If you lie to me (2/5)

More about A debate over rights (Matthew Kramer, Nigel Simmonds and Hillel Steiner).

My route into legal theory was via Simmonds and Lon Fuller (or Pashukanis, Simmonds and Fuller to be precise). Matthew Kramer is very much on the other side of the debate when it comes to Hart and Fuller (when it comes to Kramer and Simmonds, come to that), so I have to say I wasn’t expecting to find his contribution to the book particularly congenial. As it turned out, I was pleasantly surprised by the power and cogency of his arguments. I read most of the book enthusiastically and at speed, but Kramer’s section in particular; I found myself muttering some of his conclusions out loud as I read them, not as an aid to comprehension but just because they were so well written. I’m not sure that I endorse his version of the interest theory of rights, but I did notice that Simmonds’s trenchant attacks on interest theories left it largely unscathed (as Simmonds in fact acknowledged). But, as I said, I’ll return to this question another time.

For now, here’s a passage from Ronald Dworkin which Kramer discusses briefly.

Dworkin:

In many cases … corresponding rights and duties are not correlative, but one is derivative from the other, and it makes a difference which is derivative from which. There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies. In the first case I justify a duty by calling attention to a right; if I intend any further justification it is the right that I must justify, and I cannot do so by calling attention to the duty. In the second case it is the other way around.

Of course, if rights (privileges) are by definition correlated with duties, it cannot make a difference “which is derivative from which”. So what was Dworkin talking about – is there any way to maintain Hohfeldian correlativity while maintaining that there is a significant difference between “I have a right not to be lied to [by you]” and “you have a duty not to tell lies [to me]“, such that information would be lost if we replaced one with the other?

Kramer suggests one line of interpretation:

Dworkin might be referring only to justificational correlativity (and derivativeness) rather than to analytical or existential correlativity (and derivativeness). That is, he might be referring to levels of priority within a justificatory argument only – and not to levels of priority within an analytical exposition or within a legal system. If so, then Dworkin is not proclaiming that Hohfeld’s Correlativity Axiom somehow fails to apply to the legal positions commended by duty-based and right-based theories.

On this reading, Dworkin is not claiming that the paired right and duty are non-correlated, but only that their relationship will be explained in different ways in different situations: as if to say, I might justify the physical challenge of an uphill slope by calling attention to the aesthetic quality of a downhill slope, or vice versa, and it makes a difference (to me and my interlocutors) which is derivative from which.

This is fair enough, but it seems a fairly meagre basis on which to claim that “[some] corresponding rights and duties are not correlative”. Can Dworkin’s argument be grounded more securely? I think it can, in two ways, although neither of them actually challenges Hohfeldian correlativity. In one case the difference which Dworkin detects between the right-not-to-be-lied-to and the duty-not-to-lie rests on linguistic imprecision. The additional information which, Dworkin argues, is carried by one formulation as compared to the other has actually been read into it; if the distinction had been spelt out, it would have become clear that the right and duty being discussed were not a logical pairing and the appearance of an exception from correlativity would have disappeared. In the other, the additional information needed to create the asymmetry derives from a particular reading of the concept of rights – one which is tenable and quite widely used, but is also quite incompatible with Hohfeld’s model.

The first way to salvage Dworkin’s argument rests on generality. Note Dworkin’s phrasing:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies.

Emphasis added. And this is true: there is a difference between the statement that I have a right not to be lied to by anyone, including you, and the statement that you have a duty not to tell lies to anyone, including me. But this says nothing about correlativity. In the (unlikely) case that I hold a privilege of not being lied to against any and every person I come into contact with, this correlates with a duty on the part of each of those individuals. My privilege against you lying to me is one element of this set of privileges against the world in general, and is precisely correlated with a duty on your part. A similar argument applies in the case where you are under a general duty not to lie. All Dworkin is saying, on this argument, is that general privileges don’t correlate with specific duties – which is to say, privileges and duties don’t correlate if they are imprecisely formulated.

Perhaps this wasn’t Dworkin’s reasoning; perhaps the line quoted above is just a case of hasty phrasing or unfortunate editing, and Dworkin’s thought would have been represented just as well (or better) by this formulation:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to by you, and the idea that I have a right that you not lie to me because you have a duty not to tell lies to me.

Can we make this work, in analytical and not merely justificatory terms (there is a difference between the idea)? Only with difficulty, I think. But there is one angle worth looking at, which I’ll call the argument from confidence. Suppose that Dworkin’s argument implicitly concerned, not a “right not to be lied to”, but to a “right to the confident expectation of not being lied to”. Such a right would certainly seem to carry a derived (and not correlated) duty on others not to lie. If the duty not to lie came first, on the other hand, there would be no question of confident expectation: your duty not to lie to me gives me the right to feel, not confidence, but certainty that you will in fact not lie to me. There seems to be an asymmetry between the two pairings.

But what is this ‘confident expectation’, and why – in the teeth of the text – have I introduced it? I’m thinking now of a conception of rights which is far removed from the level of specificity on which Hohfeld’s model works so well. Suppose that when we invoke rights we’re talking about a kind of potentially universalisable framework of moral duties and privileges governing all social interactions: a framework which we (the community which recognises those rights) aspire to implement as a coherent whole, not least through the law, but which is always necessarily a work in progress. Suppose, in short, that we’re talking about something much closer to Fuller’s “morality of aspiration” than the “morality of duty”. The argument from generality is relevant here: in this situation, any right I might have not to be lied to by you would derive from a broader right not, in principle, to be lied to by anyone. But on this aspirational reading of rights, I would have no absolute right not to be lied to, by you or anyone else. I would have a right to the confident expectation of not being lied to (by anyone), by virtue of my membership of a community which upholds the right not to be lied to as an aspiration; at the same time, I would know that aspirations are not duties, and shortfalls from aspirations – and trade-offs between conflicting aspirations – are always a possibility.

This would not release you from any duty not to lie to me, however. My right to the confident expectation of not being lied to by you is only a duty-generating right in principle, all other things being equal, and only you can know in a given situation whether all other things are in fact equal. That said, if the description of the relationship between you and me is updated to include the line “Phil has the right to the confident expectation of not being lied to by you”, the way in which this new information should influence your behaviour is fairly clear. The associated duty is not correlated, but it derives directly – albeit that, in the unpredictable complexities of social life, it would not derive predictably or uniformly. In short, this way of conceptualising rights leads naturally to the asymmetry which Dworkin identifies in an apparently symmetrical pairing of right and duty.

Dworkin’s argument can be salvaged, then, by the simple expedient of stripping out the specificity, precision and duty-orientation of Hohfeld’s model and replacing it with a conception of rights based on a society-wide morality of aspiration, from which duties could be generated only unreliably and by derivation. In short, the ‘confident expectation’ reading would involve completely abandoning Hohfeld and using a schema which makes no claim to correlativity. The ‘generality’ reading rests on a verbal quibble and disappears if we use more precise phrasing, while Kramer’s own explanation – the ‘justification’ reading – would deprive Dworkin’s argument of the significance he seems to claim for it.

I think we can conclude that the project of reconciling Dworkin’s argument with Hohfeld’s framework has been tested to destruction.

Next: Simmonds and Steiner, and Simmonds on Steiner.

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