Feinberg on rights Notes for March 30

Main points

We talked about Feinberg’s answer to two questions:

  1. What is distinctive about rights? Answer: they give us the ability to make claims, in the performative sense.
  2. What is the value of rights? Answer: the ability to make claims is necessary for dignity and self-respect.


Feinberg argues for those two points by imagining a place that lacks rights: Nowheresville. We spent the first half of the class going over the description of Nowheresville in order to isolate just what Feinberg thinks is missing there.

We started with the claim that they have duties (but not rights). Aron correctly pressed us to be clear on just what a duty is. As Feinberg thinks of it, you have a duty not to do X if it would be wrong of you to do X.


Later, we had some question about the relationship between rights, duties, and punishment or enforcement. Can just anyone enforce a duty or punish the person who violates a duty? Or are these things that only a person who is wronged may do? Since only a person who has a right may be wronged (yes, the language is loopy), that would mean that people in Nowheresville cannot enforce duties.

As it happens, we, here in Realsville, er, Claremont, don’t think that is so. We allow a third party, the state, to enforce the criminal law. This is so even though the criminal law enforces lots of duties such as the duty not to kill, the duty not to steal, and so on.

This is an established part of our intellectual tradition. Here, for instance, is John Locke describing what he called the law of nature and our rights under this law.

7. And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man's hands, whereby every one has a right to punish the transgressors of that law to such a degree as may hinder its violation. … And if any one in the state of nature may punish another for any evil he has done, every one may do so. For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.** Second Treatise of Government §7.

Locke’s description of the powers given to the state nicely mirrors our distinction between the criminal and civil law.

From these two distinct rights, the one of punishing the crime for restraint, and preventing the like offence, which right of punishing is in every body; the other of taking reparation, which belongs only to the injured party; comes it to pass that the magistrate, who by being magistrate, hath the common right of punishing put into his hands, can often, where the public good demands not the execution of the law, remit the punishment of criminal offences by his own authority, but yet cannot remit the satisfaction due to any private man, for the damage he has received. That, he who has suffered the damage has a right to demand in his own name, and he alone can remit:†Second Treatise of Government §11.

Here is why I say that Locke’s description mirrors our legal system. The state (Locke’s magistratrate) has a monopoly on punishment under the criminal law, but only private individuals may demand compensation for wrongs done to them under the civil law.

I should hasten to add that Locke is describing rights and that people in Nowheresville have no such things. All I am trying to say is that Locke did not think that the permission to punish people for violating their duties rested only with those with the relevant rights, namely, those who would be wronged by the violation of the duty. He believed that anyone was allowed to enforce duties. It’s that broad permission that could apply to Nowheresville.


What the people in Nowheresville cannot do is especially resent violations of duties, even if they are harmed by them. No one is in any special position and everyone is equally placed to object to those who violate their duties. As Toby put it, no one has a personal complaint.

It’s that fact that Feinberg finds objectionable. People in Nowheresville can’t speak up for themselves, he thinks. They lack the ability to think of anything as their own or that others owe them anything. I think Ryan was right to say that this personal investment in a case is something that we all have. His reference to the victim’s rights movements in the criminal law was quite apt. The fact that victims have no say in criminal prosecutions is a major source of complaint about our criminal justice system.

Ben’s objection

But do people need rights and claiming in order to have self-respect? They can certainly criticize those who break their duties. If you break your duty and harm me, I would be far more likely to criticize you than if you broke your duty and harmed someone else. Doesn’t that show that I have self-respect? Or, at least, wouldn’t the fact that I would think of criticizing you especially when I am harmed show that I retain my self-respect?

To see Ben’s point, it’s important to be clear about the difference between claiming and criticizing. Here it is:

  1. Claiming is something that only one person can do: the person who has rights and who is wronged by the violation of a duty.
  2. Criticizing is something that anyone can do: it doesn’t matter if the person criticizing has a special moral status such as “having a right” or “was wronged by violation of the duty.”

That’s it. Otherwise, criticizing and claiming are exactly the same.

I used to think that the kind of objection Ben made was decisive. OK, I still feel that way, to be honest. But I am increasingly seeing the point that the inability to think of things as being your own should matter a lot too. (See the last paragraph in the previous section). It’s an interesting dispute!

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted March 30, 2009.
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