FeinbergNatureandValueofRightsexcerpt

243 THE NATURE AND VALUE OF RIGHTS * " JOEL FEINBERG i would like to begin by conducting a thought experiment. Try to imag- ine NowheresviUe - a world very much like our own except that no one, or hardly any one (the qualification is not important), has rights. If this flaw makes Nowheresville too ugly to hold very long in contemplation, we can make it as pretty as we wish in other moral respects. We can, for example, make the human beings in it as attractive and virtuous as possible without taxing our conceptions of the limits of human nature. In particular, let the virtues of moral sensibility flourish. Fill this imagined world with as much benevolence, compassion, sympathy, and pity as it will conveniently hold without strain. Now we can imagine men helping one another from com- passionate motives merely, quite as much or even more than they do in our actual world from a variety of more complicated motives. This picture, pleasant as it is in some respects, would hardly have satis- fied Immanuel Kant. Benevolently motivated actions do good, Kant admit- ted, and therefore are better, ceteris paribus, than malevolently motivated actions; but no action can have supreme kind of worth - what Kant called "moral worth" - unless its whole motivating power derives from the thought that it is required by duty. Accordingly, let us try to make Nowheresville more appealing to Kant by introducing the idea of duty into it, and letting the sense of duty be a sufficient motive for many beneficent and honorable actions. But doesn't this bring our original thought experiment to an abor- tive conclusion? If duties are permitted entry into Nowheresville, are not rights necessarily smuggled in along with them? The question is weU-asked, and requires here a brief digression so that we might consider the so-called "doctrine of the logical correlativity of rights and duties." This is the doctrine that (i) all duties entail other peo- ple's rights and (ii) all rights entail other people's duties. Only the first part of the doctrine, the alleged entailment from duties to rights, need concern us here. Is this part of the doctrine correct? It should not be surprising that my answer is: "In a sense yes and in a sense no." Etymologically, the word "duty" is associated with actions that are due someone else, the payments * Editorial Note: The three papers and their commentaries published in this issue were read at the Conference on Political and Moral Philosophy held at Ripon College, Wisconsin, Sept. 18 and 19, 1969. This article was first given as an Isenberg Memorial Lecture at Michigan State University, Winter Series, 1969. Presented to AMINATAPHIL, Nov. 1969. 244 The Journal of Value lnquiry of debts to creditors, the keeping of agreements with promisees, the pay- ment of club dues, or legal fees, or tariff levies to appropriate authorities or their representatives. In thi.~ original sense of "duty," all duties are corre- lated with the rights of those to whom the duty is owed. On the other hand, there seem to be numerous classes of duties, both of a legal and non-legal kind, that are not logically correlated with the rights of other persons. This seems to be a consequence of the fact that the word "duty" has come to be used for any action understood to be required, whether by the rights of others, or by law, or by higher authority, or by conscience, or whatever. When the notion of requirement is in clear focus it is likely to seem the only element in the idea of duty that is essential, and the other component notion - that a duty is something due someone else - drops off. Thus, in this widespread but derivative usage, "duty" tends to be used for any ac- tion we feel we must (for whatever reason) do. it comes, in short, to be a term of moral modality merely; and it is no wonder that the first thesis of the logical correlativity doctrine often fails. Let us then introduce duties into Nowheresville, but only in the sense of actions that are, or are believed to be, morally mandatory, but not in the older sense of actions that are due others and can be claimed by others as their right. NowheresviUe now can have duties of the sort imposed by posi- tive law. A legal duty is not something we are implored or advised to do merely; it is something the law, or an authority under the law, requires us to do whether we want to or not, under pain of penalty. When traffic lights turn red, however, there is no determinate person who can plausibly be said to claim our stopping as his due, so that the motorist owes it to him to stop, in the way a debtor owes it to his creditor to pay. In our own actual world, of course, we sometimes owe it to our jellow motorists to stop; but that kind of right-correlated duty does not exist in Nowheresville. There, motorists "owe" obedience to the Law, but they owe nothing to one another. When they collide, no matter who is at fault, no one is morally accountable to anyone else, and no one has any sound grievance or "right to complain." When we leave legal contexts to consider moral obligations and other extra-legal duties, a greater variety of duties-without-correlative-fights present themselves. Duties of charity, for example, require us to contribute to one or another of a large number of eligible recipients, no one of whom can claim our contribution from us as his due. Charitable contributions are more like gratuitous services, favors, and gifts than like repayments of debts or reparations; and yet we do have duties to be charitable. Many persons, moreover, in our actual world believe that they are required by their own consciences to do more than that "duty" that can be demanded of them by their prospective beneficiaries. I have quoted elsewhere the citation from H. B. Acton of a character in a Malraux novel who "gave all his supply of poison to his fellow prisoners to enable them by suicide to es- cape the burning alive which was to be their fate and his." This man, Acton adds, "probably did not think that [the others] had more of a right to the The Nature and Value of Rights 245 poison than he had, though he thought it his duty to give it to them."x 1 am sure that there are many actual examples, less dramatically heroic than this fictitious one, of persons who believe, rightly or wrongly, that they must do something (hence the word "duty") for another person in excess of what that person can appropriately demand of him (hence the absence of "right"). Now the digression is over and we can return to Nowheresville and sum- marize what we have put in it thus far. We now find spontaneous benevo- lence in somewhat larger degree than in our actual world, and also the acknowledged existence of duties of obedience, duties of charity, and duties imposed by exacting private consciences, and also, let us suppose, a degree of conscientiousness in respect to those duties somewhat in excess of what is to be found in our actual world, i doubt that Kant would be fully satis- fied with Nowheresville even now that duty and respect for law and au- thority have been added to it; but I feel certain that he would regard their addition at least as an improvement. I will now introduce two further mor- al practices into Nowheresville that will make that world very little more appealing to Kant, but will make it appear more familiar to us. These are the practices connected with the notions of personal desert and what I call a sovereign monopoly of rights. When a person is said to deserve something good from us what is meant in part is that there would be a certain propriety in our giving that good thing to him in virtue of the kind of person he is, perhaps, or more likely, in virtue of some specific thing he has done. The propriety involved here is a much weaker kind than that which derives from our having promised him the good thing or from his having qualified for it by satisfying the well- advertised conditions of some public rule. In the latter case he could be said not merely to deserve the good thing but also to have a right to it, that is to be in a position to demand it as his due; and of course we will not have that sort of thing in Nowheresville. That weaker kind of propriety which is mere desert is simply 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 applanse. The following seems to be the origin of the idea of deserving good or bad treatment from others: A master or lord was under no obligation to reward his servant for especially good service; still a master might natural- ly feel that there would be a special fittingness in giving a gratuitous reward as a grateful response to the good service (or conversely imposing a penalty for bad service). Such an act while surely fitting and proper was entirely supererogatory. The fitting response in turn from the rewarded servant should be gratitude. If the deserved reward had not been given him he should have had no complaint, since he only deserved the reward, as op- posed to having a right to it, or a ground for claiming it as his due. 1 H. B. Acton, "Symposium on 'Rights'," Proceedings o[ the Aristotelian Society, Supplementary Volume 24 (1950), pp. 107-8. 246 The Journal of Value Inquiry The idea of desert has evolved a good bit away from its beginnings by now, but nevertheless, it seems clearly to be one of those words J. L. Aus- tin said "never entirely forget their pasts." 2 Today servants qualify for their wages by doing their agreed upon chores, no more and no less. If their wages are not forthcoming, their contractual rights have been violated and they can make legal claim to the money that is their due. If they do less than they agreed to do, however, their employers may "dock" them, by paying them proportionately less than the agreed upon fee. This is all a matter of right. But if the servant does a splendid job, above and beyond his minimal contractual duties, the employer is trader no further obligation to reward him, for this was not agreed upon, even tacitly, in advance. The additional service was all the servant's idea and done entirely on his own. Nevertheless, the morally sensitive employer may feel that it would be exceptionally appropriate for him to respond, freely on his own, to the servant's meritorious service, with a reward. The employee cannot demand it as his due, but he will happily accept it, with gratitude, as a fitting re- sponse to his desert. In our age of organized labor, even this picture is now archaic; for al- most every kind of exchange of service is governed by hard bargained contracts so that even bonuses can sometimes be demanded as a matter of right, and nothing is given for nothing on either side of the bargaining table. And perhaps that is a good thing; for consider an anachoronistic in- stance of the earlier kind of practice that survives, at least as a matter of form, in the quaint old practice of "tipping." The tip was originally con- ceived as a reward that has to be earned by "zealous service." It is not something to be taken for granted as a standard response to any service. That is to say that its payment is a "gratuity," not a discharge of obliga- tion, but something given apart from, or in addition to, anything the recipi- ent can expect as a matter of right. That is what tipping originally meant at any rate, and tips are still referred to as "gratuities" in the tax forms. But try to explain all that to a New York cab driver! If he has earned his gratuity, by God, he has it coming, and there had better be sufficient ac- knowledgement of his desert or he'll give you a piece of his mind! I 'm not generally prone to defend New York cab drivers, but they do have a point here. There is the making of a paradox in the queerly unstable concept of an "earned gratuity." One can understand how "desert" in the weak sense of "propriety" or "mere fittingness" tends to generate a stronger sense in which desert is itself the ground for a claim of right. In Nowheresville, nevertheless, we will have only the original weak kind of desert. Indeed, it will be impossible to keep this idea ot~t if we allow such practices as teachers grading students, judges awarding prizes, and servants serving benevolent but class-conscious masters. Nowheresville is a reasonably good world in many ways, and its teachers, judges, and masters J. L. Austin, "A Plea for Excuses", Proceedings o/the Aristotelian Society, Vol. 57 (1956--57). The Nature and Value of Rights 247 will generally try to give students, contestants, and servants the wades, prizes, and rewards they deserve. For this the recipients will be grateful; but they will never think to complain, or even feel aggrieved, when expect- ed responses to desert fail. The masters, judges, and teachers don't have to do good things, after all, for anyone. One should be happy that they ever treat us well, and not grumble over their occasional lapses. Their hoped for responses, after all, are gratuities, and there is no wrong in the omission of what is merely gratuitous. Such is the response of persons who have no concept of rights, even persons who are proud of their own deserts. 3 Surely, one might ask, rights have to come in somewhere, if we are to have even moderately complex forms of social organization. Without rules that confer rights and impose obligations, how can we have ownership of property, bargains and deals, promises and contraets, appointments and loans, marriages and partnerships? Very well, let us introduce all of these social and economic practices into Nowheresville, but with one big twist. With them I should like to introduce the curious notion of a "sovereign right-monopoly." You will recall that the subjects in Hobbes's Leviathan had no rights whatever against their sovereign. He eouid do as he liked with them, even gratuitously harm them, but this gave them no valid griev- ance against him. The sovereign, to be sure, had a certain duty to treat his subjects well, but this duty was owed not to the subjects directly, but to God, just as we might have a duty to a person to treat his property we/l, but of course no duty to the property itself but only to its owner. Thus, while the sovereign was quite capable of harming his subjects, he eouid commit no wrong against them that they eould complain about, since they had no prior claims against his conduct. The only party wronged by the sovereign's mistreatment of his subjects was God, the supreme lawmaker. Thus, in repenting cruelty to his subjects, the sovereign might say to God, as David did after killing Uriah, "to Thee only have I sinned. ''4 Even in the Leviathan, however, ordinary people had ordinary fights against one another. They played roles, occupied offices, made agreements, and signed eontracts. In a genuine "sovereign right-monopoly," as I shall be using that phrase, they will do all those things too, and thus incur gen- uine obligations toward one another; but the obligations (here is the twist) 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 sover- eign under God. Hence, the fights correlative to the obligations that derive from these transactions are all owned by some "outside" authority. As far as I know, no philosopher has ever suggested that even our role and contract obligations (in this, our actual world) are all owed directly to 3 For a fuller discussion of the concept of personal desert see my "Justice and Per- sonal Desert," Nomos V1, Justice, ed. by C. J. Friedrich and J. Chapman (New York: Atherton Press, 1963), pp. 69-97. 4 II Sam. 11. Cited with approval by Thomas Hobbes in The Leviathan, Part II, Chap. 21. 248 The Journal of Value Inquiry a divine intermediary; but some theologians have approached such extreme moral occasionalism. I have in mind the familiar phrase in certain widely distributed religious tracts that "it takes three to marry," which suggests that marital vows are not made between bride and groom directly but be- tween each spouse and God, so that if one breaks his vow, the other can- not rightly complain of being wronged, since only God could have claimed performance of the marital duties ,as his own due; and hence God alone had a claim-right violated by nonperformance. If John breaks his vow to God, he might then properly repent in the words of David: "To Thee only have I sinned." In our actual world, very few spouses conceive of their mutual obliga- tions in this way; but their small children, at a certain stage in their moral upbringing, are likely to feel precisely this way toward their mutual obliga- tions. If Billy kicks Bobby and is punished by Daddy, he may come to feel contrition for his nau~tiness induced by his painful estrangement from the loved parent. Hy may then t~e happy to make amends and sincere apology to Daddy; but when Daddy insists that he apologize to his wronged brother, that is another story. A direct apology to Billy would be a tacit recognition of Billy's status as ,a right-holder against him, some one he can wrong as well as harm, and someone to whom he is directly accountable for his wrongs. This is a status Bobby will happily accord Daddy; but it would imply a respect for Billy that he does not presently feel, so he bitterly re- sents according it to him. On the "three-to-marry" model, the relations between each spouse and God would be like those between Bobby and Daddy; respect for the other spouse as an independent claimant would not even be necessary; and where present, of course, never sufficient. The advocates of the "three to marry" model who conceive it either as a description of our actual institution of marriage or a recommendation of what marriage ought to be, may wish to escape this embarrassment by grant- ing rights to spouses in capacities other than as promisees. They may wish to say, for example, that when John promises God that he will be faithful to Mary, a right is thus conferred not only on God as promisee but also on Mary herself as third-party beneficiary, just as when John contracts with an insurance company and names Mary as his intended beneficiary, she has a right to the accumulated funds after John's death, even though the insur- ance company made no promise to her. But this seems to be an unneces- sarily cumbersome complication contributing nothing to our understanding of the marriage bond. The life insurance transaction is necessarily a three party relation, involving occupants of three distinct offices, no two of whom alone could do the whole job. The transaction, after all, is defined as the purchase by the customer (first office) from the vendor (second office) of protection for a beneficiary (third office) against the customer's untimely death. Marriage, on the other hand, in this our actual world, appears to be a binary relation between a husband and wife, and even though third par- ties such as children, neighbors, psychiatrists, and priests may sometimes be helpful and even causally necessary for the survival of the relation, they The Nature and Value of Rights 249 are not logieally necessary to our conception of the relation, and indeed many married couples do quite well without them. Still, I am not now purporting to describe our actual world, but rather trying to contrast it with a counterpart world of the imagination. In that world, it takes three to make almost any moral relation and all fights are owned by God or some sovereign under God. There will, of course, be delegated authorities in the imaginary worl