Moral Rights and Their Grounds

David Alm

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351595537
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Moral Rights and Their Grounds offers a novel theory of rights based on two distinct views. The first—the value view of rights—argues that for a person to have a right is to be valuable in a certain way, or to have a value property. This special type of value is in turn identified by the reasons that others have for treating the right holder in certain ways, and that correlate with the value in question. David Alm then argues that the familiar agency view of rights should be replaced with a different version according to which persons' rights, and thus at least in part their value, are based on their actions rather than their mere agency. This view, which Alm calls exercise-based rights, retains some of the most valuable features of the agency view while also defending it against common objections concerning right loss. This book presents a unique conception of exercise-based rights that will be of keen interest to ethicists, legal philosophers, and political philosophers interested in rights theory.

Part I
The Value View

In this first part I aim to outline and defend a certain thesis about the nature of moral rights, called the value view, upon which I will rely in subsequent parts. The value view is not intended as a complete theory of moral rights, let alone rights generally. In particular, I will say little in this part about which moral rights persons have. The focus will rather be on the more fundamental question of what such a right is. I will turn to the “which?” question in Part II, where I defend an instance of the value view.

This part of the book is an attempt to answer the “what?” question, and while it is certainly impossible to offer a complete answer at the outset, it is both possible and useful to give a partial one, which will guide us in the pages to follow. The central notion we need in order to understand rights is that of a special kind of moral relation that can hold between two entities, at least one of whom is an agent. This relation can be expressed in terms of the agent’s being obligated to the other entity to act in a certain way, or that entity’s having a claim against the agent that he act that way. This notion of being obligated consists of two overlapping, but distinct, ideas. The first is that of the agent’s “owing” something to the party with the claim. We sometimes also express this idea by saying that the other party is “wronged” or “has a complaint” if the agent does not deliver. In Kant’s terms, it is a duty or obligation holding to a person rather than simply a requirement regarding a person.¹ The second component idea is that of being required to act, or to be under a requirement. As Mill put the point, an obligation “may be exacted from a person, as one exacts a debt.”² For now, our understanding of these two ideas will have to remain intuitive. I will return to them in Chapter 2.

Notes

1. Kant (1797, p. 442)

2. Mill (1861, chapter V, §14; original emphasis). (Mill actually uses the word ‘duty.’ See 1.4.)

1
The Value View—the Basics

This chapter presents the basics of the value view, including some of its metaethical background. In the following chapter I will draw on these basic features in accounting for the obligation relation. The chapter comprises four sections. The first is devoted to some preliminaries needed to state the value view, which is then given an initial formulation in the following section, in the first instance as a thesis about claims. In section 3 I attempt to clarify that thesis by explicating the notion of value used in stating it. In section 4 I account for the familiar idea that claims and obligations are correlated, and then address the related question of whether one of these two notions is primary to the other.

1. Preliminaries

The noun ‘right’ is importantly ambiguous. It could refer either to a relation between the right holder and some particular agent or to what we could perhaps, risking confusion, call the right holder’s potential to enter into such relations, which is not itself a relation.¹ I will distinguish between these two by using the terms particular and general right, respectively. Now, while a person’s right can intelligibly be said to be general or particular with respect to a number of dimensions, I have here in mind only one of these, namely that of obligation bearers. To illustrate, we might say that a person P has a “right to life.” For simplicity, let us here understand that right simply as a right not to be killed. Normally when we say that P has such a right we mean precisely that he has a general right, implying that everyone (other than P himself) is obligated to refrain from killing P. Evidently, then, P’s right to life corresponds with an indefinite number of obligations, (at least) one for each other person (capable of killing him). At the same time, though, each of these obligations corresponds uniquely with a certain right, a relation holding between P and one other individual in particular. To account for all of these facts we have to distinguish between one general right that P holds against the world at large and an indefinite number of particular rights that hold against particular others.

To clarify, the general right does not presuppose that the right holder actually stand in any particular obligation relation to any person. As I said previously, the term ‘general right’ refers to the holder’s potential to enter into such relations. Logically we could state a general right in the form of a universally quantified subjunctive proposition. Such a proposition could be true even if there is actually no one in the domain over which it quantifies. Presumably it would say something like the following: “A has a general right to some treatment T just in case, for all persons p (other than A), if p exists p would have an obligation to A to accord him T.”² This is what it means to say, as I did previously, that a general right “holds against the world at large.”³ As a consequence, while a general right does not presuppose any actual particular right it does at least presuppose a possible particular right.

The term ‘right’ is ambiguous also in another way, for it could refer to several different relations (or relation potentials). The standard taxonomy of these relations—or rather of their legal counterparts—is due to W. N. Hohfeld (1964). It will be helpful briefly to review it here. Hohfeld distinguished four different “legal relations” that have all been called “rights” by lawyers: claims, liberties, powers and immunities.⁴ Claims and liberties can helpfully be characterized as “first order,” powers and immunities as “second order.”⁵ These various relations are characterized by the other relations to which they correspond. As noted in the introduction to this part, a claim corresponds to an obligation. A liberty, by contrast, corresponds to a lack of obligation on the part of another person. As an example of a legal liberty, consider the permission to walk across a certain square. Barring special circumstances, a person lacks an obligation against any other party not to cross the square. But the liberty in question remains distinct from a claim. Others are not required to get out of the way. In contrast to first-order relations, second-order ones are defined in terms of other relations (not only first-order ones—so in that way the terminology is a bit misleading). A power holds in virtue of a legal rule enabling one party to alter other legal relations in some fashion, not necessarily ones involving oneself. For instance, by signing a contract, one party acquires an obligation to another party (who in turn thereby acquires a correlative claim). Further, an immunity holds in virtue of a legal rule that disables the other party from altering the holder’s other legal relations in some specified way. For instance, a citizen’s right to vote includes an immunity, so that neither the state nor anyone else can simply remove it, unless special circumstances obtain.

As I noted, Hohfeld’s analysis concerns legal relations. When I say that they are “legal” I mean simply that they hold as a matter of legal fact, whatever exactly that means. However, there are also moral relations with the same structure as the legal ones Hohfeld analyzed. That is, there are moral claims, liberties, powers and immunities. I will use the term ‘Hohfeldian relations’ as a collective name for them. To assert their existence, then, is to say that they hold as a matter of moral fact. (That characterization is obviously not particularly informative. I will say a little more in section 3 about how I conceive of moral facts.) In this book I will use the terms ‘claim,’ ‘liberty,’ ‘power,’ ‘immunity’ and ‘right,’ unless otherwise noted, to refer to moral phenomena only. It matters little to me whether what I say in using these terms goes also for those non-moral phenomena to which we may apply them.

The general/particular distinction applies to all Hohfeldian relations. In their general forms they are not relations, but again potentials to enter into such relations. For instance, I could have a general power to affect other people’s claims even if there is no one around whose claims I can affect by exercising my particular power to affect just that person’s claims. I should also note that some terms for Hohfeldian relations lend themselves more readily than others to these different interpretations. In particular, the term ‘claim’ is naturally understood in the particular sense, referring to a relation between claim holder and obligation bearer. On the other hand, ‘right’ tends more often to be used in the general sense. In this book, though, they will both be used in either sense as the context dictates.

But then what about particular moral rights? What kind of relation is that? I believe that attempts to formulate necessary and sufficient conditions that capture our “intuitive” concept of such a right are unlikely to succeed. Hence any definition we offer will be to some extent stipulative. In that spirit, I say that a moral right is a complex relation consisting of several Hohfeldian components, and that one of these relations is central.⁶ By its being “central” I will here mean only that this relation specifies what we would typically describe as the content of the right, what it is a right “to” or “against.” Note that it does not follow that a non-central element is not essential. Further, I will assume that the central element will always be either a claim or a power. At any rate, if there are other types of moral right besides these two, I will not discuss them. Let me illustrate the two categories. We might say simply that I have a right against you that you not hit me over the head with a shovel. On the most straightforward interpretation of that right, its central element is my claim against you that you not do so. On a different interpretation, the central element of my right is rather a power to decide whether you may hit me over the head with a shovel. If so, the right’s content is properly described in that way, even though we may still, for simplicity, refer to it as my right against you that you not hit me over the head with a shovel. In either case, though, my right will no doubt also contain other elements: at the very least an immunity against you, or anyone else, revoking that claim. Note also that on the first interpretation, the power figuring in the second interpretation is absent. If present at all, it must also be the central element.

I have introduced the notion of a “central element” in accounting for particular rights, but it is important to see that it applies equally to general rights. Thus the central element of a general right could be a general claim, just as the central element of a particular right could be a particular claim.

2. The Value View of Rights, and Claims

My main goal in Part I is to develop and defend an account, admittedly incomplete, of general rights. As we will see, that account will also aid our understanding of the notion of a particular right. In this section I offer an initial, rough statement, to be improved on as we go along.

To this end we need two more components. The first is a further distinction between basic and derived rights. It applies to both particular and general rights—and an analogous distinction applies to claims. Here I follow Joseph Raz (1986, p. 168): first, a right is derived if it is justified only by appeal to some other right, in conjunction with some other fact; second, a basic right is defined as not derived. To illustrate, suppose we could show somehow that you have a general right to whatever you need to preserve your health, and that you need a certain surgical operation to preserve your health (this is the “other fact”). Then you have a derived general right to the surgery. Analogous distinctions apply to claims and other Hohfeldian relations.

The second component is that of a power-generated right. It refers to any right (or, more broadly, Hohfeldian relation) that comes about through the exercise of a power and would not have existed otherwise, whether it belongs to the power holder or someone else. Standard examples are promise rights and rights to compensation. A power-generated right is not derived, according to the earlier definition, for it is not derived from another right. On the other hand, it is artificial to call such a right “basic.” While it can cause inconvenience in some cases, my policy will be to use the word ‘basic’ to cover rights that are neither derived nor power-generated.

It is now possible to state:

The value view of rights. To have a basic general right is to be valuable in a special way. Equivalently, such a right is a special kind of value belonging to the right holder.

I apologize for the rather strained phrase ‘value belonging to.’ As will hopefully become clear later, the value view says that a right is a value; and since rights unproblematically “belong to” their holders, then so must values.

The value view does not aspire to be a complete account of rights. We should think of it rather as a starting point for such an account. In particular it is incomplete because it does not tell us why right holders have the relevant value. In the next chapter we will look at a natural way of developing the value view by answering that question: according to the agency view, the relevant value belongs to persons in virtue of their agency. First, though, we need to get a clearer understanding of the value view in the simple form I have just presented it—which is of course also necessary for assessing its plausibility. I will therefore devote the remainder of this chapter and the next to considering a few of its most noteworthy implications.

One point of clarification is probably needed before we begin, though. I have just described the value view as an “account” of rights. What does that mean? Some writers take themselves to analyze the “concept” of a right, supposed to cover rights of all sorts, conventional and moral.⁷ However, my focus is on moral rights alone. It is natural to ask, then, whether the value view amounts to an analysis, if only partial, of the “concept” of a moral right. Or is it rather an account of one of many possible “conceptions” corresponding to that one concept?⁸ In answer, I take the value view to be an account of a conception of moral rights, and decidedly not a piece of conceptual analysis. I have already expressed skepticism about the prospects of such an analysis of the notion of a right.⁹ For the value view to be correct as such an analysis, it would presumably have to capture how most speakers, or at least “expert” speakers, use the word ‘right’ in moral contexts. I make no such claims on its behalf, however. Also, if the value view were taken as a piece of conceptual analysis, if only a partial one, it would imply that those who accept it and those who reject it would be talking about different things. That is also an unwelcome implication. By contrast, interpreting the value view as an account of a certain conception of rights does not carry these implications. Therefore I opt for that interpretation.

I take the expression ‘moral right’ to refer to an important moral ...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Contents
• Preface
• PART I The Value View
• PART II The Agency View
• PART III Exercise-Based Rights
• Bibliography
• Index