The Nature of Rights

Abstract

The twentieth century saw a vigorous debate over the nature of rights. Will theorists argued that the function of rights is to allocate domains of freedom. Interest theorists portrayed rights as defenders of well-being. Each side declared its conceptual analysis to be closer to an ordinary understanding of what rights there are, and to an ordinary understanding of what rights do for rightholders. Neither side could win a decisive victory, and the debate ended in a standoff.1 This article offers a new analysis of rights. The first half of the article sets out an analytical framework adequate for explicating all assertions of rights. This framework is an elaboration of Hohfeld’s, designed around a template for displaying the often complex internal structures of rights. Those unfamiliar with Hohfeld's work should find that the exposition here presumes no prior knowledge of it. Those who know Hohfeld will find innovations in how the system is defined and presented. Any theorist wishing to specify precisely what is at stake within a controversy over some particular right may find this framework useful. The analytical framework is then deployed in the second half of the article to resolve the dispute between the will and interest theories. Despite the appeal of freedom and well-being as organizing ideas, each of these theories is clearly too narrow. We accept rights, which do not (as the will theory holds) define domains of freedom; and we affirm rights whose aim is not (as the interest theory claims) to further the interests of the rightholder. A third theory, introduced here, is superior in describing the functions of rights as they are commonly understood. Will theorists and interest theorists have erred in adopting analyses framed to favor their commitments in normative theory. This has turned the debate between them into a proxy for the debate between Kantianism and welfarism. Yet that normative dispute cannot be resolved through a conceptual analysis of rights. The third theory presented here is not fashioned to fortify any normative position. Rather, it is offered as a vernacular standard against which to measure the interpretations of rights that various normative theories press us to accept. The ambitions of the article are thus principally descriptive. The first half of the article shows what kinds of things rights are (i.e., all rights are Hohfeldian incidents). The second half shows what rights do for rightholders (i.e., which Hohfeldian incidents are rights). The two halves together complete an analysis of the concept of a right. The analysis here is general. It holds for all rights of conduct: moral rights, legal rights, customary rights, and so on.2 The analysis aims to reveal the logical structure underlying our assertions of rights, while remaining faithful to an ordinary understanding of what rights there are, and of the significance rights have for those who hold them. The first half of the article sets out a modified Hohfeldian framework for explicating the meanings of rights assertions. The thesis of this section is that all assertions of rights can be understood in terms of four basic elements, known as the Hohfeldian incidents.3 There are two fundamental forms of rights assertions: “A has a right to phi” and “A has a right that B phi,” where “phi” is an active verb. We begin by connecting these two fundamental forms of assertion to the four Hohfeldian incidents: the privilege, the claim, the power, and the immunity. In the process it will emerge that each of the two fundamental forms of assertion can also indicate complex “molecular” rights, whose structure will be resolvable into combinations of the four “atomic” incidents. Finally, at the end of this section we show how rights assertions that lack active verbs can be translated into active-verb form. We will then have covered all forms of rights assertions, and will have shown that all rights assertions can be understood in terms of the Hohfeldian incidents. We begin with those rights assertions of the form “A has a right to phi” that indicate the privilege, the first of the four Hohfeldian incidents. A sheriff in hot pursuit of a suspect has the legal right to break down the door that the suspect has locked behind him. The sheriff's having a legal right to break down the door implies that he has no legal duty not to break down the door. For rights like the sheriff’s: “A has a Y right to phi” implies “A has no Y duty not to phi.” (where “Y” is “legal,”“moral,” or “customary,” and “phi” is an active verb)4 The type of right here is what Hohfeld called a “privilege,” which is also called a “liberty” or a “license.”5 The sheriff's right is a single privilege. A right that is a single privilege confers an exemption from a general duty. While ordinary citizens have a duty not to break down doors, police officers have a privilege-right [no duty not] to break down doors. When President Nixon asserted that he had a legal right not to turn over the Watergate tapes, he was asserting “executive privilege.” Ordinary citizens have a legal duty to turn over evidence when subpoenaed. Yet Nixon alleged that because he was President he had a legal right [no duty not] not to turn over his evidence. James Bond's license to kill is also an exemption from a general duty. Bond's (alleged) right exempts him from a duty not to do what civilians emphatically have a duty not to do, viz., to kill. Similarly, your driver's license gives you the right to drive. This right exempts you from a duty not to do what you would otherwise have a strong duty not to do—to operate dangerous machinery at high speeds. We can represent a right that is a single privilege, such as your right to drive, in graphic terms as seen in Figure 1. . The Right to Drive as a Single Privilege In Figure 1 your right to drive a car is displayed as a single privilege. This single privilege is classified according to its function (a single privilege is a right of exemption), and according to the form of its assertion (a single privilege is asserted by expressions of the form “A has a right to phi”). Some assertions of the form “A has a right to phi” indicate not a single privilege, but a paired privilege. A paired privilege is composed of two privileges. The holder of a paired privilege has a privilege [no duty not] to phi, and also has a privilege [no duty not] not to phi. That is, for a right that is a paired privilege: “A has a Y right to phi” implies both “A has no Y duty not to phi” and “A has no Y duty to phi.” (where “Y” is “legal,”“moral,” or “customary,” and “phi” is an active verb) A person vested with a paired privilege is entitled to perform some action, or not to perform that action, as he pleases. For instance, a chess player has the right to capture his opponent's pawn en passant. This right is a paired privilege: the player has a right [no duty not] to take en passant, and a right [no duty not] not to take en passant. The player may take his opponent's pawn, or not, as he thinks best. The function of a right that is a paired privilege is to endow its bearer with discretion, or choice, concerning some action. The chess player's right gives the player discretion over whether to take his opponent's pawn, or to leave that pawn on the board. Paired privileges can be enormously important. For instance, each person has extensive (if not unlimited) paired privilege-rights to move her body, and to use her property. In a liberal society each citizen also has extensive (if not unlimited) paired privilege-rights regarding her speech, association, and religious practice. These paired privilege-rights all entitle the rightholder to choose how to act within some domain: that is, they all specify what the rightholder has no duty (not) to do. It may be noticed that while a paired privilege is composed of two privileges, the function of a right that is a paired privilege is not related to the function of a right that is a single privilege. The function of a single privilege-right is to confer an exemption from a general duty. Yet neither of the privileges that make up a paired privilege need confer an exemption from a general duty. Rather, the function of the two privileges in a paired privilege-right is together to endow the rightholder with discretion concerning some action. The function of the single privilege-right (exemption) and the function of the paired privilege-right (discretion) are entirely independent.6 We can represent the chess player's right in the same space as we represented your right to drive, so long as we indicate that the rights which occupy this space may have either of two distinct functions (Fig. 2). . A Chess Player's Right as a Paired Privilege In Figure 2, “Privileges (not) to capture a pawn en passant,” indicates the paired privilege to capture and not to capture a pawn. This paired privilege-right is classified according to its function (a paired privilege-right is, unlike a single privilege-right, a right of discretion), and according to the form of its assertion (a paired privilege-right is, like a single privilege-right, asserted by expressions of the form “A has a right to phi”). We assert not only that “A has a right to phi,” but that “A has a right that B phi.” This second fundamental form of rights-assertion often implies not a lack of a duty in the rightholder A, but the presence of a duty in a second party B. In such cases: “A has a Y right that B phi” implies “B has a Y duty to A to phi.” (where “Y” is “legal,”“moral,” or “customary,” and “phi” is an active verb) Ignoring the domain restriction “Y,” let us examine the simple assertion “A has a right that B phi” when this implies “B has a duty to A to phi.” The Hohfeldian incident here indicated is the claim. For every claim in A there is some B who has a duty to A. Your right that I not strike you correlates to my duty not to strike you. Your right that I help you correlates to my duty to help you. Your right that I do what I promised correlates to my duty to do what I promised.7 As these examples suggest, rights that are claims can have three different functions. A claim-right can entitle its bearer to protection against harm or paternalism, or to provision in case of need, or to specific performance of some agreed-upon, compensatory, or legally or conventionally specified action. Claims, like privileges, can be of signal importance. Your right against assault, and a child's right to a decent education, and an employee's right to his pay are all examples of rights that are claims. Some rights are privileges, and some rights are claims. Many familiar rights are combinations of both of these Hohfeldian incidents. For example, in the United States arrestees have the right to remain silent. This is a “molecular” right made up of a privilege and a claim. The arrestee's privilege is a single privilege [no duty not] not to speak, which exempts the arrestee from the general duty to obey police instructions. The arrestee's claim correlates to the police officers’ duties not force him to speak, which protects the arrestee from the police (Fig. 3). . The Right to Remain Silent as a Privilege and a Claim Figure 3 displays an arrestee's molecular right to remain silent. On the left is the single privilege: a right of exemption of the form “A has a right to phi.” On the right is the claim: a right of protection of the form “A has a right that B phi.” The privilege and the claim together make up the arrestee's right to remain silent. “A has a right to phi” often implies a privilege, and “A has a right that B phi” often implies a claim. These implications hold often—not always—because each of these forms of rights-assertion can also indicate a different, “higher-order” Hohfeldian incident. We have not only privileges and claims, but rights to alter our privileges and claims, and rights that our privileges and claims not be altered.8 The higher-order incident indicated by “A has a right to phi” is the power. To have a power is to have the ability within a set of rules to alter the normative situation of oneself or another. Specifically, to have a power is to have the ability within a set of rules to create, waive, or annul some lower-order incident(s). I have a right to promise to give you my fortune. Before I exercise this right I have no duty to give you my fortune, and you have no claim that I do. In exercising my power by making the promise, I create in you a claim to my fortune and thereby create in myself the duty to give it to you. Similarly, a judge has the legal right (power) to sentence a criminal to prison, meaning that a judge has the ability to annul the criminal's privileges of free movement. Or again: in a restaurant you have the customary right (power) to waive your claim to be served a sample of the wine before the bottle is poured, thereby annulling the waiter's customary duty to serve you this sample. The power, like the privilege, is indicated by propositions of the form “A has a right to phi.” All rights that are powers confer authority. Rights that are single powers confer nondiscretionary authority. For example, a judge's right to sentence a convicted criminal under mandatory sentencing laws is a single power. The judge's right authorizes her to annul the criminal's right to free movement. Yet this is a single power because the judge has no discretion under the sentencing laws: she must use her authority to sentence the criminal to a specified term of years. A right that is a paired power confers discretionary authority. For example, you have the power to waive, and the power not to waive, the waiter's duty to serve you a sample of wine. Rights that are paired powers, like rights that are paired privileges, endow their bearers with discretion concerning some action. Rights that are paired powers are thus both authorizing and discretionary.9 The rights that are indicated by the form “A has a right to phi” have, in sum, three possible functions: single privileges mark an exemption from a general duty; both paired privileges and paired powers mark discretion within a certain domain; and both single powers and paired powers mark authority to alter the normative situation in some way. Powers can range over the rights of others. Clearly such powers must not be unlimited. The fourth and final Hohfeldian incident is the immunity. One person has an immunity whenever another person lacks the ability within a set of rules to change her normative situation in a particular respect. The immunity, like the claim, is signaled by the form “A has a right that B phi” (or, more commonly, “. . . that B not phi”). Rights that are immunities, like many rights that are claims, entitle their holders to protection against harm or paternalism. A professor has the right to teach and research at her university. A tenured professor has the right that her university not annul her rights to teach and research. The right of tenure is an immunity. The tenured professor's right corresponds to the university's lack of a right (power) to fire her. Similarly, an American's right that Congress not restrict her privilege of free speech protects her against the general power of Congress to impose duties upon her. A witness granted a right against prosecution gains an immunity against being indicted for certain crimes. A defendant who desires to be punished may invoke a right against being required to present evidence that might lead to his acquittal. All of these rights are immunities, and all protect the rightholder from harm or paternalism.10 Figure 4 displays all four Hohfeldian incidents working together within a complex right that you have over your body. This complex right comprises both first-order incidents (a paired privilege and a claim) and second-order incidents (a paired power and an immunity). On the first order, the paired privilege endows you with the discretion to move your body, or not to move your body, as you see fit. The claim on the first order affords you protection; it correlates to a duty in each other person not to touch your body. On the second order are your rights regarding the alteration of these first-order rights. Here we see the paired power that gives you the discretionary authority to waive your claim against others touching your body: your right, that is, to authorize others to touch your body. Also on the second order is your protective immunity against other people waiving your claim not to be touched: your right, that is, against anyone else authorizing others to touch your body. . A Complex Molecular Right As Figure 4 shows, the four incidents are positioned in the diagram according to their attributes. Rights over objects such as one's body are first-order privileges and claims. Rights over rights are second-order powers and immunities. As for the two columns, A's “active” rights on the left are privileges and powers, while A's “passive” rights on the right are claims and immunities. Privileges and powers are exercised, while claims and immunities are not exercised; they are merely enjoyed.11 Moreover, there is an overlap in function between privileges (exemption, discretion) and powers (discretion, authorization) on the left; and an overlap in function between claims (protection, provision, performance) and immunities (protection) on the right. Most rights are complex molecular rights like the one in Figure 4: rights made up of multiple Hohfeldian incidents.12 Molecular rights indicated by the form “A has a right to phi” (where phi is an active verb) will always contain an incident from the left side of the diagram—a privilege or power—although they may contain incidents from the right side as well. Thus the right to move freely is a molecular right that contains privileges (not) to travel about the country; and the right to lead a meeting is a molecular right that contains the power to close a debate.13 Molecular rights indicated by the form “A has the right that B phi” will always contain an incident from the right side of the diagram—a claim or immunity—although they may contain incidents from the left side as well. Thus the right that others respect one's privacy is a molecular right containing a claim against unwanted surveillance; and the right that the government not take one's property without due process is a molecular right containing an immunity against sudden expropriation.14 We have shown how the two fundamental forms of rights assertions can be understood in terms of the Hohfeldian incidents. In both of these fundamental forms of rights-assertion “phi” is an active verb. Assertions of rights in which “phi” is not an active verb but a noun (“Workers have the right to a decent wage”) or in which “phi” is a passive verb (“Children have a right to be educated at state expense”) are easily transposed into active verb forms. Workers have a right that their employers pay them a decent wage, and children have a right that the state pay for their education.15 Explications of assertions of rights containing nouns and passive verbs merge in this way into the explication of the two fundamental forms of rights-assertion. Finally, assertions of broad or indeterminate rights—such as the “right to free expression”—can be specified in several different ways into complexes of Hohfeldian incidents. The different specifications will correspond to different understandings of the right at stake. Indeed one of the virtues of the Hohfeldian framework is its capacity to display in exact terms various interpretations of what people might mean when they assert a broad or indeterminate right like the right to free expression. For example, should a controversial author assert that his right to free has by a to his a Hohfeldian explication will show that the author is not asserting the privilege-rights to by protective claims and immunities. is asserting a claim-right that others the of his expression. This Hohfeldian explication will be in the of the assertion that his right to free has The framework for explicating rights assertions into assertions about Hohfeldian incidents is Any assertion of a right can be translated into an assertion about a single Hohfeldian or into an assertion about a complex of or into a set of assertions about such incidents. All rights are Hohfeldian incidents. The of this thesis is In sample rights, we have Each right can be with one or more of the Hohfeldian and Each right has one or more of the specific functions (exemption, discretion, provision, The is to All rights are like All rights can be into Hohfeldian in this will as we more and more rights with the Hohfeldian and as we to find The may to or that in this is and may to the framework with more sample rights. The a of rights from a which may be for the of that the ordinary of rights is or Yet there is with ordinary The in ordinary is merely like many other such as Assertions of rights can to various Hohfeldian incidents. these incidents have different logical may into they do not the implications of their assertions. For example, it is not for a to assert a right that can only be a privilege, and then on to from this assertion that him a duty. Yet this of is not the of a in ordinary It is a in the understanding of the various meanings of the Ordinary can be entirely and that how assertions of rights the Hohfeldian incidents. The Hohfeldian framework shows that the of rights is not a simple it is the of composed of the of the and the concept of and range over and the concept of and range over lower-order incidents. and are exercised, and overlap in their functions. and are and their functions also All of the rights that we know are from these elements, in ways by the of the All rights are Hohfeldian incidents. all Hohfeldian incidents That is, would any of the four Hohfeldian or any of as A's right it to We might the theory that this the theory of rights. of the theories of the functions of will theory and the interest this theory. to the will theory and the interest theory, some Hohfeldian incidents do not as rights because they do not perform the function that all rights The will theory that only those combinations of incidents that give their holders certain kinds of are as rights. The interest theory the term to those incidents that further their well-being. The will and interest theories are each theories of rights. to these theories all rights have some single the two theories as to what that function theories would the explication of rights assertions in the first of this in which rights have distinct The long and between these two theories through interest and (a will into the In the twentieth century the between of the two theories ended in I as is often the case with this situation is by each side a of a Here I will the to each theory in order to show how each is too as an of the functions of rights, and to indicate how the of each theory is the of the A I is what might be called the several functions theory of rights. The several functions theory what is in the will and interest because it not that all rights have some single function it the of The of a theory of the functions of rights is how it our ordinary understanding of what rights there are and what significance rights have for rightholders. The several functions theory is, I will to both the will theory and the interest theory on these The will theory of rights that the single function of a right is to give the rightholder discretion over the duty of another. A has a right, for instance, because he has the power to waive or not to waive the duties that others have not to his A has a right because she has the power to performance of the or to waive as she As the thesis of the will theory, who has the right is a to the duty is The of the will theory is that it for rights the of over of action. Many rights do endow rightholders with this of discretion, and so serve the freedom of those who hold them. The between rights and so in is for will theorists a of the will on a certain of freedom what he as a right. The will theorist as a right only those Hohfeldian incidents that confer on their bearers the discretion to alter the duties of others. Thus the will theorist as rights only those molecular structures that a paired power (not) to create, waive or annul a claim that one person has against This of the function of rights also a restriction on the of rightholders. The will theorist as rightholders only those that have certain the to exercise powers to alter the duties of others. These the will theory narrow. This is in the range of rights that the theory Many rights, such as the complex right in Figure do a paired power to alter a claim. many do For example, you have no legal power to waive or annul your claim against being or your claim against being to The will theory not that you have a legal right against being or against being to Yet would these claims as rights, as the more rights that Will theorists have to this of in two The first is to restrict the of the theory to a this that the will theory is at the of the with the working of the and is not adequate to rights at the of The second is to to the incidents in as rights by who have discretion with to such as a government who has discretion over whether to a Yet this for always the would with an ordinary understanding of rights. For here the will theory is to that you have no right against being Rather, the right that you not be would be the right, the is the person with the The of the will theory are also in its to for the rights of and of The will theory can rights only in those to exercise powers, which and children are and children cannot on this have This is a at with ordinary would that it is for example, for children to have a right against The will theory in many rights that there Yet where the will theory the interest theory The interest theory holds that the single function of rights is to further their rights are those incidents whose is to the well-being of the As