Rethinking rights (4): a new proposal regarding normative claims (or the sense in which natural rights are institution-relative)

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/

https://irfankhawajaphilosopher.com/2015/09/22/rethinking-rights-3-what-it-is-for-b-to-have-a-claim-against-a-that-a-perform-phi/)

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):

http://www.willwilkinson.net/flybottle/2014/06/21/searle-on-universal-human-rights/

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?

20 thoughts on “Rethinking rights (4): a new proposal regarding normative claims (or the sense in which natural rights are institution-relative)

  1. Michael,

    I’m a little unclear on what you’re saying, so let me try a backdoor strategy. You say that your view is inspired by Will Wilkinson’s view. I find Wilkinson’s view partly implausible and partly nonsensical.

    The nonsensical part is the quasi-commitment to fictionalism. I think that you and I agree in rejecting what he’s saying there, so I won’t belabor the issue.

    But the rest of what he’s saying is unclear-to-implausible to me. Part of his claim is buried in Searle’s claim, which is itself a little obscure. But let me ignore Searle, too. This seems to be the crux of his (Wilkinson’s) view:

    Having rights of non-interference in the absence of a social fact that says so–in the absence of general convention to the effect that non-interference is due–seems to me the same thing as saying that there is, as a matter of actual social fact, no effective rights.

    I don’t see the argument for that, and don’t find the claim initially plausible. Wilkinson seems to be thinking of rights by analogy with legal claims. There, I’ll admit (though not everyone will), that it’s insufficient to assert a legal norm in the absence of a social convention for following it or enforcing it. Merely asserting a legal norm is the same as saying that there is as a matter of actual social fact, no effective rule of law. Fair enough. But it’s a big step to infer that what’s true of law is true of rights.

    So the unaddressed question here is, why identify rights with legal norms in this way? Most political philosophers think of moral rights as the non-institution-presupposing basis of legal norms. What’s wrong with doing so? As far as I can see, nothing in Wilkinson’s post or in the Searle excerpt addresses that question. (Incidentally, I don’t think Searle’s criticism of natural positive rights works, and the example he picks–a right to adequate housing–is a particularly bad one for the point he wants to make.)

    Wilkinson:

    It seems better to say that, on the basis of certain natural reasons, everyone ought to adopt certain norms or conventions of non-interference–which is a way of saying that people would have rights if people acknowledged the force of these reasons.

    I don’t get why he thinks “it seems better to say” any of that. I also don’t get the extent of your agreement/disagreement with Wilkinson.

    He seems to be taking a lot back with this:

    A further complicating factor is that there may be no natural reason to, say, acknowledge negative rights to property in the absence of the systems of social and institutional facts that make property claims clear, enforceable, and advantageous to more or less everyone. Our reasons to adopt certain norms or conventions of noninterference may depend on a substructure or scaffolding of prior social and institutional facts. In that case, it would seem odd to say these sorts of negative rights exist independently of the institutions that bring into being the reasons that supply those rights with their normative force.

    But here I’m just going to resurrect a claim I made a few months ago when we discussed this. Why does anyone need a “system of social and institutional facts” in order to stake a claim to property somewhere? Put differently, what counts as a “system”?

    Suppose that I appropriate some land (a modest parcel), clearly demarcate its boundaries, and put up No Trespassing signs. Suppose it was unowned before I got there, and I now come to own it.

    Wilkinson seems to be saying that it’s not mine unless there’s a “system” in place. Two problems: that seems far too strong (or read another way, too weak), and it seems to get things backwards.

    Too strong: In the ordinary sense of “system,” demarcating the boundaries of land and putting up No Trespassing signs doesn’t require a “system.” If Wilkinson thinks that a system is required, his view implies that the person in my example has literally appropriated nothing. I regard that as a reductio.

    Too weak: If he admits that the person in my example has legitimately appropriated something, he has to claim that demarcation + signs is a “system,” but that’s an overly weak or overly loose conception of a “system.” On this construal, the thesis may not literally be a reductio, but it’s pretty implausible.

    The view also gets things backwards. How can there be a “system” in place for the appropriation of an unowned parcel of land in a place that ex hypothesi I’m the first to encounter? Don’t you have to appropriate land somewhere before you get to create systems of norms to systematize and enforce there?

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    • Irfan –

      That was helpful. Several quick points:

      (i) The above post was inspired by Will’s only in that it got me thinking more about the sort of framework for thinking about rights that I had proposed here earlier – and specifically what might or might not be implied by this framework regarding whether rights (with normative force) do or can exist “pre-institutionally.”

      (ii) I took the first of your quotes from Will to be saying this: if rights are pre-institutional, then there are rights that have no social existence and are not effective. That’s exactly right, but it is just a way of setting up the issues. There is the actual-institution-independent normative feature or features (for Will, things like having strong reasons to, say, refrain from physically assaulting folks) and the actual-institution-dependent feature or features (for Will, something like normatively-appropriate conventions to the effect that it is due to one not to be physically assaulted by others). I agree that Will does not offer much by way of good reasons in his post as to why it is the latter sort of thing, not the former, that is a right (even when we are speaking of natural rights or basic, universal human rights). This does fly in the face of the common idea that (normative) rights, as opposed to being legal norms (that actually have normative force), are the basis for legal norms having normative force. Will’s view is that the basis for norms having normative force is reasons (like one’s reasons for refraining from assaulting other people). I think he would say that the idea of natural rights is something like a useful fiction, but one that ultimately obscures the truth. (I won’t address the second of your quotes from Will. The issues here are interesting, but I don’t think it is important to address them here.)

      (iii) My essential point is conceptual. In better, clearer, normative terms it is this: my claim not to be assaulted by others consists in the (broadly normative) fact that all of us have strong normative reason to participate in a rule-governed social system that includes the rule ‘do not physically assault other people’ (and its second-personal enforcement via those who are or would be assaulted asserting claims against actual or would-be assaulters against being physically assaulted). Because the relevant reasons here make essential reference to possible social institutions or practices, claims (and hence rights) are inherently relative to possible social institutions or practices. Hence, at the very least, the traditional use of ‘natural rights’ (and as well ‘basic, universal human rights’) is coherent: it might well refer to these sorts of reasons and hence this sort of “pre-institutional” normative feature. There is, then, no good motivation to say that terms like ‘natural rights’ do or must reflect some non-literal, fictive use (because, if they did not, they would be incoherent). It now strikes me, though, that Will might agree with me that the relevant reasons here essentially reference social institutions or practices. But I think that this makes it less likely that ‘rights’ in the normative sense, always mean something analogous to ‘legal right with normative force’. Terms such as ‘natural rights’ and ‘basic, universal human rights’ might simply refer to the relevant sorts of reasons (and, in so doing, refer to social institutions or practices). In fact, I think they do. And do I agree with you that ‘rights’ in this context refer to the normative basis upon which socially realized and enforced norms are normative (when they are).

      (iv) I don’t much care about negative versus positive rights, here. Though the issue is not unimportant, it is not quite the shiny object to me that it once was.

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  2. While I’m here, I may as well explain my comment on Searle on the right to adequate housing. My point in what follows is not (necessarily) that there actually is such a right, but that Searle’s criticism fails.

    The problems begin with Searle’s very ambiguous opening statement:

    Are you skeptical of the idea of universal human rights?

    No, I’m not skeptical about the idea of universal human rights. I’m skeptical about what I call positive rights. You see, if you look at the logical structure of rights, every right implies an obligation on someone else’s part. A right is always a right against somebody. If I have a right to park my car in your driveway, then you have an obligation not to interfere with my parking my car in your driveway. Now the idea of universal human rights is a remarkable idea because if there are such things, then all human beings are under an obligation to do—what?

    Yes, every right implies on an obligation on someone’s part, but they don’t necessarily do so in the way that Searle’s examples suggest. If I have a right to park my car in your driveway, then yes, you have an obligation not to interfere with my parking my car there. Not just you, but anyone who might interfere has the obligation.

    But rewind a step. Suppose that the question is not who has a right to park in an existing driveway, but who has a right to appropriate unowned resources and own them. Suppose ex hypothesi that a Lockean view is correct. In that case, I have to appropriate the unowned resource, refrain from wasting it, and leave enough and as good for others. Suppose that I am completely alone in appropriating the resource; no one else is anywhere in proximity, and no one will be.

    Now suppose that I violate the Lockean strictures. In that case, I’ve violated the rights of people who are nowhere in my proximity and who may never come into proximity of my property. In other words, I’ve violated the rights of potential but not actual appropriators. I don’t think Searle sufficiently accounts for the fact that I can have obligations to agents described in this way–not just agents you are interacting with, but agents you might interact with, but may never interact with.

    Now, it’s not entirely clear what counts as satisfaction of the Lockean Proviso (“leave enough and as good”). Arguably, there is no way to satisfy it. But suppose that I go to some unowned place and appropriate stuff for myself–a lot of stuff. It is not a priori incoherent to say that if my appropriation crosses a certain threshold, then leaving enough and as good requires the creation of adequate housing for others.

    This is what Searle says:

    But the idea that every human being, just in virtue of being a human being, has a right to adequate housing in a way that would impose an obligation on every other human being to provide that housing, that seems to me nonsense.

    The statement is either a strawman or an ignoratio elenchi (or both). Every human being qua human can have a right to adequate housing in the following sense: either every human has a right to appropriate sufficient resources from nature to build adequate housing for himself, or as a condition of doing so, he has to provide adequate housing for others so as to “leave enough and as good” for them.

    Whether the view is true or false, there’s nothing nonsensical about it. All you have to do is to define the positive right as a condition of an appropriator’s being permitted to appropriate, and then relativize the definition of “adequate housing” to existing resources. If I appropriate 100 acres on the best available farmland and build a nice shanty by it, maybe all I need to do to satisfy the LP is to build you a relatively nice shanty. But if I appropriate 1000 acres, including all the best farmland, the best orchards, the best rivers and streams, and then appropriate a castle that happened to be there, maybe I owe you a garden apartment. Etc. At a minimum, the housing has to be adequate qua housing. It has to house the people who live in it. It can’t just fall down because someone huffed or puffed at it. Something that doesn’t count as housing won’t count as adequate housing.

    The resulting view is a sort of hybrid of Rawls and Nozick (cf. Gauthier, Morals by Agreement, ch 9). Nothing nonsensical about it.

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    • I agree that Searle’s “argument” fails to be cogent due to what he says is incoherent (“nonsense”) not being. I also agree that one way in which we might have basic, universal positive rights to adequate housing is via some Lockean “leave enough and as good” for others proviso in the acquisition of property or creation of wealth. Positive rights are distinctive in that they wear a caveat like this on their sleeves: ‘once others have sufficient resources’. Once they have sufficient resources, they owe you. Negative rights, by requiring only non-interference, at least usually impose very low costs on the obligatee. This makes them especially attractive elements for a socially-enforced, rule-governed social system characterized by keeping things win/win (or at least win/no-much-loss, less rather than more conflict, more rather than less trust.

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      • I guess I agree, but I think we really need a good taxonomy of the kinds of rights claims there are, and I don’t think the Hohfeldian scheme (which you mention elsewhere) cuts things up at the right places. Here is a very crude carving up of conceptual space.

        (1) There are pure negative rights of a sort that only demand non-interference between moral agents acting independently of each other, e.g., your right not to be battered. Some of these rights involve clear boundaries, some less clear or graded ones, e.g., your right not to be assaulted.

        (2) There are pure positive rights of a sort that give A a property right in the labor or resources of B, e.g., A’s right to health care at B’s expense. But such rights come in very complex gradations. If I have a right to health care, does it operate just in emergencies, or everywhere? Do I have a direct specific performance right to the labor of the health care provider? Or just to full reimbursement of my expenses? Or mere subsidization of part of my expenses? Or a right to a reasonable payment plan, but full liability for payment in full? Or just a bankruptcy option?

        In practice, positive rights to health care turn out to be a bundle of graded positive rights. I’ve read around a bit in the “right to health care” literature, and no defender of a positive right to health care that I read literally argues that you have a right to specific performance of medical care to satisfy all your legitimate health care needs. But when people argue against a right to health care, for better or worse, that’s how they construe it.

        (3) And then there are what I call derived negative rights, i.e., positive rights to action whose existence is parasitic on some negative right. So for instance, if I’m driving and I’m about to hit you, I owe you the effort of swerving out of the way to avoid hitting you. If I have a child, I have the duty to care for the child. If I sign a contract and breach it, I owe damages. If I sign a contract, I owe the thing I’ve contracted for. If I’m liable for a tort, I owe damages. Etc.

        There’s a good taxonomy (slightly different from the above, but related to it) in Roderick Long’s “Abortion, Abandonment, and Positive Rights,” which I highly recommend, and seems to me a much better starting place than the Hohfeldian scheme.

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      • I agree that something like what you propose is a useful, pretty-general and pretty-formal scheme for dividing up rights on the basis of what they require of the obligatee. However, I don’t think that this scheme particularly competes with the Hohfeldian scheme. The Hohfeldian scheme is simply more general or formal (perhaps more meta-normative than normative).

        One important thing about rights that is more at your level of analysis here is the idea that claim-making, as a second-personal activity of obligators, is well-suited for defending one’s interests. In this way, it makes sense that rights are central to any public scheme of obligations and claims that aims to achieve individual interest or benefit by serving individuals managing their own concerns, through their own decisions, for their own benefit. This seems absolutely essential to rights or at least rights in the modern, liberal sense. Though, formally, God might have claim-rights to our obeying his rules, humans having (fundamentally, the same basic) claims against each other is something substantively (normatively, not meta-normatively) different.

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  3. My immediate reaction to these thoughts, as a kind of rights-reductionist, is to say that we should cut to the chase and try to answer the following question: on the sensible assumption that if I have a right against you that you not phi, you must have a reason not to phi, why do you have a reason not to phi? In other words, why are we trying to explicate pre-institutional ‘rights’ by focusing on the rights-bearer and her claims rather than on the agent who is supposed to recognize those rights? In the sort of institutional or quasi-institutional cases we’ve considered before, the answer to my question is fairly simple. If you and I are playing chess, I have decisive reason to observe the rules of chess and not cheat because my aim in playing chess with you is to beat you in a game of chess, and any apparent success I might have by cheating does not really achieve that goal; it might look like I’ve beaten you at chess, and if I have some extra-chess-playing reason to do so (winning your $20, impressing your girlfriend, saving myself from embarrassment, etc.) then maybe I have some reason to cheat, but that reason would have to appeal to some interest of mine external to the goods of playing chess, and insofar as my aim is simply to (really) beat you at chess, I can only do that by following the rules, because only a checkmate achieved in accordance with the rules counts as (really) beating you at chess. Similar accounts could, I think, be given for many other sorts of institutional rules; insofar as the good at which I am is something internal to participation in the institution, I have strong if not decisive reason to adhere to the rules of the institution, since otherwise I will not really have achieved the good for the sake of which that institution exists, but only the appearance of that good. But of course many institutions or quasi-institutions are rationally optional, like chess. Plausibly, however, some aren’t, and it may very well be that achieving my good as a rational animal requires adhering to some general standards of justice — not only not physically assaulting people, but more broadly and deeply interacting with people on terms of mutual respect and advantage, seeking what is beneficial to all of us, etc. — so that even in the absence of existing institutions I have strong or decisive reason to seek to interact with others in mutually beneficial and respectful ways. No doubt an account that really explained this would be complex, but I don’t see that it would be more complex than the fully worked out version of what you’re proposing. And until your account manages to tell us why we have reasons to respect rights — rather than why we have reasons to claim them — it seems inevitably incomplete.

    More negatively, why should we be trying to give an account of rights at all as though they were some kind of morally fundamental thing? Given that ‘a has a right against b’ must entail that b has some reason to act or not act in some way in relation to a, why aren’t we focused on b’s reasons?

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    • I really need editing powers. “paying chess” obviously = “playing chess,” and, more importantly, “less complex than the fully worked out version of what you’re proposing” = “more complex than the fully worked out version of what you’re proposing.” I’m glad I’ve got copyeditors for my professional work. Sheesh.

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    • David –

      Thanks for your thoughtful comments. Several responses/thoughts:

      (a) It is true that how the moral obligations inherent in moral rights would get to be strict or rule-follow-y, strong and in some sense inescapable has been the main normative feature of rights that has puzzled and gripped philosophers. Starting from the Hohfeldian formal account of (de facto legal, normative legal, moral) rights, I just got interested in a different somewhat-mysterious feature, moral claims. Why I’m interested in moral claims can be captured in two questions “What are obligations that are essentially associated with claims?” (the full, relational account here cannot be given simply in terms of the reasons of the obligatee) and “While it is clear what de facto claims are in a legal system – and also how such things could serve good purposes and hence be normative – what the heck could the claim that is part of a moral right be, especially if moral rights are pre-institutional sorts of things?” (the most promising strategy here is to ask what the institution of claims, or legally-sanctioned and effective claim-making get us in legal systems – and then think about how this picture, or something similar, might or might not apply to moral claims).

      (b) It is promising to explain both the nature of obligator claims and the nature of obligatee reasons by reference to features of how a rule-governed game can go. We are agreed that, when one is participating in the right sort of game (like chess), one acquires reasons to follow rules (due to one being committed to playing the game and one not counting as playing the game unless one follows them or at least some essential subset of them). But it is an optional matter to have these reasons at all because one might (and might for sufficient reason) decide to quit playing the game (or to change the rules one is committed to and thus start playing schmess rather than chess – one’s opponent might get confused, but that does not change the relevant normativity-generating features). And because the optionality here is normative as well as causal (one might easily have sufficient reason to quit playing or start playing schmess), the reasons to follow rules of chess also need not be particularly strong. And they are indispensible only to what one is doing counting as playing chess (not, say, to promoting something of paramount importance or to promoting many or most things that one has substantial reason to promote).

      (c) Do, say, our pre-institutional reasons for refraining from physically assaulting others count as reasons to follow rules in this same sense? I don’t think so. For it does not seem that our basic, pre-institutional pro-social or pro-moral-relation sorts of reasons (say, our reasons to treat others with some particular measure of concern and respect) come to taking-all-comers reasons to do some quite specific thing (as we might characterize reasons to follow rules). My suggestion is that we can model reasons to follow moral rules on reasons to follow the rules of chess (when one is playing chess and means to be doing so), but add in normative non-optionality or indispensibility to the picture by making socialization and implicit acceptance of moral practices (or at least those that are good enough) the only way to (i) achieve some particular extremely-important end and (ii) very-effectively-at-all promote most of the valuable ends that we find ourselves with. Avoiding existential crisis or panic by not “knowing one’s place in the world” (having definite sense of one’s identity and not persistently negatively evaluating oneself) is a good candidate for the first element of normative indispensibility. The broad range of important personal and social things that rules establishing the basic moral relationship, social trust, etc. are uniquely effective in promoting is quite wide as well, making the second element of normative indispensibility plausible as well.

      (d) On this kind of account of obligatee reasons, must the normatively-indispensible reasons to follow moral rules be actual-institution-dependent? Though I think that they typically are, I do not think that they need be. Using existing (or proposed) systems of moral rules as a model, I can, in principle, construct a moral system in my mind that differs from any existing one, and committing to it in the relevant way might both (i) avoid the existential panic of not having a sense of identity or having a place in the world and (ii) better promote, via better achieving pro-social and pro-moral-relation ends, all sorts of important personal and social ends of importance to myself. However, there are social-causal limits to achieving things in a social order that one is in profound disagreement with, so we should be careful about how socially effective commitment to ideal and good but idiosyncratic moral rules will be. Similarly, one would have to be quite the isolated, self-contained individualist in attempting to secure a stable sense of self (and positive self-evaluation) by following different rules than those of the communities that one is situated in – count me doubtful about the effectiveness of this strategy in avoiding existential dread, panic, depression. Nevertheless – and this is the point that I am interested in, here – at least much of the moral obligatee’s reason to follow a rule could be a function of the rules that she takes to be best, not the actual moral rules that are informally promulgated and enforced in her community. So there is room for pre-institutional reasons (that are nevertheless essentially relative to merely notional rules or institutions) to realize the moral relationship, reasons that are more specifically reasons to follow moral rules. If so, then, it is possible that both the basic claims and basic obligations that compose natural rights (or basic, universal moral rights) are pre-institutional.

      – Michael

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      • Nice response, with more than I can chew on right now. As usual, I find myself thinking now that we agree in how to approach this topic. But if the usual pattern holds, I’ll change my mind about that soon enough! Thanks, though; at the very least I always feel as though I get somewhere engaging with your posts, even if it’s not as far as I’d like.

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    • David,

      I agree with the overall point of your comment, and agree that the question you’re asking is the fundamental one, but I think I either want to take issue with or would want to qualify this:

      Similar accounts could, I think, be given for many other sorts of institutional rules; insofar as the good at which I am is something internal to participation in the institution, I have strong if not decisive reason to adhere to the rules of the institution, since otherwise I will not really have achieved the good for the sake of which that institution exists, but only the appearance of that good.

      So you have strong or decisive reason to adhere to the rules of an institution (presumably a morally justifiable one?) if the good you’re aiming at is internal to participation in the institution. If you’re playing chess, you have to follow the rules of chess; when you break them, the good you achieve is illusory. Fair enough. I don’t think you mean to be saying you have decisive reason to adhere to the rules only if that’s the case, but you do if it is.

      Isn’t there room here for norms or rules to ensure that you’re the one doing the adhering? These wouldn’t be rules of chess; they would be meta-rules protecting the conditions for the application of the rules of chess. Chess is constituted by self-generated adherence to the rules of chess. So, just as you’re not playing chess if you cheat on the rules, you’re not playing chess if you behaviorally adhere to the rules only because something besides your agency is producing your rule-following behavior. E.g., you’re not playing chess if your adherence to the rules of chess is the product of an involuntarily injected chess serum; or is the result of being lured into the game by false pretenses; or is a consequence of playing the game with a gun to your head, or even of just having a grandmaster seize your hand and make it do things in order to maintain adherence to the rules. The very idea of a game (or an institution) presupposes boundaries between the various interacting agents so that we can distinguish one agent’s participation from another, and ensure that each agent’s participation is really her own.

      If that’s right, I don’t think it’s going to be helpful to try to conceptualize rights by analogy with institutional rules. Institutional rules are there in part to secure the goods internal to the institution, in part to secure the goods external to the institution, and in part to adjudicate disputes about securing either. But if there are rights, rights are a presupposition that lies behind all of that. Rights won’t show up on a list of the rules that constitute the institution itself. Rights will be a meta-normative presupposition of the rules themselves.

      That’s why I’m skeptical of the whole enterprise of trying to conceive of law by analogy with a game (or institution), and trying to analyze rights by analogy with the rules that secure the goods internal to a game/institution. The analogy just fails from the get-go, and setting that analogy aside, I don’t see the rationale for going this route. What reason do we have for thinking that games or institutional rules are the paradigm for rights, or moral norms as such?

      The real crux of the issue of rights is the role of autonomy. One relevant fact is that in order to function, we need others to respect the conditions of our autonomy. Another relevant fact (though a much less obvious one) is that virtue requires us to respect the conditions of others’ autonomy. I don’t mean that those claims can just be asserted without argument (or that autonomy itself can be employed without extensive analysis). I mean that an inquiry into rights presupposes that these claims have been effectively argued-for already. Once those points are in place, the dispute between rights-reductionists and anti-reductionists is whether “respect for autonomy” entails a further norm that plays no essential role in the (essentially ethical) account of “respect for autonomy.”

      My hunch is that a modified version of Rand is right on this (or perhaps a Lockeanized Rand, or a Randianized Locke is right): the “rights” norm shows up if but only if you produce an account of the legitimacy of a state-based legal system ab initio from a Lockean State of Nature.

      Rand’s account is sketchy but suggestive: “rights,” she says, provides “the link between the moral code of a man and the legal code of a society” (Capitalism, p. 367; my emphasis). Contra Locke, her point is not that you have rights in a State of Nature (whether you live there in solitude or with others), but that if you made a move from a Lockean State of Nature to a state (not to an unincorporated village, a mere locality, or a tribal encampment, but a state), you would need “rights” to conceptualize how to protect human agency within the context of an institution with the authority to monopolize the use of force via a legal system.

      This may be compatible with a non-eliminativist kind of reductionism, since “rights” might just serve to specify the requirements of justice within the context of state. For instance, justice demands that we resort to force only in self-defense, and “rights” might specify the details of a proper resort to force.

      Personally, though I think the Rand-type view is in the ballpark, I think it’s too narrow. I don’t see how to conceptualize claims of property with resort to rights we have in a Lockean State of Nature. But again, this may be compatible with a non-eliminativist form of reductionism. On Locke’s view, justice entitles me to appropriate stuff from nature as long as I meet certain criteria, among them not leaving others worse off than they were had I not appropriated. It is convenient to specify the criteria in terms of rights, and perfectly legitimate to do so, but it may not be absolutely necessary.

      For instance, “I have a right to this plot, and you have no right to trespass on it, so you’re violating my rights” may be a summary of:

      I followed all of the relevant criteria for appropriation of this plot of land. You didn’t. Here are the criteria (followed by a list). Here is how I followed them (another list). You didn’t do any of that. Adherence to the criteria is sufficient for ownership and for exclusion of non-owners. Currently, then, you have crossed a boundary of my plot in a fashion that encroaches on my just claim to this plot. If you are doing this intentionally and knowingly, you are immoral; I hereby condemn you. If not, you are in error; I hereby correct you. I also hereby announce to you that failure to leave this plot will result in unpleasant consequences for you in proportion to what I regard as the culpability of the failure. So go. Now. Seriously.

      If what I’ve been saying here is right, I think we’re apt to be seriously misled by an analysis of rights that either starts with institutional rules or with Hohfeld’s schema. Institutional rules will end up being part of the story, but they’re not fundamental and they can be misleading. Correct or incorrect, Hohfeld’s schema is not where the action is.

      In her new book, How to Do Things with Pornography, Nancy Bauer makes the valuable point that there are concepts that you can’t successfully analyze by just looking at the face-value semantics of the term and trying to explicate that (her example is “sexual objectification”; see “What Philosophy Can’t Teach Us About Sexual Objectification”). Certain terms only make sense within a specific normative outlook or theory, and have to be analyzed within the presuppositions of that outlook or theory. They play a functional role in the theory, but just lead to confusion outside of it. It’s futile to try to offer a broad, normatively “neutral” account of “sexual objectification” that anyone could endorse as a framework for inquiry. You first need an account of sexuality as a good within which it turns out that objectifying-behavior is a vice. Once that’s in place, you’re in a position to give an analysis of “objectification,” but not before.

      Something similar, I think, applies to “rights.” We need a prior account of the role of autonomy in a virtuous life. Then we need a Locke-like account of the legitimate state. Absent that, I doubt any attempted analysis of “rights” is going to succeed, or even make sense.

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      • I don’t follow you when you say “But if there are rights, rights are a presupposition that lies behind all of that,” where “all of that” means, I take it, institutional rules meant to secure goods internal to the institution, to secure goods external to it, and to adjudicate disputes. My thought is: in chess, don’t I have a right to move my bishop diagonally but not a right to move it sideways? On a road, don’t I have a right to turn right on red when nobody is coming (unless posted otherwise), but no right to turn left on red onto a two-way street? Don’t pedestrians have the right of way at crosswalks? Granted, these are not “moral” or natural rights. But what is the real difference? To my mind, the difference is simply that moral or natural rights, at least of the fundamental sort, aren’t tied to such contingent and local institutions as chess or roads; they’re tied to more pervasive practices of co-operation and mutual benefit, practices that are not rationally optional for a human being because in order to achieve our good we need to engage in these practices.

        Now, it seems to me that you and I are working either with very different notions of what a right is, of what an institution is, or both. But I don’t have a clear view of what the differences are. This may be because I have no clear view of the topic at all. But wherever exactly my lack of clarity lies, it might help if you can explain why the examples I’ve given don’t count as rights, or why, if they do, they’re somehow prior to the goods that the institutions / practices are meant to achieve and the rules or standards of interpersonal behavior required in order for participants in those practices / institutions to achieve those goods.

        Maybe I’m an eliminativist after all!

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        • What I meant is that the rules of chess are about chess. They tell you that you have a right to move a bishop diagonally, not sideways, but they don’t tell you that you can’t threaten your competitor with a gun. Nor do they say that it’s impermissible for someone to stand behind you giving you “advice” backed by a weapon about where to move a piece, even if the advice is perfectly sound and in adherence with the rules of chess. List all of the rules of chess, and neither of those proscriptions will show up. And yet they’re pretty strong proscriptions. The proscription on assault is not a rule of chess but a presupposition of the applications of the rules of chess. Nor is the proscription on assault a rule of “the” criminal justice system. A defective criminal justice system may well permit you to bring a gun to a chess match and permit you to threaten your competitors. It’s just morally wrong to do so in a strong sense, and natural to describe this wrongness in terms of rights.

          As I see it, the wrongness of such actions makes no essential reference to institutions or institutional rules. Analogous actions would be wrong even if there were no institutions or institutional rules involved–a world or milieu without games, without roads, etc. Institutions are, after all, a human-made artifact. They have to be brought into existence from pre-institutional states of affairs. Some interpersonal norms have to obtain in pre-institutional states of affairs and guide the process of creating institutions and their rules–games, roads, whatever. I take “rights” to name a proper subset of those norms.

          I don’t really think we’re disagreeing that much, at least not about rights. My thought that “rights lie behind all that” is not much different from yours that fundamental moral or natural rights aren’t tied to contingent and local institutions like chess or roads (more precisely: modern roads with modern traffic laws).

          My point is that they’re not really tied to institutions as such, because institutions are themselves a contingent (even if desirable) feature of human life. Practices of cooperation and mutual benefit are not rationally optional for humans qua humans (agreed), but cooperation and mutual benefit don’t necessarily require institutions to count as cooperation and mutual benefit.

          I take an “institution” to be a relatively formalized system of explicitly rule-guided behavior, geographically fixed, with clearly demarcated boundaries, an explicit hierarchy of authority, and a relatively explicit, determinate account of a common end/goal aimed at by all participants. I wouldn’t dispute that the “highest” forms of human cooperation require institutions in that sense (in some vague but commonly used sense of “highest”). But you still have cooperation and mutual benefit in their absence. Tribes, kin groups, nomads, frontier dwellers (etc.) can all interact for mutual benefit without being members of institutions, at least in my sense. They all have rights, they’re all bound by those rights, and it’s wrong for them to violate those rights. At a fundamental level, I would say that the rights they have in their pre-institutional settings are identical to the rights we have in our institution-laden, law-based societies. I have the same rights as a Bedouin in the middle of the Judean desert, the same rights as a nineteenth century Lakota in the Dakota Plains, and the same as an aborigine in Tasmania (and vice versa). Traffic laws are a very (very) derivative form of those fundamental rights.

          If that’s right, it seems to me a methodological inversion to try to infer the structure of fundamental human rights qua human by way of the nature of the traffic laws of the State of New Jersey, or the rules of chess, or the rules of soccer, or whatever. Why think that a rule that tells you which way you can move a bishop will help explain why you can’t kill a Bedouin in the middle of the desert? Or that a rule giving a right of way to pedestrians in crosswalks will explain why you should neither kill pedestrians nor massacre a group of nomads or hunter-gatherers who lack roads altogether? (Or, for that matter, kill someone on the high seas.) That you can’t commit murder is a presupposition we bring to the task of devising institutions, not a necessary feature of institutions or their rules qua institutional.

          Another way, and a simpler way, of putting my point is that you don’t need to be engaged in mutual benefit at all, much less through institutions, to have rights-like obligations to others. You simply have to be in some kind of proximity to them and capable of interacting with them. They still have rights worth respecting; so do you. I don’t see how this fact is captured by an attempt to cash out rights by way of institutional rules. In this case (or cases like it), the two parties share no institutions in common and even lack a common pre-institutional mode of cooperation. They just happen to be nearby one another and capable of respecting or violating one another’s rights (killing, assaulting, raping, burning, stealing-from, trespassing, vandalizing, etc). But I would say, the actors still have rights. I take the preceding set of facts to be at least as platitudinous or obvious as any fact that you or Michael are relying on. If it’s not obvious, then we’re starting from radically different starting points and would have to have a different kind of discussion altogether.

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  4. Michael, a pre-institutional setting for every human being would nonetheless be a social setting. For most it is a natural family, whatever, if any, might be the social organizations within which that one is embedded. Would precursors of institutional rights exist in the mere family setting. Or is the rights concept only needed beyond the most elementary social setting such as a family?

    When I was about 19, it occurred to me that the concept of having a right was only needed to state a common but somewhat complex situation in which a prima facie moral wrong was rendered right by a prior moral wrong. So to say A has a right against B doing such-and-such to A is to say A (or her agents) will be right to commit a prima facie wrong act against B were B to first commit that such-and-such wrong act against A. In other words having a right is a shorthand locution for that thicket of doings of right and wrong things. If that is the correct elementary concept of a right, then it would seem it can be at hand in any pre-institutional social setting, can be propagated with vast elaborations in law of wider social settings, and can be a background of all those elaborations. (Whether those seeming ‘cans’ are viable requires test against the range of institutionally backed rights.) I’m thinking that these pre-institutional rights could concern autonomy, at least in part, even if not clearly acknowledged under that concept by primitive people, but that anyway the having-a-right situation among interpersonal right and wrong doings will arise whatever those people count as right and wrong doings. (But could such a concept of having a right, taken as the most elementary form of the concept, bring under its shadow accidental harms to persons or accidental conversions of property? Maybe, with enough prominence given the value of universal individual autonomy.) –Stephen

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  5. Good questions, thanks Stephen. Apologies for it taking awhile for me to get to this.

    (1) Presumably, there is a right way to structure the practices of obligation-enforcement (including claim-making) in families, extended families, tribes, etc. So you need a normative concept to get at that and I think the right one is a concept of (natural, actual-institution-independent) rights. If one prefers, one can say that there is a background of reasons for action (and perhaps reasons for emotional reaction) that would justify, in a particular context, e.g., parents not abandoning their children (though, in this case, the socially-justified claim-making might be primarily performed by others, young children not being very effective in making claims when parents are more determined to abandon, indifferent, etc.). The actual obligation-claim practices involved, whether good or bad, would fall on the “institutional” side of things not the “evaluating institutions” side of things. If the practices are good enough, then the rules that compose them have the same sort of normative force that good-enough laws (and good-enough practices more generally) have.

    (I suspect that with basic rights – and the right of children to care from their parents might be one of these – it is exceptionally clear that the normative standards specify doing this or that sort of thing as is the need for those who would be harmed, including anyone at large or the community itself, to make claims against being harmed. In such basic cases, it is the independent-of-actual-institutions reasons, not the actual-institution-dependent reasons (similar to our reasons to obey good-enough laws and customs even when they are not ideal) that loom large in our horizon of reasons for action. And in such cases, we have strong, basic motivations that track the basic normative standards. We tend to simply “start playing” certain rule-governed games in a good-enough manner, including the games that use claim-making to assure good-enough rule adherence just from our natural motivations and likely-to-develop conditioned responses.)

    (In writing the above, it occurs to me that – at least roughly in line with both Will’s and David’s reduction-to-reasons approach to pre-institutional standards for evaluating institutionalized rights-structures – we need to use reason-talk to get an explanatorily-fine-grained account of what we are getting at with the concept of natural rights. Nevertheless, I think that using such concepts as ‘natural rights’ and ‘basic universal human rights’ to get at the pre-institutional evaluative/normative stuff is helpful because the relevant reasons (in the modern context at least) concern adherence to basic anti-harm rules, claim-making on the part of those who are or would be thus harmed, etc. Plausibly, at least the general form of such moral rules and the sorts of social ends that good-enough adherence – enough people playing the game well enough – tends to achieve are internal to the relevant subset of our reasons.)

    (2) The idea that the license to make claims (object, demand, etc.) when an obligation not to harm one (in some particular way) is breached comes along with license to do things (other than make claims) to enforce one’s claim that would otherwise be prohibited is interesting and plausible. It is not, however, part of the concept of rights (not even on the modern conception, which places anti-harm rules and the “sticking up for oneself” harmed-party claim-making at its center) that this be so. Neither is it clear to me that, in general, such beyond-mere-claim-making, socially-licensed claimant enforcement is constituted by actions that would otherwise be prohibited (in the claim-associated sense that comes along with rights). If I yell at or ostracize someone who has violated my rights, I probably have not “done wrong” in any sense that would (if the person had not violated my rights) license claim-making on the other person’s part. Maybe ostracizing or being rude would have been wrong (had the person not violated my rights) in some weaker sense of not being morally best or appropriate. We should also keep in mind that, at least for many claimant-enforcement actions, things like physical violence (and perhaps even things like “hate speech”) are too dangerous for society to allow as claimant enforcement actions (except in cases like immediate self-defense). Nevertheless, I think that something like what you are getting at here is a very important element in how rights (or rights like ours, the sorts of systems of rights we are used to) work. It is definitely something that I did not so much have on my radar screen, but it’s on there now.

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