A hybrid theory of claim-rights

Oxford Journal of Legal Studies

Volumn 25, Issue 2, 2005, Pages 257-274

  Sreenivasan, Gopal ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 27844431710     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi013     Document Type: Article

References (50)

1. W. N. Hohfeld, Fundamental Legal Conceptions, W. W. Cook (ed.) (New Haven: Yale University Press, 1919), 36.
2. Some dispute that rights have 'a' strictest sense. See, e.g. L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), ch 2.
3. See, e.g. J. Feinberg, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1973), ch 4
4. J. Waldron, 'Introduction' to his (ed.) Theories of Rights (Oxford: Oxford University Press, 1984), 8 [hereinafter referred to as TR];
5. Sumner, 25-27
6. J. Thomson, The Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990), 41-43
7. M. Kramer, N. Simmonds and H. Steiner, A Debate Over Rights (Oxford: Clarendon Press, 1998) [hereinafter referred to as DR].
8. In Hohfeld's example, the claim-right and the duty share the content 'that Y stay off X's land'. To preserve idiom, we could also say, alternatively, that they share a content that is satisfied by 'Y's staying off X's land'.
9. In presenting the debate between these theories in terms of their account of the correlation between claim-right holder and duty-bearer, I follow Waldron, TR, 8-9, and Sumner, 24 and 39-45. While there are other ways to frame the debate, I do not think the choice of frame affects the argument at any point. My choice is based on independent grounds, which I discuss in a companion paper, 'Duties and their direction'.
10. Throughout the discussion, I shall ignore the distinction between moral rights and legal rights. That is, I shall not pay special attention to it. While this will sometimes involve me in (minor) infelicities, it conveniently enables me to concentrate on the core features of a claim-right, which hold in common between law and morals.
11. H. L. A. Hart, 'Legal Rights' in his Essays on Bentham (Oxford: Clarendon Press, 1982), 183-84 [hereinafter referred to as 'LR'].
12. See D. N. MacCormick, 'Rights in Legislation' in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), 195-99 [hereinafter referred to as 'RL'].
13. The inalienable claim-right here, to be precise, is the claim-right to receive a standard disclosure prior to consenting (to an operation or other medical treatment). In US law, this claim-right may not be inalienable, since it seems that a physician's duty to disclose can actually be waived. See J. W. Berg, P. S. Appelbaum, C. W. Lidz and L. S. Parker, Informed Consent: Legal Theory and Clinical Practice (New York: Oxford University Press, 2nd edn, 2001), ch 4. But given the standard analysis of the requirements of informed consent - on which they include understanding the standard disclosure - a patient's having the power to waive the physician's duty to disclose is incoherent. On the standard analysis, therefore, the claim-right is inalienable.
14. The second of the less dramatic examples also makes it clear that what the protective disability protects need not be the autonomy, specifically, of the claim-right holder.
15. A better known variant of this objection concerns children. But I think this variant is liable, with reason, to greater controversy.
16. N. Simmonds, 'Rights at the Cutting Edge' in DR at 225-32.
17. Hart, 'LR' at 188-89. On some versions of the Will theory, it would be objectionable to characterize the justification of Y's power to waive in terms of her interest in autonomous choice. But nothing turns on this formulation, at least not for my purposes. I could as well describe the justification associated with (WT) as 'appealing in some fashion' to the value of (individual) autonomy. The formulation in the text makes the greater generality of the justification associated with (IT) explicit on the surface of the two accounts. However, the facts about which account is more general hold independently of this formulation (see the following note).
18. The justification of claim-rights associated with (IT) can let whatever it is about the value of (individual) autonomy that grounds the justification associated with (WT) weigh in favour of empowering Y to waive X's duty to φ. Its greater generality consists in the fact that it also allows other factors - to wit, aspects of Y's well-being that are independent of her autonomy - to weigh against empowering Y to waive this duty. It is irrelevant to this claim whether advocates of (WT) would assign justificatory weight to these other factors, so long as you and I do.
19. See, notably, H. L. A. Hart, 'Are there any natural rights?'[1955] in Waldron, TR at 81-2
20. and 'LR', 187-88.
21. Ibid. Some interest theorists reply by affirming that your brother has an interest in your fulfilling your promise to him, in which case (IT) will vest him with a claim-right against you.
22. See, e.g. D. Lyons, 'Rights, Claimants, and Beneficiaries' [1969] reprinted in his Rights, Welfare, and Mill's Moral Theory (New York: Oxford University Press, 1994), 42-44
23. and M. Kramer, 'Rights Without Trimmings' in DR at 79-80.
24. See above, n 15
25. cf. H. Steiner, An Essay on Rights (Oxford: Blackwell, 1994) at 61-62. Kramer protests that it begs the question to deny that your sister has a claim-right against you (DR at 66-68).
26. Cf. Lyons at 37-41.
27. MacCormick replies that the third party objection can also be re-modelled to tell against the Will theory, and thus proves too much ('RL' at 208-9). As it happens, his re-modelling is not effective. But even if it were, it would still not show that (IT) had itself satisfied the condition of adequacy.
28. M. Kramer, 'Rights Without Trimmings' in DR at 66-68 and 79-84.
29. Changes in the description of your brother's interest can be mirrored by changes in your grandmother's interest. In principle, the description of his interest should not explicitly refer to the breach or fulfilment of your promise, since this would make Kramer's test vacuous (cf. n 23). For that matter, however, your grandmother may also have an interest in promises to her grandchildren being kept.
30. This case is also discussed by H. Steiner, who makes somewhat different use of it. H. Steiner, 'Working Rights' in DR at 285-86.
31. Kramer later mentions, but does not resolve, a related issue about when a given proof is sufficient (DR at 90-91).
32. Kramer does sometimes slip in the qualification 'unexcused detriment' (e.g. DR at 82-83), which might be exploited to cover cases where the duty is waived. But this makes his test vacuous. Compare the equivalent notion of a 'detriment in breach', which explicitly drains the test of content.
33. J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) [hereinafter referred to as MF].
34. See J. Raz, 'Rights and Individual Well-being' in his Ethics in the Public Domain (Oxford: Clarendon Press, 1994), 45 (cf. MF at 187). My discussion in the remainder of this section refers to this article.
35. Compare Simmonds, DR at 195-200
36. and Thomson at 152.
37. At a minimum, this requirement is a desideratum for a theory of claim-rights, one that derives from the aim of preserving the connection between the language of rights and liberal individualism. In its weakest version, my argument against (RZ) is that it fails this desideratum, whereas (as we shall see) my hybrid alternative satisfies it. I actually believe, more strongly, that the requirement stated in the text is a condition of adequacy on a theory of claim-rights. But I shall not argue for this here.
38. The interest of the journalist that must have sufficient weight here is her interest as an individual person (albeit, one who is a journalist). As an anonymous referee has observed, the individual journalist might also be thought to have interests as the occupant of a certain office (i.e. that of journalist), interests that are independent of her interests as a person and that reflect - by definition (of the office), rather than by instrumental alignment - the interests third parties have in a free press. We need not decide whether this alternative analysis provides a better account of the freedom of the press. Even if it does, the account it provides either makes no appeal to the journalist's status as a right-holder (as distinct from her status as an office-holder) or else it, too, makes assignments of that status reflect something in addition to the journalist's intrinsic standing as an individual. In the first (more likely) case, the account on offer is not enough like Raz's account to help him; and, in the second case, too much like it to satisfy our desideratum.
39. Either that or we should reject (RZ) - we should deny, that is, that claim-rights are vested on the basis of the sufficiency of an individual's interest to justify the correlative duty. But this option is not open to Raz.
40. For example, MacCormick in 'RL' and Kramer in 'Rights Without Trimmings'.
41. For example, Hart in 'LR'.
42. We might also consider a variant D: The same as (SHC), except that 'Z' is interpreted to cover both third parties and the null party, i.e. 'no one'. (SHD) would extend the rationale in (SHC) to cover the case in which Y's interests are advanced on balance when no one at all has the power to waive X's duty to φ.
43. Or, more precisely, either the correct theory of promising will satisfy this constraint or it will license us to abandon the ordinary assumption that the promisee has a claim-right against the promisor. Notice that the constraint says nothing about how the promisor's duty has to be justified. In relation to the central burden of a theory of promising, then, it is no constraint at all.
44. Indeed, all the versions of my hybrid begin with some such formulation as 'Suppose X is duty-bound to φ'. This is meant to signal that the justification for the duty to φ is taken as given.
45. In this case, the decisive considerations justifying X's duty are the third party interests. Ex hypothesi, however, these decisive interests are served precisely by serving the balance of Y's own interests. That makes the balance of Y's interests decisive for justifying X's duty, which is why this is actually an instance of the previous case. See also the discussion below of the artist's right of integrity.
46. The journalist's right to withhold the names of her sources is actually a cluster-right: A combination, that is, of a liberty-right to withhold (or to disclose) these names and of a claim-right not to be required to disclose them. This is a familiar arrangement, in which the claim-right serves to protect the liberty-right. However, it makes the relation between a power to waive the correlative duty (not to require disclosure) and the journalist's primary interest here (i.e. the liberty to withhold or disclose the relevant names) unnecessarily complicated for our purposes. This is less of an issue for Raz, for whom the specific notion of a claim-right, as distinct from a liberty-right, is not at the forefront of attention.
47. For discussion of this right, see (e.g.) J. H. Merryman, 'The Refrigerator of Bernard Buffet' (1976) Hastings Law Journal 27 at 1023-49. The details of the case that follow in the text appear at 1023. I owe the example and the reference to Charles Beitz.
48. Compare Merryman, at 1041: 'The machinery of the state is available to protect 'private' rights in part because there is thought to be some general benefit in doing so. Thus the interests of individual artists and viewers are only a part of the story. Art is an aspect of our present culture and our history; it helps tell us who we are and where we came from. To revise, censor, or improve the work of art is to falsify a piece of the culture'.
49. To tighten the parallel with the journalist's claim-right, we can assume, plausibly, that these third party interests have a greater weight in the social calculus than the interests of individual artists.
50. In some jurisdictions (e.g. France), the right of integrity is actually partially inalienable. The artist lacks the power to waive the duty not to distort her work, but retains the power to enforce the duty (as Buffet did) or not. This arrangement remains in the spirit of (CH), since it reflects the same concern for the balance of the artist's interests (cf. Merryman, at 1044). (We need not enquire here what measure of control over this duty best satisfies that concern.)