Delta

Feinberg aims to provide an analysis of claim-rights, which are rights in the ‘strict sense’ according to Hohfeld’s influential categorisation. Hohfeld distinguished claims from three further juridical ‘elements’ – ‘liberties’, ‘powers’ and ‘immunities’ - which, his analysis shows, confusingly go by the name of rights in jurisprudence.¹⁰ Claim-rights are the closest to what we mean by Claim-rights as they are used in politics in that they stipulate what other agents may or may not do. In ordinary parlance, other

Hohfeldian elements go by the name of rights, but this is largely because they are accompanied by claims that protect their exercise against interference. For example, a liberty right to free speech - which entails the absence of a duty on the agent who possesses it not to speak freely - would not generally be classed as a right unless                                                                                                                

9 Joel Feinberg, Social Philosophy, vol. 92 (Prentice-Hall Englewood Cliffs, NJ, 1973), 56.

10 Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,’ The Yale Law Journal 23, no. 1 (1913).

protected by a claim-right against interference from other agents.¹¹

Significantly, Hohfeld’s analysis notes that a claim correlates to a duty owed to the claim-right-holder and that it is held against the bearer of the correlative duty. One person’s right is another person’s duty with the same content. As he put it, if ‘X has right against Y that he shall stay off the former’s land’, then, ‘Y is under a duty toward X to stay off the place’.¹² The significance of a claim-right being held against the duty-holder and that duty being owed to them is not elaborated upon by Hohfeld whose concern was with specifying the logical relationships involved in rights rather than identifying their over-arching function, which is the concern of will and interest theorists. The will and interest theories can be seen as an attempt to capture this idea of something being owed to someone else.¹³ The former signals this relationship by the rights-bearer having control over another’s duty and the latter signals it by the rights-bearer being the intended beneficiary of the duty. The well-known difficulties faced by each theory arise from the attempt to adequately capture every appropriate type of owing-relationship labeled a right in terms of a single defining function.

Feinberg’s writings side step this problem to focus on the less abstract question of what type of society this form of relationship encourages and what this means for

individuals. His discussion can be understood as an explanation of the value of rights having the relational structure Hohfeld describes without attempting to reduce that value to a single defining function. He offers the following flexible account of a right:

To have a right is to have a claimto something and against someone the recognition of which is called for by legal (or other institutional) rules, or in the case of moral rights, by the principles of an enlightened conscience.¹⁴

In what follows, I draw out six preliminary theoretical features of this framework to                                                                                                                

11 I borrow this example from Kramer and Steiner, “Theories of Rights,” 284.

12 W Hohfeld, “Fundamental Legal Conceptions:”, 52.

13 Peter Jones, “Moral Rights, Human Rights and Social Recognition,” Political Studies 61, no. 2 (2013), 277.

14 Feinberg, Rights, Justice, and the Bounds of Liberty, 159–160.

arrive at my own basic account of a political right.¹⁵ To recapitulate, my goal here is not to propose a higher-level conceptual definition. My aim in this section rather is to use existing work to elucidate a sufficiently determinate conception of rights, along with relevant terminological distinctions, so that we have something to work with when it comes to the next step of examining rights politics.

The first thing to consider is what it takes for a right to be morally justified or valid.¹⁶ Let us say that X’s moral right consists of a claim to A against Y where X is the agent who bears the right (first and foremost individuals, but conceivably collective agents),¹⁷ Y is the obligation-bearer (paradigmatically states, but potentially fellow citizens, corporations, international institutions, and other non-state entities) and A refers to the content of the right (such as freedom of speech, health, political participation, and so on). The right is justified when Y is morally required to recognise X’s claim

according to the principles that ought to guide their moral subjectivity (an

‘enlightened conscience’). These principles differ from legal rules in not being written down, but they are nonetheless authoritative: they render what would otherwise be a mere suggestion by X to Y, a morally binding claim on their conduct. Note how this sets up a justificatory system that is agnostic as to which meta-ethical outlook is called upon: the idea of authoritative moral principles that establish the existence of a right requires that there be some moral theory to give the principles their authority without presupposing any one theory in particular.

Note, further, that the justification of a right has a two-part structure: it is the union of a justified ‘claim to’ and a justified ‘claim against’. X has a right to A if Y has both a justified claim to A and a justified claim against some Y to act in ways that make A available to X. The justification of the first element refers to the moral importance of                                                                                                                

15 While I remain agnostic on the will versus interest theory debate, it follows from my endorsement of the Hohfeldian understanding of claim-rights as correlative to duties that I reject the non-correlative conception of the interest theory, as given by Joseph Raz. This theory holds that a right stands in a relationship of normative justification to a duty, see The Morality of Freedom (Clarendon Press, 1986), Ch.7.

16 Since my focus is on moral and not legal rights I will generally refer to the justification of a right and not its validity, though for my purposes they describe the same thing

17 I focus on individual rights in this thesis and have little to say of direct relevance to debates on

‘collective’ or ‘group’ rights.

X’s having A based on some feature of X individually (based on some benefit to their well-being or perhaps some value, such as ‘dignity’, that is honored by treating them that way) or conceivably the benefit of according A to individuals like X serves to society collectively (in securing public goods, such as a democratic political culture, public health, and so on). In and of itself, a claim-to is not sufficient to establish a right without the identification of some second party, agent Y, who bears the obligation to secure X with A. This second justificatory step involves further moral and practical considerations in terms of Y’s capacity to provide X with A (this involves reflection on Y’s resources, long-term reliability and proximity to A) and the relationship in which Y stands to X (while some obligations, such as those that correspond to human rights, are said to be universally owed, some may arise out of special relations such as shared membership of a political association or potentially a historical injustice inflicted by Y on X). The justification of any right involves reflection on both the claim-to element and the claim-against element and how they shape one another.

Second, X’s right has a moral weightiness to it that gives presumptively decisive reasons for action to Y. The idea of validity gives the claim an authority that

distinguishes it from mere wants, needs, desires, or general terms of moral approval or disapproval. There is a presumption that a right will prevail in conflicts with other sorts of reasons and if not that some special explanation is owed to the rights-holder.

The privileged status this gives rights within our political deliberations should not however be confused with their being absolute. It is well-established that political rights frequently clash both with other rights and with other legitimate objectives.

There is nothing in the notion of a valid claim itself that entails that a right will necessarily prevail in conflicts with other reasons for action, whether these be collective reasons of the utilitarian sort or individualistic reasons in the form of other individual’s rights. These moral conflicts require situational judgments and cannot be settled in advance. The idea of validity, then, does not suggest absoluteness. We can imagine a claim that is generally valid, but defeated by other moral and political considerations in some exceptional circumstance. The claim continues to be recognised by the

political community, although it is not enforced in this particular case. In such cases, a moral loss has still occurred, which is why we say that a right has been regrettably (though justifiably) infringed, rather than that the right has temporarily ceased to exist.

We may therefore distinguish between a violation of a right, which is unjust and calls for a political response and an infringement of a right, which is justifiable and calls for moral regret.¹⁸

Third, the right has an inherently social dimension to it in that its validity presupposes a wider community of which X and Y are a part bound by shared rules or principles.

In the case of legal rights, these are legal rules but in the case of political rights they are principles that appeal to the enlightened conscience of Z’s who are third parties within the practice of rights. A political right functions as an appeal from X to Z to intervene on their behalf against Y. Third parties are not merely adjudicators of moral principles however. Their shared participation in the practice of rights means they have roles as both rights-bearers and obligation-bearers with respect to A: they thus stand to either gain or lose out via recognition of X’s right to A. It is not only their moral conscience that is touched by X’s claim but also their interests. The statement that a political right exists, then, is only intelligible when uttered within a social practice of rights based around shared moral principles with other agents capable of responding and acting on those principles. Rights are not the possessions of isolated abstract individuals, but implicate their bearers in relationships of justification, reciprocity and conflicts of interests with one another.

Fourth, a right may exists regardless of whether it is enforced by law or conventional morality. Feinberg is careful to say that recognition of the right is ‘called for’ by the principles of an enlightened conscience and not that it is in fact recognised by other agents. This captures the fact that moral justification is based on principles that ought to guide those within the practice of rights and not those that do in fact guide them.

To clarify this point it will help to distinguish between conventional morality and critical morality. While conventional morality refers to the principles recognised and upheld by the community as a matter of social fact, critical morality refers to those principles that do not have this social status and yet may be deployed by way of criticism of conventional morality on account of the independent moral authority the principles                                                                                                                

18 I owe the distinction between a violation and an infringement to Judith Jarvis Thomson, The Realm of Rights (Harvard University Press, 1992), 232.

enjoy. The principles that justify a moral right are authoritative regardless of whether they are enforced in the laws, attitudes, habits and assumptions of those within the practice of rights.

It is an important feature of political rights that they may exist prior to and

independently of law and conventional morality and be employed as a criticism of both. Contrary to the uncharitable interpretation of some positivists, such as Bentham, this does not entail some controversial meta-ethical standpoint, which presupposes some ghostly objective rule system, such as natural law, according to which statements about rights are objectively true or false according to natural facts built into the fabric of the universe. The existence of some transcendental system that would render a rights claim objectively valid (or ‘correct’ or ‘true’) is neither here nor there. The notion of validity instead functions as an epistemological ideal that

regulates the whole enterprise: participants within the practice of rights conduct themselves as if a definitive case for the existence of a right can be established through a process of ongoing argumentation.¹⁹ While a right need not be recognised by

conventional morality in order to exist, it is nonetheless true that a thin ‘baseline’ level of conventional morality is presupposed since any political rights claim will logically require at least a community of moral agents capable of recognizing and acting upon moral principles. It is part of their being moral agents however that they may fall short of these principles or not see how they apply in a particular context. This introduces a temporal component to the practice of claiming rights: other agents may fail to recognize a justified right at the moment it is claimed, but they nonetheless have the capacity, as reflective moral agents, to be convinced of its validity at some future time.

Fifth, the duties that correlate to claim-rights are directed duties owed to a specific agent in the person of the claim-right holder. This contrasts with non-directed duties, such as those of charity that are not owed to anyone in particular.²⁰ What is distinctive about                                                                                                                

19 See Dworkin’s account of moral objectivity in “Objectivity and Truth: You’d Better Believe It,”

Philosophy & Public Affairs 25, no. 2 (April 1, 1996) .

20 LW Sumner uses term ‘directed duty’, The Moral Foundations of Rights, (1990), 39-45; as does Sreenivasan, “Duties and Their Direction.”. I use the terms directed and non-directed duties in preference to perfect and imperfect duties; a distinction that has confusingly been given a number of

a duty being a directed duty is the authority it confers on the claim-right holder.

Agent B is accountable for their provision of X to A who has authority over the enforcement of the duty and may choose to release B from it. The violation of a directed duty is a personal wrong done first and foremost to the individual rights-bearer who is its ‘terminus’.²¹ If the right is not a legal right but a moral right then the legal mechanisms that allow for its will be absent. In such cases, the wrong of violating a directed duty mandates a specific set of attitudes and behaviours, such as resentment and complaint, on the part of the rights-bearer towards the obligation-holder where appropriate and calls for remedy, usually in the form of an apology.²² In contrast to directed duties, no one has a claim against a specific agent that non-directed duties be enforced that would authorize such attitudes and behaviours. ²³ The violation of a non-directed duty is an impersonal wrong, associated with non-directed moral attitudes of regret, despair, frustration and so on, on the part of other agents. As we shall see, Feinberg’s writings can be understood as a powerful account of the array of claim-connected responses and attitudes appropriate to the performance or non-performance of directed duties and how these support the notion of respect central to the discourse of rights

Sixth, a right consists in a directed claim held against a specific agent. While it is common to distinguish between directed and non-directed duties, we may also note that claims may be directed or non-directed. A right is addressed to another agent who can be held accountable. A claim-to, lacking a claim-against, is a non-directed claim that is not addressed to any specific persons. It is addressed, as Feinberg puts it,

‘against the world, even if against no one in particular’.²⁴ A solitary claim-to reflects the possibility of rights, which is presumptively prescriptive on other agents insofar as there is a presumption that the interests, needs and desires of individuals ought to be met so long as no one else is unduly burdened. Claims-to may provide us with reasons to identify who a duty-bearer is, so as to establish that a justified moral right exists, but                                                                                                                                                                                                                                                                                                                              

different meanings in philosophy. See George Rainbolt, ‘Perfect and Imperfect Obligations,’

Philosophical Studies 98, no. 3 (2000).

21 The phrase ‘terminus’ comes from Gopal Sreenivasan, “A Hybrid Theory of Claim-Rights,” Oxford Journal of Legal Studies 25, no. 2 (2005): 257–74.

22 Matthew Kramer, Where Law and Morality Meet (Oxford University Press, 2008), Ch. 8.

23 See the discussion in Darwall, The Second-Person Standpoint Ch. 4.

24 Feinberg, Rights, Justice, and the Bounds of Liberty, 153.

by themselves they are not a right.

To summarise: a political right is a claim to some good against another that is justified by authoritative moral principles and presumptively decisive in relation to other reasons for action. The rights-bearer has authority over its exercise and enforcement.

Where necessary, a right functions as an appeal to third parties to aid enforcement against obligation-bearers.