Are there pre-institutional (i.e., actual-institution-independent) rights?
If rights are composed of obligations that are essentially related to correlative claims, the way to answer this question might be via the question of whether there are pre-institutional claims.
But what is a normative claim (or one person having a claim against another)? Consider A’s claim against B that B refrain from physically assaulting A – or, more colloquially, our claim against others that they refrain from physically assaulting us.
(Forget about the sort of general or specific specifications of exceptions that might properly fill in this claim – and obligation and right – either universally or contextually. Specifying the content of the claim this precisely is not my concern. Yes, of course, you don’t have this claim if you have assaulted the other person first for no sufficiently good reason – and on and on for the other exceptions to the rule.)
Plausibly, claims essentially concern claim-making (objecting, demanding, etc.) and what it does for us socially. That, anyhow, is the seed of my way of thinking about claims, interpersonal obligations, and rights. Having rejected at least two hypotheses in this general area in previous posts and in my replies to good objections to my ideas:
(a) the idea that having a claim is having sufficient reason to make a claim (not plausible – me so silly)
(b) the idea that having a claim is identical to having standing to make a claim (that’s obviously false – me so silly) and that having standing to make a claim comes to such-and-such (fill in story about how rules in games specify who gets to go when and under what conditions + normativity-creating magic pixie dust),
I now have a better hypothesis. Here it is: to have a claim is for one’s relevant claim-making to play a particular sort of enforcement role in promoting compliance with good social rules or patterns of social response/interaction/relation. Paradigmatically, the enforcement role is second-personal, with the standing to make a claim accruing, at least in the first place, to the harmed party, where the rule is a rule against inflicting harms. This is, I know, a quick-and-dirty formulation, but I hope that the general idea is clear enough to talk about, draw out some implications from, etc.
(Here are the two previous posts/comments in which, among other things, I float my other, rejected hypotheses about what normative claims are: https://irfankhawajaphilosopher.com/2015/09/09/rethinking-rights-on-the-hohfeldian-formal-characterization-of-rights/
One thing that falls out of treating normative claims as this kind of social rule-compliance or rule-enforcement functional property (that is also a normative property – I’ll spare you my half-baked broadly Humean ideas about how we get the magic, normativity-creating pixie dust) is that they need not exist only in relation to existing social institutions and their rules (e.g., already-realized patterns of social action and and their mechanisms of enforcement, some set of formal or informal rules that society or some social authority already intends to enforce in some way). And, in the case at hand, the relevant functional property seems to be in the vicinity of promoting the existence of a social order in which, by and large, people refrain from physically assaulting one another whether or not such a social order already exists. So, on the present hypothesis, the claim against – and hence the right not to be – physically assaulted looks to be natural or pre-institutional (as implied by terms like ‘natural rights’ or ‘basic, universal human rights’). Even though the claim against – and hence right not to be – physically assaulted exists only relative to the sort of rule-enforcement (or rule-compliance-promoting) functional property indicated, a functional property that essentially aims at the production of a certain social order characterized by good-enough compliance with the relevant rule.
(My thoughts here were most immediately prompted by reading Will Wilkinson’s nice blog post arguing that all normative rights are institutional in the strong sense of being essentially relative to existing social institutions. This makes basic, universal human rights something of a fiction, however useful that fiction may be (and whatever relevant sorts of universal normative reasons there are to build up the relevant institutions and rules):
Obviously, Will and I disagree (and I don’t think the difference is merely semantic), but we share the fundamental idea that rights are “essentially institutional” in a very broad sense.)
Have I finally got a promising hypothesis here regarding what the normative claims inherent in interpersonal obligations and rights are? Does this hypothesis (or the best version of the more-general sort of hypothesis) imply that there could well be (and probably are) genuinely natural or actual-institution-independent rights?