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Correlativity and the Case Against a Common Presumption About the Structure of Rights

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Notes

  1. Leif Wenar, “The Nature of Claim-Rights” (2013) 123(2) Ethics 202 helpfully summarizes the central debate between ‘Will Theorists’ like H.L.A. Hart and ‘Interest Theorists’ like Joel Feinberg. He then defends a new view.

  2. Contrast e.g., Matthew H Kramer, “Getting Rights Right” in Matthew H Kramer, ed, Rights, Wrongs and Responsibilities (Palgrave, 2001) 28 and Joel Feinberg, “The Rights of Animals and Unborn Generations” in William T Blackstone, ed, Philosophy & Environmental Crisis (U Georgia P, 1974) 43.

  3. Correlativity is key in the competing models in the last two citations. Notably, Hart and Feinberg’s contrasting views on rights are influenced by SC proponents Jeremy Bentham and Wesley Newcomb Hohfeld respectively. This ‘default’ is also something to which both theories should attend in Wenar. See notes 9-14 below on its commonality and variations.

  4. In the most influential modern view, a right can be distinguished from a privilege, a power, or an immunity. Each has a correlative and the right ‘properly-so-called’ – or claim-right – is distinguished by the nature of the correlative. See Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23(1) Yale LJ 16 [Hohfeld, 1913]; Wesley Newcomb Hohfeld “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710 [Hohfeld, 1917]. While some scholars describe all four correlative categories as rights, they admit this does not fit the traditional model; e.g., Kit Barker, “Private Law, Analytical Philosophy and the Modern Value of Wesley Newcomb Hohfeld: A Centennial Appraisal” (2018) 38(3) Oxford J Legal Studies 585 at 589. Moreover, it is the correlativity of the claim-right that is standardly said to be either the distinguishing feature of all rights or, at the very least, a presumptive requirement of all rights.

  5. E.g., Jeremy Bentham, Of Laws in General (The Athlone Press, 1970) at 54 [Bentham, OLG]; John Austin, Lectures on Jurisprudence: Volume I (Thoemmes Press, 1879/1996) [Austin, Lectures].

  6. Hohfeld, 1913 (n 4); Hohfeld, 1917 (n 4).

  7. E.g., Jeremy Waldron, ed, Theories of Rights (Oxford UP, 1984) at 8 [Waldron, Theories].

  8. See e.g., Visa AJ Kurki, “Rights, Harming and Wronging: A Restatement of the Interest Theory” (2018) 38(3) Oxford J Legal Studies 430 at 432 (also noting Joseph Raz and Neil MacCormick as exceptions).

  9. Waldron, Theories (n 7).

  10. Hugh Upton, “Right-Based Morality and Hohfeld’s Relations” (2000) 4(3) Journal of Ethics 237 at 237.

  11. The uses of Hohfeld in contemporary debates are legion. Mentioning a few must suffice here. Upton, id., argues that a single analysis of rights can be used throughout morality and Hohfeld provided it. The contemporary relevance of Hohfeld frames a debate on whether there can be inalienable rights between Hillel Steiner, “Directed Duties and Inalienable Rights” (2013) 123 Ethics 230 and Pierfrancesco Biasetti, “Infinite Regress and Hohfeld: A Comment on Hillel Steiner’s ‘Directed Duties and Inalienable Rights’ (2015) 126 Ethics 139. Frederick Schauer, “Hohfeld’s First Amendment” (2008) 4 George Washington LR 914 uses Hohfeld to analyze modern American constitutional rights. Peter Jaffey, “Hohfeld’s Power-Liability/Right-Duty Distinction in the Law of Restitution” (2004) 17 Canadian J L Juris 295 argues for continuing to use the Hohfeldian default in an arena of the philosophy of law. John R Morss, “The Legal Relations of Collectives: Belated Insights from Hohfeld” (2009) 22(2) Leiden J Int’l L 289 suggests adopting it in another. Eleanor Curran attacks the Hohfeldian default on other grounds (see e.g., “Blinded by the Light of Hohfeld: Hobbes’s Notion of Liberty” (2010) 1 Jurisprudence 85). The Hohfeldian version of SC is now ascending in popularity (at least in law); Barker (n 4), 586, 593-598.

  12. E.g., Gopal Sreenivasan, “II – A Human Right to Health? Some Inconclusive Scepticism” (2012) 86(1) Aristotelian Society Supplementary Volume 239, partly reflecting earlier ideas in Onora O’Neill’s oeuvre.

  13. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2d ed (Princeton UP, 1996); Charles Beitz, The Idea of Human Rights (Princeton UP, 2009); Allen Buchanan, The Heart of Human Rights (Oxford UP, 2013); Patrick Macklem, The Sovereignty of Human Rights (Oxford UP, 2015).

  14. Heidi M Hurd & Michael S Moore, “The Hohfeldian Analysis of Rights” (2018) 63(2) Am J Juris 295 highlight their increased significance and/or stringency at e.g., at 318-319. ‘Properly so-called’ language appears in Austin to distinguish kinds of laws and is now used to distinguish kinds of rights in works like those cited above.

  15. Michael Lobban, “Austin and the Germans” in Michael Freeman & Patricia Mindus, eds, The Legacy of John Austin’s Jurisprudence (Springer, 2013) at 268.

  16. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation in John Bowring, ed, The Works of Jeremy Bentham: Volume One (Russell & Russell, 1843/1962) 1.

  17. Bentham, OLG (n 5), 54.

  18. Id., 54.

  19. Id., 55.

  20. Id., 57 (“[T]he law, when it imposes on one party a duty of the extra-regarding kind, does thereby confer upon some other party a right to services: a right to services to be rendered by the party on whom the duty is imposed.”).

  21. HLA Hart, “Introduction” in Bentham, OLG, id., xxxi. See also HLA Hart, Essays on Bentham: Jurisprudence and Political Philosophy (Oxford UP, 1982) 105.

  22. Bentham, OLG, id., 59-62.

  23. Austin, Lectures (n 5), 407.

  24. Austin’s debt to Bentham is explicit in id., 407. On the fundamentally legal nature of both authors, see also e.g., David Lyons, “Logic and Coercion in Bentham’s Theory of Law” (1972) 57 Cornell LR 355. Lyons’s work on correlativity in particular, “The Correlativity of Rights and Duties” (1970) 4 Nous 45, is also relevant here.

  25. Austin, Lectures, id., 407. The latter point is said to follow from the fact that “duties toward oneself and duties towards persons indefinitely, can scarcely be said with propriety to correlate with rights.”

  26. See also John Austin, Lectures of Jurisprudence: Volume II (Thoemmes Press, 1879/1996) at 816-817.

  27. Austin, Lectures (n 5), 408.

  28. This may explain why his reasoning about duties to the self is so cursory. Legal duties to the self are rare.

  29. Austin, Lectures (n 5), 410. See also Lobban (n 15), 268.

  30. Austin, Lectures, id., 410.

  31. Id., 418.

  32. Even the titles of Hohfeld, 1913 (n 4) and Hohfeld, 1917 (n 4) make the fundamentally legal focus of his project clear. The latter was the title article for an essay collection; Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning: And Other Essays, ed by Walter Wheeler Cook (Yale UP, 1920).

  33. Hohfeld’s method is best described as a type of “legal formalism”. But see Pierre Schlag, “How to Do Things with Hohfeld” (2015) 78(1-2) Law and Contemporary Problems 185 at 186n2.

  34. Hohfeld, 1913 (n 4), 31.

  35. Id., e.g., 32-36.

  36. Id., 32, citing (1894) 10 Ind. App., 60; 37 N.E., 303, 304.

  37. Hohfeld, 1917 (n 4), 710.

  38. Id.

  39. Barker (n 4) is good on this. While some people read Hohfeld as trying to do more than formalize private law holdings, Hohfeld’s texts do not support this claim. I discuss other problems with moral readings below.

  40. See generally Hohfeld, 1913 (n 4) and Hohfeld, 1917 (n 4).

  41. E.g., United Nations, International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3; Courtney Jung et al., “Economic and Social Rights in National Constitutions” (2014) 62 Am J Comp L 1034.

  42. Social rights advocates like Jeff King, Judging Social Rights (Cambridge UP, 2012) even suggest that the legal, if not the moral, status of social rights is now largely uncontested, making denials of their existence bad arguments.

  43. See e.g., notes 12 and 14.

  44. Jung et al. (n 41), 1054.

  45. Again, see note 12.

  46. In addition to the conceptual claim in id., note that there are empirical questions about how to realize them. See e.g., King (n 42); Malcolm Langford, ed, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge UP, 2008); Varun Gauri & Daniel M Brinks, eds, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge UP, 2008/2010); Lanse Minkler, ed, The State of Economic and Social Human Rights: A Global Overview (Cambridge UP, 2013); Malcolm Langford, César Rodríguez-Garavito & Julieta Rossi, eds, Social Rights Judgments and the Politics of Compliance: Making It Stick (Cambridge UP, 2017).

  47. See note 13 for leading works establishing them as justified exercises of authority even absent moral analogues.

  48. See the works in notes 41-42. The works in note 46 may, in turn, differ in their findings about how best to realize these rights, but they too establish that the rights can be enforceable against states without major incident.

  49. Austin, Lectures (n 5), 418.

  50. Again, see the arguments offered in the works in note 13, for instance.

  51. See e.g., James Griffin, On Human Rights (Oxford UP, 2008) at 92-93, building on a tradition dating back to at least Maurice Cranston, What Are Human Rights? (Basic Books, 1973).

  52. For works that demonstrate that the systems are ‘workable’ (though imperfect), see e.g., note 46. Jeremy Waldron, “Rights in Conflict” (1989) 99(3) Ethics 503 is, of course, a locus classicus for the study of conflicts of rights.

  53. For more work supporting the idea that rights may entail these less precisely specified rights, see the work of Matthew Kramer (also cited in n 2), especially “Rights Without Trimmings” in Matthew Kramer, Nigel Simmonds & Hillel Steiner, eds, A Debate over Rights (Oxford UP, 1998) 7. For a recent challenge to traditional understandings on rights and duties sourced in a related problem where one appears to owe duties of rescue or charity to multiple individuals, see Marcus Agnafors, “On Disjunctive Rights” (2017) 55(2) Southern J Phil 141.

  54. Indeed, for so-called ‘imperfect duties’ to be useful parts of our moral vocabulary, they ought to be able to create expectations of action in at least some cases. Given the basic schema above, these expectations can be plausibly understood as rights-based. See also id. But the argument here does not rest on this substantive claim, which could lead to the imprecision in our understanding of rights I seek to avoid below. Note further that my view is, happily, also consistent with the existence of duties that are owed to the moral community, even if not owed to particular members (e.g., Stephen Darwall, The Second-Person Standpoint (Harvard UP, 2006)).

  55. Cf. Daniel Weinstock, “Remarks on Elizabeth Ashford’s ‘The Nature of Violations of the Human Right to Subsistence’” in Adam Etinson, ed, Human Rights: Moral or Political? (Oxford UP, 2018) 363. Ashford’s contribution to that volume, which begins on 337, builds on her earlier work on ‘positive’ rights, including “The Alleged Dichotomy Between Positive and Negative Rights and Duties” in Charles R Beitz & Robert E Goodin, eds, Global Basic Rights (Oxford UP, 2009) and “The Inadequacy of our Traditional Conception of the Duties Imposed by Human Rights” (2006) 19(2) Canadian J L Juris 217. Those works share some similarities with the present text.

  56. On problems with ‘pluralist’ conceptions of basic moral phenomenon, see e.g., the discussions of pluralism about power in Peter Morriss, Power: A Philosophical Analysis, 2d ed (Manchester UP, 1987/2002).

  57. Again, the works in note 46 establish both claims in this sentence.

  58. Compare, for instance, the works in notes 13 and 46 respectively.

  59. The coercive nature of legal enforcement may make legal rights differ. If so, this too suggests that legal rights cannot present a default for all rights but leaves the basic structure of all rights across all domains intact.

  60. See e.g., Ernest Weinrib, The Idea of Private Law (Oxford UP, 1995).

  61. Id. Weinrib’s work still generates considerable commentary. For a defense of Weinrib grounded in the same Aristotelean logic as the Hohfeld-defending work in note 14, see Michael Da Silva, “Formalising Formalism: Weinrib, Aristotle, and the Nature of Private Law” (2018) 9(3) Jurisprudence 486. For a critique of Weinrib on correlativity, see Andrew Halpin, “Correlativity and its Logic: Asymmetry not Equality in the Law” (2019) 32(1) Canadian JL Juris 83. But note that Halpin too takes the strong correlativity of rights to be legal in nature.

  62. Id.

  63. Hurd & Moore (n 14), 320-321 (discussing socio-economic rights in particular).

  64. See e.g., Denise R Johnson, “Reflections on the Bundle of Rights” (2007) 32 Vermont LR 247.

  65. Tony Honoré, “The Necessary Connection Between Law and Morality” (2002) 22(3) Oxford J Legal Studies 489.

  66. Id., 491.

  67. The difficulty of establishing this continuity does not undermine Honoré, id., as Honoré is not committed to a necessary connection between the structure of moral and legal rights respectively and leaves open the possibility that the Hohfeldian default is not the proper way of understanding moral rights. His interests lie elsewhere.

  68. While a priority of Roman law could provide a partial explanation, we should be leery about adopting another priority claim to ground SC’s supposed priority.

  69. Hurd & Moore (n 14).

  70. Id., 300, 311n35, etc.

  71. Id, generally.

  72. Hurd & Moore admit that their depiction of Hohfeld is non-standard in id., 300n14. But their deviations from standard readings go far behind pictorial representation. Contrasts with standard positions appear throughout the text. An aside at 307n29 even raises questions about whether there even can be an uncontroversially canonical account of Hohfeldian correlativity that would be capable of serving the role that the default claim would require of it.

  73. Indeed, the works in notes 60-61 also source their insights about private law to Aristotle.

  74. E.g., Ronald Dworkin, Justice for Hedgehogs (Harvard UP, 2013).

  75. It is unlikely that Ronald Dworkin, Taking Rights Seriously (Harvard UP, 1978), the most prominent example of this tack, will do the trick. It starts with pre-political rights. Hohfeld et al. coming across these pre-political rights by examining the products of post-political deliberations is also too coincidental.

  76. Hurd & Moore (n 14).

  77. See e.g., note 72 above.

  78. Hurd & Moore (n 14), 332-333. The authors point to the fact that others share their view to justify this choice. But the scholars that Hurd & Moore cite actually have different accounts of rights and duties. Kant is the most notable example. Hurd & Moore’s decision to alter Hohfeld by adopting a self-described (at 296) “Kantian” approach to rights may make it more plausible. But a Kantian scheme indebted to Hohfeld requires a lot of alterations to Hohfeld that suggest that Hohfeld alone can no longer be a default. Whether a Hohfeldian scheme can do so is then questionable. Kant’s own philosophy includes imperfect duties that raise the kinds of concerns identified in notes 53-54. The preference for maintaining a distinction between rights and permissions also explains why an otherwise compelling account of how law and ethics relates is unlikely to ground the default claim: Those inspired by Samantha Brennan, “Thresholds for Rights” (1995) 33(2) Southern J Phil 143 could make the link between ethical and legal rights analytic as the legal permission to interfere with one’s action is a constraint on one’s general moral right. Legal rights are then a special freedom from interference from a particular actor: the state. But this approach collapses the relevant distinction. It also fails to account for why the new legal data above should be discounted.

  79. Indeed, the final substantive section of Hurd & More, id., 339ff is a detailed argument for substantive positions on law and ethics that even the authors grant that Hohfeld would not accept.

  80. See notes 33, 60-61. While one could appeal to this formalism to try to limit private law cases to those that are SC-compliant – after all, SC-compliance could be a form of LSC-compliance – that appears to concede that (a) is better.

  81. Recall notes 46, 59, and their surrounding text.

Acknowledgements

This paper has gone through several iterations. Thanks are due to Steve Coyne, Hannah Da Silva, John Enman-Beech, Régine Tremblay, Lorraine Weinrib, Daniel Weinstock, audiences at Osgoode Hall Law School and the Annual General Meeting of the Canadian Section of International Association for Philosophy of Law and Social Philosophy, and anonymous reviewers for this journal for helpful feedback on how to improve earlier drafts.

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Da Silva, M. Correlativity and the Case Against a Common Presumption About the Structure of Rights. J Value Inquiry 54, 289–307 (2020). https://doi.org/10.1007/s10790-019-09696-3

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