Claiming and rights

Notes for April 1

Main points

Feinberg tries to establish two points about rights.

  1. Rights make claiming possible
  2. Claiming is necessary for self-respect

Last time, we discussed the second point, the connection between claiming and self-respect. Today, we talked about whether there really is an “intimate connection between having a claim and having a right” (Feinberg, 354).


We began with reviewing where we left off last time. I talked again about my distinction between claiming and criticizing and mentioned Feinberg’s likely answer.

Joseph noted that we hadn’t actually said anything about what self-respect is. Good point! So we went to the board to see what we could come up with. Roughly speaking, one set of answers concern how we view ourselves: we’ll have self-respect if we think we have good qualities. Another set concerned our relationship with others: we’ll have self-respect if we think we are owed a kind of consideration.

I think Feinberg would have a harder time making his point if self-respect consisted in the first set of answers than he would if he were working with the second. We didn’t get much farther than this initial survey, though. It would be interesting to see it more worked out. Good point, Joseph!

Rights without claims

I have a series of examples of what we call rights that do not involve much in the way of making claims or exercising choices or control. (I should add that Feinberg may still be right to say that some rights are still necessary for making claims, even if I’m correct about these other cases.)

  1. Rights for children or animals.
  2. Human rights, such as the right against being tortured.
  3. Rights protected by the criminal law.

Children and animals cannot make claims or exercise control over others. No one of sound mind would want to waive the right against being tortured. And the criminal law notoriously gives victims very little control over the protection of their rights such that individuals cannot effectively waive duties under the criminal law. The victim’s consent is rarely a defense against a criminal charge and victims cannot control the decisions about whether to prosecute those who have committed crimes against them.

In short, the duties in these cases do not depend on whether the party with the right makes claims or not. And the party with the right has little control over the duties corresponding to the right. That suggest that these rights do not fall under Hart’s choice theory and that Feinberg’s notion of performative claiming is not central to them. Compare Feinberg’s description of rights:

“If Nip has a claim-right against Tuck … Nip not only has a right, but he can choose whether or not to exercise it, whether to claim it, whether to register complaints upon its infringement, even whether to release Tuck from his duty, and forget the whole thing.” (Feinberg, 352)

I got some pushback about my factual assertions: Callum claimed that there is more individual control in the criminal law than I had suggested (though this may be a difference between the US and the UK). Sydney also expressed some doubt about whether the criminal law’s paternalistic side is justified: why do criminal prosecutions for acts done with full consent of those affected make any sense?

The benefit theory again?

Nonetheless, it seems to me that something like the benefit theory of rights is likely to give the more comprehensive account. For better or worse, the central function of many rights really does seem to be to protect our most important interests, with granting control to those who hold the rights being of secondary importance.

Hart and Feinberg aren’t wrong, though. I think they’re correct to say that they have identified the function of rights that is distinctive and not redundant with other moral and legal concepts, such as duty.

I closed with some remarks about so-called manifesto rights. These are rights to necessities without obvious corresponding duties. I expressed my opinion that too many hands have been wrung over the problem of showing that rights such as the right to food are “real” rights rather than “manifesto” rights. In many cases, manifesto rights are much more important than those that meet the logical definition of a claim right, with a determinate corresponding duty.

And on that note, let me recommend Professor Williams’s presentations on the right to food.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2013. It was posted April 1, 2013.
Philosophy of Law