Feinberg, Joel - The Nature and Value of Rights

2015/06/26

The Journal of Value Inquiry, 1979

This paper might be considered a foundational explanation of what rights are and what it means to have them. Author starts with a thought experiment about a fictional place called "Nowheresville", a place where there are people who live together but have no concept of rights and/or obligations. People there could be considered morally virtuous, filled with compassion, benevolence, sympathy, and pity, but they wouldn't have rights and therefore no claim against another if they were wronged or harmed. This is because, as author goes on to argue, duties toward each other are bound up with the rights we are said to have. On the other hand, there is a second usage of "duty" which allows for a generalized requirement of action, but one that isn't directed for the benefit or due any one particular person (pg143-4). This kind of abstract duty to, perhaps, "the Law", would be allowed in Nowheresville, but it would be, author argues, odd. For instance, if a driver ran a red light and crashed into another, she may have failed her duty, but not toward the other driver she crashed into (since each driver owes the other driver, technically, nothing) (pg144).

The citizens of Nowheresville therefore have both moral virtue (which is generally undefined by author), an abstract duty to the state or law, and even duties created by conscience. Related to this sort of duty are two additional ones, those relating to "personal desert" and "sovereign monopoly of rights". These are interesting, the first one relating to not a right that a musician has for applause, but instead that there is a sort of "fittingness" between actions and desert, or between character traits and rewards (pg145). Author goes on to discuss this kind of desert and our conceptions of it outside of Nowheresville (pg145-6), for instance in the practice of "tipping" and gratuities. The second kind of duty is the "sovereign monopoly of rights", which author analogizes to Hobbes' Levithian (pg146-7). The duty to keep a promise, or to repay debts is owed not to the promisee or to the creditor, but instead to a kind of single sovereign, or (again) an abstract law or god. The role-based duties and obligations (and, perhaps, the rights conferred by being in the role), are necessary for exchange, but they aren't owed to anyone in particular. This is intended to be a counter-intuitive outcome for Nowheresville, and is further analogized with the duties children sometimes take to owe to their parents but not to their siblings (pg147).

The next section of the paper tries to explicate the notion of rights, but admits that a true definition is elusive and must be co-definitional with the concept of "claims against" others, or just "claims" simpliciter (pg148-150). Author distinguishes between asserting a claim, having a claim, and recognizing a claim (pg149-150). Author argues it is the rights, and the claiming against each other, that allows for full dignity and self-respect (pg151), which the citizens of Nowheresville lack. Interestingly, while claims can differ in degree, rights do not (pg152), and also interestingly, there is a way in which someone can have a claim for, or right for X without anyone in particular being under the obligation or duty to provide or perform that X. This might be the case of the right to a decent education, or birth control, in places where no one is in a position to provide such things (pg152-3). Author also takes a stand against McCloskey's conception of rights as "rights to", not "claims against" (pg154). McCloskey seems to find a generalized individual right against all other actors, current and possible, as absurd. Instead, the right inheres to the owner and others are duty-bound to recognize it. Author finds no absurdity in this "vague" generalized claim against the actions of others, so rejects McCloskey's objections.

In the postscript, author clarifies that the citizens of Nowheresville would have rights, but they just wouldn't know it. But further, author suggests that there is something wrong with a world where everyone acts according to their duties and enforces their rights unerringly (pg156). Only with the concept of rights is magnanimity (and, by implication and earlier argument, supererogation) possible, author claims. Finally, some technical issues with rights that one must exercise is clarified, such as, perhaps, the right to an education by someone who isn't mature or educated enough to claim this right for themselves (pg157-8).