[6.3.] Feinberg on Rights.

 

Joel Feinberg

·         1926-2004 (American; born in Detroit)

·         one of the most important figures within 20^th century philosophy of law

·         Ph.D., University of Michigan, 1957

·         taught at Brown, Princeton, and Rockefeller U., before settling at the University of Arizona, where he taught from 1977 to 1994.

·         his most important work: The Moral Limits of the Criminal Law (4 vv., 1984-8)

·         our reading is an excerpt from “The Nature and Value of Rights” (Journal of Value Inquiry, 1970)

 

 

[6.3.1.] Nowheresville.

 

Feinberg conducts a thought experiment in the hopes of discovering more about the nature of rights. In particular, he wants first to discover what rights aren’t, and then to draw a conclusion about what they are.

 

He asks us to imagine Nowheresville, a world in which no on has any rights. This world is morally great in every respect other than the absence of rights. The people exhibit unfailing “benevolence, compassion, sympathy, and pity.” Yet, no one has rights. If person A helps person B in some important way, it is merely because person A feels compassion, or pity, or some other motivating emotion, towards B. B has no rights against A that A help him.

 

The thought experiment proceeds as Feinberg slowly adds morally valuable ideas and practices to his fictional society, to see whether each can be added without bringing rights with it. In this way, he argues that the concept of a personal right can be separated from the concepts of

·         duty

·         personal desert

·         rule-governed social and economic practices.

 

 

[6.3.1.1.] Duty.

 

Feinberg says that Immanuel Kant would not be happy with Nowheresville. This is because there is something missing from this world that Kant took to be of ultimate importance: moral duty.

 

Aside: Kant on the Good Will.   Kant held motives to be extremely important to an accurate theory of ethics. On Kant’s view, the only thing good without qualification is a good will. Health, wealth, intellect, etc. are good only insofar as they are used well. What makes one’s will a good will is that its only motive for doing the right thing is that it is the right thing to do. In other words, the good will acts out of duty for the sake of duty, not because of any consequences that doing one’s duty might have. E.g.: ·         A shopkeeper who gives correct change, but not necessarily for the right reasons. If he gives correct change just because he wants his customers to think he is honest and to continue patronizing his business, then he is not acting from a good will. But if he is doing it because he believes that it is the right thing to do, then his motives are good. ·         A friendly person who frequently helps others may be doing the right thing but not for the right reasons. If he simply enjoys behaving nicely towards others, and if that’s the only reason he’s doing it, then he is not motivated by a good will. In this case he is simply acting from inclination. No one chooses to be inclined to act a certain way, and actions that result from a good will must always stem from a free choice on the part of the agent. But if he is nice and helpful because he knows that he should be, then his motives are good.

 

 

So, let’s imagine that moral duty has been introduced into Nowheresville. Feinberg asks:

 

... introducing the idea of duty into it, and letting the sense of duty be a sufficient motive for many beneficent and honorable actions ... doesn’t this bring our original thought experiment to an abortive conclusion? If duties are permitted entry into Nowheresville, are not rights necessarily smuggled in along with them? (293)

 

If the answer is “yes,” then the first clause of the following principle is true:

 

the doctrine of the logical correlativity of rights and duties: all duties entail other people’s rights, and all rights entail other people’s duties. (293)

 

If the first clause of this doctrine is true, the by introducing duties into Nowheresville, we have necessarily introduced rights, as well.

 

Feinberg asks: is this first clause true? His answer: The word “duty” is ambiguous; in one sense, duties entail rights; but in another sense, they do not.

 

In the first, original sense of “duty,” to say that you have a duty to perform an action is to imply that the action is due someone else, i.e., that you owe it to someone else to perform the action. It is to say that someone else has a right against you to perform the action; if you don’t perform the action, then the other’s right to have you perform the action has been violated.

·         E.g., if I borrowed money from you and promised to repay it, then I have a duty to repay it, and you have a correlated right against me, viz., a right to have me repay the loan.

·         In this sense of “duty,” your duty always correlates with someone else’s right.

 

In a second, derivative sense of “duty,” to say that you have a duty to perform an action is to imply only that the action is required (by the law, or your conscience, or something else). In this sense, a duty is simply an action that we feel we have to perform, even if there is no one who can justifiably demand of us that we do it.

·         E.g., suppose that you have a duty to give some of your income to charity; there is not necessarily any particular person, among the many possible recipients of your charity, who possesses a correlated right against you.

·         In this sense, your duty does not always correlate with someone else’s right.

 

So, we can add duties (in the second sense) to Nowheresville without thereby introducing rights.

 

So, whatever rights are, they do not necessarily accompany duty (in this second sense).

 

 

 

[6.3.1.2.] Personal Desert.

 

Next Feinberg asks us to imagine adding moral practices connected with personal desert.

 

Personal desert: to deserve something good is for there to be “a certain propriety” in your receiving it, a propriety based either on the kind of person you are or on some specific thing that you’ve done.

·         This sort of “propriety” is “a kind of fittingness between one party’s character or action and another party’s favorable response, much like that between humor and laughter, or good performance and applause.”

 

According to Feinberg, deserving something good is not the same as having a right to it.

·         An example (not from Feinberg): suppose I climb up a tree to rescue my neighbor’s cat, at some risk to my own safety. I might deserve at least some gratitude from my neighbor, or perhaps even something more substantial (a slice of pie, or a cash reward), but I have no rights against my neighbor that she give me such things.

 

So, we can add personal desert to Nowheresville without thereby adding rights.

 

So, whatever rights are, they do not necessarily accompany personal desert.

 

 

[6.3.1.3.] Rule-Governed Social and Economic Practices.

 

Imagine that social and economic practices such as “ownership of property, bargains and deals, promises and contracts, appointments and loans, marriages and partnerships” (295) are introduced into Nowheresville.

·         Along with these practices, we must introduce the rules that govern how they are to proceed.

·         Prima facie, these rules must carry with them both obligations and rights. For example, if you and I enter into a contract (say, for you to buy a house that I am selling), then I have a duty to abide by the terms of that contract, and (presumably) you have a correlative right against me.

·         But this is not necessarily the case. Suppose Nowheresville works like Hobbes’ Leviathan, i.e., that it is a government with a single absolute monarch against whom citizens have no rights whatsoever.

 

 

Aside: Hobbes’ Absolute Sovereign   On Hobbes’ view, individuals in a state of nature have a natural right, which he calls “the Right of Nature”: “the liberty each man hath, to use his own power as he will himself, for the preservation of his own nature; that is to say, of his own life.”   In order to escape the state of nature, men make a covenant among themselves to transfer their right of nature to a single entity (a person or assembly of persons) who will thereby have the legitimate authority to (among other things) enforce covenants.   The individual(s) to whom all others turn over their rights is the sovereign, and those turning over their rights are subjects.   The agreement that citizens make among themselves to transfer their natural rights to a sovereign is irrevocable. They cannot rescind the agreement and take back authority from the ruler, even if all citizens want to do so. Once the agreement has been made, the ruler(s) thereafter has authority until he himself (or they themselves) voluntarily give it up. The sovereign becomes, not an agent of the people, to whom authority is loaned, but a master of the people, to whom authority is permanently transferred. This is true even if the people wish to change their minds about their covenant.   The agreement according to which individuals transfer their power to a sovereign is an agreement among the individuals who transfer their power; it is not an agreement between those individuals and the sovereign. In other words, individuals transfer authority to the sovereign indirectly by making an agreement among themselves, rather than directly, by making an agreement directly with the sovereign. One consequence of this is that the sovereign cannot act so as to breach the covenant. This is because he wasn’t a party to the covenant to begin with!   Because the people are all party to the covenant that grants the sovereign authority, they have all agreed that he can do whatever he chooses. So even if he acts to harm them, they themselves have granted him this absolute authority, and no treatment that they subsequently suffer at his hands counts as unjust.

 

 

Nowheresville works something like this, but there is a difference:

·         Even in Hobbes’ Leviathan, citizens have rights against each other. If I we make a contract, then I have an obligation to (and you have a right against me to) abide by the contract.

·         In Nowheresville, citizens have obligations, but not to each other:

 

...the obligations ... will not be owed directly to promisees, creditors, parents, and the like, but rather to God alone, or to the members of some elite, or to a single sovereign under God. Hence, the rights correlative to the obligations that derive from these transactions are all owned by some “outside” authority. (296)

 

So introducing  rule-governed social and economic practices (contracts, marriages, etc.) does introduce rights of a sort into Nowheresville, but they are not personal rights. The sovereign has a monopoly on all rights.

 

So, whatever (personal) rights are, they do not necessarily accompany rule-governed social and economic practices.

 

 

[6.3.2.] Rights as Claims.

 

Having separated the concept of personal rights from a number of other concepts, Feinberg can now consider the question, what has been left out of Nowheresville? as a way of getting at the question, what is a right?

 

On his view, the answer has to do with the concept of a claim.

 

Nowheresvillians, even when they are discriminated against invidiously, or left without the things they need, or otherwise badly treated, do not think to leap to their feet and make righteous demands against one another, though they may not hesitate to resort to force and trickery to get what they want. They have no notion of rights, so they do not have a notion of what is their due: hence they do not claim before they take. ...

 

So Feinberg draws the following conclusion about what rights are:

 

To have a right is to have a claim against someone whose recognition as valid is called for by some set of governing rules or moral principles. To have a claim in turn, is to have a case meriting consideration, that is, to have reasons or grounds that put one in a position to engage in performative and propositional claiming. The activity of claiming, finally, as much as any other thing, makes for self-respect and respect for others, [and] gives a sense to the notion of personal dignity ... (296, emphasis added)

 

Feinberg seems to mean by “claim” what MacCallum means by “demand”; it is unfortunately confusing that MacCallum restricted the word “claim” to only one type of demand, viz. a demand for some specific action.

 

Feinberg could agree with MacCallum that there are two types of claim (or in MacCallum’s terms, two types of demand):

·         a claim for non-inference (what MacCallum called a right-as-privilege)

·         a claim for a specific action (what MacCallum called as right-as-claim)

 

 

Stopping point for Wednesday April 11. For next time, read pp.301-10.