Rethinking moral claim rights

Abstract

The notion of rights is ubiquitous in philosophical discourse. As Allen Buchanan put it over thirty years ago, ‘Future historians of moral and political philosophy may well label our period the Age of Rights’.1 This notion is not only popular, but also complex. As the legal scholar W. N. Hohfeld famously suggested, rights are susceptible to multiple interpretations: they can be claims, liberties, powers, or immunities.2 Despite this variation, the consensus view is that the core instance of a right is a claim right.3

In the moral domain, claim rights designate a binary relation between a right-holder and a duty-bearer, where the former stands in a distinctive moral position vis-à-vis the latter.4 While there is controversy as to what, precisely, this distinctive moral position amounts to, the idea that claim rights capture it is seldom put into question.

In this article, I challenge this way of thinking. I argue that the language of claim rights is ill suited for the purpose of picking out a distinctive moral position.5 I show that the notion of a claim right is susceptible to several disambiguations, just as the notion of a right itself is. From this, I conclude that we should either no longer appeal to the concept of a claim right in moral theorizing or rethink its purpose.

The article proceeds as follows. In Section II, I set out two desiderata that a plausible definition of moral claim rights should satisfy. The definition should: (a) capture a distinctive moral position and (b) account for paradigmatic instances of claim rights in our ordinary language. In Section III, I show that the two most prominent accounts of claim rights fail to meet desideratum (b). Of course, the fact that prominent accounts are unsatisfactory does not mean that no satisfactory account could be developed. To support this stronger claim, in Section IV, I offer a systematization of our language of claim rights. I suggest that the greatest common denominator of such language is the idea of empowerment, and show that paradigmatic statements about claim rights track either the justification for certain forms of empowerment (justification rights statements) or empowerment itself and the particular status it confers on individuals (status rights statements).

As I explain in Section V, this twofold connection between claim rights and empowerment reveals that, for structural reasons, our desiderata cannot be jointly satisfied. No notion of claim rights can both capture justification as well as status rights statements and pick out a distinctive moral position. In Section VI, I consider three possible implications of this conclusion. One is that we should abandon the notion of claim rights in moral theorizing. Another, less drastic possibility is that, in light of its disjunctive structure, the notion of claim rights should be given a different purpose. A third possibility, for those not persuaded by my arguments, is to treat my discussion as setting out a challenge that any satisfactory account of moral claim rights should meet. Section VII concludes.

Before I start, let me make some clarifications. My discussion focuses on claim rights in moral theorizing specifically, where the notion is assumed to capture a distinctive moral position. As I shall explain towards the end of the article, the ambiguities that make the notion of claim rights ill suited for this purpose in moral theorizing also render it a powerful tool of political advocacy. I remain silent about the suitability of claim rights for the technical purposes of legal reasoning. Since those are, plausibly, different from the purposes of moral philosophy, the concerns raised in this article need not extend to the legal domain.

Finally, a note on my terminology. In what follows, I shall treat ‘claim rights’, ‘directed duties’ (the violation of which wrongs particular others), and ‘duties owed to others’, as equivalent. This terminological choice is in line with standard use in the literature.6

An evaluation of claim rights presupposes an account of the work we want this notion to do in moral theorizing. If no plausible definition that does that job can be found, we will have reason to doubt the usefulness of the concept, at least with respect to the originally intended purpose.

For an analogy, consider a society with a conceptual scheme different from ours, in which there are only two types of cutlery: forks and spives. Forks are defined in the familiar way, as tools for picking up solid food. The concept of a spife is disjunctive: it points either to tools for scooping liquid food or to tools for cutting solid food. We want these concepts to help us effectively select different ‘tools for eating’. As it happens, two kinds of objects fit into the category ‘spives’: what we (in our world) call spoons and knives. In this parallel society, when asking for a spife, one may have in mind either what we call a spoon or what we call a knife. Without further specification, one may therefore end up getting something one did not want. The category ‘spife’, it seems, is a recipe for confusion: it does not help us select our tools efficiently. Instead of having one concept—‘tools to either scoop liquid food or cut solid food’—it would be much better to have two: ‘spoons’ for liquid food and ‘knives’ for solid food. This would be a reason to abandon the concept of a spife, at least for the purpose of selecting specific pieces of cutlery. If, mutatis mutandis, the concept of claim rights were similarly unable to do the work we want it to do in moral theorizing, we would have reason to abandon it, at least for that purpose.

So, what work do we want claim rights to do in moral theorizing? Claim rights, as I have noted in the Introduction, are meant to designate a distinctive moral position that some (that is, right-holders) hold vis-à-vis others (that is, duty-bearers). Claim-rights relations are ‘bipolar’, in the sense of always involving two relata: a duty-bearer on the one hand, and a claim-right-holder on the other.7 Each pole within the relation is marked by distinctive attributes. One pole bears duties: she is bound by certain oughts. The other pole possesses correlative rights. This, in turn, puts her in a special moral position vis-à-vis the corresponding duties, which are owed to her and the violation of which wrongs her. To be a claim-right-holder, then, is ‘more’ than being the mere beneficiary of someone's duty. A good definition of claim rights must elucidate what this ‘more’ precisely amounts to: what it means to have a claim (or, equivalently, to be owed a duty and be wronged by its violation).

In addition, a good definition of claim rights should account for paradigmatic rights statements. This is a familiar desideratum. As Leif Wenar puts it, rights theorists ‘take extensional fit with ordinary language as a primary standard of success’.8 And as Matthew Kramer confirms, ‘nobody has ever denied that ordinary understandings are an important anchor for one's theorizing about rights and rights-holding’.9 This is not to say that a successful definition of claim rights must fit every conceivable instance of ordinary-language rights statements. Ordinary language is messy, and a good account of claim rights for the purposes of moral theory may well require a more disciplined use of this term than we find in day-to-day discourse.10 But if our definition failed to encompass paradigmatic rights talk, we would have to ask ourselves whether what we are capturing really is the special moral position intuitively associated with the language of claim rights, and not something altogether different.

Emphasis on ordinary language invites the objection that the idea of a claim right is a term of art, introduced by Hohfeld to disambiguate different meanings of ‘right’ in the law. In ordinary language, we talk about rights simpliciter, not about any Hohfeldian incident in particular. So, how are we to isolate ordinary-language instances of the notion of ‘a right’ that pick out claim rights specifically?11

This doesn't pose an insurmountable obstacle to our inquiry, for two reasons. First, while many of our ordinary-language rights statements implicate bundles of Hohfeldian incidents, claim rights often lie at their heart.12 For example, whenever we insist that individuals have rights to a variety of objects—shelter, life, free speech, property, and so on—we typically imply, among other things, that they are owed secure access to them.13 When such access is denied, we can infer that some agents are failing to discharge the corresponding duties, hence that some claim rights are being violated.

Second, to test whether any rights assertion is meant to involve claim rights, we can ask whether violations of the asserted right would wrong the right-holder in particular, as opposed to being wrong simpliciter. If our intuitive answers are affirmative, then we'll know that ‘right’, in the statement under consideration, is intended to mean ‘claim right’.

As will become apparent, meeting both desiderata proves challenging. In fact, if I am right, it is impossible.

Philosophical discussion about claim rights is dominated by the dispute between will and interest theories.15 In what follows, I briefly examine how these theories fare in relation to our two desiderata. Doing so will require going over some familiar ground. Although this exercise may seem a little tedious, it provides necessary background for my argument in later sections.

Let us start with the will theory, prominently defended by H. L. A. Hart and Hillel Steiner among others.16 For the will theorist, to have a moral claim right is to possess the moral power to control another's duty (that is, to demand/enforce its performance, waive it, and seek compensation for its violation). This definition captures an important aspect of the phenomenology of claim-rights possession. After all, if your duty is owed to me, its performance is in some sense ‘mine’, and when something is mine, I have normative control over it. The will theory not only has independent appeal, but also meets desideratum (a). It assigns claim-right-holders a distinctive moral position, namely the power to control others' duties. But what about desideratum (b)? Here, as critics have famously pointed out, the theory encounters some difficulties, in that it under-generates rights.17

On the will theory, a capacity for choice—hence for normative control over others' duties—is a necessary condition for rights possession. Consequently, the theory cannot account for the rights of entities—such as children, people with severe mental disabilities, and non-human animals—who lack such a capacity.18 What is more, the theory has no room for so-called inalienable rights. Since, for the will theorist, to have a right just is to have the power to control a duty, including the power to waive it, inalienable rights—that is, rights that cannot be waived—are a conceptual impossibility.19 In sum, the will theory satisfies desideratum (a), but struggles with desideratum (b). Let me now turn to its main competitor.

According to the interest theory, prominently defended by Joseph Raz among others, to have a right is to possess an interest weighty enough to justify another's duty.20 The interest theory, too, has much intuitive appeal. It is natural to suggest that a duty is owed to me when my interest is key to explaining its existence. Many rights—to life, to bodily integrity, to food, and so on—appear to fit the interest-theory rationale. Furthermore, ‘being the holder of an interest that justifies a duty’ can be aptly described as a distinctive moral position. Whoever possesses it stands in a special normative relation with respect to the duty-bearer. The interest theory thus satisfies desideratum (a). But, like the will theory, it struggles to meet desideratum (b).

First, since there are several duties justified by others' interests that do not appear to give rise to rights, the theory over-generates rights.21 Consider my duty to assist an elderly lady who is struggling to cross the street. If I am uniquely positioned to help her, and can do so at very little personal cost, I ought to do it. Yet, most people would deny that the lady has a claim right to be helped by me in the same way as, say, my baker has a claim right that I pay for the bread rolls I bought from him this morning. My duty looks like a matter of beneficence, and although the beneficiary in this case is clear, this doesn't seem sufficient to generate a right.22

Second, as others before me have also noted, since there are cases where someone's right to X cannot plausibly be justified by appeal to their interest in X, the theory under-generates rights. For illustration, consider my property right over a cheap ornament gifted to me by a cousin. I have very little interest in possessing the ornament. Finding it rather ugly, I put it at the bottom of a closet some years ago and have since forgotten about it. Under any plausible construal of the situation, my interest in possessing the ornament is not weighty enough to place others under strong obligations not to steal it.23

One may respond that the relevant interest is not in possessing the ornament, but in being the one who decides what to do with it: it is a broader interest in freedom. But, as Raz himself admits, there are conceivable cases in which ‘I do not mind and have no reason to mind your taking it without permission’.24 That is, no freedom-interest is involved. In such cases, it seems, an interest theorist must conclude that I have no right.

Raz's way out of this difficulty involves suggesting that, while I may have little interest in owning this particular object, I, together with everyone else in society, have an interest in there being a well-functioning system of property. That system is justified not by appeal to the interests of particular individuals, but by everyone's interests: by the common good. Such common-good cases are ones where the right-holder's interest and the public's interests are ‘harmoniously interwoven’: that is, ‘benefiting him is a way of benefiting them, and … by benefiting them the right-holder's interest is served’.25 In such cases, the weight of my individual interest is ‘augmented’ by that of others, thereby justifying my (property) rights.

While this response may allow the interest theory to avoid the under-generation charge, it does so at the cost of making it unable to satisfy desideratum (a).26 For, if what explains others' duties not to steal my property are not my interests, but my interests as well as everyone else's (namely, the common good), from the perspective of the interest theory, I can no longer be said to stand in a distinctive moral position in relation to those duties. When it comes to generating those duties, my interests are no more important than everyone else's. This strikes me as a significant price to pay, greater than just accepting the costs of under-generation.27

In sum, the will and interest theories—in their original formulations—both satisfy desideratum (a), each pointing to a distinctive moral position. They also each have difficulties satisfying desideratum (b). My aim in highlighting these difficulties has not been to induce a change of heart in these theories' advocates. Objections to the will and interest theories have been around for a while, and yet the literature continues to be broadly divided between these two camps, with theorists on each side either ‘biting bullets’ or providing ever more subtle responses to the objections raised.28 But I do hope that a fair-minded reader can grant me this: neither the will nor the interest theory provides a fully convincing account of claim rights, judged by our two desiderata. In fact, as others before me have pointed out, the debate appears to have reached a stand-off.29 Explaining why this is so, and why the difficulties plaguing the will and interest theories are bound to extend to alternative theories as well, will be my task in the next section.

Diagnosing the difficulties with will and interest theories requires us to systematize the conceptual domain of claim-rights talk. A good systematization of this domain must be responsive to the following three considerations. First, there has to be something that unites claim-rights talk, otherwise we would simply be unable to discuss claim rights without always talking past each other. Second, will and interest theories must be ‘on the right track’, otherwise their enduring influence would be inexplicable. Third, the conceptual domain of claim-rights talk must be sufficiently heterogeneous to explain these theories' inability to capture some core rights statements.

My suggestion—which, as I will show, accounts for all three considerations—is that moral claim-rights language, in all its core uses, is linked to the idea of empowerment relative to others' duties. This is the ‘greatest common denominator’ of claim-rights talk. The relevant empowerment may vary depending on the case at hand, and consists in different forms of control over others' duties—such as the power to demand and enforce them, to waive them, and to seek compensation for their violation.

Crucially, our language of claim rights implicates empowerment in two distinct ways. On the one hand, we can talk about claim rights while focusing on the justification for empowerment: the moral reasons (typically, interests) there are to empower individuals. From this justificatory perspective, a statement such as ‘A has a moral claim right to X' is shorthand for ‘A's interests justify certain forms of empowerment—either for A herself or for other agents—relative to others’ duties to X'.30 On the other hand, we can talk about claim rights while focusing on the morally justified forms of empowerment that are present in any given circumstance: an empowered status individuals enjoy. From this status perspective, a statement such as ‘A has a moral claim right to X' is shorthand for ‘A is empowered relative to others' duties to X'.

Many statements about claim rights are equally susceptible to both interpretations. Which one is most appropriate will depend on the speaker and context at hand. For instance, rights advocates may often be understood as making justification statements, pointing to the reasons why certain forms of empowerment ought to be granted to a certain class of individuals: for example, LGBT groups, the differently able, ethnic minorities, and so forth. Others may instead point to existing forms of empowerment, reminding their interlocutors that certain agents already enjoy them.

The fact that, for most statements about claim rights, status and justification interpretations are jointly satisfied allows us to talk meaningfully about claim rights, and gives us the sense that claim-rights language points to a unique phenomenon. This, however, is not so. First, and somewhat trivially, the forms of empowerment associated with claim-rights language need not always co-occur. For instance, there may be cases in which waiver powers are inappropriate (for example, the right not to be tortured) or where powers to request compensation would not be justified (for example, when rights violations are too trivial). While all claim rights involve empowerment, then, they do not all involve the same forms of empowerment.

Second, and more importantly, there are some paradigmatic instances of claim rights which can only be made sense of from either a status or a justification perspective. These are statements where the ‘locus of justification’ and the ‘locus of status (empowerment)’ diverge. In such instances of divergence, ordinary language sometimes locates rights in the individuals whose interests justify empowerment, and other times in the agents who possess an empowered status. The former cases are captured by justification-rights statements, but not by status-rights statements. For the latter, the reverse is the case. Such statements reveal that, in fact, beneath our language of claim rights, lie two distinct—though related—phenomena: the justification of empowerment and empowerment itself.

To see this, consider the assertion ‘children have moral claim rights to education’. This can be easily interpreted as a justification-right statement, meaning that children's interests in education justify adults' powers to see to it that those who bear duties to provide children with education fulfill them. But this statement lacks an equally natural interpretation from a status perspective. The view that children themselves should be empowered in relation to others' duties is hard to sustain. Children, as we have seen, cannot plausibly have the power to control others' duties. Their interests may justify that power, but the power lies elsewhere—with parents, guardians, or the state. From a status perspective, therefore, we cannot say that children have a right to education.

For another example, return to the assertion ‘I have a moral claim right to the ornament gifted to me by my cousin’. From a status perspective, this can be easily interpreted as meaning that I am empowered to, for example, demand that others not take the ornament, seek compensation in case of theft, and so on. But when we try to read this assertion as a justification-right statement, we encounter difficulties. It is just not true that my interest in possessing and controlling that ornament explains why I am (or should be) empowered in relation to it. Justification-rights statements are ill suited to capturing rights whose existence is justified not by the interests of what ordinary language identifies as the right-holder, but by broader considerations, typically the interests of society as a whole in the existence of certain power-conferring practices: for example, a well-functioning property system.33

To sum up, claim-rights talk is underpinned by a common reference to empowerment relative to others' duties, and our language of rights invokes such empowerment in two ways, captured by the distinction between status- and justification-rights statements. Many statements about claim rights are susceptible to both status and justification interpretations, giving us the impression that a unique phenomenon lies beneath them. But this impression is, in fact, illusory.

My systematization of the language of claim rights is, I believe, clarifying in several respects. Apart from highlighting what assertions of claim rights have in common, it (1) helps us diagnose the failures of the will and interest theories, (2) makes sense of these theories' enduring influence, and (3) explains why it is impossible for any definition of claim rights to satisfy both of our desiderata. In what follows, I elaborate on these points.

While the interest theory accounts for the core concerns behind justification-rights statements, the will theory largely articulates those captured by status-rights statements. This, I believe, explains their lasting popularity: each theory responds to an important dimension of our rights language. At the same time, each theory is deficient in several respects, and my empowerment-based taxonomy helps us see why.

Consider the interest theory first. Its focus on the justification of duties—as opposed to the justification of empowerment relative to those duties—is responsible for its over-generation of rights: for declaring that rights exist even in cases of mere beneficence. Moreover, insofar as it identifies rights with justifications for duties, rather than with empowerment relative to duties, the theory is systematically unable to account for rights statements we can only make sense of from a status perspective (for example, my property right over the ugly ornament).

Turning to the will theory, while this is better placed to make sense of status statements, it runs into difficulties for two reasons. First, as we have seen, the forms of empowerment associated with claim rights are heterogeneous and need not always be co-instantiated (as, for example, in the case of inalienable rights). By assuming that such forms of empowerment always co-occur, the will theory under-generates rights. Second, by not referring to the interest-based justifications for empowerment, the theory is systematically unable to capture those claim-rights statements we can only make sense of from a justification perspective (for example, children's rights).

As anticipated, my analysis not only helps us diagnose the difficulties with prominent theories of rights, but also reveals that such difficulties are bound to extend to any attempt to define claim rights in line with the two desiderata introduced at the start of this article. The point can be made most effectively by recalling that justification- and status-rights statements locate rights, as a moral category, in different places.

Justification statements locate them in the individuals whose interests justify empowerment, and it is an open question as to which form of empowerment is most appropriate in any given case. Status statements, by contrast, locate claim rights in the individuals who possess certain justified forms of empowerment. The fact that the individuals whose interests justify empowerment and the individuals who are empowered need not always coincide (think of children's rights and property rights), coupled with the fact that empowerment can take several different forms that need not always be co-instantiated, makes it impossible to develop a definition of claim rights that both captures all core instances of ordinary-language use and singles out a distinctive moral position.34 If we want to capture all core ordinary-language statements, we need a disjunctive definition of claim rights. Such a disjunctive definition, in turn, does not point to a distinctive moral position, but rather to a family thereof, just as the broader notion of ‘a right’ is disjunctive, and points to four possible normative relations.35

I have argued that, for structural reasons, no extensionally adequate definition of a claim right can enable this notion to do the job we want it to do in moral theorizing. There is no distinct moral position that the notion of a claim right captures, but a family thereof. The idea of a claim right is not much more specific, then, than the broader notion of a right, of which it is meant to be a disambiguation.

What follows from this? I consider three possibilities and offer some arguments in relation to each. My aim is not to defend one in particular, but to show that, regardless of one's instincts, the present discussion should prompt us to rethink the direction taken by much of the contemporary conceptual debate about claim rights.

The language of rights, and especially of claim rights, is pervasive in moral theorizing. If there is one thing non-utilitarian moral philosophers seem to agree on, at least in the western world, it is that human beings have a certain set of rights. Reference to their status as claim-right holders is meant to signal something special about their humanity and position vis-à-vis one another. I have argued, however, that when we inquire more deeply into what exactly this position might amount to, the idea that the notion of a claim right aptly captures it evaporates. The greatest common denominator of claim-rights talk is empowerment. Moral claim rights are ill suited to capture a distinctive moral position. So long as this is what we want them to do in moral theorizing, we should conclude that they are not fit for purpose. Whether this means that the language of claim rights should be abandoned or repurposed is a matter I have left open. I hope, however, to have offered reasons for rethinking the nature of claim rights as a moral concept.

I acknowledge the support of the Leverhulme Trust (Philip Leverhulme Prize), the Forschungskolleg Humanwissenschaften (Bad Homburg), and the Justitia Amplificata Programme.

There are no potential conflicts of interest relevant to this article.

The author declares human ethics approval was not needed for this study.