The Individual’s Place in the Grounding of her Rights

Chapter 8 develops a taxonomy of the differing degrees and manner in which a right might be grounded on its holder’s good—and, in the author’s terms, exist ‘for its holder’s sake’. This is a taxonomy of the extent to which a right’s status as a right, and a duty’s status as a directed duty whose violation wrongs someone, are pre-institutional or ‘natural’. The chapter explores the important question of whether non-individualistic, communitarian moral views can accommodate this idea of ‘natural’ rights grounded by their holder’s good. It turns out that while many communitarian approaches are compatible with the idea, it is inconsistent with those communitarians who deny the very possibility of distinguishing one party’s good from the wider good. The chapter ends by sketching the appeal of taking human rights as grounded ultimately on ‘natural’ rights that exist for the right-holder’s sake.

From Directed Duties to Rights

Chapter 6 explains how the foregoing chapters—with their focus on the analysis of directed duties—generate an analysis of Hohfeldian claim-rights, and how this analysis relates to the other forms of rights within Hohfeld’s taxonomy: privileges, powers, and immunities. The idea that claim-rights are enforceable directed duties is criticized, and the conceptual primacy of directed duties is explained. The chapter ends with a summary of the position developed through Chapters 2–6, which together constitute Part I of the book: the conceptual part arguing that rights are fundamentally ‘Addressive’ duties.

Rights’ Relation to the First and Second Person

Chapter 4 develops a new account of what it is to be owed a duty. There are two parts to the analysis. The first part says that it is distinctive of a duty owed to a capable party (an adult, young person, corporation as opposed to, e.g. a baby or a rabbit) that that party is required to conceive the action the duty enjoins in first-personal terms as to be ‘done to me’. The second part says that it is distinctive of a duty owed to any party whatsoever (including ‘incapable’ parties such as babies or rabbits) that the duty-bearer is required to conceive the action the duty enjoins in second-personal terms as to be ‘done to an addressable party, a being conceivable as “you”’. These requirements need not be met for the duty to exist, for it to be fulfilled by its bearer, or for it to have a direction—but their obtaining as requirements is definitive of its being owed to someone. The chapter shows how this distinguishes demanding on one’s own behalf as owed a duty from demanding on behalf of another or in relation to an undirected duty.

Modest Property Rights for the Right-Holder’s Sake

Chapter 12 assesses arguments that certain specific property rights, and some general rights to participate in property systems, can be morally justifiable for the right-holder’s own sake—primarily on the basis of the right-holder’s own good—in a way that makes them ‘natural’ or recognition-independent rights. Versions of such arguments based on the importance of the right-holder’s freedom, her chosen purposes, and her other human rights, are developed from the work of Hegel, Locke, and Nickel, respectively. The chapter shows that the reach of these arguments is limited. Some property rights might indeed be ‘natural’ rights groundable for the right-holder’s sake, but the chapter’s arguments imply that most property held by those who are moderately wealthy cannot be—including any property rights morally justifiable only as the results of a market exchange.

Teleological Groundings of Rights and Duties

Chapter 7 develops a teleological account of the grounding of duties and rights. It argues that a ‘natural’ right—that is, a duty that is owed to someone independently of anyone’s recognizing or deciding that it is owed to them (i.e. a duty that bears Chapter 4’s ‘Addressive’ requirements independently of anyone recognizing this or creating it)—must be a duty grounded wholly or predominantly on the right-holder’s own good. By contrast, legal, conventional, and promissory rights need not be grounded or justified by the right-holder’s good. Many alternative accounts of the grounding of ‘natural’ rights—from e.g. Darwall, Kamm, Nagel, Ripstein, Scanlon—are considered and rejected.

Introduction

The aim of the book—to offer a philosophical assessment of the concept of a right—is introduced, along with terminological distinctions. Chapter 1 defends the author’s Hohfeldian assumption that all claim-rights entail correlative duties owed to the right-holder. The chapter ends by clarifying the idea of a ‘natural’ right as simply a right that exists independently of anyone recognizing that it exists. So conceived, natural rights need imply neither a theistic nor a ‘state of nature’ grounding, and can include many rights protecting our sociality.

Rights Protecting Performance of Duties

Chapter 14 turns from property to a further class of rights groundable only by how they serve parties beyond the right-holder. Unlike property, the rights of Chapter 14 protect the right-holder’s performance of role-defining duties to serve others: e.g. a bus driver’s or politician’s rights to be unimpeded in performing her duties of office, or a doctor’s to her assistant’s help. The chapter argues that unlike with property, there is little risk of people erroneously conceiving such rights as grounded fundamentally by the right-holder’s good. Nonetheless, such rights distinctively protect the right-holder’s important interest in carrying out her morally justified duties. On this basis, the chapter defends our use of the concept of a ‘right’ in such cases—even though because the right-holder’s interest cannot be the main ground of the duties to assist or to avoid impeding, conceiving such duties as correlating with rights is not conceptually compulsory.

Rights’ Elusive Relation to Powers

Chapter 3 examines the relation between rights and the powers typically borne by right-holders: powers to waive duties, demand their fulfilment, enforce them, resent them, forgive them. It argues that there are impersonal parallels, performable by third parties, for all the powers that one might think can only be performed by the person to whom a duty is owed. We therefore cannot identify to whom a duty is owed by asking who can exercise the relevant powers. Instead we need to ask, circularly, who can exercise these powers as right-holder to whom the duty is owed. This reasoning is used to criticize the Will Theory of Rights (as found in Hart and Steiner), and other problems are found with Sreenivasan’s Hybrid Theory and Feinberg’s demand-based approach.

Introducing Property Rights

Chapter 11 starts by introducing Part III’s focus on rights that cannot be grounded primarily in the good of the right-holder. Property will be an important example of such a right, even though Chapter 12 allows that some property can be grounded in the right-holder’s good. Beforehand, in Chapter 11, an account is given of the nature of property rights as fundamentally exclusionary: as constituted by duties of non-trespass owed to the owner by all others. In addition, a theory is developed of the nature of money (as an owned item of great modern importance), according to which money is constituted by something that essentially confers Hohfeldian powers. These theories of property and money form the basis for the discussion, in Chapters 12–13, of when property rights are groundable for the sake of the right-holder, and of when they are not.

Rights’ Elusive Relation to Interests

Chapter 2 examines the relation between rights, interests, and desires, focusing on Raz’s and Kramer’s differing Interest Theories and Wenar’s recent Kind-Desire Theory. It argues that none of the theories respect our ability to create rights wherever we wish through law or promising, independently of the interests and desires of the right-holder. It argues nonetheless that Raz’s theory succeeds as a sufficient condition on right-holding, while Kramer’s and Wenar’s distinct theories come very close as necessary conditions. The chapter argues that it is easy to overlook the limitations of the theories because every right creates a circular ‘status desire’ or ‘status interest’ in its own fulfilment, borne by the right-holder in virtue of her status as holding a right.