Dworkin’s task is to explain what is involved in taking rights seriously. He maintains that people who believe there are moral rights “in the strong sense” are committed to believing that government should tolerate law-breaking in some cases, namely, when laws conflict with rights. This separates Dworkin’s “unorthodox” view from the orthodox one held by both “liberals” and “conservatives.”
We spent most of our time discussing the distinction between what Dworkin calls rights “in the strong sense” and what he calls rights “in the weak sense.”** Everyone else calls them “claim rights” and “liberties”, respectively. In particular, we spent a lot of time on the question of whether there could be cases where a person both has and doesn’t have a right to do something.
I said that I think there are lots of cases where people have rights, that is claim rights, to do things that they do not have rights, meaning liberties, to do. (Incidentally, this illustrates the utility of using the distinctions I put on the board; if all we used was the term “right”, we would be even more confused by cases like these.)
You have a liberty to do Q if there are no obligations not to do Q. You have a claim right to do Q if others have obligations not to interfere with your doing Q.
Suppose Q = yelling at my kid for a minor infraction, making him cry and driving all the other shoppers in the store crazy. I assert the following:
That is a description of a case in which I have no liberty to do Q but I have a claim right to do Q.
Not many of you were willing to say that you bought it, which is an optimistic way of saying that pretty much everyone who spoke was against me and I’m hoping there’s a silent minority on my side. Well, let it sink in for a while.
I didn’t mean to say that you’re never allowed to interfere with my parenting, no matter how bad. If I slide into child abuse, I should hope that you would interfere. I just mean that there is a range of parenting practices that are both wrong for me to do and wrong for you to interfere with.
I should add that there are different kinds of interference. Take my ranting racist on the soapbox. The RROSB has no right against your getting on your own box and refuting his arguments. That’s a way of “interfering” with his attempt to get his message out that is perfectly legitimate. The most he has is a right against your physically forcing him to stop. That’s still enough to say that he has a claim right. It’s just that his claim right is something like ‘the right to speak without being physically accosted’ rather that ‘the right to speak without any interference at all.’
Kevin sent me a great argument by email. Without his permission, I’m going to repeat it here.
It is unintelligible to think of lacking a liberty while one has claims against interference on all who could. Whether moral or legal, saying that A (or, the mother) has an obligation not to do something must include a party to whom A is obliged. If all parties are ruled out of being this person to whom A could be obliged because A has claims against interference on all of them, then we cannot say A is obliged. If A is not obliged, then A has no obligation and so has the liberty to do whatever it is.
Other thoughts on grocery store example: The child is perhaps the only party against which the mother does not have a claim. If we still want to say that she should not be doing whatever to the child, then we have to say that the child has a claim against her. That allows us to say that she lacks the liberty, but if we combine it with her claims against interference, then it seems that the child's claim is then unenforceable and meaningless, and we are left with a competitive situation in which she has the liberty to scold the child and the child has the liberty to resist.
I think the only way to answer Kevin is to say that I might have a right against you, a stranger, that I don’t have against my kid or his representatives. In other words, it’s wrong of you, a stranger, to interfere. But it wouldn’t be wrong of my wife or other relative who is, in a loose sense, speaking for the child. Such a distinction would be similar to the distinction between different ways of interfering above.
Without a distinction like that, I think that Kevin is right, er, correct.
There’s a very interesting article defending the point I was trying to make. Here’s the citation.
Jeremy Waldron, “A right to do wrong.” Ethics (1981) 92(1):21–39. [JSTOR]
We talked about three points relevant to the heart of Dworkin’s article.