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The Analytical Foundations of Justice

Published online by Cambridge University Press:  16 January 2009

N. E. Simmonds
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HILLEL STEINER'S book An Essay on Rights1 proposes and develops an intriguing suggestion: that we should approach the discussion of justice at “the elementary particle level”. “The elementary particles of justice” Steiner tells us “are rights”:

Rights are the items which are created and parcelled out by justice principles. We learn something about justice by examining the formal or characteristic features of rights. These features constrain the possible content of justice principles in much the same sense as architectural precepts must be informed by the properties of the construction materials they orchestrate.2

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The Cambridge Law Journal , Volume 54 , Issue 2 , July 1995 , pp. 306 - 341
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Copyright © Cambridge Law Journal and Contributors 1995

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References

1 (Oxford 1994).

2 Steiner, op. cit., p. 2.

3 Steiner, op. cit., p. 3

4 See Dworkin, Ronald, Law's Empire (London 1986)Google Scholar, chs. 1 and 2; Finnis, John, Natural Law and Natural Rights (Oxford 1980), ch. 1.Google Scholar

5 Since this is not a general review of Steiner's Essay on Rights, I should perhaps take the opportunity to say that my criticisms do very little to reveal the enormously rich and entertaining contents of this fascinating book.

6 In this respect Rawls may be typical when he observes that “A conception of justice cannot be deduced from self-evident premises or conditions on principles; instead its justification is a matter of the mutual support of many considerations, of everything fitting together into one coherent view.” Rawls, John, A Theory of Justice (Oxford 1971), p. 21.Google Scholar

7 Steiner, op. cil., p. 4.

8 Steiner, op. cit., p. 7.

9 Steiner, op. cit., p. 8.

10 Steiner, op. cit., p. 3.

11 Steiner, op. cil., p. 2.

12 For a good introduction to such debates, see Douglass, R. Bruce, Mara, Gerald M., and Richardson, Henry (eds.) Liberalism and the Good (London 1990).Google Scholar

13 The belief that the debate is reducible to a simple dichotomy (between “positive” and “negative” concepts of liberty) results from crude misinterpretations of Sir Isaiah Berlin's famous essay “Two Concepts of Liberty”. See Berlin, Isaiah, Four Essays on Liberty (Oxford 1969).Google Scholar

14 Steiner, op. cit., p. 20. Notice that this type of argument could be used to advocate “value-free” definitions of “thick” ethical concepts such as cruelty, treachery, and loyalty. Such a proposal, if widely accepted, would have a dramatic effect upon the character of our moral life, massively reducing the shared fabric of understandings which sustains morality as a social phenomenon rather than a purely individualistic matter of personal commitment. The proposal might therefore appeal to fierce individualists, but would be opposed by those who object to excessively Protestant understandings of morality. Consequently, such proposals should not be thought of as grounded in purely formal considerations of intellectual clarity (as Steiner might wish to suggest). For the notion of a “thick” ethical concept, see Williams, Bernard, Ethics and the Limits of Philosophy (London 1985), pp. 129–130.Google Scholar

15 Steiner takes the view that it is only the actions of other persons which render us unfree: one is not rendered unfree by physical constraints arising or existing independently of human action. This view plays a substantive part in his argument. “Freedom” Steiner says “is a social relation, not a technological one. It's a relation between persons and persons, not between persons and nature” (p. 44). What then of those theories which claim that the inhabitants of technologically advanced societies possess more freedom than did the inhabitants of ancient societies? Steiner argues that such theories fail to take account of the unfreedoms created by technological advance. For example, it is true that an ancient Athenian could not perform the action of fetching a can of beer from the fridge, whereas we can perform that action. However, Steiner argues, this does not mean that we possess greater freedom than the Athenian; for, alongside my freedom to fetch a can from the fridge, I must take account of my unfreedom to fetch a can from your fridge, or from the fridge of the Vice-Chancellor of Cambridge University. But did not the ancient Athenian suffer from these unfreedoms also? Ancient Athenians could not fetch beer from the fridge of the Vice-Chancellor of Cambridge University, for example. Suffering from the same unfreedoms as us, but not possessing some of our freedoms, it might well seem that we possess more freedom than the Athenians. Steiner would deny this and, if I understand his argument correctly, he would respond as follows. Ancient Athenians could not fetch beer from the Vice-Chancellor's fridge, but they were not prevented from doing so by other persons; they were therefore not unfree to fetch beer from the Vice-Chancellor's fridge. This response, however, begs the very question at issue, which is whether freedom is a purely social relation, or whether it also has a technological aspect. What ground does Steiner possess for his position? No formal analytical considerations appear to be offered in support. We see here a good example of the difficulties involved in seeking to develop a conceptual analysis that is preliminary to, rather than an integral part of, substantive evaluative debate.

16 Steiner, op. cit., p. 35.

17 Steiner, op. cit., p. 36. Alternatively, actions A and B may be incompossible where there is an extensional overlap between actions A and C, and C is an essential prerequisite of B.

18 Steiner, op. cit., pp. 39–41. More accurately, Steiner says that freedom is “the actual and subjunctive possession of physical things”. A component of action is subjunctively possessed by me when, although I do not at present possess it, I would possess it when and if I chose to perform the action.

19 Steiner, op. cit., p. 57. A few pages later, at p. 60, n. 4, Steiner states the intention of henceforth using the term “liberty” to refer to the absence of a duty (i.e. a Hohfeldian liberty) and “freedom” to refer to the absence of physical prevention (i.e. the “pure negative conception”). When brought into conformity with this stipulation, the quotation from p. 57 should presumably refer to the distribution of pure negative freedom.

20 For example, some major critics of the choice theory, and defenders of the benefit theory, focus their attack on the assumption that rights are correlative to duties rather than being reasons for the imposition of duties. See Neil MacCormick, “Rights in Legislation” in Hacker, P.M.S. and Raz, J., Law, Morality and Society (Oxford 1977)Google Scholar; and Raz, J., “Legal rights” (1984)Google Scholar 4 O.J.L.S. 1. It is, however, by no means clear that correlativity is an indispensable assumption of all versions of the choice theory. If we take the central question at issue to be whether rights prescribe a distribution of freedom, or whether they serve human interests more generally, it would seem that versions of the choice theory could be developed that do not presuppose correlativity, just as MacCormick and Raz have developed such versions of the benefit theory. For such a theory, rights would presumably be domains of freedom that justified the imposition of duties on others. The question of correlativity therefore seems to be independent of the main issue in dispute between the choice and benefit theories.

Adopting a Hohfeldian analysis of rights, Steiner simply assumes correlativity (later in the book, at p. 92, he seems to nod in the direction of theories that reject correlativity). However, since the question of correlativity is (as we have just seen) independent of the decision between choice and benefit theories, we may conclude that Steiner does not simply beg the question against the benefit theory (as exponents of recent benefit theories might imagine) by assuming correlativity. Nevertheless, we should note that his neglect of the correlativity issue evinces the way in which the enormous fluidity and variability of available analyses of rights tends to outstrip the ability of Steiner or anyone else to discipline and order such analyses on purely formal and non-evaluative grounds. The assumption of correlativity excludes a major and influential way of thinking about rights, but the assumption itself seems ungrounded in any independent analytical considerations. The principal attraction of correlativity for Steiner is, presumably, that it fits his view of rights as distributing pure negative freedom, and that view in turn fits his libertarian political perspective. There is nothing wrong with that: indeed this is simply an example of how arguments within political philosophy are likely to be persuasive and mutually supporting rather than linear and deductive. But it is wrong to imagine that we have here a rigorous movement from purely formal analytical considerations to rich substantive evaluative conclusions.

21 Steiner sees the choice theory as defending the thesis that “something is a right if it is either a claim or an immunity to which are attached powers of waiver and enforcement over its correlative constraint.” (p. 61) This, however, is but one manifestation of a more extensive confusion in Steiner's analysis whereby (although purporting to employ a Hohfeldian analysis) he muddles the relationship between duties, liberties and claim-rights (on the one hand) and powers, disabilities and immunities (on the other). Thus he claims that power entails the liberty to exercise it (p. 60, n. 6). But this is simply not so: a non-owner of property, who has possession of that property, has in certain circumstances a power to sell the property and pass good title; yet, in selling it, he will be committing a legal wrong, not exercising a liberty. A little later (p. 71) Steiner asserts that, where officials are disempowered from waiving duties, they lack the liberty to waive them, and so are under duties not to waive them. But this makes little sense. How can I be under a duty not to exercise a power that I do not possess? Although assenting to the view that Hohfeld's analysis is “the beginning of wisdom” in these matters, Steiner obliterates the separability of juridical concepts which was established by Hohfeld. Such separability ensures that powers do not entail liberties, and disabilities do not entail duties.

22 Steiner, op. cit., pp. 58–63.

23 I refer here, of course, to the moral or legal rule requiring performance of promises; I am not speaking of the promisor's reasons for making the promise, or the promisee's reasons for extracting it. We see clearly here how the most plausible versions of the benefit theory require us to ask questions about the rationale of, or justification for, particular legal rules. Such versions of benefit theory seem therefore inconsistent with legal positivism. The choice theory, by contrast, allows us to ascertain the existence and content of legal rights simply by consulting the content of existing legal rules, without raising deeper questions of their rationale. Combining this with the remarks above (on the benefit theory's dubious compatibility with liberal neutrality between conceptions of the good) we can see that a decision to adopt one or the other theory is unlikely to be determined by the discussion of embarrassing examples. If considerations of explanatory scope and coherence decisively favoured the benefit theory, we might treat that as an argument against both liberal neutrality and legal positivism (on the grounds that those theories are incompatible with the character of rights, properly understood). The arguments are, however, far too pliable for such claims to carry much conviction. In fact, the choice theory's compatibility with liberal neutrality and legal positivism might at first be seen as a strong point in its favour, not only by legal positivists and liberal neutralists, but also by people who believe that we should seek an analysis of rights that does not prejudge wider issues of political philosophy and jurisprudence. Yet, if the choice theory keeps some such options open, it seems to foreclose others by, for example, linking the character of rights strongly with the value of freedom, rather than with interests more generally.

24 MacCormick, op. cit.

25 Any attempt to make C's consent necessary would be legally ineffective.

26 Steiner, op. cit., p . 64.

27 Hart, H.L.A., The Concept of Law (Oxford 1961), pp. 35–38.Google Scholar

28 For another example of MacCormick's neglect of such flexibility, see Simmonds, N.E., Central Issues in Jurisprudence (London 1986), pp. 137–138.Google Scholar

29 See Simmonds, op. cit., p. 138.

30 Steiner, op. cit.. p. 66.

31 Steiner, op. cil., p. 71. We see here an example of the confusion identified in note 21 above.

32 Loc. cit.

33 Steiner, op. cil., pp. 71–72.

34 Note that we are speaking here of a spiral which continuously generates new immunities and disabilities, not of a circle which would pose no problem of infinite regress at all.

35 A theory of rights might be chosen either because it tends to support a particular political philosophy, or because it is neutral between certain rival political philosophies upon which we wish to reflect. In the latter type of case, the theory will be constructed with an eye to specific debates and alternatives and will be recommended by its value in structuring those debates in a perspicacious way. A theory of rights may provide a neutral framework for some debates only by adopting a committed position on others. See note 23 above.

36 Steiner, Hillel, “The Structure of a Set of Compossible Rights” (1977) Journal of Philosophy 767.CrossRefGoogle Scholar

37 Hohfeld's term was “privilege”, but “liberty” has become the more common usage.

38 See Hohfeld, W.N., Fundamental Legal Conceptions (Yale 1919).Google Scholar

39 I made this criticism of Steiner in “Epstein's Theory of Strict Tort Liability” [1992] C.L.J. 113 at pp. 134–135.

I have elsewhere suggested that Hohfeld's abandonment of the assumption that rights render actions both permissible and inviolable was necessary if the analysis was to fit a modern legal order in which law is employed instrumentally to pursue a great diversity of social policies. Within such a system, conflict between rights will be endemic, and it is therefore necessary to have a concept of rights that does not treat such conflicts as generating logical contradictions. See my introduction to Hohfeld, , Fundamental Legal Conceptions, ed. Campbell, David and Thomas, Philip (Aldershot 1995).Google Scholar

40 Hart, H.L.A., Essays on Bentham (Oxford 1982), pp. 171–173.Google Scholar

41 Steiner, op. cit., p. 76.

42 Steiner, op. cil., p. 87.

43 Steiner, op. cit.. p. 87.

44 In assuming that conflict is equivalent to incompossibility, Steiner is of course assuming that conflicts between duties generate logical contradictions. As we will see, however, that assumption is very debatable.

45 Steiner, op. cit., pp. 88–89. Steiner adds another reason: “(W)hat would be the status of this overarching general duty? Is it correlative to a right and, if so, to whom could it conceivably be owed?” (be. cit.) The answer is that people could be prevented from creating such duties by a disability rather than a duty.

46 Steiner, op. cit.. p . 90.

47 Steiner, op. cit., p . 90.

48 Steiner, op. cit., p. 91.

49 Intellectual property is an obvious example of a property right which concerns neither objects nor spaces. One popular view holds that the lawyer's concept of property has extended so far beyond control over physical things that it has ceased to be a useful or significant category of analysis. See e.g. Grey, Thomas C., “The Disintegration of Property” in Property: Nomos XXII, ed. Pennock, J. Roland and Chapman, John W. (New York 1980).Google Scholar

50 Steiner, op. cit., pp. 93–95.

51 Steiner, op. cit., p. 95.

52 Steiner's contrast between “correlative entitlement” and “implication” seems misguided. The proper conclusion for Steiner is that Blue's right entails duties in all other persons (it does not merely “imply” them), but such duties are not (all) correlative to Blue's right. Correlativity raises the question “to whom is the duty owed?”. It is not a matter of the logic by which the existence of the right is inferred.

53 Steiner, op. cit., pp. 95–97.

54 Honoré, A.M., “Ownership” in Oxford Essays in Jurisprudence, ed. Guest, A.G. (Oxford 1961).Google Scholar

55 Steiner, op. cit., pp. 95–100.

56 Steiner, op. cit., p. 92.

57 Steiner, op. cit., p. 100.

58 See below.

59 Eg. at pp. 85, 94.

60 e.g. Steiner, op. cit., pp. 211–213; 220–223.

61 Kant, Immanuel, The Metaphysics of Morals (1797) translated by Mary, Gregor (Cambridge 1991).Google Scholar

62 See Hegel, G.W.F., The Philosophy of Right, s. 135; translations by Knox, T.M. (Oxford 1952)CrossRefGoogle Scholar and H.B. Nisbet (Cambridge 1991).

63 Wittgenstein, Ludwig, Remarks on the Foundations of Mathematics (Oxford 1964), pp. 51, 104.Google Scholar

64 Williams, Bernard, “Ethical Consistency” in Problems of the Self (Cambridge 1973), p. 171.CrossRefGoogle Scholar

65 65 Williams, op. cit, p. 173.

66 Williams, op. cit., p. 174.

67 Williams, op. cit., p. 175.

68 In this respect it is unlike the situation where officials are required both to punish X and not to punish X.

69 The availability of this type of argument was pointed out by Hart, H.L.A., Punishment and Responsibility (Oxford 1968).Google Scholar

70 See The Super Servant Two [1990] 1 Lloyd's Rep. 1; Vincent v. Lake Erie Transport Co. (1910) 109 Minn. 456, 124 N.W. 221. See also Epstein, Richard, A Theory of Strict Liability (San Francisco 1980)Google Scholar; Simmonds, N.E., “Epstein's Theory of Strict Tort Liability” [1992] C.L.J. 113.Google Scholar

71 Steiner op. cit. p. 85.

72 Much relevant discussion will be found in Judith Jarvis Thomson, , The Realm of Rights (Harvard 1990).Google Scholar

73 Kraus, Coleman, “Rethinking the Theory of Legal Rights” (1986) 95 Yale Law Journal 1335.Google Scholar

74 Steiner, op. cil., p. 57.