Rights: Beyond interest theory and will theory?

Law and Philosophy

Volumn 23, Issue 4, 2004, Pages 347-397

  Cruft, Rowan ^a  

^a UNIVERSITY OF STIRLING   (United Kingdom)

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EID: 3843100630     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/B:LAPH.0000015417.05737.0e     Document Type: Review

References (83)

1. See, for example, L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), p. 1; George W. Rainbolt, "Rights as Normative Constraints on Others", Philosophy and Phenomenological Research 53/1 (1993), pp. 93-111 at p. 93; James Griffin, "First Steps in an Account of Human Rights", European Journal of Philosophy 9/3 (2001), pp. 306-327 at p. 306; Susan James, "Rights as Enforceable Claims", Proceedings of the Aristotelian Society 103/2 (2003), pp. 133-147 at p. 133.
2. See, for example, L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), p. 1; George W. Rainbolt, "Rights as Normative Constraints on Others", Philosophy and Phenomenological Research 53/1 (1993), pp. 93-111 at p. 93; James Griffin, "First Steps in an Account of Human Rights", European Journal of Philosophy 9/3 (2001), pp. 306-327 at p. 306; Susan James, "Rights as Enforceable Claims", Proceedings of the Aristotelian Society 103/2 (2003), pp. 133-147 at p. 133.
3. See, for example, L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), p. 1; George W. Rainbolt, "Rights as Normative Constraints on Others", Philosophy and Phenomenological Research 53/1 (1993), pp. 93-111 at p. 93; James Griffin, "First Steps in an Account of Human Rights", European Journal of Philosophy 9/3 (2001), pp. 306-327 at p. 306; Susan James, "Rights as Enforceable Claims", Proceedings of the Aristotelian Society 103/2 (2003), pp. 133-147 at p. 133.
4. See, for example, L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), p. 1; George W. Rainbolt, "Rights as Normative Constraints on Others", Philosophy and Phenomenological Research 53/1 (1993), pp. 93-111 at p. 93; James Griffin, "First Steps in an Account of Human Rights", European Journal of Philosophy 9/3 (2001), pp. 306-327 at p. 306; Susan James, "Rights as Enforceable Claims", Proceedings of the Aristotelian Society 103/2 (2003), pp. 133-147 at p. 133.
5. See H. L. A. Hart, "Are There Any Natural Rights?", Philosophical Review 64/2 (1955), pp. 175-191 at p. 181; Sumner, The Moral Foundation of Rights, pp. 204-205; Hillel Steiner, "Working Rights", in Matthew H. Kramer, N. E. Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press 1998), pp. 259-262.
6. See H. L. A. Hart, "Are There Any Natural Rights?", Philosophical Review 64/2 (1955), pp. 175-191 at p. 181; Sumner, The Moral Foundation of Rights, pp. 204-205; Hillel Steiner, "Working Rights", in Matthew H. Kramer, N. E. Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press 1998), pp. 259-262.
7. See H. L. A. Hart, "Are There Any Natural Rights?", Philosophical Review 64/2 (1955), pp. 175-191 at p. 181; Sumner, The Moral Foundation of Rights, pp. 204-205; Hillel Steiner, "Working Rights", in Matthew H. Kramer, N. E. Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press 1998), pp. 259-262.
8. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, CT: Yale University Press 1964 [reprinted from Yale Law Journal 1913 and 1917]), pp. 35-64.
9. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, CT: Yale University Press 1964 [reprinted from Yale Law Journal 1913 and 1917]), pp. 35-64.
10. Matthew H. Kramer, "Rights Without Trimmings", in Matthew H. Kramer, N. E. Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press 1998), p. 8.
11. Hohfeld, Fundamental Legal Conceptions, pp. 36-50.
12. Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press 1990), p. 301.
13. Hohfeld, Fundamental Legal Conceptions, pp. 50-64.
14. For a nuanced discussion of how the Hohfeldian positions can be understood using the notions of deontic and alethic possibility, see Sumner, The Moral Foundation of Rights, pp. 18-31.
15. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books 1974), p. 29.
16. Nozick shies away from absolutism. He suggests that 'side constraints' might be justifiably infringeable 'in order to avoid catastrophic moral horror' (Anarchy, State and Utopia, pp. 29-30, footnote).
17. Thomas Nagel discusses the non-maximising feature of rights in his "Personal Rights and Public Space", Philosophy and Public Affairs 24/2 (1995), pp. 83-107, at pp. 87-89. He focuses solely on morally important rights, such as the right not to be murdered.
18. It is sometimes held that all apparently non-relational duties are duties which one owes to oneself. But it is not unusual to conceive duties like my piano-playing duty as owed neither to myself nor to anyone else. Joel Feinberg gives further examples of non-relational duties (Joel Feinberg, Justice and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press 1980), p. 137; see also N. E. Simmonds, "Rights at the Cutting Edge", in Matthew H. Kramer, Nigel Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press 1998), pp. 143-144). Note that, as possessing 'the non-maximising feature', my duty to practise the piano more requires me to practise more, rather than requiring me simply to promote the overall incidence of piano-practising.
19. It is sometimes held that all apparently non-relational duties are duties which one owes to oneself. But it is not unusual to conceive duties like my piano-playing duty as owed neither to myself nor to anyone else. Joel Feinberg gives further examples of non-relational duties (Joel Feinberg, Justice and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press 1980), p. 137; see also N. E. Simmonds, "Rights at the Cutting Edge", in Matthew H. Kramer, Nigel Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press 1998), pp. 143-144). Note that, as possessing 'the non-maximising feature', my duty to practise the piano more requires me to practise more, rather than requiring me simply to promote the overall incidence of piano-practising.
20. Rainbolt, "Rights as Normative Constraints on Others".
21. In this paper I shall not attempt to answer those critics who see the Hohfeldian approach to rights as wholly misguided. For defence of the Hohfeldian approach, see Kramer, "Rights Without Trimmings", pp. 7-60.
22. Rainbolt, "Rights as Normative Constraints on Others", p. 99.
23. Because my version of the Normative Constraint view allows certain non-constraining Hohfeldian positions (in particular, privileges, powers and liabilities) to qualify as rights, the phrase 'Normative Constraint' is not as apt to describe my version of the Normative Constraint view as it is to describe Rainbolt's. Nonetheless, my version more accurately reflects the way that the term 'a right' is actually used, and I maintain the phrase 'Normative Constraint view' in order to reveal the similarities between my version of the Normative Constraint view and Rainbolt's.
24. Hohfeld proposed that the term 'right' should be used to refer only to claims, and some writers follow Hohfeld by restricting their usage in this way (Hohfeld, Fundamental Legal Conceptions, pp. 36-38; Kramer, "Rights Without Trimmings", p. 9). I shall not adopt this restricted usage, as my purpose is to elucidate what binds together the various ways in which the term 'a right' is actually used. We use the term 'right' in ways which are not analysable by Hohfeldian claims.
25. Hohfeld proposed that the term 'right' should be used to refer only to claims, and some writers follow Hohfeld by restricting their usage in this way (Hohfeld, Fundamental Legal Conceptions, pp. 36-38; Kramer, "Rights Without Trimmings", p. 9). I shall not adopt this restricted usage, as my purpose is to elucidate what binds together the various ways in which the term 'a right' is actually used. We use the term 'right' in ways which are not analysable by Hohfeldian claims.
26. Because any one Hohfeldian claim (like any one privilege or duty) involves a relation between only two parties, it follows that a right held against several parties must be analysed as involving a cluster of several Hohfeldian claims. For example, my in rem right not to be assaulted should be analysed as comprising a cluster of various claims - a claim that you not assault me, a claim that Joe not assault me, a claim that Maureen not assault me and so on. Note also that each of these constituent claims might (with suitable elaboration) in themselves merit the title 'rights', constituent rights within my in rem right not to be assaulted (e.g. my in rem right not to be assaulted includes my right not to be assaulted by you, my right not be assaulted by Joe, and so on) (see the related discussion in Hohfeld, Fundamental Legal Conceptions, pp. 76-77). This is not to say that every right held by a group or against a group must involve a cluster of claims held individually by or against each member of the group; rather, a group can constitute a single party which can hold a single Hohfeldian claim, and against which a single Hohfeldian claim can be held (e.g. my right that the book club invite me to their annual party does not involve a cluster of claims entailing that each member of the book club is under a duty to send me an invitation; rather, the book club as a group is under the duty to send me an invitation; this duty correlates with a single claim, held by me against a single party consisting of the-book-club-as-a-group) .
27. Peter Jones, Rights (Basingstoke: Macmillan, 1994), p. 24.
28. H. L. A. Hart, "Bentham on Legal Rights", in A. W. B. Simpson, Oxford Essays in Jurisprudence (Second Series) (Oxford: Clarendon Press, 1973), pp. 181-182; Sumner, The Moral Foundation of Rights, p. 35.
29. H. L. A. Hart, "Bentham on Legal Rights", in A. W. B. Simpson, Oxford Essays in Jurisprudence (Second Series) (Oxford: Clarendon Press, 1973), pp. 181-182; Sumner, The Moral Foundation of Rights, p. 35.
30. See Hohfeld, Fundamental Legal Conceptions, p. 41.
31. Hart disputes the thesis that the privileges of slaves could constitute rights (Hart, "Bentham on Legal Rights", p. 182), but if you allowed me to eat your salad then even if I was a slave it seems to me that it would be true to assert that I had a right to eat your salad; for discussion sympathetic to Hart, see Simmonds, "Rights at the Cutting Edge", pp. 165-168; see also pp. 157-158 for examples of privileges that, without the protection of claims, constitute rights.
32. Hart disputes the thesis that the privileges of slaves could constitute rights (Hart, "Bentham on Legal Rights", p. 182), but if you allowed me to eat your salad then even if I was a slave it seems to me that it would be true to assert that I had a right to eat your salad; for discussion sympathetic to Hart, see Simmonds, "Rights at the Cutting Edge", pp. 165-168; see also pp. 157-158 for examples of privileges that, without the protection of claims, constitute rights.
33. Hart, "Bentham on Legal Rights", p. 182; Feinberg, Justice and the Bounds of Liberty, p. 157; Sumner, The Moral Foundation of Rights, pp. 33-34.
34. Hart, "Bentham on Legal Rights", p. 182; Feinberg, Justice and the Bounds of Liberty, p. 157; Sumner, The Moral Foundation of Rights, pp. 33-34.
35. Hart, "Bentham on Legal Rights", p. 182; Feinberg, Justice and the Bounds of Liberty, p. 157; Sumner, The Moral Foundation of Rights, pp. 33-34.
36. Note that the forms that appropriate remedies can take are various, and need not be limited to a spoken apology or a compensation payment.
37. It might be argued that the recompense clause is superfluous because the very concepts of a claim, privilege, power, immunity or liability are analytically bound up with the notion that recompense is owed if the claim, privilege, power, immunity or liability were violated or not properly respected or not properly enforced. This contention is perhaps most plausible with respect to claims: maybe for a claim to exist at all, it is necessary that recompense would be owed if the claim were violated. But in my view this is false. It makes sense to assert that I can owe my aunt a duty to visit her in hospital, without its being the case that were I to fail to visit her, then I would be under a duty to apologise or make recompense. Similarly, it makes sense to assert that I can be under a duty towards my parents to work hard at school (and hence they can hold a Hohfeldian claim that I work hard at school), even if I would be under no duty to apologise or compensate them were I to fail to work hard at school.
38. Matthew H. Kramer, "Getting Rights Right", in Matthew H. Kramer (ed.), Rights, Wrongs and Responsibilities (Basingstoke: Palgrave 2001), p. 59. Note that Kramer introduces this example for purposes rather different to mine; in particular, Kramer does not explore the Normative Constraint view of rights.
39. We might be inclined to classify the power-to-incur-new-duties-through- careless-driving as 'a right' in cases where the careless driver would benefit from being placed under the new duties. But in most contexts, I do not believe that a careless driver would benefit in this way, and hence in most contexts I do not believe we would classify the power-to-incur-new-duties-through-careless- driving as 'a right'.
40. See §6.1 for an important modification of this thesis.
41. Again, see §6.1 for an important modification of this thesis.
42. Note that my contention here requires commitment to some form of legal positivism.
43. Remember that a modification to these theses is introduced in §6.1 below. This modification does not affect my argument at this stage.
44. Hart, "Are There Any Natural Rights?", p. 178 and "Bentham on Legal Rights", pp. 191-192; Sumner, The Moral Foundation of Rights, pp. 42-43; Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 57-58; Simmonds "Rights at the Cutting Edge", p. 218.
45. Hart, "Are There Any Natural Rights?", p. 178 and "Bentham on Legal Rights", pp. 191-192; Sumner, The Moral Foundation of Rights, pp. 42-43; Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 57-58; Simmonds "Rights at the Cutting Edge", p. 218.
46. Hart, "Are There Any Natural Rights?", p. 178 and "Bentham on Legal Rights", pp. 191-192; Sumner, The Moral Foundation of Rights, pp. 42-43; Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 57-58; Simmonds "Rights at the Cutting Edge", p. 218.
47. Hart, "Are There Any Natural Rights?", p. 178 and "Bentham on Legal Rights", pp. 191-192; Sumner, The Moral Foundation of Rights, pp. 42-43; Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 57-58; Simmonds "Rights at the Cutting Edge", p. 218.
48. Hart, "Are There Any Natural Rights?", p. 178 and "Bentham on Legal Rights", pp. 191-192; Sumner, The Moral Foundation of Rights, pp. 42-43; Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 57-58; Simmonds "Rights at the Cutting Edge", p. 218.
49. Perhaps it is not possible to make sense of the notion of waiving or enforcing a privilege, but I believe the notion of waiver-or-enforcement makes sense regarding the other Hohfeldian positions.
50. Neil MacCormick, "Children's Rights: A Test-Case for Theories of Right", in his Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford: Clarendon Press 1982), pp. 154-158; Kramer, "Rights Without Trimmings", pp. 69-70.
51. Neil MacCormick, "Children's Rights: A Test-Case for Theories of Right", in his Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford: Clarendon Press 1982), pp. 154-158; Kramer, "Rights Without Trimmings", pp. 69-70.
52. Hart has been willing to grasp the nettle and accept that children and animals must lack rights (Hart, "Are There Any Natural Rights?", p. 181).
53. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 166.
54. One reason why Raz rejects the Hohfeldian approach is because Raz thinks that rights justify duties, while on the Hohfeldian account rights are logically correlative to duties, and these two theses can seem inconsistent (see Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), p. 84). But on closer examination, it turns out that these two theses are not inconsistent, and hence it turns out that one can accept that rights justify duties, without rejecting the Hohfeldian approach. Consider Kramer's example of someone who enjoys the downward perspective that a slope would provide in his yard - his desire for the downward perspective can justify introducing the slope, and thus also justify introducing its logical correlative, an upward perspective from the bottom of the slope; as this example seems unproblematic, similarly it should be unproblematic to suppose that a right can justify the existence of a duty even when that duty is the logical correlate of the right (Kramer, "Rights Without Trimmings", p. 39; see also J. E. Penner, "The Analysis of Rights", Ratio Juris 10/3 (1997), pp. 300-315 at p. 311).
55. One reason why Raz rejects the Hohfeldian approach is because Raz thinks that rights justify duties, while on the Hohfeldian account rights are logically correlative to duties, and these two theses can seem inconsistent (see Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), p. 84). But on closer examination, it turns out that these two theses are not inconsistent, and hence it turns out that one can accept that rights justify duties, without rejecting the Hohfeldian approach. Consider Kramer's example of someone who enjoys the downward perspective that a slope would provide in his yard - his desire for the downward perspective can justify introducing the slope, and thus also justify introducing its logical correlative, an upward perspective from the bottom of the slope; as this example seems unproblematic, similarly it should be unproblematic to suppose that a right can justify the existence of a duty even when that duty is the logical correlate of the right (Kramer, "Rights Without Trimmings", p. 39; see also J. E. Penner, "The Analysis of Rights", Ratio Juris 10/3 (1997), pp. 300-315 at p. 311).
56. One reason why Raz rejects the Hohfeldian approach is because Raz thinks that rights justify duties, while on the Hohfeldian account rights are logically correlative to duties, and these two theses can seem inconsistent (see Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), p. 84). But on closer examination, it turns out that these two theses are not inconsistent, and hence it turns out that one can accept that rights justify duties, without rejecting the Hohfeldian approach. Consider Kramer's example of someone who enjoys the downward perspective that a slope would provide in his yard - his desire for the downward perspective can justify introducing the slope, and thus also justify introducing its logical correlative, an upward perspective from the bottom of the slope; as this example seems unproblematic, similarly it should be unproblematic to suppose that a right can justify the existence of a duty even when that duty is the logical correlate of the right (Kramer, "Rights Without Trimmings", p. 39; see also J. E. Penner, "The Analysis of Rights", Ratio Juris 10/3 (1997), pp. 300-315 at p. 311).
57. Note that Raz does not present his Interest Theory as entailed by the concepts of 'relational duty' and 'recompense'; rather, Raz presents his theory independently of these issues (see The Morality of Freedom, pp. 165-192).
58. There might be exceptional cases where being enslaved would serve my interests. In these cases, I might hold a 'right to be enslaved'.
59. See also Neil MacCormick's example of inherited rights over slum properties, in his "Rights in Legislation", in P. M. S. Hacker and Joseph Raz (eds.), Law, Morality and Society (Oxford: Clarendon Press), p. 202. This example differs from my gnomes case in that property rights over slums would probably serve their holders' interests in some respect (e.g. because they could be sold at some price, or rented out), although they would not serve their holders' interests on balance.
60. For a version of this retort, see Raz, The Morality of Freedom, p. 175.
61. It is worth pointing out that even if one embraced the 'indirect' understanding of the serving of interests, there would still be some examples of rights which would not serve their holders' interests in any way (not even in the 'indirect' way). For example, the legal claims and privileges which I hold concerning my useless gnomes would constitute rights even if these claims and privileges did not serve my interests in the 'indirect' way. Suppose I was a 'lover of mayhem' who would greatly enjoy the disordered society in which I would live if there were no property system in existence; in this situation, my interests would not be served by the existence of a property system - and hence my property rights in my gnomes would not serve my interests in the 'indirect' way. As the gnomes are worthless and ugly, they would also not serve my interests in any more 'direct' way. In sum, my property rights over the gnomes would not serve my interests in any way whatsoever. But they would still constitute property rights.
62. In addition, this approach is problematic for the analysis of non-legal moral rights. Who is the relevant lawmaker for non-legal moral rights?
63. See especially Kramer, "Rights Without Trimmings", pp. 93-97, and MacCormick, "Rights in Legislation", p. 202.
64. See especially Kramer, "Rights Without Trimmings", pp. 93-97, and MacCormick, "Rights in Legislation", p. 202.
65. Kramer, "Getting Rights Right", pp. 81-89.
66. Kramer, "Rights Without Trimmings", p. 9.
67. Note that I do not contend that a power-to-incur-onerous-new-duties- through-dangerous-driving should necessarily never be classified as 'a right'. Such a power might qualify as a right in contexts where it is of value to the power-holder. But in most contexts this will not be the case, and in these contexts I do not think it is correct to classify such a power as 'a right'.
68. Sumner, The Moral Foundation of Rights, p. 126.
69. Hart, "Are There Any Natural Rights?", p. 181. Consider for example the proceedings that we call "games". I mean board-games, card-games, ball-games, Olympic games, and so on. What is common to them all? - Don't say "There must be something common, or they would not be called 'games' " - but look and see whether there is anything common to all. - For if you look at them you will not see something that is common to all, but similarities,
70. Ludwig Wittgenstein, Philosophical Investigations (Oxford: Blackwell 1953), sections 66-67.
71. Indeed in this situation the Will-Theory-with-exceptions would struggle to explain why people hold claims not to be tortured (whether or not these claims qualify as 'rights'); for the Will-Theory-with-exceptions would hold that in all cases other than 'exception cases', a person can only be owed a duty (and hence can only hold a claim) when they hold powers of waiver-or-enforcement over that duty.
72. In response to this criticism, a defender of the Will-Theory-with- exceptions might modify their theory, maintaining that in its core meaning the term 'a right' refers to any claim, privilege, power, immunity or liability (accompanied by claims to recompense if the claim, privilege, power, immunity or liability is infringed, unenforced or not properly respected), that protects its holder's autonomy, whether or not it is accompanied by a power of waiver-or-enforcement. (This approach would be somewhat similar to Griffin's view of human rights, though Griffin does not distinguish 'core' from 'exceptional/non-core' cases (Griffin, "First Steps in an Account of Human Rights", pp. 318-320).) On this account, the Will-Theory-with-exceptions is structurally similar to the Interest-Theory-with-exceptions, the difference between the two theories turning simply on the fact that in the Will-Theory-with-exceptions the concept of autonomy takes the role played by interests in the Interest-Theory-with-exceptions. Which approach is preferable? I am not sure, though I suspect the Interest-Theory-based approach might involve fewer 'non-core exception cases' than the Will-Theory-based approach, because many everyday legal rights (such as my right to park in a residents' parking bay) do rather little for their holders' autonomy, although they often serve their holders' interests. In addition, the concept of autonomy is perhaps less easily and uncontroversially explicated than the concept of interests.
73. The traditional Interest Theory has been accused of being too inclusive, on the grounds that it erroneously classifies as 'right-holders' third-party beneficiaries of someone else's right (Hart, "Bentham on Legal Rights", pp. 195-196; Steiner, An Essay on Rights, pp. 62-63). But this accusation has been effectively rebutted (see Kramer, "Rights Without Trimmings", pp. 80-83); third-party beneficiaries do not qualify as right-holders because, although their interests are served by the existence of the right, they do not hold the claims, privileges, powers, immunities or liabilities which constitute the right.
74. The traditional Interest Theory has been accused of being too inclusive, on the grounds that it erroneously classifies as 'right-holders' third-party beneficiaries of someone else's right (Hart, "Bentham on Legal Rights", pp. 195-196; Steiner, An Essay on Rights, pp. 62-63). But this accusation has been effectively rebutted (see Kramer, "Rights Without Trimmings", pp. 80-83); third-party beneficiaries do not qualify as right-holders because, although their interests are served by the existence of the right, they do not hold the claims, privileges, powers, immunities or liabilities which constitute the right.
75. The traditional Interest Theory has been accused of being too inclusive, on the grounds that it erroneously classifies as 'right-holders' third-party beneficiaries of someone else's right (Hart, "Bentham on Legal Rights", pp. 195-196; Steiner, An Essay on Rights, pp. 62-63). But this accusation has been effectively rebutted (see Kramer, "Rights Without Trimmings", pp. 80-83); third-party beneficiaries do not qualify as right-holders because, although their interests are served by the existence of the right, they do not hold the claims, privileges, powers, immunities or liabilities which constitute the right.
76. On a Combined-Theory-with-exceptions, it would be argued that desert-based claims are generally either waivable or serve their holders' interests (or both); for this reason, it would be held that we have come to describe all desert-based claims as 'rights' - including even those few desert-based claims that are neither waivable nor serve their holders' interests. Similar arguments could be used to allow the Interest-Theory-with- exceptions and the Will-Theory-with-exceptions to accommodate these 'exception cases'.
77. James, "Rights as Enforceable Claims", p. 140.
78. This is not to hold that all rights must exist independently of law and other institutions. My non-revisionary approaches are compatible with the contention that certain rights are created by law. But, unlike James's view, my views are also compatible with the contention that certain rights can exist whether or not they are legally enforced.
79. See, for example, Steiner, An Essay on Rights, p. 2.
80. It is sometimes argued that it is not genuinely logically possible for a set of non-compossible rights to exist (see Steiner, "Working Rights", pp. 272-273). The argument looks like this: 1. If a set of rights is non-compossible, then it might include both (i) a claim-right, held by Joe, that I ensure that A occur, and (ii) a claim-right, held by Fred, that I ensure that A not occur. 2. If Joe holds a claim-right that I ensure that A occur, then it is permissible for me to bring about A, and it is impermissible for me to refrain from bringing about A. 3. If Fred holds a claim-right that I ensure that A not occur, then it is permissible for me to refrain from bringing about A, and it is impermissible for me to bring about A. 4. The two statements above entail that if Joe holds a claim-right that I ensure that A occur and Fred holds a claim-right that I ensure that A not occur, then it is both permissible and impermissible for me to bring about A, and it is both permissible and impermissible for me to refrain from bringing about A. 5. It is not logically possible for it to be both permissible and impermissible for me to bring about A, nor for it to be both permissible and impermissible for me to refrain from bringing about A. 6. Therefore it is not logically possible for Joe and Fred to hold the non-compossible rights ascribed to them above. There are two plausible ways to undermine this argument. First, one can question the contention in step 2 (and the parallel contention in step 3) that when Joe holds a claim-right that I ensure that A occur, it must therefore be permissible for me to bring about A; rather, perhaps this claim-right implies merely that it is impermissible for me to refrain from ensuring that A occur, without also implying that it must be permissible for me to ensure that A occur. If this is correct, then the non-compossible claim-rights above will entail only that it is both impermissible for me to bring about A and impermissible for me not to do so; this is not logically contradictory (see Peter Vallentyne, "Two Types of Moral Dilemmas", Erkenntnis 30/3 (1989), pp, 301-318). Secondly, the contradiction can alternatively be avoided by maintaining that the claim-rights in question generate merely prima facie permissibility and impermissibility (the prima facie permissibility of my doing A does not entail that my doing A cannot also be prima facie impermissible) (see David O. Brink, "Moral Conflict and Its Structure", Philosophical Review 103/2 (1994), pp. 215-247).
81. It is sometimes argued that it is not genuinely logically possible for a set of non-compossible rights to exist (see Steiner, "Working Rights", pp. 272-273). The argument looks like this: 1. If a set of rights is non-compossible, then it might include both (i) a claim-right, held by Joe, that I ensure that A occur, and (ii) a claim-right, held by Fred, that I ensure that A not occur. 2. If Joe holds a claim-right that I ensure that A occur, then it is permissible for me to bring about A, and it is impermissible for me to refrain from bringing about A. 3. If Fred holds a claim-right that I ensure that A not occur, then it is permissible for me to refrain from bringing about A, and it is impermissible for me to bring about A. 4. The two statements above entail that if Joe holds a claim-right that I ensure that A occur and Fred holds a claim-right that I ensure that A not occur, then it is both permissible and impermissible for me to bring about A, and it is both permissible and impermissible for me to refrain from bringing about A. 5. It is not logically possible for it to be both permissible and impermissible for me to bring about A, nor for it to be both permissible and impermissible for me to refrain from bringing about A. 6. Therefore it is not logically possible for Joe and Fred to hold the non-compossible rights ascribed to them above. There are two plausible ways to undermine this argument. First, one can question the contention in step 2 (and the parallel contention in step 3) that when Joe holds a claim-right that I ensure that A occur, it must therefore be permissible for me to bring about A; rather, perhaps this claim-right implies merely that it is impermissible for me to refrain from ensuring that A occur, without also implying that it must be permissible for me to ensure that A occur. If this is correct, then the non-compossible claim-rights above will entail only that it is both impermissible for me to bring about A and impermissible for me not to do so; this is not logically contradictory (see Peter Vallentyne, "Two Types of Moral Dilemmas", Erkenntnis 30/3 (1989), pp, 301-318). Secondly, the contradiction can alternatively be avoided by maintaining that the claim-rights in question generate merely prima facie permissibility and impermissibility (the prima facie permissibility of my doing A does not entail that my doing A cannot also be prima facie impermissible) (see David O. Brink, "Moral Conflict and Its Structure", Philosophical Review 103/2 (1994), pp. 215-247).
82. It is sometimes argued that it is not genuinely logically possible for a set of non-compossible rights to exist (see Steiner, "Working Rights", pp. 272-273). The argument looks like this: 1. If a set of rights is non-compossible, then it might include both (i) a claim-right, held by Joe, that I ensure that A occur, and (ii) a claim-right, held by Fred, that I ensure that A not occur. 2. If Joe holds a claim-right that I ensure that A occur, then it is permissible for me to bring about A, and it is impermissible for me to refrain from bringing about A. 3. If Fred holds a claim-right that I ensure that A not occur, then it is permissible for me to refrain from bringing about A, and it is impermissible for me to bring about A. 4. The two statements above entail that if Joe holds a claim-right that I ensure that A occur and Fred holds a claim-right that I ensure that A not occur, then it is both permissible and impermissible for me to bring about A, and it is both permissible and impermissible for me to refrain from bringing about A. 5. It is not logically possible for it to be both permissible and impermissible for me to bring about A, nor for it to be both permissible and impermissible for me to refrain from bringing about A. 6. Therefore it is not logically possible for Joe and Fred to hold the non-compossible rights ascribed to them above. There are two plausible ways to undermine this argument. First, one can question the contention in step 2 (and the parallel contention in step 3) that when Joe holds a claim-right that I ensure that A occur, it must therefore be permissible for me to bring about A; rather, perhaps this claim-right implies merely that it is impermissible for me to refrain from ensuring that A occur, without also implying that it must be permissible for me to ensure that A occur. If this is correct, then the non-compossible claim-rights above will entail only that it is both impermissible for me to bring about A and impermissible for me not to do so; this is not logically contradictory (see Peter Vallentyne, "Two Types of Moral Dilemmas", Erkenntnis 30/3 (1989), pp, 301-318). Secondly, the contradiction can alternatively be avoided by maintaining that the claim-rights in question generate merely prima facie permissibility and impermissibility (the prima facie permissibility of my doing A does not entail that my doing A cannot also be prima facie impermissible) (see David O. Brink, "Moral Conflict and Its Structure", Philosophical Review 103/2 (1994), pp. 215-247).
83. My thinking on rights has profited from discussions with a great many people: at the Stirling Political Philosophy Group, the Edinburgh Philosophy Seminar, the European Consortium for Political Research, the Cambridge Forum for Legal and Political Philosophy and the Cambridge Moral Sciences Club. I am grateful to all who contributed to these seminars, and to an anonymous reviewer for Law and Philosophy. Especial thanks are owed to Jimmy Altham and Matthew Kramer - though this is not to imply that they would endorse the position I propose.