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Are There Necessary Truths About Rights?

Published online by Cambridge University Press:  09 June 2015

Sean Coyle
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Extract

The essay considers whether there are necessary truths about rights. The existence of rights is contingent, but our practices involving rights rest upon fundamental conceptual assumptions necessary to their coherence. Hohfeld’s analysis is proffered as the embodiment of those assumptions. An examination of the concept of necessity shows how those assumptions can be necessary truths about rights without being logically necessary.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 15 , Issue 1 , January 2002 , pp. 21 - 49
Copyright
Copyright © Cambridge University Press 2002

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References

1. It has been pointed out by some writers that moral assessments of right tend to proceed on what might justifiably be called a ‘juridical’ conception of rights. This is sometimes felt to be just one aspect of a view which sees morality as a whole as essentially law-like in essential respects; see Nigel Simmonds, The Decline of Juridical Reason (Manchester, UK: Manchester University Press, 1984) at 38-40.

2. See Steiner, Hillel, “Working Rights” in Simmonds, Kramer, & Steiner, , eds., A Debate Over Rights (Oxford: Oxford University Press, 1998)Google Scholar at 234.

3. Ibid.

4. Nigel Simmonds, “The Analytical Foundations of Justice” (1995) 54 Cambridge L.J. 306 at 308.

5. See ibid. at 310.

6. For reasons which will become clear, I am not here concerned with moral conceptions of rights or wider political usages of that concept. I will, however, have something to say about these categories of right in the context of Steiner’s remarks alluded to above: see section 4 of the present paper.

7. See also Robert Louden, “Rights Infatuation and the Impoverishment of Moral Theory” (1983) 96 J. Value Inquiry 1; Wayne Sumner, The Moral Foundation of Rights (Oxford: Oxford University Press, 1987) at 1-13.

8. One variant on this scenario is discussed by Joel Feinberg: see Feinberg, “The Nature and Value of Rights” (1970) 4 J. Value Inquiry 243. Feinberg’s discussion is however marred by some serious conceptual confusions, reiterations of some of which are discussed by Kramer, see infra note 20). In particular, Feinberg errs in assuming that such a world without rights could yet contain a workable concept of duty. See also John Kleinig, “Human Rights, Legal Rights and Social Change” in E. Kamenka & A. Tay, eds., Human Rights (New York: Edward Arnold, 1978) at 46. See also R.H.S. Tur, “The Notion of a Legal Right: A Test Case for Legal Science” (1976) 21 N.S. Juridical Rev. 177.

9. Indeed, one central issue in recent cases dealing with aboriginal land ‘rights’ was precisely whether the cultural understandings of ‘belonging’ and spiritual connection with land could be articulated in terms of ‘rights’: see Wik Peoples v. Queensland (1996) 187 CLR 1; Mabo v. Queensland (No. 2) (1992) 175 CLR 1.

10. Nigel Simmonds, “Rights at the Cutting Edge” in A Debate Over Rights, supra note 2 at 122.

11. The phrase about ghosts is borrowed from Frege: see Geach, P. & Black, M., eds., Translations From the Philosophical Writings of Gottlob Frege (Oxford: Oxford University Press, 1960)Google Scholar at 84-85.

12. Simmonds, supra note 10 at 130-31.

13. Ibid, at 212. See also Simmonds, “The Analytical Foundations of Justice” supra note 4 at 307 in a discussion of Steiner’s austerely analytical approach: “There are numerous ways of organising our more ‘conceptual’ intuitions about rights, all of which are viable alternatives to Steiner’s analysis. The best reasons for choosing Steiner’s analysis in preference to rival analyses spring from evaluative understandings that might incline one towards Steiner’s general theory of justice.”

14. Simmonds, supra note 4 at 307. Simmonds’s argument likewise collapses the distinction between ‘analysis’ and ‘theory’.

15. Matthew Kramer, “Rights Without Trimmings” in A Debate Over Rights supra note 2 at 23. It is worth noting, however, that Kramer regards the encroachment of evaluative assumptions on the task of conceptual analysis as minimal and “uncontroversial” (ibid, at 60).

16. Steiner makes this point: see supra note 2 at 235; see Wesley Hohfeld, Fundamental Legal Conceptions, W.W. Cook, ed., (New Haven, CT: Yale University Press, 1964) at 25f.

17. Cf. Simmonds, supra note 10 at 211. The reference is to a remark of Wittgenstein’s that we should refrain from supposing that, whenever children play with a ball, they play a game according to strict rules. My point is that the absence of strict ‘canonical’ rules in rights discourse does not imply the total absence of semantical (as opposed to evaluative) criteria for distinguishing plausible claims of right from the inappropriate or absurd.

18. Our understanding of Hohfeld’s analytical scheme will therefore hold implications for our assessment of its impact upon the general debate over rights. Viewed from the perspective of a realist, the usefulness of Hohfeld’s scheme in structuring that debate will be only an incidental benefit, and we should be accordingly sceptical about reading into the practical utility of his scheme any conclusions regarding the will and interest theories, or on positions one may take on the issue of the correlativity of rights with duties. Seen, on the other hand, through the eyes of an analytic philosopher in the tradition of the British legal positivists, one may well be tempted to claim that his scheme says something fundamental about the nature of rights, and may hold particular and surprising consequences for the various issues which make up the general debate over rights. We may therefore wish to question whether his scheme imposes upon us acceptance of the will theory or the interest theory, or, if it does not, whether it puts certain versions of either or both of those theories out of reach.

19. For the reasons why Kramer’s terminology should be preferred see his “Rights Without Trimmings” [hereinafter RWT\ supra note 15 at 8.1 also fall in with the modern practice of renaming Hohfeld’s ‘privilege’ as ‘liberty’.

20. E.g., RWT at 26-27. Actually, Kramer’s point is effective against any attempt to provide an ‘external’ refutation of Hohfeld’s scheme: such attempts need not be empirical, as long as they are questioning the soundness of Hohfeld’s conceptions on grounds which pertain to the conceptual worth of the inter-definitions by reference to alternative semantical conceptions which Hohfeld did not adopt.

21. RWT at 35.

22. This way of presenting Hohfeld’s scheme derives from Glanville Williams, “The Concept of Legal Liberty” (1956) 56 Colum. L. Rev. 1129.

23. AWT at 9, 24.

24. Ibid, at 22-23.

25. If, that is, we define x and y in such a way that they are guaranteed always to have the same value, that is, such that x iff y.

26. For an account of this process see Michael Dummett, Frege: Philosophy of Language, 2nd ed., (London: Duckworth, 1981) at ch. 8.

27. Use of the shorthand raises no difficulties so long as it is recognised that it is a shorthand. My reason for eschewing it in this section is simply to bring out and emphasise the ‘longhand’ propositions for which it stands.

28. As we have seen, it is not the concepts right and no-right which are mutually contradictory; it is, rather, a dyad of propositions (‘x has a right wrt tp’; ‘x has a no-right wrt q>) which may be spoken of as mutually contradictory.

29. RWT at 21.

30. Kramer shares the view that correlativity is axiomatic, but hardly unreflectively. See RWT at 9ff for a painstaking discussion.

31. Simmonds, supra note 4 at 307-08.

32. Moreover, we shall see in due course that, even if such counter-examples proved conclusive, this is no bar to the recognition of Hohfeld’s analysis as expressing necessary truths about rights in some more restricted domain, such as private law. See also Simmonds, supra note 10 at 142ff.

33. It is a nice question whether Hohfeld’s scheme is compatible with entitlements intended to benefit individuals or groups which it is impossible in principle to identify. Counter-intuitive though such talk would be, I can find no compelling/orma/argument to suggest that the corresponding concepts (i.e., entitlements which it is impossible in principle to confer) are self-contradictory. So long as there is a dyad of well-defined place-holders flanking the entitlement and corresponding imposition, there seems to me to be no obstacle to the existence of such entitlements and impositions merely because we cannot in principle identify the intended bearers via the concepts filling those places: for example, there is nothing self-contradictory about ascribing rights to residents of Alpha Centauri or the Homeric gods, even though we are in principle unable to identify the beneficiaries of such rights.

34. Such ascription may, of course, (though usually will not) be implicit. A liberty to smoke in a public place, for example, is clearly a liberty ascribed to such entities as can, all things being equal, engage in that activity. This does not raise problems about classes of individuals who, for one reason or another, lack the power to engage in such activities (e.g., in the case of smoking, those who are permanently housebound, or those who are medically disabled from smoking). The issue, in other words, is not one based on the contingencies of material characterisations, but rather turns on specification of conceptual boundaries, i.e., whether we can make sense of the suggestion that a given class of entities has such an entitlement. (We may question whether the claim that, e.g., mice have a liberty to smoke in a public place even makes sense in terms of our received conceptions of entitlements and of the mental and physical powers of mice.)

35. See Simmonds, supra note 10 at 115-45.

36. On imaginable situations in which rights utterly fail in their protection (of choices or of interests) see Matthew Kramer, “On the Nature of Legal Rights” (2000) 59 Cambridge L.J. 473 at 476ff.

37. Again, the Will and Interest theories would be false in relation to such ‘formal’ rights: the Will theory because such ‘rights’ would not define or delimit a power of choice; the Interest theory since they would lack any identification of an interest or the manner of its protection.

38. RWT at 42-48.

39. This is, more than anything, a condition to avoid grammatical inelegance when talking about x’s project φ from the perspective of the duty-bearer rather than the right-holder, in the case of certain substitutions for φ. As far as I can see, this concession raises no substantive formal problems, and I have been unable to find a convincing reason for rejecting the stronger condition (SC) x Δ→ φ(y) ⇔ y ▽ → φ(x) other than that it can give rise to grammatical inelegance. I will, however, rely upon the weaker version in this paper, though nothing I shall say turns on this choice.

40. That the apparently controversial assumption of the bivalence of rights (or something equivalent to it) presupposed in (*) is in fact innocuous, can be seen in the truth (for a Hohfeldian) of the following statement: (*’) ⌝(x Δ⌝ φ(y)) ⇒x Δ→ φ’(y). This is true because x’s lack of no-right is x’s lack of an absence of remedies with respect to φ(y) which are stronger than liberties to interfere, powers to alter or immunities from exercises of powers.

41. RWT at 9-22.

42. At least, it does so when the metalinguistic connectives (⇔, v and so on) are given something like their standard first-order proof-theoretic meanings. For example, we can derive the proposition (+) x Δ→ φ(y) ⇒ y▽→ φ’(x) from (SC) and the rule of [⇔E], and from (++) x Δ→ φ(y)—the proposition that x has a (Hohfeldian) claim-right, and (+), by [cut], we get: (+++) y ▽→ φ’(x). This is of course highly uninteresting since it tells us nothing which is not immediately obvious from (SC) itself; more complex derivations (such as a formalisation of Kramer’s illustration involving the non-entailment of a liberty from a claim-right—RWT 15-16) would require significant augmentation to the expressive power of the notation, involving action-predicates and some machinery for handling contingent situations in which one action, protected by right, impacts upon another which falls under a duty of the right-holder, the former action therefore not being freely exercisable. (In Kramer’s example, a factory’s right to non-interruption of the flow of effluent through its pipes does not entail a liberty to discharge that effluent into a lake, where the latter action is the actual and intended outcome of the former.)

43. Matters would not stand otherwise if the notation employed were that of deontic logic: as I have noted elsewhere, the theorem p ⇒ Mp (if something is the case, then it is possible) is valid on K, the weakest modal system, out of which all variants of deontic logic are built. Using the standard analogy, the modal operator M cannot then stand in for a Hohfeldian liberty, since, using modal necessity to stand in for claim-right, we would have Np ⇒ p; and p ⇒ Mp, allowing an inference from a right to freedom from interference in some project p; to the conclusion of a liberty to engage in p whenever p has actually been performed. But a deductive inference between right and liberty is precisely what Hohfeld’s analysis demonstrates to be invalid. Moreover, reading M as liberty leads to the outlandish suggestion that whatever action is performable is permitted, i.e., that it is logically impossible for anyone to be placed under a duty. For an example of an attempt to ground Hohfeld’s analysis in deontic logic see P. Mullock, “The Hohfeldian Jural Opposite” (1971) 13 Ratio 158.

44. Hale, infra at note 54, passim.

45. Though, as I have argued, it can be readily understood in such terms.

46. Simmonds, supra note 10 at 142-43.

47. Supra note 16. Originally published (1913)23 Yale L.J. 16. Hereinafter this article will be cited as “FLC1”; a second essay of the same title was published in (1917) 26 Yale L.J. 710 and will be referred to as “FLC2”. All page references are to the Yale University Press edition.

48. FLC1 at 23, 25, emphasis added.

49. FLC1 at 26, emphasis added.

50. See FLC1 at 38ff.

51. FLC1 at 44-50.

52. FLC1 at 63; see also FLC2 at 66.

53. I shall, for simplicity’s sake, again concentrate only on the case of rights and duties, that is, upon (SC) itself.

54. See Bob Hale, “On Some Arguments for the Necessity of Necessity” (1999) 108 Mind 23.

55. The main purpose of Hale’s argument is to defend the notion of logical necessity per se from sceptical assaults upon the possibility of necessity. For an assault on Hale’s views see Arif Ahmed, “Hale on Some Arguments for the Necessity of Necessity” (2000) 109 Mind 81; for Hale’s response, see “Reply to Ahmed” (2000) 109 Mind 93.

56. Hale, supra note 54 at 24.

57. Ibid, at 24-25.

58. Ibid, at 25.

59. Ibid, at 26.

60. Ibid, at 26-27.

61. Ibid, at 27.

62. Ibid, at 29 note 7.

63. Ibid, at 27.

64. It is clear that acceptance of (*) entails the rejection of the proposition that Hohfeldian equivalences embody logical laws, since under (*) those laws fail to embody one of the central characteristics of a logical law, namely that A c B ℩ Cn(A) c Cn(B) (when the premises are increased, the consequences obtained from the smaller set must be maintained).

65. MacCormick, Neil, “Children’s Rights: A Test-Case for Theories of Right” in Legal Right and Social Democracy (Oxford: Oxford University Press, 1982)Google Scholar 154.

66. A similar line of analysis, slightly different in its details, is offered by Kramer in his discussion of inchoate entitlements: see RWT at 41 ff.

67. In fact, it is more likely that such discourse would lead to error, either by failing to identify correctly the legal relationships in question, or by simply brushing over the existence of discrete legal relationships—such as the relationship of power to liability in the case of an offeror of a contract and the offeree.

68. For an extended treatment of MacCormick’s theory, see Kramer, RWT at 25-29; other theories are explored in the appendix to RWT: “Getting Hohfeld Right” 101. My intention here is not to add to Kramer’s analysis of those theories, but merely to illuminate the common principles which underlie a successful response to each of them.

69. I am grateful to Matt Kramer for this point and for helping to clarify my thoughts in this area.

70. See, e.g., Kramer, Matthew, John Locke and the Origin of Private Property (Cambridge: Cambridge University Press, 1997)CrossRefGoogle Scholar at 16.

71. I will forebear from rehearsing those claims again, having provided a fairly lengthy defence of them in the preceding two sections.

72. I am grateful to Richard Bronaugh for this example.

73. For one who would impugn such overtly metaphysical conceptions on general anti-realist grounds, the issue becomes one of flexibility in the semantic rules which govern our thought and talk about rights (that is, as concerning a semantic natural kind rather than a metaphysical one). On the purely semantical conception, our established discourse delineates a ‘core sense’ of the term ‘Right’ and various shadings of meaning within which we are prepared to regard such variations as instances of the same concept.