THE CONCEPT OF RIGHTS 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 BANKOWSKI,´ Centre for Law and Society, University of Edinburgh PAOLO COMANDUCCI, University of Genua, Italy ERNESTO GARZON´ VALDES,´ Institut f¨ur Politikwissenschaft, Johannes Gutenberg Universit¨at 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 THE CONCEPT OF RIGHTS by GEORGE W. RAINBOLT Georgia State University, Atlanta, GA, U.S.A. A C.I.P. Catalogue record for this book is available from the Library of Congress. ISBN-10 1-4020-3976-X (HB) ISBN-13 978-1-4020-3976-8 (HB) ISBN-10 1-4020-3977-8 (e-book) ISBN-13 978-1-4020-3977-5 (e-book) Published by Springer, P.O. Box 17,3300 AA Dordrecht, The Netherlands. www.springer.com 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. In Memory Of John Corbin Rainbolt 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 19 2. 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 49 3. Deontic and Alethic Concepts 63 Some Fundamental Normative Concepts 63 Hohfeldian and Normative Analysis 72 Feinberg: Valid Claims 75 Moral Rights 77 4. 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 111 5. 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 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 189 7. Right Holders: Present 195 Individuals, Groups, and Relevant Features 196 Clearing Some Underbrush 200 Individualism Versus Collectivism 204 8. 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 230 9. 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 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 Wellmancommented 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 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 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 justified- constraint theory of rights. Philosophical discussions of rights are usually carried on in a technical vocab- ulary 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.