I do not answer my title’s question in this paper. Instead, my aims are first to show that the question is worth asking, secondly to show that its answer will not be trivial, and thirdly to show that it is unclear what the answer is. From these three conclusions it follows that many contemporary Hohfeldian approaches to the conceptual analysis of rights (including those of Sumner, Jones, Kramer, Wenar and myself)1, while potentially capable of extensional accuracy, overlook an essential but (...) unidentified feature of rights: the feature which explains why duties are not rights. The paper challenges theorists to investigate what this feature is. (shrink)

In this paper I would like to make a contribution to the debate on rights-talk and duties-talk relationship and priority by addressing the problem from a peculiar angle: that of moral conflicts and dilemma. My working hypothesis is that it should be possible to identify some basic and relevant normative features of rights-talk and duties-talk by observing how they modify the description of moral conflicts. I will try to show that both rights and duties posses original and irreducible normative features, (...) and that these latter can be employed in a general assessment of their pro and con. I will first show the conceptual relationship between rights and duties, analyzing in the process a deflationary argument for rights. Second, I will define the general features of moral conflict and dilemma. I will then analyze the different readings that can be given, taking rights or duties as standpoints, of two kinds of moral conflicts: «asymmetric» and «symmetric» conflicts. (shrink)

Multiculturalism has become a hot topic in political philosophy. This thesis investigates the philosophical foundations of multicultural theories through examining the key concepts commonly relied upon. A careful examination of each concept and the way in which they are interconnected, reveals an interesting strategy that the multiculturalist employs. It is my contention that the multiculturalist relies on a complex web of nebulous concepts which fools the reader into thinking that their theory rests on strong foundations. However, when we clear away (...) the fog of confusion, we can see that the multiculturalist has presented us with an illusion, and none of the concepts remain strong enough to hold any of the normative weight they need them to. Multiculturalism relies on grandiloquent rhetoric and muddled thinking, and will ultimately fail to achieve the liberal goals it purports to. (shrink)

This thesis takes up a rights-based perspective to discuss a number of issues related to the problem of permissible harm. It appeals to a person’s capacity to shape her life in accordance with her own ideas of the good to explain why her death can be bad for her, and why each of us should have primary say over what may be done to her. The thesis begins with an investigation of the badness of death for the person who dies. (...) If death is bad for us, this helps explain the wrongness of killing. The thesis defends the deprivation account—i.e. the idea that death is bad for us when and because it deprives us of good life—against two Epicurean challenges. It adds that death is also bad when and because it thwarts our agency. Next, the thesis deals with the logic of our moral rights to non-interference. It proposes a conception of rights according to which the stringency of our rights derives from and is justified by the rational aspect of our human nature. It argues that this conception of moral rights solves the paradox of deontology. While our rights to non-interference are stringent, they are not absolute. The thesis considers two possible exceptions to the general rule that it is impermissible to harm an innocent person against her consent. First, using an actual case from WWII, it investigates the circumstances under which a government may expose some parts of its population to an increased risk of harm in order to decrease the risk to others. Second, it considers the permissibility of self-defence against an innocent threat. It argues that the potential victim of an innocent threat has a justice-based reason to treat her own interests as on a par with those of the threat. (shrink)

This essay makes three suggestions: first, that it is attractive to conceive individualistic justification as one of the hallmarks - maybe even the one hallmark - of human rights; secondly, that combining this conception of human rights with standard worries about socioeconomic rights can tempt one to take the phrase "human rights" to refer to any individualistically justified weighty normative consideration (including considerations that are not rights); and thirdly, that reflections on the individuation of rights and rights' dynamic quality give (...) us some reason to resist this temptation - though this reason is interestingly inconclusive. (shrink)

The Will Theory of Rights says that having control over another’s duties grounds rights. The Will Theory has commonly been objected to on the grounds that it undergenerates right-ascriptions along three fronts. This paper systematically examines a range of positions open to the Will Theory in response to these counterexamples, while being faithful to the Will Theory’s focus on normative control. It argues that of the seemingly plausible ways the defender of the Will Theory can proceed, one cannot both be (...) faithful to the theory’s focus on normative control as the grounds of rights and achieve extensional adequacy. (shrink)

In this paper I take another look at the view, defended by C. Nino, that we may punish criminals because, by knowingly breaking a law, they have consented to becoming liable to the prescribed punishment. I will first rebut the criticisms usually aimed at this view in the literature, aiming to show that they are inconclusive. They are all efforts to show that criminal offenders in fact do not consent to becoming liable to punishment simply by committing crimes. I then (...) turn to a different line of criticism, which I find more promising. I argue that the moral power of effecting normative changes by consenting reflects the power holder’s value as a person, and show how this idea makes sense of how refusal to recognize that power wrongs a person. I then argue that the “power” of consenting to punishability does not fit that model, and is better explained as reflecting the value of other people, whom the offender has wronged. Hence the power of consenting is not involved in typical cases of wrongdoing. (shrink)

InWorld Poverty and Human Rights, Thomas Pogge presents a range of attractive policy proposals—limiting the international resource and borrowing privileges, decentralizing sovereignty, and introducing a “global resources dividend”—aimed at remedying the poverty and suffering generated by the global economic order. These proposals could be motivated as a response topositive dutiesto assist the global poor, or they could be justified onconsequentialistgrounds as likely to promote collective welfare. Perhaps they could even be justified onvirtue-theoreticgrounds as proposals that a just or benevolent person (...) would endorse. But Pogge presents them as a response to the violation ofnegative duties; this makes the need for such remedial policies especially morally urgent—on a par with the obligations of killers to take measures to stop killing.In this essay, I focus on the claim that responsibility for world poverty should be conceived in terms of a violation of negative duties. I follow Pogge in distinguishing two questions (p. 134): What kind of duties (positive or purely negative?) would we be subject to in a just global society where everyone fulfilled their duty and there was no significant risk of injustice? And what kind of duties (positive or purely negative?) do we face given that our global society falls short of the just society?I tackle these questions in reverse order below. I argue, in contrast to Pogge, that positive duties are relevant to our answers to both questions. (shrink)

Hohfeld is one of the best-known analytical philosophers to have written in the area of private law in western, common law legal systems in the twentieth century, but it is sometimes suggested that his scheme has had little impact on the law. One hundred years after his death, this article assesses the man and the impact of his work, noting a resurgence of interest in him amongst both commentators and courts. It suggests that there are two good reasons why his (...) analytical philosophy is more relevant and useful today than ever - its potential to discipline and rationalise an increasingly insistent and ubiquitous rhetoric of rights; and the assistance it can provide in unpicking the complexity of the relationship between private law and the modern administrative state. (shrink)

In this paper, I want to engage in, and move forward, a heated contemporary debate over certain normative positions within the well-known Hohfeldian table of legal relations – a table of dramatic explanatory power. After outlining the uncontroversial core of the table, I will leave the realm of uncontroversiality to enter the realm of controversy. I will enter, and stake out a stance in, a debate over the no-right position. Upon introduction of no-rights, a splinter occurs. There are two positions (...) one might take on no-rights, which I call the Strict Hohfeldian and the Dual. My paper offers decisive reason to favour the latter. Lest there be any doubt – arising from the paper’s chief focus on no-rights – the conclusion is one of great philosophical significance: by the paper’s end, we will, if only at the high level of abstraction at which this paper is pitched, have a complete understanding of Hohfeld’s table. (shrink)

Most philosophical accounts of human rights accept that all persons have human rights. Typically, ‘personhood’ is understood as unitary and binary. It is unitary because there is generally supposed to be a single threshold property required for personhood. It is binary because it is all-or-nothing: you are either a person or you are not. A difficulty with binary views is that there will typically be subjects, like children and those with dementia, who do not meet the threshold, and so who (...) are not persons with human rights, on these accounts. It is consequently unclear how we ought to treat these subjects. This is the problem of marginal cases. I argue that we cannot resolve the problem of marginal cases if we accept a unitary, binary view of personhood. Instead, I develop a new non-binary personhood account of human rights, and defend two main claims. First, there are many, scalar properties, the having of which are conducive to personhood. Second, different subjects have different human rights depending on which of these properties they have, and what threats apply to them. On my view, and contra most existing accounts, most marginal cases have some degree of personhood and are entitled to some human rights. (shrink)

The relationship between libertarianism and state is a contested one. Despite pressing full and strict ownership of one’s person and any justly acquired goods, many libertarians have suggested ways in which a state, albeit limited, can be regarded as just. Peter Vallentyne has proposed that all plausible versions of libertarianism are compatible with what he calls ‘private-law states’. His proposal is underpinned by a particular conception of rights, which brings Interest Theory of rights and Will Theory of rights together. If (...) convincing, Vallentyne’s theory of rights enables libertarians to accommodate a limited but nevertheless coercive state that can act without the full consent of the affected citizen. In this paper, it is argued that Vallentyne’s hybrid theory of rights is implausible from a libertarian perspective as well as fails to align itself with common and deeply held moral intuitions. Hence the conflict between mainstream libertarianism and the state is not solved by Vallentyne’s proposal. (shrink)

I argue that rights that protect our performance of roles are grounded in our interests in performing that role. Many of valuable roles are partly constituted by duties or obligations. Nonetheless these roles—even apparently burdensome roles—contribute to our interests. Once it is bestowed upon them, the role has special value to its bearer. Under certain conditions, the individual’s interest in performing their role is sufficient to ground rights. I conclude by briefly discussing the possibility of detached or non-committed rights attributions. (...) Within law and other systems of positive norms, role-based rights may also be attributed in a non-committed way in situations where it is believed by others that the roles in question are grounded in the interests of their bearers. (shrink)

Predation poses a serious challenge for animal ethics of whatever ilk. For animal rights theory especially, the problem is potentially fatal as animal rights appear to require or permit interfering in nature to prevent predation, an implication that appears to be absurd. Several philosophers have written to deflect this challenge by showing how that implication is not absurd or how the allegedly entailed prescription to intervene does not follow from animal rights theory. A number of philosophers have taken different routes (...) to arrive at the same conclusion that intervention in wildlife predation is not morally permissible or required on the rights view. In this paper, I explore a route hitherto unused to the conclusion that intervention in predation is neither required nor permitted by animal rights theory. I deploy the Hohfeldian analytical framework of rights as well as aspects of the theory of self- or other- defence. This, in my view is the most thorough-going rights perspective on the predation problem. I expose some ad hoc, incoherent, utilitarian, and even speciesist arguments among animal rights solutions to the predation problem. The approach I have used avoids these flaws. Taking animal rights seriously means guarding against any tacit speciesism. I think using Hohfeld’s framework goes some way in keeping rights analysis free of implicit bias that might pollute our arguments in favour of human beings. (shrink)

Some version of the will theory and the interest theory of rights attempt to provide a precise and normatively neutral definition of a right that would be useful in substantive normative debates and that corresponds reasonably well with usage in our political and legal culture. But there is an irresolvable tension in this project. Consistent application of a definition of a right cannot plausible track ordinary usage without invoking underlying normative propositions about the justifications for granting rights. Thus, definitional approaches (...) to rights are too demanding to serve either the descriptive purpose of providing a neutral vocabulary or the normative purpose of usefully discussing the rights we ought to have. For descriptive purposes, it would be better to retreat, if necessary, to the Hohfeldian idea that a right is nothing more than the correlate of a duty; for normative purposes, it would be better to address directly the political justification for characterizing a particular legal as creating a right. (shrink)

Abstract Two features of human?rights discourse are often targeted for criticism: its universalism and its individualism. Both features, it is usually claimed, illegitimately overlook the significance of cultural diversity. In this essay I argue that individualism is incompatible with universalism and compatible with cultural diversity. Thus I defend the view that human rights are individualistically justified, and I argue that it follows from this that human rights are in an important sense non?universal. I go on to show how my non?universalist (...) conclusion can provide the basis for a retort to those who appeal to facts about cultural diversity in order to criticise human rights discourse. (shrink)

The belief that all human beings are ‘moral equals’ is widespread within the canon of Western liberal philosophy. However, it is unclear precisely what ‘moral equality’ or its associate terms mean, what grounds our ‘moral equality’ and what the implications of being ‘moral equals’ are. In this paper, I distinguish between three ways of understanding ‘moral equality’: the ‘buck-passing’, ‘explanatory’ and ‘reverse-explanatory’ accounts. The buck-passing account of moral equality is in parallel with Scanlon’s buck-passing account of value. It holds that (...) ‘moral equality’ is not a metaphysically fundamental concept and simply amounts to having other properties shared equally by all human beings that constitute the reasons for why we ought to treat all human beings equally in certain respects. The explanatory account understands the concept of ‘moral equality’ as metaphysically fundamental and explanatory of why human beings who are the same in certain respects have the same entitlement to x. The reverse-explanatory account also sees ‘moral equality’ as metaphysically fundamental but holds that the explanatory relationship goes the other way round: moral equality is explained by how we ought to act. I argue that the buck-passing account is a more accurate way of understanding moral equality. (shrink)

This article examines the idea of disjunctive rights—an idea first suggested by Joel Feinberg and more recently advocated by Richard Arneson. Using a hypothetical scenario to bring forward a conflict between two rights that cannot be simultaneously fulfilled, the suggestion that the conflict can be solved by describing the right-holders as holding disjunctive rights—rights that involve, in a significant way, a disjunction—is scrutinized. Several interpretations of the idea of disjunctive rights are examined from the perspectives of the interest theory and (...) will theory of rights. Ultimately, the idea of disjunctive rights fails to provide an acceptable solution to the problem at hand, as each interpretation has unacceptable implications. This conclusion challenges the compossibilist thesis, according to which moral rights do not, ultimately, conflict. Alternatively, if one wishes to keep the possibility of compossibility and disjunctive rights, the mainstream theories of rights must be revised or rejected. (shrink)

In his article “Directed Duties and Inalienable Rights,” Hillel Steiner advances an argument to show that there cannot be inalienable rights. This “impossibility theorem,” as well as providing an interesting result by itself, could break the theoretical deadlock in the debate between proponents of interest theory, on the one hand, and proponents of will theory, on the other. In this article, I comment on Steiner’s argument, and I try to show why it does not work. I then expound a paradoxical (...) outcome of the Hohfeldian analytical framework and examine how it might be amended to avoid this outcome. (shrink)