Whose pigs are these? (1/5)

Whose pigs are these?
Whose pigs are these?
They are John Potts’
I can tell them by their spots
And I found them in the vicarage garden
(Traditional)

I recently read A Debate over Rights: Philosophical Enquiries by Matthew Kramer, Nigel Simmonds and Hillel Steiner. I enjoyed it enormously. Over the next few days (or weeks) I’m going to post some thoughts which the book sparked off, focusing on points which puzzled me or seemed to need more developing. The next three posts will document some lines of thought which the book sparked off, and which I’ve been worrying at ever since. Post 5 will be devoted to some thoughts on a couple of essays by John Gardner, which don’t entirely belong with the other posts but need to be go somewhere. I’m not, at this stage, offering any kind of engagement with A Debate over Rights as a whole or with the authors’ main arguments; in fact there won’t be anything (for now) about Simmonds’ contribution, or very much about Kramer’s. I’ll re-read the book once I’ve finished the series, which will hopefully prompt some more thoughts.

This first post is going to provide a bit of theoretical background. The three essays making upĀ A Debate over Rights all begin from the logical model of “jural relations” set out by the legal theorist Wesley Hohfeld (1879-1918). Before getting to the specifics, it’s important to note that all Hohfeld’s relations apply in principle between two people and in a particular field of action. For example, Jay’s desire to wear a hat might be protected from Kay’s attempts to thwart it by a right of non-interference – a “liberty” in Hohfeld’s terminology. In this example, this specific liberty would only make a very small and local contribution to Jay’s freedom of action: it would say nothing about anyone else’s ability to stop Jay wearing a hat, or about any non-hat-related coercion Kay might want to exercise. This is a fundamental point about Hohfeld’s scheme, which can have the unfortunate effect of making it seem weak or trivial in comparison with the grand canvases on which human rights discourse generally works. It’s anything but, as hopefully will become clear.

Hohfeld’s table of relations begins with two pairs of oppositions:

Privilege :: Duty

Liberty :: No-Right

Each pairing obtains, as I said above, between two people and in one sphere of action. Crucially, the elements of these pairings are correlated; where privilege exists on one side, duty exists on the other, and vice versa. If A has a duty towards B as regards x-ing, then B has a privilege in respect of A where x-ing is concerned. Say that you have promised the verger that you’ll unlock the church on Sunday morning. This is a useful thing to do and will benefit lots of people beside the verger, but your duty to do it is a duty towards the verger – just as the verger’s justified expectation that the church will be unlocked is a privilege with regard to you, not to the world (or the congregation) in general. (While Hohfeld’s model derives from and fits most naturally into the sphere of legal rights, it can be used productively to talk about purely moral rights, as in this case.) Some writers replace Hohfeld’s term ‘privilege’ with the more familiar ‘right’, or else ‘claim-right'; another way of formulating B’s privilege in this example is simply to say that B has a right to the fulfilment of A’s duty. (I don’t say B has a right to expect the fulfilment of A’s duty (although this would read more easily), for reasons that I’ll come on to later.)

It’s important to note that this is a relationship of logical, not practical, entailment. In other words, my duty to you in a given area is not something that needs to be done in order to fulfil your privilege over me in that area, which would otherwise exist unfulfilled or in a kind of potential state. My duty is the relationship between us (in that area), viewed from my perspective; your privilege is that relationship as it looks from your standpoint. This is the case even if the relationship was created for the sake of creating the duty, without any thought to the privilege (or, conceivably, vice versa). In Kramer’s formulation, someone who constructs an uphill slope in their garden will necessarily build a downhill slope as well, even if their sole reason for doing so was the aesthetic effect of an uphill gradient.

As for the second pairing, here we enter the territory of rights of non-interference. If A has a liberty towards B as regards x-ing, then B has no right to prevent A from x-ing – in Hohfeld’s (only slightly different) terms, B has a ‘no-right‘ towards A in that area. Many of the entitlements we usually refer to as rights are liberties in Hohfeld’s terms: if I have a right to free speech, this means precisely that I hold a liberty to speak, as against others who might interfere (principally the government). Liberties often take much more specific forms: someone may have a ‘right’ to set up in business (in the form of liberties held against the local authority, the police etc) but not have any ‘right’ to carry on that business without interference (in the form of liberties held against local rivals who might undercut the business, customers who might go elsewhere, employees who might go on strike, etc).

There are diagonal as well as horizontal relationships within the table. The opposite of a privilege is a no-right; the opposite of a liberty is a duty. These are logical opposites, such that – in any given social relationship and sphere of action – one party has either a privilege or a no-right towards the other, and either a liberty or a duty.

Two further pairings can be dealt with more briefly. These follow the same basic structure and apply it, reflexively, to the granting and varying of rights.

Power :: Liability

Immunity :: Disability

If A can alter B’s legal standing in respect of area z, A has a power over B in area z – and, by the same token, B has a liability in respect of A in that area. Equally, if A is unable to alter B’s legal standing in respect of area z, B has an immunity in respect of A in area z – and A has a disability in respect of B in that area. Powers are the opposite of disabilities; liabilities are the opposite of immunities.

As noted above, Hohfeld’s opposites – the diagonal pairings – are logical opposites. I found it useful to think of them as dichotomous variables: for any given social relationship and any given sphere of activity, you either have a liberty or a duty towards the other party, and (at the same time) either have a privilege or a no-right. The members of the liberty/duty and privilege/no-right pairings are mutually exclusive and jointly exhaustive: there is no social relationship and no field of activity to which they don’t apply. There’s no ‘off’ position, in other words. The man I happen to sit next to on the bus has no influence on my later, independent choice of sandwich for lunch – but this is not to say that there is no Hohfeldian relation between person A (man on bus) and person B (Phil) in area y (sandwich choice). Rather, there is a relation of liberty (on my part) and no-right (on his).

The exhaustiveness of Hohfeld’s opposites has some particularly interesting – and easily overlooked – effects when we start to put the two pairings together. Some privileges, and some liberties, can be waived: the verger may let me have a lie-in from time to time; I may let my colleagues put in a collective sandwich order and override my personal preferences for a while. In the first case, where I have a duty towards the verger in the matter of unlocking the church, the verger has a power (of waiver) over that duty – and I have a liability, in the sense that the duty may be altered without my say-so. The second case is more complex. If I have a liberty (towards my colleagues) in the matter of sandwich choice, they by the same token have a no-right towards me; strictly speaking, it’s that no-right which I have the power to waive. Again, powers correlate with liabilities: my colleagues are under a liability, in the sense that their exclusion from input into my sandwich choice may be revoked by me, and not by them.

But remember: the opposites are dichotomous, and dichotomies are jointly exhaustive. Anyone who is owed a duty which cannot be waived does not hold a power of waiver, correlating with a liability on the part of the duty-holder. Instead, they hold a disability (of waiver), which correlates to an immunity from having the duty waived on the part of the duty-holder. There is no sphere of activity and no social relationship which cannot characterised by either privilege or no-right, and by either duty or liberty. And there is no relationship – of privilege to duty or of liberty to no-right – which is not further characterised by either power (to waive or vary) or disability, and by either liability or immunity. John Potts enjoys the privilege of ownership of some spotted pigs, and the liberty of non-interference with that ownership, as against the no-right and duty not to interfere of you, me and the vicar; he also has either the liberty to graze them in the vicarage garden or (more probably) the duty to refrain from doing so, combined with a privilege or (again, more probably) a no-right over the vicar himself in the matter of grazing rights. Viewed in this light, so far from being limited to minute and artificial examples (Kay’s duty not to prevent Jay from wearing a hat), Hohfeld’s correlatives and opposites seem to describe the entire social world – albeit that they describe it in impossibly minute terms, a map even bigger than the territory.

One final point, for now: one of the key points of disagreement between Kramer and Simmonds – indeed, one of the key points at stake in the book’s debate over rights – concerns how to conceptualise these xs, ys and zs which make the Hohfeldian model tick. I may have a liberty towards you in a given area, coupled with an immunity as regards any attempt on your part to waive your correlative no-right – but what are these ‘areas’ that we’re talking about? Are they interests, and if so how do these interests work? If they have the cast-iron, logical-entailment structure of a Hohfeldian correlative pairing, how can they be balanced against other interests? If they aren’t balanced against other interests – if they’re a set of fundamental interests which take absolute priority over other, more fungible interests – then what subset of interests can they possibly be? Alternatively, are Hohfeldian rights a way of building a Kantian model of the will of the individual, expressed freely and without any necessary conflict with other individual wills – and if so how do we make them work in the real world?

I have no idea how to answer any of these questions – not that they’re easy questions from anyone’s perspective. The contrast between ‘interest theory’ and ‘will theory’ models of rights is a major bone of contention both between the authors and among the other writers discussed in the book; I’ll come back to it myself another time (probably after I’ve re-read the book).

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