Moral Rights and Their Grounds 9781138102590, 9781315103594

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Moral Rights and Their Grounds

David Alm’s value theory provides a fascinating and important competitor to will and benefit theories. It attempts to solve the central problems that plague these competitor theories and does so in a way that that connects rights to autonomy, reasons, and morality in general. Rights theorists will greatly enjoy discussing Alm’s innovative approach. —Stephen Kershnar, SUNY-Fredonia, USA

Moral Rights and Their Grounds offers a novel theory of rights based on two distinct views. The first—the value view of rights—argues that for a person to have a right is to be valuable in a certain way, or to have a value property. This special type of value is in turn identified by the reasons that others have for treating the right holder in certain ways, and that correlate with the value in question. David Alm then argues that the familiar agency view of rights should be replaced with a different version according to which persons’ rights, and thus at least in part their value, are based on their actions rather than their mere agency. This view, which Alm calls exercise-based rights, retains some of the most valuable features of the agency view while also defending it against common objections concerning right loss. This book presents a unique conception of exercisebased rights that will be of keen interest to ethicists, legal philosophers, and political philosophers interested in rights theory. David Alm is an associate professor of practical philosophy at the University of Lund, Sweden. He works mostly in moral and social philosophy, and has published extensively in these fields.

Routledge Studies in Ethics and Moral Theory

Ethics and Self-Cultivation Historical and Contemporary Perspectives Edited by Matthew Dennis and Sander Werkhoven Moral Reality and the Empirical Sciences Thomas Pölzler Moral Evil in Practical Ethics Edited by Shlomit Harrosh and Roger Crisp Kant and Parfit The Groundwork of Morals Husain Sarkar Philosophical Perspectives on Empathy Theoretical Approaches and Emerging Challenges Edited by Derek Matravers and Anik Waldow Putting Others First The Christian Ideal of Others-Centeredness T. Ryan Byerly Methodology and Moral Philosophy Edited by Jussi Suikkanen and Antti Kauppinen Self-Transcendence and Virtue Perspectives from Philosophy, Psychology, and Technology Edited by Jennifer A. Frey and Candace Vogler Moral Rights and Their Grounds David Alm For more information about this series, please visit: www.routledge.com/ Routledge-Studies-in-Ethics-and-Moral-Theory/book-series/SE0423

Moral Rights and Their Grounds

David Alm

First published 2019 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Taylor & Francis The right of David Alm to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-138-10259-0 (hbk) ISBN: 978-1-315-10359-4 (ebk) Typeset in Sabon by Apex CoVantage, LLC

Contents

Preface

vii

PART I

The Value View

1

1 The Value View—the Basics

3

2 The Components of a Claim

19

3 In Defense of the Value View

53

PART II

The Agency View

75

4 The Agency View—the Basics

77

5 The Components of Owing: Exclusionary Reasons and Relationality

89

6 How Agency Generates Rights

98

7 The Strength of Claims (and Rights)

114

8 The Moral Significance of Rights

136

9 Losing Rights

157

vi

Contents

PART III

Exercise-Based Rights

171

10 Exercise-Based Rights—the Very Idea

173

11 Exercise-Based Rights—Why Accept Them?

193

Bibliography Index

243 250

Preface

This is a book about moral rights. It takes its departure from a feature of most contemporary accounts of rights, and indeed deontological moral views more generally, that has long seemed to me rather puzzling. It is nicely illustrated in this eloquent passage from Gregory Vlastos’ wellknown 1962 paper “Justice and Equality”: To be sincere, reliable, fair, kind, tolerant, unintrusive, modest in my relations with my fellows is not due them because they have made brilliant or even passing moral grades, but simply because they happen to be fellow members of the moral community. It is not necessary to add ‘members in good standing’. The moral community is not a club from which members may be dropped for delinquency. Our morality does not provide for moral outcasts or half-castes. It does provide for punishment. (p. 55) The puzzle is simply that of how to fit the last sentence together with the rest. (In fairness to Vlastos, he does attempt an answer to that question, though I will not consider it.) Given that we are sometimes allowed to harm people as punishment for having violated others’ rights—and also in order to prevent such violations—in what sense do these violators then remain “members in good standing”? If we are even allowed to kill them, as we surely are at least in some cases of self-protection, and perhaps as punishment, why would that not count as “dropping them for delinquency”? If we have moral rights at all, surely we can lose them. But if we have them simply because we are persons (“fellow members of the moral community”) how could we lose them? The aim of the book is to explore, and to some extent defend, an account of moral rights that retreats from Vlastos’ firm stand, abandoning the idea that such rights belong to us simply as members of the moral community—though I have doubts about how far we need retreat. Hence my aim is not to defend the existence of moral rights in the first place,

viii

Preface

but rather to explore how they should best be understood—though I will have a good deal to say about why such rights exist, if they do indeed exist. I will proceed through three stages, each corresponding to one of the book’s parts. In the first stage, I will describe and defend a certain view of moral rights generally, one that is neutral on the question of why persons, or other beings, have rights (and on whether they can lose their rights). I call this the value view of rights. According to it, for a person to have a right—or, rather, for him to have a general, basic right, such as the right to life—is for him to be valuable in a certain way, or to have a value property. This special type of value is in turn identified by the reasons that others have for treating the right holder in certain ways, and that correlate with the value in question. Now, while the value view is theoretically fruitful in allowing us to answer some important questions about rights, it does not answer all such questions. To go farther we must specify what it is about persons that gives them the value constituted by their rights. To this end, in the second part of the book I explore the agency view, according to which persons have rights because of their agency. I take this to be the traditional (deontological) view of moral rights, manifested in the Vlastos passage quoted previously—though I diverge from tradition by treating it precisely as a version of the value view. The agency view allows us to explain the relationality of rights and why they are associated with so-called “exclusionary” reasons (meaning reasons not to act for certain reasons). It can also account for the various aspects of the peculiar moral significance of rights, such as their being “trumps” and their resistance to aggregation. But, and as indicated, I also put forth a serious objection to the agency view: that it cannot account for the apparent fact that agents can lose rights, because of their own wrongdoing, without ceasing to be agents. I stress that my ambition here is in one way limited, for I make no effort to argue that right loss is a genuine phenomenon. Instead, I grant that it is, and in responding to skeptics I limit myself to arguing against attempts to reconcile right loss with the agency view. In the third part I respond to the right loss objection to the agency view by exploring a different version of the value view according to which persons’ rights, and thus at least in part their value, are based on their actions, rather than their mere agency. In particular, the relevant actions are the agent’s violations and respectings of others’ rights. This view I call exercise-based rights. I outline it and defend it against several objections. I also argue that it allows us to retain some of the most valuable features of the agency view, such as its accounts of relationality and the moral significance of rights. However, I also concede that at the end of the day the difference between exercise-based rights and certain versions of the agency view is mainly theoretical. What is more, I allow that we may have to accept that certain rights cannot be lost and therefore that some sort

Preface

ix

of compromise with the agency view is in any case needed. At the end I suggest just such a compromise and argue that it is not ad hoc. As the book’s rather inconclusive ending indicates, its aim is in significant part exploratory. I do believe that the best account of rights we are likely to come across is somewhere in the territory surveyed in this book, but I make no pretense here of having found it. At any rate, though, I hope that the search will be worth the reader’s while. My main debt in writing this book is to the Swedish Research Council, whose generous grant (#2011-17864-84650-25) made the work possible. Over the years I have presented preliminary material from the manuscript to various audiences and am grateful to the participants for their comments and suggestions. I particularly wish to thank my colleague Wlodek Rabinowicz, whose penetrating question led me to rethink my view of right loss (in Chapter 11). Thanks are also due to Alec Walen for an inspiring meeting in 2015, which made me reframe the agency view (in Part II of the present book), and to Stephen Kershnar for his generous assessment of my book proposal for Routledge.

Part I

The Value View

In this first part I aim to outline and defend a certain thesis about the nature of moral rights, called the value view, upon which I will rely in subsequent parts. The value view is not intended as a complete theory of moral rights, let alone rights generally. In particular, I will say little in this part about which moral rights persons have. The focus will rather be on the more fundamental question of what such a right is. I will turn to the “which?” question in Part II, where I defend an instance of the value view. This part of the book is an attempt to answer the “what?” question, and while it is certainly impossible to offer a complete answer at the outset, it is both possible and useful to give a partial one, which will guide us in the pages to follow. The central notion we need in order to understand rights is that of a special kind of moral relation that can hold between two entities, at least one of whom is an agent. This relation can be expressed in terms of the agent’s being obligated to the other entity to act in a certain way, or that entity’s having a claim against the agent that he act that way. This notion of being obligated consists of two overlapping, but distinct, ideas. The first is that of the agent’s “owing” something to the party with the claim. We sometimes also express this idea by saying that the other party is “wronged” or “has a complaint” if the agent does not deliver. In Kant’s terms, it is a duty or obligation holding to a person rather than simply a requirement regarding a person.1 The second component idea is that of being required to act, or to be under a requirement. As Mill put the point, an obligation “may be exacted from a person, as one exacts a debt.”2 For now, our understanding of these two ideas will have to remain intuitive. I will return to them in Chapter 2.

Notes 1. Kant (1797, p. 442) 2. Mill (1861, chapter V, §14; original emphasis). (Mill actually uses the word ‘duty.’ See 1.4.)

1

The Value View—the Basics

This chapter presents the basics of the value view, including some of its metaethical background. In the following chapter I will draw on these basic features in accounting for the obligation relation. The chapter comprises four sections. The first is devoted to some preliminaries needed to state the value view, which is then given an initial formulation in the following section, in the first instance as a thesis about claims. In section 3 I attempt to clarify that thesis by explicating the notion of value used in stating it. In section 4 I account for the familiar idea that claims and obligations are correlated, and then address the related question of whether one of these two notions is primary to the other.

1.

Preliminaries

The noun ‘right’ is importantly ambiguous. It could refer either to a relation between the right holder and some particular agent or to what we could perhaps, risking confusion, call the right holder’s potential to enter into such relations, which is not itself a relation.1 I will distinguish between these two by using the terms particular and general right, respectively. Now, while a person’s right can intelligibly be said to be general or particular with respect to a number of dimensions, I have here in mind only one of these, namely that of obligation bearers. To illustrate, we might say that a person P has a “right to life.” For simplicity, let us here understand that right simply as a right not to be killed. Normally when we say that P has such a right we mean precisely that he has a general right, implying that everyone (other than P himself) is obligated to refrain from killing P. Evidently, then, P’s right to life corresponds with an indefinite number of obligations, (at least) one for each other person (capable of killing him). At the same time, though, each of these obligations corresponds uniquely with a certain right, a relation holding between P and one other individual in particular. To account for all of these facts we have to distinguish between one general right that P holds against the world at large and an indefinite number of particular rights that hold against particular others.

4

The Value View

To clarify, the general right does not presuppose that the right holder actually stand in any particular obligation relation to any person. As I said previously, the term ‘general right’ refers to the holder’s potential to enter into such relations. Logically we could state a general right in the form of a universally quantified subjunctive proposition. Such a proposition could be true even if there is actually no one in the domain over which it quantifies. Presumably it would say something like the following: “A has a general right to some treatment T just in case, for all persons p (other than A), if p exists p would have an obligation to A to accord him T.”2 This is what it means to say, as I did previously, that a general right “holds against the world at large.”3 As a consequence, while a general right does not presuppose any actual particular right it does at least presuppose a possible particular right. The term ‘right’ is ambiguous also in another way, for it could refer to several different relations (or relation potentials). The standard taxonomy of these relations—or rather of their legal counterparts—is due to W. N. Hohfeld (1964). It will be helpful briefly to review it here. Hohfeld distinguished four different “legal relations” that have all been called “rights” by lawyers: claims, liberties, powers and immunities.4 Claims and liberties can helpfully be characterized as “first order,” powers and immunities as “second order.”5 These various relations are characterized by the other relations to which they correspond. As noted in the introduction to this part, a claim corresponds to an obligation. A liberty, by contrast, corresponds to a lack of obligation on the part of another person. As an example of a legal liberty, consider the permission to walk across a certain square. Barring special circumstances, a person lacks an obligation against any other party not to cross the square. But the liberty in question remains distinct from a claim. Others are not required to get out of the way. In contrast to first-order relations, second-order ones are defined in terms of other relations (not only first-order ones—so in that way the terminology is a bit misleading). A power holds in virtue of a legal rule enabling one party to alter other legal relations in some fashion, not necessarily ones involving oneself. For instance, by signing a contract, one party acquires an obligation to another party (who in turn thereby acquires a correlative claim). Further, an immunity holds in virtue of a legal rule that disables the other party from altering the holder’s other legal relations in some specified way. For instance, a citizen’s right to vote includes an immunity, so that neither the state nor anyone else can simply remove it, unless special circumstances obtain. As I noted, Hohfeld’s analysis concerns legal relations. When I say that they are “legal” I mean simply that they hold as a matter of legal fact, whatever exactly that means. However, there are also moral relations with the same structure as the legal ones Hohfeld analyzed. That is, there are moral claims, liberties, powers and immunities. I will use the term ‘Hohfeldian relations’ as a collective name for them. To assert their

The Value View—the Basics

5

existence, then, is to say that they hold as a matter of moral fact. (That characterization is obviously not particularly informative. I will say a little more in section 3 about how I conceive of moral facts.) In this book I will use the terms ‘claim,’ ‘liberty,’ ‘power,’ ‘immunity’ and ‘right,’ unless otherwise noted, to refer to moral phenomena only. It matters little to me whether what I say in using these terms goes also for those non-moral phenomena to which we may apply them. The general/particular distinction applies to all Hohfeldian relations. In their general forms they are not relations, but again potentials to enter into such relations. For instance, I could have a general power to affect other people’s claims even if there is no one around whose claims I can affect by exercising my particular power to affect just that person’s claims. I should also note that some terms for Hohfeldian relations lend themselves more readily than others to these different interpretations. In particular, the term ‘claim’ is naturally understood in the particular sense, referring to a relation between claim holder and obligation bearer. On the other hand, ‘right’ tends more often to be used in the general sense. In this book, though, they will both be used in either sense as the context dictates. But then what about particular moral rights? What kind of relation is that? I believe that attempts to formulate necessary and sufficient conditions that capture our “intuitive” concept of such a right are unlikely to succeed. Hence any definition we offer will be to some extent stipulative. In that spirit, I say that a moral right is a complex relation consisting of several Hohfeldian components, and that one of these relations is central.6 By its being “central” I will here mean only that this relation specifies what we would typically describe as the content of the right, what it is a right “to” or “against.” Note that it does not follow that a non-central element is not essential. Further, I will assume that the central element will always be either a claim or a power. At any rate, if there are other types of moral right besides these two, I will not discuss them. Let me illustrate the two categories. We might say simply that I have a right against you that you not hit me over the head with a shovel. On the most straightforward interpretation of that right, its central element is my claim against you that you not do so. On a different interpretation, the central element of my right is rather a power to decide whether you may hit me over the head with a shovel. If so, the right’s content is properly described in that way, even though we may still, for simplicity, refer to it as my right against you that you not hit me over the head with a shovel. In either case, though, my right will no doubt also contain other elements: at the very least an immunity against you, or anyone else, revoking that claim. Note also that on the first interpretation, the power figuring in the second interpretation is absent. If present at all, it must also be the central element. I have introduced the notion of a “central element” in accounting for particular rights, but it is important to see that it applies equally to general

6

The Value View

rights. Thus the central element of a general right could be a general claim, just as the central element of a particular right could be a particular claim.

2.

The Value View of Rights, and Claims

My main goal in Part I is to develop and defend an account, admittedly incomplete, of general rights. As we will see, that account will also aid our understanding of the notion of a particular right. In this section I offer an initial, rough statement, to be improved on as we go along. To this end we need two more components. The first is a further distinction between basic and derived rights. It applies to both particular and general rights—and an analogous distinction applies to claims. Here I follow Joseph Raz (1986, p. 168): first, a right is derived if it is justified only by appeal to some other right, in conjunction with some other fact; second, a basic right is defined as not derived. To illustrate, suppose we could show somehow that you have a general right to whatever you need to preserve your health, and that you need a certain surgical operation to preserve your health (this is the “other fact”). Then you have a derived general right to the surgery. Analogous distinctions apply to claims and other Hohfeldian relations. The second component is that of a power-generated right. It refers to any right (or, more broadly, Hohfeldian relation) that comes about through the exercise of a power and would not have existed otherwise, whether it belongs to the power holder or someone else. Standard examples are promise rights and rights to compensation. A power-generated right is not derived, according to the earlier definition, for it is not derived from another right. On the other hand, it is artificial to call such a right “basic.” While it can cause inconvenience in some cases, my policy will be to use the word ‘basic’ to cover rights that are neither derived nor power-generated. It is now possible to state: The value view of rights. To have a basic general right is to be valuable in a special way. Equivalently, such a right is a special kind of value belonging to the right holder. I apologize for the rather strained phrase ‘value belonging to.’ As will hopefully become clear later, the value view says that a right is a value; and since rights unproblematically “belong to” their holders, then so must values. The value view does not aspire to be a complete account of rights. We should think of it rather as a starting point for such an account. In particular it is incomplete because it does not tell us why right holders have the relevant value. In the next chapter we will look at a natural way of developing the value view by answering that question: according

The Value View—the Basics

7

to the agency view, the relevant value belongs to persons in virtue of their agency. First, though, we need to get a clearer understanding of the value view in the simple form I have just presented it—which is of course also necessary for assessing its plausibility. I will therefore devote the remainder of this chapter and the next to considering a few of its most noteworthy implications. One point of clarification is probably needed before we begin, though. I have just described the value view as an “account” of rights. What does that mean? Some writers take themselves to analyze the “concept” of a right, supposed to cover rights of all sorts, conventional and moral.7 However, my focus is on moral rights alone. It is natural to ask, then, whether the value view amounts to an analysis, if only partial, of the “concept” of a moral right. Or is it rather an account of one of many possible “conceptions” corresponding to that one concept?8 In answer, I take the value view to be an account of a conception of moral rights, and decidedly not a piece of conceptual analysis. I have already expressed skepticism about the prospects of such an analysis of the notion of a right.9 For the value view to be correct as such an analysis, it would presumably have to capture how most speakers, or at least “expert” speakers, use the word ‘right’ in moral contexts. I make no such claims on its behalf, however. Also, if the value view were taken as a piece of conceptual analysis, if only a partial one, it would imply that those who accept it and those who reject it would be talking about different things. That is also an unwelcome implication. By contrast, interpreting the value view as an account of a certain conception of rights does not carry these implications. Therefore I opt for that interpretation. I take the expression ‘moral right’ to refer to an important moral phenomenon in need of characterization. The value view is intended to offer a part of that characterization. Others may use the expression differently, but my concern is with the phenomenon rather than the word. This focus has methodological implications. Much of the literature on rights generally, as opposed to moral rights specifically, and in particular work of an analytical, rather than normative, character, tends to appeal frequently to intuitions about when terms such as ‘right,’ ‘claim’ and ‘obligation are properly applicable, in a wide variety of contexts. Such an approach makes sense in a conceptual inquiry, but less so in one devoted to substantive moral-normative issues. It may fairly be asked, though, how we are then to tell whether a proposed “characterization” of the purported “moral phenomenon” is correct. What would invalidate it? If we are to follow the usual practice of appealing to moral intuitions, what specifically are they intuitions about? Unfortunately there is no really good answer to that question—a fact that, I believe, goes a long way towards explaining the rather striking extent of apparent disagreement among rights theorists. I say ‘apparent’ advisedly, for if theoretical antagonists cannot agree in the first place on what would count as refuting, or

8

The Value View

at least as telling against, a given proposal in the contested area, it is unclear whether they are indeed talking about the same thing. This type of skeptical worry arises frequently within rights theory, as evidenced in the long-standing debates over the nature of the “relationality” of rights (see 2.3C), or about whether animals, small children or collectives can possess moral rights (see 4.4). In light of the philosophical fog surrounding the term ‘right,’ I suspect that the best we can do is to rely on intuitions about when someone is wronged, and that is also what I will mostly be doing. I admit, though, that this procedure is not without difficulties of its own. Apart from worries about whether philosophers, and others, use even that less theoretically loaded term univocally, there is also the problem that it is far from obvious that all actions that wrong someone also infringe a right. (I will return to this matter in 10.4.) Another point worth making about the value view is that it does not, as such, entail that claims and obligations exist. I have of course asserted that they do, but (and to repeat) my primary aim is not to argue for that thesis. Rather, the value view is about what claims and obligations (and eventually rights) are like, provided that they exist, and a view of that kind is consequently what I will be arguing for. To some extent, of course, such an argument will also amount to a defense of the very existence of rights. I said just now that I aim to explore the value view’s implications. The first, and perhaps most important, one concerns the central element of a right. I hold that the value view of rights implies that the central element of a right is also a value belonging to the right holder. Further, given that the central element is either a claim or a power, as I assumed just now, the value view of rights implies the following: if a claim is not subject to a power, then that claim is a value; and if the claim is subject to a power, then that power is a value. It should become clear as we go along how this follows. I will begin my presentation of the value view by assuming the simpler of these two cases, in which the central element of a right is a claim not subject to a power (and, as noted earlier, in which no power is present). (I will return to the more complex case—which I believe is the prevalent one—in section 2.3B.) I state the resulting version of the value view as follows, and as a first approximation: The value view of claims (as central elements). A basic general claim is a special kind of value belonging to the claim holder and any obligation corresponding to that basic general claim is a special kind of reason for the obligation bearer to act. I stress that just as the value view of rights can only be true of a basic and general right, so the value view of claims can only be true of a basic and general claim. I will explain why in the following section.

The Value View—the Basics

3.

9

Reasons, Claims and Value

According to the value view of claims, “a claim is a value.” The purpose of this section is to elucidate that proposition. In the first place, I note that the term ‘a value,’ as I use it, refers to a value property. Hence the value view of claims says that a general claim is a value property, meaning that it is identical with such a property. As I also noted in stating the value view, to say that someone has a claim is to say that he has a certain kind of value—or that he is valuable in a certain way. In other words, he has a certain value property. Note that as I make an identity statement when I say that a claim “is” a value, I rule out both that the claim holder is valuable because he has a claim and that he has a claim because he is valuable. After all, a fact cannot explain itself. Instead we should say that claim and value both hold because of certain non-moral properties. It would be a pointless detour to insist on a further explanatory relation between claim and value, in either direction. (I will return to the “because” relation in section 4.) I will occasionally talk of a person’s (basic general) claims as constitutive of value, rather than as identical with it. This formulation should not be taken as incompatible with the value view, though. Rather, these claims are identical with value properties, as the value view says, and these properties in turn make up the person’s value—at least in part. That is, I do not deny that a person can have value, even ultimate value (see the following discussion), that has nothing to do with his claims. To throw some light on the notion of a value property, I note that such a property (a) belongs to an object in virtue of (or “supervenes on”) some or all of that object’s non-evaluative properties and (b) corresponds to certain reasons, belonging to relevant agents (if there are any), to act vis à vis the object in certain ways or to take certain attitudes towards it.10 I take reasons in turn to be identified by their valence (pro or con) and their object (some action or attitude), and perhaps also their strength. To tell what a value property is we need to determine which of these links, with the supervenience basis or with the reason, or perhaps both, determines the identity of the value property. Now, it is not clear to me how value properties generally are individuated. Perhaps there are cases in which we would prefer to say that an entity has one value property that corresponds to distinct reasons, rather than one value-making property that corresponds to distinct value properties. It may be, for example, that certain properties of an artwork make it valuable, and that this single value property in turn corresponds to independent reasons to admire the object and to preserve it. I am uncertain about what to say of such a case. Perhaps in the final analysis the two reasons are not both independent. Or perhaps there are really two distinct value properties present as well, because the artwork is “valuable in different ways.” Perhaps it does not matter a whole lot what we say.

10

The Value View

Now, as general claims are value properties of claim holders, they must also be identified by reference either to their supervenience basis or the reasons to which they correspond. (In the special case of claims and other Hohfeldian relations, and rights, I will generally use the term ‘ground’ instead of ‘supervenience basis.’) It is clear enough that claims are identified by reference to the reasons to which they correspond—in other words, obligations. That is to say, two claims corresponding to distinct obligations are themselves distinct. This is a version of the so-called “correlativity thesis” about claims (about which more in section 4). I noted in the last section that the value view can only be true of basic general claims. It should now be clear why that is. In the first place, the value view can only be true of a general claim, for every particular claim presupposes an obligation and hence an obligation bearer. But a person’s value does not presuppose the existence of any such other person. Indeed, the picture the value view draws of general claims parallels what we would say of any valuable object. Consider again a work of art. Its value, we may assume, corresponds to reasons (some) persons have to act and feel towards it in certain ways. By the same token, the value view tells us, a person’s general claims correspond to reasons (obligations), belonging to other persons, to act towards that person in certain ways. Note that the artwork’s value is also general in the sense that it could not be identified with, or exhausted by, any particular individual’s reasons to react to it in certain ways. Nor does it obviously presuppose the existence of any person having reasons with respect to it. The value of an artwork could be understood in terms of the same kind of universal subjunctive conditional we employed in section 1 to describe the idea of a general right. But there is also a second reason for denying that a particular claim is a value. After all, if a general claim is a value, then a particular claim, if such a thing were to exist, would have to be a “particular value.” But in the special sense in which a value is general, just described, the notion of a particular value makes no sense. There is no distinct value fact corresponding to the fact that a particular person has a certain reason, and to that fact alone. Hence, as the value view also tells us that an obligation is a reason, it follows that the value/reason divide runs between general and particular claims, and not between particular claims and obligations. Now, it might appear that on the value view it seems at best otiose to speak of “particular claims” at all. And I concede that talk of “particular claims” can be a bit misleading. Yet I do not think it is redundant, that we can do just as well using only the notions of a general claim and an obligation. I will explain why in the next section. To clarify: when I deny that there are particular claims, and hence particular values, I certainly do not deny that there are particular value facts, in the standard sense of that expression. On the value view, the fact that a particular person has a general claim is a particular value fact. It is particular because it is about a particular value bearer. But it is also

The Value View—the Basics

11

general in the sense that this value corresponds to reasons at least potentially belonging to many persons. The reader will recall that I have stated the value view not only in terms of general claims, but in terms of basic general claims. This is because that view can only be true of a basic claim. That, in turn, means that neither a derived claim nor a power-generated claim can be a value. Let us now verify these consequences, beginning with the first. Once we have specified the properties in virtue of which a person’s basic, general claims obtain, we have made a complete specification of his value-grounding properties (insofar as that value has anything to do with his rights). Recall our example of a basic right to necessary health care combined with a need for a certain type of surgery. In this case, it would be odd to conclude that your derived right to the surgery tells us anything we did not already know about your value. After all, that value does not depend on whether you need the surgery. This need only affects others’ reasons, not your value. Generalizing, derived claims do not constitute some sort of value additional to that constituted by basic claims. Further, it seems that one and the same value corresponds to different reasons, depending on circumstances. This fact is not peculiar to the claim/obligation relation, but holds also of other value bearers. For instance, an artwork could be valuable and we could therefore have reason to preserve it; but what best preserves it depends on circumstances. Yet it would be odd to say that the thing has one value in one set of circumstances, when we have reason to use one means of preservation, and another value in another set, when we have reason to use another means. How, then, should we understand the value view in light of what I have just said? Perhaps the best strategy is to say that that view applies primarily to basic (general) claims, and that insofar as a derived claim is a value, that value is simply the general claim from which it is derived. As far as power-generated rights are concerned, it should equally be clear that the mere exercise of a power could not affect a person’s value, either the power holder’s or anyone else’s. Hence a power-generated right could not be a value either. I will return to this point in 2.2. I also need to say something more broadly about the notion of value figuring in the value view. In the first place, that notion is objective, in the sense that the value of an object belongs to it independently of social practices and conventions, and indeed of beliefs or attitudes generally. As the reader will recall, I said in section 1 that I will be talking throughout about moral claims (and other Hohfeldian relations), and that such claims are characterized by holding “as a matter of moral fact”—as opposed to legal claims, that hold as a matter of legal fact. In calling these claims “moral” my main point is precisely to stress the contrast with legal and other conventional claims. In other words, moral facts are objective. I hold this because I believe that moral rights become interesting, practically as well as philosophically, only if they are clearly distinct from legal

12

The Value View

and other conventional rights. As indicated, though, I would go farther and insist that rights would be less interesting philosophically if they were dependent on attitudes in any way. However, this suggestion raises large metaethical questions that I cannot deal with here, so my objectivism about rights will have to remain pretty dogmatic. I note only that I have in effect decided that this notion of objective value is part of the value view itself. This decision is largely one of convenience. I do not deny that in some contexts a weaker, axiologically neutral formulation might be preferable. As a consequence of this, the value view is opposed to conventionalism about rights. Following Jones (2013) we can define that position in its proper form as follows: all rights are conventional rights, meaning that they exist only in virtue of social conventions of some sort, and moral rights are characterized simply by being morally justified conventional rights, where the justification must not itself appeal to independently existing moral rights.11 Conventionalism is akin to a broader view, going back at least to Hobbes, according to which all rights (including moral ones) exist in virtue of commands. Relatedly, some philosophers hold that the concept of rights generally is unified by the fact that rights of all sorts are justified by a “system of rules”—legal rights by legal rules and moral rights by moral rules or principles. Among these philosophers we find some who are decidedly not conventionalists about moral rights (e.g., Feinberg 1973, p. 67). Yet it is unclear what this reference to “rules” is to accomplish. It would seem essential to justification within a system of legal rules that it derive from the special authority that this system of rules is supposed to have—though the source of that authority, if it exists at all, is controversial. But moral principles cannot have “authority” in anything like that sense. They are simply true or false. Or so I assert; a full discussion is impossible here. Hence the kind of “justification” such principles provide seems quite distinct. (I will return to the issue of “socially dependent rights” in 3.2.)12 A second point about the value identified with claims is that it is ultimate, meaning that it is non-derivative. That in turn means, at least, it is a value that is neither instrumental nor contributive (in the sense that its having value is not explained by its being part of a valuable whole).13 As a consequence, the value view implies that no being that lacks ultimate value can have claims, but it does not imply that every being that does have ultimate value also has claims. The value view as such does not tell us what has ultimate value, or indeed that anything does. It tells us what claims are, and not who has them. Still, in this part I will assume that at least persons have claims, and so ultimate value. Later in the book I will explore possible accounts of the grounds of persons’ claims. (I will also consider a possible strengthening of the notion of ultimate value—see 11.2.) A third point about the value figuring in the value view is that it is “special.” As yet I can only say the following to elucidate this notion. The

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13

value view tells us that an obligation is a special reason to act. The relevant value is special precisely because it is correlated with such reasons. Further, these reason themselves are special precisely because they have the characteristic features of obligations noted at the start of section 1. I will have more to say on this matter in the next chapter. Another point about reasons can be made here, though—one that will prove important in the sequel. According to the value view, a claim is a value belonging to the claim holder. This means that to respect a claim is to respect (one aspect of) the claim holder’s value. Further, to respect the value of any valuable object (or at least any object with ultimate value) is to treat that object appropriately. Indeed, by “appropriate” treatment of a valuable object I simply mean treatment of that object such that our reasons to engage in it correspond to the (ultimate) value of that object. Further, what counts as “appropriate” treatment of a given object depends on what it is about that object that makes it valuable. Again, the value view is neutral on this score, but different forms of the value view, identifying different grounds of rights, will also thereby identify different types of appropriate treatment. A final note: the value view would be a good deal less interesting if the notion of a person’s (ultimate) value had no independent force in determining the grounds of rights. That is, it must be possible not only to reject the idea that a person has the kind of value constituted by claims in virtue of some property (having red hair, or whatever) by appealing to the independent premise that that property is irrelevant to rights, but also to reason in the opposite direction: from independent premises about what could make a person valuable to conclusions about what could ground his rights. Examples of such reasoning will appear in the following discussion.

4.

Correlativity and Priority

As I have already noted, Hohfeld said that any claim is correlated with an obligation borne by some other party. In this he is followed by most writers on rights. I will use the familiar label “correlativity thesis” for this idea (see section 2). But what does this correlativity amount to? Hohfeld thought, apparently, that it is a relation of logical equivalence (1964, p. 38).14 I agree. Indeed, I would maintain, “X has a claim against Y to φ in circumstances C” and “Y has an obligation to X to φ in circumstances C” are equivalent in much the way that “A is to the left of B” and “B is to the right of A” are equivalent. We are not dealing with two distinct facts, but rather with one and the same fact described in logically equivalent ways. However, this identity must hold between an obligation and a particular claim. A general claim cannot be identified with any obligation, for every obligation has a unique bearer. In the strict sense, then, the correlativity thesis is only true of particular claims, not of general ones. In a looser sense, however, it could be true also of a general claim. This is

14

The Value View

the sense I have used in saying, for instance, that a person’s right to life “corresponds to” obligations in others. To further explicate the notion of correlativity, I need to say more about obligations. I distinguish between obligations and what I will call duties, as two kinds of reasons to act.15 A person’s duty in a given situation is the action he ought morally to do, all things considered. Relatedly, philosophers often distinguish between infringements and violations of an obligation, like so: an infringement of an obligation is an act contrary to the obligation, whereas a violation is an unjustified infringement. In my jargon, a violation is contrary also to a duty.16 It is controversial whether an obligation must also be a duty, and hence also whether there are justified infringements. The value view is neutral on this issue, and hence allows the existence of some other moral consideration that is more important than the obligation in question, meaning that it overrides that obligation.17 I will say more about this point in 2.2. What matters now, however, is that duties differ from obligations in not being “directed,” or “relational” (cf. section 1). That is, a duty does not essentially hold to or towards some other person, or group of persons, specifically. Hence, correlativity holds between claims and obligations, not between claims and duties (or overall oughts). Moreover, the absence of a duty I will call a permission. Note that just as an obligation does not entail a duty, a permission does not entail a liberty. Again, while liberties are relational, permissions are not. We could say, then, that there is a subclass of reasons to act, relational reasons, that hold “to” another person. We are therefore dealing with two distinct notions, or two kinds of reasons to act, relational and nonrelational. In one way, though, talk of “relational reasons” is misleading. An obligation is, at bottom, a reason to act in a certain way. Its “relational” character is not an intrinsic feature of it. It becomes relational only by being associated with other reasons, as I will argue in 2.3C. Nor are these other reasons themselves intrinsically “relational” in a way inherited by the relational reason to act. Relationality is, if you will, an emergent property of reasons. The notion of a “regular” non-relational reason, then, is conceptually prior to that of a relational reason. Bearing that in mind, however, I will continue to talk about “relational reasons” and say that an obligation “is” just such a reason (as the value view holds). By contrast, there is no such thing as “relational value,” except in the indirect sense that a value property could be defined by its corresponding to relational reasons. The intimate relation between particular claims and obligations also casts light on a much-discussed question about claims, that of whether they are primary to obligations or vice versa. To begin with we may distinguish between three types of priority.18 First, there is “explanatory” priority. It is a relation between two facts, one of which explains or justifies the other. Second, there is what I will, lacking a better name, call

The Value View—the Basics

15

“metaphysical” priority. It holds where one fact or set of facts can be reduced to some other fact or set of facts. Strictly speaking, though, that description is inaccurate, for there is just one fact, or set of facts, present. As it is not clear exactly which the relata of this relation are, I will leave that matter undecided. Third, there is “conceptual” priority. It is a relation between two concepts, one of which cannot be understood independently of the other, while the converse does not hold. Let us now ask ourselves what the value view has to say about these various kinds of priority, as far as claims and obligations are concerned. To begin with, and as many have observed, explanatory priority and correlativity, understood as fact identity, are incompatible.19 After all, and as already noted in section 3, a fact cannot explain itself. Here, though, we must remember the distinction between general and particular claims. It is clear that there can be no explanatory priority between particular claims and obligations.20 By contrast, the value view does not preclude us from maintaining that such a relation holds between a general claim, on the one hand, and a particular claim/obligation pair, on the other—though it is misleading to talk of a “pair” here, as there is, again, really only one fact described in two logically different ways.21 Indeed, the value view does not preclude us from maintaining that the opposite priority relation holds, either. In section 3 I formulated some general theses about value that I will presuppose in this work. In particular, I said that there is a correspondence between the value of an object and certain reasons. However, the value view says nothing about which of these two (value and reasons) has explanatory priority. What is more, the value view is also neutral with respect to metaphysical priority. It allows us to treat both general claims and the obligations to which they correspond as irreducible, or either as reducible to the other. However, even if the value view is neutral with respect to explanatory and metaphysical priority, it is plausibly seen as committed to the conceptual priority of obligations over general claims. That is because the value view defines a general claim as a value that corresponds to reasons of a certain kind, as noted in section 2. What needs saying here is that this conceptual priority in no way entails either of the other two kinds of priority. In the first place, when we assert the conceptual priority of reasons we are saying something about what makes a certain type of value into just that type of value, rather than some other type. This distinguishing mark could, for all the value view says, be that the value gives rise to, or explains, certain reasons—meaning that it, and not the reasons, has explanatory priority. Hence conceptual priority does not entail explanatory priority. Second, in a case such as the one just described neither values nor reasons have metaphysical priority. Hence conceptual priority does not entail metaphysical priority either. But what about the conceptual priority between obligations and particular claims? From what I have said in this section, it is clear that there

16

The Value View

can be no such priority either way, any more than there can be between “to the right of” and “to the left of.” But this observation brings us back to the question I set aside in the preceding section, about why we should talk about particular claims at all on the value view. Is the concept not otiose? The reason why it is not is that the analogy with “left” and “right” is imperfect. Though the concepts of particular claim and obligation are indeed logically equivalent, the corresponding terms have somewhat different roles: ‘obligation’ is used to focus on one end of that relationship and ‘claim’ to focus on the other end. To be sure, if there had been nothing more to that relationship than a reason for the obligation bearer to act in a certain way (vis à vis the claim holder), then there would be no point in talking about a particular claim. Then the relation between obligation bearer and claim holder would have been the same as the one holding between an agent and any valuable object, such as a work of art. But if a claim/obligation relation obtains we are also able to say something about the claim holder which (i) is particular in the relevant sense of concerning his relation with the obligation bearer specifically, (ii) is linked to his own value (i.e., his general claim), and which (iii) does not simply follow from the presence of the obligation bearer’s reason to act. As we will see in more detail later (2.3C) there is no agreement about what exactly we can say about the claim holder that meets these three conditions, but at any rate it is linked to the fact that he (unlike a work of art) is wronged by the obligation bearer’s failure to comply with his reasons to act. At the very least, I would contend, the claim holder would have reason to resent the obligation bearer for that failure.22 On this understanding, the notions of obligation and particular claims are complementary, no relation of conceptual priority holding between them.

Notes 1. Cf. Feinberg’s notion of “claims based on need alone” as “permanent possibilities of rights” (1970, p. 153). 2. Cf. Kamm: “Imagine a one-person world with A in it. It would make sense, I think, to say that A has rights, in the sense that the characteristics he has make it the case that if person B existed, B would have a duty to A not to treat him in certain ways” (2007, p. 242). 3. A related issue concerns persons who do exist but are unable to do whatever it is that the right holder has a right to demand (or perhaps are simply unaware of this option). Suppose, again for simplicity, that Robinson Crusoe’s “right to life” includes a positive claim to be given whatever he needs to stay alive. This is true of him whether or not any other person, and in particular Friday, is present. (Cf. McCloskey (1965, p. 118).) That is, in any case he has a general claim to be saved. But what is his particular moral relation to Friday? There seem to be two ways to go here. On the one hand we could say that when Friday appears on the scene Crusoe acquires a new particular claim—but his general claim existed already. And if Friday were to depart, Crusoe would lose a particular claim but retain his general one. Alternatively,

The Value View—the Basics

4.

5. 6.

7. 8. 9. 10.

11.

12. 13.

14.

15. 16. 17.

17

we could hold that Friday had the obligation all along, but it is conditional on ability. Thus, if Crusoe is drowning, Friday’s obligation would be to save Crusoe if he can. This obligation he could have even if he cannot in fact save Crusoe. I see no need to take any stand on this issue here—but I will return to the topic of conditional obligations in Chapter 9. Hohfeld’s terminology differs from mine in certain ways. (i) He used the term ‘privilege’ instead of ‘liberty.’ Here I follow Sumner (1987, p. 25n15) and Kramer (1998b, p. 8n1). Other commentators prefer retaining Hohfeld’s term (e.g., Thomson 1990, p. 53f; Wenar 2015, sec. 2.1.1.). (ii) He tended to use the term ‘right’ to refer both to what I am calling a “claim,” and to the whole set of relations. However, he himself recognized ‘claim’ as a synonym for ‘right’ in the narrower sense (1964, p. 38). (iii) He used the term ‘duty’ in place of my favored ‘obligation,’ as do many other authors. My own usage follows Hart (1955). I reserve ‘duty’ for a different purpose. See 1.4. The terms are due to Sumner (1987, p. 23). This formulation owes much to C. Wellman (1985, p. 81ff.). He notes that though there is nothing inconsistent with a right that has more than one central element, it is theoretically undesirable (p. 83). I will follow him in assuming that each right has only one central element. For book-length efforts at such analyses, see (among others) C. Wellman (1985, 1995), Sumner (1987) and Rainbolt (2006). For the concept/conception distinction, see Rawls (1971, p. 5). Cf. Griffin (2008, pp. 14–18). Strictly speaking I need not commit myself to (b) as a general proposition. That is, I need not assert that all values without exception correspond to reasons. I only need to say that rights correspond to reasons. In practice, however, I will assume that (b) holds generally. (I will discuss a qualification of [b] in 2.3B.) Among current writers classified by Jones (2013) as conventionalists are Martin (1993, 2013) and Darby (2001, 2004), though they do not themselves use the label. Martin endorses a “social recognition thesis” according to which “all rights presuppose social recognition and depend on socially recognized practices, suitably justified” (2013, p. 4); and Darby endorses “externalism” about rights, according to which “a subject’s status as a right holder is secured not on account of it having a certain nature but on account of it being afforded a certain sort of ‘social standing’” (2004, p. 620). I should add that the notions of “command” and “authority” appearing in this paragraph of the text are central to my understanding of rights, as will become clear in Part II, but not in the way described here. I borrow ‘ultimate value’ from Raz (1986, p. 177f). Possibly he assumes that non-instrumentality and non-contributiveness are jointly sufficient for non-derivativeness. In any case, though, I will make no such assumption. (Sometimes the term ‘constitutive value’ is used for what I call here ‘contributive value.’) The explication of this notion of logical equivalence that follows in the text strikes me as reasonable (cf. Kramer 1998b, p. 26). But perhaps other interpretations are possible (cf. Kamm 2007, p. 241). Also see Thomson (1990, p. 77). Cf. Thomson (1990, pp. 61–4); Sreenivasan (2010, p. 469–70). Cf. Thomson (1990, p. 122). I will not speak of “prima facie” or “pro tanto” claims or obligations. Once we concede that “X has a claim against Y that Y φ” does not entail that Y ought all things considered to φ, there is no need to speak of prima facie

18

18.

19. 20. 21.

22.

The Value View claims. Terms like ‘prima facie’ and ‘pro tanto’ are used as contrasts to “all things considered” and are therefore only in place as modifiers of terms that do imply the latter notion. (That is not to deny that the term ‘obligation’ is sometimes used with just that implication.) In a related context, Kramer (1998b, pp. 38–9) draws a distinction between “justificational” and “analytical” priority, corresponding to my “explanatory” and “conceptual,” respectively. (He also uses the terms “logical” and “existential” for the latter notion.) However, he does not mention what I call “metaphysical” priority, nor does he seem to recognize that the two priority relations he does address connect different relata, as I point out in the text. See., e.g., Montague (1980, p. 375), Waldron (1984b, p. 12). It is not clear if this thesis has been questioned, but see Gewirth (1986, p. 333), Rainbolt (1993, pp. 109–10), and Kramer (1998b, pp. 38–9). Upton (2000) responds to the former two (and I endorse his critique). Consequently I disagree with those philosophers who appeal to priority to deny correlativity. Among them we find McCloskey (1965, p. 118), MacCormick (1977, pp. 200–3), Dworkin (1978, p. 171), Mackie (1978), Raz (1986, p. 171), and Waldron (1988, p. 69–71). Kramer (1998b, pp. 35–49) defends correlativity against this objection, and others. I am inspired here by Hart (1982, p. 182), though I believe he goes too far when he concludes that we must attribute powers to claim holders to make talk of rights, as opposed to obligations, non-redundant. It is enough that we can say something about the claim holder that meets at least conditions (i) and (iii) specified in the text. Unlike condition (ii) these should be acceptable even to those who reject the value view.

2

The Components of a Claim

In this chapter I identify three components of the concept of a particular claim, or obligation, and devote one section to each, explaining what the value view has to say about them. In 2.1 I address the notion of enforceability, which I take to be essential to what I will call a ‘requirement’—a term here used somewhat technically. 2.2 is concerned with the notion of an exclusionary reason. The third component I will interchangeably label ‘relationality’ and ‘directedness,’ to which I turn in section 2.3. I begin by introducing the leading accounts of that notion, the so-called “benefit” and “choice” theories. At that point it becomes necessary to introduce powers into the picture. Therefore, I go on to develop the value view to cover powers as well. I then return to relationality. Building on the value view, I argue that both the benefit and the choice theory are inadequate and point in the direction of a better account, to be developed in the next chapter. Figure 2.1 (p. 20) displays the relations between the central concepts that make up a particular claim, or equivalently an obligation. (When I speak of claims in this chapter I mean particular claims, unless I say otherwise.) The figure explains my remark in the introduction to Part I, namely, that the notions of owing and requirements, which together make up that of a claim/obligation, overlap. To explain: the “bracketing” notion implies each “bracketed” notion, and the bracketed notions together imply the bracketing one.

1.

Enforceability

I have said that an obligation is a relation of ‘being owed’—and hence that it is a relational reason. This term is admittedly not perfect, as we would likely not use it in every context in which talk of rights, or claims, is appropriate. For instance, barring special circumstances it would sound a bit odd to say that I “owe it to you” not to kill you. For the sake of convenience I will abstract from this problem. A more significant point, reflected in the diagram, is that this owing relation is not sufficient for being an obligation. At the outset I noted that an obligation must also be

20

The Value View Claims Owing Relationality

Exclusionary Reasons

Enforceability

Requirements

Figure 2.1 The Components of a Claim

what I called a ‘requirement,’ and I said further that this idea of a requirement involves that of enforceability. I turn now to that notion. Claims are often held to be enforceable.1 Enforceability is clearly itself a relation, and so primarily associated with particular claim/obligations— though it is also possible to describe general claims as “enforceable,” just as we have noted that general claims can be said to correspond to obligations in a loose sense. Philosophers sometimes speak of the “power of enforcement” that is usually (but not necessarily) supposed to belong to the claim holder. Strictly speaking it is not a power at all, in Hohfeld’s sense.2 I understand the enforceability of a claim rather as a subsidiary claim, and liberty, to use force or other means that one is normally obligated to refrain from using, in order to ensure that another complies with an obligation he has towards one (or perhaps to retaliate for noncompliance). That is not to say, of course, that any arbitrary means may be used, but at least that some means that one would otherwise be under an obligation not to use are available. This “right of enforcement” is more than a mere liberty, at least typically, as it involves an obligation on third parties (and the original infringer) not to interfere with the enforcement. I just noted that enforceability involves both a claim and a liberty—at least typically (see the following discussion). As far as the former is concerned, and as my use of the expression ‘subsidiary claim’ indicates, the claim to enforcement is implicit in the original claim enforced—as long as the enforcement in question is aimed at preventing a violation. Once we have established that A is obligated not to harm B in some way, for instance, it follows automatically that A is also obligated not to resist B’s efforts to prevent that harm. Note that third parties are under the same obligation. Actually a person who assists A in resisting B’s efforts to prevent A’s harming B should count as an accomplice, rather than a “third party.” Enforcement could also take the form of after-the-fact retaliation against a wrongdoer. It is however far from clear that the claim to engage in retaliation follows simply from the original claim.3 In any case I will not

The Components of a Claim

21

address that purported claim. To clarify I should also add that the presence of a claim to enforce does not entail that enforcement is permissible (all things considered). It does not rule out the possibility that there are strong reasons for not enforcing a claim in a given case. But it does imply that there is a reason for enforcement.4 A particularly tricky case is that in which enforcement requires infringing the claims of third parties.5 For instance, perhaps I need to appropriate someone’s property without his consent in order to defend myself against an assailant. If I have a claim to enforcement, we therefore face in such a situation an apparent conflict of claims. (And even if I have a mere liberty, there is still a problem.) I will return to such cases in Chapter 8. Turning to the liberty to use otherwise impermissible means, whether as prevention or as retaliation, we find that it raises a crucial and difficult question. Apparently, a liberty to use means against someone, P, that one would otherwise be obligated to P not to use implies that P’s corresponding claims are somehow lost.6 And as to explain the “power” of enforcement is precisely in part to explain that liberty, this explanation in turn presupposes an account of such right loss. The value view as such can, I believe, offer no such account. For that purpose, we need to know more about the nature of the grounding value. The issue of right loss will become central in later chapters. Let me now make a few additional comments about enforceability. First, as a rule, only duties are enforceable. To illustrate the point, consider Feinberg’s familiar case of the hiker who needs to break into a cabin to save himself from a blizzard (1978, p. 102). For instance, even granting that this action is a claim infringement, the cabin owner may not use force to prevent the hiker from entering, or even otherwise make it harder to enter, such as by using stronger locks. Second, there is a possible exception to the rule just suggested, as well as to my earlier statement that enforceability is a claim rather than a mere liberty. Let us consider another standard case from the literature, that of the “tactical bomber.” A pilot is on a mission to bomb a munitions plant, even though there are innocent civilians in the target area. We grant that the pilot’s mission is justified overall. Offhand both the bomber and the civilians may defend themselves against one another (though the bomber’s permission to do so may be contingent on its being essential to his mission). The parties are in a state of “moral parity.”7 In this case, then, the civilians may enforce their own right to life, even though the pilot is under no duty to spare them. Yet it seems that though the civilians are at liberty to defend themselves against the pilot (even killing him if necessary), they have no claim to do so. They cannot demand of you, a neutral party, that you intervene on their side, or even forbid you from intervening on the bomber’s side (though perhaps it is in some sense inappropriate for you to intervene anyway). It is not clear, then, that this case is a genuine exception to the rule stated in the last paragraph, if the latter is understood

22

The Value View

as restricted to enforceability as a claim. But then it seems we must also conclude that enforceability is sometimes a mere liberty. Third, in society the enforcement of claims is usually not left to individual claim holders (with the exception of self-defense). Instead the state’s representatives, and notably the police, do the enforcement, and indeed penalize those who infringe on this privilege (the “monopoly of force”). As far as the value view is concerned, there is nothing odd about this phenomenon. What we should remember is only that it is the liberty to enforce that is being “delegated,” not the claim. A police officer who is thwarted in her efforts to enforce my claim is not thereby necessarily wronged. Rather, I am wronged. So the claim to enforce belongs to me. We have to remember that the enforcement claim is derived from the original claim, and that this claim is a value belonging to the claim holder, not anyone else. Fourth, while I have spoken previously of the enforceability of obligations specifically, I will not assume that enforceability is distinctive of obligations. That is, I allow that non-relational reasons can also be enforceable. (I will return to this matter in 11.3.) If they are, though, we should note that requirements of these two types (relational and nonrelational) are not enforceable in quite the same way, for only relational requirements give rise to claims of enforcement. If you are under a nonrelational requirement to do something, it means that someone is (pro tanto) permitted to use certain measures of force against you to do it and that neither you nor anyone else is (pro tanto) permitted to resist or interfere. No claims are involved. Hence resistance or interference, while impermissible, does not necessarily wrong the enforcer. Fifth, conversely, not all relational reasons are enforceable and so are not requirements. Indeed, in terms of the jargon introduced earlier, we can go further and deny that one person’s owing something implies enforceability. I should concede, however, that the set of such non-enforceable relational reasons does not seem very extensive, and hence that enforceability is of limited usefulness when it comes to distinguishing the set of claims, and hence rights. For it seems that in most cases in which one person threatens to wrong another, the potential victim is permitted to use proportionate measures to deter the wrong. It may well be unclear in a given case what counts as “proportionate,” but what matters for present purposes is that the permission does extend to actions that would have wronged the other, had it not been for the need to prevent the wrongdoing. The clearest exception to the rule are reasons of gratitude. While we sometimes speak of a “debt” of gratitude, it is a rather unusual sort of debt that may not (always), in Mill’s term, be “exacted.” By the same token we are unwilling to speak of a “right” to gratitude. The likely explanation is the special nature of the reason to reciprocate. A person who has been benefited not only has a reason to reciprocate but also to do so out of gratitude, or perhaps out of a sense of duty, and a motive

The Components of a Claim

23

cannot be compelled. To reciprocate for other reasons seems insufficient to “pay the debt.” (By contrast, it may be acceptable to retaliate for past ingratitude.) I note also that though we are unwilling to speak of a “right” to gratitude, we may well say that someone has an “obligation” or a “duty” to reciprocate. As I have used these terms, we could not apply the one without the other. However, I certainly concede that the latter terms can be non-arbitrarily defined in a way that allows for obligations and duties without correlative rights. To be sure, one might wonder what in general explains why some relational reasons are enforceable and some are not. I have no such account to offer, however. It would be convenient if all instances of unenforceable relational reasons are like reasons of gratitude in the way described (i.e., they are reasons to act from a certain motive). That is questionable, though.8 Unfortunately I will have to leave the matter unexplored.

2.

Exclusionary Reasons

I noted in the introduction that to have an obligation to act one must be under a requirement to act that way. In the last section I explicated one component of this notion of “being required,” namely, enforceability. In this section I will address another component, the notion of an exclusionary reason—which I believe is also, unlike enforceability, essential to the notion of “owing” someone. I borrow the notion of an exclusionary reason from Raz. It is “a reason to refrain from acting for some reason” (1990, p. 39). Such a reason, Raz holds, is “second-order,” a notion he in turn defines as “any reason to act for a reason or to refrain from acting for a reason” (1990, p. 39). By contrast, a “first-order reason” is here simply a reason for acting.9 Further, if I have an exclusionary reason, say a reason not to φ for reason R, then I will call R an “excluded reason.” Raz also uses another piece of jargon to describe exclusionary reasons: they are reasons for not being motivated by certain reasons, in the sense of basing one’s action on them. It is crucial to note that the presence of such a reason not to act on a certain first-order reason for φ-ing does nothing to show that one does not in fact have that reason for φ-ing.10 Indeed, the presence of the exclusionary reason does not even rule out the possibility that the excluded reason for φ-ing is stronger than the reasons against φ-ing. To illustrate with a simple example: if it is true that acting selfishly corrupts the soul, one has an exclusionary reason for not acting for selfish reasons, but it in no way precludes there being strong (first-order) reasons for performing various actions that are in fact selfish. The sense that there is something paradoxical about exclusionary reasons, precisely on the grounds that they imply the absence of the first-order reasons they are supposedly about, likely depends on their being confused with what Raz calls reasons for not conforming with certain reasons, in the sense of acting as these reasons dictate (1990, p. 185). Such a reason for not

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The Value View

conforming with a reason is indeed, as he notes, paradoxical in the way just suggested (p. 183). Now, I take the value view to imply, as a matter of stipulation, that an obligation to φ includes an exclusionary reason not to act on (at least some) first-order reasons against φ-ing. Here I again follow Raz, who holds that an obligation (or, in his term, a “duty”) has “pre-emptive” or “peremptory” force (1986, pp. 186, 192, 249), understanding these notions, in turn, in terms of the notion of an exclusionary reason. As a consequence, you can be said to “owe” another person some performance only if you have reason not to act on at least some reasons that tell against that performance. I share Raz’s view that this feature of exclusionary reasons helps explain the sense we have of being “bound” to act in a certain way (1977, p. 224), that we are then to treat contrary considerations as subordinate or even irrelevant, and not simply as overridden. At the same time, the value view also tells us that an obligation is a reason to act, meaning that it is a first-order reason. What we have now seen, then, is that though an obligation comprises such a reason, it also comprises an exclusionary reason. It is indeed natural to say, as I did in initially formulating the value view, that the obligation “is” the reason to act. After all, normally one is under an obligation “to φ,” and not “to not act for a certain reason against φ-ing.” But both components are needed to make an obligation to φ. The value view tells us that a (general) claim is a value belonging to the right holder. But if an obligation includes two reasons, of different orders, which one corresponds to the value? The answer is that both do. The first-order reason, as we saw in 1.3, is a reason to treat the claim holder appropriately, precisely as a being with a special kind of value. And one way in which that value is “special” is that it corresponds also to an exclusionary reason. The value view implies, then, that a plausible theory of claims will have to explain what it is about claim holders that gives them that kind of value and thus why exclusionary reasons exist. This is a significant constraint on such theories. I will eventually, in Chapter 5, account for the owing relation in terms of the agency view and in a way that does respect this constraint.11 Let us then reformulate the value view along the lines suggested in the previous paragraph: The value view of claims (as central elements). An obligation to φ is a special kind of reason for the obligation bearer to act, including a first-order reason to φ and an exclusionary reason not to act for (at least some) reasons against φ-ing; and the corresponding claim is a special kind of value belonging to the claim holder. The main problem with this account of claims becomes apparent when we ask what it is for an obligation to be a duty—or in other words, what

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it is to violate an obligation, as opposed to simply infringing it. There is a fairly natural account of this notion, which also coheres well enough with Raz’s various pronouncements about exclusionary reasons; though, to my knowledge he has not stated any clear view on precisely this question.12 I will call it the balance-of-non-excluded-reasons account, or BNE for short. BNE. An infringement is a violation if it is contrary to the balance of the agent’s non-excluded reasons. Note that BNE is a fairly narrow thesis about what turns a claim infringement into a violation. It is not a general principle to the effect that we are always to act on the balance of non-excluded reasons. I would not endorse such a principle, and I will explain why in Chapter 7.13 A more immediate problem is that of reconciling BNE with Raz’s thesis that excluded reasons remain genuine reasons, not canceled or “silenced.” For why do they not then matter to the agent’s duty? My full answer to that question, which is tantamount to the question of why we should accept (something like) BNE in the first place, will have to wait until Chapter 7, as it goes beyond the value view. Here, and as a preliminary to that inquiry, I want to address the tension between BNE and Raz’s claim that excluded reasons are genuine.14 It is fair to say that in a strong sense, perhaps the standard one, of the expression ‘reason to act,’ an excluded reason is not a reason to act, if BNE applies to it (meaning that it is a reason for infringing an obligation, excluded by that very obligation). In that sense, the statement that some consideration R is a reason to φ implies that R is relevant to whether one ought all-things-considered to φ, by which I mean the following: there is some configuration of reasons for and against φ-ing such that R decides whether one ought to φ—where that in turn means that one ought (not) to φ if and only if R obtains. If BNE applies to a given excluded reason for infringing, that reason is not “relevant” in the sense defined, and so does not count as a reason to act in the strong sense. If so, an obligation does indeed cancel conflicting reasons. However, the statement that I have a reason for performing some action also carries other implications. In particular, it implies that the action itself, or my performing it, would be a good thing, or that there would be a point or rationale to it—or perhaps even that it would realize some value, if that does not sound too narrowly teleological. It may also imply that I, and others, have reason to want or wish that I perform the action. Further, there is arguably a weaker, yet perfectly non-arbitrary, sense of the expression ‘reason to act’ which carries these other implications, mostly about value, but not the one about “ought” relevance. Though a reason in this weaker sense is not essentially linked to what one ought to do, it still serves some of the functions a (normative) reason has traditionally been thought to have. It is

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The Value View

linked to value, as described, and it can rationalize an action. It also tells us something about what we ought to do if BNE is not applicable. Hence it is only in the special case in which a reason to act is excluded by an obligation that the distinction between strong and weak reason judgments makes any practical difference. Given the weaker sense of ‘reason to act,’ there is no contradiction between BNE and Raz’s conception of exclusionary reasons. The presence of an obligation does not affect the first-order reasons it excludes, even if BNE holds, as long as these excluded reasons are understood in the weaker sense. This is because exclusionary reasons can have no effect on the value realized by any action. On the other hand, as we saw, BNE does imply that reasons to act in the strong sense do depend on the presence of obligations. After all, if what we ought to do is a function of reasons in that strong sense, and obligations change what we ought to do, then it must also change reasons in the strong sense. In other words, obligations exclude reasons if these are understood in the weak sense and cancel them if they are understood in the strong sense. Hence it is also possible to state BNE like this: An infringement is a violation if it is contrary to the balance of the agent’s non-canceled reasons (if these reasons are understood in the strong sense). It is also useful to illustrate the distinction between strong and weak senses of ‘reason to act’ by applying it to a standard case involving rights. Suppose, then, that A could save several people’s lives only by killing B and does so. If the fact that B’s death would save many lives is an excluded reason for killing him, then A’s deed presumably violates B’s claim, barring further information. What I would want to be able to say here, and which the distinction allows me to say, is that A had stronger reason to save the others than he had not to kill B. Such a judgment presupposes the weak interpretation; it relies on the thought that, roughly speaking, the death of the others is a worse thing to happen than the death of B alone. Consequently I deny that what A ought to do in this case, all things considered— and hence what, in another sense, he has most reason to do—is determined by the values of the outcomes he can realize. I certainly cannot show here that I am right about this—though I will say a bit more about cases of this type in Chapter 8. At present I make do with the dialectically significant observation that, to my mind at least (and Raz would agree, I take it), much of the point of the notion of a right is that it allows us to say precisely that it is A’s duty not to kill B, even if the balance of reasons tells against this choice—but then that “balance” must be understood as a balance of reasons in the weak sense, excluded and non-excluded. Or, if we want, we could say that what one ought to do is not simply a function of the balance of realized value. Alternatively, we should be able to say that it would be better for A to act contrary to his duty in this case. To further bring home the distinction, we should consider what seems to be Raz’s main argument for his claim that excluded reasons remain

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valid (though it is admittedly a rather oblique one). He considers cases of the following type. A person performs an action that is in fact supported by the balance of all reasons, excluded and non-excluded, but not by the balance of non-excluded reasons alone. However, he mistakenly believes that his action does conform with the balance of non-excluded reasons and he acts for a non-excluded reason. This agent has conformed with both his exclusionary reason not to act on certain reasons and the overall balance of reasons. Raz describes such an action as a “fortunate mistake.” What makes it fortunate rather than unfortunate is precisely that it is favored by the overall balance of reasons, including excluded ones. This fact, Raz thinks, shows that these excluded reasons remain genuine reasons, relevant for evaluating the action. But it is striking that Raz, in describing these cases, consistently uses value terminology to make his point.15 He stresses that it is better that one act on the overall balance of reasons, but contrary to the balance of non-excluded reasons, not that one acts as one ought. This, I take it, is no coincidence. He is implicitly talking about reasons to act in the weaker sense. Now, whatever the plausibility of Raz’s “fortunate mistake” view in other contexts purportedly involving exclusionary reasons, it may seem unattractive in cases involving rights, such as the one described two paragraphs back. In a variant of that example the facts are the same, except that A kills B out of a concern for B’s well-being. Perhaps he believes that B suffers from a painful terminal illness. In fact this is not so. Yet A acted on the balance of overall reason, since his action saved several other lives. While this action is a mistake, we would hardly call it “fortunate.” And so the supposition that the excluded reason remains valid is cast in doubt. Yet the significance of this case is unclear. I note that we would probably also be unwilling to describe B’s death as “fortunate” even if it occurs accidentally (but still leads to the others’ being saved, which also could not have been brought about otherwise). So any wrongdoing on A’s part does not make a big difference in that regard. And we would probably also be willing to concede, if pressured, that B’s death is “in a way” fortunate. As before, we would presumably still agree that it is a good thing that the others survive. I acknowledge that these frequent references to value suggest a different interpretation of the cases I have discussed, as well as of others involving rights. On that interpretation, all I have done thus far is to repeat, in needlessly complicated terms, the familiar deontological point that it is sometimes a person’s moral duty not to realize the best outcome—meaning that I have not shown that there is any interesting sense in which this person’s duty is contrary to the balance of reasons, or indeed that the weaker sense of ‘reason to act’ even exists. At present I cannot say much in response to this objection, beyond repeating my earlier intuition, and appealing to Raz’s authority. I will return to the matter in Chapter 5, where we will see that the agency view casts new light on it.16

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At this point it might seem that we would be well advised to understand exclusionary reasons differently, in a way that avoids the complications described previously. Such an interpretation is suggested by a formulation of F. M. Kamm’s.17 She may have had it in mind—though it should be pointed out that the notion of an exclusionary reason does not play a central role in her account of rights. In explaining what an exclusionary reason is, she says that such a reason “excludes our considering certain other factors that would ordinarily be reasons” (2007, p. 237; emphasis added). At first blush this account of exclusionary reasons differs from Raz’s. For whereas a reason’s being exclusionary in Raz’s sense merely tells us that we are not to act for a certain reason R, which still remains as a valid reason, Kamm’s formulation implies that, given the presence of the exclusionary reason, R is no longer a reason at all. On her account, then, exclusionary reasons themselves affect whether other considerations are reasons for action. However, once we observe the distinction between two different interpretations of reasons for action, the two formulations turn out to be more similar than we might perhaps initially have thought. On the interpretation suggested previously, Raz uses the weak sense of ‘reasons for action’ when he asserts that excluded reasons remain. By the same token, though, on a plausible reading Kamm uses the strong sense when she denies that same claim, so there is no conflict there. Further, though Kamm does not address Raz’s “fortunate mistake” cases, and so it is unclear what she would say about them, there is no obvious reason why she could not agree with him that excluded reasons, in the weak sense, are still relevant for evaluating an action. Again there is no deep disagreement. Yet one significant difference remains. To see it, note first that Kammstyle exclusionary reasons are not second order. She does say that an exclusionary reason “excludes our considering” certain factors, which may make it seem second order—a reason about how to deliberate— yet the presence of this supposed second-order reason simply follows from the fact that the relevant factors are not reasons because of the presence of the exclusionary reason. The latter fact has explanatory priority here. Indeed, it seems preferable to say that in this view the “exclusionary” reason is simply a first-order reason. To account for its exclusionary status, we need not bring in second-order reasons at all. The first-order reason is exclusionary simply because it somehow makes conflicting reasons go away (or perhaps just grow weaker). By contrast, on Raz’s view and mine, an exclusionary reason is second order, and this fact about it is not explained by the reason-canceling power of first-order reasons. It exists independently of first-order reasons, and we can appeal to it to explain what a person ought to do, all things considered. I have already made clear that I will not defend my favored view until later, but I should say something here to dispel any impression that the

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alternative formulation is clearly preferable. As I have already made clear, the main challenge facing my view (and Raz’s) is that of explaining why a person’s obligation to ϕ is also his duty even when the balance of reasons tells against ϕ-ing—or, alternatively, why reasons to act in the strong sense are canceled by exclusionary reasons. Yet the alternative idea of exclusionary reasons as canceling contrary reasons faces a rather similar problem. For why should the presence of one reason to act make other reasons simply disappear? That may be the case if the “disappearing” reason is very much weaker than the canceling reason, and Kamm herself seems to endorse the possibility of considerations that would normally tell in favor of some action but are rendered “irrelevant” in the presence of other, much more important factors.18 But we have already seen that excluded reasons could be strong, and indeed stronger than the first-orderreason component of a purported obligation. The appeal to exclusionary reasons, as opposed to mere first-order ones, answers to the sense that the action can be our obligation all the same (see earlier discussion). As a consequence, though I do not deny that canceling first-order reasons exist, I strongly doubt the notion’s usefulness in an account of rights. (I will say more on this matter in Chapter 7.) To sum up, I will accept BNE as the correct view of when an obligation is also a duty. In Part II, Chapters 7 and 8, I will develop and modify this view further. For now, though, the formulation I gave earlier will do. Further amendments and qualifications are no doubt in order, in addition to those addressed in Part II, but I will have to ignore them. Before concluding this discussion of exclusionary reasons I want briefly to address their relation to relational reasons.19 While an exclusionary reason is essential to the relation of “owing,” I do not want to rule out the possibility of other types of relational reason to act that are not examples of “owing” and that involve no exclusionary reasons. For a possible example, consider the reason the members of a philosophy department have to honor a distinguished colleague about to retire. Such an act would no doubt be appropriate, but that term may somehow seem too “impersonal” to capture all that is going on. While the soon-to-be emeritus has no claim to any ceremony or whatever, it might still seem that the reason the others have to arrange such a ceremony is a reason “to” their distinguished colleague in some sense. To be sure, if we postulate the existence of such reasons, we must also explain in what the purported relation consists, if it is not that of “owing.” I will not speculate on this possibility, however. Conversely, one might wonder whether exclusionary reasons presuppose the owing relation. Consider the requirements under which some officials may find themselves. For instance, a bureaucrat may be required not to give unemployment benefits to those who are not unemployed, which implies that he also has an exclusionary reason not to act for at least some contrary reasons (such as, presumably, sympathy for a given person’s plight). But is this requirement “to” anyone in any

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interesting sense (the taxpayers perhaps)? Be that as it may, I will not presuppose that exclusionary reasons presuppose relationality.

3.

Relationality

With the notion of an exclusionary reason under our belt, we can move to a consideration of what the value view has to say about relationality. Though that thesis is about general claims rather than particular ones, and so obligations, we will see both that our analysis of relationality will lead to a modified understanding of the value view, and that the value view significantly constrains our understanding of that notion. A.

The Benefit and Choice Theories

I will try to state the implications of the value view for relationality by way of considering its implications for the two traditional accounts of relationality: the benefit (or interest) theory, and the choice (or will) theory.20 As usually understood they offer accounts of what it is for a person to have a claim, in the sense of (ideally) providing necessary and sufficient conditions for standing in a claim/obligation relation to another person. However, I will understand them more modestly simply as accounts of what I have called “relationality,” a notion that entails neither enforceability nor exclusionary reasons—the two notions that together define that of a requirement—and is not entailed by them either. Or more precisely, I will treat the two theories as accounts of what turns a requirement into an obligation.21 In other words, they are accounts of what makes a requirement hold “to” some other person (or being generally). They should not be taken to imply, then, that a reason that does not count as a requirement and that meets the condition they state counts as a claim (or indeed, strictly speaking, even as relational). The scope of my discussion is limited in a couple of ways. In the first place I have chosen to consider only the benefit and choice theories as accounts of relationality, and hence I have disregarded the considerable developments rights theory has seen over the last decade or so. I concede that the map of available positions is more complex and covers a wider territory than my choice implies. In the first place, the two theories themselves are probably better described as families of theories that share certain common features but also differ significantly among themselves. Thus it might be useful to distinguish the “benefit” theory of Bentham from the “interest” theory of Raz, even though these accounts of course have many important elements in common.22 By the same token one might distinguish H. L. A. Hart’s “choice” theory from the “will” theory of Carl Wellman and L. W. Sumner.23 It might also be possible to distinguish a related “demand” theory.24 Second, there is by now a plethora of alternative accounts of the nature of claims, including an explication of

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their relational character, all intended to transcend the debate between choice and benefit theories. Here we find Leif Wenar’s “several functions” theory, Gopal Sreenivasan’s “hybrid” theory, George Rainbolt’s “justified constraint theory” and no doubt others as well.25 My decision to set these alternative accounts aside is only in part due to space considerations. A more important reason is that they are usually meant to elucidate the general concept of a right, in which I have already forsworn any interest (see section 1). While no doubt the same is true of the traditional theories as well, in many of their incarnations, they also offer initially attractive accounts of the moral phenomenon I have set out to elucidate. These last remarks also bring into view the second limitation. For I am concerned only with relationality as a moral notion. I do not deny that claims of all sorts, including legal ones, can be said to be relational— and indeed that the benefit and choice theories are frequently employed in elucidating legal and other non-moral claims. Hence there has to be some account of what makes a legal claim relational. However, not only do I not aim at producing such an account, I do not consider myself constrained by it, whatever it turns out to be. I aim to offer an account of an important moral phenomenon. If I succeed in doing so, I will not care too much whether it also helps us to account for relationality in legal (and other) contexts.26 With these preliminaries out of the way, I now turn to the two traditional theories, stating them rather baldly, with a minimum of development and needed qualifications. According to the benefit theory, X’s requirement to φ is to Y just in case Y stands to benefit from X’s φ-ing.27 By contrast, the choice theory says that X’s requirement to φ is to Y just in case Y has the power of control over X’s φ-ing, in the sense that it is up to Y whether X is thus required or not. To defend either theory, then, involves explaining how the fact it mentions can turn a requirement into an obligation. Before we address the question of what to say about these two theories from the perspective of the value view, though, we must consider powers. After all, the choice theory implies that a claim holder also necessarily has “the power of control” over that claim. Indeed, if the choice theory holds, the central element of a right must be the power, whatever its exact nature, rather than the claim it controls. The time has therefore come to address what the value view has to say about powers. B.

The Value View Applied to Powers

Thus far I have treated the value view simply as a view about claims (and obligations). My aim in this subsection is to formulate a version of the value view that fits the “complex case” in which particular claims are subject to powers, and a power is consequently the central element of a right (cf. 1.1). Like the value view of claims as the central element stated

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in section 1, this new version does not imply that the relations it explicates actually exist. Rather, it only tells us what these relations would be like if they did exist. Before getting to powers, though, it is useful to briefly say something more about the remaining Hohfeldian relations, liberties and immunities. How are they most plausibly understood on the value view? We may begin with immunities. These come in two main varieties. First there is the immunity from having one’s claim extinguished by others. This immunity must receive different treatment, depending on which of the two cases holds. If claims are the central element of a right, then it simply follows from the value view that a right includes an immunity. If claims are values belonging to persons, then just as they cannot simply be extinguished by the holder himself they cannot be extinguished by another person, either. In this respect rational beings are no different from other value bearers, including inanimate objects (with the qualification that the value of such other objects, typically at least, does not correspond to exclusionary reasons). For not only does the value of such an object consist in reasons belonging to rational beings to treat these objects in particular ways, it also consists in an inability of these same rational beings to affect the reasons that they themselves and other rational beings have with respect to the object in question—or at least to do so simply by fiat. This inability, then, is part of what it is to have value, or at least the kind of value that persons and many other objects possess. In saying this I obviously presuppose objectivism about value, as I have throughout. By contrast, if a power is the central element of a claim, this reasoning will not go through, as we are then no longer entitled to say that a general claim is a value (see the following discussion). Further, in this case the right holder himself could “extinguish” his particular claim, if that means simply to waive it. To show that he has the immunity we are concerned with, then, is to show that this power belongs uniquely to him. To do that, however, we need to know more about what grounds the power. We will therefore have to postpone discussion of this matter (see Chapter 5). The second type of immunity prevents other people from obligating one, and thus to create rights in themselves. There are questions here about the extent to which we are able to obligate others unilaterally, without their consent—and it is only such cases that interest us now— but no one disputes that this power, if it exists at all, is quite limited. How can this immunity be accounted for on the value view? I hold that it, too—like the immunity from others’ shedding their own obligations to one—is incompatible with the kind of value constituted by claims or powers. Just as one person cannot unilaterally and by fiat affect another person’s value, he cannot do so to his own value either. That cuts both ways, of course. On the one hand he is no more able than others are to remove his own value by fiat. What that fact entails depends on whether the simple or the complex case obtains. But on the other hand he cannot

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arbitrarily and by fiat change what others are obligated to do by way of honoring his value—nor could anyone else. This change would also seem to amount to a change in his value of a kind that is hard to reconcile with that value’s being objective. Turning to liberties, we find that, in one way, there is not a lot to say about them. After all, a liberty is simply the absence of an obligation to someone else (in a being that could have obligations to begin with). Hence it could be argued that once we have an account of claims, we have one of liberties as well. In that case there would be no need for extending the value view to encompass liberties. It is not a fact of any great moment that liberties are not values. And it would in any case be unclear what such an extension would look like. After all, one person’s having a liberty does not in itself imply anything about any reasons others have to treat that person in any particular way, or take any particular attitude towards him. Hence a liberty has nothing to do with its holder’s value. To be sure, it may seem that there is more to liberties than that. In particular, it might be held that a person’s value also depends on what he himself is obligated to do to, or for, others. In particular, in this view, my value as a person is in part reflected in my not being “at anyone’s beck and call,” as it were. However, this is a mistake, perhaps due to reading more into the meaning of ‘liberty’ than the technical definition we have given it. We have already seen that a person’s immunity to being obligated arbitrarily by others is to be explained by appeal to the others’ value, rather than the person’s own value. The sense that the person’s own value is at stake is probably due to our confusing the question of whether others are able to obligate him with that of whether they are at liberty, or even within their rights, to enforce their demands against the person. As we saw in section 1, such a liberty may (or must) affect the obligation bearer’s claims, and thus his value, and not just his liberties/obligations. If so, the two immunities I have addressed to some extent run together. Let us then consider powers. In general, a power is an ability to alter in a certain way a Hohfeldian relation between two parties. In practice I will limit my attention to cases in which the power holder himself is one of the parties. While it is uncontroversial that there are legal and other conventional powers to affect Hohfeldian relations between other parties (priests can marry people, etc.), it is not obvious that there are moral powers of this kind or which such powers exist. Further, as standardly understood, a power is exercised through some action (not merely mental). While the word ‘power’ naturally suggests that this action be intended to bring about the change, as when one makes a promise or consents to surgery, I will make no such assumption here. For instance, I will say that a person who wrongs another and thereby acquires an obligation to compensate his victim has “exercised a power,” even though this effect was in no way intentional.28

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Powers come in several varieties. First, we have those that affect one’s claims, and hence other people’s obligations towards one, either by creating them or by revoking them. Second, there are those that affect one’s obligations, and hence other people’s claims towards one, again either by creating them or by revoking them. Third, there are those that generate powers in others. In the choice theory, remember, claims involve powers, so it does not recognize any distinction between the second and third categories. In addition, there are likely powers to generate immunities in others. At any rate, the transfer of a property right in some external object would seem to involve the exercise of just such a power (for the original right involves immunities, and these are transferred to the new owner along with the right’s other components). It is unclear if such a power is instantiated in any other context. These last remarks will serve as an excuse for a very brief digression on property rights. Such rights are of course very controversial, even among philosophers generally hospitable to rights. And it is also unclear whether the value view allows us to defend anything like the system of (legal) property rights recognized today in most of the world.29 Should they turn out to be either power-generated or derived—and both seem live options—that is certainly not the case. It would not follow that that system is unjustifiable, only that it cannot be justified by an appeal to rights. But nor would it follow that no property rights at all could be justified on the value view. However, largely for reasons of space I prefer not to consider property rights further in this book. Nor will I have more to say about immunity-conferring powers. The digression out of the way, let us now look at powers to affect one’s own claims. Plainly, a description of any such power will consist largely in a characterization of the claim it can affect, and that characterization in turn will tell us which reasons to act constitute the claim in question. However, the power itself corresponds to reasons to treat a person in a certain way, and hence could also be said to be a value. In that way, then, the value view can also be extended to encompass such powers. Among powers to alter one’s own claims, that of consent (or waiver) is paramount.30 Insofar as consenting alters one’s claims against others, it also alters the reasons others have to treat one in a certain way. As a consequence, to respect that power to alter reasons is to acknowledge the new reasons, rather than the old ones, to acknowledge that the power holder made a difference and so has the ability to do so. But it is also crucial to see that if an agent has such a power of waiver, he has a power to decide over other people’s reasons in a limited way. To treat him as holding such a power is to treat him as “being in charge”—a “small-scale sovereign” in Hart’s phrase (1982, p. 183). By infringing the claim we fail to respect the holder’s power. We have in effect treated ourselves, rather than him, as being in charge. We have, as it were, usurped

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his power to decide over the relevant action by acting as if we could “waive” his claim on his behalf. There is now a complicating factor. I find myself rather attracted to the notion that a claim violation also fails to respect the holder’s power simply in virtue of contravening his command. For this notion to make sense, though, it would also have to make sense to say, in many cases, that a claim holder commands us to act in the relevant way “by default,” that is, without having actually done anything. However, if I endorse such “default commands” I would also have to abandon one of the following three theses, if I am to avoid outright contradiction: (i) issuing a default command is not an action, (ii) exercising a power is always an action or (iii) issuing a default command is the exercise of a power. Unfortunately all three seem very plausible—and the second I have indeed already mentioned as standard. My way out is to say that there is a looser sense of ‘power’ that does not imply (ii). That way I can retain the notion of a “default command,” and will indeed frequently resort to it in the sequel.31 It will no doubt be asked both what a “default command” amounts to and why we should accept that such commands exist in the first place.32 As far as the first question is concerned, the only possible answer seems to be that such a command obtains simply in virtue of the claim holder’s ability to make that command explicit, and perhaps especially to waive it. But that answer to the first question of course makes the second one all the more pressing. Why bother with “default commands” when we could just refer directly to abilities? To see my answer, recall how I said just now that a power holder’s power consists in his “being in charge,” and that we wrong him by failing to recognize this, by acting as if we were in charge rather than him. But his being in charge consists precisely in his deciding whether we are permitted to act in the relevant way or not. But he can “decide” only by in some sense “saying” that we are, or are not, allowed to act in a certain way. In that way, his mere failure to waive amounts to a command. It is also important to link powers with the notion of exclusionary reasons introduced in section 2. Since a claim involves both a first-order and an exclusionary-reason component, the question arises of which of these components a power to generate claims does generate. In the same section I also distinguished between two different ways of understanding first-order reasons, or between two ways in which a fact could be relevant, and noted that one of these relevance relations is subject to exclusionary reasons but not the other. Thus, we could say that insofar as a first-order reason is linked to an action’s value, it exists independently of the claim holder’s command, and so an exercise of the power does not create it, nor does a waiver extinguish it. But the exercise of the power does generate an exclusionary reason that would not have existed otherwise, and which is also extinguished by a waiver. It may also generate an ought-relevant

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first-order reason that would not have existed otherwise, but I do not take a definite stand on that possibility. Be that as it may, though, if the exclusionary reason disappears, the balance of the obligation bearer’s non-excluded reasons may well also change, and so his ought-relevant reasons are affected. Turning to powers to create claims in others, we find that an account of such a power will consist largely in an account of the obligation it creates. And this account in turn will consist in a description of the reasons to act constitutive of that obligation. However, the point I have just made about powers to affect obligations in others also applies, if not in the same way, to powers to create claims in others. In that way, the value view can be extended to cover these powers as well. There are two main ways of acquiring new obligations through an exercise of a power: by promising and by infringing others’ rights, thereby bestowing upon them a claim to compensation for harms they may have suffered. It is possible to fail to respect these powers also, and thereby fail to respect the power holder’s value. For instance, we might treat someone as unable to make promises, and thus unable to obligate himself. In so doing, we seem to wrong him.33 As far as powers to generate powers in others are concerned, we should note that the powers just discussed (of creating claims in others) are in any case probably better understood precisely as powers to create powers. Indeed, that this is true of the power to create promissory obligations is uncontroversial; all agree that promissory obligations are typically waivable. And indeed, the remarks I just made about powers to create claims in others apply with equal force to powers to create powers in others. In the first place, then, an account of a power P to create a power P* in another consists largely of an account of P*. Further, an account of P* consists largely of a description of the claims or obligations it affects. But, second, a power to create powers in others is a value, for it corresponds with reasons others have to recognize the person’s ability to change other people’s powers. It might be objected with respect to my treatment of powers that while it makes sense to call a claim (not subject to powers) a value, because of the intimate relation between it and reasons to act, it does not make sense to call a power a value, as I have done. Rather, a power is an ability. Granting that this ability has something to do with the power holder’s value, the critic could suggest instead that this value could hold in virtue of the ability, rather than the ability’s being itself a value. This objection rests on a confusion, however. A power is itself a normative feature of persons; it is not a psychological capacity, such as agency, in virtue of which they have value. Rather, they have value in virtue of whatever it is that makes them have the power (because, again, the power just is a value). Remember, to say that a person has a power is just to say that he has the peculiar ability to affect other people’s reasons through the (communicated) exercise of his will. To fail to recognize the person’s power,

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by failing to recognize the reasons its exercise yields, is precisely to fail to recognize his value. In that way, a power is a value; or, if you prefer, to have a power is a special way of having value, one that only persons have. It is at best superfluous to add to this picture that the ability itself “makes” a value corresponding to certain reasons. The only reasons here are those generated by the power’s exercise. There is admittedly at least an apparent problem in reconciling the notion that a power is a value with my earlier thesis (from 1.3) that every value corresponds to certain reasons. For a power does not correspond to any reasons in the way other values do. (By the way, we cannot resolve this problem by saying instead that a power makes a person have value. The question of the reasons to which that value corresponds would remain.) I would resolve this problem in the following way. In the first place I would distinguish, as I did with claims, between general and particular powers (see 1.1). A general power holds with respect to all other persons, and a particular power holds with respect to a particular person. Further, a particular power is correlated with a liability (in Hohfeld’s term), in just the way a particular claim is correlated with an obligation. That is to say, as I noted in 1.4, we are here talking about two descriptions of the same thing. Third, though a liability is not, unlike an obligation, a reason of any kind, it can be understood in terms of reasons. To be precise it is a kind of dependence of the liability bearer’s reasons on the power holder’s will. We can then identify a general power with a value and say that it corresponds to liabilities or reason-dependence relations in much the way a general claim corresponds to reasons, in the form of obligations. On an alternative formulation, we could say that a power corresponds to conditional reasons to act: reasons to do such-and-such if the power holder commands. There is probably little to choose between the two alternatives, but I prefer the former one (in terms of dependence). As a result of these maneuvers, it may be that my claim from 1.3 (that every value corresponds to certain reasons) needs qualification, but I will not worry about the details. Let us take it, then, that in the complex case in which a power is the central element of a right, that power is a value. (By contrast, if the central element is a general claim, then that claim is a value). In the complex case it might still be meaningful to attribute a general claim to a person, meaning a set of particular claims held against all others. That set would exist as long as that person has not exercised his power of waiver vis à vis anyone. But that general claim could not be a value. For while the obligations to which it corresponds are waivable, a value could not be “waived.” (cf. what I say about immunities.) Whatever grounds a person’s value, that ground is not subject to his control in the way his claims are, if the complex case obtains. As I have noted, when a claim holder waives a claim, the obligation bearer’s value-relevant first-order reasons do not thereby disappear. But his exclusionary reason not to act on contrary

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first-order reasons, and so his ought-relevant first-order reason, does disappear. Hence, given the complex case, neither of these reasons could directly correspond to the person’s value, as I said in section 2. After all, the corresponding value would then disappear when they do. But there is a kind of indirect correspondence to the person’s value, by way of his ability to generate reasons. I have held that a general claim subject to the power of waiver cannot be a value precisely because the obligations with which it corresponds can be waived. Instead I have said that the power of control over these obligations is a value. But then it could be argued that the same problem remains, as powers can also be waived. For suppose that by waiving a claim I not only lose the claim but also every power associated with it. This could happen if the loss of the claim is irrevocable. Then the holder of the original claim has no ability to reinstate it, or indeed to do anything else with it. If so, the value we respect in not infringing the unwaived claim could not be (or be constituted by) the power either, for the same reason as before: values cannot be waived. It is not clear which claims could be irrevocably lost. Property claims certainly can be. Also, by making promises we can divest ourselves of certain claims, and promises would be pointless if the promisor could reinstate his claim at will. There is actually good reason to doubt that irrevocable loss of a claim involves also the loss of the corresponding power, quite apart from the value view. Suppose that it is possible for me to permanently alienate some claim of mine through an act of will. That alienation is then the result of the exercise of a power of mine. But if that power itself is also lost at the same time (and as a result of that same act), it seems that I must then have exercised a second-order power to alienate the first-order power as well. Yet this second-order power is also irrevocably lost with the firstorder power. But then it seems that in losing my second-order power I have exercised a third-order power to alienate my second-order power. And so we are embarked on a regress, and while it is perhaps not vicious, it is certainly extravagant. To avoid it, we should abandon the idea that the power is lost with the claim. But then how should we conceive of that power? There seem to be several possibilities. a.

Powers are essentially conditional in form. That is, a power is not simply an ability to manipulate a claim (or other Hohfeldian relation), but rather an ability to do so, provided one has the claim. This conditional power one could arguably retain even after one has irrevocably lost the claim. Hence no regress threatens, and there is no difficulty in reconciling the loss of the claim with the value view. b. The power could remain after it has been exercised irrevocably in the sense that it remains effective. Suppose you do have the ability to alienate some claim permanently. This power, I have

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said, corresponds with a second-order reason on the part of others to respect your wish in the matter. So their lacking a reason to treat you as a claim-holder after your alienation of the claim is due precisely to your earlier exercise of your power. While you lack the power in the sense that you cannot use it again, its effects can still be felt. If you have irrevocably made yourself a slave (to take the extreme case), others are free to treat you like a slave, but that is so because you wished it to be so and made it so (at a certain time). Indeed, a person who later refused to treat you like a slave would then fail to recognize your power, and therefore in a way wrong you. In that sense, at least, your power remains, because others are still affected morally by your prior exercise of a power. Perhaps diverging a little from the letter, if not the spirit, of the value view, the value I initially argued was constituted by a power is instead constituted by the fact that one had the power to begin with. This is a timeless fact about the power holder and it is of course no less true of him after he has lost the power. In taking this view we therefore concede that certain powers indeed are lost once exercised but deny that this fact is incompatible with the value view once the latter is properly understood.

At present I can see no compelling objection to any of these possible views, nor any need to choose between them. (In Chapter 9 we will see a reason for some skepticism towards the first option.) Hence I leave this issue aside. Let us now formulate a version of the value view that applies to the complex case in which a power is the central element of a right, meaning that claims are subject to a power of waiver, and perhaps also other powers. The value view of powers as central elements. A (general) power is a special value belonging to the power holder, and any liability (directly) corresponding to that power is a dependence of the liability bearer’s obligations on the power holder’s will (the nature of the obligations varying with the nature of the power). We can also formulate: The value view of claims (as non-central elements). An obligation is a special kind of reason for the obligation bearer to act in conjunction with an exclusionary reason not to act for contrary reasons, the latter of which exists in virtue of the exercise of a power which is a value belonging to the claim holder.34 The same may, but need not, also be true of the reason to act.

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C.

The Value Account of Relationality

We can now return to the question of how best to understand relationality on the value view.35 As the reader will recall, I said in subsection A that I would do this by considering what the value implies for the two leading accounts of relationality, the benefit theory and the choice theory, and I also stated simple versions of these theories. To repeat, according to the benefit theory, to have a claim is to stand to benefit from the fulfillment of the corresponding requirement; and according to the choice theory, to have a claim is to have the power of control over that requirement. And we have seen in the last subsection what, on the value view, having the power of control roughly amounts to. Indeed, using the conceptual tools introduced there, it is natural to express the difference between the two theories as follows. According to the benefit theory, obligations are requirements to benefit some person; and according to the choice theory, obligations are requirements subject to another person’s power of control. In evaluating these two theories, or other accounts of relationality, it is common to test their extensional adequacy, meaning to test whether they indeed provide necessary and sufficient conditions for a requirement’s being relational. Much of the debate over the theories concerns purported counterexamples against their necessity or sufficiency (though, again, that debate is usually about relationality as a property of rights of all sorts, rather than moral rights specifically).36 This argumentative strategy is no doubt useful to the extent that the counterexamples it employs are relatively uncontentious—and indeed I will occasionally appeal to what (I hope) are such cases in what follows. However, it is less likely to be successful, at least on its own, in adjudicating between the benefit and will theories, as advocates of these theories tend to disagree over which requirements are to be classified as relational (as rights). There is every reason to believe that our intuitions about individual rights will be colored very considerably by our theoretical views about the nature of rights generally. As a consequence, the evidentiary value of these intuitions in a dispute over precisely that nature must not be overstated. This type of problem occurs in other areas of philosophy as well, but it is liable to be particularly acute in the field of rights theory, because the very notion of a right is shaped by theoretical views. Hence, I will mainly be interested in the theoretical adequacy of the two theories (but, again, not exclusively). To that end, I will formulate two constraints on an account of relationality. One of them follows directly from the value view. The other is independently very plausible, and is indeed significant on its own, but is all the more potent if combined with the value view. Applying them, we find that the benefit theory must be rejected and the choice theory at least supplemented. And the value view also gives us significant guidance in offering that supplementation—though it does not entail any specific account of relationality.

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I begin with the second constraint I mentioned, the one independent of the value view. It is useful, in stating it, to go back to something I said in 1.2. I noted that a value property can be identified in two ways: either in terms of its supervenience basis (or ‘ground,’ to use my favored term) or in terms of the reasons with which it is correlated (these could be either ought relevant or value relevant, to use the distinction from section 2). Much the same is true about relationality, though the latter is strictly speaking a property of a reason. That is to say, in explaining what turns a “regular” non-relational reason to act into a relational one, we can have recourse to facts about its ground, or facts about other reasons with which it is somehow associated—or both. If any other facts are relevant, it is not clear what these are. To use some convenient, if unlovely, terminology, our notion of relationality could be ‘input-based’ or ‘output-based’—or both. Using that terminology, we may note that the benefit theory is naturally understood as input-based, while the choice theory is output-based. Both theories are one-sided, then, in defining relationality in terms of either input or output exclusively. I hope to show that their problems are due to this fact. I rely then in part on the following: The explanatory constraint on relationality: If a requirement’s being relational implies that there are other reasons associated with that requirement, then the ground of the requirement must also explain these associated reasons. To see the other constraint, the one that follows from the value view, it is useful first to state the most prominent version of the benefit theory, due to Raz. In his view, a person has a claim just in case his interest is a “sufficient reason” for holding someone else to be under a requirement.37 It is precisely the fact that the requirement holds in virtue of this person’s interest that explains why it holds “to” him. Clearly, then, Raz’s view is input-based. Further, the phrase “holding someone to be under a requirement” is intentionally ambiguous: it could mean either “judging that someone has a requirement” or “imposing a requirement on someone” (1986, p. 172). It is only the former reading that concerns us here. On Raz’s proposal, then, the explanatory factor that turns a requirement into a claim is the holder’s interest. It is possible to generalize from Raz’s proposal, stating an input-based view of relationality in its most general form. The key notion is justification, which I substitute for Raz’s “sufficient reason.”38 Or, to use the term I prefer, what matters is the ‘ground’ of the claim. Thus we get something like the following: The grounding account of relationality: X’s requirement is to Y if it holds because Y has a certain feature (or set of features).39

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It is possible, without courting too much controversy, to reject the grounding account as extensionally inadequate, if it is understood as an account of a (moral) claim. In particular, it does not provide a sufficient condition. For one thing, it does not sufficiently restrict the set of potential claim holders: a rock could have a claim if only it had some feature that made someone required to act. For another, the grounding account does not sufficiently restrict the set of relevant claim-generating features. For instance, the fact that a person X carries a dangerous communicable disease may be a reason for Y’s being required to put X in forcible quarantine, but X does not on that account have a “claim” to be quarantined. In other words, the requirement is not “to” X. However, even if the grounding account does not provide a sufficient condition on relationality, I contend that it does offer a necessary condition. That is, X’s requirement is to Y only if it holds because Y has a certain feature (or set of features). Indeed, the value view commits me to a yet stronger condition, which is also our second constraint: The value constraint on relationality: X’s requirement is to Y only if it holds because Y has a certain feature (or set of features) in virtue of which Y is valuable.40 The final, italicized clause states the addition to the original formulation. This constraint does not itself identify any particular value-making feature, or set of features, that justifies claims. It just says that the features of a person that justify his claims, whatever they are, must make him valuable. Remember, though: the value mentioned here is what I called “ultimate” value in 1.2, meaning non-derivative value. Hence it excludes certain grounds of claims that would not be excluded if we talked instead about value without qualification. For instance, the usefulness (instrumental value) of a car might make me required to take good care of it, but that fact cannot give it a claim to my care. Given the centrality of relationality to the notion of a right, a plausible interpretation of the value view has it entail the value constraint—or so I will at any rate assume. With the two constraints stated, I now apply them to the two traditional theories. I begin with the benefit theory, as represented by Raz’s account. We may note first that the explanatory constraint is not relevant to the benefit theory, as the latter says nothing about “associated reasons.” (There will be more about this in the following, however.) But the value constraint is relevant, and the benefit theory fails to meet it. Hence it is incompatible with the value view. In Raz’s view, the requirement to benefit the claim holder rests on a valuable state of affairs—the person’s being benefited, or perhaps instead some need of his being met.41 Though the relevant requirement corresponds to a value, that value does not belong to the claim holder. Rather it belongs to his well-being or need-fulfillment, or to some related state of affairs. To be sure, a person

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could have a derived value in virtue of having well-being, but that value plays no role in the benefit theory as here described. If we insist on talking about the claim holder’s value in the context of that theory—and that does seem rather strained to begin with—it is not a value he has independent of fulfillment of the requirement, but it is rather a value he would acquire if the requirement were fulfilled. (This description needs modification to fit negative requirements.) Let me expand a little on the incompatibility between the value view and benefit theory. The reason I have just given for that incompatibility will seem familiar to readers immersed in contemporary moral theory, for it echoes one influential way of distinguishing consequentialist moral views from deontological ones.42 According to that proposal, consequentialists say that we ought to promote value, while deontologists have it that we ought to honor or respect value.43 I take this to be a distinction in value theory. The value of a person, whatever exactly the relevant valuemaking features are, corresponds to or is even constituted by reasons to act or take attitudes of a certain kind towards that person, while the value of a person’s well-being corresponds to or is constituted by reasons to act or take attitudes of quite different kinds towards that person’s well-being. Specifically, as long as the relevant value belongs to a state of affairs— such as that of a person’s enjoying a certain level of well-being—we have a corresponding reason to bring that state of affairs about (that is the “promoting”). By contrast, if the value is that of a person, we have a corresponding reason to treat that person with the respect due a person (that is the “honoring”).44 That last idea in turn is naturally, if not inevitably, understood in terms of claims. In other words, the value view is itself a kind of honoring view. It implies that the features of a person in virtue of which he has a given claim are value-making, and we have just seen that the benefit theory rules out that possibility. That my well-being would increase if one of my claims were satisfied is certainly a feature of mine, but hardly one that by itself contributes to my value. It is worth noting that this contrast between promoting and honoring views of value generally, and therefore the contrast between the value view and the benefit theory specifically, presupposes the thesis I stated in 1.2 and there treated as part of the value view, namely that the value of persons is ultimate. In particular, the contrast requires that the value of persons not be derived from their contribution to the value of certain states of affairs of which they are constituents. Also note that I have only said that the value constraint is incompatible with the benefit theory understood as a view about the grounds of claims. This incompatibility thesis by itself has no obvious implications for the content of whatever claims (or rights) exist. The value constraint does not rule out the notion that (all) obligations are requirements to benefit other beings. Of course, for such a view of claims to meet the value constraint, it would have to be possible to identify some value-making features of

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the claim-holding being in virtue of which these reasons hold. It is not obvious what features could play that role. In particular we would need an explanation of why honoring this value would take that form (i.e., promoting well-being). But there is no need to assume a priori that no such explanation is possible. Granting that the benefit theory fails to meet the value constraint, it is natural to ask if that is a problem. Does this fact give us significant reason to doubt the former as an account of relationality? I think so, and I will try here to explain why.45 The main point is the following. In accounting for claims by appealing to the value of the claim holder’s well-being rather than the value of the claim holder himself (as the value constraint demands), Raz does not sufficiently account for our sense that the violation of a claim wrongs the holder as the kind of being he is, that it precisely amounts to treating him in a way unworthy of him—meaning a treatment that does not respect his worth or value. A violation is not simply an action that brings about a state of affairs that is bad for the claim holder.46 I add that the benefit theory might fall foul of the explanatory constraint as well. For this to be true, the benefit theory must also be taken to imply something about what I earlier called “associated reasons.” In the versions of it considered thus far, including Raz’s, it implies nothing of the kind, but that is not obviously acceptable. For on one view of claims, or relational requirements, they are essentially coupled with at least one associated reason, namely the victim’s reason to resent (known) violations (unless excused). Some even assert that this connection is a conceptual truth.47 If this is true, and I do not deny it, the explanatory constraint becomes relevant. For then we must ask whether the benefit theory can explain why reasons to resent violations exist, in terms of the ground of the requirement. It may well also have to account for the violator’s corresponding reason to feel guilt, remorse or shame; and (secondarily) other people’s reasons to be angry at the obligation bearer and also the violator’s reason to compensate the claim holder for harm caused. (Note that none of these reasons as such necessarily involves any power.) It is doubtful that the benefit theory can deliver these explanations. For it seems to me that resentment, at least, is essentially a response to another person’s (perceived) failure to respect one’s own value, as a person, rather than the value of one’s well-being. If the resentment is due to the latter, that has to be because, in the circumstances, a failure to duly heed another’s well-being amounts to a failure to respect that person’s value—where this value is not simply his value (if any) qua “container” of well-being, in other words, if the benefit theory fails to meet the explanatory constraint, that is, for the same reason that it fails to meet the value constraint. I concede, however, that this charge against the benefit theory is problematic. Even granting the claims just made about resentment— and they are bound to be controversial, as they would ultimately have to

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appeal to the phenomenology of that emotion—it could still be objected that I have in effect begged the question. After all, if it is indeed a conceptual truth that a claim violation yields a reason to resent, then asking for an explanation of that reason is suspiciously close to asking straight off for an explanation of the claim violation, and hence of the relationality. Hence denying that the benefit theory can deliver the former explanation provides little support for denying that it can provide the latter. I will return to this worry presently. Having dismissed the benefit theory, the time has come to consider the rival choice theory. Here we can be briefer. First we should ask whether it meets the value constraint. As it is output-based, it says nothing at all about the ground of claims. Hence, just as the explanatory constraint is not relevant to the benefit theory, the value constraint is not relevant to the choice theory. (Or, if we prefer, the choice theory meets that constraint trivially.) One observation is called for, though. The value constraint tells us that X has a claim against Y only if Y is required to act in a certain way because X has a certain feature (or set of features) in virtue of which X is valuable. In the choice theory, a claim holds in virtue of the exercise of a power (if only a default exercise). In other words, the complex case obtains. If this power is itself a value belonging to the right holder, as the value view of powers as central elements has it, then for the value constraint to be relevant to the choice theory, the ‘because’ in that constraint must cover also that indirect relation between a claim and a value-making property. However, just as the choice theory’s being output-based means that it need not worry about the value constraint, it runs into trouble with the explanatory constraint. As I noted earlier, the choice theory is just as one-sided as the benefit theory, but in the opposite way. Unlike the benefit theory, it identifies a set of associated reasons, including powers, putting them forth as constitutive of a claim, and hence explanatory of its directed character. Now, as the choice theory is usually stated, these associated reasons will not be of the type described previously in connection with the benefit theory. The relevant “output” will instead consist in powers, which (as noted previously in subsection B) do not correspond directly to reasons, but rather to the dependence of other people’s reasons on the right holder’s will. Among candidates are the claim holder’s power of control over the obligation bearer’s original requirement, as well as the latter’s requirement not to interfere with (or even assist) efforts to enforce the original requirement, and the claim holder’s power of control over the obligation bearer’s requirement to compensate the claim holder for harm caused by the obligation bearer’s violation of the original requirement. What theorists need to do, in order to provide a satisfactory account of relationality, is to explain where these powers and other reasons come from. And without saying anything about the grounds of claims, they cannot deliver.

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The Value View

At this point, it is natural to ask how we might use the value view to remedy the respective shortcomings of the benefit and choice theories. In light of the value and explanatory constraints, the answer depends on why exactly claim holders are valuable, as that determines which associated reasons (output factors) are present by explaining them. The value view itself cannot answer that question. However, it is possible, even without that information, to formulate a pair of incomplete accounts of relationality (corresponding to the simple and complex cases, respectively) that can guide us in identifying the relevant value-making properties. Let us consider the simple case first, in which a claim is the central element of a right, and so is not (necessarily) subject to any power. The idea here is to identify a minimal set of associated reasons (output factors) that do not mention powers. The result would be something like this: The value account of relationality for the simple case: X’s requirement to φ is to Y if Y’s having a certain feature (or set of features) in virtue of which Y is valuable explains why (i) X is required to φ, (ii) Y has reason to resent X for not φ-ing and (iii) X has reason to compensate Y for any harm caused to Y by X’s not φ-ing. Turning then to the complex case, we introduce powers, and so a further set of associated reasons, but the principle remains the same. The value account of relationality for the complex case: X’s requirement to φ is to Y if X is required to φ and Y’s having a certain feature (or set of features) in virtue of which Y is valuable explains why (i) Y has a power of control over X’s requirement to φ, (ii) Y has reason to resent X for disregarding that power and (iii) Y has the power of control over X’s requirement to compensate Y for harm caused to Y by X’s not φ-ing. Note that the last of these formulations implies that claim holders have control over the relevant requirement and thus over exclusionary reasons. Hence the explanation it mentions must account for that power as well. Again, these accounts are incomplete in that they fail to identify the relevant value-making features of claim holders, and so they do not provide the explanations to which they themselves refer. Without that information we could not know that the consequent is true in a given case. Still, as I also indicated earlier, I am not saying that the value account is simply a blind alley. I believe it is possible, by building on that account, to describe relationality in a way that does explain why the reasons characteristic of directed requirements exist—and does yield a set of necessary and sufficient conditions of an obligation. I will take on that task in the next part. I will do so by strengthening the value account (and the value view from which it springs) by specifying what does give persons the kind of

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value manifested in their claims, in line with the familiar idea that rights stem from agency. It will allow me to show how to account for reasons to resent (see Chapter 5). I will also be able to take a stand on the issue of whether claims necessarily involve powers. Apart from incompleteness, there is another problem with the previous formulations that has likely worried some readers that needs addressing. They purport to offer accounts, in biconditional form, of the notion of a (moral) relational requirement. We might even go so far as to call them “definitions.” As such, though, they must meet the requirement of conceptual priority (stated in 1.4): a definition requires, on pain of circularity, that the concepts used in the definiens, here meaning the consequent of the biconditional, be independent of the concept defined.48 Yet it is questionable whether the two formulations meet that condition, due to the presence of the word ‘resent’ in their consequents. For the notion of resentment is not conceptually prior to that of an obligation, because resentment by definition involves the judgment that another has violated an obligation towards one (or some other mental state with that content).49 This objection, we may note, is closely related to the suggestion, broached a few paragraphs back, that it would be question-begging to demand of the benefit theory, or any other account of relationality for that matter, that it account for the claim holder’s reason to resent. There are several possible ways of responding to this conceptual priority objection, none of which is ideal. The one I prefer is the following. Instead of saying that Y’s value can explain his reason to resent X’s action, we maintain only that this value can explain his reason to take an (otherdirected) condemning moral attitude towards that action, where that reason is unique to him (with some qualifications). This latter fact about the attitude suffices to distinguish it from indignation (and its being otherdirected separates it from guilt). These features may not be sufficient to identify it as resentment specifically. Hence I do not assert that the strategy outlined overcomes the conceptual priority objection, strictly speaking, yet it seems at least to come reasonably close to doing so. I will therefore simplify and retain the original formulation in terms of resentment. It is also worth noting that, whether or not the formulations I offer fail the conceptual priority test, they could still pass another important test, namely that of epistemic priority. That is, we may be able, to some extent, to tell that resentment is called for independently of being able to tell that the relevant requirement is “to” someone.50 (This moderate epistemic priority would also enable my earlier objection to the benefit theory to avoid the charge of begging the question.) This last view of the “epistemic order” is certainly not obviously unreasonable.51 For instance, I may well have been vaguely aware previously that you ought to perform some action, but it is only when you fail to do so and I find myself resenting you for it that I realize that you owed it to me to do it.52 Their passing

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this test would at least enable these accounts to be somewhat useful, and that may be all we need. One final comment is called for before concluding this chapter. I made clear in 1.2 that my goal in this chapter is to develop a conception of rights rather than to describe the very concept of a right, or even of a moral right. That policy holds in this section as well, of course. The various “accounts” of relationality I have discussed are all aimed at stating a conception. Hence, those who reject them do not necessarily show thereby that they use the terms ‘claim’ and ‘right,’ defined in terms of relationality, in a way different from the way I use them. But one might wonder, then, what the concept of relationality amounts to. Does the intractable nature of the debate not rather show us that benefit and choice theorists are talking about different things, that there is not a single concept of an obligation?53 I confess to sharing this skepticism, at least to an extent. I am particularly doubtful about whether the familiar debate over animal rights is genuine.54 (I will say a bit more on this topic in 4.4.) For now, what matters is rather that I need take no stand on the skeptical challenge. Instead I stress my earlier point that I am out to characterize a certain important moral phenomenon and that it matters little to me whether other people have used the word ‘right’ also to refer to other phenomena. The value view is a crucial part of that characterization.

Notes 1. For instance, Kramer (1998b, p. 9) asserts that all “genuine” rights or claims are enforceable, though benefit and choice theorists differ on whether that “power” must belong to the claim holder. 2. Hart does use the phrase “power of enforcement” (1982, p. 184), but he likely had in mind a person’s (legal) power to obligate officials to enforce one’s claim by demanding that they do. There is an analog to that power in the moral context, as C. Wellman stresses (1985, pp. 144–5), to enlist third parties in one’s cause—though in these cases it is perhaps not possible to obligate them to intervene. Hart’s application of the term ‘power’ to the right of enforcement may also be due to the influence of Bentham, who employed that term in a sense wider than the one I am using, i.e., Hohfeld’s (cf. Hart 1982, pp. 169–70). 3. See Quinn (1985) for a (controversial) attempt to show that it does. 4. A consequence of the thesis that all claims are enforceable, and that there is a claim to enforcement is that this claim itself gives rise to a claim to enforcement, and so on. This regress does not seem problematic though. If, for instance, I am allowed to erect a fence to prevent you from trespassing, it also seems that I should in principle be entitled to take certain measures to prevent you from interfering with my fence building, and so on. 5. Cf. Steiner (2006, pp. 470–2). 6. Actually, right loss is relevant also for the claim of enforcement. After all, we must explain why the wrongdoer has an obligation not to resist the right holder’s enforcement, even when that enforcement involves actions which one would normally be at liberty to resist. 7. I borrow this notion from McMahan (2005, p. 400).

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8. Another possible case, which does not fit into the “gratitude” model is discussed by Raz, if in a somewhat different context (1986, p. 211f). He suggests that we have an exclusionary reason to compensate friends, but not others, for harm we cause them without fault. This reason seems relational, but hardly enforceable. (Raz denies that it corresponds to a right.) 9. This notion of an exclusionary reason should be distinguished from the arguably stronger one of a reason to “ignore” or “disregard” first-order reasons in one’s deliberation (see e.g., Raz (1990, p. 185)). The latter could in turn be understood in a weaker or a stronger way: either as a reason not to “give weight” to some fact, whether one actually ends up acting on it or not (though the notion of “giving weight to” is admittedly in need of elucidation) or as a reason not even to give thought to a fact. Raz plainly does not have the stronger of these two notions in mind when he talks about exclusionary reasons. As he notes (1990, p. 48), it is not a second-order reason on his definition. His attitude to the weaker interpretation is perhaps less clear, though. 10. Raz writes: “[E]xclusionary reasons do not cancel the reasons they exclude. The exclusionary reason notwithstanding, the excluded reason remains a valid reason” (1990, p. 212n12). 11. To clarify: while there are second-order reasons, there are no second-order values. There is only value. But value can be associated with second-order reasons in various ways. Most importantly, as I will argue in Chapter 5 that is true of a person’s value. 12. Among relevant passages in Raz, see (1990, pp. 40, 185, 1989, p. 1159). In the first of these places, Raz endorses a pair of principles: (P2) “One ought not to act on the balance of reasons if the reasons tipping the balance are excluded by an undefeated exclusionary reason,” and (P3) “It is always the case that one ought, all things considered, to act for an undefeated reason,” where he takes (P3) to encompass (P2). Here, a reason is “undefeated” if it is neither overridden nor excluded (ibid.). 13. In that respect, then, Raz’s principle P3 is much stronger than BNE. It is also stronger in a less obvious way, though. For P3 implies, but BNE does not, that an agent who acts for an excluded reason has not acted as he ought, even if his action is supported by the balance of non-excluded reasons. For instance, if selfish reasons are excluded, I would act contrary to P3 whenever I act for a selfish reason, but I could still abide by BNE in a case in which there are also non-selfish reasons for the action in question strong enough to outweigh the reasons against it, even if I do not in fact act for any of these non-selfish reasons. While Raz’s stronger principle has its attractions, in the present context it also suffers from the considerable disadvantage of making a person’s duty directly dependent, as a general matter, on the reasons for which he acts. Such a move seems to ignore Kant’s distinction between the “morality” and the “legality” of an action—between “[t]he conformity of an action with the law of duty” and “the conformity of the maxim of an action with a law” (Cf. Kant (1797, p. 225)). 14. The distinction I draw in the next paragraph is anticipated to some extent by Moore (1989, p. 857), though he claims to find an ambiguity in Raz’s notion of an exclusionary reason—an ambiguity which Raz himself explicitly denies (1989, p. 1157)—while I suggest instead a different ambiguity in the more general notion of a reason to act. However, Moore also notes that whether a consideration counts as a “right-making characteristic” on Raz’s view in effect depends on whether it is excluded by an exclusionary reason. Hence, if reasons are right-making essentially, exclusionary reasons do function as canceling reasons.

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15. See Raz (1989, pp. 1159–60, 1990, pp. 185–6). Raz also seems to be saying that an action of this type is a “mistake” from an ex ante perspective and “fortunate” from an ex post perspective (ibid.). I choose here to ignore this aspect of his view. 16. There is also another complication. I have linked reasons to act in the weak sense to value, but we might want to distinguish between the value of actions themselves and the value of their consequences, and tie reasons to act in the weak sense to the latter only. Returning to the case of A and B, we may want to say that it is indeed better that B dies and the others live than the other way around, but that all the same A’s act of killing B is worse than his not doing so. In this view, then, excluded reasons (in the weak sense) are not relevant to the value of actions, though they may be relevant to the value of the consequences of these actions. I cannot discuss this possibility further here. 17. Also cf. Moore’s notion of “justificatory” exclusionary reasons (1989, p. 857). 18. Cf. her notion of an “irrelevant good” (2007, p. 62). 19. There is also a question about the relationship between exclusionary reasons and enforceability. While I realize that I have likely conveyed the impression that these are logically independent notions, I am in fact unsure about their relationship. I prefer to leave this question aside, though, as it does not seem central—except for noting that if the two are indeed independent, then we have at least the possibility both of non-enforceable reasons accompanied by an exclusionary reason and enforceable reasons not so accompanied. Whether reasons of either of these two kind should be dignified with the label ‘obligation’ is unclear. 20. It is common to conceptualize the benefit/choice debate as being about the nature of relationality. See, e.g., Waldron (1984b), Jones (1994, p. 26), Kramer (1998b), Sreenivasan (2005, 2010). However, on an alternative construal, that debate is instead about the function of claims (or rights generally). For this view, see, e.g., Edmundson (2004, chap. 7), and Wenar (2015). I will ignore this latter option, as I find talk of the “function” of (moral) rights unhelpful. I should also note that the choice and benefit theories are sometimes presented as accounts of who has a claim, whereas I choose to interpret them rather as accounts of what it is to have a claim. Strictly speaking, though, “who” accounts follow from “what” accounts, the latter being more fundamental. 21. This is a bit misleading, since the benefit theory, but not the choice theory, also tells us something about why there is a requirement in the first place. (Cf. Hedahl (2013, p. 5).) 22. Cf. Waldron (1988, pp. 79–94). I will have a good deal to say about Raz’s theory. 23. Cf. Rainbolt (2006, pp. 99–111), C. Wellman (1985), Sumner (1987). 24. See Darwall (2006, 2012) and Skorupski (2010, p. 310ff). I get the term ‘demand theory’ from May (2015), who contrasts this account with a “control theory.” The demand theory differs from the choice theory in that the claim holder is the one who gets to “demand compliance” with the requirement, where demanding is not the exercise of a power. I will be speaking frequently about “commands” (if not “demands”) in this book, but I will understand these as exercises of a power. I make some pertinent remarks in subsection B. 25. See Wenar (2005a, 2013a), Sreenivasan (2005, 2010), Rainbolt (2006). Among the “others” we might perhaps count Cruft (2004), though it is also possible to classify his account as a version of the interest theory.

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26. On this matter, see May (2015, p. 524), with which I am in agreement. 27. The version of the benefit theory offered here is plainly inadequate, and is used mainly for illustrative purposes. The condition stated may be necessary but is not sufficient. See, e.g., Kramer (1998b, p. 62). The standard response to this problem is to strengthen the benefit theory to refer to the “intended” beneficiary (that was Bentham’s view, as interpreted by Lyons (1969) and Hart (1982)). This proposal only works for legal claims, though, as there are no “intentions” behind moral claims (promise claims excepted). The question of how to modify the benefit theory to fit moral claims need not concern us here. 28. Contrast C. Wellman (1985, p. 148), who distinguishes between a power and a mere “ability,” which does not presuppose intent. 29. See Cruft (2006) for relevant discussion. 30. Hedahl (2013) suggests that the power of waiver is an instance of a broader power to prioritize between claims, which amounts to an ability to determine the strength of a given claim (within certain limits). In particular, then, to waive a claim is to assign strength zero to it (ibid. p. 24). This proposal seems fair, though I will not make much use of it. I cannot discuss the more ambitious claims Hedahl makes on behalf of the notion of prioritization. (I will address the strength of claims in Chapter 7.) 31. To clarify, when I talk about rights as “power-generated” I mean to refer only to rights that exist in virtue of an exercise of a power in the strict sense that does not include “default commands.” 32. The exchange between Wallace (2007) and Darwall (2007) is relevant here. 33. For that matter, it is equally disrespectful to treat someone as unable to receive promises and thereby acquire a claim. Strictly speaking, obligating oneself is not something one can do by oneself. The promisee also exercises a kind of power—or perhaps we should say that promisor and promisee jointly exercise a common power (cf. Gilbert 2006, chap. 7). 34. Here I use ‘power’ in the loose sense that allows for default commands. 35. To clarify, I will address only the relationality of requirements. If there are indeed relational reasons that are not requirements, as I (implicitly) allowed in subsection A, the nature of their relationality will have to remain unclear. 36. See, among others, the references cited in section A. For a general defense of this “extensional” approach, see Wenar (2008). For a skeptical treatment, see Kramer and Steiner (2007). 37. See Raz (1986, p. 166). I have replaced Raz’s ‘right’ with ‘claim’ and ‘duty’ with ‘requirement.’ (Possibly Raz does not demand that duties be enforceable, though it is quite clear that they involve exclusionary, or “pre-emptive” or “peremptory” reasons. See section 2.) I have also taken the liberty of simplifying Raz’s view in one important respect. For he adds the further condition that the creature with the interest must be capable of having rights (which in turn requires that its well-being be of ultimate value). I am inclined to think that it is not adequate simply to add this condition. It must also somehow help explain why the first condition is satisfied. For a development of that charge, see May (2012)—though I would not appeal to the examples he adduces against Raz’s original formulation. 38. According to Raz, an interest is a sufficient reason for a given claim if it figures essentially in “a sound argument” for the existence of the corresponding requirement (1986, p. 181). However, I find this account, and indeed perhaps the notion of a sufficient reason which it is meant to explicate, unsatisfactory in the present context, as it does not preserve the “unidirectional” nature of the grounding relation. A “sound argument” could go from A to B, even if A holds in virtue of B.

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39. Rather similar accounts of relationality have been offered by Ross (1930, p. 49) and Rainbolt (2006, p. 118). The latter is out to analyze the general concept of a right. He would deny that the criticisms I offer in the text are effective against his proposal thus understood. See (2006, pp. 119 and 197, respectively). I state no view on the matter. Cruft (2013, pp. 206–7) identifies a category of accounts of directedness in terms of “individualistic justification,” which seem to correspond to the grounding account. (I will return to this idea in 3.2.) 40. I will consider possible counterexamples to this constraint (and indeed to the weaker one) in 3.2. 41. Strictly speaking it is questionable whether the formula I quoted from Raz supports this interpretation of his view, as that formula says nothing about the content of the associated requirement. But elsewhere he offers other formulations. In particular he suggests that the requirement is to “protect or promote” the relevant interest (ibid., p. 183). 42. That is not to say that the benefit theory is consequentialist. I will return to the relation between these two views in 3.1. 43. See Pettit (1989). I should also mention Rainbolt’s distinction between “protection” and “justification” versions of the choice and benefit theories (2006, pp. 86–7), but I will not comment on the precise relationship between that distinction and the one in the text. 44. In the preceding I draw on Scanlon (1998, chap. 2). 45. Kamm explicitly denies that Raz has provided a sufficient condition of a directed requirement (2007, p. 244). But she also seems to be denying the possibility of any definition of relationality in terms of prior concepts (see especially the paragraph at the bottom of p. 244 and the top of p. 245; also cf. Thompson (2004, p. 350n23)). If that is indeed her view, I obviously side with Raz against her. 46. Raz responds to something like this line of thought. I address his remarks in 3.1. 47. See, e.g., Darwall (2012, p. 350). 48. By contrast, the definition need not be taken to imply the explanatory priority of the consequent. (As I noted in 1.4., conceptual priority does not entail explanatory priority.) That is to say, there is no demand that the antecedent be true because the consequent is. 49. For this point, see, e.g., May (2015, p. 528). 50. There seems to be a parallel here with Humberstone’s (1997) distinction between “analytic” and “inferential” circularity, though the kinds of case he has in mind in which the former obtains without the latter seem different from the one I discuss in the text in which there is conceptual priority without epistemic priority. 51. A possible parallel is P. F. Strawson’s view of responsibility ascriptions (1962). Also cf. Darwall (2006). 52. It seems perfectly open to us to hold that neither side has explanatory priority in the two biconditionals. Rather, both sides are true in virtue of certain facts about the claim holder Y and the obligation bearer X. 53. For this charge, see Van Duffel (2012) and Hayward (2013). 54. The best-known proponent of animal rights is Regan (2004). Raz’s view allows for, but does not entail, animal rights. The same is true of the value view, as long as these rights hold in virtue of value-making properties of animals. By contrast, Darwall’s view that claim violations give rise to reasons to resent as a conceptual matter seems to imply that the debate is not genuine (2012, p. 350).

3

In Defense of the Value View

In the preceding two chapters I have described the value view and outlined some of its implications. Much of the evaluation of that view, as of any philosophical thesis, hinges largely on the plausibility of its implications. Naturally I hope that what I have said thus far about what follows from the value view will strike the reader as reasonable. The purpose of the present chapter is to amplify my defense of the value view. I will do so in two main ways. In the first section I will contrast the value view with alternative views of rights and explain why I reject these contenders. I will offer little in the way of positive argument in support of the value view, though I will say something. In the second section I will respond to a number of objections to the value view.

1.

Alternative Views

As I have been saying, the value view is about the ground, or justification, of rights. Hence the same is true of the alternatives. According to a recent taxonomy, there are three basic views about the justification of rights current in the literature.1 (i)

The Status View

In this view, persons have rights simply in virtue of being persons, or agents. These notions are themselves defined in terms of a certain constitutive capacity, that of autonomous choice. As a being with that capacity, a person has a certain worth, or status, and can demand certain forms of treatment from other agents in virtue of that worth or status. We give voice to this kind of view when we say that some treatment is “unworthy of a human being.”2 (ii)

The Consequentialist View

In this view, the claim that a person has a moral right to some form of treatment amounts to the claim that according him the corresponding legal

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(or at least conventional) right has optimal consequences. But there are no rights independently of the consequences of their social recognition.3 (iii)

The Contractarian View

In this view, persons’ rights are determined by the content of a hypothetical agreement in a state of nature, in which self-interested parties specify the principles that are to guide their future interactions. Again there are no rights independently of that hypothetical agreement.4 It is questionable whether this tripartite classification is exhaustive. One type of view of rights, or least about human rights, which has been influential in recent years and which seems distinct from the listed trio, is the so-called “political” conception, according to which “the distinctive nature of human rights is to be understood in light of their role or function in modern international political practice.”5 The most prominent advocate of such a view of human rights is Rawls, who tells us that “[h]uman rights are a class of rights that play a special role in a reasonable Law of Peoples; they restrict the justifying reasons for war and its conduct” (1999, p. 79). It is not clear, though, whether the political conception should be understood in the first place as an explication of the concept of a right to which the previous three views are wedded. For one thing, the central notion of relationality seems to have dropped out. The political conception seems simply to identify a set of particularly important moral demands. More importantly for present purposes, Raz’s view of rights, discussed in 2.3C, does not seem to fit properly under any of the previous three headings. While it has something in common with the consequentialist view, it also differs from the latter in one crucial respect. For it maintains that the individual’s interest by itself suffices to justify another’s requirement. (For an important qualification, see the following discussion.) It is in that respect individualist, unlike consequentialism which is collectivist. Hence we have what we could call: (iv)

The Individual Benefit View

Of these four, the status view is plainly compatible with the value view, but neither entails the other. Hence the two are not obviously in competition. What the value view adds to the status view is an explanation of the relation between having “status” and having “value” (i.e., that they are the same thing), and that a right simply is a value. The value view also makes significant use of the notion of exclusionary reasons, which the leading advocates of the status view do not, but their positions do not seem incompatible with that notion. At the same time, the status view goes significantly beyond the value view in two crucial respects. First, it adds precisely the key idea that persons have rights in virtue of their

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agency. Second, it adds the (problematic) normative idea that persons are inviolable. Part II is devoted to the view that results if we combine the value view with the first of these ideas. I will also address inviolability in Chapter 8. If there is a disagreement between the status and value views, it concerns the precise relationship between the right holder’s value and his rights. The value view takes a simple and straightforward line: a right is a value. By contrast, it is frustratingly difficult to pin down what relationship the leading proponents of the status view have in mind. Quinn actually does not mention a person’s value at all in his 1989 paper. While I find it hard to believe that he would deny that this value exists or that it plays an important role in accounting for rights, the exact nature of that role is obscure.6 Kamm does frequently talk about rights as “expressing” a person’s value.7 (Occasionally she uses the term ‘reflect’ instead, probably interchangeably.) What exactly is this rather abstract relation? I am not sure, but note that there is a simple interpretation which makes reasonably good sense of what Kamm actually says. This is that the expression relation is simply the correspondence relation between rights and obligations. That is, the person’s value corresponds to (is “expressed in”) certain reasons to act, and possibly also exclusionary reasons, belonging to other persons. If this is the way to understand Kamm’s discussion of “expression,” there is no conflict between her view and the value view. If not, on the other hand, it is not clear to me what to make of her notion. Nagel’s position is even less explicit in this regard. Still, in perhaps the only place where he explicitly addresses the value/rights relation he tells us that “[rights] embody a form of recognition of each individual’s value” (1995, p. 87). That does sound incompatible with the value view. It would make perfect sense if a right here is understood as a conventional right, in which case the recognition relation holds, strictly speaking, between the value and the agent(s) responsible for having instituted the right, or perhaps for upholding it. However, the right of which Nagel is here speaking is moral, so that reading is not possible. However, the interpretation I suggested on Kamm’s behalf works here as well: the “recognition” could simply be the correspondence between the individual’s right and other people’s reasons. If so, Nagel’s view and mine do not conflict either. Of the three views that clearly do compete with the value view, I have already had something to say about the individual benefit view, and I will return to it shortly. My concern at present is with the other two views, consequentialism and contractarianism. In the first place I note that they are not compatible with the value view. Simply put, that is because they deny that the features of persons that ground their claims are valuemaking. Consider consequentialism first. The fact that (roughly) a general practice of treating persons in my position as having a certain claim has optimal consequences does presumably identify a feature of mine, but it would be bizarre to suggest that this feature makes me valuable. Indeed,

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some consequentialists are not even able to allow, consistently with their overall view, that persons have value. Similar remarks apply to contractarianism, the main difference being that it justifies the relevant practice by appeal to the interests of all parties taken individually, rather than the aggregate good. Again, that justification may appeal to a feature of the purported claim holder, but it in no way renders him valuable. Now, the reason why I prefer the value view to these alternatives is that they leave out precisely that element that the value view says is central to our understanding of claims and rights, namely that these are values accruing to persons (or value properties), or that they exist in virtue of value-making properties of these beings. Of course, a consequentialist or a contractarian may well deny that this value exists in the first place. As I have already indicated, I will not defend this assumption. Hence I cannot offer any very profound criticism of the alternatives either.8 What I can do is to display the inadequacy, as I see it, of the alternatives in a concrete example. The case could of course also serve as an “extensional” counterexample of the type I have already mentioned and said I would not rely on unless it is uncontroversial (2.3C). While the following example I describe perhaps is not overly controversial, I do not take it to carry much weight on its own. Again, its main purpose is to illustrate a theoretical point. The kind of case I have in mind is one in which there is a discrepancy between the purported claim holder’s value and the usefulness of attributing legal rights to him.9 Suppose, as is not outlandish, that the members of a certain society would all benefit overall (individually and in the aggregate) from there being in that society a small group of specially privileged persons. Call them the “Royal Family.” We may suppose that they “represent the nation” and help create a largely beneficial sense of togetherness and cohesion within the society, and help its members lead more fulfilling lives by reminding them of their rich and glorious traditions. Perhaps they also generate income by attracting tourists from abroad. Yet it would be odd to think of the Family’s various privileges (exemption from paying taxes, say) as “rights” in any interesting sense. Contrast what we would (or at least should) say if the government were suddenly to abolish one of these privileges with our reaction if some miscreant were to punch one of the Royals on the nose without provocation. The latter action is the violation of a claim, the former is not. Here the value view offers a more plausible explanation: we refuse to treat the Royal Family’s special privileges as claims or rights precisely because they do not match any special value that accrues to just these individuals. Nor, for that matter, are they derivable from some other claim that all persons have, in conjunction with facts about the Royals’ special situation.10 It will likely be objected here that examples such as these are effective, at best, against a rather narrow class of theories. More generally, it could be suggested that moral rights exist in virtue of the instrumental value of legal or other conventional rights. Such instrumental justification could

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take any of a huge variety of forms. This is certainly true. And the counterexample described previously need not be effective against other such instrumentalist justifications. For instance, a philosopher who ranks the equal distribution of welfare very highly, and sees legal rights as justified (if at all) in virtue of their contribution to that goal, would hardly favor the special privileges of the Royals. Now, it may well be possible to design similar counterexamples against that and all other instrumental theories. As before, though, the main function of any such counterexample is to illustrate a theoretical point, namely that the right exists in virtue of valuemaking features of the right holder. I understand that all instrumental theories of rights are incompatible with that general idea, and I reject them all for that reason. I turn now to the individual benefit theory (henceforth: IBT), which I have attributed to Raz (see 2.3C). This view is distinct from a straightforward consequentialist account in that it does not proceed indirectly by way of a justification of legal claims. But, and as noted in 2.3C, it shares with the consequentialist view the notion that the reasons corresponding with claims are reasons to promote valuable states of affairs—and in particular states of affairs having to do with the claim holder’s well-being. First, though, a qualification is called for. I have said that Raz’s view is distinct from consequentialism because he holds that the individual’s interest by itself suffices to justify another’s requirement. However, this characterization of Raz’s view actually does not fit everything he says, for he also maintains that many rights (freedom of speech, for instance), are justified rather by appeal to the general interest (1986, p. 179, 1992)—in possible conflict with his “official” formulation (cf. Kamm 2007, p. 245). Here I will disregard this aspect of his view. If need be we can limit our attention to those cases that Raz will hold to conform with his official formulation.11 In 2.3C I criticized Raz precisely for his being unable to account for our sense that a claim violation wrongs the claim holder as a person, a fact that the value view by contrast can explain. In developing that criticism, it is natural to consider also whether IBT can give plausible accounts of specific generally acknowledged rights. One could try arguing either that the satisfaction of (at least some of) these rights does not necessarily serve to benefit their holders, or at least that their being beneficial does not explain why they exist. Kamm (2007, pp. 246–7) has pushed this line on the status view’s behalf. While some of the rights she discusses may not count as “generally acknowledged,” her treatment of freedom of speech is instructive: “The right to speak freely may simply be the only appropriate way to treat people with minds of their own and the capacity to use means to express it” (2007, p. 247). As I would put it, by giving people the opportunity to speak, we respect their value. This value belongs to them in virtue of certain properties—presumably (at least) the ones Kamm mentions—that are also the ground of their right (though, again, the value

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view does not identify the properties). We might try going further, suggesting that people are owed this respect even if they do not, typically, benefit from their freedom of speech. If so, the conflict with IBT would be starker. There is a problem here, though, as one of the value-making properties that we should respect is precisely the ability to use one’s freedom wisely, and so benefit from it, at least up to a point. That may be why children’s freedom of speech is less extensive, for instance. If so, there may be no conflict with IBT of the stark type mentioned. Yet it could still be true that the ground for our obligation to let others speak, and prevent others’ interference with that speech, is precisely the value-making properties of the speakers, including their ability to use it wisely, rather than the fact that they benefit from our so acting (at least typically). Now, Raz is not unheedful of the siren song of something like the value view, and he does make some remarks arguably aimed at resisting its allure. He concedes that rights theorists often talk of the importance of “respecting persons” and he expresses the idea behind such talk as follows: “rights express the right-holders’ status as persons and the respect owed to them in recognition of that fact” (1986, p. 188), which of course sounds a lot like Kamm’s view, and indirectly also a bit like the value view. Strikingly, though, he at least opens for the possibility that there is merely a verbal difference between the view stated in the quote and IBT, on the grounds that the demand to “respect persons” amounts to a demand to “give appropriate weight to their interests,” a demand in turn resting on a corresponding interest that persons share in having that demand met (ibid.). He further equates giving proper weight to a person’s interests with respecting his rights, so the interest just mentioned is, in effect, an interest to have one’s rights respected (ibid.). There is a merely verbal difference, then, because the demand that one be treated with the respect due a person turns out to be “based on an interest” after all (meaning here, it seems, simply that meeting the demand will satisfy that interest). What are we to make of these remarks? There is obviously something odd about an interest in having others give proper weight to one’s interests. Raz acknowledges that “logically it is a special kind of interest. It is not just one interest people have alongside others” (ibid.). But what is especially puzzling is what role it plays in Raz’s account of claims. If this purported interest is indeed to help ground rights, we must be able to tell what giving “proper weight” to an interest amounts to independently of any information about which claims persons have. But how could we possibly do that? It seems, then, that there is a problem here for IBT, for the “logically special” interest does not play an explanatory role. If I have a “right” that others give proper weight to my interests, then I do not have that right because of any interest.12 If anything, we attribute the interest on the basis of the right, rather than vice versa. Further, one is led to ask what the difference is supposed to be, in Raz’s view, between being wronged and simply having an interest frustrated.

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Presumably it cannot be that in the former case one’s interest in being respected as a person is also frustrated. That is, after all, just another interest, “logically special” or not. Also, if Raz answered the question by simply pointing to the fact that some interests are sufficient reasons for holding others to be under a requirement whereas others are not, then the notion of respecting persons seems to have no role to play. That would undermine his case for holding that there is merely a verbal difference between IBT and the “respect for persons” view of rights. It seems true, as far as it goes, that when a person is wronged he is not respected as a person. What we would have to add to that idea, apparently, is that his value as a person is not respected. That is, we have to add something like the value view. There is another problem for Raz’s view worth mentioning. This is that he does not explain why the exclusionary reasons constitutive of obligations exist. That is, while he tells us that a right exists only if someone’s interest is sufficient for the existence of such reasons, he does not explain what it is about a person’s interests that could make it the case that another has an exclusionary reason not to act for reasons to act contrary to that interest—as opposed to a mere first-order reason to satisfy the interest. This problem is all the more striking in light of the heavy use Raz makes of the notion of exclusionary reasons.13 To be sure, I have already conceded that the value view cannot account for such reasons, either, but I have also held out the hope that we can provide the requested explanation by strengthening the value view into the agency view, to be discussed in the next chapter. That concludes my treatment of alternative views. I will now reply to a set of objections to the value view.

2.

Objections and Replies

Objection: The value view is inadequate as an account of rights, for it does not tell us which rights persons have, nor how to determine how important different rights are. In other words, we cannot use it to determine a person’s duty (i.e., what he ought morally to do, all things considered). This is a very serious flaw, since certain implications for duty are arguably essential to the very notion of a moral right, and must therefore be accounted for by any adequate theory of rights. Reply: This objection will largely have to be conceded. As I have already made clear, it is not until we supplement the value view with an account of why persons (and possibly other beings) have the kind of value constituted by their rights that we will be in a position to answer these central normative questions. There is admittedly a further question of how precisely we are to go from any such specification of value-making properties to an account of rights. In Part II we will become familiar with the agency

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view, which is a version of the value view which does provide the requisite specification. There I will also attempt to show how we can arrive at a reasonably substantial list of basic rights from that specification, and that it is possible to account for the various normative features of rights that have been held to be essential to the notion. A caveat is called for, though. A certain degree of vagueness in any description of our basic rights is inevitable. We will at times be forced to appeal to “intuition” or “judgment”—if not to arbitrary stipulation. We treat this “fact” about rights as no less “objective” than the ones we can justify by appeal to principles. This is quite a familiar phenomenon in our moral lives. It is less obvious what to make of it, and I cannot settle that issue here. But at any rate we should allow that there could be facts about rights that outstrip our ability to articulate them in general terms. This observation leads to another worry, though, namely that appeal to a right holder’s value is simply too vague to yield rights with the particular detailed content we think that moral rights possess. Wenar (2005b) has pushed this line against the status view, and in particular against Nagel’s treatment of the freedom of speech (1995). For instance, Wenar suggests that the status view, and presumably the value view, could not explain why the “right to caricature public figures” is much broader than the corresponding “right to caricature private citizens” (2005b, p. 190). He suggests that we need to appeal to an instrumental account of rights to accommodate the difference. The criticism here, I take it, is not concerned with the question of justifying the peculiarities of people’s legal rights. The value view, or the status view, need not deny that a variety of considerations can be relevant to that task. Rather, it must be about the content of our moral rights.14 As I have just suggested, though, in many cases the contents of these rights will be difficult to determine and is likely to be subject to significant disagreement (as the case of Nagel and Wenar on freedom of speech itself amply illustrates, by the way). The value view is more usefully seen as answering the question of why there should be such a thing as freedom of speech in the first place.15 We must also bear in mind that the notion of a right with which the value view is concerned, though certainly important, by no means exhausts our reasons for action, or even those we might want to call ‘moral.’16 We use this notion to identify ways of treating persons (and possibly certain other beings) that wrong them, not to give a complete answer to the question of what it is right or wrong to do. Even equipped with as comprehensive an account of such “wronging” treatments as we could realistically hope for, there would still remain many questions about how we should arrange our personal lives and our societies, including how our laws should be written. Surely instrumental concerns are of great relevance in answering these questions. For instance, while the value view—or, more likely, some specification of it, such as the agency view—might be able to tell us that all persons, or at least all persons with certain qualifications, have a right

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to political participation, it is unlikely to tell us which particular form this participation should take. For one thing, it will not tell us whether citizens should get to vote every four years or every three years. That is not to say that the choice between these two arrangements is unimportant, or morally irrelevant, but rather only that rights cannot help us in making it. Indeed, it is only to the extent that the state’s choosing one form of participation over another could be said to wrong its citizens that the notion of a right, and hence our theory of that notion, becomes relevant at all. Thus, it might well be that allowing citizens to vote only every twenty years does wrong them, and the value view, or at least some specification of it, should therefore be able to account for that fact. But there is at least no compelling a priori reason for thinking that it cannot. Objection: In one respect the value view is not vague, and that is in its commitment to the value account of relationality, and indeed to the weaker value constraint. But that is no advantage of the view, as this constraint is too strong. Indeed, the same could be said for the weaker constraint formed by the left-to-right component of the grounding account of relationality from 2.3C (that X’s requirement is to Y only if it holds because Y has a certain feature, or set of features). Cruft (2013) calls rights that violate this condition “non-individualistically justified.” Among them he identifies those that also troubled Raz, and made him qualify his view in the way described in the previous section (by treating the general good as part of a requirement’s justification), such as for instance the case of a parent’s right to child benefit payments.17 As the value view cannot account for such rights, it is inadequate. Reply: In fairness, Cruft’s aim is not to provide counterexamples against the thesis that all rights are, in his term, “individualistically justified.” It is rather to look for a justification of the principle that all violations of a “directed duty” disrespect the person to whom the duty is owed (p. 202). Such a duty may, but need not, correspond to a right; that depends on whether it is enforceable (p. 209). However, he seems also to endorse the weakened “converse” principle that any act that disrespects another person also infringes (but does not necessarily violate) a directed duty to another (p. 203). And he does hold that in some cases, such as that of denying child benefits to a parent, an action disrespects a person, though the duty then infringed (granting for the sake of the example that it is enforceable) could not plausibly be grounded in properties of the right holder, let alone value-making ones. So, if only incidentally, Cruft does present possible counterexamples to the value view. Now, Cruft does not tell us exactly what is involved in an act’s disrespecting, or showing disrespect to, another person. The question is especially pressing in light of his belief that we can disrespect another by merely infringing a duty to that person. Hence we could not, as might

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otherwise be tempting, account for disrespectful treatment by saying that it calls for resentment in the person to whom the duty is owed. For resentment is not generally in place when a duty is justifiably infringed. In Cruft’s view, it can be “morally correct” to disrespect a person (p. 204), and surely then resentment is not called for. However, it is not clear, at least to me, how we are to account for disrespect, or even to tell when it occurs, if we cannot link it to some warranted emotional reaction. Possibly we could identify some “milder” reaction that would be in place even in cases where disrespect is morally correct, and which could serve at least as a criterion of disrespect. Lacking such an alternative account, I will limit myself to cases in which the disrespect is clearly linked to resentment, and so in practice use that link as a criterion. It is also fair to note that Cruft himself is uneasy about the counterexamples. He writes “it is . . . compelling to think that disrespecting a being must involve failure to respond to something of non-instrumental importance that is genuinely about that being, not about the common good or something else” (p. 214)—though in the end he finds himself unable to identify the important thing in question. I would argue that it is possible to account for the disrespect in at least something like the way Cruft has in mind, provided the previously mentioned link with resentment is preserved, though it is unclear whether rights are (necessarily) involved. We may begin by noting that the problem cases Cruft considers tend to involve conventional rights. As he also says, they belong to people “qua” playing a certain social role (such as parent).18 He also says, obscurely, that infringing such a right disrespects persons “qua” parent or boss or whatever. Now, the fact that the right infringed is conventional does not by itself mean that the infringement does not call for resentment (or is not disrespectful). Yet at the same time it is obvious that the infringement of such a right does not automatically make resentment appropriate. Helping a slave escape does not warrant the owner’s resentment, to take an (admittedly extreme) example. So when resentment is called for upon the infringement of such a right, what is the explanation? My proposal is that when resentment is due in a problem case, in which individualistic justification is not possible, it is because the decision (often, if not always, the state’s) communicates an unfair judgment or evaluation of the person. It is, then, a form of what Feinberg (1974) calls “judgmental” injustice.19 Consider the case of child benefits again. Suppose the state decides to deny some particular parent child support. It certainly does not sound odd to suppose that one could resent such a decision. Yet a decision by the state to abolish child support altogether—still less, presumably, a refusal to institute it in the first place—does not call for resentment on anyone’s part, except possibly on the children’s behalf, which is another matter. It seems that what is objectionable, and rankles, is being singled out and somehow branded as an inferior parent. (If the failure to pay was due to error, it does not seem disrespectful.) That the state, which

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purports to “speak for all of us,” does the branding only makes matters worse. Note also that something similar, if perhaps less stark, could be true also of failure to provide benefits to which one indisputably has no right. Hence, I would deny that there is a general parental moral right to child benefit payments, even though the refusal to accord such payments on a particular occasion can, in a way, wrong a parent. The previous analysis of the child benefits case strikes me as appealing. That is patently not to say that it is adequate to all problem cases of apparent rights lacking individualistic justification, and I will not pause here to inquire into its prospects to serve as a general account. A more pressing question is whether this proposal can be reconciled with the value view. If it cannot, its prospects are in any case not relevant at present. The ground of a person’s general claim, if that is what it is, not to be subjected to unfair evaluation of the kind involved in the child benefits case is indeed obscure.20 Still, in a given case no doubt value-making properties of a person, such as that of being a decent parent, play an essential role in accounting for the supposed claim infringement. It is precisely having these value-makers denied, or possibly falsely and invidiously compared with those of other people, that causes the resentment. Does their playing such a role satisfy the value constraint? That is not obvious. Perhaps the latter would have to be modified somehow to account for such a claim. Alternatively, though, we might allow that a person could be wronged, or perhaps simply unfairly treated, in ways that do not involve a claim infringement—but certainly relational reasons. There is much more to be said on this issue, but I will have to pass it by. (I will return to the possibility of wronging without violating a right in 10.4.) Objection: Rights cannot be values, pace the value view, for they are themselves valuable, and a value could not be valuable (Nietzsche to the contrary, perhaps). Reply: It is indeed common to speak of rights as valuable, but what are then usually meant are conventional rights, rather than (merely) moral ones. The value view can of course allow that conventional rights are valuable, both for their possessors and impersonally. However, it is not obvious that moral rights are in themselves valuable, in either way. It can obviously be good for a person, and impersonally, that his moral rights are respected, but the mere possession of a right that is not respected does not seem valuable. However, several philosophers have apparently asserted the opposite. Among them, interestingly, is at least one of the leading advocates of the status view, namely Nagel (1995). As I read him, he holds that the fact that persons have rights against certain kinds of ill-treatment itself has non-instrumental value, independently of any value accruing to the actual respect accorded these rights.21 It does not obviously follow that the rights

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themselves have value, but perhaps Nagel could maintain that they have value as necessary constituents of a valuable whole.22 While I would not deny that Nagel’s proposal, as stated, is ultimately incompatible with the value view, it would also seem that the intuition behind it could be formulated in a way that removes the conflict. Hence it is not clear that there is a deep problem here. For instead of attributing value to rights themselves, in the way we are now supposing Nagel to do, we could attribute the relevant value to the holders of these claims. The “inviolability” of which Nagel speaks could simply be an aspect of the special value of persons; to express it, there is no need to attribute value to rights.23 If we insist on identifying a valuable fact or state of affairs, that could be simply the fact that persons exist. That much seems compatible with the value view.24 Cruft (2010) defends a different proposal—though one he claims builds on the status view, and Kamm specifically (ibid., p. 449)—which also implies that rights are constitutive parts of a non-instrumentally valuable whole. In particular, this whole is a kind of relationship holding between all persons. Cruft calls this a relation of “fellowship.” It is essential to his view that a “universal community of fellows” consists of rights understood as moral relations, rather than merely the fact that these rights are respected—but also of other components, normative and emotional (pp. 457–8). While there are problems with this proposal, the main point at present is that it is again unclear why it requires us to attribute value to rights themselves rather than to their holders. After all, persons, with their peculiar value, are also essential constituents of the community of fellows. Objection: The value view may be adequate for a certain subset of moral rights, namely those belonging to persons in the state of nature (natural rights).25 But many rights presuppose a social context, such as for instance many political rights. A person in the state of nature does not have the right to vote, for instance. This is a problem as the value constituting the right presumably belongs to the person independently of social context. Property rights are of course also a problem in this respect. Reply: One way of responding to this objection is by denying its presupposition that “the value constituting the right belongs to the person independently of social context.” However, as noted in 1.3, the kind of value that figures in the value view is objective and this means that the relevant value of persons is independent in the way the presupposition has it. Hence the suggested reply is not available to me. Instead I appeal to the distinction between basic and derived rights.26 I made clear in 1.2 that the value view applies only to basic rights (or claims). Hence, the social dependence of derived rights is compatible with that view. Typically, at any rate, a derived right is justified only in part by the right from which it is derived (which need not itself be basic). Contingent social facts may also provide part of the justification, including facts about the law. It is

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hard to say anything at this level of generality about the ways in which rights can be derived, so it will always be possible to assert that a given socially dependent right is not basic. To defend the value view, then, we would have to consider every suggested candidate for the status of socially dependent basic right individually, to determine whether it is indeed basic, and whether, if so, it is also socially dependent. I will not undertake that project here. In any case, the value view does not tell us which the basic rights are. By the same token, then, we cannot at this stage defend the value view against the charge that whatever basic rights it yields are too “thin” or abstract to merit the label “rights.” We will have to return to that issue in Chapter 6, in connection with the value view. At present it is enough to observe that the objection is inconclusive at best. Objection: The earlier objection can be taken a step further. Some writers argue in a different way that at least some rights are socially dependent. O’Neill (1996, pp. 131–4) maintains (a) that claims presuppose identifiable obligation bearers and (b) that certain obligation bearers can only be identified if certain institutions are in place. In O’Neill’s view, apparently, (b) holds of all and only positive claims, such as claims to assistance in times of need. In her view, one could have such a claim only if there is some institution charged with providing one with that assistance, or at least with determining who should do so, and hence the claim could only be held against that institution, or against those it identifies as obligation bearers. There is, then, no universal obligation to render assistance. This position is not as such incompatible with the value view, as the latter does not imply that there are positive rights. Yet the value view would be inadequate if it could not account for such rights. Further, the value view implies that if some factor is relevant to whether a person has a claim, then it is also relevant to his value. O’Neill’s view implies that whether or not someone is officially charged with an obligation to aid a certain person is relevant to the latter’s claim. But it could not plausibly be taken to be relevant to his value. Further, her view is also incompatible with the value account of relationality (for either the simple or the complex case), if the latter is supposed to be applicable to positive rights. In her view, the conditions that this account specifies are too weak, as far as positive claims go, for they do not imply that the obligation bearer must be “socially identified.” Reply: In responding to this line of criticism it is necessary to begin with the distinction between general and particular claims, or rights.27 As the reader will recall, I made clear in 1.3 that the value view holds only of general rights. They, and not particular rights, are identified with values belonging to the right holder. By the same token, when I said just now in stating the objection that “if some factor is relevant to whether a person has a claim, then it is also relevant to his value,” I had in mind general

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claims. That thesis is clearly not true of particular claims. As should also be clear from 1.3, however, O’Neill’s premise (a) is not true of general rights. It is therefore natural to take her as denying that such rights exist. It is frankly not clear to me how substantial this disagreement is (as opposed to one about how the word ‘right’ is best used). I assume that O’Neill will agree that persons have value. What I have supposed is that when we attribute such value to persons, we are at the same time saying something about the reasons other people have for treating them in certain ways, and that at least with respect to some of these reasons, what we are then doing amounts also to attributing to people general rights. A more interesting issue, I believe, concerns the criteria necessary for a particular positive right to obtain, and thus the conflict with the value account of relationality. O’Neill’s premise (b) could be understood as proposing a necessary condition for such a right (and thus for its being relational). As I understand her, the condition is this: X could have a (particular) right against Y that Y provide X with some type of assistance only if Y is “officially charged” with the task—albeit in some rather weak sense of “officially charged,” as being the recipient of a promise is presumably sufficient.28 It seems to me that this condition is too strong, if only because I would insist that being the only one who can save a drowning person (at little cost to oneself) is sufficient for an obligation (rather than a non-directed requirement).29 Certainly no “official charge” is needed. At any rate, O’Neill offers no argument to the contrary. This case suggests a weakening of O’Neill’s original condition, like so: Y’s being under a positive obligation to X requires that there be something that identifies Y rather than others as the obligation bearer. The fact that Y is the only one that could help X might suffice to meet this condition. Let us call this requirement on an obligation the “specification condition.” That condition, too, is incompatible with the value account of relationality. Yet it too seems subject to counterexamples like the one described previously. Consider a case in which you are in need of rescue from some serious harm and several people could easily help you (individually), yet no one does.30 We could perfectly well say that all of these people violated an obligation to you. A good indication of that fact is that it would make sense for you to resent all of them, severally, for their failure to aid. To be sure, the exact content of their obligation is subject to further specification. For one thing, you might not want them all to try to save you at the same time. Maybe then they would only get in each other’s way and make matters worse. But they could all have some obligation to aid, and therefore the specification condition, which demands a unique obligation bearer, is unacceptably strong. Now, in light of the example just given it is possible to qualify the specification condition. One could take it instead to demand that either the obligation bearer or the claim holder (who need not be a single individual) be uniquely specifiable. In that case, each of the agents in the previous

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case could have an obligation to you. Yet some apparent obligations do not even meet this weakened condition. I have in mind something like the following. X is one of several members of a group all in need of rescue, while Y is a member of a group of people each of which is individually able to save at least some (but not all) members of the first group. To simplify, let us suppose that each agent can save exactly one patient or other. In this case the weak specification condition is not met. It could be argued, then, that there are no obligations in it: though each agent is no doubt under a requirement to rescue as many as he can, that requirement is not directed. Note that the actual case of world poverty, which animates O’Neill’s treatment of rights, is in central ways a situation of this type. However, I would argue that there are directed requirements present even in such situations, and hence that we should reject even the weak specification condition. To see why, it is helpful to consider first a simpler variant of the case, which does meet the weak specification condition. In that case, Y is the only agent present, able to save only one of several people in need. I would maintain that Y’s duty in this case is to save one person, and that if he fails to do so he has violated his obligation to each of the people he could have saved. Again we may note that it would then make sense for all of them to resent him. All could say: “you could have saved me, but you chose your own comfort instead.” Turning now to our original case, we find that it is in effect a combination of the one we have just considered (one agent, many patients) and the one discussed earlier (many agents, one patient). Therefore we should equally be able to combine our analyses of the obligations present in it. That is, each patient X in this “many agents, many patients” case can point to every agent Y who failed to live up to his duty (to save one) and complain that Y has violated an obligation to X. Each patient could turn to each agent and say: “you could have saved me, but you chose your own comfort instead.” And so there are plenty of obligations present in this case.31 I end this discussion by stressing once again that the value view does not entail that there are positive rights. It has not been my purpose in this brief discussion of O’Neill’s position to assert even that there are requirements to aid, still less that all such requirements (if they exist) are directed. I have been concerned only with O’Neill’s argument, unfriendly to the value view, that obligations to aid presuppose institutions. Objection: The value view cannot account for the deontic status of an obligation. It is not simply one reason for action among others. The value view falls back on the general idea that if a thing has value, there are reasons for responding to that thing in certain ways, but that general idea is insufficient to characterize an obligation. Granting that it need not be a duty, in the sense defined in 1.4, yet there seems something especially compelling about it that cannot simply be extracted out of the idea of value and the reasons we have to respond to it. Consider again the example of

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artworks, which has recurred several times in the previous pages. While you no doubt have reason to respond to such objects in a way that befits their value, and it may itself be a good thing that you do, perhaps few would say that you are “required to do so,” or “ought” to do it, or that failure to do it would be “wrong” or “impermissible.” But we would typically say these things about actions that you are obligated to do. So something more seems to be needed. Reply: I have already responded to this question, but it will be useful to gather together the things I have said in one place (and add a few more). In the first place, then, we need to be clearer about what this “especially compelling” nature of obligations amounts to. On a straightforward view, what makes certain actions “compelling” is simply that the reasons for doing them are so strong, at least compared with whatever reasons tell against them. However, I made clear in 2.2 that this is not what the value is saying. As I noted there, the (first-order) reasons against an obligatory action can be stronger than those for it. Instead, as we also saw in 2.2., the value view implies that claims and rights, or rather the obligations corresponding to them, consist in part of exclusionary reasons—though we have admittedly not as yet seen any explanation of the ground of these reasons, it is at least clear that they correspond to the special kind of value that right-holding beings possess. Reasons of this type provide an obvious way in which claims can count as “compelling,” as I also noted in 2.2. Further, exclusionary reasons can also be connected with powers, as we saw in 2.3B. As I noted there, a power to obligate others is an ability to generate exclusionary reasons. The value view identifies such a power with a value; it is only that this value is of a special kind (in part) because it corresponds to exclusionary reasons, rather than (simply) first-order ones. Hence, insofar as the challenge to explain the “compelling” nature of rights involves accounting for the right holder’s authority, the value view can do that, at least in part.32 Another obvious way in which rights can be regarded as compelling is in their being enforceable, a property I have acknowledged previously. I noted also that some non-relational reasons to act can be enforceable. Returning to the objector’s example, it may well be that a person is under a non-relational requirement not to destroy a valuable artwork, and that others are therefore permitted to enforce that requirement. This observation suggests that the value view could easily account for enforceability, simply by appealing to the value of right holders—as indeed could philosophers who deny that rights exist. The “compelling” character of rights might also be elucidated by appeal to another idea sometimes broached, that a right holder is (typically) justified in demanding performance of the obligation holder.33 But what is it to “demand” something (as opposed to merely request it)? The answer

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is admittedly not clear.34 To be informative, any definition of the notion must not make use of that of a right or claim. That would seem to rule out distinguishing a demand by saying that non-compliance with a demand, but not non-compliance with a request, calls for resentment. For, as we have already seen, it seems hard to account for resentment without in turn bringing in the notion of a right. Perhaps we would have to link demands instead with justified enforcement, in which case the appeal to justified demands collapses into the previous proposal. As before, the value view could then explain the difference. However, until the notion of a demand is made clearer, it is hard to be certain. (I will pursue the link with enforcement in 8.2.) The connection with resentment, just mentioned, is another respect in which obligations could be described as especially “compelling,” compared with other reasons to act. As suggested in 2.3C, perhaps it is definitive of obligations that a breach of an obligation calls for resentment on the part of the holder of the corresponding claim, and indeed conversely.35 But now, and as I touched on in 2.3C, the value view accounts well for the role of resentment. It is natural to see resentment as an indirect response to one’s own value, triggered by another’s wrong. To fail to resent the wrongdoer amounts to a failure to recognize one’s own value and that others have reason not to treat one the way this person did. Just as a person’s value corresponds to reasons others have to treat him in certain ways, where at least some of these reasons are obligations, it also corresponds to reasons the person himself has to react emotionally to those who do not treat him that way. Perhaps in saying this we extend the value view somewhat, but it is quite a natural extension. Objection: The value view cannot distinguish claims from desert. While the latter term is admittedly used rather promiscuously, it is possible to state a more precise definition that fits its core uses. Here I have in mind what Miller (1999) has called “primary desert judgments.” In such a judgment “some agent A is said to deserve some benefit B on the basis of an activity or performance P.” Further, “P should be in the relevant sense A’s performance; that is, A should be responsible for P” (p. 133). And finally, P must be in some sense valuable.36 But now, is not the fact that A is responsible for a valuable performance a “value belonging to” him, or a value-making feature, and indeed an ultimate value? But then what difference is there between A’s deserving some treatment on account of his performance and his having a claim on account of that same performance? There is a problem here, for philosophers have generally been at some pains to distinguish claims or rights from desert. In the words of Feinberg’s seminal analysis of desert, they have insisted that “‘[d]eserve’, ‘fitting’, and ‘appropriate’, on the one hand, and ‘right’, entitlement, and ‘rule’, on the other, are terms from altogether different parts of our ethical vocabularies” (1963, p. 86).

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Reply: Many philosophers will be unperturbed by this objection. In the first place they may well deny that responsibility for a valuable performance is a “value-making feature” of an agent’s. And even if they can be made to concede that point, they will insist that no plausible version of the value view will include such features. After all, there is no doubt that the mere presence of an ultimate value belonging to a person is insufficient for him to have a claim. For instance, persons can arguably have ultimate value in virtue of their aesthetic properties (or the aesthetic properties of their bodies perhaps), but no one would seriously suggest that these values constitute claims. In particular, these philosophers will maintain, the kind of ultimate value that constitutes a claim will be value belonging to persons precisely in virtue of their agency or personhood. To be sure, we have many claims that do not belong to us simply in virtue of our agency—promise claims most obviously—but it is possible to explain how such claims arise indirectly from agency. However, that last concession is problematic, for it would seem that our objector could respond that “claims” of desert (as we often do call them) also arise “indirectly” from agency, if in a manner different from that giving rise to promise claims. So it remains unclear how to draw the desert/claim distinction. The further vicissitudes of this debate will not concern me however. For reasons to be explained in Chapter 9, I choose not to respond to the objection by appealing to the notion that claims exist (exclusively) in virtue of agency or personhood. Therefore I will have to take the objection more seriously than many other philosophers likely will. In any case there are other differences between desert and rights. First and foremost, desert reasons are typically first order. The mere fact that you deserve some treatment (still less some attitude) is not enough to give others any reason not to act on contrary reasons. Second, desert reasons are not requirements (i.e., they are not enforceable). Of course, I have allowed that there could be non-enforceable relational reasons, in which case desert reasons could be among them. I concede, however, that this appeal to exclusionary reasons and enforceability as distinguishing marks is not satisfactory on its own. After all, we still need to explain what it is about claims (or at least some claims) that makes them correspond to exclusionary reasons. A complete answer to the objection will not be before us until the end of the book. Let me end this chapter not by addressing one more objection, but rather by making a further remark about the value view. That view is about the nature of rights, holding that they are values accruing to persons. But there is also the converse of that view, as it were, the idea that a person’s value consists precisely in his rights. There is something very important to this idea as well. To be sure, a person can have many kinds of value, and not all of them are rights. But the central idea is that the special kind of value that persons have as persons consists precisely in their rights. This influential idea will be our focus in Part II.

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Notes 1. See Jones (1994, chap. 5) and Wenar (2015, sect. 6). Sherman (2010) suggests an alternative, and less comprehensive, division into status theories and instrumental theories, to which I will return. 2. For defenses of the status view, see especially Kamm (1996, chap. 10, 2007) and Nagel (1995). An earlier version appears in Quinn (1989). 3. The consequentialist view of rights is often attributed to Bentham (cf. Waldron 1987) and Mill (1861, chap. 5). For a contemporary defense, see Sumner (1987, chap. 6). I choose here to understand it as a kind of reductionist view about moral rights, though it is perhaps more naturally seen as a form of skepticism. That is certainly how Bentham himself conceived of his view. See his “Anarchical Fallacies,” reprinted in Waldron (1987). For a more recent critique in much the same vein, see Sumner (1987, chap. 4). 4. For a defense of a contractarian view of rights, see Narveson (1985). 5. I quote Liao and Etinson (2012, p. 328). They contrast political conceptions with “naturalistic” conceptions, according to which “human rights are those [rights] that we have simply in virtue of being human” (ibid.). Though the value view does not make essential use of the notion of a “human” right, it plainly has a strong affinity to such “naturalistic” conceptions. 6. I will return to Quinn’s view briefly in a later note. 7. See, e.g., (2007, pp. 247, 271, 273). At one place she suggests that the right is an expression of the person’s “distinctive capacities” (p. 247), which would put her position still closer to the value view. 8. For a critique of the contractarian approach, from a consequentialist perspective, see Sumner (1987, chap. 5). For a critique of the consequentialist approach, and Sumner’s in particular, see Feinberg (1992). 9. It is by no means original. For others much like it, see, e.g., Hart (1982, p. 95). 10. The previous point is a counterexample to the sufficiency of the consequentialist and contractarian accounts. In addition there are well-known counterexamples to the necessity of the consequentialist account (though perhaps they are better thought of as aimed at various subspecies of that analysis). Remember the case of a small group forced into slavery to serve the majority. There may well also be counterexamples to the necessity of the contractarian account, but due to the weakness of that necessary condition they will probably be more contentious. 11. Some critics have gone as far as to maintain that these “general-interestgrounded” rights are not “rights properly so-called” (Mack 2000, p. 77). As should be clear from my discussion of consequentialist views, I sympathize with this view but will not endorse it here. 12. Given Raz’s various assumptions it is indeed awkward to talk of such a right, as it would in effect amount to an apparently redundant right to have one’s (other?) rights respected. 13. To be sure, Raz does offer an explanation of exclusionary reasons in his account of authority earlier in his 1986 book. However, he makes no attempt to extend that account to the case of rights, and it is not obvious to me what such an extension would look like. I choose therefore to set this account aside here. 14. On another interpretation, the skepticism concerns rather the strength of our moral rights. Thus it could be that we are dealing with a simple right to caricature with a uniform content, but the reasons for limiting that right are stronger when the target is a private citizen than when it is a public figure. On that interpretation, the case would if anything present less of a difficulty for

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16. 17.

18. 19. 20. 21.

22. 23. 24.

25. 26. 27. 28.

The Value View the value view. After all, that view does not purport to tell us which reasons there are against a given obligation. Wenar seems to disagree, holding that the status view “becomes distinct as a competitor to the instrumental approach only when it comes to cases” (2005b, p. 198). The reason he offers for this verdict is that instrumental theories can also account for the general (“manifesto”) right. But whether they can do so, at least beyond the level of extensional adequacy, is just what I (and Nagel, presumably) would contest. In this regard, compare Scanlon’s distinction between morality in the narrow and the wide sense (1998, p. 6f). See Cruft (2013, p. 207). The example is originally from Raz (1992, p. 133). Interestingly, Kamm criticizes a similar constraint on rights (2007, p. 247), using a different kind of example. It is not clear whether that example is compatible with the status view I attributed to her earlier (and so there is reason to wonder whether she believes that the latter is an adequate account for all rights). He draws on the “kind-desire theory” of rights due to Wenar (2013a), which purports to apply to rights of all sorts. According to Cruft it is “extensionally accurate” (2013, p. 212). Also see Alm (2010). Feinberg (1974) struggles to explain it. Nagel does not explicitly endorse the view stated in the text. However, he does say that he favors the view that “the value of rights can be defended as . . . intrinsic” (p. 86). Further, he later embraces “the (noninstrumental) value of [people’s] being or not being liable to such [freedom-interfering] treatment—its being or not being allowable” (p. 91). Note that as I have defined “ultimate value,” this value is not ultimate (though it may be, as Nagel says, non-instrumental). I think the same is true of Kamm’s account of inviolability (2007, p. 254). Nagel refers to Quinn’s view, which is similar. According to Quinn, one “value . . . lies at the heart of [his] argument,” namely “the appropriateness of morality’s recognizing us as independent beings” and he adds that it is “in the first instance a virtue of the moral design itself” (p. 173.). However, the contrast he has in mind here is likely that with a value belonging to an individual action, or a general rule of conduct, as opposed to a value belonging to persons themselves. Talking in terms of the latter would also free us from Quinn’s rather awkward tendency to speak of “morality” itself as a kind of agent that can somehow “respond” to persons in ways that are more or less “fitting,” “appropriate” or “deserved.” The extensive debate over the “universality” or “timelessness” of human rights is relevant here. See, e.g., Griffin (2008, pp. 48–51), Tasioulas (2010), Liao and Etinson (2012). Griffin takes this line (see preceding note). For critiques of O’Neill, see Tasioulas 2007, Griffin (2008, pp. 107–10), Etinson (2013). On a stronger view, X must also be able to enforce the claim against Y (Geuss 2001, p. 143; James 2003)—meaning that one have the actual ability to do so, not just that one is morally permitted to do it. See Tasioulas (2007) for a critique. By contrast, Griffin’s demand on a right is weaker than O’Neill’s: a right requires that we can specify a possible obligation bearer, one that need not actually exist (2008, pp. 109–10). Griffin must be talking here about a general claim. After all, a particular claim implies an actual, and not merely a possible, obligation bearer. As far as I can tell, this proposal is compatible with the value view.

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29. Strictly speaking, I need only the conditional claim that if there are positive rights at all, then being the only one able to render assistance is (normally) sufficient for an obligation. 30. Note the ‘individually.’ I prefer to avoid the question of whether the group members collectively could bear the obligation, and what that would entail. 31. There is an alternative interpretation of the case, in which each agent is obligated to each potential “rescuee” to give him an equal maximal chance at rescue. If none of the agents does anything, each of the non-rescued persons could turn to each of the passive agents and say: “You failed to give me my chance.” Both interpretations seem present in Feinberg (1984), who seems at places to waffle between them. See also Waldron (1989). 32. Cf. Darwall (2006, pp. 18–20). 33. For this kind of view, see Darwall (2006) and Skorupski (2010, pp. 307–13). Skorupski goes further, holding that the “prima facie moral permissibility” of demanding defines rights (2010, p. 312). Darwall speaks of a person’s “authority” to make demands, which I take to imply at least that others, including the obligation bearer, typically cannot complain at his demanding his right. Another source sometimes mentioned in this context is Feinberg (1970), but he does not seem to make the claim in the text, unless perhaps rather obliquely. I note also that it is possible to conceive of demanding (or “claiming”) as itself the exercise of a moral power, constitutive of a right (cf. C. Wellman 1999). That is what I will typically be doing in this book (though I will mostly talk of “commands” instead). In the present context, though, this idea does no work. 34. Cf. Nickel (2007, p. 27). 35. See, again, Darwall (2012, p. 350). 36. I diverge here from Miller, whose formulation of this last condition is too conventionalist for my taste.

Part II

The Agency View

In Part I we explored the value view of rights. It was formulated first to apply specifically to claims, saying that a (general) claim is a value belonging to its holder. It was then generalized to the other Hohfeldian relations—liberties, immunities and, most importantly, powers. In particular, I held that claims, powers and immunities are different ways in which a person can be valuable. However, we also saw that the value view is unable to answer a number of important questions about rights. I indicated that answers to these remaining questions require going beyond the value view. In particular, we need to say something about what gives persons the kind of value constituted by their rights. In other words, we need to identify the ground of their rights. The purpose of this part is to explore what I take to be the most promising candidate for such an answer in the literature on rights. It is this: The agency view of rights. The value constituted by persons’ general basic rights belongs to them because of their agency. This thesis is plainly stronger than the value view, not only because it identifies the value-making features that generate rights but also because it implies that that value, and hence rights themselves, exist. On the agency view, what agents can demand, on account of their value (or their valuemaking properties) is to be treated in a way befitting of agents—or, put differently, to be treated as agents. Indeed, their very ability to demand at all, understood in terms of second-order reasons, is itself a reflection of their value. In what follows I will try to elucidate this view in much the way I attempted in the last chapter to account for the value view, of which the agency view is one version. That is, I will address its implications for those questions of rights left unanswered by the value view. I have two reasons for considering the agency view, and for exploring its implications. In the first place it is, in one form or another, an influential view of rights (see the following discussion). Hence a closer study of it will be rewarding. But I also believe that this view in many ways is quite plausible, and it is probably the best account we currently have of

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the nature of rights. The various implications I will consider are generally ones I think we should accept. All is not well, however, for the agency view faces a very significant difficulty. In short, the problem is that this view finds it very hard to explain why the content of our rights seems to depend on how we act. It is reflected in the (apparent) fact that wrongdoing can make us forfeit certain rights. In the final chapter of this part I will discuss this difficulty. Part III will be concerned with possible ways of responding to it. However, in this endeavor, my aim will be to preserve as much of the agency view as possible. I just said that the agency view is an influential view of rights. However, we should also be aware that the name can be used in a wide or a narrow sense. In the narrow sense the agency view is, as I just said, a version of the value view. As noted in 3.1, the agency view, so understood, is closely related to the position sometimes called “the status view” in the recent literature, notably defended, if not elaborated, by Quinn, Nagel and Kamm.1 In a broader sense, though, we could apply the name ‘agency view’ to any account of rights that implies that all and only agents have rights and that their agency plays an essential role in accounting for their rights. In that sense, the agency view is accepted a good deal more widely. A notable contemporary example of the “agency view” in that looser sense is the theory defended in Griffin’s On Human Rights (2008). In the following, I will occasionally use his view as a foil for the agency view in the narrow sense (especially in Chapter 6). However, my main interest will be in developing my own account, not in criticizing those of others. A brief overview of the chapters of this part follows. Chapter 4 presents the fundamental features of the agency view. Chapter 5 is devoted to using the agency view to account for the central notion of “owing” presented in Chapter 2. Then in Chapter 6 I address the question of which rights we have according to the agency view. Chapters 7 and 8 concern important matters left behind from Part I. First I address the concept of the strength of a claim (or right) on the agency view and then, in Chapter 8, show how we can account for the central normative features of rights in terms of the agency view (trumping, constraints and resistance to aggregation). The final chapter, which leads the way to the concluding part of the book, lays out what I consider a very serious objection to the agency view, namely that it is unable to account for the fact that we can lose rights depending on the way we act. I also consider, and reject, some responses to that objection on behalf of the agency view.

Note 1. Quinn (1989); Kamm (1996, chap. 10, 2007); Nagel (1995). A related, but idiosyncratic, view is defended by Gewirth (1978, 1982). Historically, the roots of the status view is in the natural rights tradition of the 17th century, represented by Grotius, Pufendorf and Locke—or, if you prefer, in the Stoics. For a historical survey, see, e.g., Tierney (1997).

4

The Agency View—the Basics

Just as I began Part I by describing the fundamental features of the value view, I will devote this opening chapter of Part II to doing the same for the agency view. After saying a few words in section 1 about which rights the agency view is intended to cover, I turn in section 2 to the notion of agency I employ in stating the agency view. I then turn to some questions arising from the idea that all agents have value in virtue of their agency.

1.

The Scope of the Agency View

The agency view holds that persons’ basic general rights are (a) values belonging to the right holder that are (b) grounded in their agency. We should remind ourselves about what the two italicized terms mean. First, only general rights can be values. They belong to persons independently of any particular claim/obligation relations in which they stand to others. Second, that a right is basic means that it is neither derived nor powergenerated. Remember that a right is derived if it is justified only by appeal to some other right in conjunction with some additional fact about the right holder. An example would be a right whose satisfaction is a necessary means for the satisfaction of some other right. Such a right could not be a value belonging to the right holder—or if it is, the value in question is simply the basic right from which it is derived. What is more, the ground of the derived right could not simply be the right holder’s agency, as the “additional fact” will, typically at least, be about something other than that agency (such as a causal fact). Power-generated rights exist only because of the exercise of a power. Again, promise rights and property rights are examples.1 These rights cannot be values, as a person’s value is not affected by the exercises of his power. Also, we could hardly say that a person has a promise right or, arguably, a property right in an external thing simply in virtue of his agency. We may conclude, then, that the agency view does not apply directly to derived or power-generated rights. That does not mean that it cannot account for such rights at all, though. Derived rights follow unproblematically from basic rights if they are not simply aspects of the basic rights from which they are derived. As far as

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power-generated rights are concerned, or at least promise rights, I will say a little in the next chapter, but I will offer no worked-out account of how to fit them into the agency view. We next face the question of whether the agency view is supposed to cover all basic general rights. That is, do all such rights belong to agents merely in virtue of their agency? That is certainly debatable, though many of the candidate rights that cannot be accommodated within the agency view are controversial. They are phenomena upon which we may or may not want to bestow the term ‘right,’ but which at least seem to involve relational reasons. For one thing, we have here relational reasons that concern trivial matters. Consider, for instance, the reason that another person has not to lay his hand on one’s shoulder (on some isolated occasion). Another type of relational reasons are those mentioned in 2.2 that are not coupled with exclusionary reasons, and therefore do not count as instances of “owing.” I mentioned the case of a distinguished philosopher about to retire. A more significant, and troublesome, case is that of purported rights not subject to powers (the “simple case,” as I have called it). Because the agency view tells us that claims and rights hold in virtue of agency, its scope is most plausibly understood as limited to all cases of owing that also involve powers, as the exercise of powers itself requires agency—there will be more about this in the next chapter. In other words, the agency view applies only to what I have called the “complex case.” More precisely, it should cover only those (a) relational reasons for action such that they are (b) subject to the power of consent and (c) subject to the claim holder’s power to generate the relevant exclusionary reasons. I have addressed these notions in Chapter 2 and will have more to say about them in this part. In any case I do not insist that the agency view can be extended to cover all such alleged rights. It will naturally be a matter of considerable dispute how much of a problem this is. I will get back to it, if only in a limited way, in Chapter 6. A further point about scope is also needed. While I have just described what I take to be the proper scope of the agency view, I will not attempt to show that all reasons to act that do meet the three criteria specified in the preceding paragraph, whether or not we want to say that they correspond to “rights,” can be defended on the agency view, either as basic or derived. Here too, then, some discrepancies are likely to remain. But I will attempt to show, again in Chapter 6, that the agency view can account for at least the lion’s share of those rights that are generally recognized as “human.”

2.

What Is Agency?

To understand the agency view we need to know more about what is involved in the notion of agency. It is clear enough that this notion can be understood as identifying a larger or a smaller set of abilities. At a minimum, it requires the following: an ability to form judgments about

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reasons for action, and hence about value, and an ability to act on these judgments, such that the judgments and the actions are one’s own (in some sense to be determined). We can call this the “minimal set.” Whether we should expand on it depends on the purpose to which we want to put the notion of agency. In our case, that purpose is to ground rights, and thereby the special kind of value to which rights correspond. The question we should ask, then, is what kind of agency is needed for that purpose.2 To answer that question it is useful first to distinguish between three sets of properties of an agent and right holder: (a) what is essential to agency as such (i.e., the minimal set), (b) what is needed to have rights at all (thus distinguishing right holders from beings that lack rights entirely) and (c) what is needed for grounding all those basic rights which are relatively uncontentiously attributed to persons. We will get a much better grip on the agency view if we can determine how it regards the relationship between these three sets. The first point to make here is that (a) does not include (c), though the converse presumably holds. For the minimal set could not account for all generally recognized basic rights. For instance, a being that lacks the capacity to form long-term plans (supposing that ability not to be entailed by the minimal set) could hardly be said to have a right to freedom from interference with that capacity, yet agents that do have this capacity arguably possess some such right. The relationship between (a) and (b) is less clear, however. I say so because I am not confident about what I would require for rights to be present. The term ‘right’ is of course not terribly precise in any case, so a certain indeterminacy is only to be expected. I will be pursuing a version of the agency view that treats (b) as including (a) but as also going beyond it, but I grant that one could fairly naturally speak of beings that possess only the minimal set, or indeed perhaps only the first element of that set (i.e., the capacity of forming reason and value judgments), as holding rights—and that such a view could also deserve to be called a version of the agency view. Perhaps the most important question concerns the relation between (b) and (c). Obviously (c) includes (b), but does it also contain other elements? And if it does, are we then forced to go beyond the agency view if we are to account for “all those basic rights which are relatively uncontentiously attributed to persons”? If we are attracted to the agency view in the first place, it is natural to take as our working assumption that (c) includes nothing over and above (b), and hence that the same features of right holders—plausibly seen as constitutive of, if not essential to, agency—that account for their having rights at all also ground all of their basic rights. In this section I will describe the relevant conception of agency. I then attempt, in Chapters 5 and 6, respectively, to show that it can account for the existence of rights at all and for the “standard” basic

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rights. As we will see in Chapter 6, it is unclear whether it can actually pull off the latter of these two feats. The agency view, then, must identify a useful notion of agency that could play the role of (c), that is, serve to ground all those basic rights that are relatively uncontentiously attributed to persons. Hence, as we have just seen, it needs a richer conception of agency than the one provided by the minimal set. But what should be added? I am inclined here to make things simple and appropriate Griffin’s notion of “normative agency,” holding that it suffices for the agency view’s purposes, at least to a reasonable approximation. I will try to substantiate that claim in Chapter 6. Griffin defines this notion as “the capacity to choose and pursue [one’s] conception of a worthwhile life” (2008, p. 45).3 It adds several abilities to the minimal set, including at least the following: the abilities to see oneself as existing over time, to fit one’s value judgments into some sort of system and (if that is not already included) to affect the world around one. What, beyond the eminent authority of Griffin and others, motivates this choice? In the first place, even if normative agency goes beyond the minimal set, it is still recognizably a conception of agency, and so makes talk of an “agency view” apposite. But also, and more importantly, it constitutes a description of an agent strong enough to perform both of the jobs I have identified: to show why agents have rights at all, by having the kind of special value that corresponds to obligations, and why they have the rights we wish to attribute to them. Or so I will argue, at any rate. There is another problem of a familiar type. Recourse to the phrase “all those basic rights which are relatively uncontentiously attributed to persons,” or others like it, will inevitably cast doubt on the usefulness of the notion of agency in telling us which rights persons have. Even granting optimistically that the phrase has a reasonably determinate extension, our use of it suggests that we already know that extension and so are in no need of any criterion. But it is precisely that role of an independent criterion that advocates of the agency view want agency to play.4 If we ask why persons do not have, say, a right to be able to wiggle their ears, the answer is supposed to be precisely that such a right cannot plausibly be grounded in agency. To be sure, it is a fair question to what extent agency could actually play this role. It might be contended that if we want an acceptable account of rights we are forced to work from both ends, as it were. That is, we could not simply start from an account of agency given in advance and declare that only those rights exist which can be grounded somehow in that account, nor from a list of rights given in advance and then simply tailor our conception of agency so that it can ground all the rights on that list. This problem will haunt the pages to follow; and a satisfactory solution to it, if one is possible at all, will certainly go beyond the scope of this book. The only, and not very exciting, conclusion I am able to draw here is that any acceptable account of rights has to be plausible at both ends, so to speak. That is, its implications for which rights persons

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have, and indeed for how we ought to act in light of these rights, must be plausible, as must the notion that the purported implications indeed follow from just that account of agency. As a consequence, we are in no position to rule out a priori that some rights are not grounded (solely) in agency, even beyond those categories I have already allowed for (derived and power-generated rights).

3.

Agency and Value

As noted in 1.2, the value view implies that the kind of value constituted by an agent’s claims is ultimate, defined as non-derivative value, but it does not imply that only agents can have claims. However, the agency view does entail just that, and it is an implication I accept. Hence the question arises of what kind of value a claim is, beyond being ultimate. The agency view allows us to answer that question. Most importantly it does so by telling us which reasons correspond to an agent’s value. I will address that matter in the following two chapters. In what remains of this one I wish instead to make a number of other points about agency’s value-making role. The first of these points will not play a significant role in this book, but I want to be explicit about it nonetheless. I have already mentioned the ability, characteristic of agency, of forming judgments about reasons and value. This ability, I hold, is necessary and sufficient for it to make sense to talk of things as “good for” or “bad for” beings that have it. Or at any rate it is sufficient if the judgments the being is able to form include ones about what is good and bad for the agent itself, and for other agents. Now, many would reject the supposed necessary condition out of hand. They would point to the familiar fact that we regularly say that events are good or bad for beings that cannot judge of these matters themselves. Indeed, we tend to apply these expressions to all living beings, and often also to mechanical devices, as when we say that regular oil changes are good for a car. It would be idle to simply decree that all such claims are mistaken. Rather, we should be alive to the possibility that the expressions ‘good for’ and ‘bad for’ are ambiguous. Our question is this: what is the difference between a value that genuinely “belongs” to a being (if that is the word) and one that is merely somehow “localized” in that being? We can distinguish a strong sense of ‘for’ such that it is good for a being that x only if the being has reason to pursue x (and bad for it that y only if it has reason to avoid y)—and then add that one can have reason to act only if one has the ability to comprehend reasons. My claims about “value for” earlier in this paragraph should be understood as employing this strong sense. This suggested distinction between two senses of ‘value for’ implies another distinction between two kinds of what is often called agent-relative value. Of course, the presence of the term ‘agent’ itself suggests that

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agent-relative value can only exist relative to an agent, and hence not to a (non-agent) animal. But if we are willing to assert that something could be good (or bad) “for” that animal, we seem to be making a value judgment about it from its perspective, so to speak. We are not merely claiming that a thing “belonging” to the animal has agent-neutral value. If so there is at least some reason to hold that there are two distinct concepts of agentrelative value; and again the defining difference is that one concept implies that the being for whom something is good itself has reason to pursue it, whereas the other concept does not imply that. In what follows I will use the term ‘agent-relative value’ in the stronger sense (the one that entails reasons to act), unless otherwise noted. The idea of grounding rights in agency has other implications. Consider the following set of propositions: i. The value of all right holders (qua right holders) is the same. ii. If the value of two right holders (qua right holders) is the same, then the properties in virtue of which they have that value are also the same. iii. Basic rights are grounded in those properties of persons in virtue of which they have value qua right holders. iv. Not all right-holders have the same basic rights. It seems that all of these four propositions could not be true. Yet all are quite plausible. (ii) seems more or less trivial. (i) is generally accepted, and it is natural to take the agency view as a way of substantiating it. Further, (iii) follows from the value view, to which the agency view is committed. That leaves (iv). Perhaps the main argument in its favor is that persons acquire new rights as they mature. For instance, adults have rights to political participation that adolescents lack—even though many adolescents are mature enough to have some rights. Also, in the preceding section I noted, but did not endorse, the possibility that the capacities necessary for having rights at all are insufficient for grounding all of our basic rights. Granting that (ii) and (iii) are unassailable, there are two ways of resolving the paradox: to reject (i) or (iv). For adherents of the agency view, as just indicated, surely the latter option is preferable, and perhaps mandatory. One would then have to explain away the appearance of differences in basic rights between individuals. In the case of the right to political participation, for instance, one would have to identify a basic right, and make plausible the supposition that adults and adolescents share it. There are likely various ways in which one might try to formulate the relevant basic right, but I will not digress into this matter. I should also add that, though the other expedient, that of denying (i) may appear to be manifestly implausible, whether compatible with the agency view or not, the matter is actually not clear-cut. In particular, even if we grant that (i) is

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false, and hence that agents differ with respect to which basic rights they have, it does not follow that the rights they do share differ in strength. I will return to this matter later, where I will argue that rejecting (i) is not as implausible as it might seem (see 11.5). In any case, it might be questioned whether the agency view can account for (i). The problem is familiar. For all the various capacities that count as constitutive of agency are matters of degree, in the sense that one can be better or worse at exercising them. And so it might seem that persons who have these capacities to a greater degree will have greater value than those who have them to a lesser degree. That is precisely the conclusion advocates of the agency view want to avoid. There is also a familiar answer to this concern, first championed by Rawls and recently repeated by Griffin.5 In this view, “[a]nyone who crosses the borderline [of agency], anyone who rises any degree above the threshold, is equally inside the class of agents.” As long as one counts as an agent to any degree, even if one does not have the full complement of rights, at least those rights one does have are of the same strength as anyone else’s. Yet there is something uncomfortably ad hoc about this response to the objection: if agency is so important to begin with, why are not degrees of agency also important?6 To use the jargon from the preceding section, the response is only plausible at one end (that of extensional adequacy). We can avoid the difficulty by turning instead to a different aspect of agency. We can express it, if not with the elegance and pith of colonel Rainsborough, as follows: “the one who is an agent to the lowest degree has a life to live as the one who is an agent to the highest degree.” In so saying, we are certainly still referring to a threshold, as is inevitable—there is, after all, some sort of minimum involved in “having a life to live” at all—and indeed we are referring to a vague threshold, so there will be borderline cases. Yet this formulation also has the signal virtue of stressing a pair of central facts: any agent, even a less-than-fully developed one, has its own life to live. It is able to live a life that belongs to it, not to anyone else, or (in the relevant sense) to no one. And this feature of it is essentially all-or-nothing. Or, at any rate, it is all-or-nothing once we have passed the threshold, which is itself rather low. Hence the appearance of ad-hoc-ness is dispelled.7 It is admittedly a very large and difficult question exactly what it is for a being to “have a life of its own,” one I could not answer here in any detail. Roughly, though, and at least for present purposes, it presupposes the minimal set: the abilities of forming judgments of value-for, and associated reason judgments, as well as acting on these judgments. These judgments and actions are attributable to a unique person, in the sense that they are relevant to a moral appraisal of the person.8 My judgments and actions are just that: my judgments and actions. For the present purposes, my life counts as “my own” precisely because it is made up of these components that are also my own. In other words, my life is attributable to me precisely because, and in just the way, my judgments and actions

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are. In the following chapter we will see how a person’s ability to “live his own life,” a value-making feature, helps to explain the special nature of rights.

4.

Non-Agents and Rights

Perhaps the most controversial implication of the agency view, which should be apparent by now, is that only agents can have the kind of value that constitutes rights.9 As a consequence, animals and small children cannot have rights. There are fundamentally three responses, or types of response, to this objection on the part of someone who wishes to defend the agency view, or at least, like me, endorses this particular implication of it. The first is conciliatory, the other two confrontational, and the third more so. Let us consider them in turn, if only fairly briefly. The fi rst, conciliatory response is to say that though the agency view is indeed intended as a characterization of an important moral phenomenon, in the phrase I have occasionally employed, that phenomenon only constitutes a part of what are properly called “rights.” Understood in a broader sense, many non-agents can also have rights. I might be willing myself to accept this line, at least if it is framed in a way compatible with the value view.10 If so, what I am doing in this part of the book amounts to an attempt to elucidate a certain view about the moral status of agents specifically, one that does not necessarily say anything one way or the other about the status of nonagents. It can allow that agents have various properties in virtue of which other agents have reason to treat them in certain ways, while non-agents lack these same properties and the corresponding reasons therefore do not apply to them—even though these beings could for all that have rights of some sort. The conciliatory response presupposes a thesis for which I have already expressed some sympathy (at the end of 2.3C), but not actually asserted, namely that animal rights advocates and their opponents, if that is the word, are not talking about the same thing. The second response shares this presumption but is less conciliatory in that it denies that non-agents can have rights. However, the difference between this response and the conciliatory one seems merely verbal: it is simply a matter of whether to associate the word ‘right’ with whatever reasons there are for treating non-agents in this way rather than that. (And note that both are consistent with these reasons favoring the very same treatment to which such beings, on the conciliatory response, have a right.) To make the third, confrontational response is to contend that the debate over non-agent rights is indeed genuine—meaning that the opponents are talking about the same thing—but that those who affirm that such rights exist are mistaken. To make good on this response would involve identifying the shared sense of the term ‘right’ in a way that makes

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the attribution of error to the advocate, rather than the critic, of nonagent rights seem plausible. I incline towards the second of these three responses. I have already aired my skepticism about the prospects for the kind of encompassing account of rights talk that would make the third possible—though I obviously have not shown that it does not exist, and would hardly complain if someone showed that it did. And, again, while I have not definitely rejected the conciliatory response, I would also maintain that the differences between the “rights” we could with any plausibility attribute to non-agents, on the one hand, and those that concern me in this part of the book and the next, on the other, are so large that it would hamper rather than aid understanding to use the same term to label them all indifferently. The substantial theoretical task, then, is to identify these differences. In the end, readers can judge for themselves whether, even if granted, they are as significant as I am now claiming. For fairness’ sake I note that some of the terms I have been using to express the value and agency views, and perhaps the central term ‘right’ most of all, are somewhat technical and tend to carry a good deal of theoretical baggage, at least as used in this book and in much of the philosophical literature. As a consequence, it could be objected that the equivocation supposedly vitiating the debate over non-agent rights is, at least in significant part, an artifact of the jargon in which that debate is typically conducted. While I would not categorically deny this objection, it is probably in any case possible to circumvent it by stating the various differences between agent and non-agent rights, to be described in what follows, in terms of the somewhat more quotidian notion of “being wronged” instead—though I will not actually take the trouble to do so. I must again leave it to the reader to decide what, if anything, is to be gained by such a reformulation. Turning now to the differences, we may note in the first place, and most obviously, that non-agents could not have the powers the agency view sees as essential to rights (or at least rights in the sense of that term with which it is primarily concerned). An animal, for instance, could not waive a right, or demand performance. Nor, of course, could it demand compensation for harm it suffers. Admittedly, these things could be done for the animal by someone else, a proxy of some sort, but the relevance of this fact is unclear at best. And in any case, the idea that there is an obligation to compensate non-agents for harm they have suffered as a result of infringements of alleged rights, waivable or not, strikes me as quixotic, so there seems to be a further difference. (Others may disagree on this last score, but I leave it to them to provide an argument.) Second, a non-agent could not have reason to resent any action that harms it. It is incapable of resenting anyone, and in any case reasons do not apply to it. As before, a person could feel vicarious resentment on its behalf, just as he could act as proxy for it by exercising certain powers,

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but it is again unclear what to make of that fact. At any rate I see no reason to accept that it is sufficient by itself to warrant attributing rights to those non-persons that are in this sense “represented.” Relatedly, a non-agent could not forgive being made the victim of a harmful action. Third, a crucial feature of the agency view, as detailed in Chapter 5, is the explanation it offers (conspicuously absent in Part I) for the existence of those exclusionary reasons I have said are constitutive of obligations. This explanation, which also refers to a power to generate such reasons, could not be extended to non-agents, as it relies on capacities that are unique to agents. Otherwise put, an animal could not have the authority that I see as essential to rights (see the next chapter). Fourth, in Chapter 8 I will try to show how the agency view can account for a number of normative consequences of rights (or at least ones that are generally accepted among rights theorists), and these explanations also could not be extended to non-agents. This would not be a problem in the present context if these normative consequences either are not genuine or could be explained in other ways that do not appeal to agency. I will not attempt to counter either of these two responses, as I believe the opponent, the advocate of non-agent rights, has the burden of proof here. Instead I will make do with noting that it is dubious at best whether the alleged rights of non-agents have these consequences. Most clearly it is questionable whether the so-called “ban on aggregation,” unclear though it admittedly is, that theorists frequently associate with rights, applies also to non-agents. Kamm has made this point on several occasions.11 As the “ban” is typically understood, it rules out killing one person in order to save the lives of several other people. But, Kamm asks, is it a right violation to kill one dog in order to save the lives of several other dogs? If the answer is no, as Kamm herself believes (and I agree), then we have reason to doubt that dogs, and other non-agents, have rights. A fifth difference is not compatible with the agency view, but I mention it here anyway because it matters to my decision not to attribute rights to non-agents. It will be central in Part III, in which I will argue that most or perhaps all of a person’s rights are dependent in various ways on how he acts, and one of its central aims is to explore that thought. As only persons can act, in the relevant sense, it is therefore natural for me to concentrate on persons as right holders. Now, these differences are of two kinds. On the one hand are those that are relevant to our duties; on the other hand are those that are not so relevant, but rather matter only to whether we should say that certain reasons for action, or for attitudes, are relational, or correspond to rights. Those of the former kind, to which belong those having to do with aggregation and the reason to compensate, would seem more important. For an adherent of non-person rights could, in the end, shrug off differences of the other kind, saying that the features they concern are inessential add-ons to the core phenomenon of a right. By contrast, differences of

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the first kind are more important because it is much less attractive to dismiss disagreements about duties, about what we ought to do all things considered, as merely apparent. In any case, though, I repeat that my purpose in identifying all of these differences, of either kind, has not been to show that non-agents lack rights, in some generally accepted sense of that term, but rather to argue against the advisability of using the term ‘right’ indiscriminately when engaging in moral discourse about agents and non-agents.12

Notes 1. If there is such a thing as “self-ownership,” and that right qualifies as a kind of property right, then it is most plausibly taken as covered by the agency view. I am talking here exclusively of property rights in external things. I will say something of the “right to one’s body” in Chapter 6, but that right is not necessarily a kind of property right. 2. This purpose should be distinguished from another, that of grounding obligations. It is a common view that having obligations demands more of a being than merely having rights, and it is indeed obvious that one could bear obligations only if one is an agent in a fairly full sense. After all, we normally hold that one could be under an obligation only if one is able to understand what that involves, and to act on the basis of that understanding. While the agency view clearly implies that the capacity to have rights requires agency in some sense, bearing obligations may still require more. I will not address the latter issue. 3. He elaborates somewhat: “Anyone who has the capacity to identify the good, whatever the extent of the capacity and whatever its source, has what I mean by ‘a conception of a worthwhile life’; they have ideas, some of them reliable, about what makes a life better or worse. The ideas are not, and should not be, about the whole shape of one’s life; they are piecemeal and, to varying degrees, incomplete” (p. 46). 4. For a particularly clear example, see Griffin (2008). 5. See Rawls (1971, pp. 504–12) and Griffin (2008, p. 45), from which the quote in the text is taken. 6. Singer (1979, p. 16f) raised this worry against Rawls. 7. The idea described here is certainly not new. Cf., e.g., Feinberg (1973, p. 93f): “The real point of the maxim that all men are equal may be simply that all men equally have a point of view of their own, a unique angle from which they view the world. . . . [T]hey ‘have shoes’ into which we can always try to put ourselves”—though Feinberg does not specifically mention the fact that the property of “having a point of view of one’s own” is not a matter of degree. 8. This is Scanlon’s notion of “responsibility as attributability” (1998, p. 248). 9. So what about groups of persons, and other collective entities? In this book I wish to remain neutral about their status as right holders, and obligation bearers, and indeed will not address that issue at all. Similarly, I will not address the question of whether groups can be agents. (If they cannot, the agency view entails that they cannot have rights.) 10. I note here that the best-known defender of animal rights (Regan 2004) does seem to accept something at least close to the value view. He holds that all beings that are, in his term, “subjects-of-a-life” have “inherent value,” and have it equally. And he also argues that it is in virtue of this inherent value

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that all such beings have a “right to respectful treatment” (ibid., pp. 276ff). Admittedly there is no indication that he accepts the further claim, characteristic of the value view, that this right just is a value, but much of what he says could be made compatible with that claim. 11. See, e.g., (2007, p. 255). 12. The remarks in this section leave undecided the special, and quite difficult, case of children’s rights. While (small) children are not agents, it is also true that they typically develop into agents. Does this fact about them make a difference to whether they can have rights? I do not know the answer to that question and will therefore dodge it here.

5

The Components of Owing Exclusionary Reasons and Relationality

In Chapter 1 I distinguished three components of the notion of a claim/ obligation relation: enforceability, exclusionary reasons and relationality. The former two together constitute the notion of a requirement, while the latter two constitute that of “owing” something to another. In this section I want to explore the agency view’s consequences for this notion of “owing,” and so its two components. By contrast, I will have nothing more to add about enforceability—beyond what I will say about right loss in Chapter 9 and in Part III. I begin by going back to my discussion of relationality in 2.3C. I distinguished between two versions of the value account of relationality, that result if we combine the value view and what I called the explanatory constraint with different views about which reasons are involved in an obligation. In particular, I noted that there is one version corresponding to the simple case and one to the complex case. As the agency view is concerned only with the latter of these two cases, we can here limit our attention to the corresponding version of the value account. To repeat, here we have it: The value account of relationality for the complex case: X’s requirement to φ is to Y if X is required to φ and Y’s having a certain feature (or set of features) in virtue of which Y is valuable explains why (i) Y has a power of control over X’s requirement to φ, (ii) Y has reason to resent X for disregarding that power and (iii) Y has the power of control over X’s requirement to compensate Y for harm caused to Y by X’s not φ-ing. As we also found, however, this account falls short in a crucial way: it does not provide the explanation it refers to. A complete account of relationality will also yield the explanation referred to in the biconditional. Only that way can we establish that the consequent holds. What I wish to do here, as advertised in 2.3C, is to show how the agency view helps us deal with this problem. That view is an instance of

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the value view, and so we discover its implications for relationality by combining it with the value account of relationality. I will here assume without further ado that the result of that combination is as follows: The agency account of relationality. X’s requirement to φ is to Y if X is required to φ and Y’s agency explains why (i) Y has a power of control over X’s requirement to φ, (ii) Y has reason to resent X for disregarding that power and (iii) Y has the power of control over X’s requirement to compensate Y for harm caused to Y by X’s not φ-ing. Our challenge is to show that and why a requirement R of X’s that obtains in virtue of Y’s agency is also associated with the powers listed by the agency account of relationality, as well as the reason to resent X. I also remind the reader that the first of the listed powers, that of control over a requirement, essentially involves the power to generate exclusionary reasons, as such reasons are constitutive of a requirement, relational or not. Hence the agency account in effect implies that all claims involve powers. For if the fact that a requirement is grounded in the value of agency can “explain” why the claim holder is able to generate certain exclusionary reasons concerned with that requirement, we might as well say that the existence of that power follows from the requirement, or so I will assume. I will discuss the implications of this fact towards the end of this chapter. I will now show how it is possible to use the agency account to explain (a) the presence of the powers on the list I have offered, and thus indirectly of the reasons they control (but not that these reasons can only be explained that way) and (b) the reason to resent. Turning to the first of these tasks, we note that the agency account mentions two relevant powers: the power of control over another’s requirement to φ, and the power of control over the other’s requirement to compensate for harm caused by his not φ-ing. I will focus on the first of these two powers, which in any case seems more important, though I will also have something to say about compensation. As far as the power of control over another’s requirements is concerned, the main thing to be explained is the right holder’s ability to generate exclusionary reasons. It is useful to remember here that an exclusionary reason is a second-order reason not to act for some first-order reason. There could be a number of explanations for such a reason. For one thing it could be instrumental. For instance, I might have a reason not to act for some reason because such actions are likely to lead to undesirable consequences. It could also be non-instrumental. To reuse an example from 2.2, I might have a reason not to act for selfish reasons because it is bad in itself to act for such reasons. Whatever the explanation, though, the exclusionary reason corresponds to some value. So, to which value does an exclusionary reason constitutive of an obligation to a right holder correspond? The value view tells us that it is the right

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holder’s value (see 2.2), and the agency view adds that this value belongs to the right holder in virtue of his agency. What does this amount to? In 4.2 I attached myself to Griffin’s notion of “normative agency,” defined as “the capacity to choose and pursue [one’s] conception of a worthwhile life.” Let us unpack that conception a bit. To be an agent is to act for reasons. That is, it constitutively involves the ability to assess reasons, to choose among them, to decide to act for these chosen reasons, and then finally to do it. It may be questioned whether agents must really be able to choose among reason, but I take it that we treat them as so able, at least to the extent that we hold one another responsible not only for what we do but also for why we do it. There are two features of this complex ability, or set of abilities, that are of particular interest when we try to find an explanation of the power to generate exclusionary reasons, meaning to identify its value-making ground. In the first place it is the fact that the agent has a “mind of his own,” an ability to reach a conclusion about what is important to him, which values are to guide him, not only here and now, but in his life overall, such that these conclusions can meaningfully be attributed to him. The second is his ability to transform this conception of value into action, and perhaps particularly into decision, again attributable to him. As the word suggests, a decision is decisive: it terminates deliberation and amounts to a kind of commitment to the sufficiency of certain reasons for action. These abilities together are the relevant value makers. What is it then to respect these value makers? I note that for another person to treat another’s agency, or even his commands, simply as firstorder reasons for action, to be weighed against others using his own (or, for that matter, some third party’s) capacity for assessing reasons is in effect for him to act as if the other did not have this ability—to usurp his power, as it were. In other words, we respect an agent’s normative agency, and so the value he has in virtue of it, precisely by respecting his directives on how to guide one’s conduct with regard to certain aspects of our treatment of him. Such respect amounts to treating the other as having authority over his life, as being in charge of it, or as if it is, to an extent at least, up to him how we should treat him. To fail to recognize this central fact about agents, to act as if whatever reasons apply to a person obtain independently of his will, would be to treat him as lacking authority over his life and as not being in charge. Such treatment fails to take fully into account his status as an active being, a chooser and shaper of a life that is uniquely his own.1 I should stress that the conclusion to draw from the previous reasoning is not that agents, right holders, are able to generate exclusionary reasons about or have “authority” over just anything. But we do have reason to conclude that they have such a power at least to some extent, within a certain domain. Specifically, they can be understood to have such a power only with respect to that which is, in some sense, their own. The

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next chapter will be devoted to the question of what counts as the agent’s “own,” and in Chapter 8 I will say more about what having “authority” over something amounts to in practice. It is also possible to argue negatively for the earlier account of the ground of exclusionary reasons by criticizing alternative interpretations of what is involved in respecting the normative agency of persons. Let me address the most prominent ones here—though they are not necessarily incompatible with the power of generating exclusionary reasons. The simplest one makes no reference to any exclusionary reasons. It is that a right holder is able, at will, to create a strong—indeed typically overriding—first-order reason to do as he bids. Either the right holder’s exercise of will—his “command” as we might put it—itself constitutes such a reason, or it somehow affects the strength of independently existing reasons, such as that provided by his own well-being. A different possibility is that the right holder is able to generate “exclusionary reasons” of the alternative type considered, and rejected, back in 2.2 (inspired by some remarks of Kamm’s). Such a reason, remember, is a first-order one that somehow “silences” conflicting reasons. Most obviously, I suppose, the right holder’s command could itself be held to constitute such a reason. Possibly, though, we do not need to appeal to any such “silencing” reasons, but could simply say that the right holder has the power to silence first-order reasons. What is objectionable about these other purported possibilities? In answering that question, I draw on things I have already said, here and in 2.2. Consider the first one, that the right holder’s command is an overriding first-order reason by itself. While I have been willing to grant (see 2.3B) that a command could provide a reason for action over and above whatever reasons exist independently, such as reasons of well-being, it strains credulity that such a reason would be strong enough to help tip the balance against countervailing reasons, except in rare cases. How could the right holder with his mere say-so generate a reason for action much stronger than whatever reasons would have existed without it? Consider an act of killing, for instance. Whatever a person says, I plainly would normally have strong reasons for not killing him, reasons corresponding to the fact that his death would be a very bad thing. But his death would not be a worse thing because he commands me not to kill him. So if my (first-order) reason for not killing him is much stronger if he commands me not to do so than if he does not, where does this additional strong reason come from? Saying merely that it comes from the fact that killing him in the one case is wrong and killing him in the other case is not wrong, or at any rate not nearly as wrong, is no answer. It is precisely this difference we want to explain. The other proposal, that the right holder has the power to extinguish reasons to act may, on the face of it, look more promising. To see why, remember the distinction between weak and strong senses of the term

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‘reason to act’ from 2.2. To say that a person has a reason to act in the weak sense is, primarily at least, to make a kind of value claim; but taken in the strong sense such a statement also implies something about what the person (actually) ought to do, at least pro tanto. Granting that the right holder cannot change value facts by fiat (as noted in the last paragraph), why could he not have the more limited power of turning a reason to act in the strong sense, one that is “ought” relevant, into a mere “weak” reason to act? My preferred answer, plainly enough, is that he does have such a power, namely precisely the power to generate exclusionary reasons. I will address this point in more detail in Chapter 7, but here I want at least to indicate why some such move is necessary to explain the right holder’s power of “silencing” reasons in the strong sense. Offhand it is certainly hard to see what such a power would be like, simply because it is hard to see how the “value” and “ought” aspects of a reason could come apart—no matter precisely how these two aspects are related. After all, even if we grant that the right holder has a certain “authority,” it does not extend to the various reasons that apply to the situation. He could not “order” them to simply disappear. Rather, surely, the idea is that he can issue orders to the obligation bearer; and it is precisely these that answer to exclusionary reasons, for they are orders not to act for certain reasons.2 To be sure, the question remains (for treatment in Chapter 7) of how we get from there to thesis I called BNE in 2.2 (that an infringement is a violation if it is contrary to the balance of the agent’s non-excluded reasons), but at any rate I cannot see that there is any way to get there other than by appealing to exclusionary reasons. I have argued positively that the agency view explains the right holder’s power to generate exclusionary reasons (the first of the three reason components mentioned in the agency account of relationality), in terms of the peculiar value due to agency, and negatively against alternative accounts of that value. In the next step, I say something briefly about powers of the other type figuring in the agency account, concerning the requirement to compensate for wrongful harms. If you are subjected to such a harm, you are deprived of some good—even if it is only, somewhat artificially perhaps, the absence of pain or injury. The other agent took this good from you wrongfully. Yet the power of control over it is still yours. So you can demand it back, as it were. Compensation is the way we, sometimes quite imperfectly, fulfill this demand. Note that what you have is precisely a power: it is up to you whether the wrongdoer is required to compensate you (and perhaps to some extent how to do it). As before, this power stems from your agency. I concede that these remarks about the power to demand compensation are crude and cannot fully account for our actual practices.3 A more adequate treatment will have to wait for a later occasion (though I will say at little more in 8.2). We may now turn to reasons to resent. These are triggered by another’s disregard of a power of either of the two kinds discussed earlier, by way

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of disregarding exclusionary reasons generated by their exercise (though obviously a person could disregard the power to demand compensation only if he has previously disregarded a power of the other kind). The right holder has reason to resent the obligation bearer for failing to treat the right holder as being “in charge.” This notion involves precisely a power to impose exclusionary reasons. If I am “in charge” over some matter with respect to you, you are required to act in a certain way, which involves your having a reason not to act for contrary reasons, and the obtaining of that requirement is up to me. Your failure to honor that requirement will, as it were, insult me as the source of these reasons. At this point I should remind the reader of the circularity worry raised in 2.3C. Remember, it could be argued that the notion of resentment itself presupposes the notion of relationality, that to resent another is precisely to react negatively to his action qua an infringement of one of one’s claims. And as we are presently trying to explain precisely what a claim is, that is a problem. However, it seems to me that this problem can be circumvented, at least to some extent, as I hinted at back in 2.3C. For, I said, even if we cannot explain why the victim has reason to resent the requirement bearer’s disregarding a reason not to mistreat the victim, without presupposing the notion of relationality, it does seem possible to offer just such an explanation of the fact that the victim has reason to take a “condemning moral attitude” towards the requirement bearer, where that reason is peculiar in that it belongs to him alone—even though other people (observers) may well also have reason to condemn the requirement bearer’s action. What we need to explain is precisely this unique appropriateness of the victim’s response. This we can do without presupposing that the response itself involves the concept of a directed requirement. First, though, a qualification is needed. I have just said that the victim has a peculiar reason, unique to himself for condemning the requirement bearer’s action. However, even granting that this reason is a reason to resent, it certainly need not be true that no one else can have it. In particular, those close to the victim may have it. Further, they may have it even if no claim of theirs has been infringed. Here I will attempt no explanation of the origin of these reasons for vicarious resentment, as it were—beyond noting that they are evidently somehow parasitic on the victim’s reason for resentment. This description is admittedly vague, and I am in fact uncertain about the nature of vicarious resentment. It may be, as Darwall has suggested (2006, p. 67), that it must be felt “as if from the point of view of” the victim, and that it is in this respect different from impersonal reactive attitudes such as (primarily) indignation, which are felt “as from the standpoint of the moral community” (ibid.). But these phrases themselves are unfortunately not very perspicuous. For present purposes it must suffice that only the victim has reason to feel non-vicarious resentment, and that a satisfactory account of that emotion must make sense of this fact.

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And so we concentrate on the question of why the victim of a claim infringement (or violation) has a special reason to condemn the other’s action morally, not shared by others. The answer may at first seem obvious. The victim’s peculiar reason springs precisely from the fact that it was he, rather than someone else, who suffered the wrongful harm caused by the agent’s deed. (This explanation is not applicable to wrongs that do not cause harm, if such there be.) Yet that simple explanation is inadequate. For from the fact that the victim has a special reason at least to react negatively to (if not to “condemn”) the harm he suffered, and so indirectly to whatever caused it, we may not infer that he has special reason to react in whatever way is appropriate to the wrongful action (and remember, we are not supposing here that that action wronged him). Speaking metaphorically, while it is clear that the harm is his own, it not clear that the wrong is. Indeed, to say that the wrong is his own is precisely to say that the breached requirement was directed. So what we need is an explanation of what makes the wrong his own, and therefore what gives him a reason to react to it in a special way, a reason others lack. This is where the power to generate exclusionary reasons, and thus requirements, enters in. The victim has reason to react in a special way to the other’s action—as a wrong, and not merely as the cause of the harm—because the action, qua action, was in a way his. He, and no one else, had control over it, morally speaking. I now return to the observation I made earlier, that the agency view entails that all claims involve powers. I fully recognize that it is a controversial implication. We have already seen that it is incompatible with the common view that animals (and small children) have rights, and I have already had my say on that view (see 4.4). Two other possible implications, though, are (a) that beings that have been deprived, temporarily or permanently, of their normal, or previous, ability to exercise control over requirements, and in particular to waive them, could not have rights, and (b) that no one could have a right that could not be waived (sometimes called “inalienable”). Familiar examples involve the purported rights not to be enslaved, and not to suffer various forms of treatment that are generally seen as demeaning to oneself as an agent. In cases of these kinds, it may be alleged, the agent reduces himself to something less than an autonomous agent, and thereby himself acts contrary to the value his rights “protect.”4 Both of these issues raise questions that I could not answer fully here. As far as the latter is concerned, I am inclined to simply bite the bullet and maintain that any sense we have that a certain treatment wrongs a person even if he has consented to it (and so waived his right not to suffer it) involves some sort of confusion. While the treatment in question may well be wrong, it does not wrong the victim. The main reason for finding such a response unsatisfactory, I suppose, is that one will be inclined to maintain that the reason why the treatment is wrong is precisely that it

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fails somehow to respect the value of the person, or of his agency. Conceding this, it becomes hard to avoid the conclusion that our concept of “wronging someone” is not sharp enough to allow us to draw a clear distinction between the notion I have been after, and the kind of wrongful treatment of a person that is now at issue. At any rate, I see no reason to blame the agency view for the difficulty. Turning to the remaining case, that of persons who have lost their ability to control others’ requirements, we note that how much of a problem it poses for the agency view depends on exactly how the latter is interpreted. Here there is some maneuvering room. For one thing, the agency view could be taken as saying that rights belong to persons in virtue of a capacity they have under normal circumstances or that they developed to have (even if they have now lost it), or other similar formulations. They do not seem ad hoc, and no doubt various things can be said in their favor. I will not consider the matter further here, though. A final point is needed. I have said that the agency view does not apply to promise rights (or to property rights, but we can set these aside here). But then the same should hold of the agency account of relationality, rendering it inadequate, as such rights are of course also relational. If I promise to attend your birthday party, I am presumably under some sort of obligation to you to do so, whether or not that obligation can properly be said to correspond to a right. Now, I granted in 4.1 that the agency account as formulated does not fit promise rights. Such a right does not exist simply because the promisee “has a certain value-making feature.” However, even if I do not aim at an account of promissory obligations in this book, I should at least point out the possibility of extending the agency view, and thus also the agency account of relationality, to cover such obligations as well. After all, the agency view is naturally combined with the idea that such obligations arise because promisors exercise a power to obligate themselves that they in turn have because they are agents. Perhaps the relationality of promissory obligations could be accounted for in that indirect way. The details must be left for another occasion, however.

Notes 1. As the reader may recall, I noted in 2.3B that, even given the complex case, persons have an immunity against others’ depriving them of their claims. As advertised in that earlier discussion, we can see now why that is so. 2. By contrast, they are not orders to feel or evaluate in certain ways, presumably because the other person does not have the requisite control over these attitudes (and I offer no account here of the relevant kind of “control”). This fact corresponds the right holder’s inability to “silence” reasons in the weak sense, which include reasons to take certain attitudes. 3. For one thing, we can sometimes demand compensation for a harm even if we had no right not to suffer that harm specifically. For instance, if I lose my

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job because of someone else’s wrongdoing, we would probably say that I am entitled to compensation for that loss, even if I had no right to the job itself. (Grant, for argument’s sake, that I could have been legitimately fired even without cause.) 4. The case of voluntary slavery is especially contested in the case of a person who permanently and irrevocably waives his right to make his own decisions. Is that really possible? In large measure the answer depends on a matter I will not consider, namely the extent to which a person can “bind” his future self. It is not controversial that we are all able to do so to some extent, but when the future self is remote in time we begin to wonder. To what extent does a person remain one and the same entity over a lifetime? For an influential argument that personal identity is a matter of degree, see Parfit (1984, Part III).

6

How Agency Generates Rights

In the preceding chapter I showed how certain reasons characteristic of obligations can be generated by agency: reasons to resent actions that disregard one’s value and exclusionary reasons to treat another’s directives regarding certain matters as decisive, both in terms of the exercise of one’s own agency with regard to these matters and in terms of compensation for harm suffered due to failures to heed directives of the first kind. The question we now face is that of precisely which these directives are. In other words, we face the question of which rights agents have in virtue of their agency.

1.

Fundamentals

Here is a notion that will prove useful in what follows. When we say that a person has the power to generate exclusionary reasons “regarding a certain matter,” we are assigning something to that person’s “domain of control.” The person has “control” over the thing in the sense of having “final say” over how it is to be used. To speak more precisely, rights give us “control,” in the relevant sense, over other people’s actions, but that is not how I will understand the domain of control in the sequel. Rather, to say that an object, in a wide sense of that term, is in the domain is to say that the right holder has control over other people’s actions with respect to that object. By the same token, to respect a person’s value qua agent— and thus to respect his “authority”—is in effect to respect his control over the relevant domain, that which can properly speaking be said to be his.1 Put in terms of the right holder’s domain of control, then, our present question is that of how to determine the extent of this domain. Why does an agent have “final say” over these matters rather than those ones? I begin with a point of clarification, and a caveat: “control” over an object in a person’s domain comes in two varieties. Negative control is the power to prohibit others from interfering with the object; positive control is the power to command others to use, or protect, the object in certain ways. This distinction is, of course, the familiar one between negative and positive rights. In what follows I will show how we can attribute

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both forms of control to agents given the agency view. However, and as I have already indicated (3.2), positive rights are controversial, though I also noted that we can make sense of them on the value view. Even so, I do have certain reservations about such rights, and will voice them briefly in Chapter 7. In attempting to identify the rights of agents on the agency view, we must start with the notion briefly stated in the introduction to this part, of a right’s holding on account of the fact that the claim holder is an agent. An agent has ultimate value qua agent, and this value is associated with reasons other agents have to treat, or to avoid treating, that agent in certain ways. Applying the notion I used in stating the value view in 1.3, we can say that this is the kind of treatment that is appropriate or fitting to his status as agent. Further, there are two aspects of this notion of “fitting treatment.” The first aspect, which we could perhaps call “formal” amounts to ceding to the right holder a domain of control, of treating him as being “in charge” over certain matters by having the power to generate relational exclusionary reasons. This is the aspect covered in the last chapter. But the other aspect, which we could call “material,” concerns precisely the identity of these “matters,” and the corresponding first-order reasons. In other words, some assignments of content to the domain of control are more fitting than others. On the agency view, we could express the distinction between the two aspects as follows: “formally” speaking, it has to make sense to suppose that a being like this (i.e., an agent) stands in this kind of relation (i.e., that of control) to a certain set of objects, whichever they are, rather than its simply being the case that the rest of us have (first-order) reason to treat that being in certain ways with respect to that set of objects; “materially” speaking, it has to make sense to suppose that a being like this has control over these things, rather than those ones. Further, to understand the agency view it is crucial to realize that the “like this” stands for the same set of properties in both cases: specifically, I suggested in 4.2, “normative agency.” To recall, a normative agent, as defined by Griffin, is a being with the “capacity to choose and pursue [its] conception of a worthwhile life” (2008, p. 45).2 That is, it is precisely this property of an agent that explains both why he has rights at all, and which particular rights he has. In other words, any suggestion about the nature of appropriate treatment must be justified by appeal to the essential nature of agents, as opposed to various contingent properties of them. It has to make sense to say that beings that are like that ought to be treated like this. Specifically, any attribution of rights must match the essential features of agency that make it valuable. That is what is involved in appropriate treatment of an agent qua agent. It may certainly be objected that the agency view, so described, is excessively theoretical. I have indirectly touched on this worry already (4.2), when I suggested that we may have to “work from both ends” in identifying agents’ rights. In a different terminology, borrowed from Griffin

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(2008, p. 29), we could distinguish between a “bottom-up” and a “topdown” approach to rights. That is, either we start from a concrete list of rights culled from our actual practices and derive a theoretical account to fit that list, or we begin with the theoretical account and derive the list from it. As I indicated in my earlier discussion, some combination of these two approaches is probably needed. I will therefore use the following procedure. In the first place, I provide an attractive list of basic rights, which in turn fits well enough with the tradition of human rights. I then attempt to show that this list of rights, or at least something close enough to it, makes sense in light of the agency view, and in particular the ideas just canvassed, that an agent’s value stems from his ability to choose a distinct life, and that appropriate treatment of such a being is given by according him certain powers. This procedure is a significant concession to the bottom-up approach in that it amounts to treating the rights on the list as a kind of “litmus test”: the agency view is acceptable only if it can account for them—as I will argue it can, or at least well enough. On the other hand, I will treat other supposed rights somewhat less reverentially: while it is clearly an advantage of the agency view to be able to account for them as well—and I will be asking to what extent it can—it is not absolutely essential. When it comes to the list of basic rights I just mentioned, there is no reason to strive for originality. So I will simply help myself to the three “highest-level” (meaning basic) rights championed by Griffin (2008), which I find congenial. As I have made clear before, I am not out to develop a complete account of moral rights, and therefore it does not matter to my purposes whether Griffin’s list of rights is acceptable in its last detail—though of course it needs to be at least roughly correct. First, then, there is the right to autonomy, which Griffin defines as an ability “to choose one’s own path through life,” which in turn requires that one “not be dominated or controlled by someone or something else.” Then there is the right to liberty, that “others not stop one from pursuing what one sees as a worthwhile life.” Finally, there is the right to minimum provision, by which Griffin means access to “minimum education and information” and “minimum provision of resources and capabilities” needed for choosing a path and then following it. (p. 33).3 This last right is clearly positive. Now, I have spoken about the agency view’s “accounting for” certain rights. By that I mean that there is an argument of the type described earlier, showing, at the very least, (i) that it “makes sense” to assign the relevant object to an agent’s domain of control, given the very properties of the agent in virtue of which it has such a domain at all (i.e., its normative agency), and (ii) that it makes more sense to do so than not to do so. Indeed, preferably the argument will show that it does not make sense at all not to assign the object to an agent’s domain (given that the domain is non-empty). I recognize that this is a rather loose form of argument, though I also doubt that anything stricter is available. It is also unlikely to

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yield any very precise account of the contents of a person’s rights. However, for our purposes here, an imprecise account will do. I also remind the reader that the aim of what follows is not to argue for the very existence of rights, as I am taking that for granted, but rather to show which rights we can plausibly attribute to agents given the agency view.

2.

Basic Rights: Agency and the Body

After the previous general remarks, we may turn to an investigation into the rights that can plausibly be accounted for on the agency view. Again, we may begin by assuming that there is a domain of control for each person: as we saw in Chapter 5, it is what an agent’s value as such consists in. When we ask next what is in that domain, we note that it must at the very least include agency itself. After all, it is precisely in virtue of his agency that the agent has any such domain at all, as it is what makes the relevant type of “control” possible. That is what I argued in the last chapter. It is indeed hard to see how a person’s agency could not be in his domain, if anything is, as his agency is his ability to exercise control. Now, to say that a person’s agency is in his domain of control means two things. In the first place, it means that the agent is in control of the capacity. It may not be impaired without his consent, and others are also required to prevent and ameliorate such impairment, at least within certain limits. But second, the agent’s control of his agency also means that he is in charge of its use. What does that mean? To answer this question we need to be more precise about agency. We return again to the notion of normative agency. Within this notion we can distinguish an internal and an external component.4 The internal component consists of the psychological workings of agency, forming judgments of value, and about a worthwhile life in particular, and making decisions based on them. The external component is the ability to realize one’s conception of a valuable life by using one’s body—and, indirectly, one’s mind—to alter the physical environment. (The “external” component, then, is external relative to the agent’s will, rather than his body.) To be in charge of one’s agency means being in charge of both components. Let us now consider what that amounts to. In the first place, being in charge of the internal component corresponds more or less to being autonomous, as that notion is often understood. To be autonomous in the relevant sense implies that one’s judgments and decisions are genuinely one’s own, rather than someone else’s.5 While others of course may quite properly exercise a certain influence on the agent, this influence must not rise to the level where another determines what the agent believes, wants, feels or decides. It is admittedly not clear how to draw the line between influence and determination, and this is in any case not the place for an extended treatment of that problem.6 Instead I will simply take for granted that a plausible line can be drawn. What matters for our purposes is that intervention in another’s decision making that

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amounts to determination, however exactly the latter is specified—and perhaps also some very strong forms of influence—infringe the agent’s right to use his agency, by usurping his control to an unacceptable extent. However, it also seems that “autonomy,” as typically understood, includes more than this type of independence from others, for it seems that one can fail to be autonomous due to impersonal causes as well. Apart from the obvious, and extreme, case of mental illness, it seems that a person’s autonomy can be called into question due to phenomena such as wishful thinking, conformism or even plain thoughtlessness. Griffin suggests the following definition of autonomy: “a capacity to recognize good-making features of human life, both prudential and moral, which can lead to the appropriate motivation and action” (2008, p. 156).7 This formulation, which seems to presuppose an objectivist view of “goodmaking features” (which I have of course endorsed), presumably implies that any factor that reduces this capacity to recognize good-making features, whatever its nature, also reduces autonomy. I am inclined to agree that the internal component of agency does include such a capacity, but would add to it the ability to translate one’s value judgments into decision and action (but not the “external” ability to actually bring about change in the external world). As a consequence, the right to autonomy is not merely negative. That is, the agency view allows that, at least in some cases, an agent suffering from reduced autonomy due to natural causes could have a right to treatment that restores his autonomy. The justification of his right is the same as that of the negative right not to be subject to another’s domination. If the right is not satisfied, the person cannot meaningfully be said to be in charge of his agency, but his agency’s being in his domain of control entails precisely a right to be in charge. Turning now to the external component, the ability to realize one’s conception of a valuable life by altering the physical environment, we find the terrain more hazardous. Given that this ability is value-making, which reasons does it generate in others? At a general level, the answer seems inevitable: they are reasons to respect the ability, meaning not to interfere with, and to facilitate, its exercise.8 I want now to consider these. While the former, seemingly negative, reasons may seem more straightforward, it is actually more useful to begin with the latter. To address it, we need to ask two questions: (a) what is involved in “facilitating” others’ exercise of their capacity to realize their conception of life and (b) to what extent are we all obligated to do so, given the agency view? Considering (a), we may note that, given that we are now dealing with an ability to alter the physical environment, the relevant “facilitation” must consist in enhancing the agent’s ability to do just that. This it is possible to do in various ways, both by changing the agent himself (physically) and by changing his environment. It may also involve changing the agent psychologically—that depends on precisely how we draw the line between external and internal components: it is particularly unclear how

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to classify information about available options, which obviously is a quite useful resource. However, here I will lay more stress on interventions in the agent’s environment, consisting mainly in affecting the set of options available to him, taking his present capacities as given. It is possible that changes to the agent himself, mentally or physically, raise special difficulties (beyond the obvious fact that they typically require his consent), but I will have to ignore these here. And so we are led to question (b), interpreted, largely for simplicity’s sake, as concerning the extent to which others are obligated to alter an agent’s environment, so as to provide him with options. Clearly this right has to be restricted to some extent: an arbitrary power to obligate others to aid one in realizing one’s conception of life is impossible to reconcile with the independence of agents. (Also see my remarks in 2.3B about the immunities of right holders on the value view.) Griffin, on his part, responds to this problem by attributing to all agents a right to “liberty,” which includes “being able, with normal chances of success, to pursue one’s conception of life” (2008, p. 164). This right is not merely negative: it corresponds also with certain obligations to provide agents with a sufficiently rich set of options (ibid., pp. 166–7). To be sure, Griffin’s right to liberty is also subject to significant qualifications: “to ensure equal liberty for all, to accommodate demands of justice, to prevent wasteful, inefficient use of public funds” (ibid., p. 164). Hence its actual range of application is bound to be rather vague.9 It is also unclear what distinguishes the positive right to liberty from Griffin’s third right to “minimum provision.” (I note that Griffin’s earlier formulations of the right to liberty, on pp. 33 and 149, strongly suggest that the right to liberty is negative, and also that that is what distinguishes it from the right to minimum provision.) In any case, though, Griffin’s right to liberty, as just described, strikes me as too strong.10 That is because, even with the qualifications, a person does not have a right to a normal chance to realize whatever conception of life he happens to have, meaning that others are obligated to see to it that he has the requisite options—at least as long as he has other reasonably good, albeit not preferred, options. Persons must be prepared to adapt to their circumstances, to some extent, even if others are able to alter these circumstances at little cost to themselves.11 At the same time, though, a person reduced to embracing whatever conception of life, if any, he can realize (with a “normal chance of success”) in whatever circumstances he happens to find himself could hardly be said to have any “liberty” to speak of. Some sort of compromise is clearly needed. What should it look like? In the first place, we must take account of the fact that one can realize one’s “conception of life” to a greater and a lesser degree. When I objected previously that Griffin’s right seems too strong, I implicitly interpreted it as according to persons a “normal chance of success” at realizing their particular conceptions to a high degree, or alternatively, at

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a specific level. For instance, it is dubious at best that you would have a right to a “normal chance of success” at a career as an academic philosopher, even if we suppose that you could be afforded that chance at no cost to anyone else. But what if all you asked was to have the opportunity to pursue your philosophical interests in your spare time? Even that actually seems rather dubious. After all, what would it involve (beyond mere non-interference): subsidized philosophy books? Yet at some point it would seem that your ability to realize your conception—as opposed, I should stress, to your prospects of securing whatever other rights you may have—has contracted into an unacceptably narrow sphere, so that you are deprived of the kind of control over your life that an agent should have: you are no longer “in charge,” but rather constantly find yourself buffeted about by external forces. The difficulty, obviously, is that of saying something useful about how narrow this sphere has to get before the person’s right to control is infringed. To be sure, we are here facing an instance of a quite general problem in moral philosophy. It is the problem of drawing a line, of determining how much is “enough.”12 I very much doubt that there is a general solution to this problem. It is one we simply have to live with. But I also want to make some remarks about this particular case. First, Griffin’s “normative agency” is the capacity to “choose and pursue one’s conception of a worthwhile life” (2008, p. 45). This reference to a conception of a worthwhile life gives us a pointer. Griffin admittedly has a fairly modest take on what such a conception entails.13 But at least it tells us that a normative agent is able to make and pursue reasonably long-range plans, in light of judgments about what one wants one’s life, or at least significant chunks of it, to be as a whole. Consequently, a right to control must include the opportunity to do just that. A second point is that control would seem to require options. Again it is unclear how wide a set of options is needed. To some extent, though, a person should be able to choose, within his “conception of life,” how to prioritize between the various things he values and thereby how precisely he is to realize his conception. But it also seems that he should have the opportunity to modify his conception in various ways, perhaps without necessarily abandoning it altogether, in the light of circumstances, and still be able to realize the modified conception, with a normal chance of success. To have a name for this idea, I will say that an agent has a right to a “decent set of options.”14 A third point concerns content rather than structure. Options are decent only if they are opportunities to realize value, through the exercise of agency—and remember that I have assumed that value is an objective notion. (In talking about “realizing value” here, I am not talking exclusively about the results of actions; the performance itself can be valuable). The rationale behind this additional requirement is that agency is, in effect, a capacity to realize value, and is valuable for precisely that

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reason (which is not to say that its value is simply derived from the value the agent realizes through it). In a way this addition helps little, as it does not say anything about how many “decent” options make up a decent set, nor how much value one is supposed to be able to realize, and probably we cannot get very far with these problems. There is an irreducible element of indeterminacy here. Also, the point is not that the mere presence of valuable options is itself sufficient for the right to a decent set of options to be satisfied. It is necessary also that their successful pursuit serve to realize the agent’s conception of life, at least at some level of generality. Options one has no interest in are not, typically at least, relevant to one’s right, even if they “realize value.” Indeed, the ability to experience a sense of fulfillment or meaningfulness in response to one’s activities itself seems a value-making element of agency and thus should be reflected somehow on the agency view. A natural proposal is that the right to a decent set of options also includes a right to an opportunity (a “normal chance”) at fulfillment.15 With these, admittedly incomplete, remarks I leave the positive right to control (understood now as a right to a “decent set of options”) and turn to its negative counterpart. On the face of it, this right corresponds to purely negative reasons not to prevent others from acting or impose costs on their choices. If we look to Griffin for assistance, we find that he includes rights to be free from “compulsion” and “constraint” under the heading of the right to “liberty,” (2008, p. 160).16 It is not clear what they add to our other rights, however. For if another’s compulsion or constraint effectively reduces my set of options below the threshold of “decency,” that by itself makes his act a right infringement. Further, if he compels me by using violence, or by threatening to do so, that by itself should again count as a right infringement, provided the action I am thereby prevented from performing is one I had a liberty to perform (though we have not necessarily shown that to be the case—but see the following).17 Finally, if another simply prevents me from doing something without satisfying either of the two conditions just mentioned, it is far from clear that he infringes any right of mine at all. For instance, just by sitting on a certain chair you effectively “constrain” me from sitting on it, but you do not necessarily infringe any right of mine thereby. Indeed, your action (trivially) infringes my right only when you prevent me from doing something I have a right to do. All in all, then, we may ignore the right to be free from compulsion and constraint, and probably also the negative right to control more generally. We have now drawn the implications of the fact that a person’s agency is in his domain of control. In so doing we have understood agency as Griffin-style “normative agency,” conceiving it as consisting of both an internal and an external component. We can add to these observations that if that domain includes the person’s agency, it must perforce also

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include the means necessary for agency to function, insofar as these means are in others’ power to provide. Here we can appeal to a general principle of right derivation: if something X is part of the domain of control, and being in control of X entails being in control of Y, then Y is also in the domain in a secondary sense—unless it is already part of someone else’s domain.18 Much, if not all, of that covered by Griffin’s right to “minimum provision” can be accounted for in this indirect fashion. The list of rights we have thus far been able to establish is rather short, and certainly does not cover all the rights familiar from the literature. The problem, obviously, is that I have assumed that our rights have to be grounded in normative agency, i.e., the very capacity in virtue of which we can have rights at all. However, just as we can have a more or less generous conception of agency itself (as noted in 4.2), we can have a more or less generous understanding of what is included in normative agency— that is, remember, the capacity to choose and pursue one’s conception of a worthwhile life. For within a generous understanding it will also include capacities that may or may not be included in the minimal set from 4.2, but which can plausibly be argued to ground familiar rights. With such a generous understanding, then, these capacities should also belong to the domain of control. Kamm’s account of freedom of speech, cited earlier (3.1), serves as a paradigm case here (albeit underdeveloped). Again, she writes: “The right to speak freely may simply be the only appropriate way to treat people with minds of their own and the capacity to use means to express it” (2007, p. 247). Here Kamm refers to one aspect of agency, and it makes sense to talk of honoring other persons in virtue not simply of being agents in general but in virtue of possessing that particular aspect of agency. An argument can be offered for why respecting this particular set of abilities takes the form both of refraining from interference with their exercise and of preventing the interference of others—though we may well need to take other factors into consideration if we are to explain the exact shape of the right, including its various exceptions and so forth. Further, it is possible to generalize from this example, and ground other rights in other components of agency not in the minimal set. Consider, for instance, the freedom of religion. It is plausibly grounded in agents’ ability to form a view of what gives meaning to their lives, and in particular their ability to see that meaning as tied to something that transcends their own lives and experience. Whether or not we agree that there is any such meaning in a person’s life, we can agree that the ability to form the conception is value-making. We have identified the “external component” of agency as the ability to realize one’s conception of a valuable life by altering the physical environment. This ability would seem to presuppose a body, and offhand that body should also be in the domain. That in turn is naturally taken to mean at least that no one may remove, paralyze or otherwise damage parts of the agent’s body without his consent. It may also include the

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power to demand positive assistance in preventing and ameliorating such harms. Further, the reason we would likely give for including the body in the domain is, applying the principle of derivation stated previously, that it is an essential instrument of agency: one cannot act without a body. However, there is a problem here because most parts of a human body are not individually necessary for agency, or even for having a decent set of options. Indeed, some parts (such as, notoriously, the appendix) have no agency-related function at all. Yet we tend to think of all parts of the body—perhaps with some exceptions that can easily be replaced, such as hair or nails—as “sacred.”19 Even removing someone’s appendix without his consent is a right infringement, if not a terribly serious one. Removing a finger is certainly a right infringement, even if it is possible to live a perfectly normal life with only nine fingers. How, then, can the body’s “sacredness” be accounted for? To accommodate the body in the domain of control, I believe, we need to focus on another central fact about it. For the body is constitutive of the agent, as are all its parts. There can be no agent without a body, though the agent is of course not identical with this particular body with all its parts, or perhaps even with any of its parts. Agents are essentially embodied beings (or at least human agents are). I am not saying here that the body is constitutive of agency—though that is presumably also true. I am saying precisely that it is constitutive of the agent. The present point, then, is not that the body, or at least some parts of it, is useful or even essential to the exercise of agency. Indeed, we could say that the body itself is value-making because of its constitutive nature, and not simply because of its usefulness. The body is not just a tool. It is part of the thing that uses tools. A right to the body, independent of its usefulness, is precisely a way of reflecting that fact about agents.20 How far does this “right to the body” extend? From what I have said so far, it seems that it accommodates the right against having body parts incapacitated or removed. But the idea of the body as “sacred” may well be taken to go much further. For we might want to maintain that we have rights even against others touching our bodies without our permission, even if such touching does not in any measure affect our ability to realize value. Certainly the notion of “authority,” that the agency view sees as characteristic of rights, fits these cases well intuitively speaking. Whether others are allowed to touch us is “up to us” in a way that it is not “up to us” whether they act in other ways that matter to our interests. We may “command” others not to touch us. In that respect such cases differ from others that might involve relational reasons that we would not classify as obligations (remember, e.g., the distinguished philosopher about to retire from 2.2). I am frankly not sure what to say about this purported right against not being touched, nor do I find the issue crucial. I therefore leave it aside here, though I would have preferred to be able to say more.

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Extending the List?

Now, while I contend that the specification of the domain of control I have defended does allow us to include within that domain the objects of Griffin’s “highest-order rights”—meaning that which is needed to function as an agent, on a generous interpretation of that notion—he would no doubt still object that my characterization of rights is too rarefied. No doubt many will agree with him. Further, it is not clear that it is possible to extend the agency view to accommodate any additional rights—unless, of course, they can somehow be derived from those outlined in the preceding section (and more of that in the following). As we have seen, this is because the agency view only allows us to appeal to facts about agents that are essential to them (and specifically their normative agency). But many frequently recognized rights seem to require a richer ground. This type of criticism could move in several different directions, of which two will be of particular interest here. In one version it highlights the familiar notion of human rights. I have been talking about rights that agents, typically human, have in virtue of being agents, but according to this line of criticism human rights belong to us because we are human beings, agents or not. In an alternative, compromise, interpretation, we have rights because we are human agents. Either way, a richer account of the ground of rights should be able to yield a correspondingly richer array of rights.21 At least on the face of it, this extension will look like a gain. Consider, for instance, the familiar contrast between a human and an animal life, where the latter is supposedly an incessant rat race devoted entirely to feeding, fleeing from predators, and occasionally procreating. A characteristically human existence should also include opportunities for, among other things, play, artistic expression, and loving relationships. And, it could be argued, human beings have rights to the corresponding opportunities (though the details of these rights may need further discussion). But it is not clear how to arrive at anything like these rights from the sparse set I have outlined previously. After all, these properties cannot be seen as essential to “normative agency,” even on a “generous” construal, such as that considered in the preceding section. Now, while I take the view I am now hinting at to be incompatible with the agency view, I assume that it can be combined with the weaker value view. It is no doubt possible to understand it differently, but I will not be concerned with such views here. That assumption made, we find that the alternative “humanity view” holds that the value constituted by rights stems not from agency but rather from humanity, or possibly from human agency. However, this feature of the humanity view is also its undoing. It simply is not believable that species membership per se is a value-making feature. I would say the same about the more abstract property of belonging to a species (human or not) among whose characteristic features are just those features we would describe as “characteristically

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human” (insert list here). In making these assertions I choose a side in an infected and long-standing debate. Yet I will offer no defense of my position, nor respond to opposing ones. Instead I turn to the other version of the “too narrow a range of rights” criticism. On this alternative suggestion, which again I assume is compatible with the value view but not with the agency view, the ground of rights is not humanity as such, or even human agency, but rather simply the possession of all the various “characteristically human” properties that we also think of as value-making, such as capacities for artistic expression, play and loving relationships (to use the examples I mentioned previously)—quite independently of species membership. This proposal retains a connection with the original agency view, as agency still plays a crucial unifying role. So it would make some sense to say that possession of the relevant capacities makes an agent (more) valuable “as an agent.” For that reason, I choose to call it “the extended agency view.” There are two features of this suggestion that make the extended agency view unappealing to most rights theorists. In the first place it renders acute a difficulty I claimed to have resolved earlier (in 4.3), namely that of explaining why all right holders have the same value/basic rights. As long as we stick to the simple idea that the ground of rights is agency, the kind of solution I proposed, in terms of the notion of having a life to live, at least has some chance of working. But once we go beyond that idea and point also to, say, the capacity for artistic creativity as a ground of basic rights, we have to concede that some right holders simply lack certain relevant value-making features altogether. Not all are creative, for instance. Second, the effort to contain the set of right-grounding features to “characteristically human” ones is bound to fail, barring an appeal to species membership. On the face of it, at any rate, there is no way of preventing that set from containing all value-making features of right holders that presuppose agency—capacities mostly, presumably. But no one wants that kind of inflation. Now, it may be possible to get around this last worry by distinguishing between such agency-presupposing capacities that contribute by themselves to their possessor’s value, and those that do so only in virtue of their exercise, maintaining that only capacities of the former kind are in the domain. For instance, the capacity for loving relationships may belong in the former category, and the capacity to play the piano in the latter. This distinction’s pleasingly binary character gives it an advantage over appeals to the degree to which different capacities contribute to a person’s value (e.g., the capacity for loving relationships is more important than the capacity for wiggling one’s ears). At the same time, though this distinction does seem significant somehow, the proposal would seem to need a clearer rationale. In any case, it should be clear what is wrong with the extended agency view from the perspective of the original “narrow” agency view. For the

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value of the capacity for loving relationships (or to play the piano, for that matter) is not analogous to the value of agency itself, and so it is not clear that we should conclude that this capacity gives rise to any power to generate relational exclusionary reasons beyond those generated by agency itself. Indeed, what I have in effect been saying is that exclusionary reasons come precisely from agency as such. It is not that this kind of agency (or the ability to do this) yields such reasons but that kind (or the ability to do that) does not. The ability to do this in particular does not make one more of an agent in the sense relevant to rights. Further, while these more specific capacities may well be value-making (and even value-making by themselves), the question remains why this value is not adequately accounted for in terms of first-order reasons. This question will seem especially pressing in the case of those capacities that are valuemaking only in virtue of their exercise (such as that of playing the piano). A person may acquire a kind of value because of such exercises, and the reasons corresponding to that value are reasons of desert—and here I hark back to my earlier discussion of desert in 3.2. For instance, a skilled pianist may deserve accolades for her performances, and presumably a certain esteem for her mere capacity. Yet these reasons are not obligations. I concede, though, that many are likely to remain unconvinced. They will insist that at least “characteristically human” capacities such as those I have mentioned, do belong in a person’s domain of control—though the exact details may be a matter for further discussion. On the assumption, which I will not contest, that the agency view needs to accommodate some such rights, the only way to go seems to be to maintain that any rights we wish to uphold beyond the narrow range outlined earlier are derivable somehow from those rights. In saying this I am in much the same boat, or at least leaky tub, with Griffin (or possibly his tub is somewhat more capacious). As he himself recognizes (2008, p. 149), he has to show that all the “human” rights he countenances can be derived from the trio of “highest-order” rights to autonomy, liberty and minimum provision. It is certainly not obvious that such a project can succeed.22 I cannot delve further into this matter. Beyond referring the reader to Griffin’s arguments, many of which I endorse and could make use of myself, I note a natural and attractive proposal, well in line with the account offered in the preceding section. It is that opportunities for loving relationships, play, creativity and the like will be part of the conceptions of life of almost all human beings, and hence that their set of options will not seem “decent” without such opportunities. Before concluding this chapter, I will quite briefly address two other rights, or right types, that are hard to fit into the agency view. The first one, which concerns Griffin also (2008, pp. 51–6), is the right against the infliction of pain.23 In particular, most believers in human rights acknowledge a right not to be tortured. It would further seem that this right exists in part because of the strong interest that all human beings have in being

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spared great physical pain—though there may well be more to the story (see 11.6). And this interest has at best an unclear connection to agency. Now, fitting brute physical pain into an otherwise plausible moral framework strikes me as a very difficult challenge in any case, and certainly an important one, but I cannot undertake it here. For all I am going to say, then, the agency view cannot account for the right not to be tortured. If so, I freely grant, it needs supplementation. Still, I should add, in fairness, that I believe that such an account is possible, though it may require rethinking the right in question. The second problem case is that of rights to equal treatment. This is another large topic which I can only treat cursorily here. As we have seen (4.3), the agency view is naturally interpreted as implying that all agents have the same basic rights, but even if that implication is genuine, it does not follow that one agent could ever claim some treatment on the mere grounds that others have received, or are receiving, that same treatment— which is what a right to equal treatment would seem to amount to. While I would not deny categorically that certain rights to equal treatment, and then particularly rights against the state, exist, it is not easy to see how to account for them on the agency view. After all, what would be the rightgrounding feature? Remember, given the value view, it would also have to be value-making. I find attractive here the proposal that the wronging involved in such cases is a kind of “judgmental” injustice (briefly touched on in 3.2), but I cannot expand on the matter here.24 It is time for a brief summary of this chapter. In the preceding chapter I argued that the agency view can explain why agents have rights at all—or why they have a “domain of control.” In this chapter I argued that in determining the content of this domain we may appeal only to “normative agency,” interpreted generously, which yields the set of basic rights. These are rights to agency itself, negative and positive, and to the agent’s body. The positive right to agency includes a right to a “decent set of options” which cannot be delimited precisely. Some other rights tied to agency itself (I mentioned freedom of speech and religion) may also be established in this way. Additional rights have to be derived from the basic ones if they are to be vindicated on the agency view.

Notes 1. For a related idea, which has influenced me, see Walen’s notion of a person’s “toolkit” (2016). 2. For a description of Griffin’s notion of a “conception of life,” touched on in 4.2, see (2008, p. 46). 3. To be sure, there is no reason to attribute to Griffin the belief that all of these rights correspond to second-order reasons, rather than simply first-order ones. He rarely discusses that issue. 4. Griffin does not make quite this distinction, but as we will see it corresponds reasonably well to his distinction between “autonomy” on the one hand and “liberty” (and “minimum provision”) on the other.

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5. This may sound like a tautology: how could “my” judgment or decision not be “my own”? The solution is that the possessive pronoun “my” here is ambiguous, though its exact interpretation is naturally contentious. In the first occurrence it refers to mental items that appear “in my mind”—and here we would in the end need some account of what makes a mind “mine.” In the second occurrence it refers to such items that are attributable to me in the sense I have been using (see the end 4.3). 6. I have discussed this matter at some length elsewhere (Alm 2015). 7. He also defines an “autonomous decision” as one “that results from one’s exercising one’s capacity to distinguish true values from false, good reasons from bad” (2008, p. 150). 8. I take these to include or entail reasons not to deprive a person of the very capacity itself, and to preserve it if threatened, but I will not say much about these reasons. 9. Griffin is of course well aware of this problem, which also affects many other rights. In his view, therefore, we are to complement agency or personhood as a ground of rights with what he calls “practicalities,” which would allow us to formulate rights with greater precision (2008, pp. 37–9). For some remarks relevant to this issue, see my reply to the first objection in 3.2. 10. There is, admittedly, some uncertainty about just how far Griffin is prepared to go. His most striking example is rather special, as it concerns parental obligations (2008, p. 166). 11. On a plausible interpretation, Griffin’s right to liberty should be understood as according each person, at each time, a normal chance of realizing whatever conception he happens to hold at that time. That way it can accommodate the familiar fact that conceptions tend to change over time, and also gives some heed to persons who fail to realize their favored conception, despite having been accorded a “normal chance” of success, allowing them a chance at realizing some “backup plan.” 12. For an argument that this line cannot be drawn in the case at hand, see van Duffel (2011). 13. Again, see 4.2. 14. So what of the fortunate, if unlikely, agent who finds his circumstances to be precisely the way he wants them, and his life going just the way he wants it, despite lacking control (indeed, perhaps this lack of control is part of what he wants)? Can he complain? I am frankly not sure what to say about this case. 15. There are complications here, obviously. Suppose you could only experience fulfillment with the aid of drugs or psychotherapy, would you then have a right to these drugs or psychotherapy? Would that change if you could also attain fulfillment given a wider, or at least different, set of options than your present one? Or compare two people who both have to adjust to some change that prevents them from realizing their previous conception: one is able to adjust to the change and find fulfillment and the other is not. Are we then to say that the latter’s right is infringed if we do nothing but the former’s is not? I will have to leave these and other questions aside. 16. Griffin seems to use the terms ‘compulsion’ and ‘constraint’ to refer to different phenomena, but I am not sure precisely what distinction he has in mind. We can set that issue aside here. Also, a right to be free from compulsion and/ or constraint is fairly naturally understood as in part positive, as it requires others, to some unclear extent, to prevent third parties from compelling or constraining right holders. We can set aside that complication as well. 17. I do not here presuppose, nor for that matter do I possess, a general account of what makes it wrong to threaten harm or other right violations. I am aware that the matter is contentious. See Anderson (2015).

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18. This principle of derivation is in line with my discussion of derived claims in 1.2. 19. I am not sure how far Griffin would go here. His list of “highest-order rights” does not explicitly mention the body. However, he later maintains that there is a right to “bodily integrity,” which would seem to correspond reasonably well to the one I outline in the text (or at least its negative part). He also asserts, without elaborating, that this right can be “derived from normative agency” because one can have no “security of agency” without it (2008, p. 239). 20. Similarly, Kamm holds that we have a right to both of our kidneys even though we do not need both to function as agents (though surely they are “useful”), and suggests that there are “fundamental rights to those things that make one a separate person (e.g., one’s body parts)” (2007, p. 278n33). 21. Griffin himself seems to be leaning in this direction—see, e.g., (2008, pp. 34–5). (He also insists that only normative agents have rights, partly as a matter of stipulation [ibid., p. 84].) But is he really in a position to make this move? After all he talks himself of “personhood” as the ground of rights, and about “what is needed to function as a normative agent.” He is well aware of this worry and tries to deal with it (ibid, p. 35), but I will not pause to assess his response. 22. For criticism of Griffin on this score, see, e.g., Tasioulas (2010). Griffin (2010) responds. Liao and Etinson (2012) come to his aid. 23. For a critique of Griffin on this matter, see Liao (2010). 24. See Alm (2010).

7

The Strength of Claims (and Rights)

It is commonly held that claims have weight or importance or stringency or strength. (I will use the last of these terms.) We have also assumed that a right will always contain a claim, if not necessarily as a central element, and the strength of that claim is also the strength of the right containing it. Further, as a claim corresponds to an obligation, these would therefore share strength. Finally, as an obligation is a reason for action, its strength is the strength of that reason. Can the agency view make sense of this notion of strength?

1.

Preliminaries

The notion of the strength of a claim or right could be said to play two possible roles, roughly corresponding to the distinction between strong and weak senses of ‘reason for action,’ introduced in 2.2 and rehearsed in Chapter 5. In the first place, then, it could be relevant for determining what the obligation bearer ought to do all things considered (i.e., his duty). Remember, the latter is determined by reasons to act in the strong sense. The notion of strength plays this role when we ask whether an obligation is overridden by a stronger obligation, or indeed a reason of some other type, and so whether the infringement of an obligation is also a violation of it. In the first section of this chapter, I will argue that, on the agency view, the notion of right strength does not play this role. This is because, on the agency view, rights cannot be overridden. Call this the “No override thesis”—or NOT for short. I will offer an incomplete defense of it in section 2, returning to the missing piece in the following chapter—though I concede that the issue is ultimately too large to admit of anything like a full treatment in this book. NOT is in turn connected with the principle BNE stated in 2.2. Remember: BNE. An infringement is a violation if it is contrary to the balance of the agent’s non-excluded reasons.

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Unfortunately, there is an annoying problem with this formulation in the present context: it pragmatically implies that there are justified right infringements, and I have just claimed that the agency view entails the opposite. I fear that rephrasing BNE to deal with this problem would be more trouble than it is worth, and I will therefore sidestep it by replacing BNE with the following weaker thesis: ERI. Excluded reasons are irrelevant to what we ought to do. ERI is in any case the controversial and interesting element of BNE, so the weakening is no significant loss. The link between ERI and NOT is the following: the reason why a right cannot be overridden is, in part, that the reasons that would otherwise override the first-order reasons for the right it prescribes are excluded, and ERI tells us that these reasons are therefore not relevant to what the person ought to do. Hence, a defense of NOT presupposes a defense of ERI as well. The notion of right strength plays the second role when we are concerned with proportionality, that is, when we are trying to determine what we are permitted to do to another in defense of some right of ours, or in retaliation for its violation. Here we are concerned with reasons to act in the weak sense, tied to value rather than “ought”: the question that concerns us is that of how “bad” or “inappropriate” a violation of a given right would be. As I assume that the permissibility of acts of defense or retaliation presupposes that the other person lacks a right he would otherwise have had, it will concern us in Part III. Also, and as I will argue in Chapter 9, the agency view in any case does not countenance the loss of (basic) rights. Still, that view arguably does offer an account of right strength useful in determining proportionality. I will address it in section 4 of this chapter.

2.

Why Rights Cannot Be Overridden

We need first to remind ourselves what it is to have a right on the agency view. We have seen that it consists in “being in charge” over a certain matter, belonging to the right holder’s domain of control. To be “in charge” amounts to having a power to generate exclusionary reasons not to act on considerations contrary to the relevant claim. It is a central point that the notion of the strength of a claim has no role to play on this account. At an intuitive level, we can see this point when we realize that “being in charge” is not a matter of degree. Either you are in charge or you are not (as long as we are talking about being “in charge” of some specific thing). Or, alternatively, either you have “authority” over something or you do not. So if having a right is a matter of being in charge, a right could not be said to have strength either—or at least not in the sense in which it corresponds to the strength of a reason for action.

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It will likely be objected that this intuitive argument shows little of interest. For it cannot exclude that we determine who is “in charge” in the first place by appeal to something that at least looks a lot like right strength. For instance, it allows that we determine who is “in charge” simply by considering who has the strongest interest at stake. The result would be a view at least very similar to one saying that the strength of a person’s right is a function of the strength of some interest of his. This is a fair complaint, and in the following I will therefore argue more directly for NOT. Yet fairness also demands the following comment. The view of rights just suggested, or indeed any view according to which we determine who has a right in a given context by appeal to reason strength or something analogous also has to explain why mere differences in such strength can bring about the peculiar moral effect I have described as a right, including exclusionary reasons and ERI, and it is not clear to me how to do that. In particular I wonder why a mere difference in interests at stake, for instance, should not rather be accommodated by some sort of compromise, if only one weighted in favor of the party with the stronger interest.1 Setting that issue aside, let us now consider what can be said in favor of NOT. We should begin by returning to the value view’s claim that an obligation consists of two reasons, one first-order and the other exclusionary. What I want to argue now is that if a person indeed has the right to decide over a certain matter, then neither of these reasons can be overridden, and hence neither’s strength plays a part in determining what the obligation bearer ought to do. Or rather, neither does so directly. I will return to this very important qualification in Chapter 8. I consider the exclusionary-reason component first. Here I follow Raz in denying that an exclusionary reason could conflict with a first-order reason. Or rather, as he puts it, their conflict is only partial (1990, p. 188). For present purposes, what matters about such a conflict is that it is possible for the agent to conform with both of the conflicting reasons. In particular, it is possible to conform both with an exclusionary reason not to φ for R and a first-order reason to φ. That is, one does that by φ-ing for some reason other than R.2 Hence there are no genuine conflicts between exclusionary reasons and first-order reasons, and so the latter could not override the former.3 On the other hand, there is certainly no general obstacle to conflicts between second-order reasons. More precisely, there could be genuine (non-partial) conflicts between exclusionary reasons and positive secondorder reasons. For example, an exclusionary reason not to φ for R is in conflict with a reason to φ for R: it is impossible to conform with both. To tell whether the exclusionary-reason component of an obligation is indeed overridden in a given case, we need to ask whence these potentially overriding positive second-order reasons might come. There are two possibilities: they could be derived from first-order reasons or they could

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obtain independently. Let us begin with the former. There may be a variety of ways in which a second-order reason is derived from a first-order one. For one thing, the second-order reason could be instrumental relative to the first-order one, as when acting for some reason has consequences that one has a first-order reason to pursue or avoid. Perhaps acting for some reason tends to give one a pleasant sensation. Another form of derivation, more important, is noted by Raz (1990, p. 182): conforming with a second-order reason, which means acting for a certain first-order reason, automatically means conforming with that first-order reason. However, and as Raz also notes (ibid.), it does not follow that an agent who conforms to a given first-order reason R, but does not act for R (or, in Raz’s terms, fails to comply with R), has failed to conform with an additional second-order reason to act for R. Such a reason may or may not exist. This last point is important, as we will see in the following, and therefore needs belaboring a bit. It is tempting to think that a first-order reason R is necessarily, or automatically, accompanied by a further reason, second order in an extended sense, to give weight to or consider R in one’s deliberations. However, talk of “giving weight to” and (to a lesser extent, perhaps) “considering” a reason is ambiguous. On one interpretation, it means that one deliberates in a certain way (if not that one acts for the reason in question). Thus understood, and as we have in effect just noted, we should reject the notion of “automatic” second-order reasons to “give weight to” first-order reasons. The mere presence of a first-order reason R to φ implies that one has conformed to R if one φ’s, and no more. It does not necessarily matter whether one even gave thought to R in the deliberation leading up to one’s φ-ing. On the other interpretation, “giving weight” to R implies only that one is disposed to φ in certain circumstances, and in particular even when one recognizes certain countervailing reasons, if not others. Setting aside the, admittedly tricky, details of specifying the relevant disposition, we may note that on this interpretation a reason to “give weight” does not merit the label ‘second order,’ on any plausible definition of that term. “Giving weight” to a first-order reason, on this interpretation, is simply part of what it is to accept that reason to begin with. In sum, then, there is no interesting sense in which a first-order reason “automatically” entails a second-order one. I deny that a derived second-order reason (meaning that it is derived from a first-order reason) can override the exclusionary-reason component of an obligation, precisely because of its derived status. If an exclusionary reason is a reason not to act on a certain first-order reason, then there is something odd about its being overridden by another reason which is derived—and, we assume, wholly derived—from that same first-order reason. To explain the oddness, we note that a derived second-order reason’s strength must depend on that of the reason from which it is derived, and if the latter has no strength, or is irrelevant as per ERI, then the same should be true of the derived reason. If so, it cannot override the exclusionary

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reason. This move of course relies on ERI, which still needs a justification, but it strongly suggests that derived second-order reasons at least present no additional difficulty. But then what about non-derived second-order reasons that conflict with exclusionary reasons? Are there even such reasons? No doubt there are reasons for acting for a reason that are not instrumental in the standard sense. That is, clearly one could have a reason to act for, or against, a given first-order reason for its own sake (meaning that such acting-fora-reason has non-instrumental or final value). For instance, I might have a reason to act out of a sense of duty (as Kant thought), or not to act out of malice, because acting for these reasons is in itself good or bad, respectively. Further, while it would seem that the value of acting for these reasons is not independent of the value of simply conforming with the relevant first-order reasons, it may well be that the former value is explanatorily primary, or at least independent. At any rate that possibility cannot be excluded out of hand. Further, since the value of acting for a reason of one type may differ from that of acting for a reason of another type, there seems also to be a point in talking about the different strengths of these reasons. Supposing that such non-derived positive second-order reasons exist, what happens when they conflict with exclusionary reasons? As they are not derived, the argument applied previously is not available. However, we can deploy another strategy to explain why such reasons cannot override obligations. (It is actually applicable to derived positive secondorder reasons as well.) The key to this strategy is the fact that a (positive) second-order reason to φ for a reason is itself a reason to φ—that is, in this case, the derivation goes the other way compared to the case discussed earlier. For concreteness, return to the example from 2.2, in which A could save several lives only by killing B. This time, though, we add, for the sake of the example, that acting out of a desire to save lives is (always) good in itself. Then A has an underived second-order reason that, apparently, conflicts with the exclusionary reason yielded by B’s command that A not kill him. Now, if it is always good in itself to act in order to save lives, then A has an additional (first-order) reason for killing B, one that he does not have for killing B for some other reason. If we prefer, we could say that his killing B for that reason makes his action better than it would have been otherwise. But now, surely if B has the power to exclude other first-order reasons for killing him, such as that it would save the others, he should also be able to exclude the one that follows from the positive second-order reason. But that is tantamount to his having the power to exclude the second-order reason as well. If the first-order reason derived from the second-order reason is irrelevant (again, of course, as per ERI)—if the value A could realize by acting in order to save lives does not count—then the second-order reason itself does not count.4

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Now, the types of conflicts I have been considering, between exclusionary reasons and positive second-order reasons, may in any case seem of secondary interest to rights theorists. The most interesting conflicts, it may be alleged, are those where exclusionary reasons conflict with one another, for that is precisely the kind of conflict that will obtain when rights themselves clash (see the following section, and also 7.5 for more on these purported conflicts). I agree that such conflicts are possible, in a way. This is because the exclusionary reasons that help constitute obligations are, typically at least, most plausibly understood as excluding all reasons for (potentially) not doing the obligatory action. Then a situation of the following type is possible. We have, on the one hand, an exclusionary reason not to act on any consideration but a concern for A’s welfare (part of a purported obligation to A) and an exclusionary reason not to act on any consideration but a concern for B’s welfare (part of a purported obligation to B). It seems that it is impossible to conform with both, as long as one acts at all, so we are dealing with a genuine conflict, if only an indirect one, as it were. How are we to deal with this kind of case? In the first place, we should note that cases with a parallel structure are possible with first-order reasons. For instance, I could have a reason not to do anything other than to φ, and simultaneously a reason not do anything other than to ψ. Again I could conform with both only by not acting at all. However, such a conflict seems more or less indistinguishable from a “regular” conflict between reasons for φ-ing and ψ-ing, respectively. After all, a reason against φ-ing is automatically a reason for not φ-ing. Further, the reason against doing anything other than φ-ing means that φ-ing is, pro tanto, better than not φ-ing. This is a comparative fact, which would explain why a reason for one thing and a reason against its negation come to the same thing. It follows that there is an outright conflict in the firstorder reason case just described, for the reasons correspond to incompatible value judgments (that φ-ing is pro tanto better than not φ-ing, and that not φ-ing is pro tanto better than φ-ing, respectively). But now, an indirect conflict of exclusionary reasons, like the one described two paragraphs back, is different. To be sure, exclusionary reasons can correspond to value in the direct way that first-order reasons do. As noted, that is what happens when (say) I have a reason not to act maliciously, where so acting is itself bad. This reason presumably does have a strength corresponding to precisely how bad it is to act maliciously. But exclusionary reasons that make up obligations are not like that. As I argued in Chapter 5, they correspond to the value of the right holder, not to the badness of acting on the excluded reason. To return to an earlier example, by now familiar, it seems perfectly possible both that acting for the sake of saving lives is (always) a good thing and that killing a person for that reason wrongs the person killed and is indeed wrong. A similar analysis is available for the case of purported right conflict described previously. In this case, to be sure, it may be a good thing both to act out

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of a concern for A’s welfare, and to act out of a concern for B’s welfare. If so there is indeed a conflict, as the agent is only able to realize one of these two values. Yet the conflict of rights, and so of exclusionary reasons, that supposedly obtains in this case is not that conflict of values. If there is indeed a conflict of exclusionary reasons in this case, one that corresponds to a conflict of rights, it has eluded us. I have argued that the exclusionary-reason component of an obligation cannot be overridden because the strength of any positive second-order reason that could stand against it is, in one way or another, simply the strength of some first-order reason, which is in turn irrelevant if ERI holds. Thus we turn our attention to that thesis, and thus also to my claim that the first-order reason component of an obligation cannot be overridden either. To make a case for ERI, we should begin by reminding ourselves that it pertains only to a very restricted set of exclusionary reasons, namely those that correspond to the value of the right holder. As I noted in 2.2, it is certainly not plausible to suppose (as Raz does, apparently) that we are always to act on the balance of our non-excluded reasons, so that all exclusionary reasons function to cancel first-order reasons in the strong sense (the “ought”-relevant reasons defined in 2.2).5 This point is particularly clear when it comes to exclusionary reasons that are simply derived from first-order reasons, discussed in the preceding section. After all, and as we have seen, the derived exclusionary reason can have no force independently of the first-order reason from which it is derived. To take a straightforward, if also somewhat artificial, example, consider a reason not to act for reason R because doing so gives one a headache. It seems clear that since this exclusionary reason is simply derived from the first-order reason to avoid headaches, it would make no sense to suppose that it renders other reasons irrelevant. It is perhaps less clear what to say about the other type of case considered in the preceding section, in which acting for a certain reason is bad in itself. Again, perhaps acting selfishly is bad in itself, or at least when there are strong other-regarding reasons for acting differently. In such a case we might want to agree that my selfinterested (first-order) reasons for acting have been, as it were, “tainted” by the bad motive and for that reason do not count. However, I will not argue for any such thesis. In any case, even if we restrict ourselves to ERI as stated, and in particular to obligations as yielded by the agency view, the notion that first-order reasons are rendered irrelevant may still seem paradoxical. To see why, we can go back to what I said in Chapter 5 about how the agency view implies the existence of exclusionary reasons. As I said there, the agency view tells us that an obligation, including its exclusionary-reason component, exists because of another’s “power to command,” and that power in turn exists because respecting another’s value as an agent requires treating him as having it. There is an apparent problem because it would seem that one is at the same time required to respect other values as well, and

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it might seem that one cannot do so by simply ignoring them (which we assume the claim holder is now “commanding” one to do). Still, it is only by ignoring them that one can honor the commanding agent. How is this conundrum to be resolved? To clarify, the skepticism we are now confronting could take one of two forms. The first, and less radical, concedes ERI but maintains that the “other values” also generate conflicting second-order reasons that may outweigh the exclusionary reasons corresponding to the right holder’s value. This is the thought considered previously, that if I have a regular, first-order reason to care about something, it follows automatically that I also have a second-order reason (in an extended sense) to observe that first-order reason in my deliberation.6 This suggestion I have in effect already rebutted. To repeat, this “automatic” second-order reason, if it exists at all, will be derived from the original first-order reason. That is, the reason one “automatically” has to give weight to a given first-order reason in deliberation is dependent upon that very first-order reason and could not exist without it. The other form of the criticism, more radical, simply denies that exclusionary reasons have any relevance at all to what we ought to do—or at any rate that they have the ability to render first-order reasons “irrelevant.” After all, this critic will allege, the first-order reasons the right holder tells the obligation bearer to ignore cannot simply go away. So how can they be irrelevant? To respond to this charge, I need first to rehearse the distinction I made in 2.2 between two senses of the term ‘reason to act.’ As the reader will recall, I said that a reason to act in the weak sense is linked essentially to value. By contrast, reasons in the strong sense also determine what we ought to do. As I put it in 2.2, exclusionary reasons exclude reasons in the weak sense but cancel reasons in the strong sense. This distinction allows me to concede an important part of what the critic is saying. For I can concede that first-order reasons do remain even when excluded, as long as they are understood in the weak sense. By the same token, the right holder’s authority over the obligation bearer does not amount to an ability to alter the value of things in the world. For instance, while you can command me not to kill you even when that is necessary to save several other lives, your command does not (or at least not obviously) make it less good, or important, that these other people survive. Further, once we have drawn the distinction between different senses of ‘reason to act’ we also find that there is room for the idea that what a person ought to do is not simply a function of the value of the various actions he could perform, but rather depends also on the relation in which he stands to other persons. And again, the nature of such relations is not arbitrary, for it corresponds to the peculiar value of a person. Harking back to the discussion in Chapter 5 we could say that this value is peculiar because it is due to a feature of persons unique to them, namely their having a will (as opposed to simply having wants or needs). And

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this peculiar value is in turn reflected in the correspondingly peculiar fact of one person’s will being subject to another’s, if only within a certain limited domain. This is a relation in which a person could not stand to any other kind of thing. By subjecting another’s will to one’s own, one does not change the nature of things in the world, and so does not alter their value, and hence reasons in the weak sense remain. But one has changed the other’s will, or rather the conditions under which it operates. In a somewhat misleading formulation, it is no longer free, or at least not as free as it would have been otherwise.7 It is, I suppose, natural to object to this line of thought that a person’s value is “just another value” and that it therefore is unclear at best why it should be treated so very differently, and in particular as being somehow “superior” to other values. What I am saying, after all, is in effect that this value is qualitatively, and not just quantitatively, different from all other values, in terms of the reason to which it corresponds, as the distinction between reasons of different orders indicates. Yet this qualitative difference is not arbitrary, for the difference in the grounds of person value and all other values is striking. I note here that the distinction I draw has an obvious parallel in the familiar Kantian one between “dignity” (which only persons have) and “price” (which all other things can have).8 The distinction between different “orders” of reason answers to the idea that we are here dealing with a difference of kind, rather than simply one of degree.9 It is also worth noting that the radical skeptic we are now envisaging would in any case have a hard time finding an alternative explanation of why it is so often wrong to infringe on rights. (And remember that I take the explanandum for granted.) After all, such a skeptic is forced to explain this phenomenon strictly by appeal to conflicts of first-order reasons, meaning that an obligation bearer is morally required to obey the right holder’s command simply because the first-order reason for doing so has overriding strength. In the first place, and as I argued in Chapter 5, it is hard indeed to see how the right holder could have a power to generate such reasons, so any alternative explanation would inevitably have to distance itself from the idea, so well adapted to agency as the ground of rights, that persons’ powers (being exercises of their agency) are central to how we ought to treat them. And if we abandon that idea, and simply try to account for rights by appealing rather vaguely to the “value of persons,” it is not clear how to account for the peculiarities of rights (e.g., why does a person’s right make it wrong to kill him in order to save many other persons, all equally valuable)? As I have conceded before (i.e., in 2.2) when this issue has come up, there is much more to it than I could address here, but at least I hope to give a reasonably clear picture of what the alternative I prefer is like, here and in the next chapter. A final, very important caveat is required, and it is highly relevant to what I have just said. As our critic will rightly point out, there are

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cases in which the (first-order) reasons against performing a purportedly obligatory action or omission are very much stronger than the reasons for performing, and in some such situations we will want to deny that the purported obligation is genuine. If so, ERI forces us to deny that the supposed right holder’s authority extends far enough to forbid others from acting on these strong reasons (though he may retain his ability to forbid them from acting on other, weaker reasons). The important question is that of why a person’s authority is limited in this way. I will make a proposal about this in the next chapter.

3.

Conflicts of Rights

All rights theorists will be asked, sooner or later, to address the question of conflicts of rights. In light of this, what should the agency view say on this score? It seems clear that it should deny that such conflicts can occur, and that it is not meaningful to attribute strength to rights (insofar as this strength plays the first role described in section 1). After all, I have denied that rights can be overridden, and that seems to exclude the possibility of rights in conflict. It is worth adding here that there is a direct intuitive argument for that conclusion, just as there is one for the thesis that rights cannot be overridden (and do not have strength), and similar to that argument. For if having a right is “being in charge” over something, belonging to one’s domain of control, then we note that, just as being in charge is not a matter of degree, it is also true that at most one person can have that status in a given context. Now, I concede that a denial of rights conflicts will come up against cases that certainly appear to feature such conflicts. This is the objection against ERI I mentioned at the end of the last section, in slightly different guise. For instance, granting that the agency view implies that I have a right not to have my finger broken, what happens when you can save several lives only by breaking my finger (and I do not consent to having it broken)? Many would say that in such a case my right is overridden (even if there is strictly speaking no right to have one’s life saved—see section 5), and certainly few would deny that you are at least permitted to break the finger, in spite of my protests. Again, I will have to return to this central worry in the next chapter. Here I want instead to address the relationship between the agency view, given that it has the stated implications for right conflicts, and another view about rights, generally called specificationism. Specificationism is a view about how to handle conflicts between rights and other considerations (including other rights). In this view, all such conflicts are merely apparent. Suppose that a given right of mine against you apparently conflicts in some situation with some other consideration, and that as a result of this apparent conflict we draw the conclusion that in this situation the other consideration is stronger and you are therefore not under a duty to satisfy my right. (Note the use of

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‘duty’ rather than ‘obligation.’) In the specificationist view, what happens in this case is not that the right is overridden (indeed, that is impossible), but rather that it turns out that my right contains an exception for cases of this kind. In other words, the right is “specified” so that it does not apply in this situation (hence the name ‘specificationism’). And the same holds of every case in which the relevant obligation holder is under no duty to satisfy the right—and hence is not really an obligation holder in the situation. If it is true, as I have supposed, that the agency view implies that there are no conflicts between rights, and indeed not between rights and other considerations either, that view resembles specificationism in one crucial respect. It would indeed not be incorrect to describe the agency view also as “specifying” rights. To see this, again consider the finger-breaking example. In it, my negative right not to have my finger broken is specified. At any rate that is so on the plausible assumption that the great importance of saving several lives gives you at least a liberty to break my finger, and hence the absence of my negative right. It follows that my finger is not (fully) in my domain in this case; after all, if it had been I could have commanded you to leave it alone, and you would then have had an exclusionary reason not to act for the reasons you have for breaking it. The upshot is that my right to my finger, or at any rate my right not to have it broken, is specified: there is an exception in cases of extreme need such as the one described. However, specificationism and the agency view have different rationales, as becomes apparent once we consider the position of a representative specificationist. Christopher Wellman holds that rights correspond with duties rather than mere obligations (in my terminology). That much is evident from passages like the following: Instead of being the essential moral building blocks from which theorists argue to conclusions, moral rights are actually moral edifices we argue towards. Rights are constituted of reasons, and referring to a moral right is a way of stating precisely the moral relationship which exists between parties in virtue of the constellation of moral reasons that each has. (Wellman 1995, pp. 281–2) As this quote makes clear, specificationists are concerned with the practical role of rights. In particular, on their view rights correspond to duties. The question of why persons have rights is secondary at best. By contrast, the agency view stresses the ground of rights in agency, and their practical role is largely a consequence of that ground. If the agency view deserves to be called “specificationist,” that is because the commands that a right holder issues are themselves best interpreted as specific, meaning that they apply only to the specific contexts in which they are made, and

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the holder’s authority to give such commands is also context-specific— though again the reasons for this fact will become clear only in the next chapter.

4.

Right Strength and Proportionality

I turn now to the second role that the notion of right strength could play, distinguished in section 1. Remember, it is the one we use when trying to answer questions about proportionality. It answers to our sense that some right violations are worse than others (and so merit more stringent preventive or retaliatory responses). In some sense then, it seems, there should be stronger reasons against some violations as compared to others. How are we to make sense of this idea on the agency view? On the value view, as I stated in 2.2, a claim violation is a form of “inappropriate treatment” of a person as a being endowed with a certain value. Further, the agency view also yields a clear enough conception of what would constitute “inappropriate treatment” of a right holder. It implies that an agent has a “domain of control,” a set of “things” (very broadly interpreted) over which he is a “small-scale sovereign” (in Hart’s phrase). To infringe an agent’s right then means to “usurp” his sovereignty over some object in the domain, to make decisions for him about how to use it. Now, what makes an action into a right violation, as opposed to merely bad or regrettable, is that the obligation bearer has ignored second-order reasons generated by the right holder’s command. Indeed, that much may well be necessary for the action’s counting as “inappropriate” as well: we would probably not use that label if the right holder consents to the treatment, meaning that there is no command. But then what would it mean for one violation to be “more inappropriate” than another? In light of what I have just said, one might perhaps be tempted initially to answer that question by appeal to the strength of the second-order reasons that turn an action into a right violation. On reflection, though, that answer cannot be correct. In the first place, first-order reasons simply seem much more important to how inappropriate a violation is. After all, they determine how bad the action is, which in turn must be important, if not decisive, for its degree of inappropriateness. But second, it is in any case unclear that the exclusionary-reason component of an obligation can meaningfully be said to have strength at all. At any rate any such strength does not play any practical role. As I argued in subsection 2, these reasons do not conflict with positive second-order reasons. It is also hard to see that such reasons play any evaluative role. I have drawn a distinction among reasons for action between reasons in the strong sense, which are practical in the sense that they determine what a person ought to do, and reasons in the weak sense, that matter to the action’s value. However, I have not drawn a parallel distinction among second-order reasons, and I

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doubt that one could be drawn. Second-order reasons are not relevant to value (except, of course, to the rather special value of persons). I conclude, then, that the degree of appropriateness of a right violation depends exclusively on the strength of the first-order reasons for and against that action, and not on any second-order reasons that may pertain to it—though the latter or course are quite relevant to its counting as a right violation at all. The next question we face, in light of ERI, is whether only non-excluded reasons count in determining how inappropriate a violation is. Offhand we are likely to answer in the affirmative, as excluded reasons are not relevant to whether the action ought to be performed in the first place. On closer consideration, though, that answer is less compelling. For one thing it sometimes seems that excluded reasons do count, at least to some extent. In the case, by now familiar, in which A kills B in order to save several lives, we may agree both that A acts wrongly and treats B inappropriately and that how inappropriately A treats B depends on how many lives A saves thereby—even though the reason provided by this beneficial consequence is excluded. Nor is such a combination of views arbitrary. The reason is that judgments about what a person’s duty is and judgments about degrees of inappropriateness are more different than first appearances suggest: judgments of the former type are practical; but judgments of the latter type, though they certainly may have practical import in terms of proportionality, are at least to some significant extent also evaluative. Hence excluded reasons matter to them, even if they are perhaps discounted to some degree. I turn now to the substantive question of which first-order reasons are relevant to the inappropriateness of a right violation. Clearly not any old reason against such an action is. Previously I noted that what makes an act a right violation, as opposed to merely bad or regrettable, is that the obligation bearer has “usurped” the right holder’s sovereignty over his domain. So what makes one such act of usurpation more inappropriate than another? The natural answer to that question is that an act of usurpation is more inappropriate if it is a greater usurpation, meaning that it usurps the agent’s decision making to a greater extent. Further, it seems that this extent depends on how significant the content of the usurped decision, meaning the thing in the domain of control, is from the agent’s point of view, qua agent. Now, we have seen that, on the agency view, the agent’s domain of control consists, in the final analysis, of his agency itself, with its various components, and his body. It does not include his actions simply as such, though he does have a right to a “decent set of options.” Rights to the body, not derived from a right to agency broadly conceived, are a special case and so I set it aside for now. I will return to it later in this section. Let us therefore consider the right to agency, as described in Chapter 6. Any infringement of that right—whether it affects what I there called the internal component or the external one—necessarily takes the form of

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some sort of interference with the capacity itself.10 The interference could consist in harm to, or manipulation of, the relevant psychological capacities, in the imposition of external pressures or obstacles, or in harm to the body. In all these cases, the end result is that the right holder’s agency is to some extent reduced or usurped. What we need to know now is what makes an infringement of this right more significant from the agent’s point of view, qua agent. To answer that question, I return to an observation made in Chapter 6, in connection with the right to a “decent set of options,” that agency is a capacity to realize value, and is valuable for just that reason. For then the following measure of the magnitude of an infringement, and so indirectly of right strength, emerges, at least as a first approximation: it is a function of the amount of value that infringement prevents the right holder from realizing (meaning value that he could have realized otherwise, but not necessarily would have). Call it the value measure. The greater that amount, the more inappropriate the treatment of the agent qua agent. The rest of this section is aimed at working out this proposal. In the first place, then, the value we are talking about is agent-relative, and its loss is no doubt in some sense “bad for” the agent. However, we should not suppose that we can measure the relevant badness by appeal to some independent notion of “interest.” Remember that at the end of the day, on the agency view, as on the value view generally, the fundamental explanatory factor are the agent’s value-making features, not his interest or well-being. Further, while the value a right infringement makes a person unable to realize must be agent-relative in the sense described, I would still insist that it must also have impersonal significance. After all, that value must be relevant to the strength of other people’s reasons to treat or refrain from treating the right holder in various ways. Now, while the agency view accords the value measure a certain vague initial appeal, it is clear that it has to be rather severely restricted, and in several ways, if it is to be acceptable. Let me now address some restrictions, while allowing that the list may well not be exhaustive. I begin with a fairly straightforward one. To see it, remember the distinction between basic and derived rights. I will assume that the strength of a derived right is simply that of the basic right from which it is derived. Hence, when we apply the value measure, we are to consider only basic rights. The infringement of derived rights does not affect the person’s ability to realize value in any additional way. Two other restrictions are more contentious. They reflect the crucial words ‘qua agent’ that I used previously to formulate the intuition behind the value measure. As will become apparent, the restrictions are necessary to make the value measure match our intuitive ideas about right strength, but they are also independently plausible given the agency view—and that is where the words ‘qua agent’ come in. After all, we have already seen, in Chapter 6, that the content of a person’s rights (i.e., his domain

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of control) is attributed to him qua agent, so the same should be true of their strength. The first of the two restrictions concerns which types of value realization are relevant to a right’s strength. Consider the following example. A pianist and a philosopher both lose a hand because of right violations. The pianist needs both hands to perform and therefore suffers a greater loss in terms of value realization than the philosopher who can plod along with just one. The value measure then seems to imply that the pianist’s right not to suffer the loss of her hand is stronger than the philosopher’s corresponding right. But that does not seem right: in my view, the philosopher’s right is equally strong, or at least very well might be. That judgment may be questioned, and I will say a little more in its favor later, but for now I stress the point that it will seem compelling once we realize that the loss that matters to right strength is the loss to the right holder qua agent.11 Let me expand on that a little. I begin by noting that there is something strange in the first place about saying that the pianist’s right to her hand is stronger than the philosopher’s right to his because the pianist needs both hands to do something of great value, and the philosopher does not, for the pianist has no right to do the valuable thing in the first place (and so there is here no question of a derived right). There is a kind of problematic contingency over the loss of value-realizing capacity. Suppose she could not have performed in any case because she cannot afford a piano. That fact by itself (let us grant) infringes no right. But it would be very strange to say that her right to her hand is stronger when she can afford a piano than when she cannot. Hence a natural amendment to the original value measure appears: the magnitude of an infringement is a function of the amount of value it prevents the right holder from realizing, insofar as the latter has a right to realize it—where this right is in turn understood as basic and non-power-generated (that is, a right that belongs to the person precisely “qua agent”). As there is comparatively little persons have such a right to do, and this is more or less the same for all right holders, the worry we encountered is not genuine. As I noted earlier, persons have the right to defend their other rights. In addition, I have granted that they also have a right to a “decent set of options”—understood now as a negative right not to be reduced to a less-than-decent set. Another restriction concerns probability. Without the infringement the right holder might have had a greater chance of succeeding with something, but it need not be the case that the probability of success goes from 1 to 0 with the loss. It is tempting to respond to this observation by stating the value measure in terms of expected value loss. (To be more precise, the loss would presumably be defined by the prevented course of action with the highest expected value.) But that would imply that the infringement is more serious for the one who would have been more likely to succeed, which is again implausible. This problem is independent of the earlier one about types of value realized, and we therefore cannot fix it by limiting the

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kinds of value realization that matter to right strength. After all, no matter how we do that, it remains true that some persons are more likely to succeed in realizing whatever values remain after the limitation than others are. Once again, though, the fact that we are interested in the loss to the right holder “qua agent” allows us to avoid this problem. For it suggests that the relevant probability of the right holder’s counterfactual success is “qua agent,” which in turn means that we abstract from individual differences in probability—and hence that we should not be interested in expected value loss after all. In order to shed more light on the value measure, I wish now to return, as advertised, to the pianist-philosopher case. For there is another important point to be made about it, which also serves to support my verdict (that the two rights infringed are equally strong), or at least to undermine the contrary one that the pianist’s right is stronger. We must distinguish two questions. The first is the one that concerns us here, namely that of how strong a given right is. The second is that of the overall moral evaluation of a given right-infringing action. This distinction allows us to say that, while depriving the pianist of her hand is a worse thing to do overall than to deprive the philosopher of his, and while we may also have more reason to prevent the pianist’s loss than the philosopher’s, the pianist’s right is still no stronger than the philosopher’s. This feature of the value measure sets it apart from the alternative view of right strength due to Thomson. Her “aggravation principle” has it that “If X has a claim against Y that Y do alpha, then the worse Y makes things for X if Y fails to do alpha, the more stringent X’s claim against Y that Y do alpha” (1990, p. 154). This principle obviously differs from the value measure in that it is formulated in terms of harm or well-being, as opposed to the capacity to realize value.12 However, and for present purposes more importantly, it also differs in that it seems to take into consideration any effect of a right-violating action on the right holder’s well-being. As a consequence, the aggravation principle is a measure of the badness or overall wrongness of such an action rather than one of the strength of a given violated right. The contrast between the two principles is at its sharpest in cases where one and the same action violates more than one (basic) right. For instance, Thomson considers a case in which kicking a person’s shin will also kill him (1990, p. 155). Applying our distinction between right strength and act wrongness to this case, we end up with the following picture. An act of shin-kicking happens to infringe two basic rights: the right not to be kicked in the shin and the right not to be killed—assuming for the sake of argument that there is indeed a basic right against being kicked in the shin. To tell how strong the right not to be kicked in the shin is in this case, we have to discount the consequences of the infringement of the right not to be killed. In practice that would amount to our considering the consequences the shin kick would have had in otherwise identical hypothetical

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circumstances in which it would not have led to the right holder’s death (or to the infringement of any other basic right of his, besides that against being kicked in the shin).13 This restriction should be added to the one proposed earlier. Summing up, then, when we apply the value measure to some right infringement we are to discount (a) effects on the holder’s capacity to realize value of a kind that he does not have a right to realize and (b) effects that are due only to the infringement of other (basic) rights caused by the infringement measured. A point of clarification is now in order. The reader may have recognized a problem with my earlier formulation of the idea of right strength. For I have more or less equated the question of how strong a right is with the question of how “inappropriate” it is to infringe it. The problem is that when we talk about the inappropriateness of the right infringement we are naturally understood as talking about the infringing action. Strictly speaking, though, we have to say that in the shin-kicking case there are two right infringements, one significantly more inappropriate than the other, but only one right-infringing action. Yet a third point is worth making about the pianist-philosopher case, which also serves to make my verdict on it more plausible. This is that, for all I have said, the pianist might have more reason to feel aggrieved at her victimization than has the philosopher. By the same token, she might resent us for choosing to protect the philosopher from the loss rather than her, whereas the philosopher would not were roles reversed. But I would deny that these facts by themselves license the conclusion that the pianist has suffered the violation of a stronger right. That is, while resentment is indeed a proper response to being wronged, and to that only, it does not obviously follow that greater resentment is only a proper response to being wronged more. I will now address some problem cases that call for revising the value measure. The first concerns the harm of death. For a consequence of the value measure is that the right to life, or not to be killed, is stronger the more time death deprives one of. After all, the longer one would have had to live if not killed, the more value one is prevented from realizing—and that is likely to remain true no matter how we limit the set of relevant values. Yet that implication is not in general very plausible, though it may make sense in certain extreme cases, such as that of a person who is only deprived of a few seconds, or even minutes, of life. I have no ready response to this difficulty, but at least take lukewarm comfort in the fact that Thomson’s aggravation principle would seem to fare no better. Second, I note that the value measure as formulated previously makes better sense of interference with decisions than of manipulation of decisions, which I have also identified as a form of possible right violation. After all, it is not obvious how manipulation of a person’s agency prevents him from realizing value. However, I am inclined to say here that manipulated decisions do not properly speaking realize value, for such a

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decision cannot be attributed to the right holder, at least fully, as opposed to the manipulator. In that case there is a genuine loss of value-realization capacity relative to the counterfactual situation without manipulation. Finally, let me return to (non-derived) rights to the body, which clearly necessitate some form of qualification of the value measure. Thus far I have been saying that the magnitude of an infringement of the right to one’s hand, and by extension any right to any part of one’s body is determined uniquely by the effect that infringement has on one’s ability to realize value, insofar as that realization is itself a matter of right. As a consequence, all rights to the body come out as derived. However, not only is that thesis implausible in itself, it is also contrary to what I said myself in Chapter 6, in which I argued that agents’ rights to their bodies are in part due to the fact that their bodies are constitutive of them. As a consequence, every agent also has basic rights to his body and its various parts, quite independently of their usefulness. And, it would also seem, if rights to the body exist because of the latter’s being constitutive of the agent, that fact should somehow be reflected in the way we assess the strength of these rights. But how? I confess that I have no obviously compelling and informative answer to that question. The simplest one, which also harmonizes reasonably well with our pre-theoretical judgments, is that the magnitude of the infringement is proportionate to the relative size of the body part lost. Or at any rate that is so conditional on the part’s being relevant to agency. So the reason why the removal of one’s hand is a worse infringement than that of one’s finger is in part precisely that more of oneself is thereby lost. To the extent that the body’s significance is due to its being literally constitutive of the agent, this account of strength does not seem ad hoc. As a consequence, the value measure must be qualified, at least as far as the special case of rights to the body are concerned. However, I stress the uncomfortably tentative character of the proposal just made. In the end the main point is the negative one that the value measure does need some form of qualification to deal adequately with non-derived rights to the body.

5.

Positive Rights

One final issue must be confronted here, one that I have done my best to avoid up to now. In Chapter 6 I held that the agency view implies the existence of positive rights in addition to negative ones. In particular, I held that persons have rights to be saved from harm to their agency and body, and to a “decent set of options.” If that is indeed so, we must find a way of determining the strength of these positive rights. Now, the value measure, as described thus far, provides a straightforward enough answer to that question. Indeed, it makes no difference between positive and negative rights per se. It yields the consequence that a negative right not to suffer some harm to agency, say, will have the very same strength as a

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positive right to be saved or protected from that same harm. However, many philosophers would find that an unacceptable consequence of the value measure. Most notably, Thomson (1990, pp. 160–2) has gone so far as to deny that positive rights exist at all, precisely on the grounds that if they did exist the unacceptable consequence would follow: they would then have to have the same strength as their counterpart negative rights. Now, without necessarily endorsing Thomson’s argument, I at least find her conclusion rather attractive. At any rate I am tempted to hold that if positive rights indeed exist, as the agency view implies, they are not rights of quite the same type as negative rights. If you prefer, they are a kind of “second-class rights.” As a consequence, while it must of course still be possible to attribute strength to them—the corresponding obligations, if also “second class,” are after all still reasons to act—that strength cannot be simply identified with that of the corresponding negative (“first-class”) right. The details of this proposal about positive rights, and the arguments for it (including Thomson’s), I would prefer to leave for future work. I justify that decision by noting that the work left for Part III will in any case be concerned mainly with negative rights. That is, I will be concerned largely with the phenomenon of right loss, and it is mostly the loss of negative rights that has, quite understandably, been at the center of philosophical attention.14 If called upon to say something here in defense of my view of positive and negative rights, I would point to a simple fact of moral phenomenology that I believe carries significant weight. I have been talking about the right holder’s “authority” and of his “commanding” others as essential to the agency view’s conception of rights. Yet these notions are not applicable in at all the same way to positive rights. I may command you not to hurt me or my property (and indeed even not to touch it), but I do not “command” you even to save my very life at little cost to yourself (barring special relationships, which would in turn require separate treatment). This striking contrast must be accounted for in any case, and I choose to do so by refusing to accept positive rights in the full sense of the term. At the same time, though, if these last remarks are taken quite literally, it might seem a mystery why we should talk about “positive rights” in any sense, as opposed to plain first-order reasons to act in ways that benefit others. Again this is a matter in need of more consideration than I can give it here. Suffice it to say that I believe that positive rights retain enough of the characteristic markers of rights (such as waivability and, to an extent, enforceability) to make the label apt. Indeed, in what remains of this part I will continue to speak of positive rights as if they were unproblematic, for the issue of their strength relative to negative ones does not in any case arise. Be all of this as it may, for reasons that will become clear in 11.2, some account of the strength of positive rights is still needed. As a consequence, I will, if only indirectly, have to say something about why positive rights are weaker than negative ones, other things equal. To see why, we have

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to go back to the crucial idea of the right holder’s “domain of control,” over which he has “authority.” Using these notions, we may note the following important difference between negative and positive rights. The infringement of a negative right amounts to the usurpation of something, broadly speaking, that belongs to another person’s domain. By contrast, in demanding (if that is the word) that you meet a positive obligation to me, I am in a way “commandeering” something that belongs to your domain, not mine. It belongs to your domain because I cannot simply take it without your consent, or at least not without having to compensate you for the loss. (Contrast this with a case in which your right to the thing is lost, perhaps because my plight is due to your own previous wrongdoing.) At the same time, though, if talk of a “positive right” is to make sense at all—and I do not deny it does—the thing I “commandeer” could not belong to your domain without qualification. Otherwise it would be better to say instead that you “ought to” assist me in the relevant way, or perhaps only that it would be “a good thing” if you did, rather than talking about my having a “right” against you. It is precisely the nature of something’s belonging to a person’s domain “with qualification” that needs further elucidation not to be provided here. For present purposes, though, it is enough that we can identify a difference between positive and negative rights that can explain the difference in strength between them. And that difference I have now identified. What implications follow for the value measure? There are three basic types of comparison of right strength. The first is that of comparing two or more negative rights with one another; the second that of comparing two or more positive rights with one another; and the third is that of comparing one or more positive rights with one or more negative rights. (There are also more complicated mixed types.) The value measure works fine for comparisons of the first two types. To perform the third type of comparison, however, we would strictly speaking need information about how much stronger a given negative right is than a given positive right. The real problem here is that of telling how much stronger a negative right is than its counterpart. The value measure of course does not answer that question, and the rationale I sketched in the preceding paragraph for holding that there is a difference hardly tells us how big that difference is. Indeed, it is not clear that there is any principled way of determining that difference. Perhaps it even varies from case to case. At any rate I can offer nothing in the way of an “exchange rate” between positive and negative rights. Unsatisfactory as that may be, I will have leave this issue aside.

Notes 1. Cf., e.g., Broome (1991) on “fairness.” 2. By contrast, it is impossible to conform both with a positive second-order reason to φ for R and a first-order reason not to φ. This is because such a

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4.

5.

6. 7.

8. 9.

10. 11.

12.

The Agency View second-order reason implies a regular first-order reason to φ. One cannot φ for R unless one φ’s. There is, however, the possibility of a kind of “indirect” conflict between exclusionary and first-order reasons. It will obtain when all reasons for φ-ing are excluded, as will presumably typically be the case when rights are at stake. There are then exclusionary reasons not to φ for R, not to φ for Q, and so on. Though a given first-order reason to φ is only in a partial conflict with each of these (finitely many) exclusionary reasons, it is impossible to conform both with it and all of the exclusionary ones, at least on the assumption that one must φ for some reason or other. The normative significance of this kind of conflict is unclear, though, as it is hard to see how the strengths of the particular reasons could resolve it. The move described in the text may amount to attributing a third-order reason to A, and the corresponding power to generate such reasons to B, but then this power is itself derived from his power to generate second-order reasons. However, I will not attempt a definition of third-order reasons. (Raz seems to find the notion superfluous (1990, p. 204n14), though this is questionable.) In this I agree with some of Raz’s critics, such as notably Gans (1986) and Edmundson (1993). Admittedly these writers, unlike me, seem to doubt that exclusionary reasons exist at all. The explanation for this difference, I suspect, is that they assume that some normative principle like Raz’s principle (P3) (cf. 1990 p. 40, and 2.2) is essential to exclusionary reasons. I have made no such assumption, but it is not unreasonable. After all, the very terms ‘exclusionary’ and ‘excluded’ themselves suggest it. In that stronger understanding of exclusionary reasons, derived reasons-not-to-act-for-a-reason like the one I mention in the following text would simply not qualify as “exclusionary.” Also cf. Moore (1989, p. 862n109). For a related, but different line of thought, cf. (Steiner 2006, p. 468): “The resolving role of moral rights in moral disputes is not to dissolve disagreement but rather to determine who—in the face of indissoluble disagreement—ought to decide what is to be done. And it seems clear that moral rights can play this adjudicating role only if their status is one of having priority over whatever other moral norms may be in mutual contention in such disputes.” See Kant (1785, p. 434). It also does so more helpfully, I believe, than the alternative proposal, also canvassed in 2.2, that certain first-order reasons distinguish themselves (qualitatively rather than merely quantitatively) by canceling conflicting reasons, regardless of their own strength (if it is meaningful to attribute strength to them at all). Note that I speak here of active infringements only, as I am at present only concerned with negative rights. I will consider positive rights in the next section. A relevant point here is that I am now interested in the role that right strength plays in determining what is proportionate to some right violation, and hence that it behooves us to ask whether the two violations in the example (against the pianist and against the philosopher, respectively) call for different proportionate responses. Again I am inclined to answer in the negative, or at least approximately. There is no significant difference between these two cases, either in terms of what may be done to the offender in order to prevent the violation, or in terms of what may done to him afterwards as punishment. It is possible to modify the aggravation principle by inserting the words ‘qua agent’ between ‘X’ and ‘if.’ I will not pause to speculate on the consequences of such a maneuver.

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13. Relating this case to the notion of proportionality, we note that the right holder, in preventing being kicked in the shin, is defending both his right not to be kicked in the shin and his right to life, as both will be infringed by the same action. The question of what a person is allowed to do to prevent the infringement of some particular right is therefore easily conflated in a case like this with the question of what he is allowed to do to prevent some particular right-infringing action. But the questions remain distinct. 14. That is not to say that the loss of positive rights can be simply ignored, and I will consider that issue to some extent later (in 10.2 and 11.2).

8

The Moral Significance of Rights

In this section I wish to address a number of ideas, prevalent in the literature, about the implications rights have for how we ought to act. In particular I will investigate the impact the agency view has on these debates. I should make clear from the outset that my ambition here is rather limited. The issues I raise are large and can only receive a cursory treatment. Several quite pressing questions will have to go unanswered. For my purposes it will be enough if I can at least outline how the agency view can provide reasonably plausible accounts of the phenomena under investigation. A full treatment must wait for another occasion. In particular I will discuss three familiar properties of rights. They are often thought to constitute what in 3.2 I called the “compelling” character of rights, and to express the non-consequentialist nature of rights theory. The first is the idea that rights trump other considerations, and perhaps especially consequentialist reasons. The second is the idea of rights as so-called “deontological constraints” (or “side-constraints”) on consequentialist maximization. The third is that rights cannot be aggregated. (As will become clear, I separate the question of whether non-right considerations can aggregate against rights, treated in section 1, from the question of whether rights themselves aggregate, treated in section 3.)

1.

Trumping

The idea of trumping is associated particularly with Dworkin: Political rights are trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them. (1978, p. xi) Other philosophers have expressed similar ideas, using different words. Thus Lyons suggests that a right of mine to do something “provides an

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argumentative threshold against objections to my doing it, as well as a presumption against others’ interference” (1982, pp. 114–5). By contrast, it is important to distinguish these notions from the deceptively similar idea of rights as “side constraints” on our pursuit of our goals, presented by Nozick (1974, pp. 28–33). I will return to side constraints in the following section. How should we understand this notion of trumping? Though Dworkin’s actual words (“not a sufficient justification for”) are actually fairly neutral, the term ‘trumping’ itself tends to summon up the image of rights as overriding all other considerations, perhaps with certain exceptions (what Nozick calls situations of “catastrophic moral horror” (1974, p. 30n)). In other words, it suggests that obligations are extremely strong first-order reasons to act. As I have made clear, the agency view does not comport with such an account of trumping. Nor, for that matter, would it be plausible even if we granted that obligations simply are firstorder reasons to act, at least if taken to imply that everything we would be tempted to call a moral right is a “trump” in the sense just defined.1 After all, even some comparatively uncontroversial rights, such as the right not to have one’s finger broken, do not look like they should be super-strong.2 It is worth noting, though, that Dworkin uses other formulations as well, that suggest a different understanding. For he says also that competing considerations, and in particular utilitarian ones, are “irrelevant” in the presence of rights.3 Again, it seems plausible that not all competing considerations are irrelevant. Thus, we may agree with Nagel, who argues that there is a “threshold” such that the infringement of a claim is morally permissible only if the cost of not infringing it exceeds that threshold, but costs below the threshold are irrelevant (1995, p. 85). How is this talk of “irrelevance” to be understood? Offhand it is supposed to contrast with the idea that obligations are simply stronger than the reasons they confront. As should be clear, the agency view can account for this notion of irrelevance, by appeal to exclusionary reasons—though other accounts are possible.4 That is to say, a right “trumps” countervailing reasons by excluding them from consideration, in accordance with the principle ERI from Chapter 7. To be sure, Nagel’s notion of a “threshold” raises a problem here, by now familiar, for it is not clear what explains why rights can exclude reasons “below” the threshold but not above it. I have already postponed discussion of this problem several times and will do so again, until the next section. However, one preliminary point can be made now, as it is central to the notion of trumping. It tells us something important about the “threshold.” To see it, we should first note a striking aspect of Dworkin’s discussion of that notion, namely that he stresses that rights are resistant to the aggregation of conflicting considerations that are not themselves rights.5 As we saw earlier, he is concerned to deny that rights can be overridden by “collective goals.” The operative word here is ‘collective’: a right must not be overridden by a number of interests, not themselves protected by

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rights, belonging to a large number of other persons, and none of which is able to override the right on its own. Thomson defends a particularly strong version of trumping, understood in terms of resistance to aggregation. According to her “High-Threshold Thesis,” “where claims are concerned, the sum of goods across people does not count” (1990, p. 166). As a consequence—and putting the point without Thomson’s commitment to justified right infringements—for it to be the case that subjecting A to some treatment T is not a violation of his right (which it would normally be), it is necessary that there be a single person who will benefit (sufficiently) more from subjecting A to T than A would from being spared T. In other words, for purposes of deciding whether subjecting A to T violates his right, the goods of different people do not aggregate. Note that these “goods” are not themselves objects of claims.6 Thomson is here not concerned with the question of whether rights themselves can be aggregated, but rather only with the question of whether non-right reasons can be aggregated against rights. The HighThreshold Thesis is exceedingly strong, and while Thomson makes no secret of believing it herself, it is only fair to add that she does not expect her readers to do so, nor does she rely on it elsewhere in her book (ibid., p. 169). In the end, then, perhaps her main point is rather that any plausible account of claims needs to incorporate some sort of “distributive constraint,” if not as strong as the High-Threshold Thesis. Any theory of rights, she believes, must entail that a claim could not permissibly be infringed simply on the strength of a large number of small benefits to other people (and still less to other beings)—where the benefit counts as “small” if it is smaller than the benefit supposedly protected by the claim (ibid.). On a weaker version of the constraint, aggregation is ruled out only if the difference in strength (or “size”) is sufficiently large. As she is not relying on it, Thomson does not stop to motivate the HighThreshold Thesis, nor indeed any other distributive constraint. However, there is an appealing argument for it based on the agency view and its conception of rights as involving exclusionary reasons. (It is the “preliminary point” I mentioned previously.) That is, the agency view can explain why aggregation of non-right reasons against claims is impossible—insofar, that is, as these supposedly aggregated reasons are themselves excluded. After all, if a claim holder can “command” another not to act for a certain contrary reason, he can presumably equally well command the other not to act for any contrary reason of the same type. For instance, and conveniently deviating here from orthodox Raz-style terminology, if I can command you to ignore one person’s cold, I can command you to ignore each, and so every, person’s cold. Hence the whole issue of aggregating these reasons never arises in the first place. The previous argument might seem to involve a fallacious move from “each” to “all.”7 According to this objection, if the ability to command another to ignore a given factor presupposes that that factor is, by itself, of

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sufficiently small strength compared to the first-order reasons in favor of the purportedly obligatory action, then it does not follow that one could also command the other to ignore the whole set of factors. Now, I do not deny the antecedent of this conditional (remember the finger-breaking example from 7.3, for instance), but I deny that the consequent follows. The objector’s complaint rests on an insufficient appreciation of what is involved in a (valid) command. The complaint would have had merit, if I had simply reasoned in something like the following way: factor F is too insignificant to make a difference (on its own) and so is F*; therefore F and F* together are also too insignificant to make a difference. However, this plainly fallacious inference differs from mine in that it appeals simply to the strength of the first-order reasons involved, ignoring exclusionary reasons, and so the right holder’s authority. By contrast, I hold that if the right holder indeed has the authority to command the obligation bearer not to act on a given reason (such as the fact that some action of his would relieve someone’s cold), then the obligation bearer is not entitled to “bring up” that reason again, even as one of several in a set. The reasons do not aggregate because he is not allowed to aggregate them. This is ultimately a fact about his relationship with the right holder. It cannot simply be read off the reasons themselves. Therefore, my argument is not guilty of the fallacy described. However, the argument might also be faulted for being excessively general. After all, it purports to apply to any aggregation of (non-right) reasons for action. By contrast, as we have seen, Thomson’s High-Threshold thesis is concerned solely with aggregating “goods across people.” The same is true of Dworkin’s notion of trumping, if perhaps not quite so explicitly. That is surely no accident. To illustrate the objection, note that the suggested reasoning shows equally that it is also impossible to aggregate reasons corresponding to valuable (non-person) objects. It implies that if I may command you to ignore the fact that some action of yours will preserve artwork W and also to ignore the fact that that same action will preserve W*, then I can also command you to ignore the fact that your action will preserve both W and W*. This conclusion might strike us as less appealing than a similar one about aggregating head colds across people. There is also a third objection. The High-Threshold thesis makes a clear moral difference between interpersonal and intrapersonal aggregation. To illustrate the distinction, let us use a variant of one of Thomson’s examples (ibid., p. 166). Suppose that by kicking you I can save n people each from suffering one cold—and grant, for the sake of argument, that you have a right not to be kicked. The High-Threshold thesis then implies that as long as the need to prevent one cold is insufficient to warrant infringing your right, then so are the colds of n people (no matter the size of n). On the other hand, suppose instead that kicking you would save one person from n colds. The High-Threshold thesis does not imply that, if one such

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cold is insufficient to override a right, so are n colds. Yet the reasoning outlined previously seems too broad to allow for this distinction. As far as the first of the two remaining worries is concerned, it is hardly obvious that it is really much of a problem that the suggested argument against aggregation applies a broadly as it does, and by the same token that it is much of an advantage of the High-Threshold Thesis that it applies narrowly only to the aggregation of goods across persons. At any rate I do not find the artwork example obviously convincing. That is, it is not clear that such aggregation in the face of a right is not also impossible. At the same time, though, I am inclined to agree that it is likely no accident that the High-Threshold Thesis is framed as narrowly as it is. While I have no wish to speak on Thomson’s (or Dworkin’s) behalf, it is tempting to suppose that the restricted range of the High-Threshold Thesis is due to its relying somehow on the idea that what is good for individual persons cannot be aggregated into some sort of “common good.” Something might be good for A and good for B, but that does not mean that it has some sort of “compound” value for A-and-B. Plainly, no analogous reasoning is available in the artworks case, which involves only impersonal value. Now, this idea, and its (possible) use in backing up the High-Threshold Thesis, raises many interesting issues that I could not pursue here. Here I will make do with noting, first, that it is not incompatible with the argument against aggregation I have employed, drawing on the agency view; and second, that the agency view allows for a somewhat related type of consideration. This last point returns us to the distinction between interpersonal and intrapersonal aggregation—for its seems to me that the agency view can account for that distinction. To simplify somewhat, consider a case of the following type. An agent (the obligation bearer) has to choose between satisfying the right of one person (the right holder) and benefiting one or more persons (third parties) in some way to which they have no right. In one type of case, there are several third parties who can all be benefited once in some way; in another type there is a single third party who can be benefited many times in the same way. In cases of either type, a third party is in no position to command the obligation bearer to realize or preserve the person’s good at stake—unlike the right holder, who is in a position to command. Yet a third party is surely able to request that the obligation bearer act as the third party wishes. Such a request may be made by default, in line with what I suggested for commands in 2.3B, but the third party still decides whether to make it; and if he does not, the obligation bearer need not (and perhaps may not) take it into consideration, regardless of what anyone else says. If we want to, we can say that this fact about the situation creates a minimal sort of “relationality” between the obligation bearer and each third party in the situation (minimal as it does not amount to anything like “owing”). This notion of relationality provides the key for explaining the moral difference between the two forms of aggregation. In the interpersonal

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case, we note, the requests the obligation bearer faces are all made by different persons, but in the intrapersonal case, though there may conceivably be distinct requests, they are made by one and the same person. Even if he does not, he could just as well “agglomerate” his several requests into one—and if for some reason he chooses to make several, the obligation bearer can (usually) treat them for practical purposes as constituting one request. If he insists on aggregating them, so be it: that much is part of his authority—even though, again, he is requesting rather than commanding. By contrast, in the interpersonal case there is no one with the authority to aggregate the various requests, made by different people. Summing up, we can use the agency view to provide a plausible rationale for the High-Threshold Thesis—without appealing to the idea that aggregation of goods across people is itself impossible. At the same time, though, the Thesis remains very strong and thus in need of some form of qualification.

2.

Constraints

Earlier I noted that one should distinguish the idea that rights “trump” other considerations from Nozick’s suggestion that rights are “side constraints” on our actions. For while the former idea can be expressed by saying that rights have great strength relative to other considerations— though I have preferred a different conceptualization—the latter most definitely cannot. It is essential to the notion of a side constraint that it is not permissible to infringe it even if that is necessary to prevent several other infringements of that same constraint.8 For instance, it is impermissible to kill one person even if that is necessary to prevent several other persons from being killed.9 Such constraints have seemed paradoxical to many—as indeed they will seem as long as we conceive of a person’s duty as determined simply by the balance of first-order reasons.10 Let me make a pair of clarifying comments about constraints before moving on. First, constraints are often called “agent-relative.” In general, an agentrelative reason is one such that it cannot be specified without a reference to the agent whose reason it is. If that condition is not met, the reason is agent-neutral. Hence a reason for me to get a haircut is agent-relative (because it is a reason for me to see to it that my hair is cut), but a reason for me to cut your hair is not. When we say that a constraint is agentrelative, we advert to the fact that it is a reason for the agent not to, say, kill a certain person himself, as opposed to a reason to see to it that the person is not killed (by anyone). The latter reason would be agent-neutral. It is worth noting that not all obligations are agent-relative (and hence, if all constraints are agent-relative, not all obligations are constraints). For instance, if you are drowning and I am able to save you, I may on that account be under an obligation. But we would probably not hold that this obligation is agent-relative. In particular, it is not an obligation

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to see to it that I save you. If by standing back I can allow someone else to save you, I have (typically) met whatever obligation I had to save you. Indeed, if the other person would also save additional people, I may even be required to step back. Such an obligation to save, then, is not agentrelative, and not a constraint. On the other hand, all obligations are presumably patient-relative, in the sense that a specification of the obligation must contain a reference to the right holder. That much is a consequence of their relational character. To illustrate, take again my obligation to save you. While I could normally meet that obligation by letting someone else save you instead, I clearly could not meet it by myself saving someone other than you.11 Second, as the issue of constraints is typically described, it raises the question, avoided in the preceding section, of whether rights themselves can be aggregated. After all, the problem arises because a greater number of violations of a given right is, apparently, a worse thing to happen than a smaller number, which in turn presupposes that violations can in some meaningful way be aggregated. However, I wish to postpone a systematic discussion of that matter yet a little further. Fortunately, the problem of constraints can be considered in abstraction from the issue of aggregation, at least to an extent. Evidently it would be wrong to infringe a right in order to prevent one other infringement of that same right, and it is worth asking why that is. Indeed, it is generally thought wrong to infringe a right in order to prevent one infringement of a stronger right, at least as long as the difference in strength is not too great. Let us begin, then, by asking whether the agency view entails that claims generally, or at least some claims, are constraints. Now, I have noted (in 3.1) that the agency view shares some important features of a view of rights sometimes called the “status view.” Further, those philosophers most associated with the “status view” have certainly thought that many rights are constraints, and have indeed seen their view’s ability to account for constraints as perhaps its main advantage.12 Specifically, these philosophers hold that persons are inviolable, in virtue of their value as persons. This property of inviolability amounts, more or less, to having strong rights not to suffer harmful treatment of various kinds. To say that it is permissible to harm one person in order to prevent several other similar violations (or, presumably, just one) is in effect to deny inviolability not only to that person but to all persons, as this one person’s right is no weaker than anyone else’s. Hence, treating the harmful deed as permissible is in effect to downgrade all persons. The purpose of the notion of inviolability is precisely to justify constraints, and indeed to show that it is irrational to violate rights in order to minimize the total number of violations.13 Yet at any rate the link between the agency view as I have here presented it and this notion of inviolability is not clear. Nagel’s view seems to be that the ground of inviolability is actually a kind of agent-relative

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value: it is good for persons to be inviolable. As he says, the form of the argument is curious: “P is true because it would be better [for us] if it were true” (p. 92).14 While he acknowledges that this form of argument is not generally valid, he suggests that “it may have a place in ethical theory, where its conclusion is not factual but moral” (ibid.). Nagel’s proposal raises more questions than it answers, though. Is it really good for persons to be inviolable (as opposed to being spared violation)? And even if that is so, why think that it implies that people really are inviolable? Would we accept arguments of the form Nagel suggests for other ethical claims? He certainly offers no examples beyond the one described. As I understand it, Kamm’s account of inviolability in Intricate Ethics is more promising—and more clearly in line with the value and agency views as I have stated them. In this account, if it were permissible to harm one person in order to save others, then the one person would be of lesser worth than if that had not been permissible. Further, if it were permissible to sacrifice this person, it would be equally permissible to sacrifice anyone in similar circumstances, so then everybody’s worth would be lesser. This proposal retains the crucial idea that the value of persons themselves is central, as opposed to the value to these persons (or indeed the impersonal value) of certain states of affairs.15 Despite this advantage, though, Kamm’s proposal is problematic. For one thing, at least in the version just described it simply presupposes that persons have maximal value, so that an account of what we owe them that appears to attribute to them a less-than-maximal value is for that reason alone unacceptable. Actually, Kamm herself allows that persons are not maximally inviolable. This is because it may be permissible to infringe a right to prevent a sufficiently large number of violations (2007, p. 255).16 But then it becomes unclear what independent reason we have for thinking that persons’ worth is this great (meaning that it allows for this degree of inviolability), and not lesser or greater. Second, critics have wondered why the special worth of persons corresponds with strong negative claims not to suffer harm rather than strong positive claims to be saved from harm.17 The more we are required to do to save someone, it could be held, the greater his worth would be. In particular, if we are even required to infringe one person’s right to save several other people from the same fate, then the value of these other people, and indirectly also of the person sacrificed would be greater than it would have been otherwise.18 Possibly these difficulties with Kamm’s proposal can be overcome. I will not pursue that issue here. I content myself with noting that there is no obvious connection between the agency view and the notion of inviolability. Instead I turn to a different possibility. I have been saying that a right holder has the “authority” to “command” others and that such commands generate exclusionary reasons to disregard first-order reasons that tell against the action one is commanded to perform. I now wish to show how to use this notion to account for constraints. To do so, however,

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we need to consider the phenomenon of “authority” a bit more closely than we have needed to do so far. On the agency view, a person has, in virtue of his agency, a “domain of control” consisting, more or less, of his agency and body. What this means is primarily that this agency and body are his to control. He owns them, as it were. No one else has this control, or could have it without his consent. Further, this control requires his having authority over others, as he has to be able to command them not to usurp his control. By the same token, no one else has the authority to take that control away from him. (This last claim needs significant qualification, as we will soon see.) This means that no one else has the authority to dispose of his agency or body without his consent. As a consequence, any command made by another as to how to dispose of our agent’s agency or body is (typically) invalid. However, a person’s having a “domain of control” also has a secondary effect. In order for him to exercise his control over his agency and body, he needs to preserve the integrity of both, thus protecting them from certain forms of injury. As a consequence, he also needs the authority to command others to refrain from causing such injuries (and, perhaps, also to prevent or even, to some extent, help repair them). However, in some cases a person could have this type of authority only by precluding someone else from having it, and it is thereby rendered suspect. Let me illustrate these ideas with an example involving a constraint: A could save C’s life in a way that also involves killing B—or, to make the case more interesting, causing B some severe, permanent but non-lethal harm. This deliberately ambiguous formulation covers two distinct types of case. In one, A’s harming B is a necessary means for saving C’s life, in the other it is an unavoidable side effect of saving C’s life. I address the former first. It might seem initially that in that case A is subject to two conflicting commands: one from C to save C’s life and one from B to spare B. This picture of the case is erroneous, however. I have of course already expressed doubts about whether persons are able to “command” others to aid them. But the point that now concerns me is another. For in this situation there is only one legitimate command, namely B’s. This command is legitimate, for it concerns how his agency and/or body is to be disposed of, which falls directly within his domain of control. By contrast, C’s command, to save his life, is a command to use B as a “resource” for the purpose of saving C. But B, or B’s life or body, is not in C’s “domain of control.” Therefore C cannot make commands, to A or to anyone else, with respect to how to “use” B, without the latter’s consent. There are two objections to this analysis. The first is that C has control over his own life and therefore can command A to save him. As a consequence A is facing two conflicting commands, one from B and one from C. This objection of course presupposes that C has a positive right to be saved. Even granting that, though, we should ask ourselves what such a right could plausibly be taken to involve. We may then note the following.

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A command to φ is also a command to use the means necessary for φing. Hence, a person has the authority to command φ-ing only if he has the authority to command the means, in the sense that it is up to him to decide how that means is used. In our case, C does not have the authority to command A to save him, for that saving requires using B as a means, and C’s authority does not extend over B. It is up to B, and not C, how B is to be used. Thus, the first objection rests on an erroneous conception of what a person’s control involves. The other objection is that B does not have control over C’s life, any more than C has over B’s, and therefore cannot command A to leave C to his fate. This objection is problematic for it implies that an agent’s (normative) control, vis à vis others, over himself and his body is limited by the consequences that happen to flow from other people’s actions, or from the forces of nature, over which he has no (physical) control. This notion seems to run strongly contrary to the animating spirit of the agency view. By contrast, denying C the authority to command A to kill B does not restrict his control in anything like the same way. We should conclude from this observation that the principle underlying the second objection fails—though, again, subject to qualification (see the following discussion). A critic might take a further step here, though, charging that my responses to the objections simply presuppose, and so do not explain, the significance of the fact that A uses B as a means in saving C (but does not use C in sparing B). In particular, these responses presuppose that a person’s “authority” extends to “controlling” how his agency and body are used, but not (in the same way) to “controlling” how they are simply affected. And it is precisely this purported fact that needs explaining—and that the objections are indeed ultimately aimed at challenging. After all, a person’s interest in how his agency or body is affected may be as strong as his interest in how it is used. Yet the agency view can offer the requested explanation (cf. chapters 5 and 6). For it is precisely by ceding the former type of control, as opposed to the latter, that we respect agents qua agents. It is precisely the ability to “use” their agency and body that makes them agents, and not their susceptibility of being affected. That is not to say that they lack rights not to be affected (as opposed to used) in various ways, but there is still a significant difference between the two. We turn now to the other case described earlier, in which severe, permanent but non-lethal harm to B is a (foreseeable) consequence of A’s saving C’s life. For concreteness, we may suppose that A can turn a trolley, which would otherwise kill C, onto a side track where it will “merely” maim B. In this case, A does not use B as an instrument, and so B’s direct control over his agency and body is not at issue. As noted previously, that by itself does not mean that he lacks the authority to command A not to harm him, as his control over his agency and body lead indirectly to the authority to command others not to cause certain forms of injury.

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As I also noted, however, this type of control is rendered suspect in cases when it can only exist at the expense of someone else’s authority. In the present case, moreover, B’s authority could exist only at the expense of C’s. As it is impossible for both to have the relevant authority over A—to be “in charge”—I conclude that neither is. This result is also plausible. It does not follow, however, that A is required to choose the lesser harm, thus saving C’s life and non-lethally harming B. I will not consider that question here. It is now time to address the problem I have avoided several times. In the last section I noted that the appeal to exclusionary reasons found it hard to account for when aggregation against rights is possible. A similar problem can arise in situations that do not involve aggregation. Suppose our case is not one of A’s causing B severe but non-lethal harm to save C from death, but rather that of causing some minor harm to his body: breaking his finger, say (cf. 7.3). On the hypothesis that breaking someone’s finger is typically a right violation, then I would apparently be committed to saying that it is up to B to decide how to use his finger, and that he therefore can command A to leave it alone, and that A is therefore morally precluded from weighing the harm to B of having his finger broken against the harm to C of losing his life. Such a consequence is obviously not attractive. In dealing with this type of case it is useful to consider another, related one. In his discussion of exclusionary reasons, Raz allows, without elaborating, that in certain extreme cases even a prima facie legitimate command fails to generate such a reason—and that the commanded agent has to weigh the applicable first-order reasons himself, despite another’s command. As illustration, he offers the example of a soldier ordered to “commit an atrocity” (1990, p. 38). In this case, a natural suggestion, in line with the way we look at war crimes generally, is that the commanding officer simply is not empowered, at least morally, to command the soldier to violate other people’s rights. We might also say that the officer has “abused his authority” or even “forfeited his right to command.” More simply, and less misleadingly, we could say that his command is invalid, because of its content. That would explain why the soldier is free, and indeed required, to ignore the order and in effect do the weighing himself. A similar analysis is available in the finger-breaking case. If B refuses to let his finger be broken he presumably does not violate anyone’s right, but his conduct is at least deplorably selfish. In alternative terminology, due to Quinn (1989, p. 169n), it would be contemptible of him to refuse. That could be enough to weaken or even revoke his authority. In that way his right could be rendered irrelevant in the context.19 Several points of clarification are in order. First, as I intimated previously, there are a number of ways of talking about the phenomenon I am after, illustrated by Raz’s officer, which may be tempting but are also for various reasons misleading. They include saying that a person’s authority

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is lost (or weakened), or that he has abused it. A less misleading piece of terminology is that a command such as the officer’s, or B’s in the fingerbreaking case, is “self-undermining.” The right holder in these cases does not, and has never had, the authority to make the particular command he makes in the situation, simply because of the kind of command it is. Second, the analogy between the officer and finger-breaking cases is in one way a little misleading. The soldier is already faced with the officer’s atrocious order, and the question arises of what he is then required to do. In the finger-breaking case, by contrast, A may well be faced with the question of what to do despite being unable to communicate with B or C, thus having received no commands. That does not matter, though, for the important point is that B’s demand on him that he refrain from breaking B’s finger in order to save C’s life, would undermine B’s authority if he were to make it. It would thereby be self-undermining. Consequently A does not need to know what B would say about A’s proposed course of action. Either B would demand that A not act, in which case his authority to demand would be undermined and A can set that demand aside and proceed; or B would make no such demand, and A can again proceed, as B has then in effect waived whatever right he may have had. Either way A is morally free to break B’s finger. Third, whether a person in fact is selfish in making a given demand depends on his information about the situation. To use our example, suppose circumstances are such that B quite understandably, but still falsely, believes that a broken finger will kill him. Then his non-consent to A’s attempted rescue is not selfish. Now, we are in any case not imagining an actual conversation between A and B (and C), in which A asks B whether he will consent to A’s making the attempt and B then refusing. After all, perhaps A and B are unable to communicate. To the extent that we are to imagine A and B talking to one another, that conversation will in any case have to be hypothetical. Remember, the question that concerns us is that of whether A’s finger-breaking rescue violates B’s right, or wrongs him. The answer to that question does not presuppose knowledge about B’s beliefs.20 Further, if the answer to our question does not depend on what B believes, it also cannot depend on whether B is selfish given those beliefs. If it is to depend on selfishness at all, then, the natural alternative suggestion is that it depends on selfishness given true beliefs about the situation, whether or not the relevant information is available to B in the circumstances. Fourth, it is essential to the proposal at hand that it would be objectionably selfish of B to demand that A spare his finger. The problem is not with his merely believing, or even asserting, that that is what A should do. However, this feature of the proposal leads to a circularity charge, namely that it presupposes antecedent facts about rights, and so cannot explain these. According to this criticism, it is “selfish” (or “presumptuous”) to demand of another that one be spared some minor harm when the other

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could thereby save a life, only because there is no right to be spared the harm in those circumstances. The appeal to “selfishness,” the critic therefore contends, explains nothing. I respond as follows.21 What makes B’s demand selfish is not that it involves a false assertion that he has a certain right (though it may involve such an assertion) but rather that it involves an excessive self-preference, and a willingness to enforce that preference. The judgment that B’s self-preference is “excessive” does not presuppose any facts about rights. It is simply a judgment about value, or first-order reasons. I will not pause here to specify further the “willingness to enforce” to which I have appealed, nor will I assert that the notion of “making a demand,” as it is usually understood, generally implies such willingness. I will assume, however, that a person who makes a claim of right, as B does in the finger-breaking case, does manifest such a willingness, and that this fact about his (possible) demand is essential to explaining its objectionably selfish character. I also want to apply the idea of selfishness as undermining authority to a different kind of case, also familiar from the literature.22 In it a hiker needs to break into a cabin, owned by another, to save himself from a blizzard. Suppose that the resources the hiker needs are in the cabin owner’s domain. It is still possible to argue that it is permissible for the hiker to take them, using the previous account. That is, it could show that the owner lacks a right against the hiker’s taking what he needs to survive— because the appalling selfishness of his (hypothetical) refusal to allow the hiker access to the resources he needs would undermine his authority to command. But we want to go further, for we want to deny that the owner even has a liberty to stop the hiker from taking what he needs. Can we get that conclusion as well? Yes we can, or at any rate if we are willing to countenance positive rights. If the owner’s claim is self-undermining, the road is open to saying that the hiker does have a right to the resources. They no longer belong to the owner’s domain, and so they could belong to the hiker’s domain, because of his need. That is not to say that the owner’s right to these resources is lost completely, or for that matter that the hiker is now their owner. It is only to say precisely that the hiker has a right to use them to save his life. This last observation leads to another worthwhile point. For even if the hiker has a right to use the resources he needs, we will likely also insist that he owes it to the owner to compensate for the harm he causes when he is able to do so. The agency view, equipped with the idea of a person’s authority to command as vulnerable to how one exercises it (or, rather, tries to exercise it), can account for this obligation. Now, at first blush that may not seem to be so, for the agency view seems to imply that the owner lacks a right against the hiker that the latter not take the resources he needs to stay alive. If so, one is led to ask, why should the hiker compensate the owner for his loss?23 However, we must remember why that is so on the agency view: the owner lacks the authority to demand

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that the hiker refrain from using the resources. (As a consequence, he is not entitled to enforce his demand either). Again, this is because such a demand would undermine itself due to its selfish character. His authority would not support it. But that does not mean that his authority would not support a distinct demand for compensation for the loss he has suffered. Such a demand would not necessarily be selfish. There is no reason to doubt that he is in a position to make it. The restriction of his authority, generated by the combination of the hiker’s need and his own non-need, which removed his liberty to prevent the hiker’s using the resources is limited by what could plausibly be described as selfish or contemptible or in some way redound to his significant discredit. It certainly does not amount to a flat-out transfer of property right to the hiker. To sum up, we have seen that by appealing to the idea that persons lose their authority to command others by, as it were, abusing that authority— or, better perhaps, that certain commands are self-undermining—we can explain some central facts about rights that would otherwise be difficult to account for on the agency view. But this fact offers little solace if there is no rationale for the idea itself. We need an explanation, compatible with the agency view, of why persons’ authority to command is limited in scope in the way suggested. Now, the idea currently being discussed to some extent resembles the view I will be defending in Part III, that persons’ rights depend on how they exercise their agency. However, that view is clearly incompatible with the agency view (see Chapter 9), and I would at least prefer to be able to say that the present proposal is not, if for no other reason than that it is brought in to account for phenomena that the vast majority of rights theorists accept (and may indeed be essential to anything worth calling a “rights theory” in the first place), whereas the view defended in Part III is quite controversial. Here only a brief sketch of an answer is possible. What we need is an argument, compatible with the agency view, for thinking that it is impossible to exercise authority in a way that is itself morally repugnant or blameworthy, that such authority is self-undermining—without at the same time going so far as to rule out the possibility of a so-called “right to do wrong.”24 And the argument must be such that it does not presuppose that one in fact does have the authority (so that it is not precisely one’s abusing it that is repugnant). I believe that, in outline, the response to this challenge has to be that the proper way to interpret the agency view is something along these lines: what persons are entitled to qua agents is precisely to be treated as being in charge of their domain of control, and so to have their demands relative to that domain respected, insofar as these demands show adequate respect for the agency of others. That, then, is what counts as treating them appropriately, or respecting their value as persons. Unlike the view discussed in Part III, this answer clearly is an interpretation of the agency view, rather than a rejection of it, for it retains the central thought that agency as such is the ground of rights.

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This view will perhaps be dismissed as ad hoc. For that charge to stick, there would have to be some alternative explanation of persons’ rights (and, remember, I am taking these for granted) that does at least as good a job of accounting for the “observed phenomena” (i.e., our intuitions about the finger-breaking case and others) and that has greater independent plausibility. An exhaustive treatment of the ad hoc-ness charge would mean going over and rejecting all candidates for such an alternative explanation, which I certainly cannot do here. However, it is fair to say that no obvious candidate exists. A more positive story will have to wait for another occasion.

3.

Aggregation

The notion of constraints is somewhat related to another idea sometimes connected with rights, namely that they cannot be aggregated, in the sense that the strengths of several rights of different persons cannot be added together. (By contrast, the strengths of different rights belonging to the same person are generally recognized as aggregable.) Call this the nonaggregation thesis. We have already seen, in Thomson’s High-Threshold Thesis, a relative of this idea, namely the thought that rights serve as a kind of bulwark against the aggregation of other, non-right considerations. The main reason why philosophers have been unwilling to allow for aggregation of rights, at least indiscriminately, is much the same one that led them to advocate something like trumping. If many weaker rights could aggregate and thereby outweigh a stronger right, the difference between a rights theory and straightforward consequentialism would be severely reduced. For instance, suppose I could save a large number of people from some serious, but not fatal, illness and that they all have a right against me that I do so. And suppose also that I could save another person from death, and that he has a right against me that I do so. And suppose finally that I could do either one or the other of these saving actions, but not both. If aggregation of rights were possible, it could be argued that if only the group of persons threatened by illness is large enough, it is my duty to save them. And many defenders of rights find that conclusion unappetizing. The non-aggregation thesis helps them avoid it. But there are also familiar counterexamples to the thesis. Prominent among these are cases in which an agent is to choose between saving a smaller number of persons from some evil fate (usually death) and saving a greater number from that same fate. The debate is about whether “numbers count.”25 It is true that this debate is not usually expressed in terms of rights, but it certainly lends itself well to such a formulation.26 In these cases, most people (but certainly not all) agree that it is at least permissible, and maybe even required, to save the greater number. This verdict goes against the non-aggregation thesis, suggesting that aggregation of rights is possible. In saving the greater number, we have not

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(necessarily) wronged anyone, or violated any right.27 However, it could still be our duty to respect the greater number of rights (with a greater overall strength). But that duty is a non-directed requirement. In the following, I will show that the agency view entails the nonaggregation thesis (and that that fact is not an unconditional blessing). I do not assert that it is impossible to arrive at that thesis in any other way, but I should at least dispense with a couple of arguments that might seem to accomplish just that. The first one relies on the idea that the very relational nature of rights makes aggregation impossible. If the strength of A’s right against me that I φ and the strength of B’s right against me that I φ cannot be added together, that would have to be due precisely to the fact that A’s right against me is a relation between me and A, whereas B’s similar right against me is a relation between me and B. If we prefer, we could say instead that I have a moral reason to φ “relative to A,” and a similar reason to φ “relative to B.” And a moral reason holding “relative to A” could not be aggregated with a moral reason holding “relative to B.” Consider this analogy. When I am driving, my speed relative to the ground and my speed relative to a passing car cannot automatically be aggregated into my speed-relative-to-the-ground-and-the-passing-car. This argument is too quick, and proves too much. It is too quick because it overlooks what I noted in 2.3C, that the directedness of a requirement can in effect be reduced to being a requirement with a certain kind of ground. The agency view specifies that ground. Whatever plausibility attaches to the conjecture that a requirement holding “relative to” one person cannot be aggregated with another requirement holding “relative to” another person seems to disappear once it becomes clear that this relativity is just shorthand for a special kind of ground. The contrary impression was simply due to misleading connotations of the term ‘relative to.’ (Note that no reduction of the type indicated is possible in the allegedly analogous case of speed.) The argument proves too much as it would also show, if sound, that relative reasons generally (and not just rights) are incommensurable with one another. I noted (in 1.4) that such reasons are commensurable with “regular” non-relational reasons, and they should be commensurable with one another as well.28 A somewhat related argument is due to Nozick. He suggests that we cannot aggregate wrongs done to different people, because such aggregation implies, falsely, that there is some sort of “super-person” who suffers this aggregated wrong (1974, p. 32f), or that the separate wrongs can be merged into an impersonal wrong. The proposed implication is questionable, however. Nozick is saying that the fact that I have wronged A does not aggregate with the fact that I have wronged B. By contrast my having wronged A on one occasion could aggregate with my having wronged him on another occasion, in the sense that I have wronged him more by wronging him twice. In the interpersonal case, there is no one who is

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wronged more because I wrong both A and B. That much is indisputable. But it does not follow that I do not have more reason overall not to wrong both A and B than I have not to wrong A alone. These reasons, after all, are all my reasons. So while there is a clear sense that wrongs cannot aggregate across persons, it does not follow that reasons cannot. But when we turn to the agency view, such a reason quickly comes into view. For on that view, to have a right is to have authority over others in a certain respect. Hence, to aggregate rights would be to aggregate authority, and that makes no sense. Most obviously we could appeal to the same intuitive argument I have already used in rejecting the idea that exclusionary reasons have strength (in 7.2). To have authority is to “be in charge,” and that property does not aggregate. It certainly makes sense to say that more than one person could be “in charge” of something, in the sense of being able to issue commands that generate exclusionary reasons for others—though such “shared command” usually appears only in certain contexts, such as property rights. But shared authority is not aggregated authority. By the same token, the exclusionary reasons generated by commands also do not aggregate when commands come from different persons. This is because the relevant value involved, the one that would supposedly be interpersonally aggregated, is that of respecting a person’s authority, by treating him as being in charge. And since only one person can be in charge (again with certain qualifications), this value cannot be aggregated. Even if it is true that we realize a value in respecting another’s authority in a situation—and there is no need to deny that—it is not as if we somehow aggregate (increase) that value by going on to accord someone else the same honor. If anything we thereby undo the value we had previously realized. I also remind the reader of my claim in 7.2 that the exclusionary-reason components of purportedly conflicting obligations do not themselves conflict in any interesting sense. If that is right, the aggregation of exclusionary reasons, even if it made sense, would itself lack any practical significance. The whole point of such aggregation, after all, would be that several aggregated exclusionary reasons could somehow override a conflicting exclusionary reason. I have offered reasons for denying that aggregation of rights makes sense at all. We could add to these an argument for why it is in any case not possible to aggregate rights in cases of constraints, like those discussed in the preceding subsection. Consider again the case in which A could save C’s life by causing B some very severe, permanent but non-lethal harm. I argued that in this case C lacks the authority to command A to save him, because that command extends past his domain. It should be clear that the same reasoning applies to a case in which B’s life could be used to save not only C but also a number of other people. If C’s command is illegitimate for the reason stated, so are the corresponding commands of

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the other potential rescuees. Hence there is nothing there to aggregate in the first place.29 It is natural to respond to what I have been saying previously that, on a natural interpretation, the aggregation of rights is the aggregation of first-order reasons, and that I have said nothing to show that these cannot be interpersonally aggregated. The latter claim is quite correct, and in fact I do not deny that such aggregation is possible. (I even rejected a couple of arguments purporting to show the opposite.) But what of the objector’s first claim? To assess it, we need to know how the aggregability of the first-order components of obligations affects what persons are morally required to do. After all, the latter is what ultimately concerns us. Let me now describe an important way in which such aggregability does not matter to what we ought to do, and an important way in which it does matter. In the first place, then, we might well be tempted to reason in something like this way: a person who has violated two rights of a given strength has “done worse” than one who has only violated one such right, ceteris paribus. That much seems true enough. Further, if I do worse in φ-ing than in ψ-ing, surely that means that I have stronger reason not to φ than I have not to ψ. But if I have stronger reason not to violate a given right twice (meaning: violating two persons’ rights) than I have to violate it only once, then it seems that reasons, and right strength, must aggregate after all. We have already seen, in effect, what is wrong with this type of reasoning back in 2.2 (and also in 7.2). To rehearse, it overlooks the distinction between two senses of ‘reason for action,’ one linked to value and one linked to what we ought to do. Again, exclusionary reasons do not affect reasons to act when they are understood in the first sense (meaning that they do not affect value facts)—though they do exclude such reasons—but they cancel reasons to act if these are understood in the second, stronger sense. The argument in the last paragraph is correct to the extent that reasons to act in the weak sense very well may aggregate (again, I do not deny it), but it does not follow that reasons in the strong sense aggregate. Putting the point differently, and again adverting to the discussion in 2.2, while values indeed aggregate, what we ought to do is not necessarily determined by aggregate value. The objection in effect begs the question by simply assuming the opposite. To see how the aggregation of value sometimes does matter to what we ought to do, we must return to the point I made in the preceding section: a person’s authority, constitutive of his right, is not absolute. Some claims are self-undermining. Suppose a person insists that we save his life, even though he is aware that we would thereby abandon many others to some appalling fate, though they will all survive. He may be “acting within his rights”—in the sense that no one has a right against him that he sacrifice himself—but his willingness not only to put his own good before that of so many others, but to demand that we do so as well, also serves to undermine the very authority he is assuming in issuing his prohibition, at

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least if it is egregious enough. Note that this case involves aggregation, in the sense that the charge of selfishness takes hold only if we allow that the fate of the many is a worse thing to happen (impersonally speaking) than the fate of the one. However, this much we can concede without letting ourselves into any troublesome aggregation of rights. Importantly, this view arguably implies that when an agent is given a choice between saving a smaller number and saving a larger number, and he chooses to save the smaller number, then his action wrongs the many. In such a case the agent is facing conflicting commands, one issued by the one person and the others by each one of the many. However, if the one lacks authority to demand rescue, as that would evince a selfish or presumptuous disregard of strong (aggregated) first-order reasons, there is no conflict of rights. After all, he is then unable to generate any exclusionary reason. So then nothing prevents each of the many from generating such reasons, and therefore the agent wrongs them all in not saving them. (If we want to, we could say that they are collectively “in charge.”) After all, none of them is culpably selfish in demanding that I save him rather than the one, so they each retain their right that I save him. I acknowledge that there are significant problems with the approach to aggregation just proposed, which I cannot address here—even apart from the foundational question left only very partially answered at the end of the preceding section. I will mention only the most glaring one. This is that of distinguishing cases like those I have just been discussing, involving purported positive rights to be saved, from those discussed in the preceding section, involving negative rights not to suffer harm. It is generally acknowledged that for it to be permissible to harm someone in order to save others, the harm the first person suffers must be much less severe than the harm from which we could save the others. Hence, for someone to lose his right on account of selfishness, it seems that he has to be very selfish. By contrast, if we are to choose between saving one person from some harm and saving one or more other persons from the same harm, or some less serious one, then it takes a significantly lesser degree of selfishness for it to be the case that we ought to save the others. Even if what happens to the one person is only a little worse than what happens to the others, aggregatively speaking, then we ought to save the others. Indeed, it seems that in some such cases it would not be “selfish” at all for the one person to demand rescue—even though, intuitively speaking, rescuing him would be wrong, and would perhaps even wrong the others. Obviously much more needs to be said here. For one thing, we need a developed account of positive rights of the type hinted at in 7.5.

Notes 1. This point is commonly made. See, e.g., Raz (1986, p. 186), Rainbolt (2006, p. 151). In any case, Dworkin probably never meant to defend such a universal

The Moral Significance of Rights

2.

3. 4. 5. 6. 7. 8.

9.

10. 11. 12. 13. 14. 15.

16. 17. 18.

19. 20.

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trumping thesis. When he talks about “rights as trumps” he probably has in mind only a limited class of rights: in the passage I quoted he mentions only “political rights.” An alternative strategy, which I only mention here, is to define the “trump” status of rights as context relative. On such a view, they are “powerful in comparison with other considerations normally at work [in a given context]” (Nickel 2007, p. 25). See, e.g., (1978, pp. 193, 201). I have in mind the alternative account of exclusionary reasons discussed in 2.2. For an explicit assimilation between Raz’s notion of exclusionary reasons and trumping, see Jones (1994, pp. 53–5). See, especially, (1978, pp. 193f). As noted in 7.5, Thomson denies that there are any (positive) claims to be provided with benefits, or saved from harm (ibid., pp. 160–2). Cf. Halstead (2016). See Nozick (1974, p. 29). Actually, Nozick only says that it is wrong to infringe a constraint in order to “lessen their total violation in society” (ibid.). He is primarily out to contrast a consequentialist “utilitarianism of rights” (p. 28) with a view that includes constraints. There are really two kinds of case here. In the first, the agent can kill one person to prevent several others from being killed accidentally, or by natural causes. In the second, the others are threatened by death at the hand of some other agent(s). Strictly speaking, the description in the text only fits the second case, for only in that case do violations of the same (negative) right stand against one another. For an influential statement of the paradox charge, see Scheffler (1994). The notion of patient relativity gives rise to a number of interesting questions that I cannot discuss here. See Hammerton (2016) for more on these matters. See especially Kamm (1996, chap. 10, 2007) and Nagel (1995). An earlier version appears in Quinn (1989). This aim is most explicit in Kamm (1996, chap. 10). I have added the words ‘for us,’ as they are implicit in Nagel’s description of his argument elsewhere in his text. Kamm writes: “my account [of inviolability] highlights an agent-neutral value: the high degree of inviolability of persons that lies at the base even of an agent-relative duty. . . . This value is not a consequentialist value that we promote by bringing about something through action or omission. The value already resides in persons and we act in the light of it” (2007, p. 29; original emphases). In this discussion I follow Kamm in speaking of permissible infringements of rights. For a recent expression of skepticism along these lines, see Lippert-Rasmussen (2009). To be sure, we are here in effect presupposing after all that the rights of the members of the larger group can be aggregated. (This is because the idea of a requirement to infringe one person’s right in order to save just one other person from the same fate is absurd.) However, Kamm does not preclude such aggregation, and arguably the value of each member of the group would be greater if the infringement of the one’s right is permissible than if it were not. Kamm defends a “principle of irrelevant rights” according to which certain rights fail to count at all in the presence of other, much stronger rights (2007, p. 289), She does not stop to elaborate, however. It may presuppose knowledge about A’s beliefs, but I will not consider that question here.

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21. Cf. my brief earlier discussion in 3.2. 22. See Feinberg (1978). 23. Thus the agency view is in the same boat with specificationism (see 7.3), which also has that implication. Some specificationists have in fact denied that the hiker is under any obligation to compensate. See, e.g., Oberdiek (2004). 24. For this notion, see Waldron (1981). 25. This debate, which by now is quite large, seems to have started with Taurek (1977), though Anscombe (1967) is also relevant. For a later survey, see Hirose (2007). 26. One author who does (occasionally) use claims to express the relevant issues is Kamm. See, e.g., (2007, pp. 297–8). 27. I add the parenthetical ‘necessarily’ because some theorists argue that we do wrong someone if we set aside the greater number of claims, at least provided that the claims involved are individually of the same strength. I have in mind here an argument of the kind Kamm calls the “balancing argument” (1993, p. 116f, 2007, p. 33) and Scanlon calls the “tie-breaking argument” (1998, pp. 232–5). 28. I owe this observation to Jan Gertken. 29. This argument is like the one used in subsection B to defend the trumping and High-Threshold theses, which also concern a kind of aggregation, in that it moves from the thought that a given consideration of a certain type can be ignored to the conclusion that all considerations of that type can be ignored.

9

Losing Rights

I now turn to what seems to me the most serious objection to the agency view, at least prima facie. This is that it cannot account for the apparent fact that we can lose our (basic) rights.1 The idea is that a person who would violate another’s right unless prevented, or has already done so, loses certain rights that he would otherwise have had. As philosophers also put it, he is liable to necessary (and proportionate) self-defensive force, and to (proportionate) punishment, respectively. In this chapter I will argue that right loss cannot be reconciled with the agency view. However, I will not defend the view that right loss does occur (except in a rather limited way). That is, on the whole I will treat it as a datum to be explained. In other words, I will be asking this question: what theory of rights do we need to account for the fact, if it is indeed a fact, that those who commit crimes or violate rights lose rights they would otherwise have? This crucial question has not received the attention it deserves.2 A caveat: in this chapter I will be speaking throughout of persons’ “losing” their rights, which of course implies that these persons had the rights initially, or “by default,” and then lost them because of their wrongdoing. Another term, more neutral, is that wrongdoers “lack” rights. It does not imply that they had the right in the first place. Maybe they have simply failed somehow to acquire it. I use the former term here because it is more in line with tradition, and because the idea of persons’ losing rights they have initially is more prima facie plausible than the alternative. I will return to this matter in Part III.

1.

The Permanent-Ground Argument

A familiar argument purports to show why the agency view is incompatible with right loss.3 I will call it the permanent-ground argument, because it tells us that the ground of rights is a more or less permanent feature of right holders. Specifically, it runs as follows: 1. According to the agency view, we have basic rights in virtue of our very nature as agents,

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2. If our basic rights belong to us simply in virtue of our very nature as agents, we cannot lose these rights without ceasing to be agents. 3. Hence, if the agency view is correct, agents cannot lose basic rights. The argument is most popular, and most plausible, when applied to criminal offenders. As they typically do not cease to be agents in virtue of committing their unlawful deeds, the agency view implies that they cannot lose their rights, including their immunity to punishment-style treatments. On the other hand, the same reasoning would presumably apply also to culpable aggressors, though it seems less popular in the self-defense context. The agency view is an instance of the value view, and the problem of right loss has implications for that more general thesis as well. If, as the value view tells us, a person’s rights constitute his value, then a loss of one of his (basic) rights must also prima facie correspond to a loss of (some of) his value. This observation as such of course does not tell us how we should respond: reject the value view; reject the idea of right loss; or embrace both, thus requiring us to identify some non-permanent ground of rights, and thus of value. We can distinguish three responses to the permanent-ground argument: (i) question its soundness; (ii) deny the agency view and accept loss of basic rights; (iii) accept the agency view and deny loss of basic rights. Let us go over these options briefly, so as to get a clearer view of the theoretical landscape. We can pass over the first option rather quickly. As long as ‘basic rights’ refers to whatever rights are basic, regardless of their character—and in particular whether or not they are conditional—the argument’s soundness should not be an issue. I will return to this point in section 2. Views that embrace the second option come in two varieties: those that still accept the value view and those that do not. As I am committed to the value view, I will only consider views of the former of these two types. The concluding part of the book will be devoted to such views. As far as the other category is concerned I must be quite brief. In 3.1 I considered three alternative views of rights that do not imply the value view: consequentialism, contractarianism and Raz’s individual benefit theory. Fairness demands the following observation: there are no obvious obstacles to right loss on either of the former two views, though I cannot here go into details.4 By contrast, it is less clear if the same can be said for the individual benefit theory.5 In any case, none of these views will receive further attention. The third response can in turn be subdivided into two main kinds. According to the first, the fact that culpable aggressors and wrongdoers do not lose their rights, means that it is wrong (violates their right) to harm them. Again, and admittedly, many would defend this view with respect to wrongdoers but not with respect to culpable aggressors. According to the second version of the third response, it is permissible to cause harm

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to culpable aggressors, because they lack a right to suffer that particular treatment in that particular situation, though they still retain their basic rights.6 In what follows I will simply set aside views of the first kind. That is what I had in mind when I said previously that I will not defend right loss. However, in the rest of this chapter I wish at least to criticize extant forms of the second type of view.7 That is what I had in mind when I said that I will defend right loss “in a rather limited way.” In particular, there are two main types of view here. According to the first, our basic rights are conditional, and are not lost. However, an offender or a culpable aggressor lacks an unconditional right not to suffer the relevant harm. According to the second type of view, our basic rights are unconditional, but they are not rights not to suffer harm. These are instead derived from our basic rights, and in the special case of wrongdoers and culpable aggressors the derivation fails. My primary aim will be to show that these alternative views are not compatible with the agency view after all.8

2.

Conditional Rights

I turn first to the view that all, or at least many, of our basic rights are conditional. It is easy to see the superficial attraction of this strategy. For it may appear to avoid the troublesome consequence that persons can lose rights they have simply in virtue of being agents, on the grounds that they always retain their conditional rights. To be a bit more precise, the conditional-rights thesis says that at least most, and perhaps all, of our basic rights are conditional on our not violating (or threatening to violate) other people’s rights.9 Note the ‘basic.’ Even should it turn out that the conditional-rights thesis is implausible, or at least difficult to combine with the agency view, it could still be possible to maintain that (most of) the rights that we would normally recognize as basic are conditional, but derived from one or more unconditional basic rights. I will consider that possibility in the next section. However, the conditional-rights thesis must be stated with care. To that end, let us first ask a technical question: does a conditional right have the form ~p⟶R(~φ) or the form R(~p⟶ ~φ)? Using jargon, does the “right operator” R have narrow or wide scope? For concreteness, suppose that ‘p’ stands for my being a (lethal) threat to you and ‘φ’ stands for your killing me. (I use the example of self-defense here for convenience.) The “narrow-scope” interpretation is by far the more plausible. The wide-scope interpretation would imply that I have a claim against you that either I am a threat to you or you do not kill me. In other words, it would in effect be a disjunctive claim of the form R(~p ˅ ~φ). However, it would seem that a disjunctive claim makes sense only if both disjuncts are themselves at least potential objects of claims. And since all I can claim from you is that you act in a certain way, my being a threat is not something I can meaningfully claim from you. After all, that is not an action of yours. Hence we should

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interpret my not being a threat as a condition of my having a right, rather than as part of a conditional to which I have a right. But that means that, insofar as it makes sense to talk of “conditional rights” at all, to have such a right is to have a right that belongs to one only contingently on one’s meeting certain conditions. In particular, if the conditional-rights thesis holds, to have a conditional right is to have a right that belongs to one contingently on one’s not having violated other people’s rights (or certain specific rights). In other words, to have a conditional right is not a state one finds oneself in all the time. Consequently, it seems that the strategy described previously of reconciling right loss with the agency view fails after all, for the conditional-rights thesis does not allow that there is any right a person has simply because of his agency. If so, after all, one would have the right as long as one remains an agent. There is now a complication, however. To rehearse, I have stated the agency view as follows: The agency view of rights. The value constituted by persons’ rights belongs to them because of their agency. There is a crucial ambiguity in this formulation, for there are two possible readings of the words ‘because of.’ On a strong reading, the words can be taken to imply that if (unconditional) rights exist because of agency, then agency is sufficient in itself for rights to obtain. On a weak reading there is no such implication. The agency view and the conditional-rights thesis conflict only if we read the former in the stronger of these two ways. Further, the distinction between the two interpretations of ‘because of’ is linked to an important distinction in value theory between “valuemaking” properties and “enabling” (or “disabling”) conditions.10 The idea is that such a condition does not itself make a thing good or bad, but rather enables or disables some other feature to make the thing good or bad. An intuitive way of drawing this distinction is precisely by appeal to the notions of “because” and “in virtue of.” Even though an enabling or disabling condition could be relevant to the obtaining of some value, the value does not obtain “because of” or “in virtue of” that condition. To use a familiar example, a state of affairs is good if it is the satisfaction of a preference, unless the preference in question is malicious. However, the state of affairs is not “made” valuable by the fact that the constituent preference is not malicious. The maliciousness of the preference, then, is a disabling condition: because of it, a certain state of affairs is not made good by the fact that it is the satisfaction of a preference. Admittedly I have no general account of what “relevance” amounts to in this context, beyond the notion that it has something to do with “making a difference” to whether the value obtains or not. For our modest purposes, hopefully an intuitive understanding gleaned from previous examples will be sufficient. Further, in applying the distinction between enabling and “making”

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features to the conditional-rights thesis, I will begin by treating them as pertinent to the existence of a right, rather than a value property. We will return to the issue of value in due time. And so, on the weaker reading of the agency view, ‘because of’ stands for a making relation. On the stronger reading, it stands for the relation that holds between the right and all the (natural) properties relevant to its obtaining. That is why, given the stronger reading, a right’s obtaining “because of” agency implies that agency is in itself sufficient for the right: only agency would then be relevant to the right’s obtaining. It is natural, and indeed perhaps inevitable, to express the conditionalrights thesis in terms of a disabling condition. Certainly the notion of rights’ being “conditional” suggests as much. If the thesis is correct, persons have rights because of their agency, in the weak sense of ‘because of,’ but their own right violations are a disabling condition of these rights. By contrast, a person does not have a right, even in part, “because of” or “in virtue of” his not having violated any rights. This negative property, then, is merely relevant to the right’s obtaining. Understanding the agency view in the weaker sense, then, is to allow for this picture of rights. By the same token, when I said that the agency view cannot accommodate right loss, I tacitly presupposed the stronger interpretation of that view, the one on which ‘because of’ signifies a sufficient condition. Only then, after all, is the phenomenon of right loss an embarrassment to that view. In other words, the permanent-ground argument presupposes the strong interpretation of the agency view. What is more, the fact that others have endorsed this argument indicates that they have also interpreted the view in its strong form. It is uncertain whether they would have been willing to settle for the weaker form of the agency view, and thus for conditional rights. By the same token, those who accept conditional rights would reject the argument’s first premise, it is interpreted to imply the strong version of the agency view. What we have found, then, is that the conditional-rights thesis is incompatible with the “original” strong version of the agency view but compatible with the weaker version. It could of course be suggested that the “heart” of the agency view, the part of it most worth preserving, is precisely the weaker notion that agency is the only feature of persons that “makes” them have the value constituted by basic rights, and not the stronger idea that agency is the only factor that is even relevant to a person’s basic rights. If so, it is not so important that the strong version of the agency view is incompatible with the conditional-rights thesis. I find it difficult to arrive at a firm opinion on this type of response, not least because the distinction between “making” properties and enabling/ disabling conditions is unclear—though I prefer not to question its general applicability. I note, however, that once we have retreated from the strong version of the agency view to the weak one, in order to accommodate the notion that right violations are disabling conditions, it is very much

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obscure why we might not as well take yet a further step, and concede that right violations “make” persons lack rights they would otherwise have had. That is to say, they would then not simply be conditions that somehow disable a person’s agency from grounding his rights, but rather they would contribute to determining what rights he has on an equal footing with his agency. But if we go that far, we have abandoned the supposed “heart” of the agency view. I will return to this matter in 10.1. I wish to derive a couple of morals from this discussion. The first is that it does not matter a whole lot in itself which of these last two views we take. What matters is rather that (a) both are incompatible with the strong agency view and (b) both imply that agency (if not exclusively) makes us have rights. Therefore they are both incompatible with the view that persons have rights in virtue of their actions rather than their agency. I will consider that alternative view in Part III. The second moral brings us back, as advertised, to the implications the conditional-rights thesis has for value. We have seen that this thesis implies that a person’s possession of rights is contingent upon his actions. Hence, if the value view is correct (as I have been supposing), we must also infer that the person’s value is subject to such conditions, meaning that it varies depending on how he acts. Given the value view, if the fundamental reasons we have for treating a person change, so must his value. This consequence will be very hard to swallow for many. I will return to it in 11.5. For now I note two things. The first is simply that it is a mistake to believe that we can avoid the problematic consequence by supposing that the person’s value is made up of (or, for that matter, corresponds to) “conditional rights,” on the grounds that the conditional right, and so the value, is always present, even if the relevant condition is not met. As I noted previously, a conditional right is not some special sort of right that one has all the time. Second, if we wish to avoid the conclusion, without abandoning the value view, we will be sorely tempted, and perhaps compelled, to embrace the option I mentioned at the end of the preceding section, that of deriving conditional rights from a basic unconditional right. On such a view, after all, the fundamental reasons we have for treating persons are not affected by their actions. Let us therefore turn to that option now.

3.

Derived Rights

There is certainly nothing odd about the idea of a derived conditional right. After all, a derived right is contingent on some further fact, beyond the obtaining of whatever right from which it is derived (see 1.2). For instance, suppose I have a right to whatever medical treatment is needed to save my life, and that I will die unless I have heart surgery. In that case it is perfectly in order to say that I have a derived right to heart surgery, and that this right is conditional on my needing the surgery to stay alive. This observation leads to the question of whether the conditional right

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not to suffer preventive or punitive harm could be accounted for in analogous fashion. Might it be possible to find a basic right—itself presumably unconditional—from which it is possible to derive a conditional right not to suffer such harm (or the treatment involved in some instance of it)? To my knowledge, Berman (2008) is the only writer on punishment who has explicitly pursued this derived-right strategy, though he himself labels it “Rearticulating the right.” On Berman’s view, there is no basic right “against the purposeful infliction of suffering” (p. 277). Rather, he holds, there is a basic (or “foundational”) right to be respected as a person (p. 278). According to Berman, it is possible to derive the right against intentional harm infliction from this basic right in the case of an innocent person, but not for offenders. The upshot, then, is in practice the same as what we get from the conditional-rights thesis, but the theoretical underpinning is different. Unfortunately, though, the relevant derivation is quite underdescribed, and what follows is my own attempt at a reconstruction. On Berman’s view, the right to respect as a person is not “monistic.” There are many aspects of personhood with “privileged status,” and “respecting” a person under one aspect is not necessarily the same as “respecting” him under another aspect. In particular, a person has status both as a being with certain interests and as a responsible agent. To respect a person under the first of these two aspects is to satisfy, or at least not frustrate, these interests. By contrast, to respect a person under the second aspect is to give him what he deserves for his actions. Further, when a person deserves punishment we may therefore respect him as a person in two ways: either by refraining from punishing him or by punishing him. If we refrain from punishing him we respect him as a being with certain interests, and if we do punish him we respect him as a responsible agent (p. 279).11 Either way, though, we accord him his right to respect as a person. In other words, the right to respect as a person is disjunctive. And note that in this case—unlike in that of conditional rights discussed previously—the wide-scope reading is intended. That is, the form of the right to respect as a person has the form R(p ˅ q), and not the form Rp ˅ Rq.12 A caveat is needful here. As has hopefully become clear, Berman’s view does not actually imply right loss, for the disjunctive right he mentions is not lost by wrongdoing. His view does imply that it is often possible to punish a wrongdoer without infringing his right (though we would have violated an innocent person’s right by treating him the same way.) In that respect, then, it is a bit of a special case, for it differs from a view according to which the (non-disjunctive) right not to suffer a given harm is derived from a more general right and is lost upon wrongdoing (while the general right remains). Perhaps we should say, then, that Berman’s view represents yet a third type of defense of the agency view (in addition to the conditional-rights thesis and straightforward derivation). I will not pause to discuss this matter of classification, however.

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Now for the derivation. Berman makes clear that the right against the intentional infliction of pain is derivative (p. 280). His reasoning might be something like this. Suppose that a person has a basic right to be treated with respect as a person and that this right has the disjunctive form Berman describes. For simplicity, suppose that it is a right either to be spared pain or to be treated as one deserves. And suppose further—and this is the additional fact for purposes of the derivation—that what the person deserves is to be spared pain (i.e., he is innocent). Then we can derive a non-disjunctive right to be spared pain. The derivation works on the model [(R(p ˅ q)) & (q ⟶ p)] ⟶ Rp. There are some technical issues here, which I will however disregard.13 The most distinctive feature of Berman’s account is also its most puzzling: that a person’s basic right to respect as a person is (wide-scope) disjunctive—or at any rate that it “does not obey the principle of distributivity” (p. 279): though an offender has a right either to be punished or to be spared, he does not have a right to be punished nor a right to be spared. Nor is it the case that his basic right to respect as a person implies that he has the right to be spared in certain circumstances (i.e., when he is innocent), and the right to be punished in other circumstances (i.e., when he is guilty). Berman is quite explicit that his account does not entail the Hegelian view that offenders ever have a right to be punished (pp. 278f). The mystery is how this disjunctive structure arises in the first place. In justifying it, Berman refers to the (supposed) fact that personhood has several aspects, all of which contribute to its “privileged status.” But why are we not then obligated to respect all of them in any given situation, rather than being allowed to choose one of them, seemingly arbitrarily? Or, in the special case when the aspects “pull apart or point in different directions” (p. 279), why should we not respect the most important of them? In other words, why does the right to respect as a person have a disjunctive, rather than a conjunctive, structure? The latter would fit better with other types of case in which we acknowledge potentially conflicting values, but it would not permit the derivation outlined previously. Berman does not tell us. To be fair to him, he acknowledges that his defense of the suggested right is incomplete, and that such a defense would “require its own article.” He hints, though, that it would proceed “mostly by accounting for other case-specific intuitions” (p. 278). As I have just intimated, I would insist that a theoretical argument is also urgently needed. Until such an argument is provided, I will have to set Berman’s proposal aside. It should be noted, however, that views that to some greater or lesser extent resemble Berman’s, but dispense with the peculiar disjunctive character of rights that he advocates, are possible. The simplest, of course, is the notion that what persons have a right to is to be treated as they deserve. This right is like one of Berman’s “right-disjuncts,” but it is not itself disjunctive. Such a right could presumably belong to a person simply in virtue of his agency. It would also qualify as an instance of the

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“derived-right” strategy, for the right to any particular treatment would be derived from the basic right to get what one deserves in conjunction with facts about desert. The problem with it, of course, is that no one thinks that a person has a right, literally speaking, to whatever he deserves. Included here is the problem of the Hegelian right to punishment, the one Berman was anxious to get away from. But there are many other things which persons relatively uncontroversially deserve which seem obviously not a matter of right: success for the hard-working, for instance. It may certainly be possible to qualify the supposed right to what one deserves so as to rid oneself of the most troublesome instances. I leave that challenge to those who are inclined to take it up. A related proposal has it that agents have a basic right to be treated no worse than they themselves treat others. Now, worded that way it is certainly much too broad. There is a natural way of narrowing it down, however. It could be understood as a right not to have rights infringed that one has not infringed in others. Note that this proposal posits a kind of “second-order” right. But that by itself should make us suspicious, for generally such rights are pointless. Compare a right not to have any of one’s (first-order) rights infringed. Such a second-order right adds nothing of moral significance. And indeed, the suggestion amounts simply to a wordy reformulation of the conditional-rights thesis. The reference to the “second-order right” is merely a terminological detour. A moral to draw from this observation, I believe, is that for the derived-right strategy to work, and be distinctive, the derivation has to start from a first-order right. Many writers have attempted to defend right loss (or forfeiture) by appealing to fairness. While such appeals typically do not seem to have anything to do with the agency view, it is perhaps possible to understand them as variants of the derived-rights strategy. (This is certainly not to say that their advocates had anything like that in mind, though.) I wish now to explore that possibility, using a representative “fairness” account as my point of departure. As we will soon see, understood as an appeal to derived rights it can only account for right loss at the cost of radical implausibility. Simmons suggests, on Locke’s behalf, the following justification of forfeiture (1991, p. 335): “any reasonable or fair system of protective, right-defining rules . . . must specify that one’s status under the rules depends on respecting them.” He clarifies what kind of “fairness” he has in mind by adding: “to extend [protective] privileges to those who break the rules would seem to involve serious and straightforward unfairness to those who limit their own liberty by obeying the rules” (ibid.; original emphasis).14 A somewhat different argument has been suggested by Hanna (2012)—specifically as an improvement on Simmons’ proposal.15 In this view, a fair system of rules must allow enforcement, in the form of self-defense and if necessary punishment, or it will be unfair to victims

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of right violations. Under a system of rules that does not allow enforcement, Hanna writes: “the unscrupulous could easily take advantage of those who refuse to break the rules” (2012, p. 613). This proposal differs from Simmons’, I take it, because it does not focus on the (supposed) disadvantage the law-abiding actually suffer, relative to offenders, from not breaking the law, but rather on the disadvantage they would suffer, in a hypothetical no-rights-loss system, from not being able to defend themselves without breaking the law. It might be questioned whether this “fairness approach” to right loss is really compatible with the agency view, or indeed even with the value view. Though Simmons’ and Hanna’s appeal to fairness is arguably neither contractarian nor consequentialist, it is “indirect,” in a way that might seem hard to reconcile with the value view. For it draws conclusions about (natural) rights on the basis of facts, albeit moral ones, about conventional rights. After all, the recurring phrase “a system of rules” is most naturally understood as referring precisely to such rights. By contrast, the value view tells us simply that persons have rights in virtue of their value-making features. No reference to “systems of rules” is necessary. As I suggested though, it is possible to interpret the fairness approach as a form of derived-rights strategy, compatible with the agency view. Let me now show how. We may begin by noting that talk of fairness can be understood in two different ways. In the first place it could be a purely impersonal feature of a situation or state of affairs. This is the sense of the term ‘fair’ some people use when they say that it is “unfair” that one person is worse off than another through no fault of his. On another interpretation—which would seem to be the one Simmons and Hanna have in mind—an action or policy (if not a state of affairs) could be unfair to someone, who then has a “legitimate complaint” of unfairness at the agent. In particular, Simmons holds that a policy of not punishing wrongdoers, and indeed of treating them as not having forfeited their rights, is unfair to nonwrongdoers, because they have “limited their liberty” and presumably thus incurred a cost not shared by wrongdoers. And on Hanna’s proposal, the non-punishment policy wrongs crime victims, because it denies them the recourse of legal enforcement. We may or may not find Simmons’ and Hanna’s unfairness theses compelling (I do not), but our concern now is another. Granting some such thesis, we ask: why does the unfairness to certain other people, or the impersonal unfairness, involved in treating the offender as if he still retains his right lead to his loss of the right? Why not say instead that we have here a case of conflict between a right and fairness? On the agency view, it is hard to see how the unfairness of the action or policy of treating a person as having a right could determine whether he has that right or not. According to that view, he has the right because he is an agent, period. Even if treating him as if he has that right is unfair (either impersonally

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or to others), that does not alter the fact that he is an agent and therefore has the right. We seem to be no nearer a solution to our difficulty. There is a way of getting around it, however. We should observe, first, that the notion of an action’s being “unfair to” a person could itself be understood in terms of the notion of a right. That is, such an unfair action infringes a right belonging to that person. This claim is scope ambiguous, though. It could mean either: (U1) There is a right such that unfairness always consists in infringement of it, or: (U2) Unfairness always consists in the infringement of some right or other. The weaker (U2) is of no help at present, so we can set it aside. However, (U1) is a step on the way to reconciling the fairness approach with the agency view. It will be helpful if we take (U1) to imply a further thesis, namely that there is a right not to be treated unfairly (and that it is the right infringed by any unfair act). Call this the right to fairness. Now, what we need to effect the reconciliation is to strengthen (U1) considerably, to say that the right to fairness is the only fundamental right, and that we have it because of agency. That thesis, which we can call “fairness monism” is compatible with the agency view.16 Further, it allows us to say that fair punishment does not infringe the offender’s right. In this view, his right not to be punished is derived from his right not to be unfairly treated, and if his punishment is not unfair to him he has no right not to suffer it, for he has no other rights. Of course, Simmons and Hanna have not shown that punishment is not unfair to the offender, but that is a reasonable enough inference from their claim that non-punishment is unfair to non-offenders. For it seems that with fairness there can be no dilemmas: it cannot be that whatever we do, we will be unfair to someone. At any rate I am happy to grant that much here. Fairness monism, then, is an instance of the derived-rights strategy. Unfortunately it has very little to recommend it. In particular, though it may be unclear exactly which notion of fairness is in play here, it must be comparative. When the law-abiding complain of unfairness they must somehow be referring to the way the state has chosen to treat offenders, as compared to themselves. But rights are usually thought to be noncomparative. That is to say, whether they are infringed or not does not depend on how their bearer is treated compared to others. That is certainly true of the ones canvassed in Chapter 6, and in the literature on human rights. That is not to say that no rights are comparative, but surely many are not. For instance, no matter how we understand the right to life,

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it is not comparative. If I put a bullet through your brain, the main reason why my action wrongs you is surely not that I am being unfair to you, if the latter notion is understood comparatively. That is, it is not that I treat you differently from all the other people I do not choose to kill. Rather, the main reason is that I violate your right to life, quite regardless of my treatment of others. I would have done that just the same if I had taken myself and everyone else with me as well in a murder spree of apocalyptic dimensions. Yet once we concede that there are non-comparative rights, which cannot be derived from the purported right to fairness, we remain stuck with the problem of explaining what happens to these rights when their holders themselves violate other people’s rights. The appeal to fairness, then, does not help.17 I concede that, fairness monism aside, it might still strike some as plausible that one cannot have a right to something if it would be unfair to give it to one. This view in effect challenges my more or less tacit assumption that there are conflicts between rights and fairness. But cases like the one I have just described do seem instances of just such a conflict. If I kill you, fairness dictates that I also kill everyone else, so that you are not treated invidiously. But they have a right to life that would conflict with, and indeed override, the claims of fairness. This description of the situation could make sense even if we do not recognize any “right to fairness.” To resolve this apparent conflict, I suggest that there is an ambiguity between two interpretations of ‘unfair.’ It could be understood either as a pro tanto moral notion or as conclusive. The plausibility of the idea that there are no conflicts between rights and fairness depends on using the notion of fairness in the stronger sense. But that sense is question-begging in the present context.18 That concludes my survey of strategies for reconciling the agency view with right loss. In the concluding part I will consider the possibility of reconciling right loss with the value view, if we abandon the agency view in favor of an alternative approach according to which rights are grounded in actions rather than agency. I will argue that such an approach will allow us to retain many of the attractive features of the agency view, such as its account of relationality. However, the reconciliation with the value view does imply that a loss of rights also involves a loss of value.

Notes 1. Philosophers often say instead that persons can forfeit their rights. I will avoid this term, in favor of the more neutral ‘loss,’ because it has a tendency to create the impression of having itself explained the phenomenon of right loss. That is not so. Instead it stands in for some other phenomenon that is genuinely explanatory (cf. Renzo 2017). 2. It has received some, though. See, not least, Knowles (1999) and Rodin (2014). 3. See, e.g., Vlastos (1962), Bedau (1968), Melden (1977, pp. 167f), Griffin (2008, p. 64), Boonin (2008, p. 106).

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4. I know of no consequentialist treatment of right loss, and in the end it is of course an empirical issue whether treating people’s (legal/conventional) rights as losable is optimific. By contrast, many defenses of right loss appeal to contractarianism. The general idea is that rational contractors would not be willing to accept unconditional restrictions on their freedom to harm others, restrictions that apply even if these others do not themselves respect the restrictions. See Goldman (1979), Morris (1991) and Knowles (1999). Rachels and Rachels, in their widely used textbook, treat contractarianism’s ability to account for offender’s forfeiture, and thus for the permissibility of punishment, as one of its main advantages (2010, p. 88). 5. Rodin (2014) charges that it cannot. This is because it says that possession of an interest is sufficient for possession of a right. After all, those who lose rights, aggressors and wrongdoers, typically do not lose the interests that supposedly ground their rights. Fabre (2014, p. 394), in defending the benefit theory generally against Rodin’s charge, writes: “Proponents of [the benefit theory] need not wed themselves to the sufficiency claim as made by Raz. All they need say . . . is that rights protect interests and that justifications for rights and arguments in favor of possession conditions [for rights] must appeal to interests.” I will not address the adequacy of this response. 6. On a third view, wrongdoers and aggressors retain even their rights not to suffer the particular treatment in the particular situation, but these rights are permissibly overridden. This view is incompatible with the agency view. I also find it implausible for independent reasons, but will not pause to discuss these. 7. To clarify, I will consider views of rights that can be interpreted along the lines described in the text. They have indeed not been put forth thus interpreted. 8. In part for reasons of space I set aside a third type of view, according to which criminal offenders, at any rate, lack a right not to suffer harm (in the form of punishment) because they have in effect consented to that harm (or rather, to being liable to the harm). This view is defended by Nino (1983, 1991). I have addressed in Alm (forthcoming-b). I should also mention that two of the leading proponents of the status view (see 3.2 and 8.2) have made intriguing, but also frustratingly underdeveloped, remarks about right loss which I also cannot discuss here. See Quinn (1985, p. 346) and Kamm (2007, p. 238), respectively. I will return briefly to Quinn’s discussion in 11.3. 9. It is common enough in the literature to more or less equate a person’s losing (or forfeiting) rights with these rights being conditional (e.g., Quinn (1985, p. 332)). Alternatively, people sometimes say that talk of “forfeiture” is equivalent with talk of specification of rights (e.g., Uniacke 1994, p. 195; Rodin 2002, p. 74, 2014, p. 288n14)—but contrast Thomson (1976). I find this choice of terminology misleading, though, for the conditional-rights thesis should not be confused with specificationism about rights, discussed in 7.3— but contrast Kershnar (2002, pp. 61–3). Briefly put, these doctrines differ in that specificationists are moved by the thought that rights are conclusive, while the conditional-rights approach is motivated by the thought that rights are inalienable. 10. For the distinction between enabling conditions and value-making properties, see Dancy (2004, pp. 39–41)—though he prefers the term ‘favorer’ for the latter category. 11. Actually, Berman says that if we refrain from punishing we respect the person “as a sentient being,” by not causing him pain (2008, p. 279). But sentience is not unique to persons, so it is not clear how merely not causing someone pain could count as respecting him as a person. We might add that Berman seems inclined to deny that mere sentience is sufficient for rights (p. 280n48).

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12. I ignore an additional element of Berman’s view, namely that whether an act counts as respecting a person depends on its motive (p. 279). On his view, I take it, if we punish an offender out of a desire to give him what he deserves, then we respect him as a person—but not if we treat him the same way simply out of a wish to deter others. I ignore this element because I am unsure about how to interpret it but also because it seems inessential to the basic strategy I have described (even though it may be essential to a fully satisfactory approach to the morality of punishment). 13. The suggested interpretation makes no attempt to account for Berman’s claim that the derived right he has in mind has a “merely conventional and probabilistic” relation to the basic right from which it is derived. (p. 278). I do not know what he means by this. 14. This formulation calls to mind the position sometimes called “fairness retributivism,” originally propounded by Herbert Morris (1968), though its defenders typically do not talk about forfeiture. We may note that Boonin, in his comprehensive survey of punishment theories, treats Simmons’ proposal as a variant of fairness retributivism (2008, p. 106n25). We can set the merits of that position aside, as we are only concerned with the limited issue of right loss. I refer interested readers to Boonin’s critique, with many references (ibid., pp. 119–43). 15. It is not clear to what extent Hanna endorses his own proposal. His main point is that even if it is correct, it cannot justify state punishment (though punishment in the state of nature is a different matter). 16. To be sure, it is not compatible with the version of that view I have been defending. But the latter can fairly be considered one of several possible conceptions of the agency view. The heart of that view, as stated in the introduction to this part, is precisely that “the value that constitutes persons’ rights belongs to them because of their agency.” 17. I pass over a further question, that of whether the value view is compatible with comparative rights at all. For a discussion of this issue (though not in quite these terms), and a negative answer, see Alm (2010). 18. Another view, somewhat similar to Simmons’, but applied primarily to selfdefense rather than punishment, is defended by Ferzan (2016). However, I am not sure I fully grasp it, and so it is hard to assess. Nor is it clear that it can be rendered compatible with the agency view. On one reading it could possibly be assimilated to the model described in the text. Thus understood, it says that it is unfair to victims not to allow them to defend themselves against aggressors (see especially p. 242), and this fact is meant to explain why aggressors lack the right not to suffer (necessary and proportionate) defensive harm. As Ferzan herself seems to acknowledge (p. 241), it is not clear that this idea is genuinely explanatory, but in any case I will have to forgo further discussion.

Part III

Exercise-Based Rights

In Part II, I outlined the agency view of rights and noted some of its moral implications. In its concluding chapter I described what strikes me as a serious objection to this view, otherwise attractive though it may be. The worry, I said, is that the agency view cannot explain how persons can lose rights on account of actual or threatened wrongdoing, and hence that we are permitted to harm them in punishment and self-defense in ways that would normally count as right infringements. I then argued against attempts to reconcile right loss with the agency view, though I observed that such reconciliation is possible if the agency view is understood in a weaker sense, as stating only that agency is the sole “maker” of rights, and thus of the value constituted by rights, thus leaving open the possibility that right violations serve as disabling conditions for this value. (I also noted, though, that philosophers who have embraced the general idea that persons have rights in virtue of agency—if not, strictly speaking, what I have called the “agency view”—have typically not understood this idea in the weaker sense, but rather in the stronger sense, according to which agency is a sufficient condition for rights.) In this part I will investigate ways of accommodating right loss that reject the agency view, but which still remain committed to the value view, which I do not wish to give up. The most interesting of these alternative possibilities is one I will call “exercise-based rights.” There are two chapters in this part. The first is devoted to making this view of rights clearer, the second to addressing a number of objections to it. There I show that the idea of exercise-based rights is not as implausible, or at least that many of the objections against it are not as persuasive, as one might initially think. Yet there are also objections to the proposed view, at least if it is given a strong interpretation, that seem less tractable. In particular, it seems that some rights could not be lost, and that it is hard to account for this fact within exercise-based rights—though in the end it is hard to say with any confidence which rights can and cannot be lost. This worry forces us to look for ways of qualifying the original idea, leading us in the direction of some sort of compromise with the agency view. I end the book by briefly outlining such a compromise position (or, alternatively, a moderate version of exercise-based rights).

10 Exercise-Based Rights—the Very Idea

As foreshadowed in 9.2, there are two versions of the thesis I have called “exercise-based rights” (or EBR for short), one radical and one moderate. Using a deliberately imprecise formulation, I will state the radical version as follows: EBR. Each right of a person is a value belonging to him because, and only because, of his right-violating and right-respecting actions. Here, ‘because of’ has the stronger interpretation distinguished in 9.2, the one which implies sufficiency. Hence, EBR, in its radical version implies that a person’s actions are the only features of his even relevant to his rights, and so to the value constituted by these rights. Such rights we may call “exercise based.” In this view, the content, and perhaps also the strength, of persons’ exercise-based rights will vary depending on how they have conducted their lives, and in particular on the extent to which they have respected or violated other people’s rights. In the moderate version, EBR says rather that a person’s rights belong to him in virtue of both his agency and his right-violating and right-respecting actions. Again ‘in virtue of’ is used in the stronger sense distinguished in 9.2. That is, moderate EBR says that a person’s agency and certain of his actions are both value makers (as opposed to enabling or disabling conditions)—though it also denies that there are any other relevant features. I noted this view in 9.2, pointing that it in embracing it, we have abandoned the heart of the agency view. It is natural to begin our investigation of exercise-based rights by considering its radical version, turning to compromise positions only if forced to do so by the need to accommodate deeply held convictions. To assess its prospects, we have first to develop it in more detail. Our first challenge, then is to provide such a developed account, one that will not seem simply arbitrary. In this chapter I will address a number of such questions of interpretation in light of, and as responses to, various objections to the vague idea stated previously.

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A Comparison with Conditional Rights

Before resuming our exploration of EBR, though, we need to say something quite briefly about how EBR differs from the conditional-rights thesis discussed in 9.2. Offhand, the answer is perhaps not obvious. After all, it is true on both accounts that a person’s rights, or at least claims, depend on his past actions. Still, we are here dealing with two kinds of dependence. I appeal again to the distinction between value-making properties and disabling (or enabling) conditions. In these terms, the two accounts differ in the following way. According to the conditional-rights thesis, the value-making property, in virtue of which persons have rights, is their being agents.1 Right violations serve as disabling conditions only. According to EBR, by contrast, exercises of agency are value-making (and so right-grounding) properties, and we dispense with enabling/disabling conditions. I stress that this difference between the two accounts is not merely theoretical. It also matters to their implications for what it takes to have rights, and therefore indirectly to the question of who has rights. On the conditional-rights thesis, a person has rights simply in virtue of his agency—though he loses them if he violates other people’s rights. On (radical) EBR, by contrast, rights are grounded on respecting rights. Further, for there to be a genuine difference here, this “respecting” cannot simply consist in not violating rights. If it did, we would just get the conditionalrights thesis under a slightly different description. No, it has to consist in choosing to respect rights in situations where one has the option not to do so. Only such actions are value-making. I will return in 11.1 to the implications of this difference between the two positions. In light of what I just said I should add that it would of course be possible to reformulate the conditional-rights thesis to say that respecting rights is an enabling condition, rather than that violating them is a disabling one. That version of the conditional-rights thesis presumably would be extensionally equivalent with (one version of) EBR. I prefer to formulate the conditional-rights thesis in the way I did previously, and in 9.2, because it seems more likely to appeal to those who would actually be inclined to defend the conditional-rights thesis, simply because it is not extensionally equivalent with EBR. The reformulation is interesting because it shows us that what matters is not really whether rights are “conditional,” but rather simply what they are grounded in.

2.

The Reciprocity Interpretation vs. the OverallViolation Interpretation

When we look around for ways of making EBR more precise, it is natural to begin with the idea that a person has precisely those rights he himself respects in others. I will call this the reciprocity interpretation of EBR. It

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is natural as it resembles the view of right loss (or forfeiture) defended by many writers on punishment, according to which offenders lose just those rights that they themselves violate. (This kind of view is less plausible when applied to self-defense, as one is seemingly permitted to cause significantly more harm in self-protection, at least against a culpable aggressor, than one would otherwise suffer oneself.) It retains the neat element of proportionality characteristic of that view (and of lex talionis-style retributivism). In this section I wish to argue that this interpretation is overly strict and that a looser form of it, which still retains the central idea of proportionality, is preferable.2 (This is not to say that still other interpretations are possible.) First, though, we need to make a pair of preliminary points. In the first place, an “interpretation of EBR” in the sense intended here must, at a minimum, tell us the following, with respect to a given right R: (a) what grounds R; (b) what it takes to acquire R—given that we do not have it automatically simply in virtue of being agents; (c) what it takes to lose R once one has acquired it. This last component should, ideally, tell us both which actions bring about the loss of a given right (or set of rights) and which right (or set of rights) is lost given a certain action (or set of actions). These three elements are, of course, not independent. In particular, a full specification of (a) will imply (b) and (c), and presumably vice versa. There is therefore all the more reason to stress the following caveat. In stating these competing interpretations of EBR, I will for the moment set aside component (b), right acquisition. The reason is that this component raises difficult issues that must be dealt with first, and I will therefore return to complete my accounts of the interpretations only much later (in 11.4). As a consequence, the different accounts of component (a), the ground of rights, offered in the following will initially have to remain incomplete. In particular, while I will pronounce on which actions are relevant for the possession of a given right, I will not discuss the further question of the extent to which one has to perform such actions to acquire the right in question. Because of this incomplete treatment it will, strictly speaking, not be possible to offer a complete assessment of the interpretations until we have the full picture. However, I also believe that the factors most relevant to choosing between them are those to be discussed in the present section, and hence that the tentative choice I make between them here will withstand further scrutiny—as I hope will become clear. Second, I now need to make use of the notion of the strength of a right, as I noted in Chapter 7. The reason, as I pointed out there and as the reciprocity interpretation indicates, is that there should be some sort of proportionality between the rights a person violates and the rights he loses and that this proportionality must be understood in terms of some notion of right strength—though its exact nature is likely to remain unclear. To this end, then, I will avail myself of the account of right strength offered in 7.4, though in practice I will not concern myself with its details. However,

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as will become clear soon enough, I do not merely use the notion of right strength, but also the notion of aggregate right strength. In light of the doubts about aggregation of rights voiced in 8.3, this may be surprising, but I will try to show that we should take such talk in our stride. We can now state the reciprocity interpretation, in its strictest form, more precisely. In terms of component (a), it holds that each right is grounded exclusively on the agent’s actions, up to the present moment, with respect to violating and respecting that same right in others. It implies that a given right (once acquired somehow) is lost if and only if the agent violates that same right in someone else (i.e., a right with the same content)—corresponding to component (c). Further, to be at all plausible the reciprocity interpretation must imply that if a person violates another’s right on one occasion, then his right loss amounts to this: another can treat him in the relevant way on one occasion without infringing his right. Clearly, that much is part of any plausible idea of proportionality. As a consequence, we deny that the violator’s right loss is permanent—though as we will see, when I attempt to justify the present understanding of proportionality in 11.4, this denial is rather misleading. Any interpretation of EBR, including the reciprocity interpretation, will be more plausible if the rights over which it quantifies are basic. I will therefore understand it, and the other interpretation to be discussed presently, in that narrow way. Thus understood, the reciprocity interpretation implies that whether a person respects or violates one basic right is irrelevant to whether he has, or loses, any other basic right. But it does not imply that whether a person respects or violates a given derived right is irrelevant to whether he has, or loses, another derived right, as long as these two rights are derived from the same basic right. If we did not thus restrict the interpretation’s scope, some rather artificial-sounding consequences would follow. For instance, we would have to concede that whether I respect or violate other people’s rights not to have their thumbs chopped off is relevant to whether I myself have the same right, but not to whether I have the right not to have my index fingers chopped off. It seems odd that the ground of our rights should be quite so “fine-grained.” (I assume here that these rights are derived from a more general right not to have body parts removed.) I will contrast this reciprocity interpretation with a looser one, which I will call the overall-violation interpretation of EBR.3 Simply put, and as far as component (a) goes, it holds that the agent’s rights are collectively grounded in the totality of his right-respecting and right-violating actions up to the present moment. In corresponding fashion, we find on turning to component (c) that it is looser than the reciprocity interpretation in two ways. In the first place, and relatively straightforwardly, a given right loss need not be the result of the violation of that same right; it could instead result from the violation of any right that is at least as strong as the right lost, or indeed from the violation of a set of rights such that their

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aggregate strength (see the following discussion) does not exceed that of the right lost. In the second place, and this notion is more difficult, the violation of a given right permits others to subject the violator to some treatment (or set of treatments) such that the reason for not subjecting him to that treatment is no stronger than his reason for not committing the violation in the first place. We need to be clear about what this last clause means, and in particular about its implications for right loss.4 In the first place, the overallviolation interpretation could not be taken to single out one unique right, or set of rights, lost for each right violated. If it did, its view of right loss would not be appreciably looser than the reciprocity interpretation’s after all. On the other hand, nor could it plausibly be understood as implying that the agent has lost every set of rights whose aggregate strength does not exceed that of the right he violated. Plainly the aggregate strength of the rights forming the union of these sets would exceed the strength of the right violated, and so that loss would be excessive. The way to go here, I surmise, is to say that a given set of violations makes one lose, not a set of rights, but rather a special kind of right not to suffer right-infringing treatments (or, rather, treatments that would otherwise have been right-infringing) up to a certain aggregate level of seriousness, determined by the aggregate strength of the rights violated. This idea answers to the one expressed two paragraphs back, that others are free to subject the violator to any set of treatments meeting that criterion. It turns out, then, that a given violation does lead to the loss of a unique right, after all, but this right has a peculiar “generic” or “composite” quality (neither term is ideal), corresponding in a way to a large number of regular “specified” rights. We should also note here that the formulation just offered, in putting a ceiling on the aggregate level of seriousness of the (normally) right-infringing treatments to which others are free to subject the violator, incorporates something analogous to the constraint I imposed on the reciprocity interpretation, i.e., that the loss of a given right means that another may subject one to the corresponding treatment on one occasion without infringing any of one’s rights.5 I wish now to compare the reciprocity and overall-violation interpretations. The most striking feature of the latter is no doubt its appeal to the unfamiliar idea of a “generic” right, as opposed to the “regular” (or “specified”) right with which the reciprocity interpretation contents itself. Hence we should begin there. As will become clear shortly, the idea that wrongdoers lose “generic” rights is superior to the reciprocity interpretation on the practical level, but it may seem awkward theoretically. Yet it does seem to fit EBR well enough. According to that view, remember, a person’s rights, and so the value constituted by these rights, belong to him in virtue of his right-respecting and right-violating behavior. A violation leads to a reduction of these rights, and this value—and I will have more to say about these matters in 11.4 and 11.5. But the reduction need not

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be tied to any specific right. It may simply be a reduction in the person’s overall authority (and so value) that is best understood in terms of the loss of a generic right in the way described. That is not say, I should note, that an alternative understanding of right loss along the lines of the reciprocity interpretation is incompatible with EBR. On the contrary, both interpretations make sense theoretically. In any case, whatever our view of the reciprocity interpretation at the theoretical level, it is quite awkward at the practical level. This fact becomes especially apparent in light of our practice of using imprisonment as a punishment for a wide variety of infractions (that are not themselves necessarily like imprisonment). Also, offenders are usually taken to have lost many rights weaker than the one they violated, and it may well be considered perfectly appropriate to punish a person for some infraction by subjecting him to a number of different types of treatment that would otherwise have been right violations, such that together they “add up to” the severity of the original infraction.6 There is a possible reply to the point I just made (about loss of weaker rights). For it could be argued that, strictly speaking, the offender has only lost the right he himself violated, but for practical purposes we assume that he would consent to some less severe (or perhaps even equally severe) punishment, were it offered, and that this fact is what explains why the lesser punishment does not wrong him. Further, in those rare cases in which an offender does not consent, but instead insists on the punishment to which he has now lost his moral immunity, perhaps an ideal justice system would give him that punishment. A perfect system would not appeal to hypothetical consent, but in the real world that may be necessary. The problem with this response is that it does simply not seem that punishment (let alone self-defense) is subject to any such consent demand. There is no moral cost at all involved in ignoring the wrongdoer’s refusal to consent to a less severe punishment or treatment, or even an equally severe one. And there is in any case a question about the significance of merely hypothetical consent. It seems likely that we are impressed by an appeal to it, if we are, only because we are already convinced that the treatment in question infringes no right. What is more, our practices also deviate from the reciprocity view in a way that could in any case not be handled by an appeal to consent, hypothetical or otherwise. For it may also be considered appropriate to punish someone guilty of a number of lesser violations with a treatment that would otherwise have been the violation of a right stronger than any of the ones he violated, suggesting that the minor infractions together “add up to” a greater one. This possibility is, however, compatible with the overall-violation interpretation. I might add one point, before leaving the reciprocity interpretation aside. This is that its appeal could be due to confusing EBR with a view that makes more sense when applied to desert. Even if the reciprocity

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interpretation must in the end be abandoned, and we can explain somehow or other why we do not (necessarily) wrong a wrongdoer by punishing him in some way different from the way he himself treated his victim, it could remain true that it is most fitting to treat him the very same way. However, in talking about desert it is natural to say that the deserved response is fitting as a response to the value of an action, rather than the value of the agent himself. We are not, it seems, concerned with the agent’s value. Whatever we think of that view of desert, though, EBR is explicitly concerned with the person’s value, not the value of his actions, and so no corresponding move is available to any interpretation of that thesis. I must now address a question that concerns both interpretations equally, namely the problem of the aggregative effect of many right violations on the right holder’s rights, and thus value. For offhand it seems that a person who violates a given right in several other people has lost a stronger right than someone who has just violated one such right. This observation raises a couple of worries. In the first place, and as mentioned earlier, it could be argued that this “violation aggregation” is problematic because it presupposes interpersonal aggregation of rights. I noted in 8.3 that such aggregation is incompatible with the agency view, and I will argue later (in 11.1) that the same goes for EBR. The reasoning here might go something like this. On any version of EBR, the effect of a given violation on the agent’s value will be proportional to the severity of the violation, and hence to the strength of the reason the agent had for not committing that violation. Hence, a greater aggregate effect on the agent’s value, due to several violations, requires a greater aggregate reason not to commit these violations. But what we are now not permitting ourselves to grant is precisely that such reasons aggregate when they pertain to different persons. That is, we are not permitted to suppose that an agent’s reason to respect one person’s right aggregates with his reason to respect another person’s right. As a consequence, we are not entitled to accept the aggregation of violations of different persons’ rights. However, this argument is doubly mistaken. In the first place, and as I made clear in Chapters 7 and 8, though I do renounce the aggregation of rights, I have no problem with aggregating first-order reasons for action, as the objection seems to presuppose. By the same token, in 7.1 I distinguished between two roles that the notion of right strength could have: in deliberation, when we try to determine whether a given obligation is overridden by competing considerations; and when we are concerned with issues of proportionality. I also noted that the agency view allows for the second type of right strength but not the first. As I will argue in 11.1, the same holds of EBR. The objection overlooks this distinction. In the second place, even if we grant a rejection of right aggregation so strong that it even excludes aggregating the first-order reason components of the corresponding obligations, the objector’s conclusion still would not follow. For the relevant question concerns the effect of violations

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on the agent’s value. Hence we are concerned solely with whether these effects aggregate. It is quite generally a mistake to suppose that simply because some evaluative quantity can aggregate it must also be the case that the grounding properties of these quantities aggregate. For an analogy, consider this case: two artworks can have value in virtue of their beauty, but while I am willing to grant that it makes sense to talk of their aggregate beauty-generated value, the notion of “aggregate beauty” is surely nonsensical. By the same token, from the fact that two violations have an aggregate effect on a person’s value corresponding to the strength of his first-order reasons for not committing these respective violations, it does not follow that the latter themselves aggregate in the sense that the reasons against committing them aggregate. Hence, the argument just described rests on a faulty premise. The second worry is that of which types of violation aggregation are possible (or admissible). This question becomes especially pressing in those cases in which the agent violates the rights of several people (rather than several rights of one and the same person). It seems clear enough that some form of aggregation of such violations is called for. For instance, it seems plausible enough that a person who has broken many arms may properly be given a harsher punishment than someone who has broken only one, which certainly suggests some measure of violation aggregation. On the other hand, it is also true that there would have to be a sharp limit on aggregation of violations. No matter how many arms I break, say, I cannot thereby lose my right to life—or even, if presumably more contentiously, my right not to suffer lifetime imprisonment. Something similar may be true also about defensive harming. That is, it may be suggested that an aggressor who threatens relatively slight harm to many people may be subjected to greater preventive harm than one who threatens the same harm to only one person; yet no matter how many his potential victims are they may not kill him, or even act in a way that will prevent his harming them but also lead to his being locked up in a cell for life. In accounting for these facts about right loss, it is tempting to exploit the analogy with interpersonal aggregation in other contexts, as when we make decisions about whom to save, and in particular the apparent fact that such aggregation is not simply additive. For instance, it might seem that we should prefer to save one (innocent) person from having to spend the remainder of his life locked up in a cell rather than any number of (equally innocent) people from suffering a broken arm. Perhaps, then, similar considerations apply in the case of right loss. Though intriguing, this proposal raises questions that I could not answer here, and I will have to leave further inquiry aside. I need to address one final issue before proceeding. Back in 7.5 I noted that though I could not offer an account of the strength of positive rights versus negative ones, some such account is still needed, and that I would explain why in this section. The reason is simply that, insofar as we accept

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positive rights at all, they can also be lost. Hence, if we are to extend the overall-violation view to positive rights, we need to know something about their strength, so that we can tell which effects their violations have on a person’s losing (and, as I noted, having) rights. Even setting aside the details of that account of strength, though, questions remain, of which I will mention one here. Does the overall-violation interpretation imply that violations of positive rights can lead to the loss of negative rights (and vice versa)? Offhand I see no insurmountable obstacle to such a way of reading that interpretation, and indeed it is perhaps more in line with the spirit behind it than is the more restricted version according to which only violations (and respectings) of negative rights are relevant to losing (and possessing) negative rights, and analogously with positive ones. Also, the notion of such “cross-category” right loss is not implausible as such. For instance, the notion that one could properly be punished for failing to help others in need has some plausibility—and it seems excessively fussy to insist that the punishment be limited to denials of assistance to which one would otherwise have been entitled, though I will take no definite stand on the issue. I would say the same of cases in which a person can only make another respect a positive right by threatening some harm. These are cases of enforcement: remember, if positive rights are indeed genuine rights—and, again, I do not say that they are—they should be enforceable, at least to some extent. There is also a “pragmatic” fact here worth mentioning, though its moral signifi cance could of course be disputed. This is that it is hard to enforce rights in any meaningful way without acting in ways that would normally count as violations of negative rights. When in need of assistance, it is certainly possible, and no doubt legitimate, to threaten a shirker with refusing to reciprocate should he be the one in need, but such a threat will often not be effective (most obviously if one would die if not aided). Some additional threat of causing harm may well be needed in such a case to motivate the other.

3.

Victim Relativity

Another question about right loss is that of whether it is victim relative. Suppose I have violated your right not to suffer x. On some views that means that I have now lost my right specifically against you that I not suffer x, but not against anyone else; and the reason for this discrimination is that it was your right I violated, not anyone else’s. This notion of victim relativity, I believe, gains whatever plausibility it has from being confused with another thesis, namely that the victim of a right violation (in the state of nature, anyway) has an exclusive right to punish the wrongdoer.7 The latter entails that others must not interfere with, or preempt, the victim’s retaliation. But even if it is true that the victim can complain if a third party preempts his own retaliation

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by “beating him to it,” it does not follow that the third party thereby infringes the wrongdoer’s right. The right to punishment concerns the moral relationship between the victim and third parties, while victim relativity concerns the relationship between the wrongdoer and third parties.8 Similar conclusions apply with equal or even greater force to self-defense. Further, there is good reason for thinking that EBR is in any case incompatible with victim relativity, at least given the overall-violation interpretation of the former. After all, thus understood EBR says that the content of a person’s rights at any given time is determined by the sum total of his right violating and respecting actions up to that point. That formulation does not leave any obvious room for victim relativity: at most, it might be argued, we could say that the person has lost his right to the collective of people whose rights he has violated (but not others). But we can go further, for victim relativity seems incompatible even with the value view, of which EBR is a version. As I have indicated previously (Chapter 9), and will return to (11.5), EBR entails that the loss of a right is also the loss of (some of) one’s value. But on such a picture, victim relativity makes no sense. After all, value is not relative to persons in the way that victim relativity would need. If a person loses (some of) his value, he will not do so “relative to” a person. Such a loss must correspond to a change in everyone’s reasons for treating that person in certain ways. In defense of the idea of victim relativity, we might adduce the following. What I have said thus far may make some sense as long as its application is restricted to the state of nature. In civil society, by contrast, while it may be going too far to contend that wrongdoers have a right to state punishment, at least they have a right not to be “punished” by just anyone. Whatever is true in the state of nature, wrongdoing in society does not turn one into some sort of outlaw.9 (Plainly, no similar strictures apply to self-defense.) This objection, then, is about the wrongdoer’s rights rather than the victim’s. Admittedly it does not show, by itself, that right loss is victim relative, and it is far from clear how the argument to victim relativity would go. Leaving that question to its defenders, I choose instead to address directly the question of whether the state’s monopoly on punishment can be reconciled with the idea that offenders lose their rights equally to everybody. In answering that question, we should begin by making the point, familiar from Locke and the social-contract tradition more generally, that the reason why the state is incompatible with outlawry is that persons have freely renounced their liberty (if not their right) to punish wrongdoers. While the notion that persons in a contemporary state have in fact performed any such renunciation is certainly far from obvious, it remains true that those who, like me, find the “anti-outlawry” intuition very much weaker when applied to the state of nature than to civil society must find

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some explanation of this difference, and the appeal to a renunciation is the obvious choice. Second, we need to draw a distinction, which will prove useful also in the sequel, between two questions. Consider a wrongdoer subjected, by a non-state agent, to some form of hard treatment, that would normally count as a right violation. We might then ask both: (a) Does the non-state agent’s action violate the wrongdoer’s right? (b) Is the treatment morally justified overall? This distinction is important because our tendency to answer the second question in the negative may lead us, precipitately, to answer the first in the affirmative. To make matters worse, we might be interested in asking yet a third question: (c) Is the general practice of such treatment morally justified overall? A negative answer to that question might also affect our answer to the first—though, if it does, that is a sign that our notion of a “right” is not the one I have been using in this book. In particular, in the present case we may note that the answer to question (c) is clearly no. That is to say, it is not hard to find good reasons why a society should not tolerate outlawry or vigilante justice. We do not need to add offenders’ rights to the pile. It is, admittedly, less clear that there are also good reasons for answering question (b) negatively, without conceding that the wrongdoer’s right not to suffer the treatment is violated. We return to this question in the next section, but an important preliminary answer is that the vigilante’s action may well violate some other right of the wrongdoer’s (that is, other than the right supposedly lost). Third, we should also consider cases of “poetic justice,” in which the wrongdoer has moved securely out of the reach of the “long arm of the law,” yet remains vulnerable to the vigilante’s retaliation. If the wrongdoer holds the right not to suffer punishment-like treatment against all non-state agents, then our vigilante would presumably violate that right when he “punishes” the wrongdoer in such a case. Thus, if acts of “poetic justice” are legitimate, as they sometimes seem to be, the wrongdoer apparently does lack a right against a non-state agent. Before concluding this discussion of victim relativity, I would also like to say something about how it applies to positive rights. Though we would admittedly not say that a person whose positive right is violated is a “victim,” it still seems that the loss of such a right is relative in a way analogous to that in which I have just denied that the loss of negative rights is. In particular, if a person has helped you in the past, or is disposed to help you (see 11.2), then the fact that he has never helped others, or is not disposed to do so, is irrelevant. His right against you remains. Similarly, if he helps others but not you, you do not owe him aid. As indicated in 7.5, one possible explanation of these findings is that there are no positive rights, and that the contrary appearance is due to our confusing the corresponding obligations with reasons of reciprocity. However, as I want EBR to be compatible with positive rights, I cannot dispose of the problem quite so easily. In particular, if such rights exist and EBR holds,

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how are we to explain the latter of the two facts (assuming they are facts) I noted, that you are under no obligation to aid a generally helpful person who will not help you in particular (or perhaps some group to which you belong)? The most likely explanation here is that such a person has failed to acquire the right to aid in the first place because of his discriminating arbitrarily (we assume) in his decisions to aid. Again, this fact does not preclude its being the case that those whom he has in fact helped, or are even simply disposed to help, have reasons of reciprocity for helping him which you lack. While this proposal has a certain plausibility, I cannot subject it to any detailed investigation here (nor later, in 11.4, when I turn to right acquisition).

4.

Reasons Relativity

A more substantial type of relativity concerns reasons. For it may seem that whether or not a person’s right is infringed depends on the reasons (or motive) behind the potentially infringing action. Consider the following excellent example about punishment, due to Simmons (1991, p. 339): “Butch and his gang roam the state of nature, cutting throats at random just for the fun of it, and happen to cut the throat of a murderer (who deserves a painful death, say).” If right loss were not reason-relative, Simmons holds, it would follow that “that particular throat cutting, but no other . . . [is] morally acceptable.” Simmons himself considers this a “preposterous” implication of the denial of reasons relativity (ibid.). In the following, I will devote most of my attention to this simple state-ofnature example, but I will also consider a case involving state punishment. In the first place, then, we have already seen that victim relativity is hard to reconcile with both EBR and the value view. Further, a similar argument is available for reasons relativity. If a person’s basic rights simply correspond with his value then the only way in which it could be true of him that he has a right in one situation and lacks it in another is if his value is different in the two situations. And it is very implausible that the wrongdoer’s value in a situation in which his life is threatened by a sadist is any different from that value in a situation in which the threat comes from someone seeking justice. As with the worry of outlawry discussed in the last section, we now face the question of what to say about a case like the previous one once we have rejected reasons relativity. In the first place we should note that Simmons himself merely denies that the sadist’s killing the murderer is “morally acceptable.” Hence he does not strictly speaking assert, though he does presumably imply, that the sadist’s action violates the murderer’s right.10 One response to the case is to seize on this formulation and insist that though the sadist’s action is indeed deplorable, it does not infringe the murderer’s right, as that right is lost. The reader will recall the three questions (a), (b) and (c) from the last section. The distinction between the

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first two is now particularly interesting. I noted that a negative answer to the first (Does the wrongdoer have a right against the treatment in question?) does not entail an affirmative answer to the second (Is the treatment morally justified overall?). In particular, one could try arguing that the sadist’s motives can make his action morally wrong overall even if it does not infringe the wrongdoer’s right to life (because that right is indeed lost). To establish the suggested diagnosis of the sadist case it is necessary to do two things. In the first place we would have to find reasons for denying that the murderer’s right to life is really at stake. Second, we would have to find some alternative explanation of Simmons’ intuition, which I do not contest, that the sadist’s action is not “morally acceptable.” Turning to the first of these tasks, we may begin by noting that if it were really the case that the sadist violates the murderer’s right to life, then his action would in a crucial respect be like that of an agent who kills an innocent person from a “good” motive—say, a righteous avenger who in the state of nature kills an innocent, erroneously but quite blamelessly believing him to be a vicious murderer. For both agents would then violate another’s right to life. In that respect the actions would be morally on a par. We must also remember what I have taken to be involved in a person’s having a right—or, that is to say, what the agency view implies on this matter. In the next section I will argue that EBR shares these implications, but for now we can take that claim for granted. To rehearse, then, to have a right involves the authority to command others to act in a certain way, which in turn includes generating exclusionary reasons against acting for contrary reasons, but also the power not to issue any such command (i.e., the power of waiver); the right to enforce one’s original right, even using means that would otherwise wrong the offending obligation bearer; and a right to compensation for harms suffered as a result of a violation of the original right. However, there are reasons to doubt whether any of these components are present in the case of Simmons’ murderer. Considering the first component, one could of course try appealing directly to intuitions about whether the relevant authority obtains, as distinct from some sort of more nebulous “wrongness.” I doubt that that is a very rewarding procedure, however—which is not to say that it does not seem to me, at any rate, that there is a difference in this respect between the murderer threatened by a joy killer and the innocent person threatened by a misinformed righteous avenger. We need instead to approach the question more indirectly, and in particular the possibility of waiver. Here the evidence is admittedly mixed. On the one hand it does seem that the murderer’s waiving his (purported) right to life makes a difference morally speaking: the sadist’s action does seem less objectionable in that case. By contrast, in those cases in which the phenomenon of right loss is least controversial (defense against culpable aggressors), it seems obvious that waivers are irrelevant, or even impossible. On the other hand, the difference the murderer’s waiver makes is rather limited, especially compared to

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our other case (with the obvious reservation that consent to being killed is often problematic). This difference suggests that much of our unease at the sadist’s deed is due to peculiar features of the action, rather than to the violation of the murderer’s right. We will return to this matter shortly. Turning instead to the other two components mentioned previously, we find reasons to doubt that Simmons’ murderer possesses the rights in question. In the first place I am unwilling to allow that the murderer would have a right to compensation, in just the way innocent victims of wrongdoing have, if he is not killed. This may depend on how the right to compensation is interpreted: is it a right against the wrongdoer exclusively to offer the compensation, or does it imply also a right against others to assist in enforcing the compensation? The claim that the murderer has the right is certainly implausible given the stronger interpretation (are the indirect victims of his original murder also supposed to help out?). But even if the wrongdoer alone should compensate there is something odd about the notion that the murderer should get compensated just like anyone else when he is harmed by the sadist but get nothing at all if he is harmed in the very same way by a righteous avenger. In the second place, it also seems that the murderer does not have a right to defend himself in the way an innocent person would (though he might have a liberty against the sadist to do so; after all, the latter is hardly entitled to compensation for harm he suffers as a result of the murderer’s self-defense). In particular, if the righteous avenger wants to interfere with the murderer’s self-defense, it does not seem that he violates the latter’s right (perhaps especially if that is the only way in which he can see to it that the murderer gets his comeuppance). Again there is something strange in saying that the avenger violates the murderer’s right in preventing his self-defense against the sadist, but not in killing the murderer himself. The previous remarks are indeed rather far from being conclusive, and there is likely to be disagreement about them, even among those generally favorable to right loss generated by wrongdoing. That fact gives us all the more reason to turn to the second challenge I mentioned earlier, of offering an alternative explanation of the sense that there is something wrong about the sadist’s action, and indeed even that it violates the murderer’s right. I begin by noting that there is one reason for taking the latter line that I will not discuss here, but will rather postpone discussing until 11.6, and this is that though the sadist does not violate the murderer’s right to life, as that has indeed been lost, he does violate some other right of the murderer’s, which has not been lost, and which perhaps cannot be lost. (This maneuver amounts, of course, to qualifying EBR.) A different alternative explanation is that when we judge that what the sadist is doing is “morally unacceptable,” what we are reacting to is precisely the sadistic aspect of his conduct, or in other words, his motive. We may note, in favor of that explanation, that we are likely to object to sadistic imposition of harm on a person even in cases where we can simply

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grant that the victim lacks a right not to suffer that harm. For instance, I might start a competing business and drive you into bankruptcy out of sheer spite. In such a situation you could hardly complain that I have infringed a right of yours, as no such right was at stake. But you would certainly have reason to object to the way I treat you, and my action might very well be classified as “morally unacceptable.” I note also that the sadist’s motive may help explain the intuition, if any, that he should compensate the murderer, if the latter survives. For it may be true quite generally that a person A ought to compensate another B for harm A causes even if B did not have a right not to suffer that harm, as long as the harm was morally inappropriate. We might want to say something similar about the competition case. That means that the idea of a moral demand to compensate for harm is broader than that of a right. As promised, I also want to return to the question of the significance of the murderer’s waiving his right. I noted that such a waiver seems to make a difference, which it should not do if he has no right to waive in the first place. The significance of this observation could be questioned once we consider the possible reasons for the murderer’s waiver. For one plausible reason for the waiver is that the murderer has come to believe (or recognize) that he deserves to die, and therefore accepts the sadist’s deed. (Again, perhaps he believes that being killed by the sadist is the closest he can get to justice.) It is not odd, I think, that a waiver issued for this reason makes a difference to our moral evaluation of the sadist’s action (or of whether it was a bad thing to happen). I might add here that there is also another possible explanation, compatible with EBR, of the sense that the sadist is obligated to the murderer not to kill him (for sadistic reasons), having to do with exclusionary reasons. The latter are, after all, reasons for not acting for certain reasons. According to the value view, and thus according to EBR as well, obligations consist in part of such reasons that themselves answer to the agent’s value. However, in Chapter 7 I noted a different kind of exclusionary reason, one that holds because acting for a certain first-order reason is itself bad, finally or instrumentally. The sadist’s reason for action in our case presumably belongs to the latter category. As a consequence, it is possible to argue that he is subject to exclusionary reasons without acknowledging any right of the murderer’s, or any corresponding obligation of the sadist’s—or at any rate any that exist in virtue of the murderer’s having exercised any power. Now, previously I have attempted to account for the sense that the sadist’s action is wrong without conceding that the murderer has a right not to be killed (and, for that matter, a right not to be killed for sadistic reasons). Again, the purpose of the exercise is to explain away the apparent attraction of reasons-relative right loss, which seems hard to reconcile with EBR. Yet many will remain unconvinced, insisting that speaking merely of the sadist’s deplorable motive suggests, as it were, too

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“agent-centered” a view of the case. In other words, they hold that the sadist’s action is not only wrong, it also wrongs the murderer. While I find myself less enamored of this idea than (I surmise) some readers will be, I do not want to dismiss it out hand. So it is worth asking whether we can make sense of it within EBR. In answer, we may note first that there is nothing (very) puzzling about the notion of “doing wrong” to a person without infringing any right of his—as opposed to mere impersonal wrongdoing. I have already allowed (in 2.1) that the notion of relationality that we use in characterizing rights of all sorts is broader than even the broadest notion of a right. Hence it possible to flout some sort of relational moral demand without infringing any right. A case in point is the so-called “right to do wrong,” at least provided the “right” in question can be a mere liberty.11 The agent in such a case infringes no right; yet if his action has an identifiable victim, that person could still be wronged in some sense. Such an action could be said to show a certain form of disrespect towards its victims; it is not merely wrong in some impersonal (or, for that matter, “agent-centered”) way. However, these victims are not owed compensation (but perhaps an excuse), nor are they allowed to use otherwise right-infringing means to prevent the disrespect (though the original agent perhaps may not complain if they respond in kind). To have a term, let us say that while the victim has no right or claim infringed, he does have a complaint at the way he was treated, where this complaint is the correlate of the kind of non-right relational demand I mentioned earlier. However, these “right to do wrong” cases are importantly different from the ones that concern us. The “complaint” the murderer in Simmons’ example is supposed to have at the sadist’s treatment of him belongs to him in virtue of his mere agency or personhood, and thus cannot be lost, and that is not true of most “right to do wrong” cases. That is, the “complaint” in such a case could be lost. For instance, rude behavior may not in any sense wrong a person who has himself been rude, though it would give non-rude people a complaint (even though it does not infringe any right of theirs). Still, if we allow that a person can have a complaint at some treatment in virtue of some properties that he can lose—in the case just suggested perhaps the complaint is due simply to his not being rude himself—there is at least no obvious reason why such a complaint could not also belong to him in virtue of properties he cannot lose, such as his being an agent. I will return to this matter in 11.6. I turn now to discussing the case of right loss in society, which I postponed at the outset. Here we may begin with another example, this one due to Quinn (1985, p. 332): The proper authorities are entitled to punish Jones . . . who has . . . stolen Smith’s car, by depriving him of up to the amount of liberty forfeited in the theft—But suppose that the community in which Jones

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lives has the unjust practice of seizing and confining political dissenters. And suppose that shortly after his crime Jones, who also happens to be a dissenter, is officially seized and, for a time, quarantined to prevent the spread of his political views (views having nothing to do with his theft). Again, we would naturally suppose that Jones’s right to liberty had been violated by his community, even if he were confined only for a period that would constitute an acceptable punishment for the theft and were never punished thereafter.12 Note that Quinn, unlike Simmons, insists that the victim’s right is violated in the case he discusses. He does not merely assert that it is wrong of the state to confine Jones. I will treat this case also as one of reasons relativity.13 That is, Jones’ right would not have been infringed if the state had instead subjected him to the same treatment as punishment for the theft. Either way, the reasons for the state’s action—whether it is to punish Jones or to quarantine him—must then be understood as “institutional.” They are clearly distinct from the reasons of the judge or prosecutor or legislator seen as individuals (though perhaps these persons can be assigned special reasons in virtue of their official roles).14 This case differs from the foregoing not only in that it takes place within civil society rather than the state of nature, but also in that the state is the bearer of the purported obligation. This difference gives rise to some issues that are not present in the simpler case. In the first place, even if we respond to this case by denying that any right of Jones’ is violated, but that he does have a “complaint” at the way he was treated, it seems that this complaint is particularly serious in this case, in which the state is the agent. If Jones is indeed wronged, and I have not denied this, he seems in one way to have been wronged more than the murderer in Simmons’ example. It would lead too far to speculate here on exactly why that is, important though the question may be. What matters for present purposes is that we can recognize such a difference, and so the special role of the state, without conceding that Jones’ right against confinement, or indeed any right of his, is infringed. A second point is that if Jones were indeed to be punished for his crime, as opposed to being quarantined for his political views, it seems to matter who does the punishing. As Quinn also notes (ibid.), we are likely to object if the victim of Jones’ original crime were to kidnap and confine him, in lieu of punishment, for a period of time equal to what he would have received if the legal system had functioned properly. That is, it might seem that only the state could properly punish. We might even be tempted to add yet a third form of relativity to our collection (“agent relativity,” if you will).15 Admittedly there is likely to be some disagreement on this matter. Thus, if we add that Jones has managed to evade justice and there is no other way of giving him what he deserves, the kidnapping option might seem acceptable, at least to some. That aside, though, it is worth

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pointing out that there is a reason for the opposite view at least arguably compatible with EBR, namely that individuals in a state have somehow transferred not only their right (if it ever existed) but even their liberty to punish, much as Locke held. One more complication needs to be brought to light. It is relevant to both of our examples, though I choose to consider it here only relative to the Jones case. Even if it is true that Jones has no right against confinement, the state does not know this. Its action, then, is just as blameworthy as it would have been if Jones had been innocent, and his right therefore uncontroversially infringed. Our sense that Jones is wronged may be due to that factor.16 This observation in turn leads to the question of whether Jones indeed is wronged simply in virtue of the blameworthiness of the conduct to which he was exposed. For this to be possible, blameworthiness would have to be a relational notion, just as those of right, obligation and wronging. Yet it seems that we do sometimes think of blameworthiness in relational terms, as when we hold that one person is “better placed” to blame a wrongdoer than others are. That is obviously the case when the one person is (uniquely) victimized by the wrongdoer’s action, but it seems also to be true when that action does not victimize him but rather exposes him to the risk of such victimization. While I do not here want to take a stand on the issue of whether risky actions that do not in fact cause harm infringe rights, I would at least say that if the state does indeed wrong Jones, that is not because it subjects him to a risk. In a genuine case of risk imposition, in which the agent does something that may or may not lead to wrongful harm to another, it is in a central sense indeterminate if the harm will come to pass. By contrast, it is already a fact that Jones is not innocent. In such a case, the agent’s risk is merely epistemic. It might naturally be objected that the agent’s risk is at bottom “merely epistemic” in the other case as well, because the future is determined, if unknowable. Again we get entangled in matters I would prefer to avoid, but my sense is that the two cases are importantly different regardless of the determinacy of the future. But I will have to leave this matter unaddressed. In sum, while reasons relativity and the value view seem incompatible, there are good reasons for thinking that there is a large grain of truth to the former idea, though exactly how large is unclear. In an effort to accommodate it, and to some extent also the idea of victim relativity canvassed in the preceding section, I have allowed that adherents of EBR will likely have to concede that there are ways of wronging others that cannot be accounted for within their view of rights, and that presumably belong to persons simply in virtue of their agency, yet are not rights. (Again, we will have to return to this matter in 11.6.)

Notes 1. To clarify, in this formulation I use ‘in virtue of’ in the weaker sense identified in 9.2, the one that does not imply sufficiency. In the strong sense of

Exercise-Based Rights—the Very Idea

2.

3. 4. 5.

6.

7.

8.

9.

10. 11. 12. 13.

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that phrase, an adherent of the conditional-rights thesis would presumably have to say that a person has rights in virtue of the fact that he is an-agent-who-has-not-violated-rights. Different versions of the reciprocity interpretation, of various degrees of strictness, are defended by Ross (1930, pp. 60ff), Goldman (1979), Haksar (1986), Morris (1991), and Kershnar (2002). Perhaps it was also Locke’s view (Simmons 1991, p. 331). However, as Wellman (2012) notes, mere talk of “right loss” or “forfeiture” does not imply any such precise relationship. For a defense of a “loose” version of lex talionis, see Waldron (1992). There are certainly various compromise positions between these two positions, though it is doubtful whether they merit separate treatment. I am indebted here to Wlodek Rabinowicz. It is not clear whether anyone has actually defended anything like the view of right loss just described. But cf. the following: “if we ask which rights are forfeited in violating the rights of others, it is plausible to answer just those rights that one violates (or an equivalent set)” Goldman (1979, p. 45; emphasis added). He adds: “Equivalence here is to be measured in terms of some average or normal preference scale” (ibid.) I would not endorse this latter idea (see 7.4.) To some extent that fact can be accounted for by the thought that one right R could presuppose another R* and that therefore the loss of R* entails the loss of R. But surely this idea will only take us so far. Suppose, for instance, that a bank robber has lost his right not to spend a number of years in prison. If he is fined instead, we would deny that he has any complaint, even if his right to the money exacted from him does not presuppose the right to his freedom, supposed lost. Kershnar (2002, pp. 73–7) aims to defend victim relativity, but seems to confuse it with the exclusive right to punish. He advocates a “narrow account” of right loss, according to which a right violator “forfeits a moral right with regard to, and only to, the right-holder” (p. 74). But then he immediately goes on to say that the narrow account implies that “the right to punishment is held only by the victim” (ibid.). Yet the narrow account mentions no “right to punishment,” if the latter is understood as more than a mere liberty. If EBR purports to be a complete theory of rights, it should admittedly also pronounce on whether the victim’s exclusive right to punish exists; and it should explain why that right exists, or does not exist, as the case may be. Though I am inclined towards a negative answer, I will set that question aside for another occasion. For some arguments in support of just such an answer, see Simmons (1991, p. 331ff.) and C. H. Wellman (2009, p. 425). A further issue is that once we leave the state of nature, the state is usually seen as having an exclusive right to punish (again see C. H. Wellman (2009)). While this claim seems to me highly questionable as stated, I will not discuss it here. Cf. Quinn (1985, p. 332n8), though he does not stress the issue of who does the punishing, but rather that of what the agency that normally does the punishing (i.e., the state) does to the wrongdoer. I will say more about that matter in the next subsection. By the same token, Simmons expresses his own positive view without any explicit reference to rights: “we are permitted to harm wrongdoers only for special reasons” (1991, p. 340). See Waldron (1981). I have omitted some words from the passage to make it more neutral (or less rhetorical, perhaps). Boonin raises much the same worry, under the heading of the “Private Retaliation Objection” to what he calls “Forfeiture-Based Retributivism” (2008, pp. 114–15).

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14. As with the case of the murderer and the sadist, an alternative account of this situation does not mention reasons relativity but has it instead that Jones retains some right, distinct from his right not to suffer the confinement, one which perhaps cannot be lost, and that our sense that he has been wronged is due to the violation of that right. Again I will return to this possibility in 11.6. 15. Kershnar talks about “context relativity” in connection with Quinn’s case (2002, p. 71). (He distinguishes this type of relativity, which he rejects, from reasons relativity, which he also rejects [ibid., pp. 77–81].) On this interpretation, Quinn is saying that Jones’ right is lost “only in the context of punishment” (ibid.). Quinn himself says that “the conditionality of Jones’s right to liberty (the conditionality invoked by the doctrine of forfeiture) makes essential reference to punishment” (1985, p. 332). While this notion of a “context” is unclear, it is natural to interpret it in such a way that state punishment and vigilante punishment (if that is the word) are distinct contexts. 16. A related question is that of how “fine-grained” the reasons to which the reasons relativist appeals are supposed to be. Again consider the case of a guilty person who suffers punishment or retaliation without due process. In the extreme case he is framed for a crime he did in fact, by sheer coincidence, commit. Is his right then infringed on account of reasons relativity? Clearly that depends. If his wrongdoing leads him to lose his right not to be punished for the crime he in fact committed, then his right is not infringed. However, if his wrongdoing rather makes him lose his right not to be punished for a crime he is in fact believed to have committed, his right is infringed. Indeed, when we say that he is “punished for” a certain crime, we might be taken to imply that he is “believed” to have committed the crime. If he is indeed guilty “by sheer coincidence,” then those who framed him do not personally believe that he did it, but his being convicted might be taken to mean that the state believes this.

11 Exercise-Based Rights— Why Accept Them?

The preceding chapter was devoted to a number of questions about how to understand EBR in its radical version: EBR. Each right of a person is a value belonging to him because, and only because, of his right-violating and right-respecting actions. I discussed a couple of interpretations of this theory of the ground of rights, expressing my preference for what I called the “overall-violation interpretation.” I also argued that EBR is incompatible with both victim and reasons relativity, and gave reasons for doubting that this incompatibility is a serious problem for the doctrine. With these matters of clarification under our belt, we can turn to an assessment of EBR. I begin by noting that any attempt to combine the value view with right loss, such as EBR, is subject to two constraints. In the first place it must have reasonably plausible implications for which persons have which rights in which situations—though admittedly opinions about what counts as “reasonably plausible implications” are likely to vary considerably. And, second, it must allow us to say with some plausibility that the difference in right-grounding features it identifies corresponds to a difference in ultimate value. As far as the first constraint is concerned, EBR does have the advantage (or I have assumed it to be such) of implying that right violators lack rights in ways that right respecters do not. Yet it is also clear that the view has other implications that, at least on the face of it, are less appealing. Further, once combined with the value view it implies that people differ not only in rights but also in (ultimate) value depending on their rightrespecting record. This fact will of course raise the question whether EBR can meet the second constraint discussed previously, that the difference in rights it postulates corresponds to a difference in ultimate value. My strategy in what follows will be to consider a number of significant worries with EBR as now conceived, focusing on the difference between it and the agency view. (Section 2 is an exception, in which I examine an alternative to EBR.) The purpose of this chapter is to explore the extent to

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which these doubts can be allayed. Let me here list the various challenges the account faces, and then consider them one by one in the sections to follow. a.

Granting the value view, if a person’s rights are grounded in his actions, rather than his agency, does that mean that his agency is irrelevant to his value? If not, how is it relevant? b. If it is indeed true that persons have rights in virtue of the way they have “exercised their agency,” which such exercises matter? As EBR has been formulated, only right violations and respectings matter, but that seems overly narrow. c. Is right loss permanent? d. Why should we accept that loss of rights also involves a loss of value? (Answering this question amounts to meeting the “second constraint” just mentioned.) e. It seems that some generally acknowledged rights cannot be lost, that they are inalienable. Some of these rights are “formal” (in a sense in need of elucidation), such as the right to a fair trial. Others, though, seem more substantive, such as the right not to be tortured, and (more controversially) the right to life. Can EBR account for this fact (if it is one)? (This question brings us back to the issue raised in [a.], about the value that persons have in virtue of agency alone.) As should be clear from this, the defense I offer in the following for EBR mainly consists in responses to objections (and indeed in part in further clarification). However, to some extent I will also attempt to offer positive arguments, mainly in section 1, but also in section 3—arguments, that is, that go beyond EBR’s ability to account for right loss. Throughout I will focus on the radical version of EBR stated previously, though I will consider, and at least allow for, a significant modification in section 3. In the final section, where I confront the problem of inalienable rights, I will suggest reasons for retreating to the moderate version of EBR. These reasons seem to me strong, but I will not definitely endorse them. The upshot, then, is somewhat inconclusive.

1.

The Value of Agency vs. the Value of Actions

To most people who are willing in the first place to accept the idea I have taken for granted in this book, that persons have rights as it were naturally rather than conventionally, something at least roughly like the agency view, the idea that the ground of rights is something like agency or personhood, has seemed more or less obvious. Even if they have not necessarily been able to account for the phenomenon of right loss—assuming they accept it at all—to their own satisfaction, they have not on that account

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been tempted to abandon their general stand on the ground of rights. It is crucial to realize that there is more than a gut feeling and a long tradition behind this refusal. There are in fact two compelling, and related, arguments showing that a person’s right violations (or actions generally, for that matter) at least cannot exhaust the grounds of his rights. Let me first describe these arguments and then ponder their implications. (i) Merely referring to a person’s actual violations, or more generally his decisions whether to respect or violate a given right in order to ground his rights, creates a “cannot-get-started” problem. It can be seen in two ways. In the first place, any view of the type described presupposes that before anyone has rights there has to be someone else with rights. It is a bit like saying that one could only become the champion by defeating the existing champion, or that one could only become a member of a club if one is invited by an existing member. It then becomes a mystery how anyone could have become the first champion or the first member. In cases like these, the obvious solution is to declare that the first champion or the first member was selected in some other way. But then it will seem that we have to say much the same about the “first person” or “first right holder.” In particular it is very tempting to say that the first person’s rights are due simply to his agency, in which case one would of course in consistency have to acknowledge that all persons have rights simply in virtue of their agency, and EBR has fallen. Second, any theory according to which the rights a person has depends on whether he has respected other people’s rights obviously presupposes some account of which these rights are. But EBR seems powerless to produce this account. Rather, it has to be parasitical on some other account, on pain of circularity. And on this further account, the ground of rights has to be something other than acts of violating or respecting rights, as it has to obtain independently of these. Again it is very tempting to conclude that this ground is mere agency. (ii) The second argument starts from a further question of interpretation: when does one begin to have rights? In particular, what should we say about an agent who as yet has not respected or violated any rights? Call such a person an unproven agent. Here an adherent of EBR seems to face a dilemma, one that brings us back to the difference between EBR and the conditional-right thesis described in 10.1. On the one hand we could say that one has rights simply in virtue of being an agent who has as yet not violated rights. This is the view I associated with the conditionalright thesis.1 If so, the unproven agent already has a full complement of rights, such as the ones outlined in Chapter 6. But that seems simply to bring us back to the conditional-rights thesis from 9.2, and therefore again to the agency view. (The conditional-rights thesis, remember, is a version of the agency view.) On the other hand, we could say that one acquires rights by proving oneself, meaning that one has had the opportunity to either violate them or respect them and has chosen to respect them.

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This is the view I associated with EBR. But apparently it yields the absurd consequence that an unproven agent has no rights. In principle a normal human being could live his life like Robinson Crusoe from before he has attained to full agency, in isolation from all right holders, and therefore never acquire any rights, or value.2 The apparent conclusion is that, either way, EBR is untenable—and that the conditional-rights thesis, whatever its shortcomings, has a huge advantage.3 This much must now be conceded: these two objections do succeed in showing that agents have value simply in virtue of their agency—that is, independently of how they exercise that agency—and that this value must play some role in accounting for their rights. To that extent, the agency view is correct. By the same token, it cannot be satisfactory to say that “persons have rights in virtue of their decisions whether to respect or violate rights” and no more. And for that matter, in stating EBR I have said only that people’s overall value depends on the extent to which they have respected or violated rights. I have not said that this value is exhausted by these exercises of agency. The challenge we face, then, is that of accommodating this insight, while at the same time preserving those intuitions that led us in the direction of EBR in the first place. In responding to these powerful objections it will prove useful to begin with the second one. To provide that response, it is legitimate, dialectically speaking, to begin by granting the hypothesis that agents that have been tried but failed lack certain rights that those who have “passed” possess, and then ask what one could plausibly say about unproven agents. At any rate, here I will describe what strikes me as a reasonable reaction. It seems to me that what an unproven agent, unlike an agent who has been proven and “passed the test,” can claim is the benefit of the doubt. That is, what we are owed in virtue of our agency as such is the default assumption that we will use that capacity well, unless and until we ourselves prove otherwise.4 Using related terms, we could say that not to accord the unproven agent this benefit—that is, to treat him as if he had been tested and failed—is unfair to him. What this amounts to in practice is that we are to treat such an agent as if he had certain rights, as if he had the “authority” to issue “commands” like those a proven agent may issue. Indeed, I would go further and say that we are to treat him as if he had the full complement of rights that an agent that has proven himself would have. (I will get back to that matter in responding to the first objection.) But strictly speaking he does not yet have the rights. In practice, therefore, it makes no difference whether the agent has proven himself or not. The rest of us owe it to him to treat him the same way regardless (at least more or less). And so the value of agency, as advertised, is genuine: it corresponds precisely to the right to the benefit of the doubt, or alternatively, to a certain idea of fairness. It will likely be asked what this talk of a “right” to the benefit of the doubt is supposed to amount to. In some ways, it is not peculiar. For one

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thing it clearly corresponds to directed requirements. That is, we owe it to others to give them the benefit of the doubt. What is more, the right to the benefit of the doubt could also correspond to second-order reasons, even if these are only “as if.” But what does that mean? That is, what is the difference between saying that we owe it to someone to treat him “as if” he has rights and saying that he does have rights?5 In other words, what is the difference between an appeal to a right to the “benefit of the doubt” and the conditional-rights thesis (which, remember, is a version of the agency view)? I believe there is a difference, albeit a subtle one, between infringing the rights of a person who has proved himself by actually respecting rights and the same treatment of someone who is yet to prove himself—or, at any rate, that is what an adherent of EBR should say, and that is all we need for showing that there is a genuine difference between the way it treats unproven agents and the way the agency view does. For in the case of an agent that has passed the test, as I have indeed already indicated, we would not say that in infringing his right we have failed to give him the benefit of the doubt. In his case, after all, there is no call for doubt: we know that he has proven himself. Nor, for that matter, would we say that our treatment of him has been unfair, or at any rate not unfair to him in the way in which similar treatment of an unproven agent is unfair to that agent. In both cases, that of an unproven agent and that of a proven one, the treatment is wrong, and indeed wrongs its victim, but does so for different reasons in each case. There is a difference, but it holds at the theoretical level, not the practical. We should also note that the right to the benefit to the doubt is not itself a conditional right, or at any rate not in the way the conditional-rights thesis implies that rights are conditional. While it is true that the right to the benefit of the doubt is lost once one has violated rights (and so is no longer “unproven”), in a way superficially similar to that described by the conditional-rights thesis, it is equally true that the right is lost once one has respected rights (to whatever extent is needed). After all, then one is also no longer unproven. Instead of speaking of the right to the benefit of the doubt as “conditional,” it might be better to say that the unproven agent’s right status is indeterminate in a certain respect, and is rendered determinate once he has proven himself one way or the other A natural objection to the idea of agency as generating a right to the benefit of the doubt is that the view of unproven agents I have proposed on behalf of EBR arbitrarily suggests that, on account of their value as agents, we are to act under the default assumption that they will pass the test. This might seem misconceived, however, because the proper response to the as-yet-indeterminate value of an unproven agent should rather be some sort of “neutral” treatment, neither good nor bad as it were. This objection will seem more attractive when we consider supposedly analogous cases. Thus, take aspiring Marines in boot camp. They all undergo training, and after this process is over they either “pass” or “fail.” In this

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case, just as it would be uncalled-for to treat such a candidate undergoing training as if he had already failed, it would be equally inappropriate to treat him as if he had already passed (though the latter treatment perhaps does not wrong him). But now, in this case there is also a kind of neutral treatment, namely to allow the candidate to complete the training program without any of the privileges normally bestowed only on those who have passed. Surely this, and this alone, is the kind of treatment these candidates can claim. Further, the analogy suggests a form of “neutral” or “intermediate” treatment also of an unproven agent: to continue to give him the chance to prove himself, without recognizing him as having any rights beyond that, “as if” or otherwise. (That would be the counterpart of letting someone stay in training but not giving him the privileges of someone who has passed.) That is, we refrain from killing him or completely taking away his agency, but do not recognize him as holding any rights beyond those. We need, then, to justify a certain conception of default treatment—or, alternatively, a certain asymmetry. One idea, that might perhaps seem initially tempting, is to use the analogy with the presumption of innocence. In a criminal trial the default assumption is that the defendant is innocent, meaning that his value is not reduced because of any right violation. However, the analogy is flawed. In the legal case it is already a fact that the defendant is guilty or a fact that he is innocent; it is just that at the start of the process (at any rate) the court does not know which it is. In our case, by contrast, there is no ignorance: we already know that the agent, being unproven, lacks the value he can get only by proving himself, i.e., in virtue of respecting rights. This knowledge also blocks the path to a natural and attractive argument for the presumption of innocence, the one that goes by way of the idea that punishing the innocent is worse than not punishing the guilty.6 Clearly no parallel justification is available for the “benefit-of-the-doubt” requirement. And this type of justification is in any case too impersonal for a right. It rationalizes a policy, but it cannot explain why a person is wronged by certain types of treatment. Even if the presumption of innocence is unhelpful, it still seems that the earlier comparison between an unproven agent and a would-be Marine, or some other trainee, misses the mark. For consider any action that might count as a right infringement, such as, say, punching someone on the nose. In a given case I either punch an unproven agent on the nose or I do not. If I do, I treat him as if he has already failed; and if I do not, I treat him as if he has already passed. There is no intermediate treatment. More generally, in ignoring your “as if” rights, I could intelligibly be charged with “having given up on you already,” whereas the same charge would be absurd if aimed at a commander who lets would-be Marines stay in boot camp, without according them the privileges of actual Marines. This charge would be justified only if she (arbitrarily) kicked them out of the program before the completion of their training. By the same token, it is

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generally absurd to suppose that there is any benefit-of-the-doubt requirement with respect to trainees. They are evaluated at some stage and before that time they are to be treated “neutrally.” Further, it is not acceptable to treat a trainee in just the way we would treat someone who has been tested and failed. The latter may perhaps be the proper object of contempt, but not the former. Is that helpful here? The contempt is a sign of his low value, a low value that we now know he has. While the trainee’s value may turn out to be equally low, we do not know that yet. Hence it is not proper to treat him as if his value is that low. Now, all of this may seem compatible with there being three “levels” of treatment: respect for those who have passed, contempt for those who have failed, and neither for those whose status is as yet undetermined. If so, it would still be open to us to say that the contemptuous attitude corresponds to no rights at all, the respectful attitude to the full complement, and the intermediate attitude to the intermediate set (i.e., rights to whatever is required to “have a chance to prove oneself”). On closer consideration, though, this impression is false. Take a given action that we would normally describe as right-infringing but not as infringing the narrow “right to a chance,” such as punching someone on the nose. Is not that expressive of contempt? The same would go for infringing (what we would normally describe as) a positive right, such as a refusal to save someone from significant harm when one could easily do so. In the unproven-agent case there are indeed only two “levels” of treatment. To accord someone his rights is to accord him the minimum of respect. It is not analogous to according him an honor, such as letting him wear a certain uniform. The mere refusal to accord such an honor is not an expression of contempt, but rather an instance of the “intermediate” attitude. To sum up provisionally, we have shown that EBR can offer a plausible take on unproven agents, one that is theoretically (if not practically) different from what the conditional-rights thesis says. I take that to be sufficient as a response to the unproven agent objection. I should point out, however, that when I say that the suggested account is “plausible,” I do not mean to say that I expect partisans of the agency view to be converted to it. I mean merely that it should look attractive to those who are initially willing to accept something like EBR, or at least the more general idea that rights depend on respecting other people’s rights. I turn now to the other objection against EBR I described at the beginning of this section, the “cannot-get-started” problem. To recall, if we talk about “right violations” as grounding value, we presuppose that there already are rights out there to violate, and hence that we have an independent story about where they come from. I noted that this problem manifested itself in two ways. On the one hand we have a kind of regress problem: if EBR holds, then a person’s rights depend on whether he respects other people’s rights; but of course their rights in turn depend on whether they have respected yet other people’s rights, and so on. It seems,

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then, that there would have to be a “first agent” to stop this regress, one whose rights hold independently of his actions. And on the other it seems that we need an account of which rights this “first agent” has independent of EBR. In both instances it will be tempting, and perhaps inevitable, to resort to this character’s mere agency as grounding his rights, in which case we are back with the agency view. The earlier treatment of the “unproven” agent should be equally relevant to the “first agent.” We have seen that we in any case need to refer to the “right to the benefit of the doubt” that belongs to a person simply in virtue of his agency. The problem of how to handle the “unproven” agent discussed previously is really the same as the problem of how to handle the “first agent.” The latter is, after all, in effect an “unproven” agent, since he must have his rights independently of his treatment of others. Consequently it is possible, as it were, to stop the regress by appealing to a person’s right to the benefit of the doubt, or his “as if” rights. Turning to the second problem, we may observe the following. I have argued that an unproven agent has a right to the benefit of the doubt. But what this means is simply that others owe it to him to treat him as if he had the full complement of rights, whatever these are. It does not by itself identify the rights. But now, the agency view is supposed to tell us what the value of agency consists in, in the sense of identifying the reasons to which that value corresponds. EBR gives a rival, if in many ways similar, account of just that value. However, it would seem that insofar as these accounts differ, these differences will concern the status of the corresponding reasons, rather than their content (and thus also their strength). That is, the shift from the agency view to EBR means a shift from genuine rights holding in virtue of agency to “as if” rights holding in virtue of agency, not a shift from rights with one content holding in virtue of agency to rights with some other content holding in virtue of actions. This last point is certainly important, and it can also be generalized. For it seems that the only difference between the “as if” rights of an unproven agent and the “rights proper” of a proven agent is precisely this difference in “status.” Therefore, all the properties of rights identified in Part II as consequences of the agency view are also consequences of EBR (except inalienability, obviously). It might be objected here that in defending the implications of the agency view, I appealed essentially to agency as a ground of rights, and that the justifications I offered therefore cannot simply be carried over to actions as grounds. That is, my arguments for attributing to agents rights with this content rather than that one, and rights with these properties (relationality and authority chief among them) rather than those ones, rested essentially on the thought that there are reasons of a special kind for treating agents in certain ways precisely because they are agents—and not because they are agents who have acted in this way rather than that one. However, the arguments do carry over to EBR; it is only that they are used for a slightly different purpose, namely, that

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of showing that agents have a right to the benefit of the doubt simply in virtue of agency. I should also note that the idea of the right to the benefit of the doubt as a “regress stopper” is relevant also to a related epistemic problem. Again, suppose that what makes a wrongdoer’s rights weaker or more restricted than a non-wrongdoer’s is precisely his having violated other people’s rights. But in order to determine which rights these other people had to begin with, we would have to know how they themselves had acted prior to their encounter with the first person, and in particular the extent to which they had respected yet other people’s rights, and so on. This problem of knowledge arises even if there is a regress stopper. (By contrast, it does not arise at all if persons’ rights come from their mere agency.) To some extent this is a problem we just have to live with. It is also a problem shared by certain other moral theories that are not commonly rejected for that reason alone. Consider, for instance, Nozick’s “entitlement theory” of distributive justice (1974, pp. 150–82). On that view, whether I today am morally entitled to a piece of land or other natural resource depends on whether the person from whom I acquired it had such a moral entitlement; and that depends on whether the person from whom that previous owner in turn acquired the resource had an entitlement to it, and so on. There is here, too, a regress stopper, since Nozick believes in the possibility of original acquisition of unowned things. Nozick’s theory also shares another feature with EBR that might seem implausible, for both imply that what a person can rightfully claim here and now may depend in part on some temporally and spatially remote interaction between two persons who are complete strangers to him. Merely pointing to companions in guilt is admittedly not much of a defense. But the right to the benefit of the doubt at least makes the knowledge problem less serious for EBR than the corresponding problem is for Nozick’s theory. For it is plausible to suppose that what is true of agents we know to be unproven should hold also of agents whose record of right violations is unknown. The burden of proof rests, in effect, on the one who claims that a person lacks rights, not on the one who claims that he has them. In this case, the parallel with the presumption of innocence in criminal trials, mentioned previously, does seem to hold, as we are now dealing with (epistemic) uncertainty rather than actual indeterminacy. Let me end this section by trying to offer a rationale for EBR as I have now characterized it, as opposed to the agency view generally, and the conditional-rights thesis specifically. I stress that it is just that, a rationale, not an argument. It is a way of thinking of our rights that makes sense, rather than one that we are rationally compelled to accept. As I have said, I will not argue against the agency view beyond asserting the possibility of right loss—and, of course, the conditional-rights thesis, which I have taken to be a version of the agency view, is compatible with right loss. To state the rationale we have to take a closer look at the agency view’s picture of

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what makes a person have rights, for it seems that one important aspect was left out of that picture (as described in Chapter 5). The fact that now needs stressing is that agency is a capacity that can be exercised either well or badly, and it is only because it can be so exercised that it bestows value on its possessor. That is, we have rights not simply because we are able to choose, but also because our choices can be assessed. Yet there is something strange about saying that this capacity is essential to having rights while at the same time denying that it matters to one’s rights how it is exercised, or how one should be assessed. Putting the point in slightly different terms, we could say that we have rights only because we can be held responsible for the way we exercise our agency, but then holding us responsible should affect which rights we have. Further, if we ask what, given this view of rights, you can claim in virtue of agency alone, the natural answer is: to be treated as someone who is able to exercise it well unless you have yourself proved otherwise—that is, to get the benefit of the doubt. On the contrary, what gives you the full-blown right is precisely your having exercised the capacity well rather than badly. Now, I concede that much of the previous story about the ground of rights is available also to adherents of the conditional-rights thesis. It is just that, for them, it provides a rationale for treating right violations (or, more loosely, “acting badly”—but see section 3) as disabling conditions. Perhaps, then, it gives us little reason to choose either way between that thesis and EBR. In the end the choice boils down to how we look at unproven agents. This difference may appear to some to be too subtle to bother with. For what it is worth, though, it does at any rate seem to me that EBR’s take on such agents fits better with the account about the ground of rights just suggested: that is, the ground is precisely acting well or badly, as opposed to simply having the ability to do so (but with acting badly as a disabler). At this point, and before proceeding with the objections against EBR, it is useful to make a digression into an alternative view of rights that also allows for lack of rights. Apart from its intrinsic interest, our discussion of it will also cast some further light on the idea of a right to the benefit of the doubt.

2.

A Compromise Ground: Dispositions

Instead of saying that the ground of a person’s rights are his past actions or his agency, one could look for a kind of compromise, according to which the ground is rather the person’s dispositions to respect or violate rights. Call it the “dispositional strategy.” Plainly it can explain why persons sometimes lack rights, as dispositions of the type in question vary from person to person. Once combined with the value view, it also implies that people differ in value, depending on their dispositions to respect rights. This view seems to avoid the problem of the unproven agent. Or at any

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rate that is so to the extent that an unproven agent must have dispositions either to respect or violate rights if given the chance. In this section I will first address the general plausibility of the dispositional strategy in terms of the two constraints stated earlier, and then consider it as a possible objection to the idea of a right to the benefit of the doubt. Before getting to these matters, though, I must mention that a version of the dispositional strategy, though importantly qualified, appears in the literature, and I need to say a little about it. I have in mind the view of Rodin (2014), according to which possession of positive rights to assistance depend on dispositions, whereas negative rights not to suffer harm depend only on actions. Specifically, as far as positive rights are concerned, Rodin maintains that “if it is counterfactually true of a person in need, X, that he would have assisted Y were their circumstances reversed, then this can generate an obligation for Y to provide comparable assistance to X” (2014, p. 296). To have some helpful terminology, we can call this a “mixed” dispositional strategy, as distinguished from a “pure” one that covers negative rights as well. If I understand Rodin correctly, the asymmetry between positive and negative rights for which he argues is due to a different asymmetry with respect to what it takes to comply with an obligation. It is true in general, Rodin argues (p. 300), that actual compliance has “lexical priority” over counterfactual compliance—that is, regardless of whether the obligation is positive or negative. In other words, “[t]he counterfactual reciprocity test [stated previously] is only relevant to the rights of an agent if there is no relevant test concerning the agent’s actual compliance” (ibid.). Further, actual compliance with a positive obligation requires action, and hence opportunity to act. If you have never needed my aid in the past, then I have had no opportunity to fulfill any positive obligation to you. Should I now need your aid, the only information we have to go on (if any), in determining your obligation, is about how likely I would be to aid you in a counterfactual situation in which our roles are reversed. By contrast, a person counts as “complying with” a given negative obligation simply by (a) being under it, and (b) not violating it (p. 295). Whether he has actually had the opportunity to violate it is irrelevant. As a consequence, a would-be murderer (who has not actually murdered anyone) retains all his negative rights. There is no need here to appeal to facts about what he would have done in hypothetical situations. We already know that he has actually complied with everyone else’s negative right not to be killed, and that information has lexical priority. In assessing the dispositional strategy, then, we must ask whether we should include Rodin’s “lexical priority” doctrine as part of it. Here I will choose not to do so, not because it is implausible—I take no stand on that here—but because it turns his reciprocity view into a kind of hybrid between a dispositional strategy and some form of EBR, according to which rights are based on actual past actions rather than present

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dispositions. I wish instead to consider a “pure” form of dispositional strategy. I now remind the reader of the two constraints on attempts to combine the value view with right loss identified at the start of the chapter: (i) it must have plausible implications for which rights persons have; (ii) the difference in right-grounding features it identifies must, arguably at least, correspond to a difference in ultimate value. Let us first ask whether the pure dispositional strategy meets the first of these constraints. It is useful to consider here cases in which a person’s “track record” and his current dispositions point in different directions. Rodin actually considers one such case: a person has respected rights to assistance in the past but now has “hardened his heart” against me in particular (2014, p. 300). Rodin’s lexical priority view implies that this person has a right to assistance against me on the basis of his past compliance, as does EBR, but a (pure) dispositionalist strategy has the opposite implication. On the face of it, this is a significant embarrassment for the dispositional strategy. But consider now the reverse type of case, In which the other person has failed to help me on many occasions in the past, meaning that he has failed in his actual compliance with my positive right, but that he has recently had a change of heart and now has a helpful disposition—though he has not had the opportunity to manifest it yet. Offhand it seems that his present disposition should at least weigh with me. The very least we could say is that I have more reason, other things equal, to aid him were he to need it than a person with a similar track record who has not changed his disposition. If anything, then, the dispositional strategy seems to have the edge over EBR in this case. In addition to these cases, there is of course the one of the unproven agent. Again the dispositionalist strategy may seem to be in a stronger position here, because it implies that a person can have positive rights simply in virtue of his disposition to aid. To be sure, and as I have noted, EBR allows that unproven agents can have “as if” rights, and that could extend to positive rights as well. Yet a dispositionalist might object that a disposition is enough to give one a full-blown right, rather than a mere “as-if” one, which would indeed go contrary to EBR. I will return to the issue of unproven agents later. For now I want to stress a different point, namely that it is not clear what moral to draw from the earlier cases, involving a “mismatch” between a person’s past actions and his present disposition, for there are questions about how our intuitions about them should be understood. In Chapter 7 I observed that it is questionable whether there are positive rights at all, or at least whether they are rights on equal footing with negative ones. While I do not want to take a stand on the matter here, it should be noted that even if there are no such rights, it is not controversial that we all have reasons for aiding others in need, and more importantly, that these reasons to some extent depend on their own past behavior. Specifically, these are

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reasons of reciprocity for helping those who have helped us. These reasons of reciprocity are in some ways similar to obligations, including being relational in some sense, but they are not (necessarily) obligations—as noted in 2.2. In particular, they are not enforceable. What we might want to add to this picture is that reasons of reciprocity could hold in virtue of the mere disposition to aid, rather than actual aiding. The dispositional strategy could easily be conflated with that idea, and so intuitions that may at first seem to favor the former perhaps favor only the latter. That is, perhaps mere dispositions are relevant for such reciprocity reasons but not for rights proper.7 Another problem for the dispositional strategy is that it is quite implausible that a person can demand of others whatever he is willing to do himself. Rodin occasionally seems to embrace such a view, as when he says that “others have the right to be treated no worse than they would in fact treat us were they in our position and we in theirs” (p. 299). The fact that someone is willing to sacrifice his life to prevent the scratching of my finger plainly does not obligate me to do the same for him. It is not even obvious that I have any reason at all in this unusual situation for doing such a thing that I would not have had otherwise. On a more plausible interpretation, the other’s counterfactual reciprocity is simply a necessary condition on his having a right to assistance, at some specific level of sacrifice, at least part of whose ground would then have to rest on some other fact about him.8 If this other ground is his being an agent, we would end up with something like the conditional-rights thesis, except that the disabling condition (at least as far as positive rights are concerned) is the mere disposition to violate and not, or not only, actual violations. It seems, then, that the dispositionalist owes us an account of which rights, or at least which positive rights, an agent who is in fact willing to aid others has that does not simply appeal to his willingness to aid. As we saw in the preceding section, EBR faces a similar problem but is able to resolve it by appealing to the idea of “as if” rights, and the accompanying right to the benefit of the doubt. As we have also seen, however, the dispositional strategy has no room for such a notion, at least as long as “unproven” agents have dispositions to aid or not to aid. I will not pursue the question of how the dispositional strategy could be augmented with the required account. I should add that even the weaker thesis that a disposition to aid is a necessary condition of a right grounded in agency itself (or at least something other than the disposition to aid) is itself questionable. While I confess to sharing Rodin’s intuitions about the cases he uses in support of that thesis, a couple of cautionary points need making. The first of these I have already mentioned, namely that it may be that we are not dealing with rights and obligations at all, but rather simply with reasons of reciprocity, so that Rodin’s cases tell us nothing interesting about rights. The second point, for what it is worth, is this: while I acknowledge the

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intuitive pull of Rodin’s examples involving positive rights, I experience the same pull in the direction in which he does not want to go, that the same holds of negative rights. At any rate, in either case, we could say “Look who’s talking” to the person who would not reciprocate. Rodin apparently does not share this temptation (p. 300), and many readers may side with him, but to the extent that we do have it, and want to explain it away somehow, it should at least be asked whether that same explanation would not work equally for both positive and negative obligations. To illustrate the point about negative rights. Suppose that a certain person has in fact never harmed you, or indeed anyone, but that he is strongly disposed to do so. If given the opportunity he would kill you instantly and without hesitation; it is just that he has fortunately never been given the opportunity. Suppose further that you now have the opportunity to kill him. Would your act infringe his right to life? The common view, surely, is that it would, and that is also what standard accounts of right loss imply. There has been no actual violation, or even the imminent threat of one, and so the person’s right must be intact. However, while I can sympathize with that line of thought, I would be less than honest if I did not confess to feeling a certain pull in the opposite direction. After all, it might be argued, how could the would-be murderer complain at another’s doing to him what he himself would have done to that other had he only had the opportunity? Could we not dismiss his complaints also with “Look who’s talking”? After all, if it had been up to him, he would have killed you. It is just a matter of luck that he has not done so (see the following discussion for more on this).9 This example leads in the direction of a more thorough investigation of the “Look who’s talking” response. What exactly makes it appropriate, and what is its moral significance? That inquiry, interesting though it is, must be left for some other occasion, but to offer at least a glimpse of the complications that would have to be dealt with, consider the following variant on Rodin’s cases. The person I am now in a position to aid is a doctrinaire utilitarian, who would save me if and only if so acting would maximize utility. As it happens, my saving him now would maximize utility. Does he have a right against me that I save him on this occasion on the grounds that he would have saved me in “relevantly similar circumstances”? Or could I counter his complaints with “Look who’s talking” (because he does not recognize claims, including mine, but rather only the impersonal demand to maximize utility)?10 I now turn to the second constraint on the dispositional strategy, that the difference in disposition must correspond to a difference in ultimate value. Hence we need to ask whether persons have ultimate value in virtue of their action dispositions. As the reader will recall (see 1.3), I defined ultimate value as neither instrumental nor contributive (in the sense that the value bearer’s having value is not explained by its being part of a valuable whole). I concede that it is not clear that a person could not have ultimate

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value in virtue of his action dispositions, given that definition of ultimate value. In particular, if a person could have value in virtue of unrealized dispositions, then it is certainly arguable that his disposition-generated value is ultimate. (For instance, contrast a kind versus an unkind Robinson Crusoe on his island, if such talk makes sense at all.) However, even if dispositions are ultimate-value making on the present definition, it does not seem arbitrary to strengthen that definition, and use it to deny that dispositions are ultimate-value making after all. In particular, it could be maintained that an ultimate-value maker be independent, in the sense that its contributing to the value of its bearer is not dependent on any other value maker’s doing so. This condition seems violated in the case of action dispositions. The disposition to φ, as opposed to the disposition to ψ, is value-making, if it indeed is, only because actually φ-ing is value-making, but ψ-ing is not. This fact about the dispositional strategy likely helps explain the air of arbitrary compromise surrounding it. That is, there is something arbitrary about saying that value holds because of the disposition to act well/respect rights, but not on the person’s actually doing so. I will not pretend to say how much of a problem its being incompatible with the value view is for the dispositional strategy, but at any rate I will here treat it as decisive. Not least in light of that harsh verdict, I should stress that I certainly do not deny that there are reasons of reciprocity, perhaps including reasons grounded in mere dispositions, and perhaps I would therefore have to agree also that persons have value in virtue of those same dispositions, to which the reciprocity reasons correspond. What I do deny is that this value is ultimate. (Again, that does not imply that there are no positive rights.) As advertised at the outset, I wish now to consider the dispositional strategy as a possible objection to the idea of a right to the benefit of the doubt. Even though I have just rejected it, I also acknowledged that it has some intuitive appeal (at least to me). And so it can still cause trouble. I have said that unproven agents have a right to the benefit of the doubt. But if it is true that a person would act in such-and-such a way if given the chance, and that fact about him is enough to make him lack the right to be treated (or even not treated) that way himself, as I confessed to being somewhat inclined to think, then it could presumably also be true now that an “unproven” agent would fail to prove himself, if given the opportunity to do so, and therefore that he already lacks rights. Further, while I have relied on intuitions that are supposed to tell in favor of the notion that unproven agents have a right to the benefit of the doubt, and hence “as if” rights, simply in virtue of their agency, perhaps these intuitions themselves tacitly rest on the assumption that such persons could “go either way.” In particular, perhaps we would be less inclined to think that we are “unfair” to such a person by treating him as if he had already failed to prove himself, if we found (somehow) that it is already true that he would fail if tested.

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There are two ways of responding to this attack. The first is to deny the implicit premise that it could be true now that an unproven agent would fail (or pass) if tested—presumably because actions are free and therefore cannot, even in principle, be predicted. However, I prefer not to avail myself of this response. I believe that the possession of rights should not depend on the fate of the controversial implicit premise. I am inclined instead towards a second response, which is simply to insist that unproven agents have a right to the benefit of the doubt in virtue of their mere agency, quite regardless of whether their future actions are determined. That is, their mere agency makes us owe it to them to treat their future actions as being “up to them,” at least in the sense that we do not prejudge these actions in the way we treat their authors. Conceding a point to the critic, I acknowledge that if (in some remote future perhaps) we were able to predict people’s actions to a much greater extent than is currently possible, such an attitude might be difficult to sustain. But that does not mean that we ought not try to sustain it. To be sure, if we reject the dispositional strategy for the reasons I have given, we are left with the question of what to make of the intuition in its support, that I have confessed to sharing in some degree, that people can lack at least some rights in virtue of their dispositions alone. While I cannot pause to investigate this matter in any detail, I should at least suggest one possible explanation of the intuition. This is that we tend to think of possible actions in the way we think of possible events of other kinds, or prospects. In particular, we tend to think of the value or moral significance of a certain (probability 1) prospect of some event as identical with those of that event itself. Thus, a certain prospect of being punched on the nose tomorrow is just as bad as the nose punch itself. Thus we may perhaps be led to take a somewhat analogous view of the way actions affect a person’s value (and thus rights), holding that the moral consequences of a certain prospect of an action, meaning a very strong disposition, are the same as those of the completed action itself. It is essential to the intuition that the disposition is very strong: it has to be more or less certain that the person will act in the specified way in a situation of the specified kind. If it is merely very probable but not certain that he will so act, we will still fairly unproblematically treat his action as “up to him,” and so his right as still present, or at least give him the benefit of the doubt. In any case, though, this assimilation of actions to other events is unwarranted. It overlooks the fact that actions are the product of agency, and therefore the respect that is due agency, as outlined in the last paragraph. Summing up this discussion, there is good reason to doubt both that the dispositional strategy is preferable to EBR and that the intuitions behind it create any insuperable obstacle to the idea of a right to the benefit of the doubt.

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209

The Value of Violations vs. the Value of Other Actions

After this digression about the dispositional strategy, it is time to return to the problems for EBR I listed at the outset. As I have formulated that doctrine, it says that our rights depend exclusively on whether we violate or respect rights, not on whether we act rightly or wrongly in other ways. Offhand, though, that is not correct. It seems that we can be punished for wrongful deeds that are not right violations, and also that we can be forcibly prevented from committing such actions. Back in 2.1 I raised, but did not answer, the question of whether all requirements (in the technical sense of enforceable reasons to act) are also obligations. The answer does seem negative. It is now time to consider this issue. I will proceed as follows. First I reject a simple way of explaining away the apparent need for broadening the ground of rights beyond right violations and respectings that would leave EBR unaffected. After that I will present a general argument in favor of the original formulation of EBR, and thus in favor of restricting the relevant value makers to actions that violate or respect rights. Bearing that argument in mind, I take a closer look at a representative case in which it seems tempting to broaden the ground and ask whether we can make sense of right loss in this case in a way compatible with EBR. My conclusion is that there is some reason for thinking that such a broadening is possible, but I cannot pursue this question in the depth it requires. First, then, one could try to make short work of the objection by appealing to the notion of desert. We might claim that if I act in accordance with my first-order reasons, or at any rate if I do so to a sufficient degree, my actions may affect the first-order reasons others have vis-à-vis me. These are cases of desert. By contrast, it could be held, the degree to which I respect the authority or power of others, including the degree to which I comply with those second-order reasons I have in virtue of their exercising their authority, affects both the first-order reasons others have in regard to me and my own authority—though only the latter of these effects is central to EBR. However, such an appeal to desert is unsatisfactory in the present context, for it is uncomfortable at best to have to acknowledge that a person deserves some harmful treatment yet retains his right not to suffer it. There is also a noteworthy argument for denying that my conformity and non-conformity with first-order reasons could affect my authority.11 It goes along the following lines. To begin with, insofar as my compliance with my first-order reasons makes a difference to how others have reason to treat me, it must be my compliance with the balance of reasons that matters. In other words, it matters whether I act well or badly overall. Second, it matters precisely whether I act well or badly (or rightly or wrongly, perhaps). The balance of reasons relative to my action has a polarity

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(pro or con). Hence, insofar as my actions alter other people’s reasons to act towards me, these changes must, on pain of arbitrariness, reflect this polarity of the balance of reasons. The notion of desert does just that. As we say, if you do good you deserve good, and if you do bad you deserve bad (meaning “good for you” and “bad for you,” respectively). There is, then, a certain symmetry between the value of the action and that of its deserved consequence. However, that symmetry is missing when we turn to right loss. For such a loss does not have polarity. The effect for the wrongdoer is that he loses a power he used to have. This loss does not itself amount to a reason for anyone to treat him badly. (By the same token, while EBR allows that agents can acquire rights by “proving themselves”—see section 4—this acquisition does not amount to a new reason for others to treat the person well.) Hence there is at least something odd about the suggestion that failure to comply with the balance of first-order reasons can occasion a loss of rights. What is more, and as I have noted several times, a right violation is not itself necessarily a “bad” action in the relevant sense (i.e., it need not go against the balance of first-order reasons)—and even if it is, that is not what makes it into a violation. So there is nothing there to be symmetrical with in the first place. Rather, when a person violates a right, he fails to heed another’s authority or power. He acts as if that power did not exist, and it is precisely this aspect of his action that makes him lose his own power. There is nothing parallel to that in the mere acting against the balance of (first-order) reasons.12 If we are impressed with this argument—and I am, at least to some extent—we face two options. The first is to look for a way of accommodating the apparent need to broaden the ground of rights to actions beyond right violations and right respectings within EBR as currently formulated; the second is to modify EBR somehow. I will now consider both possibilities. In so doing I will, for concreteness, consider a specific case, involving preventive harming. In it a vandal threatens to blow up the Grand Canyon. Surely we are permitted to twist his arm if that is necessary and sufficient for stopping him?13 (We may grant that there is normally a right against arm twisting.) A fuller account would of course require attention to an array of different cases, so my discussion will remain incomplete. The first option amounts to locating some right which our vandal could plausibly be said to be violating. There are probably several possible candidates here, though I doubt that any of them will prove fully satisfactory. I will consider two. On the first of them, the vandal’s action involves a kind of usurpation or unjustified arrogation of a power to a single person, one that properly belongs to all, or at least some larger set of persons. “Who are you to decide what is to be done with this natural wonder?” the rest of us may ask in consternation. In this view of the case, the demolitionist is violating a right after all, namely the right of (certain) others to a say in making decisions of a particular kind. Perhaps

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we could say that the Grand Canyon belongs to the “domain of control” of a set of persons (that may or may not include the vandal). We might go further and describe the right in question as a kind of property right, but I am inclined to hold that it differs from such rights, at least as the latter are usually understood. For this right to a say plausibly presupposes that some considerable value is at stake—in this case that of the Grand Canyon. The same issue would not arise if the vandal merely threatened to snap a twig he found on the forest floor (at least if the forest in question is not property in the usual sense). By the same token, then, it may well be that no one is entitled to destroy the Grand Canyon, including the entire set of people who supposedly have it in their joint “domain of control.”14 Is this proposal compatible with EBR? It might be held that it is not, for the reason just stated, namely that it implies that the value of something other than the right holder(s) (and indeed something other than a person), namely the Grand Canyon, will enter essentially into the ground of a right. However, while that much is true enough, it is also true that the right involved, if it indeed exists (and I leave that question open), is not plausibly understood as basic and general, and hence EBR does not in any case apply to it: it is too concrete for that. If there is a basic, general right involved here, it would have to be a right to a say in what to do with (sufficiently?) valuable objects that are not the property of any individual or set of individuals. No particular valuable object helps ground that right; after all, it would presumably exist even in (bleak) circumstance in which no such objects exist. A more pressing worry may be that there is no way of arriving at the purported general right within EBR. After all, the rights that doctrine recognizes are precisely those of the agency view, and specifically those canvassed in Chapter 6. Could this right to a “say” over the use of valuable objects be derived from that sparse set of rights? In any case the proposal at hand may seem objectionably “anthropocentric.” If we use force to prevent the vandal from destroying the Grand Canyon it does not seem that we are acting to protect ourselves or out of a sense that he is threatening to wrong us, or at least not primarily. It seems that we are acting to protect the Grand Canyon itself. And even if we do prefer an anthropocentric view of the case, and hold that the Grand Canyon matters only because of the way it affects human beings, it is not obvious that we need countenance any right to be thus affected. (It is a fair question, though, whether twisting the vandal’s arm really is justified on such a view.) A second proposal is due to Wellman (2013), designed specifically to deal with the practice of punishing people for mala prohibita offenses (i.e. offenses that are not in themselves wrong, independently of being criminalized). (Wellman does not discuss preventive harm.) Wellman holds that “one remains morally immune to punishment as long as one acts permissibly, where the bounds of permissibility are set by the rights of others” (p. 84), but also that one forfeits one’s right not to suffer

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punishment if one does act impermissibly.15 He holds that it is sometimes permissible for states to punish mala prohibita offenses, such as speeding (in circumstances in which one does not jeopardize others’ safety), and the reason for this is that persons owe it to their “compatriots” to obey the law (‘compatriots’ here referring to others bound by the law in question), because they would otherwise be “unfair” to these compatriots. Specifically, we all owe it to our fellows to “do [our] fair share to contribute to the benefits that these [mala prohibita] laws provide,” and so our failure to do so typically amounts to a right violation (p. 87). Also, the obligation to obey the law is limited to just laws (p. 88). This is an interesting proposal, that may do a better job than the preceding one in accounting for our intuitions in certain cases—though it applies only to illegal actions, and not to legal but clearly wrongful actions (that perhaps ought to be illegal), or in the state of nature.16 It is less clear if it is compatible with EBR: that depends on whether the right to fair treatment supposedly violated by mala prohibita offenses is defensible on the agency view, and thus indirectly on EBR. Also, questions remain about the nature of the purported obligation violated by mala prohibita offenses. The idea that such a “fair-share” obligation is violated makes eminent sense in a certain range of cases, involving shirking of shared burdens. Tax cheating and draft dodging are familiar examples. But surely most of us do not react to non-risk-imposing speeders the way we do to such shirkers. In what way does a mere act of speeding itself impose an extra burden on the rest of us? It might, if it became generally known, as it could then incite others to act likewise, even in circumstances when the risk to others is greater; the rest of us would then have to shoulder a greater burden in preventing that outcome. But the act seems punishable even if it does not become generally known. And it does not seem to be true quite generally that any act that shifts the burden in the way described is a punishable right violation. For one thing, the act of telling others that one has speeded when one has in fact not done so could have effects very similar to those of actual speeding. Hopefully, Wellman will develop his proposal further and provide answers to these and other questions. The second option I mentioned amounts to modifying EBR so that it allows that the vandal in our example lacks a right against having his arm twisted, on account of his wrongdoing, even though he violates no right. At the same time, it must allow that not just any wrongful act has this consequence (remember the “right to do wrong” from 10.4). Apparently, the wrongdoing involved must be sufficiently bad for the consequence to follow. (I see badness, but not wrongness, as a matter of degree.) Identifying what counts as “sufficiently bad” here is very difficult, as it no doubt always is, and to do so independently of intuitions about right loss is presumably harder still. I have nothing particularly enlightening to say on the matter.

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A further question is how this second strategy responds to the argument outlined earlier for holding that only right violations can make a person lose rights? (The first strategy has no difficulty here, of course, as it is in line with EBR—if whatever right it ends up relying on indeed exists.) A proposal with some promise here is that an agent is guilty of an abuse of his authority whenever he uses it to “protect” his own wrongdoing, whether or not the latter amounts to a right violation (though, again, it has to be “sufficiently bad”). That might be true of the vandal, for instance, when he demands that others not twist his arm when that is necessary for preventing him from blowing up the Grand Canyon. If this type of response could be made to work, it could explain why the wrongdoer loses his authority, as opposed to simply coming to deserve some bad treatment; after all, as it is precisely his own authority he is abusing, it makes some sense to suppose that he would lose it as a consequence of that abuse. There is also a difference from the appeal to “selfishness” in Chapter 8—remember the fellow who refuses to have his finger broken even though that is necessary for saving several lives—in that the person’s own wrongdoing is an essential part of the explanation of his lacking authority he would otherwise have. (By contrast, the fellow with the finger is an innocent bystander—though his refusal to have his finger broken is presumably itself blameworthy.) This proposal in terms of “abuse” of agency clearly involves a modification of EBR as stated earlier, but not a radical one. In saying this, I assume that it remains a version of the value view, or could at least be understood thus. Consequently, any (sufficiently bad) abuse of agency affects the agent’s value (and thus his rights)—just as, on EBR as described previously, a failure to respect another’s authority has that effect. To be explicit, the modified version of EBR runs as follows: EBR*. Each right of a person is a value belonging to him because, and only because, of his abuses and non-abuses of his agency. EBR* has the advantage over the original EBR of fitting our intuitions about cases, such as that of the Grand Canyon vandal, better. Theoretically, the original has the advantage of not having to worry about what counts as “sufficiently bad.” Further, both seem to fit well enough with the rationale for EBR I offered at the end of section 1. However, EBR* does not fit with another rationale for EBR, which I have thus far not mentioned. Let me consider it now. This is that right loss could also be understood as a response to the right holder’s (or patient’s) value, rather than as something called for by the obligation bearer’s (or agent’s) value, along the lines outlined at the end of section 1. The general idea is that if we do not let our treatment of a certain person reflect how he in turn has treated others, we fail to properly recognize the value of these others. More precisely there are two

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claims one could make here. The first, and more general one, is that the way a person treats other persons (and indeed other valuable things generally) affects our reasons for action with respect to him—and not just our reasons for adopting reactive attitudes towards him, which I take to be relatively uncontentious. The second, and more specific one, is that right violations specifically give rise to right loss. The latter admittedly, and as I have just argued, does not amount to a change in one’s reasons for action with respect to the person in question, but it can affect what we are obligated to him to do. In line with my policy of limited ambition when it comes to defending right loss, I will not defend both of these claims, but as a compromise I will say something in support of the second, taking the first for granted. So, we should consider a case in which an agent A wrongs a patient P. It is then not simply that A failed to recognize the value of some object. P is a person with rights of his own, and hence has a special kind of value. In particular, as we have seen, his value qua right holder is peculiar in that it consists in his ability to create second-order reasons in others (his “authority”). It is precisely this value that A has disregarded. That is, he has treated P as if he lacks this authority constitutive of his status as a right holder. Now, suppose that our first-order reasons to treat A change when he wrongs P (as we have just granted for argument’s sake), but that A’s rights do not change. In particular, we may assume, this means that even if A’s wronging P means that A deserves some sort of punishment, he can still command us not to subject him to such treatment, and indeed does so. It could be argued that we do then recognize P’s value, as we do allow that there are first-order reasons for us to punish A, on account of his treatment of P, even if we are unfortunately morally prevented from acting on these reasons by A’s command. To be sure, there is something strange about such a situation on anyone’s view (as noted earlier), but even that apart it is noteworthy that we have failed to recognize P’s special value, the one that mere objects do not have. In other words, we fail to recognize that A wronged him and did not merely act wrongly or badly— in the sense that this fact of the situation makes no difference to what we ultimately ought to do. The normative consequence of this wronging (and remember that we are now assuming that there is one) could not simply be to add on more first-order reasons. Adding such reasons for treating A does not acknowledge that he has failed to recognize a value of a distinct type, understood in terms of second-order reasons rather than simply first-order ones. It does not follow that the normative consequence is the loss of A’s authority, but it does seem fitting. In the end I will leave the choice between the original EBR and the modified version EBR* undecided. I do not do so because I consider the choice unimportant—indeed, we have already seen that it makes a practical difference which of the two is correct—but rather because I am simply not confident about where the preponderance of the evidence lies.

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In this section I wish also to consider another way in which first-order reasons may be relevant to right loss. I have in effect presupposed that an offender can lose his right against imprisonment (or whatever) independently of whether there are first-order reasons for subjecting him to that treatment. As a consequence, if locking him up is wrong, that would have to be because there are stronger (first-order) reasons against doing so than there are for that action, and not because his right is violated. This view of the situation is controversial, however. Others hold that a loss of a right not to suffer some harm is contingent on there being reasons for imposing that harm. Different views are in turn possible, of course, about what reasons there are for harming a person, familiar from the debate over the justification of punishment. Most prominently there is disagreement over whether offenders’ desert yields such a reason. In any case, I will use the label ‘internalism’ for the view that reasons for treatment that a person would, absent earlier misconduct, have a right not to suffer are internal to his loss of that right.17 The position I have taken, by contrast, is naturally called “externalist.” Is internalism compatible with EBR? This question is reminiscent of the one we asked in 9.2, of whether the conditional-rights thesis is compatible with the agency view. The main difference is that the present proposal is not that the possession of rights is conditional on something, but rather that the loss of rights is so conditional. That difference is not deep, however. After all, a disabling condition on right loss is also an enabling condition on right possession.18 Drawing on the discussion in 9.2, we may note that compatibility depends on how we interpret EBR. To recall, my initial statement of that thesis was the following: EBR. The value constituted by persons’ rights belongs to them because, and only because, of their right-violating and right-respecting actions. In particular, compatibility depends on how we understand the ‘because of.’ If we understand that phrase in the weak sense that does not imply sufficiency, then we get a stronger interpretation of EBR which is not compatible with internalism. After all, the latter implies that whether a person retains his right depends not exclusively on his own actions but rather on the value of another agent’s action. (In the case of punishment, that other agent is typically the state.) On the other hand, if we understand ‘because of’ in the strong sense that does imply sufficiency, then we get a weaker interpretation of EBR which is compatible with internalism. Now, in 9.2 I did not come down clearly in favor of the strong interpretation, but let us suppose at least for the sake of argument that it is preferable. If so, we cannot reconcile EBR and internalism. Is that fact an embarrassment for EBR? That of course depends on how plausible internalism turns out to be. I am inclined to reject it, for two reasons. The first reason is that internalism is not only incompatible

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with EBR but also with the value view (provided it is also given the strong interpretation from 9.2). On that view, remember, a basic right is an ultimate value belonging to the right holder. That, again, is why loss of a basic right must also be accompanied by value loss. But another implication is that any factor having an impact on whether a person has a given basic right must also have an impact on his value. EBR complies with this demand. Internalism does not, however. Whether causing harm to a person will itself do good is not relevant to his own ultimate value. This reason for rejecting internalism is related to the one I offered in 3.1 for rejecting consequentialist accounts of rights. Here I obviously rely on a premise about ultimate value that could be questioned—just as one could question the analogous judgment underlying EBR (i.e., that a person’s actions affect his value). However, this value judgment as such does not seem particularly controversial. The second reason for rejecting internalism concerns its implications for cases in which harming a person who is a candidate for right loss in fact does no good. Some of these concern preventive harm, others punitive. In the latter a wrongdoer suffers punishment, or some other form of hard treatment, in circumstances in which that treatment does not (or is not expected to) lead to any significant benefit. In the former, a victim uses violent force against a culpable aggressor even though he is powerless to save himself. (Such an action falls foul of the so-called “success” condition on legitimate self-defense.) Cases of these two kinds are the clearest in which internalists and their opponents part company: internalists hold that the offender has been wronged while externalists disagree. What should we say about them? To begin with, it should be conceded that it is far from clear that there is any genuine conflict. This is because it is always possible to argue that actions of the problematic types do some good. In particular, it could be held that punishing wrongdoers at least gives them what they deserve, and that “hopeless” self-defense protects the victim’s honor.19 If these claims can be made good, it may be open to the internalist to maintain that the relevant treatments do not wrong the offender or the aggressor, respectively. The contrast between internalism and externalism will then be less stark, and perhaps disappears altogether.20 Even having made these concessions, however, it remains unclear whether the victim of “pointless suffering” in the example is wronged, even if we grant that it is wrong to treat him that way. There is no need here to take a stand on that latter issue. Admittedly it is not obvious how to decide whether this is a case of wronging the offender, as opposed to simply acting wrongly.21 One big problem, at least in the punishment case, is to factor out desert. That is, even if we have granted that offenders do not deserve punishment, it might be hard to free oneself from the thought that they do (provided one shares it in the first place, of course), and so one’s sense that the offender is not wronged could still be explained by one’s tacit acceptance of internalism. That major caveat noted, though,

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we can at least identify one relevant argument, in terms of compensation. Presumably, if the offender’s “pointless” punishment wrongs him, then he is entitled to compensation, but not otherwise. My sense is that if all the other requirements concerning punishment are met, there is no call for compensation in this case. If so, there was no wronging in the first place.22

4.

Is Right Loss Permanent?

At first blush, right loss is not permanent. Suppose it is true that a crime makes you lose the right not to suffer a certain treatment (as punishment, presumably) and that you then do suffer that treatment. For instance, suppose you serve a term of imprisonment. Then after you are released, your right not to be imprisoned has presumably returned. The value view then seems to imply that your value is back to where it was before your wrongful act. But what explains that?23 I hold that there is nothing to explain because right loss is permanent: once lost, a right does not return. If that seems absurd, it is because we employ an erroneous conception of rights, and so of right loss. Let me explain. The first thing we have to remember is that to have a right is to have authority, or the power to command others by creating secondorder reasons to set aside competing first-order reasons. EBR, or at least the version of the theory outlined in section 1, implies that agents do not have this power by default, but rather acquire it by “proving themselves,” but for the moment we can ignore this complication. (We will return to it later in this section.) What matters now is that we are clear about precisely what a person acquires when he acquires the power (or what he has by default, for that matter, if such is indeed the situation). What a right holder acquires or starts out with is the ability to command others, in a certain respect, at all times—though subject to some restrictions, as outlined in Chapter 8, which we can ignore here. This power could be understood as an ability to make commands that apply to any future time (“Don’t punch me on the nose, ever”). By the same token, everyone else acquires an obligation to obey that command at all times (or for the duration specified). We must be clear over what this means. The ground of a person’s rights, whether that is agency itself or his past actions, determines in the first place what he can claim over his life as a whole, and only indirectly what he can claim at a given time. This fact has implications for right loss. The mistake to be avoided is to think of right loss in the following way. At some time the person has certain right-grounding, and value-grounding, properties in virtue of which he has certain rights at that time. Then he violates a right and his right-grounding properties change, and his value reduces. After that he does not have quite the same rights as he had before. But then after he has suffered his deserved punishment his right-grounding properties return, as does his value and his rights. But if that picture is

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mistaken, as it surely is, then what does happen when a person loses his right because of some violation? Well, this much is true: he suffers a reduction in his authority. But what kind of reduction? The answer is that if prior to the violation he had the ability to command others to refrain from certain actions at all times—that is, a command that applies to his life as a whole—he now has the ability to command them to do so at all times but with one or more exceptions. The exact nature and number of the exceptions depend on the gravity of the violation, but also on whether the reciprocity or overall-violation interpretation of EBR from 10.2 turns out to be correct (more about that presently). Supposing, for simplicity, that there is just one exception, the result is that we (or one of us) can ignore his command on one occasion without infringing his right, but after that he is back in the saddle again. Now, to repeat, what I have been saying previously amounts to acknowledging that right loss is permanent after all, but that this permanence will not seem so implausible once one realizes the content of rights. That is, once I have lost my right never to be punched on the nose and it is replaced with the right not to be punched more than once, I never regain the former right. However, after I have suffered the first punch after the loss of my right it is just as true of me as it is of someone who has never violated that I have a right not to suffer an additional punch. After all, that additional punch would violate my right not to suffer more than one punch in my life overall, the right I still have. That is why permanence of right loss is not as implausible as it might seem at first. It is also possible to look at the matter from the point of view of obligation holders. Then the result in practice of the right loss is that the rest of us move from a situation in which we are collectively obligated at all times to obey the person’s relevant commands to one in which we are collectively obligated to do so at all times except one. Describing the situation in yet another way, we could say that the wrongdoer starts out with a right against all not to, say, be punched on the nose even once, and then his violation moves him to a state in which he can claim not to be punched on the nose more than once. This right is different from the one he possessed initially. I have argued that right loss is not victim relative. That is, the loss of authority is not simply a loss of authority over one person, but rather over all persons. It is precisely this feature of right loss that makes it necessary to talk of obligations held collectively, and so of rights held against collectives, as I just did. These “collective obligations” are not here to be understood as obligations to act collectively in any substantive sense. Rather, to ascribe such an obligation to a collective is to say that what one member of the collective is obligated to the right holder to do will depend on what other members have done. However, the notion of a collective obligation (or a right against a collective) comes into the picture here only derivatively. The fundamental notion is that of a (non-person-relative)

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loss of authority. By contrast, if I am mistaken and right loss is victim relative, things are simpler. There is then no need to speak of “collective obligations.” We then have to imagine that the wrongdoer starts out with unlimited authority over his victim, with respect to some type of conduct, and that the violation means the imposition of an exception to that person-relative authority. The victim, but no one else, is then at liberty to ignore the wrongdoer’s commands with respect to the relevant type of conduct on one or more occasions. I concede that matters become more complicated if the “overall-violation” interpretation from 10.2 is correct, as I am inclined to believe. The picture I have drawn previously is naturally seen as presupposing something like the reciprocity interpretation also discussed in that earlier section. However, that picture can be modified to fit the overall-violation interpretation. And here we need to rehearse what I said in 10.2 about how wrongdoing results in the loss of “generic” rights. Recall, if the overall-violation interpretation holds, a given violation does not lead to the loss of the wrongdoer’s ability to issue a “life-overall” command with a specified content (such as a ban on nose punching). Rather, it leads instead to the loss of his ability to issue a set of commands such that the aggregate strength of another’s reasons for not ignoring these commands, valid or not, is no greater than the wrongdoer’s reason not to commit the original violation. We might say, if we want, that the person starts out with a “generic right” to a life free from all right violations (meaning all actions of certain specified kinds), but that his violations lead to that right’s being replaced with another one, to the effect that the total of such “banned” actions not exceed a certain aggregate level of severity. We must now confront an obvious worry, namely that the view of right loss I have described rests on a conception of rights which is itself ad hoc. If, like a proponent of the agency view, we did not believe in right loss in the first place, the charge runs, we would have no reason to accept the view described. Indeed the very naturalness of the alternative view of right loss just dismissed, according to which such a loss takes the form of a temporary reduction in the right holder’s authority, if not his value, by itself reflects the naturalness of a view of right possession different from the one I have embraced. On that other view, again, a person has certain (basic) rights at a given time because he has certain right-grounding, and value-grounding, properties at that time. That is why he could lose rights only if, and only for as long as, these properties are somehow altered. I could respond to this objection by simply reaffirming that right loss is a fact of life, and that our task as philosophers is therefore to come up with an account of right possession that can also make sense of right loss. Therefore what I have already done is really all that can reasonably be expected of me. While this is a possible response, I concede that it is not entirely satisfactory. Fortunately, though, there is more to say. What we want to explain is why the properties of a person that ground his right

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determine in the first instance what he can claim over his life as a whole, and only secondarily what he can claim at a given time. I note, then, that there is an answer to that question that in no way presupposes the possibility of right loss, and should be perfectly acceptable to proponents of the agency view. For I have already stressed that, in this view, rights belong to a person because he has “his own life to live” (see 4.3). In stating that thesis earlier, I stressed ‘own’; here I stress ‘life.’ It is not true that a person who, at a given time, has rights in virtue of his agency has them simply in virtue of what is true of him at that time. Rather, he has these rights in virtue of something that is true of him throughout his life, namely that he has his own life to live. That is why his agency yields, in the first instance, as I put it earlier, the ability to make commands that apply to his life as a whole. But is that answer also available if we make the move from the agency view to EBR? On the latter view, the ground of a person’s rights does change with time. At a given time that ground is how he has conducted himself, with respect to other people’s rights, up to that time. The ground of his rights is not that he has his own life to live, but rather that he has lived that life, until now, in this way rather than that. However, it remains true that the ground of his rights is historical, not simply a fact about the right holder at the time he has the right. This should be enough to yield the view of rights that I have described in this section. It is now high time to address an important matter left aside earlier (in 10.2). I said that an interpretation of EBR must consist of three interrelated components. It must tell us the following, with respect to a given right R: (a) what grounds R; (b) what it takes to acquire R—given that we do not have it automatically simply in virtue of being agents; (c) what it takes to lose R. However, I postponed discussion of component (b) because it raises difficult issues that must be dealt with first. Having dealt with these issues, partly in section 1 and partly in this one, I can now complete the task. The question we must answer, then, is this: what does it take to “prove oneself” and acquire genuine rights, rather than mere “as-if” rights? There are actually two questions here. (i) Which right(s) must a person respect in order to acquire a given right? (ii) To what extent must he respect the former in order to gain the latter? Answers to question (i) correspond to the two interpretations of EBR discussed in 10.2. In particular, accounts of component (b) should match those of component (c): what it takes to acquire a right should correspond to what it takes to lose it. Applying that idea to the reciprocity interpretation, we get the following result: by respecting a given right one acquires that right, but not any others. Then “proving oneself” is relative to a given type of right. This is an account of component (b) that parallels the one about component (c) to which the reciprocity interpretation is committed. While the one perhaps does not strictly speaking entail the other, the step between them

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is natural enough: if I can only acquire a right by respecting just that right in others, why should I be able to lose it by infringing some other right, and conversely? By contrast, the overall-violation interpretation would have to say that respecting any right is relevant to acquiring any right. (Many intermediate answers are of course possible.) However, it is less clear how to answer question (ii). As I have found the overall-violation interpretation to be more plausible as far as component (c) is concerned, I will focus on it (though I will say a little about the reciprocity interpretation also). In the first place, then, we may start by recalling what, according to the overall-violation interpretation, grounds rights (that is, component [a]): the agent’s rights are collectively grounded in the totality of his right-respecting and right-violating actions up to the present moment. While no answer to question (ii) follows directly from that formulation, something like the following may seem natural: at any given time one has a set of rights the collective strength of which corresponds to the collective strength of all the obligations one has respected up to that time. That formulation is, obviously, totally inadequate. It is highly indeterminate, for it does not say anything about precisely which rights one has acquired in any given situation. And to the extent that it is determinate, it seems much too onerous. Insofar as we have a clear idea at all about what it takes to “prove oneself,” it is much looser and more generous than that. As a first approximation, at any rate, we might try saying something like this: a person who has had many opportunities to violate a wide variety of rights but has consistently refused to take them does have the full complement of rights (as described in Chapter 6), without exceptions—and if he has on occasion violated some rights, he will have the full complement with exceptions, as described earlier. And, to repeat, in order for him to possess a given right, it is not necessary that he has had the opportunity to respect just that right. Rather, the question we need to answer now is this: given some such set of rights, is it possible to offer a rationale for the account just suggested? In effect, then, we need to say something non-arbitrary about what counts as “many opportunities” and a “wide variety of rights,” respectively. The following answer is attractive. An agent has “proven himself” once he has shown that he is a reliable right-respecter, meaning that he proves that he has certain dispositions. Eventually he gets to a point where further decisions to respect, rather than violate, rights do not add appreciably to the picture of him as just such a reliable right-respecter. Clearly that point is not simply arbitrary. However, there can be no sharp limit between “proven” and “unproven” agents. It is not as if one moves immediately from the ranks of the unproven to those of the proven on the one hundredth time one refrains from infringing a right or suchlike. So some persons will find themselves in a gray area: it will simply be indeterminate whether they have proven themselves. But clearly such persons should be

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able to claim whatever unproven agents can claim, so they do not obviously create an additional difficulty. The most glaring problem with this proposal, as part of an interpretation of EBR, is that it seems to turn that view into a version of the dispositional strategy discussed in section 2. After all, surely being a “reliable right-respecter” is a kind of complex dispositional state.24 It is possible to avoid this implication by interpreting the previous proposal as saying that what makes a person have rights is strictly speaking not the disposition (i.e., being a reliable right-respecter), but rather precisely his having done enough to make it reasonable to presume that he has the disposition, even if in fact he does not. This situation is reminiscent of Rodin’s “hardened heart” case discussed in section 2. As I noted there, past actions seem to be more important to a person’s rights in such a case than his present disposition. There is also another, less obvious, problem with this proposal in terms of showing oneself to be a “reliable right-respecter.” To see it, we must remember exactly what a person is supposed to acquire by proving himself. As outlined previously in this section, it is the ability to command others not to subject one to certain treatments ever. (One may also acquire the ability to command others to benefit one in certain ways. I will address this possibility shortly.) That is, each right one acquires is the right not to suffer the relevant treatment ever. This fact matches the general idea of there being a kind of “sufficiency point,” for what one attains to in reaching that point is, in a way, a state of moral perfection. It is as good as it gets. After all, one could have no stronger or more extensive ability than to command others not to act in the relevant way ever. Further, each violation lowers the highest attainable point to some extent. Thus, if the sufficiency point corresponds to a set of rights not to suffer a certain treatment ever, then it is simply impossible to get there once one has violated. The most you can hope for then is to have the right not to suffer the treatment more than once.25 Nor does it make sense to suppose that one could “compensate for” earlier violations by future respectings, for the loss to one’s authority cannot be undone. The problem, though, is that if “proving oneself” amounts to showing that one is a reliable right-respecter, then surely such compensation is possible. After all, after one or perhaps more violations, one could put together a sufficiently long unbroken string of respectings that would once again “prove” (to whatever extent possible) that one can be trusted to respect rights—at any rate if this “proving” amounts simply to making it sufficiently probable that one will respect rights in the future. The conclusion to draw here, I believe, is that showing that one is a reliable right-respecter is necessary but not sufficient for “proving oneself” in the relevant sense. Further, if “proving oneself” is in turn supposed to be sufficient for attaining the state of “moral perfection,” as I have implicitly presupposed, it is clear enough what else is needed (in addition to having

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shown oneself to be reliable right-respecter): namely that one has not violated any right. That is, by violating any right one “proves oneself” negatively. Then one ceases to be unproven and acquires “full-blown” rights, with an exception answering to one’s violation. If the picture just drawn seems extreme, a compromise position is possible. It amounts to accepting something like the reciprocity view for component (b), right acquisition, and the overall-violation interpretation for component (c), right loss. On this compromise view, we hold that agents have to prove themselves not as reliable right-respecters in general but rather as respecters of this or that (general) right. It allows us to say that a person who has violated one right may retain his unproven status with respect to other rights. To be sure, we would then also have to allow that in these cases the violation of a right could only lead to the loss of that same right, and so we would have to accept the reciprocity interpretation also for right loss (component [c]), in the special case of unproven agents—but not for other agents. I have already explained, in 10.2, why I am uncomfortable with the reciprocity view as an account of component (c). I will here leave undecided the question of whether the gain the compromise position yields—that we can deny that a person becomes a “proven violator” in general and so loses his “unproven” status and his right to the benefit of the doubt by a single violation—is worth the awkwardness it also entails. Let me end this discussion of right acquisition by returning briefly to positive rights. I have already noted (in section 2) the intuition that such rights hold in virtue of mere dispositions, and also the possible reply that we must keep apart genuine rights and mere reasons of reciprocity. Assuming, at least for the sake of this discussion, that mere dispositions are insufficient for acquiring positive rights, the question arises of whether compliance with positive obligations is necessary, or whether simply compliance with negative obligations, refraining from harming others, is sufficient. As noted in 10.2, the overall-violation interpretation, as applied to component (c), right loss, allows that it is possible to lose negative rights in virtue of having violated positive ones. However, while that implication has some plausibility, the “reverse” type of effect (i.e., that mere compliance with negative obligations yields positive rights) seems less appealing generally. But why is that? In answer, we begin with the familiar point that complying with positive obligations is more or less costly for the agent. There is then some plausibility to the thought that one acquires positive rights precisely by willingly taking on such costs, and that one does more to acquire such rights, other things equal, by taking on greater costs, at least as long as they are necessary for achieving the end. (The same is true, of course, of reasons of reciprocity.) Now, complying with negative obligations can also be costly—e.g., letting you keep your kidney could cost me my life—and possibly the degree of sacrifice one makes in complying with

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such rights could also affect which rights one has. For now, though, the central point to note is that given that positive rights, if they indeed exist, are less important generally than negative rights—and in particular that a negative right against suffering some particular harm is stronger than any positive right to be saved from such harm—making a given sacrifice to comply with a negative right should not count for as much as making the same sacrifice to comply with the corresponding positive right. The latter is, after all, less important, and so it seems to be more “to one’s credit” that one makes a given sacrifice to comply with it. This answer may admittedly be incomplete, for it arguably does not tell us why no compliance with negative rights can make one “prove oneself” with respect to positive ones. On the other hand, it is not obvious that there is any such impossibility.

5.

Right Loss and Value Loss

I have already noted (in 3.3B) that many will find it hard to accept that wrongdoing will cause a loss of the wrongdoer’s value, even if they are willing to accept that he suffers some right loss. That is no doubt why the idea of conditional rights retains its appeal. As I have also made clear, the thesis that right loss is accompanied by value loss, characteristic of EBR, is an ineluctable consequence of the value view. As I will not abandon the latter, I have a problem. Why do people find the idea that right loss implies value loss so hard to swallow? I surmise that it is because they make, more or less tacitly, one or both of two assumptions. The first is that reduction of a person’s value must correspond to a reduction in the strength of (all?) first-order reasons others have to act in that person’s favor (vaguely speaking). This idea may stem from an analogy with the value of other types of things, such as artworks (to recycle my standard example). Thus, if an artwork loses some of its value (perhaps it suffers some irreparable damage), then all the reasons we have to take various “pro-attitudes” towards it presumably weaken. It should be plain from the account of right loss I have offered that this patently unattractive prospect by no means follows from the very idea of right loss itself. On that view, remember, a right loss amounts to the loss of a person’s authority to command others to act in a certain way, but it does not by itself affect the first-order reasons for or against such an action. This fact does not preclude us from talking about a loss of value. But we have to remember that it is a rather special loss of value. It is not essentially concerned with whether it is “a good thing” that the person exists or enjoys a given level of well-being, but instead with the rather different question of whether the person has the authority to command others to refrain from harming him, or aiding him. In this way, again, the value of persons differs from that of all other objects. It is a difference in kind and not a difference in degree, marked

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by the distinction between reasons of different orders (which is also a difference in kind). The second idea is that a reduction in value amounts to a corresponding loss of all rights a person has—or at least to a reduction of their strength. However, and even setting aside the question of whether rights have strength, it should be clear that the account of right loss defended in the previous section in response to the problem of the supposed impermanence of right loss also shows that EBR does not have the unacceptable implication I have just described. For while it remains true that a person’s right loss is accompanied by value loss, and that both are permanent, neither loss implies a permanent and across-the-board change in other people’s obligations against that person. The loss just means that, say, one nose punch that he would otherwise have been able to forbid now falls outside his domain of control. Or, more simply put, one nose punch that would otherwise have wronged him now does not. It does not follow that any other action that would otherwise have wronged him, or that it would have been within his power to forbid, would not wrong him or would fall outside his domain of control. It should be clear, then, that the two worries about EBR addressed in this section and the last are really versions of the same worry. They are both concerned with the need to limit the effects of wrongdoing on the wrongdoer’s rights. To illustrate the point, consider the case of a person who has lost his right not to suffer a year in prison. What we have just seen is that once he has served that one term, he has a right not to suffer additional terms (or so we may assume—his punishment was just right). By the same token, though, he should also retain (many of his) other rights. If he could complain at being made to serve an additional prison term, he could also complain at, say, being beaten during his (single) term. More generally, if he has lost his right not to be imprisoned for one year, or not to suffer that or any comparable treatment, and he does suffer that treatment, EBR implies that any ill-treatment of him—treatment that would normally constitute right infringements—does infringe his rights. There is no wholesale “devaluation” of the person of the kind that might initially seem to follow once we abandon the safe harbor of the agency view. One consequence of this is that the question of whether persons have equal value or not is less important than it has generally been taken to be. The question of equal value seems central if we assume, implicitly or explicitly, that what a person can claim, in general, at any given time is a function of his value at that time. As we have seen, that assumption is unwarranted. Once we acquire a better account of the connection between a person’s value and his rights, we can see that the implications of differences in value are not so radical. We should also consider the case of right acquisition, and so the value of the unproven agent. If proving oneself amounts to acquiring “full-fledged”

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rights that one did not previously have, does that also amount to an increase in value? Offhand that is not an enticing proposition, nor does EBR on closer consideration give much support to it. After all, if there is indeed a difference in value between an unproven agent and an agent who has been tested and passed, it consists in a rather subtle difference in other people’s reasons vis à vis the two: on the one hand reasons for respecting the person’s authority, on the other reasons for treating him as if he had authority. There seems little point to saying that one has greater value than the other. Let me end this discussion of right loss and value by reminding the reader of some things I said back in Chapter 9. These reminders are necessary because it will likely seem to some readers that the notion of value loss could be avoided. However, the relevant strategies here are precisely those I identified in Chapter 9 for reconciling right loss with the agency view, and suffer from the same weaknesses. In the first place, and as I noted in 9.2, it is a mistake to believe that we can avoid commitment to value loss by combining the value view with the idea of conditional rights. Again, a conditional right is not a kind of right that a person possesses all the time. It would be more accurate to say that a person has whatever right is involved conditionally.26 The second strategy for combining the value view and right loss without value loss is that of identifying the agent’s value not with the substantive rights he stands to lose, but rather with some more general right that he could not lose. In 9.3 I discussed a pair of such strategies. I will not repeat that discussion here. Instead I wish to make a more general comment. It may be possible to identify some formal right which cannot be lost (see the next section), even though more specific substantive rights can be lost, but there seems to be little point to such a strategy beyond the desire to deny value loss. And if the consequences of value loss are not as dramatic as has often been thought—and in particular if they do not go beyond the fact of right loss which we are now in any case taking as common ground—why bother? That question cuts both ways, I suppose. If the consequences of value loss are undramatic, why insist upon it? Indeed, we might take a step further here and suggest that there is a certain arbitrariness in how we assign value to persons, once we have conceded that the practical implications of the different assignments are the same. To illustrate my point, consider one formal right to which we could try appealing in order to account for right loss (or at least something like it). According to Scanlon-style contractualism, we are morally required to treat others only in accordance with principles they could not reasonably reject. One way of interpreting this proposal, if hardly Scanlon’s own, is that persons have a right to be thus treated.27 Further, this formal right could be combined with something like right loss if we add to it two further ideas. The first, which Scanlon apparently endorses, is that the reasonableness of a person’s rejecting a principle depends (if

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perhaps not exclusively) on how strong his reasons for rejecting it are compared with the reasons other persons have for rejecting alternative principles.28 The other, which Scanlon would presumably not endorse, is that the strength of a person’s reasons for rejecting a principle depends on how he has acted, and in particular that one has less reason for rejecting a principle that permits others to cause one a certain type of harm if one has oneself harmed others in that way (or similarly). I am not concerned with the strengths and weaknesses of this type of view. What matters is rather the following. While it is certainly possible to identify a person’s value qua person with the formal right just described (which would amount to a version of the agency view), and thereby avoid any commitment to value loss, it is not obvious what is gained (or lost) by taking such a stand, as opposed to saying instead that a person’s value varies with the strength of his reasons for rejection (which would lead to value loss for wrongdoers). One possible gain is that by identifying a person’s value with a formal, and inalienable, right we can account for the familiar idea that all persons, including wrongdoers, have a value qua persons that distinguishes them from non-persons, such as animals. As we have seen, though, EBR can allow for such a value, at least to an extent, namely with the idea of a right to the benefit of the doubt, which could only belong to an agent. But I should also add that we can make EBR accommodate this idea to a greater extent by shifting to the moderate version of that thesis—which is, as I have noted, a kind of compromise with the agency view. It will concern us in the next section. (There we will also consider the question of whether even radical EBR can be reconciled with “formal” inalienable rights.)

6.

Inalienability

The most common objection to the general idea of right loss is that certain rights cannot be lost at all. For the sake of convenience I will here use the label ‘inalienability’ for this phenomenon, mindful that this term is often used to exclude also the waivability of a right. (The latter will not concern us here, except in passing.) Even among those who countenance the inalienability thesis there is disagreement over exactly which rights cannot be lost. However, with a certain measure of simplification it is possible to identify three categories of rights that could, with varying degrees of plausibility, be assigned to this category. a.

Various formal rights, such as for instance the right to a fair trial, or perhaps some more general right to fair treatment, or some sort of right to be treated as responsible for one’s actions (if one is), or perhaps the “contractualist” right briefly discussed in the last section (to be treated only in accordance with principles one could not reasonably reject).

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b. Rights against treatment that is degrading or dehumanizing. Frequently mentioned examples includes rights against rape, torture, and mutilation, and also corporal punishment.29 c. The right to life. As far as the first category is concerned, it is admittedly not obvious how to offer a general and informative characterization of a “formal” right. Perhaps it is enough for our purposes to say, somewhat helpfully, that a formal right does not, as such, correspond to any first-order reason to do any specific action, but that such specific reasons can be derived from it given certain circumstances. Among these circumstances could be the fact that the right holder has acted in certain ways. It is not particularly controversial that at least some such formal rights are inalienable. As a consequence, EBR would be in trouble if it implied the opposite. Now, each proposed “formal” right would ultimately have to be considered separately, but some of them at least are clearly compatible with EBR. At bottom, some “formal” rights amount to little more than the demand that persons be treated appropriately in light of their value. This idea is obviously compatible with EBR or indeed with any version of the value view. Indeed, EBR allows us to say, if we want, that persons have an inalienable, and formal, right to appropriate treatment. Other “formal” rights might be harder to handle. I cannot address them all here, but I wish at least to say something about those involved in criminal trials (and so indirectly in punishment). To that end, let us return to the case of Jones discussed in 10.4 (in connection with reasons relativity). As the reader will recall, this character is guilty of theft but is “quarantined” for his political views for a period of time answering to the prison term he deserves for his crime. Modifying the original case somewhat, we may imagine that his “quarantine” is turned into a regular punishment for political dissent. If such treatment indeed wrongs him, that may be because some formal right of his is violated. There certainly does seem to be something unfair about the situation. If there is a right at stake here, it could be something like a right against false charges, which is plausibly inalienable. In punishing Jones, the state is conveying that it is legitimate to treat him that way simply because he is a dissenter, regardless of what else he may have done. Alternatively, we could appeal to a right to “due process.” One leading writer understands that notion as follows: “[Due process] aims to provide some assurance of nonarbitariness by requiring those who exercise authority to justify their intended actions in a public proceeding by adducing reasons of the appropriate sort and defending these against critical attacks.”30 Thus understood, this right might be taken to apply in our case because the reasons adduced in favor of the decision to confine Jones were not “of the appropriate sort”: again, it is not for these reasons that his right is lost.

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Could EBR accommodate these thoughts? We should first distinguish between two possible views about cases like the previous one. On the first, and stronger view, the confinement itself wrongs Jones, given that he is confined for the wrong reason. On the weaker view, only the false charge, or the violation of due process, wrongs Jones, but not the punishment itself (which, by hypothesis, he deserves on account of his unrelated theft). It should be clear that EBR will find it harder to account for the stronger view, at least given that it does not embrace reasons relativity. I am not particularly attracted to the stronger view and will therefore set it aside. The weaker view, however, seems quite plausible. We can make it compatible with EBR by interpreting that doctrine as follows: an offense—the theft in Jones’ case—affects the wrongdoer’s rights, and value, in a certain way, making him lose his right to a certain treatment. In particular, he loses the right against being charged with having committed precisely that offense. But he does not lose his right against being charged with having committed other offenses, of which he is in fact innocent. Again we rely on the idea of “appropriate treatment.”31 This treatment of the case of false charges plainly amounts to a deviation from the overall-violation interpretation of EBR, which I have favored earlier—a deviation that seems forced upon us on pain of absurdity. This fact in turn suggests that the right not to face false charges is different in kind from most rights, and so it should not be surprising if EBR does not fully account for it. There are issues in this area that need more consideration than I can offer here. But we can observe that there is something distinctly impersonal about the wrong involved in making false charges, as compared to most right violations.32 It is a violation of justice, and not just of a person’s right. This fact is also reflected in the oddness of a person’s waiving this right—which in turn suggests that something more than his right is at stake. One “formal”—or at any rate highly general—right is so prominent, even if it is not necessarily thought of in the form of a right, that it needs special attention. I have in mind the Kant-inspired idea of a right not to be treated as a mere means. However, this right tends to lead in the direction of the second of the three categories outlined previously (and so its status as “formal” is perhaps also questionable). After all, there is some connection, albeit an unclear one, between the idea of treating someone as a mere means and treating him in a way that is degrading or dehumanizing. To use someone as a “tool” is somehow unworthy of him as a person with ends and purposes of his own, and degrades him. Let us therefore turn to that second category We have to ask first what “degrading” (or “dehumanizing”) treatment involves. It might be useful to begin by contrasting this idea with the somewhat similar, but distinct, notion of reasons relativity, covered in 10.4 (i.e., the idea that persons lose their right to be treated in certain ways only for certain reasons and not others). The two differ in that

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treatments do not become degrading because of the reasons for imposing them. In 10.4. I discussed the case (due to Simmons (1991)) of a sadist who cuts a murderer’s throat just for fun. The point of this example, I take it, is not that throat cutting is itself necessarily degrading treatment (after all, Simmons himself allows that the murderer “deserves a painful death” [ibid. p. 339]). Rather, the point (which I contested) is that the murderer’s right is violated on account of the sadist’s deplorable motive.33 By contrast, surely a treatment can count as degrading with any of a wide array of reasons behind it. Yet some reasons for treating another in a certain way does seem an effective defense against the charge of degrading the other, as is clear if we consider cases of self-defense. In the unlikely event that my only means of saving my life against a vicious aggressor is to kill him in an extremely painful way, we would not (I think) call such treatment “degrading.” And if we are tempted to use that term, that may be because we doubt that the treatment is really necessary for saving my life. In any case, the inalienability thesis will not be particularly plausible if interpreted as applying also to cases of self-defense. In the previous example in which the defender must kill the aggressor in an extremely painful way or be killed himself, surely he may do so. Such an action would infringe no right of the aggressor’s. Therefore I will understand the thesis as qualified so as not to cover cases of defense, at least as long as the defender’s aim is simply to protect himself, or another, from harm. That would still allow us to brand all forms of punishment involving degrading treatment as right violations, no matter what the offender has done. We might want to go further, and assert that degrading treatment has to be intended, in the sense familiar from the so-called “principle of double effect.” That is, it could not simply be a foreseen consequence, or side effect, of some action with a different aim. I will not go that far, though, and hence will not rule out that degrading treatment could be a merely foreseen effect of an action. At the other extreme, one might denounce as violations all intentional impositions of harm, whether or not we would wish to describe them as “degrading,” which would effectively rule out punishment quite generally. Again, I do not aim in this book to defend the possibility of right loss in the punitive context generally, and therefore will not argue against this view—though I obviously reject it.34 I note only that for the inalienability thesis to be plausible (or at least command reasonably widespread agreement), it has to be restricted to apply to some fairly narrow class of possible punishments, the most obvious candidate being those identified, albeit vaguely, as belonging to category (b). Let us therefore understand the inalienability thesis, as applied to category (b), in the restricted way just suggested: the right not to suffer degrading or dehumanizing treatment cannot be lost. Yet this thesis is still clearly too imprecise to evaluate in any meaningful way. In particular we need to know more about what counts as “degrading” treatment.

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Turning to the literature, we find that philosophers sometimes speak of “degrading” punishments. According to a representative formulation, a punishment is degrading if it is “inconsistent with the recognition of the basic dignity of the punished person.” If we then ask what “basic dignity” amounts to, we find that it “cannot be forfeited or lost, at least not as long as the beings that possess it remain persons.”35 These formulations are still too general to allow us to identify which specific treatments are degrading, though they are worth bearing in mind. Indeed, perhaps it is not possible to find a helpful formulation that covers all cases of apparently degrading treatment. In the following, I will consider some more specific proposals. Granting that degrading treatments are at least typically wrongful, we are left with two realistic options. The first is to concede that such treatment is, or at least may be, morally inappropriate in certain ways, but deny that it necessarily infringes any right. This would allow us to retain EBR in its original form. The second is to accept that there is indeed an inalienable right against degrading treatment, and so modify EBR in some way to accommodate it, so as to allow that persons have a rightconstituting value qua persons independently of their actions. Here I do not wish to come down decisively in favor of either option, as both seem to me defensible and neither clearly preferable to the other. The first option would involve denying specifically that a person guilty of certain wrongs has the peculiar authority to command others constitutive of rights with respect to certain forms of treatment. This fact, as we have seen, is compatible with allowing that there are very strong first-order reasons against treating him in that way, including reasons that would not militate against non-degrading (but still harmful) treatment. Further, these reasons could be grounded in his agency or personhood, meaning that they could plausibly correspond to the rather vague idea of dignity mentioned previously. As I noted in my earlier discussion of reasons relativity (10.4), these reasons could also be relational in a sense, giving rise to what I called “complaints,” even if strictly speaking no rights are involved. There may also be other moral reasons against such treatments that do not stem merely from the wrongdoer’s personhood. This is especially true if what is at stake is a practice of imposing such treatments as punishment. After all, such a practice may well have undesirable consequences.36 Again my earlier discussion of reasons relativity is pertinent. The other option requires modifying EBR, as noted, turning it into what I have called its moderate version. That is, we would have to identify a value that belongs to persons merely qua persons which is constituted by one or more rights—but certainly not the whole complement of basic rights identified in Chapter 6, as that would amount to a retreat to the agency view. And we would also have to offer some account of why a person’s value is to be understood in this “hybrid” way: partly due to mere agency, partly due to its exercises.

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There are different ways of proceeding here. One is to appeal to the idea of a right not to be treated as a mere means, mentioned earlier. Interestingly, Simmons appeals to just such a right to explain our sense that his murderer is wronged when the sadist cuts his throat.37 Now, there is obviously a large question about how to understand the idea of treating someone merely as a means. Even without strolling into this particular minefield, though, we can observe that such a right not to be treated as a mere means, if it indeed exists, is much too broad to account for the special features of degrading treatment. Treating someone as a mere means could certainly degrade the person, but that does not seem to be necessarily the case. Certainly I would deny that rights not to be subjected to various types of treatment that are typically classified as treating another as a mere means could never be lost—nor would I generally describe such treatments as “degrading.” I have in mind here, among others, the familiar Kantian cases of lying and making false promises. In connection with punishment, which is of special concern here, there is also the fact that a right not to be treated as a mere means implies that any attempt to punish offenders for deterrence purposes is a right infringement, which would seem to undo some of the point of appealing to right loss as part of the justification of punishment.38 It also seems that the idea of treating others as mere means is in another way too narrow for our purposes, as some forms of treatment, and in particular those that cause extreme pain, can seem degrading even when they do not involve treating the victim as a means at all. Such is true of cases in which the pain is caused as a foreseen side effect. On the other hand, some treatments that are often called degrading do seem to owe that character at least in part to the fact that the degraded person is reduced to a mere means. Rape is perhaps the clearest example (and note that it is no accident that it is hard to imagine rape as a mere “side effect” of some other action, foreseen or not). I will return to this point shortly. Another approach brings us back to the idea of “appropriate treatment” of a person. For it might be suggested that there are two ways in which treatment can be inappropriate in this sense. In the first place we could treat a “good” agent like a “bad” one. That is, we could treat an agent who has a track record of right-respecting as if he were a right violator, meaning that we fail to respect one or more rights he in fact possesses. This idea of inappropriate treatment of course answers to EBR. It must be distinguished from the notion of treating someone as he deserves. On the other hand, though, it might also be possible to treat a person as if he were not a person at all, even a bad one. This description, then, is supposed to answer to the idea of “degrading treatment.” It is admittedly rather obscure, but at least I take it to be sufficiently clear to allow us to say that recognizing it requires a move to the moderate version of EBR. It implies that persons have certain rights simply qua persons that go beyond the right to a benefit of the doubt I have already allowed as compatible with (radical) EBR.

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Can we then throw any further light on the notion of treating someone “as a person”—and, more importantly, failing to do so? In the first place, the notion of “treating as” is, generally speaking, rather murky. Here, though, I will assume a thin interpretation of the notion, in line with the way I understood the idea of “appropriate treatment” back in 1.3. To fail to treat someone as a person, in this sense, is simply a matter of not respecting the person’s value qua person. As usual, this value will have to be understood in the peculiar way I have described, in terms of a power to generate exclusionary reasons. Of course, the agency view has an answer to the question posed here: treating someone as a person, or agent, is precisely to treat him as “being in charge” of his own agency and body (see chapters 5 and 6). Further, the move to EBR means that such treatment is understood instead as appropriate treatment of an agent insofar as he exercises his agency well rather than badly. But it also seems that a third answer can be given, one with a certain plausibility, and one which in effect lies between the first two. On this alternative picture, we focus on the idea that treating someone as a person requires treating him in a way that recognizes his nature as a rational being, or a being endowed with reason, and not merely the “animal” faculties. This notion itself is certainly unclear and can be given various interpretations. As the range of treatments that can plausibly be considered “degrading”—or at least to such an extent that persons have an inalienable right not to suffer them—is relatively narrow, we need a strong interpretation. Certainly it must not be understood so broadly as to exclude all harm to the body. On the other hand, it is unclear whether we could understand it sufficiently broadly to encompass all forms of treatment that we would want to classify as degrading in the relevant sense. For that matter, and as already intimated, it is unclear that there is anything that all these forms of treatment, and they alone, have in common that accounts for their supposedly degrading character. Indeed, it is likely that, in order to arrive at a complete account of degrading treatment, we need to combine the present approach with the one described earlier, in terms of treating persons merely as means. However, at least as far as the case of torture and some forms of corporal punishment are concerned, a strong form of the idea of a failure to recognize the rational nature of the person is in play. For such treatment more or less robs the person of his rational capacities, and in a way “reduces” him to the level of an animal, if only temporarily.39 It might be disputed whether causing this effect is sufficient on its own to render treatment degrading. Perhaps something much like it could be achieved painlessly using drugs, and perhaps such treatment would not be degrading, or at least not in the same way. Perhaps the pain itself is necessary as well for the treatment to count as degrading in the sense we are after. This question brings us back to a problem I noted in Chapter 6 and left unresolved, namely that of how to deal with brute physical pain in a satisfactory moral theory. I will have to leave it aside here as well.

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Returning to the case of rape, left behind earlier, I noted that its wrongness seems in part due to the victim’s being used as a mere means. This idea can be combined with that of treating someone as less than a person, in that rape essentially involves using the person’s body as a means, and therefore also amounts to a kind of reduction of the person. Admittedly, using rape as punishment, as in the “rape the rapist” case, is a bit different. After all, punishment need not amount to using someone as a mere means. Also, using another’s body as a mere means is not itself obviously degrading in the way that supports an inalienable right. Consider using someone as a “human shield,” for instance. It is not obvious to me that a murderer can complain at being so used. At any rate, such a case seems more similar to that of the throat-cutting sadist discussed earlier than those covered in this section. Possibly, then, we need to supplement our account of the right against rape by assimilating that offense, or at least some instances of it, to acts of torture. In addition to the various types of purportedly degrading treatment discussed earlier, and mentioned at the outset, that involve bodily harm, there are also possibly degrading forms of treatment that affect the person only psychologically.40 The most interesting case is that of brainwashing and other forms of violations of autonomy. Again there is a case to be made for thinking that such practices fail to treat persons with the respect due persons (as opposed to persons-who-have-acted-in-this-way-ratherthan-that). Analogously, there is reason for holding that punishment of any crime must always work, at least to some extent, by engaging the offender’s rational faculty, and not simply by bypassing or subverting it. Again there does seem to be something degrading about being reduced (that word again) to someone else’s puppet. There will obviously be difficult questions here about where to draw the line, as there are many more or less manipulative means of affecting other people’s minds, many of which seem morally acceptable, if perhaps somewhat unsavory. One puzzle remains, and that is why defensive actions are not degrading, and do not count as right violations, even when they amount to treating persons in ways that would otherwise count as degrading. It is tempting here to resort to a point familiar from the self-defense literature, namely that there is something odd about the aggressor’s complaining about his being subjected to supposedly degrading treatment given that he himself made that option necessary, effectively forcing the defender to choose between imposing it on the aggressor and suffering death or serious harm himself.41 This feature distinguishes defensive harming (at least if the aggressor is culpable) from all other cases of harm imposition. Now, several factors seem to be at work here. There is the fact that it seems fair that the aggressor gets to bear the burden of his own wrongful choice; there is the fact that he also becomes responsible at least to some extent for the harm he suffers as a result of his wrongful choice; and there is also the fact that the victim is entitled to favor himself to some extent (though

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this factor may be at work also in cases in which the aggressor, or threat, is not culpable). The relative significance of these factors, and possibly others, is debatable and here is in any case not the place to sort out these matters. It is enough to note that the defensive context is special in several prima facie relevant ways. An additional point is that the term ‘degrading’ is heavily normatively charged and we are therefore unwilling to concede that a morally justified action is degrading. That would help explain why we are also unwilling to apply that term to defensive harming. To conclude this discussion of rights against degrading treatment I note that there are two reasons for being skeptical of any modification of EBR in order to accommodate a ban on certain punishments, specifically, along the lines suggested previously. In the first place it remains very unclear what motivates the claim that a given form of treatment is degrading, or contrary to human dignity, beyond the fact that they simply seem distasteful. Several of the arguments outlined earlier are uncomfortably sketchy and impressionistic; the suspicion remains that they are mere rationalizations. The other is that these same arguments (at least insofar as they pertain to punishment) seem to presuppose a certain view of punishment that puts much emphasis on its role as giving people what they deserve and on communicating something about the offender, but less on its purely protective role. The more we see punishment as a form of protection, the less likely we are to object, in principle, to “degrading” treatment—though we could of course still argue on plausible empirical grounds that such treatments are in fact never necessary for protective purposes. The last of the three candidates for inalienable status mentioned at the outset is the right to life, understood narrowly as the right not to be killed (without one’s consent). Again defensive actions are generally accepted exceptions. One possible argument for its inalienability is that it really belongs in the second category, because killing a person is necessarily degrading. Given the looseness of that term, just noted, it is hard to dismiss such a claim out of hand. Further, I have already acknowledged that some killings are degrading. The question that concerns us now is whether they all are (except purely defensive ones), simply qua killings. Now, if we try to sharpen the meaning of ‘degrading’ somewhat, along the lines suggested previously, which allowed us to distinguish certain forms of harmful treatment, but not others, as degrading, the claim that nondefensive killing is degrading simply as such, regardless of circumstances, strikes me as implausible. However, and as I in effect noted earlier, there is in any case reason to doubt whether intuitions about degradingness are independent of, and can explain, intuitions about moral wrongness. It is probably more profitable to ask directly why there might be an inalienable right to life—but not necessarily against other forms of serious harm, such as, most obviously, the right not to be incarcerated, even for life. Setting the possibly unhelpful notion of degrading treatment aside, we could apply the formulation suggested earlier in attempting to account

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for that notion, the idea of treatment inappropriate to a person as such, because it amounts to treating him as less than a person, or as not a person at all (as opposed to treating him as a “bad person”). One possible reason for thinking that killing a person does meet this admittedly vague specification, but most lesser harms do not, is that it amounts to robbing the person of his very personhood or agency, that in virtue of which he has rights at all—or, on EBR, at least a necessary condition for having rights, and a sufficient condition for some rights (at least the right to the benefit of the doubt). Killing, then, amounts to a kind of denial of agency itself. By contrast, any other harm—except perhaps the rather special case of permanently reducing someone to a non-agential state—still allows the person to retain his agency itself, if only in a severely restricted form. Could this feature of killing explain why the right to life is special? I find it hard to arrive at any firm opinion on this matter. One could certainly brush the suggested explanation aside with the claim that killing someone, as punishment at least, amounts to recognizing his responsibility for his action (his own past killing, presumably) and so does treat him “as a bad agent” rather than “not as an agent at all.” Yet that response does not seem satisfactory. After all, it could equally be offered to someone who objects to torturing a torturer or raping a rapist, so it could be asked why it would be any more effective in the case of killing than it is in these cases. To be sure, we have seen that there is a special reason for rejecting the answer in the other cases, namely that these treatments are degrading, which is not obviously true of killing as such. But it could be suggested that the explanation now being considered plays a similar role, as rebutting the presumption that killing does amount to treating the person as a bad agent, rather than not as a person at all. Another possible reason for thinking the right to life special, related to the idea of a right to the benefit of the doubt, is the familiar thought that all wrongdoers deserve a “second chance,” to repent and mend their ways, which killing them (or robbing them of their agency in other ways) would preclude, but which many other forms of punishment would permit. This proposal is not clearly linked to the idea of treating someone as “less than a person,” though. One could respond that a killer refused to give his victim a “second chance” (assuming there was need for one, in any case), and so it is not clear why he should be entitled to one himself—but again of course the same response could be offered in favor of torturing a torturer etc. These arguments, and possible others like them, are uncomfortably inconclusive, and it may understandably be asked whether it should not be possible to say something more definite about such an important moral question. The inconclusive character of the arguments is in turn plainly due to the frustratingly diffuse idea of treating someone “as a person,” rather than “not as a person.” I noted this problem already in connection with degrading treatments, and it is if anything even more pressing in connection with the right to life. The point is not merely the banal one that we cannot

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expect agreement on whether that right is inalienable, but also that even those who, like myself, see merit in both positions will probably find insufficient guidance in considerations like these. Now, some philosophers would treat this fact, assuming it is one, as showing us that we need to look for arguments, or right grounds, of other kinds to settle the issue, perhaps like the “practicalities” of Griffin (2008). This proposal raises large issues that I cannot discuss here, in part about how ‘pragmatic’ an approach we should choose for moral theory, but I should at any rate voice a certain skepticism about the prospects of such an alternative procedure: is there enough there to “determine the intellect”? The problem seems to me at any rate to be that it is precisely the idea of treating someone as a person, fuzzy though it may be, that “ought” to be decisive. If it is insufficient, therefore, we simply could not bring in other considerations to make up for the shortfall and expect to rest content with whatever the upshot may be. A final important point: in the previous discussion I have not been concerned with the question of whether it is ever all-things-considered morally permitted to punish wrongdoers with death, and still less with the question of whether a general practice of such punishment is justifiable. I have asked only the rather narrow question of whether the right to life is inalienable, on the assumption that many other important rights are not. Summing up this discussion of inalienability, we have found strong, if not conclusive, reasons for holding that some rights, including some substantive (i.e., non-formal) rights cannot be lost, and so cannot plausibly be ascribed to persons in virtue of their action as opposed to their mere agency. If we accept such inalienability, we must reject the radical version of EBR distinguished at the start of Chapter 10, but the moderate version is still available. In this view, remember, a person’s rights belong to him in virtue of both his agency and his right-violating and right-respecting actions. We would then have to recognize a distinction between rights that correspond to being treated as a good person, rather than a bad one, and rights that correspond to being treated as a person, rather than as something other than a person. I stress that what we are then talking about is a distinction within the class of rights, rather than a distinction between rights on the one hand and something else, such as reasons of desert, on the other. Again, the upshot is a kind of hybrid between EBR and the agency view, but clearly not an arbitrary one.

7.

Conclusion

It is time to wrap up this discussion of the various objections to EBR. We may begin by reminding ourselves of the initial simple formulation of that doctrine: EBR. Each right of a person is a value belonging to him because, and only because, of his right-violating and right-respecting actions.

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Our most important conclusion is that there is good reason for denying that this formulation is true of all rights, as not all rights can be lost— except in defensive cases. Indeed, this finding is a reason for holding that we should seek a compromise between EBR and the agency view (rather than a modification of the former)—or, if you will, a kind of hybrid view. Again, as long as only formal rights are concerned, with the proviso that a fully satisfactory definition of that notion is hard to come by, there is no need for any such compromise. That need arises only if we insist that substantive (non-formal) rights are inalienable as well. Yet it seems that we should insist on such inalienability. What, then, is the upshot? As I have indicated in the preceding section, the foundational idea to which we would have to resort in formulating the hybrid view we are looking for is the distinction between treating a person as a bad person, yet still a person, and treating him as not a person at all. Unclear though it is, it still seems to get at the heart of the matter. Further, though the word ‘hybrid’ may suggest otherwise, there is a unifying notion here, rather than simply two fundamentally distinct types of reason for action. For we are still talking about the value a person has in virtue of being an agent, either directly or indirectly, as mediated by actions. And it is this link to agency that explains why rights have the peculiar normative shape they have. A less important conclusion of our discussion is that there is some, but not conclusive, reason for holding that persons can lose rights because of actions that do not violate rights. That would require another modification of the original formulation, and I suggested the following: EBR*. Each right of a person is a value belonging to him because, and only because, of his abuses and non-abuses of his agency. If we do make that modification, though, along with the other one, the result would be something like the following, which we can call: The agency-exercise view of rights. Each right of a person is a value belonging to him either because of his agency or because of his abuses and non-abuses of his agency (though his right-violating and rightrespecting actions are particularly important in this regard). Those rights belonging to him in virtue of his mere agency are precisely those such that their violation amounts to a failure to treat him as a person at all. This view may lack the relative elegance of the agency view, or even EBR, but it is a better fit than either for those intuitions that led to the development of EBR in the first place, nor is it unacceptably ad hoc. Perhaps that is as much as one can ask for in philosophy.

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Notes 1. If I understand him correctly, that seems Rodin’s view (2014, pp. 294–5)—see section 2. However, he also writes: “agents can come to possess rights when they comply with the obligations generated by the rights and status of others” (ibid., p. 286); and also: “persons are deserving of respect and consideration because, and to the extent that, they manifest appropriate respect and consideration towards others” (ibid., p. 293). This description brings him closer to EBR, for it seems a bit artificial to hold that unproven agents satisfy it. That is, it is neither true nor false of such agents that they “manifest appropriate respect and consideration towards others.” Cf. Fabre (2014, p. 397), who also aims the “cannot-get-started” charge at Rodin’s view. 2. As this example indicates, unproven agents will be rare indeed. I might as well warn the reader right away that the attention I will be showering on these characters in the sequel is rather starkly disproportionate to their practical significance. 3. In particular, EBR seems offhand to violate the first of the two constraints stated at the beginning of this chapter, and the conditional-rights thesis does not. While the former can indeed explain why we do not wrong offenders when we punish them, it apparently cannot explain why we do wrong unproven non-offenders when we “punish” them. 4. This formulation obviously raises the rather pressing questions of what counts as “proving” that one has, or lacks, “real” rights (as opposed to the mere benefit of the doubt)—beyond saying simply that it is a matter of respecting, or violating, rights. I must ask for the reader’s patience here, postponing the answer until section 4. 5. Note that this case is rather different from the superficially similar one I addressed in 3.1, in distinguishing the value view from consequentialism (remember the “royal family” example). In the latter case I had in mind nondirected reasons for according someone conventional rights. It is obvious that such reasons could obtain independently of actual rights. In the present case, by contrast, we seem to be dealing with directed reasons for according someone moral rights. And to make matters worse, the ground of these directed reasons is precisely a person’s agency. 6. See, e.g., Ullman-Margalit (1983). 7. Reasons of reciprocity could also be called reasons for gratitude (again see 2.2.) It is admittedly inappropriate to say that I have such reasons with respect to a person who is merely disposed to help me (but has not in fact done so), but the reference to gratitude is still helpful. For it reminds us that the reasons caused by the disposition to help depend on the agent’s reasons for helping. For instance, suppose someone despises you and is disposed to help you only because he is paid to do so, or fears punishment if he refrains. Does he have a right to your assistance? 8. Rodin sometimes seems to express himself in this way too (e.g., p. 296)— though, as his “hardened heart” example shows, he thinks that the necessary condition is rather that of actual or counterfactual compliance. I might add that his talk of “counterfactual compliance” (as opposed to mere counterfactual willingness to aid) itself suggests a picture like the one described in the text, as one could normally only be taken to “comply with” some sort of requirement. Also see Fabre (2014, p. 397). 9. Two comments on this case are in place. First, the sense that killing the wouldbe murderer does not wrong him might be due to forward-looking considerations: he might become a lethal threat in the future. I will not speculate

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10. 11.

12.

13.

14.

15.

16. 17.

18. 19. 20.

21. 22.

Exercise-Based Rights on the importance of this factor. Second, note the words ‘or indeed anyone’ in the text. Unlike the case of positive rights, the relevant disposition in this case does not seem to have to concern you, the agent, in particular. In that regard, then, talk of “reciprocity” might be less apt. In this context, recall my discussion of victim relativity in 10.3. This example and others like it raise at least two related questions for the dispositional strategy: does it matter to a person’s rights (i) exactly which disposition to aid he has and (ii) why he has whatever disposition he has? The same goes for derived second-order reasons, for that matter. After all (and anticipating the text somewhat), what a person deserves will depend also on his conformity with such reasons as well, such as, e.g., a reason not to act for selfish reasons. There is a complication here, for desert reasons are not any old first-order reasons—contrary to the appearance I may convey in the text. For, and as I have already noted in the text, while a person could clearly have a right against suffering some harm even if there are first-order reasons in favor of that harm, and indeed possibly quite strong ones, it is hard to swallow that he could have this right even when he deserves to suffer the harm. There is clearly unfinished business here that will have to wait for later treatment. We need not settle here whether this is because the Grand Canyon has a value independently of all persons, as long as we are willing to grant that no rights are at stake. In this respect, a case in which the vandal threatens to kill or hurt animals is less clear-cut. Also, it seems that a person could save the Grand Canyon from being destroyed (perhaps by natural causes) without asking anyone’s permission, even if everyone else would prefer that he not do so. No right is infringed in this case, which suggests that the relevant “domain” is not that of property. To back up the first of these two claims he appeals to cases of the standard “right to do wrong” type (rude or selfish behavior that does not violate anyone’s rights), rather than acts such as blowing up the Grand Canyon, and it is not clear what he would say about such cases. As Wellman notes (p. 92), his proposal bears some resemblance to so-called “fairness retributivism,” defended by Morris (1968) and others. This view is defended by McMahan (2009, pp. 8–10) and Rodin (2011, p. 77). It seems present already in Locke’s treatment of punishment, when he suggests that “reparation and restraint . . . are the only reasons, why one man may lawfully do harm to another” (1690, §8). I take the terms ‘internalism’ and ‘externalism’ from Frowe (2014, p. 88), who herself endorses a version of the latter. (She, McMahan and Rodin are all mainly interested in self-defense rather than punishment, though McMahan at least clearly intends his position to apply to punitive harms as well.) Interestingly, McMahan holds that the first-order reasons against punishing are discounted, but do not entirely disappear, when the offender’s right is lost (2009, p. 8). Cf. Rodin (2014, p. 288). For this last claim, see Statman (2008). McMahan, for one, does not think that the fact that the punishment does some good is sufficient for forfeiture. The good has to outweigh the harm, bearing in mind that the disvalue of the latter is discounted because of the initial wrongdoing (see note 17). I discuss this matter in Alm (forthcoming-a), if again rather inconclusively. Frowe (2014, p. 92) suggests this criterion for telling internalism and externalism apart. She also makes another suggestion, however, though one targeted rather at the case of defensive harming (ibid.). For it could be argued

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23.

24.

25.

26.

27. 28. 29.

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(a) that a person who retains his right is also at least permitted to harm those who attempt to violate it if that is necessary to prevent the violation; and (b) a culpable aggressor lacks any such permission even when harming him is not necessary for protecting the victim and so does no good; concluding (c) that such an aggressor lacks the right. This conclusion is contrary to an internalist position regarding culpable aggressors. An analogous argument could be offered for the case of punishing wrongdoers. I would not make use of this criterion, however, for I find premise (b) much less compelling than the idea that victims of wrongdoing are owed compensation. It seems to me that culpable aggressors are permitted to fight back, or at in certain situations. I have addressed this matter in Alm (forthcoming-a). A footnote caveat: the discussion to follow will be concerned exclusively with right loss due to wrongdoing, as opposed to threatened wrongdoing—or in other words with punitive rather than defensive harming. However, there is an analogous problem in the area of defensive harm, as such harm is generally thought permissible only when necessary. As a consequence, once an aggressor ceases to be a threat, it seems that his once-lost right has returned (Thomson 1976). I believe this picture of the case is mistaken, but the issue requires more attention than I give it here. An additional problem comes from words like ‘prove’ and ‘show,’ as they give the proposal a problematic subjectivist slant. Prove to whom, it might be asked. Again I wish to avoid discussing issues concerning subjectivism. However, I would prefer EBR to imply that a person who has respected rights sufficiently in the past has rights whether or not others know about this. Perhaps, then, we should say that he has “proven” himself in the eyes of a hypothetical impartial spectator or the like. A consequence of what I say here is that the “state of moral perfection” must be understood as it were atemporally, as a right to a life free of a certain treatment, as opposed to a right to a future free of them. That way it is still possible to say that a person who has lost his right to a life free of the harm and then suffered an instance of it and now has the right not to suffer the harm ever again is still not in the state of perfection. He does not have a right to a life free of such harms. That follows from the fact that he once suffered the harm in a way that did not wrong him (a fact about the past). I might add here that it is a mistake to respond to the observation in the text by suggesting that the conditional-rights thesis could be understood differently, as saying that the relevant value consists precisely in the fact that the agent possesses the right conditionally. This idea is confused. If a right is indeed what a person’s value consists in, as the value view has it, then if one has that right only conditionally, one must have the value also only conditionally. (Possibly the idea is due to confusing the value view with the idea, rejected in 1.3, that rights are value makers. After all, if they were, perhaps the conditional possession of rights could also be a value maker.) For discussion of this question about how to interpret contractualism, see the exchange between Wenar (2013b) and Scanlon (2013). It is not clear that Scanlon explicitly endorses this idea, though it seems implicit. However, he does suggest that reason strength is not all that matters at (1998, p. 229). See, e.g., Lippke (2001) and Boonin (2008, p. 110). These philosophers are out to criticize the “forfeiture” view of punishment. For defenses of that view, see Kershnar (2010) and Wellman (2012). One is reminded also of Kant’s injunction that while a murderer must be punished with death, this retribution must still be “freed from any mistreatment that could make the

242

30. 31.

32. 33.

34.

35. 36. 37.

38. 39. 40.

41.

Exercise-Based Rights humanity in the person suffering it into something abominable” (1797, p. 333)—though I will not pause to inquire into either the interpretation of this saying, or others like it found in Kant’s writings, nor the reasons behind it. I quote Scanlon (1977, p. 44). In a different type of case the person punished is actually guilty of the very offense of which he was convicted, but the trial was not “fair,” or due process was lacking. For instance, perhaps the defendant was denied the opportunity to cross-examine witnesses. However, cases of this type raises issues that I would prefer to avoid (and that are not concerned specifically with inalienability). This is an important component of Feinberg’s (1974) analysis of “judgmental injustice”—though he might take it farther than I would. A complication here is that we might want to say that the sadist’s action is degrading precisely because of his motive, even if the action as such is not degrading (and not a right violation, given the murderer’s right loss). That is not to say that a sadistic motive makes any old action degrading, though. Boonin (2008, p. 117–19) suggests that an appeal to forfeiture of rights is inadequate to show that punishment generally does not infringe rights, on the grounds that forfeiture, as a familiar legal phenomenon, at most licenses us to cause harm without intending it (as when a court orders the repossession of a car when the owner has defaulted on his payments). This reasoning strikes me as highly questionable. For one thing, if we find the idea of forfeiture (or right loss) plausible to begin with we may want to insist that a person who has himself caused harm intentionally cannot complain if he is made to suffer such treatment. (By contrast, one forfeits one’s property when one defaults on one’s payments, quite regardless of one’s intentions, which could explain why such conduct could not legitimize intentionally harming the defaulter.) These formulations are from Murtagh (2012, p. 485), who also cites others who say similar things. On this issue, see Reiman (1985). See (1991, p. 341). This account of Simmons’ view is actually not quite accurate. He does not say that there is a right not to be treated as a mere means, but rather that right loss is restricted to apply only to “respectful treatment.” However, in support of his view he quotes Murphy (1979, p. 234), who does refer to the right in question. And such a right could also serve to explain the restriction Simmons advocates. I should add that Simmons also uses another argument for his view (that we may only harm wrongdoers for certain reasons), which appeals to the idea of fairness discussed in 9.3 (1991, p. 340). I will not consider it, but see Kershnar (2002, pp. 78–9) for a critique. Cf. Haksar (1986); Kershnar (2002, p. 78). I concede, though, that it could be argued that, properly understood, punishment never amounts to treating the offender merely as a means. Murtagh (2012) tries to rebut this “problem of reduction” as a general objection to corporal punishment. What about mutilation, which I also mentioned initially? I set it aside for the simple reason that I am not confident about whether such treatment, once all inessential elements are removed, really is degrading, or whether there in fact is an inalienable right not to have parts of one’s body removed. The importance of this factor is stressed by Montague (1981), particularly in terms of justice.

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Index

Note: Page numbers in italics indicate a figure on the corresponding page. ability: the agency view and 78–9, 81, 90–1, 100–2, 104–7, 110; exercisebased rights and 202, 217–20, 222; the value view and 17n3, 33–8 acquisition: exercise-based rights and 175, 184, 201, 210, 220–3, 225 adequacy see extensional adequacy; theoretical adequacy agency 78–81; and the body 101–7; and value 81–4; see also agency view; agent; normative agency agency-exercise view 238 agency view viii, ix; and aggregation 150–4; basics of 75–6, 79–86, 87n1, 87n2, 87n9; and basic rights 101–7; and the components of owing 89, 91, 93, 95–6; and conditional rights 159–62; and constraints 141–50; and derived rights 162–3, 165–8; and exercisebased rights 171, 173, 193–4, 237–8; and fundamentals of rights generation 98–101, 108–11; and the moral significance of rights 136–8, 140–5, 148–9, 151–2, 156n23; non-agents and rights in 84–7; and overall-violation interpretation 179; and the permanent-ground argument 158–9; and reasons relativity 185; and rights generation 99–102, 104–5, 107–11; and rights loss 169n6, 170n16, 170n18, 219–20, 225–7, 231, 233; scope of 77–8; and the strength of claims 114–15, 123–7, 131–2; and the value of actions 195–7, 199–201; and the value of violations 211–12,

215; and the value view 7, 24, 27, 59–60 agent: commanded 146; commanding 121; first 200; normative 99, 104, 113n21; responsible 163; unproven 195–200, 202–204, 208, 225–226 agent-neutral value 82, 141, 155n15 agent-relative value 81–82, 127, 141–142, 155n15 aggregation viii; and the basics of the agency view 76, 86; and exercisebased rights 176; interpersonal 139–41, 151–2, 179–80; intrapersonal 139–41; and the moral significance of rights 137–8, 142, 146, 150, 153–4, 155n18, 156n29 appropriate treatment 13, 99–100, 228–9, 232–3 art, value of 9–11, 16, 68, 139–40, 224 attribution 83, 91, 112n5 authority: and the basics of the agency view 86; and the components of owing 91–3; and inalienability 228, 231; and the moral significance of rights 139, 141, 143–9, 152–4; and reasons relativity 185; and reciprocity interpretation 178; and rights generation 98, 107; and rights loss 217–19, 222, 224, 226; and the strength of claims 115, 121, 123, 125, 132–3; and the value of agency 196, 200; and the value of violations 209–10, 213–14; and the value view 12, 17n12, 27, 68, 71n13, 73n33; usurpation of 34–5, 133, 210

Index autonomy 100–2; external component of 101–2, 205–6; internal component of 101–2 balance-of-non-excluded-reasons (BNE) 25–7, 29, 36, 49n12, 49n13, 93, 114–15 balance of realized value 26 balance of reasons 209–10; see also balance-of-non-excluded-reasons (BNE) benefit of the doubt 239n4; and dispositions 202–3, 205, 207–8; and inalienability 227, 232, 236; and rights loss 223; and the value of agency 196–7, 200–1 benefit theory: and exercise-based rights 158, 169n5; and the value view 31, 40–5, 47, 50n21, 51n27, 57 Bentham, J. 30, 48n2, 51n27, 71n3 Berman, M. N. 163–5, 169n11, 170n12, 170n13 BNE see balance-of-non-excludedreasons (BNE) body 87n1, 126–7, 131, 176, 233–4; agency and 101–7, 111, 113n19, 113n20, 144–6; as constitutive of agent 107, 131 capacity: and the basics of the agency view 79–80, 87n2, 87n3; and the components of owing 91; and exercise-based rights 202; and rights generation 101–2, 106, 109–10, 112n7, 112n8; and the strength of claims 127–31; and the value view 53 central element: and the agency view 114; and the value view 5–6, 8, 17n6, 31–2, 37, 39 choice theory 19, 31, 34, 40–1, 45, 50n21, 50n24 claims: and the basics of the agency view 75, 78, 81; and the basics of the value view 3–5, 17–18n17; benefit and choice theories 30–1; components of 20, 48n1, 48n4, 50n20, 51n27, 51n30; and the components of owing 90, 94–5, 96n1; and defense of the value view 55–8, 64–6, 68–70; enforceability and 19–23; exclusionary reasons and 23–30; and exercise-based rights 174, 201, 206, 214, 216, 240n15; and the moral significance

251

of rights 138, 142–3, 153, 156n27; preliminaries to strength of 114–5; and rights loss 159, 168; and the value account of relationality 40–8; value view of 6–13; and the value view applied to powers 31–9; see also obligation compensation: and the agency view 85, 90, 93–4, 96–7n3, 98, 149; and exercise-based rights 185–6, 188, 217, 222, 241n22; and the value view 6, 36 compliance: and the agency view 117; and exercise-based rights 203–4, 209–10, 223–4, 239n1, 239n8; non-compliance 69; and the value view 16, 20, 50n24 compulsion 105, 112n16 conception: and the agency view 79–80, 91, 101–6, 112n11, 112n15; and the value view 7, 48, 54, 71n5 concepts 7, 15–16, 47–8, 82 conditional reasons 37 conditional rights 159–63, 224, 226; exercise-based rights compared with 174 conditional-rights thesis 174, 191n1, 205, 215, 239n3, 241n26; and the agency view 159–63, 165, 169n9; and the value of agency 195–7, 199, 201 conflict: conflicting commands 144, 154; conflicting considerations 137; conflicting reasons 25, 28, 92, 116, 121, 134n9, 152; conflicting values 164 conforming 23–4, 117–18 consent 34, 78, 106–7, 144, 147, 178 consequentialist view: and the agency view 136, 155n8, 155n15, 169n4; and the value view 43, 53–4, 56–7, 71n3, 71n8, 71n10 constitutive value 17n13; see also contributive value constraints: and the agency view 112n16, 136–8, 141–4, 155n8; and exercise-based rights 193–4, 203–4; and the value view 24, 40–6, 61; see also justified constraint theory contempt 146, 149, 199 content 5, 43, 60, 126–8, 200, 218–19 contractarian view 54–6, 71n10, 158, 166, 169n4

252

Index

contributive value 12, 206 control: and the agency view 89–90, 95–6, 96n2, 112n14; negative control 98; positive control 98; and the value view 37–8, 40, 45–6; see also domain of control conventionalism 12, 17n11 correlativity: and the agency view 114–15, 120–1, 221–2; and the value view 9–11, 13–16, 18n22, 37, 42–3, 68–9 correlativity thesis 13 costliness 223 Cruft, R. 52n39, 61–2, 64 Darwall, S. 73n33, 94 decision 34–5, 91 default 35, 157, 196–8, 217 default commands 35, 51n31 deliberation 49n9, 91, 117, 121, 179 demand: and the agency view 75, 85, 93–4, 147–9, 153–4; and exercisebased rights 187–8, 205–6; and the value view 58, 68–9 demand theory 30, 50n24 deontic status 67 derivativeness 164, 218; nonderivativeness 12, 17, 42, 81 desert: and the agency view 110, 165; and exercise-based rights 178–9, 209–10, 215–16, 237, 240n12; and the value view 69–70 disjunction 159, 163–4 dispositions: and the agency view 117; and exercise-based rights 183–4, 202–9, 221–3, 239n7, 240n9, 240n10 dispositional strategy 202–9, 240n10 disrespect 61–2, 188 domain of control: and exercise-based rights 211, 225; and the moral significance of rights 144–6, 149; and rights generation 98–102, 104–8, 110–11; and the strength of claims 125–6, 128, 133 duties 14, 21, 86–7, 124 Dworkin, R. 136–7, 140, 154–5n1 EBR see exercise-based rights enforceability 19–23, 50n19, 68, 70, 89, 132 enforcement: and the agency view 89, 148–9, 165–6; and the components

of a claim 19–23, 33, 48n2, 48n4, 48n6, 50n19; and defense of the value view 61, 68–70, 72n28; and exercise-based rights 181 epistemic priority 47, 52n50 equal treatment 111 ERI 115–18, 120–1, 123, 126, 137 exception 218–19, 221, 223, 235 exclusionary-reason component 35, 116–17, 120, 125, 152 exclusionary reasons: and the basics of the agency view 78, 86; and claims 23–30; and the components of a claim on the value view 32, 35, 46, 49n9, 49n14, 50n19; and the components of owing on the agency view 89–95; and defense of the value view 54–5, 59, 68, 70, 71n13; and exercise-based rights 185, 187, 233; and the moral significance of rights 137–9, 143, 146, 152–3; and rights generation 98–9, 110; and the strength of claims 115–16, 118–21, 134n3, 134n5 exercise-based rights (EBR) 171, 173, 193–4, 237–8; compared with conditional rights 174; and dispositions 202–8; and inalienability 227–37; permanence of right loss in 217–27; and reasons relativity 184–90; reciprocity vs. overall-violation interpretations of 174–81; and value of agency vs. value of actions 194–202; and victim relativity 181–4; violations vs. other actions in 209–17 expected loss 128–9 explanatory constraint 41–2, 44–5, 89 extended agency view 109 extensional adequacy 40, 72n15, 83 extent 97n4, 102–3, 175, 196–7, 220–2 failure 197, 207–8 fairness 116, 165–8, 170n14, 196; see also unfairness Feinberg, J. 21, 62, 69, 73n33, 87n7, 242n32 fitting treatment 69, 72n24, 99, 179 forfeiture: and the agency view 76, 146, 165–6, 168n1, 169n4, 170n14; and inalienability 231, 240n20, 241n29, 242n34; and

Index reasons relativity 191n2, 191n5, 191n7, 192n15; and reciprocity interpretation 175; and the value of violations 211 forgiveness 86 gratitude 22–3, 49n8, 239n7 Griffin, J. 72n28; and the basics of the agency view 80, 83; and the body 113n19; 237; and the components of owing 91; and compulsion 112n16; On Human Rights 76; and rights generation 99–100, 102–6, 108, 110, 112n9–11, 113n21 grounding account of relationality 41–2, 52n39, 61 Hanna, N. 165–7, 170n15 Hart, H. L. A. 18n22, 30, 34, 48n2, 51n27, 125 Hegelianism 164–5 High-Threshold Thesis 138–41, 150 Hohfeld, W. N.: and the agency view 75; and the basics of the value view 4–6, 10–11, 13, 17n4; and the components of a claim 20, 32–3, 37–8 honoring: and the agency view 94, 106, 121, 152; and the value view 29, 33, 43–4 humanity view 108 human rights 54, 71n5, 100, 108, 110, 167 hybrid theory (Sreenivasan) 31 hybrid view 238 IBT see individual benefit theory (IBT) immunities: and the agency view 75, 96n1, 103, 158; and exercise-based rights 178 inalienability 242n31; and the agency view 95, 169n9; and exercise-based rights 194, 200, 227–8, 230–1, 233–5, 237–8 incommensurability 151 individual benefit theory (IBT) 54–5, 57–9, 158 information 147 infringements: and the basics of the agency view 85; and the components of owing 93–5; and exercise-based rights 171, 198, 225, 232; and the moral significance of rights 137–8, 141–2, 155n18; and

253

rights generation 105, 107; and rights loss 167; and the strength of claims 114–15, 126–31, 133, 135n13; and the value view 14, 21, 25–6, 62–3 intention 33, 51n27, 163–4, 230, 242n34 inviolability 55, 64, 142–3, 155n15 Jones, P. 12, 17n11 justification: and the agency view 118, 136–7, 165, 169n5; and exercisebased rights 198, 200, 215, 232; and the value view 12, 18n18, 52n43, 53, 56–7, 61–4 justified constraint theory 31 Kamm, F. M.: and the agency view 76; and the components of owing 86, 92; Intricate Ethics 143; and the moral significance of rights 143, 155n15, 156n27; and rights generation 106, 113n20; and the value view 16n2, 28–9, 52n45, 55, 58, 64, 72n17 Kant, I. 1, 49n13, 118, 122, 229, 232, 241–2n29 Kershnar, S. 169n9, 191n7, 192n15 legal relations 4 liability 37, 39 liberties 4, 14, 32–3, 75 Locke, J. 165, 182, 190, 191n2, 240n17 long-range plans 104 loss of rights 169n4, 169n8, 170n14, 217–20, 223–4, 224–7; and the components of owing 89; and conditional rights 159–61; and derived rights 163, 165–6, 168; and dispositions 204, 206; and exercise-based rights 171, 193–4, 241n23, 242n33, 242n34, 242n37; and inalienability 230, 232; and the permanent-ground argument 157–9; and reasons relativity 184–8, 191n2, 191n5, 191n6, 191n7; and reciprocity interpretation 175–8, 180–1; and the strength of claims 115, 132; and the value of agency 201; and the value of violations 209–10, 212–17; and the value view 21,

254

Index

48n6; and victim relativity 181–4; see also forfeiture Lyons, D. 51n27, 136–7 mala prohibita 211–12 Mill, J. S. 1, 22, 71n3 Miller, D. 69 minimum provision 100, 103, 106, 110, 111n4 moral community vii, 94 moral relation 1, 16n3 motivation 23, 102 Nagel, T.: and the agency view 76, 137, 142–3; and the value view 55, 60, 63–4, 72n21, 72n24 Nietzsche, F. 63 non-agents 82, 84–7 non-aggregation thesis 150–1 normative agency 80; and the components of owing 91–2; and rights generation 99, 101, 104–6, 108, 111, 113n19 Nozick, R. 137, 141, 151, 155n8, 201 obligation 1; and the basics of the agency view 80, 85–6; and the basics of the value view 7, 13–15, 17n3, 17n4, 18n17, 18n22; and the components of owing 96; and defense of the value view 58–9, 67–9; and dispositions 203, 205–6; and enforceability 19–20, 22–3; and exclusionary reasons 25–9; and exercise-based rights 187, 189, 190, 239n1; and the moral significance of rights 137, 142, 148, 152–3; and the reciprocity interpretation 179; and relationality 31–2, 34, 38, 40, 43, 46–8, 48n6; and rights generation 98, 103, 107, 110; and rights loss 217–19, 221, 223, 225; and the strength of claims 117–120, 123–4, 132–3; and the value of violations 209, 212; and victim relativity 183–4; see also obligation bearer; obligation relation obligation bearer: and the agency view 87n9, 93–4, 114, 116, 121–2, 125–6, 139–41; and the basics of the value view 3, 5, 8, 10, 16; and the components of a claim 24, 33,

36–7, 39, 44–5; and defense of the value view 65–6, 72n28, 73n33; and exercise-based rights 185, 213 obligation relation 3–4, 11, 16, 30, 77, 89 O’Neill, O. 65–67 options 104–5, 107, 110–11, 112n15, 126–8, 131 overall-violation interpretation: and exercise-based rights 193; and reciprocity interpretation 174, 176–8; and rights loss 218–19, 221, 223, 229; and victim relativity 181–2 overriding 14, 117–18, 138, 140; no override thesis 114–16 owing: and the agency view 76, 78, 140; components of 89–96; and the value view 1, 19, 20, 22–4, 29 pain 93, 111, 164, 169n11, 232–3 permanent-ground argument 157–9, 161 permission 4, 14, 21–2, 241n22 poetic justice 183 polarity 209–10 possession of rights: and the agency view 169n5; and exercise-based rights 175, 203, 208, 215, 219, 241n26; and the value view 63 powers: and the agency view 75, 78, 85, 90, 93, 95, 100, 122; and the value view 4, 18n22, 19, 31–9, 45–7, 68 priority 18n18, 134n7; conceptual 15–16, 47, 52n48; correlativity and 13–16; explanatory 15, 28, 52n48; lexical 203–4; metaphysical 15 promoting 43–4 proportionality 115, 125–6, 135n13, 175–6, 179 punishment 169n4, 169n8, 170n12, 170n14, 170n15, 170n18; and exercise-based rights 239n7, 240n17, 240n20, 242n34; and inalienability 228–37; and reasons relativity 189, 191n7, 192n15, 192n16; and reciprocity interpretation 175, 178, 180–1; and rights loss 157–9, 163, 165–7, 171, 225; and value violations 211–12, 214–17; and victim relativity 181–4

Index Quinn, W.: and the agency view 76, 146; and exercise-based rights 188–9, 191n9, 192n15; and the value view 55, 72n24 Rainbolt, G. W. 31, 52n39, 52n43 Rawls, J. 54, 83 Raz, J. 49n8, 49n10, 49n12, 50n15, 51n37, 52n41, 52n45; and the agency view 116–17, 120, 146; and the basics of the value view 6, 17n13; and the components of a claim 23–30, 41–2, 44; and defense of the value view 57–9, 61, 71n13, 72n17 reasons i; and the basics of the agency view 75, 78–9, 81–2, 84–6; and the basics of the value view 14–16, 17n10; and the components of a claim 21–3, 32–9, 41–7, 49n11–13, 50n16, 51n37; and the components of owing 96n2; and conflicts of rights 123–5; and defense of the value view 57, 59–60, 66–70, 71–2n14; and dispositions 204–5, 207–9; evaluative and practical role of (strong and weak sense of) 26–7, 124–5; and exercise-based rights 193–4, 239n5, 239n7, 240n11, 240n12, 240n17; and inalienability 227–231, 235; and the moral significance of rights 141, 148, 151–4, 155n4; non-canceled 26; and overriding 115–23; and positive rights 132; and reasons relativity 184–7; and reciprocity interpretation 179–80; and rights generation 102, 105, 111n3, 112n7, 112n8; and rights loss 162, 169n6, 169n8, 217, 219, 223–4; and right strength 125–27; and the strength of claims 114–15, 134n4, 134n9; and value loss 224–7; and the value of agency 197, 200; and the value of violations 209–10, 214–15; value view of 9–13; and victim relativity 182–4; see also exclusionary reasons; reasons relativity; relational reasons reasons relativity 184–90, 192n14, 192n15, 192n16; and exercisebased rights 193; and inalienability 228–9, 231

255

reciprocity interpretation 174–8, 191n2, 219–21 regress problem 195, 199–201 relationality viii; and the agency view 93–4, 96, 140, 168; benefit and choice theories of 30–1; and exercise-based rights 188, 200; explanatory constraint on 41–2, 44–5, 89; grounding account of 41–2, 52n39, 61; value account of 40–8, 61, 65–6, 89–90; value constraint on 42, 44–5, 61; and the value view 8, 14, 19, 31–9, 54 relational reasons 14, 22–3, 51n35, 63, 70, 78, 107 relational value 14 relation potentials 4 requesting 68–9, 140–1 responsibility: and the agency view 91, 163; and exercise-based rights 202, 227, 234; and the value view 55, 69, 70 right-grounding features 109, 111, 174, 193, 204, 217, 219 right holders 103, 109, 112n16, 128, 157, 196; and the basics of the agency view 79, 82, 86, 87n9; and the components of owing 91; and the value view 6, 68 right loss see loss of rights right-respecter 221–3 rights; and agency and the body 101–7; conditional 159–62; conflicts of 123–5; derived 162–8; how agency generates 98–101, 108–11; losing 157; non-agents and 84–7; overriding and 115–23; and the permanent-ground argument 157–9; positive 131–3; strength and proportionality of 125–31; trumping and 136–41; value view of 6–9; see also conditional rights; exercisebased rights (EBR); loss of rights Rodin, D. 169n5, 203–6, 222, 239n1, 239n8 sacredness 107 Scanlon, T. M. 226, 241n28 selfishness 147–8, 154, 213 several functions theory 31 side effect 144, 230, 232 Simmons, A. J.: and the agency view 165–7, 170n14, 170n18; and

256

Index

ultimate value: and the agency view 99; and exercise-based rights 193, 204, 206–7, 216

and replies 59–70; preliminaries to the basics of 3–6; of reasons, claims and value 9–13; and reasons relativity 184, 187, 190; and relationality 30–4, 36, 38–43, 45–6, 48; of rights and claims 6–9; and rights generation 99, 103, 108–9, 111; and rights loss 158, 162, 166, 168, 224, 226; and the strength of claims 116, 125, 127; and value of violations 213, 216–17; and victim relativity 182 victim relativity 181–4, 191n7, 193, 240n9 violation aggregation 179–80 violations vii–viii; and conditional rights 174, 177–81; and dispositions 205; and exercisebased rights 171; and inalienability 229–30, 234; and the moral significance of rights 142–3, 155n9; and rights generation 112n17; and rights loss 161–2, 166, 219, 222; and the strength of claims 125, 128, 134n11; the value of 209–10, 213–14; and the value of agency 194–5, 199, 201–2; and the value view 14, 44, 52n54, 61 Vlastos, G. viii; “Justice and Equality” vii

value constraint 42–5, 61, 63 value-making properties 9, 102, 105–11, 127, 160, 166; and the agency view 75, 81, 84; and components of owing 91, 96; and exercise-based rights 174, 207; and the value view 42–3, 45–6, 52n54, 55–9, 63, 69–70 value measure 127–33 value property i, viii, 9, 14, 41, 161 value view i, viii, 1; alternatives to 53–9; and the basics of the agency view 75–7, 81–2, 87–8n10; and the components of owing 89–90; correlativity and priority in relation to 13–16; defense of 71n5, 71n7, 72n14, 72n28; and dispositions 202, 204, 207; and enforceability 19, 21–2; and exclusionary reasons 24–5; and exercise-based rights 171, 193–4, 239n5, 241n26; and inalienability 228; objections to

waivability 132, 227 waiver 34–5, 37–9, 51n30, 185, 187; see also consent Wellman, C. 17n6, 30, 48n2 Wellman, C. H. 124, 191n2, 221–12 Wenar, L. 31, 60, 72n15 wronging viii, 1; and the basics of the agency view 76, 85; and the basics of the value view 8, 16; and the components of a claim 22, 27, 33, 35–6, 39, 44; and the components of owing 92–3, 95–6, 97n3; and defense of the value view 57–61, 63, 68–9; and exercise-based rights 171, 239n3, 239n9, 240n15, 240n20, 241n23, 241n25; and inalienability 227–9, 231–2, 234–7; and the moral significance of rights 142, 147, 149, 151–4, 155n8, 156n27; and reasons relativity 184–90, 192n16; and rights generation 109, 111, 112n17; and

exercise-based rights 184–6, 188–9, 230, 232, 242n37 specificationism 123–4, 156n23, 169n9 Sreenivasan, G. 31 status view: and the agency view 76, 142, 169n8; and the value view 53–5, 57, 60, 63–4, 72n15, 72n17 strength 200, 219, 221, 224–5, 227; and the basics of the agency view 76, 83; of claims 114–17, 119–20, 122–3, 125–33, 134n9; and the components of owing 92; and exercise-based rights 173; and the moral significance of rights 138–9, 141–2, 151–3, 156n27; and reciprocity interpretation 175–7, 179–81; two roles of 114; and the value view 9, 51n30, 71n14 Sumner, L. W. 30 theoretical adequacy 40 Thomson, J. J. 129–30, 132, 138–40, 150 trumping 76, 136–9, 150, 155n1, 156n29

Index rights loss 168; and the strength of claims 119, 122, 126, 129–30, 133; and the value of agency 197–8; and the value of violations 209–17; and victim relativity 181–4; see also wrongdoer wrongdoer 241n22, 242n37; and the agency view 93, 157–9, 163, 166, 169n5, 169n6; and inalienability

257

227, 229, 231, 236–7; and reasons relativity 184–6, 190, 191n9, 191n10; and the reciprocity interpretation 177–9; and rights loss 218–19, 224–5; and the value of agency 201; and the value of violations 210, 216; and the value view 20, 48n6, 69; and victim relativity 181–4