Main points
Benefit theories, such as Raz’s appear not to have a satisfactory answer to the question of what makes rights distinctive. (I say “appear” because one might reasonably think that they do, in fact, have a satisfactory answer. If that is what you think, you will have to answer the sources of most people’s misgivings about that point).
Feinberg persuasively argues that the distinctive feature of rights is that they enable people to make claims.
Furthermore, he argues that this explains their importance. In a world without rights, people would lack the ability to make claims and, for that reason, lack self-respect.
I pressed two objections. One concerned the relationship between claiming and self-respect. The other concerned whether claiming is an essential feature of all rights, including especially some of the central human rights.
Claiming and self-respect
Feinberg’s main point is that the people in Nowheresville lack self-respect because they cannot make claims.
I do not see why this has to be so, however. The Nowheresvillians can still criticize those who break their duties. So they can say something when people willingly trod on others’ toes. And I don’t see why they couldn’t criticize especially loudly when it is their toes that are being trod upon.
I think that Kate got at the best way of replying to this sort of point: someone in Nowheresville can’t have a special moral feeling on his own behalf. If you trod on my toes, I can criticize you for violating your duties and I can be angry that you hurt me. But I can’t resent you for wronging me by hurting me.
That does seem to be an important difference between our world and Nowheresville. We have resentment and think it makes sense to feel wronged by someone else. We can take the violations of duties owed to us personally, so to speak. The Nowheresvillians, by contrast, can’t or, at least, I don’t understand how they can.
There are two questions. First, is the ability to resent others and take being wronged personally connected with self-respect? I don’t know the answer myself. Second, is it desirable? Nietzsche, for example, thought that it is not. Again, I don’t know if he was right. So I think these are both live questions.
Claiming and rights
What exactly does claiming involve? I noted two sorts of answers in Feinberg: one concerns a moral power, the other a social point about the appropriate feelings to have in response to others’ doing their duty.
It seems to me that if claiming ever makes a difference, then it has to involve what I called a power: whether one makes a claim or not effects what rights and duties others have. If claiming involves something less, it’s hard to see what the ‘performative’ sense of making a claim involves.
But if that’s what claiming involves, being able to make a claim seems inessential to many important rights. Do we have to claim that we have rights against being tortured? Does the fact that children are not capable of making claims with this sort of consequence show that they do not have rights to, say, education?