THE CONCEPT OF RIGHTS

Transcription

1 THE CONCEPT OF RIGHTS

2 Law and Philosophy Library VOLUME 73 Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHAEL D. BAYLES, CONRAD D. JOHNSON, ALAN MABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ZENON BAŃKOWSKI, Centre for Law and Society, University of Edinburgh PAOLO COMANDUCCI, University of Genua, Italy ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft, Johannes Gutenberg Universität Mainz JOHN KLEING, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University

3 THE CONCEPT OF RIGHTS by GEORGE W. RAINBOLT Georgia State University, Atlanta, GA, U.S.A.

4 A C.I.P. Catalogue record for this book is available from the Library of Congress. ISBN X (HB) ISBN (HB) ISBN (e-book) ISBN (e-book) Published by Springer, P.O. Box 17,3300 AA Dordrecht, The Netherlands. Printed on acid-free paper All rights reserved. C 2006 Springer No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed in the Netherlands.

5 In Memory Of John Corbin Rainbolt

6 Table of Contents Acknowledgments ix Introduction xi 1. Rights and Hohfeldian Analysis 1 A Neo-Hohfeldian Analysis 1 The Nature of Liberties 6 The Structure of Hohfeldian Relations 11 Disagreements with Hohfeld 17 Agreements with Hohfeld Normative Constraints 25 Claim and Immunity Rights 25 Liberty and Power Rights 30 Duty, Disability, Liability, and No-Claim Rights 34 Some Objections 39 Martin: Socially Recognized Normative Directions Deontic and Alethic Concepts 63 Some Fundamental Normative Concepts 63 Hohfeldian and Normative Analysis 72 Feinberg: Valid Claims 75 Moral Rights The Relational Nature of Rights 85 Relational Obligations 85 Protection and Justification: the Interest and Choice Theories 86 Raz: Interests that Justify Duties 88 Hart: Protected Choices 99 Wellman: Advantaged Wills 104 Sumner s Theory-Based Argument for the Choice/Will Theory Rights, Reasons, and Persons 116 Reasons and Relational Obligations 116 Simple and Complex Justification 128 Non-relational Obligations 131 Consequentialism 133 The Individuation of Rights 140 Some Implications of the Justified-Constraint Theory 147 vii

7 TABLE OF CONTENTS 6. Rights Conflict 157 Permissible and Unavoidable Rights Transgression 157 Prima Facie and Specification 160 The Identity of Prima Facie and Specification 167 Rights Conflict and Arguments 176 Wellman s Examples 187 Dworkin: Trumps Right Holders: Present 195 Individuals, Groups, and Relevant Features 196 Clearing Some Underbrush 200 Individualism Versus Collectivism Right Holders: Past and Future 211 The Problem of the Subject 212 Feinberg s Proposed Solution 213 Wellman s Proposed Solution 216 Time and Rights 219 Parfit and the Non-Identity Problem 228 Implications A Final Comparison 233 Objections to the Justified-Constraint Theory 233 Problems with Other Theories of Rights 236 Advantages of the Justified-Constraint Theory 241 References 245 Index 249 viii

8 Acknowledgments One of the pleasures of writing a book is that it gives one the opportunity to acknowledge those who have been instrumental in its production. My colleagues Kit Wellman and Andy Altman have provided not only stimulating conversation about rights but also their moral support through the ups and downs of working on a book. Bill Nelson read the entire manuscript and gave me many useful comments. In particular, he led me to see that I needed to distinguish between the simple and the complex justification of rights. Rex Martin read large parts of the manuscript and took time from his busy schedule to discuss it with me. I owe the existence of Chapter 1 entirely to him. He pointed out that I was not adopting Hohfeld but rather adapting Hohfeld. Three anonymous reviewers read the manuscript and their comments were uniformly detailed and useful. Reviewing manuscripts is a task which academia does not sufficiently acknowledge so I greatly appreciate the time these three scholars took to read my manuscript with such care. Many years ago, I wrote a dissertation on rights and Carl Wellman commented on it even though he is at Washington University and I was studying at the University of Arizona. Little of that dissertation remains in this work. Central parts of it were flawed. What remains are the points Carl picked out. He also read the penultimate version of this book and provided many detailed comments of astonishing quality. I had been searching for a name for my view for more than 10 years but it is Carl who suggested the justified-constraint theory. Intellectually, this work owes more to Carl than to anyone else. My interest in rights began when I took a seminar offered by Joel Feinberg. Over the course of many years, we had many conversations about rights and he read many drafts of the early versions of this work. My greatest regret about this book is that it appears after Joel s death. Joel was a philosopher who wrote articles that revolutionized fields. He was also a profoundly good and decent person. I spent my time as a graduate student attempting to show Joel that he was wrong. I was forever in his office to tell him that he got this wrong here or that wrong there. My first article (written while I was one of his graduate students) was an attempt to show that the attack on paternalism found in his seminal four-volume work, The Moral Limits of the Criminal Law, was flawed. I consistently told him that his theory of rights was flawed. Only later did I realize how rare it is for a graduate student to have an advisor who does not seek disciples but rather encourages students to seek their own way. Joel was and is my central model of how to be a philosopher. Amy Clashman provided crucial support as I went through a serious illness at the start of this project. My son Corbin helped me work on the book through a difficult personal time in my life. There is nothing like jumping up and down in ix

9 ACKNOWLEDGMENTS the back of a pickup truck with a 4-year-old to help one clear one s mind and gain philosophical insight. My wife Madeline read the entire manuscript and corrected hundreds of small errors. She did more than her share of caring for a new baby so that I would have the time to make the final push on this work. She has made more personal sacrifices for me than any man deserves. Bises, Jolie. x

10 Introduction Discussions of rights are ubiquitous. One constantly hears things such as: The Chinese are violating Tibetan rights, Landlords have a right that their tenants pay their rent, Students have a right to be graded fairly, Animals have a right not to suffer merely to bring pleasure to humans, Abortion violates a fetus right to life, We violate the rights of future generations when we pollute the water. These statements assert that Tibetans, landlords, students, animals, fetuses, and future generations all have rights. Tibetans, landlords, students, animals, fetuses, and future generations do not seem to have much in common. When one presses for clarity, it is very difficult to say precisely what a right is. What is it to have a right? That is the question this book seeks to answer. To paint with an overly broad brush, previous answers to this question can be divided into two groups. Some hold interest/benefit theories of rights while others hold choice/will theories of rights. Perhaps the first person to propose an interest/benefit theory was Jeremy Bentham. Its most cited contemporary defender is Joseph Raz. The seminal statement of the choice theory was made by H.L.A. Hart. Carl Wellman is perhaps the most able defender of a will theory of rights. The debate between these two groups of theories has been a productive one. The theories have been developed and refined to avoid many of the objections to which the original versions were subject. Different versions of each of the basic views have been proposed with different strengths and weaknesses. This debate is now a mature one. It is now clear that all the theories in these two classic groups are fundamentally flawed. It is time to seek a third theory of rights. This work defends the view that a person has a right if and only if a feature of that person is a reason for others to have a particular sort of normative constraint. I call this the justifiedconstraint theory of rights. Philosophical discussions of rights are usually carried on in a technical vocabulary proposed by Wesley Newcomb Hohfeld at the beginning of the last century. In order to take part in these discussions, the justified-constraint theory must be presented in Hohfeldian terms. Moreover, Hohfeld s work is of sufficient historical and intellectual importance that it is worth study for its own sake. Another reason to present the Hohfeldian terminology is that it makes this book more widely accessible. Many scholars of law, philosophy, and economics do not know of Hohfeld s work. For these reasons, Chapter 1 presents an Hohfeldian vocabulary which follows Hohfeld s main lines while extending, revising, and clarifying certain features of his work. Chapter 2 presents and defends an Hohfeldian version of the justified-constraint theory of rights. The analysis begins by noting that only claims and immunities imply a normative constraint on another. Because duties and disabilities are normative xi

11 INTRODUCTION constraints on a person s acts and because the correlatives of duties and disabilities are claims and immunities, claims and immunities entail a normative constraint on another. The analysis continues by noting that rights constrain the acts of others. To modify a phrase of Hohfeld s, it is certain that even those who use the word right in the broadest possible way are accustomed to thinking of normative constraints as the invariable consequence of rights. That rights constrain the acts of others and that only claims and immunities constrain the acts of others gives us reason to think that one has a right if and only if one has a claim or an immunity. On the other hand, it is very common to speak of rights corresponding to other Hohfeldian relations e.g., liberty rights, power rights, etc. Chapter 2 goes on to argue that rights other than claim rights and immunity rights are packages of Hohfeldian relations which always include a claim or an immunity. In each of these packages, a claim and/or an immunity protects another relation. We label the right with the name of the protected relation. For example, a liberty right is a bilateral liberty protected by claims and/or immunities. Because the argument in Chapter 2 turns centrally on the notion of a normative constraint, this is the natural chapter in which to examine Rex Martin s theory of rights. Martin s views on the nature of this normative constraint differ from those of the justified-constraint theory, and juxtaposing both views brings each into relief. One might be content to formulate an analysis of rights in purely Hohfeldian terms. There is much to be learned from Hohfeldian analysis. On the other hand, analyzing rights in purely Hohfeldian terms cannot answer all our questions about rights. Surely one s rights have some relationship to one s obligations and to what one is permitted to do. A purely Hohfeldian analysis cannot explicate those relationships. Suppose that everyone were to agree on an analysis of rights in Hohfeldian terms. We would still need to know the relationship between Hohfeldian relations and other normative concepts, concepts such as obligation and permission. Chapter 3 argues that Hohfeldian relations can be analyzed in terms of the deontic modal triad (forbidden/permitted/obligatory) and the alethic modal triad (impossible/possible/necessary). While it is natural to speak of having an obligation, there is no substantive corresponding to the adjectives permitted, forbidden, impossible, possible, and necessary. So it is useful to stipulate the meaning of to have an impossibility, to have a forbidden, etc., and thus create the substantives corresponding to the adjectives. It then becomes clear that you have a claim if and only if someone has an obligation to you and that you have an immunity if and only if someone has an impossibility to you. From this and from the conclusion of Chapter 2, it follows that you have a right if and only if someone has an obligation or an impossibility to you. With both the Hohfeldian relations and the deontic and alethic triads on the table, we are in position to examine Joel Feinberg s influential view of rights as valid claims. Although this is progress, the nature of obligations and impossibilities which are to someone requires clarification. People often recognize a difference between obligations that are to someone and obligations that are not. If I promise you that I xii

12 INTRODUCTION will meet you for lunch, then it seems that not only do I have an obligation to meet you for lunch, but my obligation is to you. Assume that I have an obligation to give to charity. It does not seem that this obligation is to anyone. Obligations which are to someone are relational obligations. Obligations which are not to someone are non-relational obligations. The terms relational impossibility and non-relational impossibility are used in a parallel way. The task of Chapters 4 and 5 is to provide an analysis of relational obligation and relational impossibility. Chapter 4 presents and rejects the theories of rights offered by Raz, Hart, and Wellman. Each contains crucial insights that Chapter 5 assembles to reveal the justified-constraint theory of relational obligations and relational impossibilities. On the justified-constraint view, you have an obligation to someone if and only if a feature of that person is a reason for your obligation. You have an impossibility to someone if and only if a feature of that person is a reason for your impossibility. Thus, over the course of five chapters, the book works from an Hohfeldian analysis (rights as claims and immunities) to an analysis of rights as obligations and impossibilities justified in a particular way. We reach the view that a person has a right if and only if a feature of that person is a reason for others to have an obligation or impossibility. A person has a right if and only if a feature of that person is the justification of the obligations or impossibilities of others. The title of this book bears a significant resemblance to Hart s The Concept of Law (1994). That is no accident. In part the title of this book is a homage to Hart s philosophical abilities and influence. Another reason for the similarity in title is that this book adopts much of Hart s philosophical method. In The Concept of Law, Hart sought an answer to the question What is law? He argued that a central set of elements were the best answer to this question (1994, 16). Hart was not seeking a definition. He was seeking a theory, an analysis. Oversimplifying Hart s complex theory, he held that the union of primary and secondary rules was key to understanding the law. 1 [W]e shall make the general claim that in the combination of these two types of rules there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, the key to the science of jurisprudence. We shall not indeed claim that wherever the word law is properly used this combination of primary and secondary rules is to be found; for it is clear that the diverse range of cases of which the word law is used are not linked by any such simple uniformity, but by less direct relations often of analogy of either form or content to a central case. What we shall attempt to show...isthat most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. We accord this union of 1 Very roughly, primary rules require people to do or not do certain actions. Secondary rules tell people how to create, change, or extinguish rules. See Hart 1994, chapter. 3. xiii

13 INTRODUCTION elements a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought (1994, 81). I seek to understand the nature of rights. I will argue that the key to understanding rights is to see them as normative constraints on others that have a particular sort of justification. To modify Hart s words, I will attempt to show that most of the features of rights which proved most perplexing can best be rendered clear if rights are understood in this way. Rawls followed Hart but used a different terminology. Rawls distinguished between the concept of justice and conceptions of justice. [I]t seems natural to think of the concept of justice as distinct from the various conceptions of justice... Those who hold different conceptions of justice can... still agree that institutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life. Men can agree to this description of just institutions since the notions of an arbitrary distinction and of a proper balance, which are included in the concept of justice, are left open for each to interpret... (1971, 5). In Rawlsian terms, this work defends a conception of rights. Like Hart, Rawls notes that definitions have no privileged status. A theory of justice is subject to the same method as other theories. Definitions and analyses of meaning do not have a special place: Definition is but one device used in setting up the general structure of a theory. Once the whole framework is worked out, definitions have no distinct status and stand or fall with the theory itself (1971, 51). Another reason for the title The Concept of Rights is that an important feature of the justified-constraint conception of rights is that it sharply distinguishes substantive questions about rights from the conceptual question of what it is to have a right and holds that the line between conceptual and substantive questions should be drawn in a place different from where it is drawn in other theories of rights. It draws a sharp line between substantive questions such as What is the scope of moral property rights? from the conceptual question What is a right? On the justified-constraint conception of rights, any sort of individual feature is the correct sort of feature to ground rights. Interest and choice theorists have drawn the line between conceptual and substantive matters in the wrong place. Interest theorists think that a reference to the interests of the right-holder is a necessary part of an adequate conception of rights. Choice theorists think that the protection of choice is a necessary part of an adequate conception of rights. The justified-constraint theory of rights shows that both interest and choice theories are incorrect. The conceptual/substantive line should be drawn further back than they do. A final reason for the title is that this work will not take up substantive questions of rights. Questions such as whether there is a moral right to private property or xiv

14 INTRODUCTION how the contours of the legal right to a divorce should be drawn will not be considered here. However, conceptions of rights are not merely of theoretical interest. We seek a theory of rights partially in hopes of making progress toward solving moral problems. The moral problems raised by rights are vast and diverse. One cannot hope to discuss all of them in one book. This book focuses on two that are particularly useful in comparing different theories of rights: the problem of conflicts of rights, and the issue of what sorts of beings can have rights. Chapter 6 is devoted to rights conflict. A new and plausible theory of rights conflicts follows from the justified-constraint theory of rights. Chapter 6 also contains a discussion of Ronald Dworkin s theory of rights as trumps. This is a natural place to consider his view because, on his view, conflict with non-rights-based moral considerations is a necessary feature of rights. Chapter 7 considers the rights of presently existing things. The justifiedconstraint view reveals that the concept of rights places no limits on what sorts of beings can have rights. For example, the concept of rights does not imply that rocks cannot have rights. The limits on what sorts of beings can have rights are placed by other concepts and/or by substantive moral views. Many people (including myself) hold substantive moral views that imply that rocks do not have any rights. Chapter 8 considers the rights of past and future things. The justified-constraint theory of rights applies, without modification, to the rights of past, present, and future individuals and shows that past and future beings can have rights. Key features drawn from Wellman and Raz allow for an account that unifies the rights of all beings whenever they exist. This is an important advantage of the justifiedconstraint theory of rights. The evaluation of philosophical theories is a comparative matter. Perhaps it is possible in principle to provide an argument or set of arguments that, without reference to other views, shows that one s preferred view on a complex philosophical issue is true. In practice, I do not believe that this ever happens. On any issue worth philosophical ink, there will be a number of competing plausible theories. One defends one s view by showing that it is superior to competing theories. So one must compare one s preferred theory to other plausible views. Throughout this work the justified-constraint theory of rights will be compared to its competitors. In Chapter 9, these comparisons are brought together so that we may view all of them at one time. xv