On the limits of rights

Law and Philosophy

Volumn 16, Issue 1, 1997, Pages 1-18

  Marmor, Andrei ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 0031480091     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3504816     Document Type: Article

References (24)

1. W. N. Hohfeld, Fundamental Legal Conceptions (edited by W. W. Cook) Yale University Press, 1919.
2. R. Dworkin, 'Rights as Trumps', in J. Waldron (ed.), Theories of Rights, Oxford Readings in Philosophy, Oxford 1984, p. 153.
3. This theory of the nature of rights was developed by Neil MacCormick and Joseph Raz. See, MacCormick, 'Rights in Legislation', in Hacker and Raz (eds.), Law, Morality, and Society, Oxford University Press, 1977, p. 189. For Raz's work, on which I mainly rely here, see his Morality of Freedom, Oxford University Press, 1986, chapter 7. See also Jeremy Waldron, The Right to Private Property, Oxford University Press, 1988, pp. 79-94.
4. This theory of the nature of rights was developed by Neil MacCormick and Joseph Raz. See, MacCormick, 'Rights in Legislation', in Hacker and Raz (eds.), Law, Morality, and Society, Oxford University Press, 1977, p. 189. For Raz's work, on which I mainly rely here, see his Morality of Freedom, Oxford University Press, 1986, chapter 7. See also Jeremy Waldron, The Right to Private Property, Oxford University Press, 1988, pp. 79-94.
5. This theory of the nature of rights was developed by Neil MacCormick and Joseph Raz. See, MacCormick, 'Rights in Legislation', in Hacker and Raz (eds.), Law, Morality, and Society, Oxford University Press, 1977, p. 189. For Raz's work, on which I mainly rely here, see his Morality of Freedom, Oxford University Press, 1986, chapter 7. See also Jeremy Waldron, The Right to Private Property, Oxford University Press, 1988, pp. 79-94.
6. See Raz, ibid., p. 171.
7. The interest theory, as Raz expounded it, focuses exclusively on the relationship between rights and duties. However, it is possible, and probably desirable, to extend its scope to encompass a larger variety of normative structures. It may well be the case that rights grounded in interests justify not only the imposition of duties but perhaps immunities, liberties, and powers as well. I cannot explore these possibilities here. In any case, I believe that such an extension of the interest theory would not affect my arguments in this paper.
8. See Waldron, 'A Right to do Wrong', Ethics 92, 1981, pp. 21-39.
9. This asymmetry is clearly manifested in the way duties and rights can function in the explanation one may give for an action. Invoking a duty to explain one's action is normally a sensible thing to say; "I did it because it was my duty ..." is, normally, a good explanation for what you did. However, it is rarely a sensible explanation of an action that one had a right to do whatever one did. "I did it because I have a right to ..." is, under normal circumstances, a bad reply to the question of why you did it; it is normally beside the point.
10. The interest of personal choice I invoke here should not be confused with the so called Choice Theory of Rights. The latter dwells on a very different aspect of the relations between rights and personal choices, namely, on the control a right gives to the right holder over another's actions. The choice theory of rights is a position H.L.A. Hart at some point maintained and later discarded. For references and discussion see Waldron, note 3 above, pp. 95-99.
11. Here are three more examples: a. Duties without correlative rights. One important implication of this theory, pointed out by J. Raz, has to do with the capacity to have rights. One of the embarrassing dilemmas that we inherited from the Hohfeldian correlativity thesis between rights and duties, pertains to the duties we think we owe to animals, endangered species, perhaps to embryos, and the like. According to the Hohfeldian tradition, acknowledging A's duty towards B, entails the correlative right of B. Hence the embarrassing question arises, whether animals or endangered species have rights? No such question necessarily arises, however, under the interest theory. The latter is compatible with the view which accords us duties towards creatures or entities that are incapable of having rights. b. Rights and desires. Yet another puzzle about the capacity to have rights stems from the uneasiness people feel about according rights to somebody who either does not wish to have them, or more problematically, someone who is incapable of desiring them. According to the interest theory, however, one's capacity to have a certain right depends on the potential right holder's interests. Hence it follows that one may well have a right to something one does not wish to have, or one is incapable of desiring. Thus, for example, my newborn baby can be said to have a right to a decent education because it is in her interest to have it. The fact that she is incapable of desiring the object of the right is rendered irrelevant. c. Core and derivative rights. People often have rights to things of trivial importance; my right to scratch my head at the moment, for example, can hardly be thought to protect an important interest; surely, I can do without scratching my head at the moment. Why is it protected by a right, then? A simple answer is given by Raz's important distinction between core and derivative rights. The interest theory concentrates, as it should, on the core rights, namely, those rights which derive from interests worthy of protection by the imposition of duties on others. Derivative rights, like my right to scratch my head, are those which follow from core rights (the right to bodily integrity, in this case) by a process of justification. See Raz, note 3, above, at pp. 168-170.
12. R. Nozick, Anarchy, State and Utopia, Blackwell, 1974, chapter 3.
13. See J. Waldron, Liberal Rights, Cambridge University Press, 1993, p. 206.
14. See Waldron, ibid., particularly chapter 1.
15. J. Rawls, A Theory of Justice, Oxford University Press, 1971, at pp. 60-65. It may be thought that it is not the first principle of justice which entails this Newtonian conception of rights, but Rawls's insistence on the priority of the first over the second principle of justice. I do not think that this would be a correct interpretation, however. There is no reason to think that only the first principle is concerned with rights; the second principle is also concerned with rights, only of a different (i.e. socio-economic) kind. Hence the priority principle should be seen as a further constraint on the Newtonian conception I have outlined, a constraint maintaining that rights of one kind, namely, those covered by the first principle, may not be limited or put aside, for the purposes of enhancing the rights covered by the second principle.
16. Notably, liberal-minded courts were only too happy to endorse this Rawl-sian conception of rights discourse. Such a Newtonian conception of the limits of rights enables the courts to present the resolution of numerous moral and political conflicts in politically neutral rhetoric: as long as the limits imposed on someone's rights can be justified by reasons derived from someone else's rights, the "balanc-ing" required by this conflict can easily be presented in quantitative, and hence politically neutral, terms.
17. This anti-utilitarian element of rights constitutes, for some philosophers, the main reason for having rights in the first place. See, for example, R. Dworkin, note 2 above. See also Waldron, note 11 above, at p. 210.
18. Cf. H.L.A. Hart, 'Rawls on Liberty and its Priority' in Daniels (ed.), Reading Rawls, Blackwell, 1975, p. 230.
19. J. Raz, Ethics in the Public Domain, Oxford University Press, 1994, p. 30.
20. See Raz, ibid., at p. 37ff.
21. Waldron, note 11 above, at p. 211.
22. Raz, note 3 above, at p. 181.
23. Ibid.
24. See Waldron, note 11 above, p. 221.