Feinberg on rights

Notes for March 27

Main points

Feinberg tries to 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 most of today’s session on describing Nowheresville and evaluating Feinberg’s contention that its denizens must lack self-respect because of their inability to make claims.

What is missing in Nowheresville?

The idea behind Nowheresville is to imagine a society that is as close to our own except for lacking rights. So the Nowheresvillians have duties: there are things they are morally required to do. They can also enforce these duties: people who do the wrong thing can be punished or shamed. They also have a system of personal desert, meaning they can think it’s appropriate that people get rewards or punishments. And they have special obligations generated by transactions, like contracts or promises.

As Bogdan pointed out, we shouldn’t take Feinberg’s suggestion that Nowheresville is better than Claremont too literally. In order to see why rights are valuable for us, we should look at a world that is pretty much like our own. Comparing our world with a paradise that lacks rights is unlikely to throw much light on our own practices.

So what do they lack? According to Feinberg, they lack the idea that anything is due or owed to another person. The closest they get to this is the idea that they have to obey a legal or moral authority: a third party that lays down rules governing life among the Nowheresvillians.You might question whether they could even understand that. We illustrated this by imagining that John was the one who gave us rules.

Someone who isn’t due anything is incapable of making claims, according to Feinberg. As he spells it out, that means at least these two things.

  1. No particular person is in control of the duties. No one can waive the duties or insist that they be performed at a particular time.
  2. The failure to perform a duty doesn’t wrong any particular person. People in Nowheresville cannot legitimately feel resentment or a personal affront when someone else falls down on their duties.

The connection with self-respect is supposed to be that people who lack the ability to make claims lack the thought that they are owed anything. They are incapable of standing up for themselves by insisting that others treat them in ways that they deserve. That’s because they don’t have the idea that anyone owes them anything.

How important is claiming?

Is the ability to make claims, as Feinberg defines them, really necessary for self-respect? We discussed three alternatives.

  1. Standing up for yourself by appealing to a third party, like the state (or John). This was Callum’s idea.
  2. Using physical violence. (Bogdan)
  3. What I called “criticizing,” namely, pointing out when someone violates their duties in ways that particularly effect you.

Let me say just a bit more about my point. Claiming is something that only people with rights can do. Only the person with a right is capable of insisting that the person with the corresponding duty perform the duty. As Feinberg puts it, only the right holder can make a claim in the performative sense. We’re going to talk more about what, exactly, that means next time. But on the face of it, it seems pretty close to Hart’s idea that the person with the right controls the other person’s duties and can either insist on their performance or waive the requirement.

Criticizing is different. Anyone can criticize. In our world, for example, my neighbor can criticize Tracy for fly-tipping in my yard just as well as I can; but only I can make a claim since only I have the right that is violated when she dumps her trash on my lawn. Since the ability to criticize is not tied to having rights, people in Nowheresville can do it even though they cannot make claims.

My question is: why isn’t the ability to criticize people who mess with you good enough for self-respect? It’s a way of standing up for yourself after all. It’s important to be clear exactly what this does and does not do for you. Sydney is right to say that criticizing alone isn’t going to literally block someone from hurting me or leaving trash in my yard. But neither is claiming. They’re both linguistic acts that are used to bring various kinds of social pressure to bear on others so they will do the right thing. But neither one will keep the trash out of your yard all by itself.

If I were Feinberg I would try to answer this point by returning to the thought that people who don’t think they have rights don’t think there is anything that they are owed. Isn’t that just the condition of someone who lacks self-respect? As Ondrej put it in the 2010 class, criticizing involves standing up for the rules but claiming involves standing up for yourself. That’s not a bad reply.

Key concepts

  1. Nowheresville
  2. Claiming
  3. The connection between rights and self-respect
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2013. It was posted March 28, 2013.
Philosophy of Law