How important is claiming? Notes for March 29

Main points

We discussed Feinberg’s claim that rights are necessary for dignity and self-respect. We wanted to know whether the people in Nowheresville lacked these things. Since Nowheresville is exactly like Claremont except that there are no rights, that would tell us about the value of rights.

Would conventionally defined rights do?

Elin got us started with an argument that she would be satisfied with conventional rules that she could use to hold people to their contracts and other duties. She could still stand up for herself that way, even if she lacked moral rights, that is, rights independent of the law or other social institutions.

We were not sure whether Elin had described the rules that could exist in Nowheresville. If the rules give you the ability to, well, make claims, then they give you legal rights. I think that this shouldn’t be allowed in Nowheresville: they have no rights at all. But I also don’t know that the text settles the question. So we could ask two things: “do people need moral rights for self-respect or would legal rights be enough?” and “do people need rights, whether moral or legal, for self-respect?”

Criticizing and claiming

I proposed a distinction between criticizing and claiming. Here’s what the distinction amounts to:

  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.”

I argued that people in Nowheresville could criticize others and that this would be good enough for self-respect. They can stick up for themselves by criticizing those who break their duties in ways that particularly effect them.

This was hotly contested. Ondrej had the best line of the day, in my opinion. He said that when you criticize someone you stand up for the duty but when you make a claim you stand up for yourself. I wish I had thought of that! The general point is that people in Nowheresville can’t think of anything as their own or that others owe them anything. I can see why Feinberg thinks that fact, all by itself, means that they lack self-respect.


Many of you pointed out that enforcement is important. Being able to claim or criticize by itself won’t mean much if it doesn’t come with the ability to use force to coerce people to perform their duties.

I agree, but I find it harder to find a significant difference between claiming and criticizing on this point than some others did. In both cases, people will be able to enforce duties and, in both cases, individuals will need help to fully defend their interests.

I’m impressed by the fact that the criminal law works largely like criticizing. Individual victims of crimes have no ability to make claims against those who violate their duties. The state prosecutes crimes and victims have no control over whether a criminal is prosecuted or not. But I don’t think this saps my self-respect or willingness to stick up for myself if I’m robbed or beaten.

The idea isn’t peculiar to me. John Locke, a philosopher in the seventeenth century, thought that everyone has the right to enforce the duties laid out in what he called the law of nature.

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 also thought that individuals have the right to “take reparation” (demand compensation) when they are the victims of crimes, for what it’s worth.

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.

So Locke, in effect, thought there were two rights to enforce other rights: the right of punishing offenders and the right of taking reparations. He thought that the right of punishment was given up to the state in the social contract while individuals retained the right of taking reparations. This scheme rather neatly corresponds to our distinction between the criminal and civil law.

My opinion

I think that both claiming (Feinberg) and choice (Hart) are important for some rights. I don’t think they’re essential to all rights. I think that the point of the basic human rights is to protect people’s interests in not being tortured, killed, and so on. These rights do not give people control over others duties, such that they can waive the duty not to torture, kill, and so on. Nor is it essential that they make a claim: the duties hold whether or not they are claimed.

So it seems to me that Feinberg and Hart are correct about what is distinctive and important about some rights. For other rights, I’m not sure that rights add anything distinctive. The right against being tortured might as well be described as the duty not to torture people: the person holding the right has no special control over the duty.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted March 31, 2010.
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