The Very Thought of (Wronging) You: the Form of Equal Recognition

The Very Thought of (Wronging) You: the Form of Equal Recognition

The Very Thought of (Wronging) You: the Form of Equal Recognition[1]

Ariel Zylberman

University of Toronto

When Claudius poured poison into his brother’s ear did he thereby wrong King Hamlet or did he merely perform a wrong act?

To understand this question we may distinguish two types of duties, duties with regards to another and duties to another, and then ask which type Claudius breached.[2] If you entrust upon me the care of your ficus tree while you are away on holidays, I have duties with regards to the ficus tree, but no duties to the tree. If upon your arrival it turns out that I have not watered the now moribund tree, I have wronged you, not the tree. Although I have duties with regards to your tree, I have no direct normative connection to it.[3] In light of this distinction, we may ask again: is Claudius’s murder a wrong to Hamlet or merely a wrong with regards to Hamlet?

My aim in this paper is to address a more general version of this question: What is the form of juridical wrongs and rights? Are they wrongs to someone or merely wrongs with regards to someone? Is the idea of a direct normative connection between you and I basic or merely derivative? I will argue that juridical wrongs and rights are relational: in the fundamental case wrongs signify a breach of a duty to someone and rights signify claims against others.

To do so, my argument unfolds in three stages. I begin by showing that the puzzle about Claudius arises from a tension between the common view that rights correlate with duties and traditional philosophical views about the justificatory structure of rights. While the former presupposes the claim that rights are necessarily relational, the latter presupposes the view that rights claims are ultimately non-relational. While the former regards the juridical relation between two parties as normatively basic, the latter looks for the normative ground of juridical claims outside of the relationship.

Instead of solving this puzzle by trying to reconstruct relational rights and wrongs out of the non-relational material of right and wrong actions, my strategy will be to be dissolve the puzzle. I do so by articulating three assumptions behind the puzzle, assumptions about the fundamental form of a juridical judgment (§2), about the form of justification of rights (§3) and about the value of the bearer of rights (§4). For each assumption, I develop the relational alternative according to which there is no gap between the nature and the justification of rights.

And finally, having in view the contrast between the non-relational model of rights that informs the puzzle and its relational alternative, I turn to a direct defense of the relational model (§5). In particular, I argue that the non-relational model fails either because it cannot make sense of rights or if it does, it explains rights only by presupposing the relational model.

Once we cast aside the non-relational set of assumptions about rights, we should see that there is nothing more basic, nothing of normative significance behind, under or above, the relationship of right. The very thought of you is already imbued by the form of equal recognition, and this form is constitutive of the relationship of right.

1. Of Rights and Shadows: Naturalist and Institutional Ideas of Rights

When Claudius murdered his brother, we say that Claudius infringed Hamlet’s rights. But what is it for Hamlet to bear a right? What justifies Hamlet’s claim to a right? And what is it for Claudius to infringe that right?

Let me begin with the first question about the nature of individual rights. The two predominant answers are either naturalist or institutional.[4] The naturalist answer is usually that rights are valid claims against others and that the validity of said rights is in principle independent of social and institutional recognition. Joel Feinberg, for example, argues that a valid claim to X has two main components: the rights-bearer is at liberty in respect of X, i.e., has no duty not to relinquish or refrain from X, and this right is the ground of duties in others either to grant X to the rights-bearer or not to interfere with X.[5] Under this model Hamlet has the right to life, and this right grounds a duty on Claudius not to interfere arbitrarily with Hamlet’s life. Since Claudius obviously breached his duty, Claudius wronged Hamlet.

Whereas a naturalist could say that Hamlet has the right to life independently of any social or legal recognition, the institutional theorist must deny this. Rights, as Bentham had argued, are unintelligible independently of social or legal recognition. According to the institutional model, rights cannot be simply valid claims. Instead, the nature of rights must be internally connected to institutional recognition. Rex Martin, for example, argues that individual rights are institutionally accredited ways of acting or of being treated.[6] Martin does not deny that rights may take the form of claims. Instead, he denies that rights can be valid claims that are nonetheless not recognized by any legal institution. Under this model, Hamlet would bear the right to life only if the laws of Denmark recognized this right.

Note, however, that despite their disagreement, naturalist and institutional theories of rights share two key commitments.

First, both endorse the doctrine of correlativity of rights and duties. Any right that Hamlet bears will have as a matter of logical entailment a correlative duty on a second party.[7] A key claim these theories share, then, is that rights can only be understood as paired with, correlated to the duties or obligations of another. This claim stands in stark contrast, for instance, to views like that of Thomas Hobbes according to which a natural right not only requires no obligation on the part of others but is in fact opposed to any obligation. For a view like Hobbes it seems possible that a completely isolated person bear rights. By contrast the naturalist view of rights as valid claims and the institutional view of rights as accredited ways of acting would deny that the idea of a right without any correlative duties makes any sense.

The doctrine of correlativity to which both naturalist and institutional views subscribe enables us to say that Claudius’s poisoning is a relational wrong, a wrong to Hamlet, rather than merely a wrong act which happened to fall on Hamlet. Indeed, as H.L.A. Hart has argued, unless we can draw a distinction between rights and wrongs and right actions and wrong actions, the very idea of a right would disappear.[8] A society ruled solely by the duties of natural law would declare murder and adultery wrong acts, but not wrongs to others. But once the idea of a wrong to another goes, so does the idea of a right. The doctrine of correlativity is meant to capture this relational idea of right by representing correlative duties as duties owed to another. [9]

However, a puzzle begins to emerge once we consider the naturalist and institutional views about our second question concerning the justification of individual rights. What is the ground of a right?

Ronald Dworkin famously classified political theories into duty-based, right-based, and goal-based theories, a classification others have extended to all moral theories.[10] Dworkin’s central idea is that in any political theory we may distinguish judgment types that are basic from those that are derivative. A judgment is basic in a justificatory sense: it marks the end-point of justification in an order of judgments. Thus an X-based theory is a theory that gives pride of justificatory place to an X-type judgment and derives the rest of the theory from X.

The second commitment naturalist and institutional views share, then, concerns the form of justification of individual rights. We justify individual rights by abstracting away from the relationship between the two parties and focusing instead on a basic value external to the relationship of right. The basic judgments in our theory will be either about outcomes (goal-based), or about the duties of an agent (duty-based), or about the rights of a patient (right-based). But by abstracting away from the correlative relationship of right and focusing on just one of the terms of the relationship, we lose from view the direct nexus between Claudius and Hamlet. This view of the justification of rights makes it difficult to understand how Claudius could wrong Hamlet, and how Hamlet could be Claudius’s victim.

Goal-based theories focus primarily on the outcomes in the world of Claudius’s action. Although John Stuart Mill, for instance, defends the harm principle, his utilitarianism pushes him to regard as normatively fundamental the production of pain and well-being in the world. The central normative consideration for a utilitarian like Mill is the production of welfare in the world. This makes it difficult to understand how Claudius could wrong Hamlet, for the key normative consideration is instead whether Claudius performed a bad action, rather than whether Claudius wronged someone. Utilitarians like Mill will find it difficult to explain how Hamlet is a victim rather than simply the accidental location of diminished welfare in the world.

Duty-based theories focus primarily on whether Claudius violates one of his duties, say, emerging from the natural law. John Locke, for instance, argues that we may understand the rights of others as God’s property.[11] Duty-based theories similarly make it difficult to understand how Claudius could wrong Hamlet, for what looks like a wrong to another is in fact simply a wrong to God, since the other is God’s property. Duty-based theories like Locke’s will find it difficult to explain how Hamlet is a victim rather than the mere occasion of Claudius’s breach of the moral law.

Right-based theories focus primarily on whether Hamlet’s rights are infringed. James Griffin, for instance, argues that human rights are based on a person’s liberty and autonomy.[12] Since the fundamental normative judgment is about a person’s rights, rights may be infringed not only by other persons, but also by natural conditions.[13] Right-based theories may find it difficult to explain how Claudius is the perpetrator of a wrong rather than merely an accidental harbinger of tragedy.

When we juxtapose these two commitments, the result is a puzzle, for naturalist and institutional theories alike view the correlative relationship of right as normatively derivative. Judgments of right bottom out in some value external to that relationship: outcomes, duties or further rights. We have followed Hart’s distinction between rights and wrongs, on the one hand, and right actions and wrong actions, on the other. The idea was that a society that possessed only the concept of right and wrong actions would not possess the concept of rights and wrongs. Individual rights and wrongs have a relational structure: I have rights against you, and you owe duties to me. If I can only understand your murder, torture or theft as a wrong act, but not as a wrong to me, I cannot think of myself as a bearer of rights.

A puzzle emerges, then, because the shared commitment about justification yields precisely this result: the fundamental normative idea is that of right and wrong actions, rather than that of rights and wrongs. Although naturalist and institutional theories recognize that individual rights depend on the doctrine of correlativity, their justificatory structure pushes them to locate the grounds of rights in some factor external to that relationship. And once they deem the correlative relationship of right normatively derivative, they put in danger the very idea of rights. By focusing exclusively on outcomes, agents or patients goal-based, duty-based, and right-based theories tear asunder the relationship they initially hold together. And this ends up changing the doctrine of correlativity. Rather than thinking of my rights and your duties as equally basic elements of a single relationship, naturalist and institutional theories end up giving pride of justificatory place to either element of the relationship. Correlativity becomes reductive. Hamlet’s rights are reducible to, mere shadows of, Claudius’s duties. Alternatively, Claudius’s duties are reducible to, mere shadows of, Hamlet’s rights. None of these theories allow the initial correlative view that Claudius and Hamlet are embraced directly in a relationship of perpetrator-victim. The direct connection becomes the shadow of a shadow and possibly a mere illusion. And once this happens, the very idea of rights becomes unstable.

Our puzzle, then, is this: how can we construct relational rights and wrongs out of the “normatively basic” material of right and wrong actions? How can we construct Claudius’s wrong to Hamlet out of the normatively basic material of Claudius’s wrong with regards to Hamlet? [14]

The puzzle is worrying because this project may be doomed. If Hart and Feinberg’s thesis is correct, rights and wrongs are irreducibly relational. But if that is so, the justificatory structure of standard theories renders us skeptics about rights. Rights become shadows.

2. The Monadic Assumption

Faced with this puzzle about rights, our immediate impulse may be to try to solve it by showing how there is no tension between the nature and the justification of rights. Whether we endorse a goal-based, a duty-based or a right-based theory, our task would be to construct relational rights from right and wrong actions. Although I cannot show that this task is impossible, I will try to show that it is unnecessary.

Instead of solving the puzzle, we should dissolve it. We dissolve the puzzle by rejecting the assumptions on which it rests to prevent it from arising. Our task would not be to construct relational rights from right and wrong actions but to understand how relational rights are normatively basic. [15]