say that rights should be respected our enforced because they do or don’t promote our good. But in that case, why maintain so sharp a boundary between an ethics of well-being and respect for rights?

          The European encounter with Native Americans is a clearer case than slavery. Slaves had some attenuated status within the American system. Native Americans had none. I suppose you could say that slavery took place within the triangular trade, which was a social system of some sort. But the encounter with Native Americans was just a stark inter-cultural encounter in a Lockean State of Nature (literally: as in, the State of Nature Locke himself had alluded to in the Second Treatise). Michael’s view–which relativizes both claims and rights–leaves it a mystery what would be wrong with killing any Natives that got in the way of a given colonists’ project for making a better life for himself in the New World.

          In saying that we can’t kill others at will, I meant to say that it’s wrong to do so, and took that as equivalent to saying that it violates their claims. But I don’t take that to commit me to any form of deontology. I don’t see any difference between saying “Other things equal, it is best to deal with others on the basis on voluntary trade relations,” and saying “When things are equal, others have a claim on you to interact with them on the basis of voluntary trade relations.” The bestness of the first sentence is perfectly compatible with the claim in the second. Yes, people regard “bestness” language as teleological and “claim” language as deontological, but that strikes me as artificial. If we’re social animals, then bestness-for-oneself will, in the context of social interaction, track the claims of others. And rights are (I suppose) a species of claims.

          I agree that the virtues and right action generally has to promote the well-being of the practitioner. It seems to me, however, that you’re insisting on a conception of “bestness” that denies that other persons have claims on us. I don’t see the rationale; it just seems like a false dichotomy. Couldn’t it be that what’s best for me requires that I treat you a certain way, and that you have a claim on me to that treatment? Your having a claim doesn’t require you to have one that subverts or even ignores my good. It could promote my good and still be a claim. Putting the point in somewhat Kantian terms (I seem to do this a lot), a course of action X could co-instantiate a duty to self and a duty to others where both duties promoted the agent’s good (See? I’m not a Kantian, goddammit).

          Anyway, that’s my story and I’m sticking to it. But I’m tired now, and have miles of grading to go before I sleep, so Riesbeck’s comment will have to wait until next week.

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  5. First of all, I’m sure Michael has good reasons for not responding, but seriously, dude, get back here and defend your own position! I’m losing ground!

    On (1), I don’t think we disagree much. You initially seemed to be me to be objecting that Michael can have no justification at all for proceeding in the way that he does unless he first addresses objections of the sort you raise. I think he has to address those objections, but that he needn’t be constrained to address them first. Maybe this difference comes down to the disagreement that we’ve noted before — that I am some kind of coherentist and you are some kind of foundationalist — but I’m not even sure it’s that serious. It may be more that you think the objection itself is powerful, and I think it’s likely to be easy for Michael to address. (We’ll see which it is if he ever comes back!)

    On (2), I don’t so much disagree with anything you say as fail to see how it cuts against what I’ve already said. I’ll let Michael say how he wants us to understand what a “claim” is, but it seems to me as though there is am ambiguity in the term that, once disambiguated, may leave us with less disagreement. A “claim” might be (a) something that you literally make against me, in the sense that you take some action that communicates something to the effect of, “hey, man, you can’t steal my cheetos!” or it might be (b) some strong, if not decisive, reason that I have to act or not act in certain ways towards you, in the sense that even when you aren’t around to make any claims, I still have ample reason to think, “I can’t steal Irfan’s cheetos.” It’s abundantly clear, I take it, why (a) presupposes a framework of social practices; if you can communicate anything to me, we must be interacting with each other and we must share some at least minimal understanding that allows you to communicate the equivalent of “you can’t steal my cheetos!” in a way that differs from, say, “if you take those cheetos I will attack you.” Now, (b) does not presuppose established social practices in the same way that (a) does. But it still presupposes a framework of social practice in the weaker sense that the mere thought “I can’t steal Irfan’s cheetos” requires me to think of you as someone with whom I at least can interact and as someone who owns — rather than merely happens to be using — some cheetos. If I am to make sense of why I shouldn’t steal your cheetos, then — plausibly, anyway — I must think of you as someone with whom I can at least in principle interact on shared terms of fairness and mutual benefit. One reason for thinking that non-rational animals cannot have rights or make claims against us is that they cannot in principle enter into these sorts of relations with us; that’s compatible with thinking (as I do) that we nonetheless have very strong reasons not to treat non-rational animals in certain ways — hell, I think we have very strong reasons not to treat plants and even non-living nature in certain ways — because not every reason we have not to treat something in a certain way is a matter of justice, rights, or claims.

    Otherwise put, if Michael’s thesis is that rights / claims / justice obtains only among people who already actually share in social practices the rules of which all parties understand, then I think your objections are not only sensible, I think they’re pretty compelling. But I don’t see that this is any part of his thesis. Whether I’m just projecting my own views onto his in the spirit of charity is for him to say (so some back, Michael!). But I would describe my own view of justice — and rights and claims to the extent that I’m willing to use that language — as making rights and claims inherently social, but not as having any of the problematic implications that you identify in Michael’s view.

    Finally, on egoism, I’d be gratified to hear more if you’re willing to write more. I’m pretty sure it isn’t the case, but fro what you’ve said so far I still don’t see how your claim that certain kinds of beings have a dignity or status that other beings don’t is consistent with egoism. Suppose I grant that in order to be an egoist, a being must have certain capacities that not all animals do. So what? Why does that give any other egoist reasons to respect that being’s rights, claims, or what have you? My own answer to that question is that we rational animals have reasons to cultivate certain kinds of relations with other rational animals and to eschew others. But that makes rights and claims inherently social, and while it makes rights and claims importantly contingent on the kind of being who bears them, it means that having a right or a claim is crucially a matter of other people having a duty, obligation, or some such thing to respect my rights/claims/whatever. If a lion kills and eats me, it doesn’t violate my rights or claims or do me an injustice; if you kill and eat me, you do, but that’s as much because of the kind of being that you are and the reasons that you have as it is because of the kind of being that I am.

    For good measure, I should perhaps mention that I hate cheetos. So if you happened to have some, I wouldn’t steal them, but not so much for reasons of justice as for aesthetic reasons.

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    • I not only hate cheetos but am allergic to cheese. So you can just have my cheetos for all I care. I make no claim to them. Feel free to give them to a marauding lion.

      More on rights later this weekend. I’ll see if I can rouse Michael while I’m at it, but in defense of him, I think the problem is that he has a semi-insane work schedule, like mine. So he’s not just free riding on your defense of him, though, given the subject matter, it would be really funny if he was.

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      • Yeah, I know I’m the one with the cushy teaching schedule and tons of free time to procrastinate from “real” work by posting here. If I weren’t so lazy I might write my own posts instead of free riding on other people’s posts.

        I’m sorry that you are allergic to cheese. Then again, if I were, I might find it easier to lose weight. But I’m not sure what this has to do with cheetos, because whatever that stuff on those things is, I’m pretty sure it isn’t cheese.

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        • What do you mean cheetos aren’t made of cheese? Next thing you’ll be saying that Cheese Whiz isn’t made of cheese. So why do they call it “Cheese Whiz” or cheetos? The stuff you post-docs come up with….

          PS. Where the hell is Michael, anyway?

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  6. Hey guys. Sorry. I was (still am) away for my step-sister’s wedding. Somewhat busy, but more importantly in a place where phone and internet connections are tenuous at best. Finally have a good one now, for a bit. My brain got a bit overloaded at the point of starting on David P’s comment. So right now I’ll just make a few preliminary comments.

    (1) I worry a bit that Irfan is assuming that the relevant rule-governed social practices (for moral claims or having standing to make moral claims) have to be actual, not merely possible. What I am (tentatively) claiming is that moral claims (or having moral standing to make claims) concern the claims that we would have in an ideal moral practice (that may not exist). For this reason, I don’t think that Irfan’s state-of-nature cases are good counter-examples to the sort of view that I have in mind.

    (2) Focusing again on Irfan’s initial reply (to my initial post), the motivation for explaining moral claims in terms of having standing to make claims relative to an ideal social practice is simply that there is a different sort of standing to make claims that is quite similar to the moral standing to make claims that is quite familiar – the sort of standing that exists in games, the law, and other rule-governed human institutions. The motive is simply to explain something that is hard to explain (and that it is tempting to give up on trying to explain or treat as sui generis and basic). I think David R. defends me pretty well on this point.

    (3) Returning to Irfan’s potential counter-examples, the case of those unable to make claims (to have the relevant reactive attitudes, perform the relevant speech-act) is an important one. David R’s general strategy for dealing with such cases is right. But Irfan is also right that I should say something about how it might go in the non-paradigm cases. If the relevant rules are rules against inflicting certain harms, we might imagine that, functionally, often the relevant non-first-personal motivations (and standards) are third-personal, not second-personal. It might well be, then, that cats and intelligent aliens have moral claims against each of us. All that would be required – at the generic level of the structure of the relevant sort of social practice – is that (a) the first-order rules for inflicting relevant harms apply to harms inflicted against cats, the severely mentally disabled, intelligent space aliens, etc. and (b) the relevant non-first-personal rule-compliance mechanisms in the practice are third-personal, not merely (and perhaps, in any given case, not even primarily) second-personal. And maybe ideal moral practice works this way, protecting, in this sort of way, cats, toddlers, the mentally disabled, and intelligent space aliens.

    That’s all I have time for, for now. I’ll read and address David P’s comments (and those subsequent) later today or tomorrow, if I have time.

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    • I’ll just make one last comment and then let someone else have the last word.

      First point: I don’t really see that an appeal to an ideal system or set of practices resolves the worry I have. Whether we’re talking real or ideal systems, if we model claims on moves in a game, the claims are in some sense relativized to the game, practice, or system. And on your view, “some sense” means “in a strong sense.” No matter how ideal, the appeal to systems, practices etc. has to preserve the distinction between “inside the system” and “outside the system.”

      The last paragraph of your post makes the very strong claim that something counts as a claim “only” if is related to a social practice. In that case, I don’t see how something’s going to count as a claim (at all) if it bears literally zero relation to a social practice of some kind. But that is what first-time cross-cultural encounter between radically alien cultures is like. In fact, that’s what cultural conflict is like, even when it’s not a first-time phenomenon. And it’s not just cross-cultural conflict that’s like that. These are cases of interaction where it seems plausible to think that we have claims, but not plausible to think that there’s a system. All interpersonal conflict in anything like a State of Nature is going to be like that.

      I suppose you could insist that cross-cultural encounter between radically alien cultures (whose members have never met) takes place within a highly idealized “system,” but that seems ad hoc. There’s no difference between saying that and just conceding that we have natural obligations to one another–or make claims on one another–qua human, unmediated by systems or practices.

      The advantage I see to taking natural moral obligations/claims as more basic than systems or practices is that if you do, you can then explain how systems or practices ought to codify our pre-existing claims on one another. But the reverse does not seem plausible to me. I don’t see how, starting with system-relative claims, you can then account for claims that involve human interactions that take place in States of Nature.

      Second point: I wouldn’t concede that the SON-type cases I was talking about are “non-paradigmatic.” The cases that you and David R are both describing as “non-paradigmatic” predominated for 90% of human history. The cases you’re both describing as “paradigmatic” constitute the tail end of human history, and even there, your paradigm cases ignore everything in that tail end–the last 10,000 years–that can’t plausibly be said to have taken place within systems or practices, e.g., international relations, cross-cultural encounter, even tribal encounter. Maybe being-a-paradigmatic-case doesn’t track being-the-predominant-kind-of-case-in-history, but then we need a criterion of “paradigmatic” in order to know what counts as paradigmatic.

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      • I think we are still talking past each other on the actual/ideal “systems” point. Maybe this helps: though the relevant practices need not exist, the relevant standards (for evaluating the practices) do. So, for example, when culture A meets culture B, each culture might have different specific conventional claims (with normative force in their cultures) concerning personal space. Say that culture A forbids face-to-face conversation that is closer than 16 inches (no codified rule, just the way the norms are internalized and enforced) and culture B forbids it closer than 30 inches (in the same way). Now suppose Ernie, from A, talks to Bert, from B, at a distance of 20 inches. Uh-oh. Bert objects and might fancy himself to have a universal moral claim against Ernie that he back up to 30 or more inches. But he is wrong. He has a universal moral claim that his personal space be respected (with respect to proximity in speaking). This latter, general sort of claim, not being actionable, is perhaps better seen as specifying a kind (or range) of specific, actionable claim that ought to be part of any moral culture (or characterize any moral relationship between persons). It is this latter sort of thing (not specific, conventional actionable claims) that I take to constitute a basic moral obligation (and corresponding claim).

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      • On second thought, I suspect that Irfan is onto something in being skeptical about my hypothesis that reasons to follow moral rules are relative to hypothetical or ideal moral practices and their rules. But I think there are some subtle reasons for accepting the point that he insists on (that the relativity has to be to some practice and set of rules governing it that exists in some sense) and for seeing why it is so easy for us to argue past each other on this point.

        In particular, the idea that we can understand our reasons for following moral rules on the model of our reasons for following the rules of a game is flawed because: (a) in the case of reasons to follow rules in a game, one of the antecedent elements that goes into explaining the reasons for following the rules is either an existing practice or some practice that we have thought up but not yet realized in the world but (b) it is most plausibly our having reason to follow any given moral rule R that goes into explaining the content of R (or why it is R rather than R* that we have reason to follow), not the other way around.

        Because, as theorists, we can abstract the normativity away from moral rules (thus treating morality, for theoretical purposes, as similar to some game that we might or might not have any reason to play), it is tempting to simply fall into the first explanatory model. After all, as theorists, we have this non-normative thing in our minds, just as we do in considering some game that we may or may not have any reason to play, so if we add in some appropriate element we’ll explain our reasons for following moral rules. We just have to figure out what the right element is. But, though this way of thinking might yield some explanatory benefits, it is not an instance of [a]. So we are not licensed to say that it is the moral rules plus some reason-giving element that explains our having reason to follow moral rules. All we are licensed to say is that our having reason to follow moral rules bears some relation or other to the moral rules considered non-normatively (as simply ways of behaving).

        Moreover, my further idea that we have basic, non-instrumental reasons to follow moral rules, suggests the second explanatory model, not the first – thus making the proposal as outlined implicitly incoherent (at least in the weak, explanatory sense of ‘incoherent’). For, most plausibly, it would be our having basic, non-instrumental reasons to follow the moral rules that would explain why there are moral rules and the content of the moral rules (again, considered non-normatively). My suggestion, then, that (roughly) “perhaps we get reasons to follow moral rules in broadly the same way that we get reasons to follow rules in games, the only difference being that we have basic, non-instrumental reason to follow the moral rules” exhibits the sort of incoherence just mentioned.

        I also suggested that universal moral rules are schematic in that they come with only a general kind of exception built in (e.g., “Don’t engage in violence against other people, except if there is exceptionally strong reason to do so”). This suggests that the precise content of any particular moral rule (and as well the precise contents of the entire set of moral rules) will depend on which way of filling in the universal rule-schema (or of filling in the universal set of rule-schemata) is appropriately sensitive to our other non-instrumental moral and non-moral reasons in the circumstances. This makes the question of what the business of moral rule-following “gets us” (what, other than the agent’s conformity to the rules, following the rules realizes or promotes) a pretty important one – not one the misunderstands the nature and normative force of morality.

        I suspect that, because the normativity of morality is, in essential and important part, an issue of basic normativity (or reasons), the explanation of why we have normative reason to follow moral rules and of why this reason normally “trumps” our other reasons, will be a special application of the more general explanation of what normative reasons to perform particular actions (and exhibit particular attitudes) are (and when these conditions are met).

        I’ll spare you all the particular Humean or desire-based picture of normativity that I think is the most promising candidate for doing all of this work. But suffice it to say that, with respect to our reasons for following moral rules, the kind of view that I have in mind would endorse neither Darwall’s “You simply don’t treat human beings that way!” nor the eudaimonist “Only by following the moral rules will you realize your well-being (and, as a primitive normative matter, your ultimate reason, the reason that explains all others, is your having reason to achieve your own well-being).” Maybe we can hash some of these really fundamental issues out some other time… But let’s get back to talking about the less fundamental aspects of the nature of rights and about what rights we have or don’t have (starting with my next post).

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  7. 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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