We are pleased to present the next Ethics discussion, on Leif Wenar's new article, "The Nature of Claim Rights." The article has been made open access here. Arthur Ripstein, professor of law and philosophy at U. Toronto, kicks off the discussion with a critical precis of Wenar's article below the fold.
Wenar’s excellent article ends with a summary of his position: “Rights have their home in normative systems with constructed personae. We are just beginning to understand how to make sense of rights outside of such contexts.” Wenar analyzes the concept of a right in the first instance in terms of the concept of a constructed role. The account is non-reductive; the concept of right has its clearest application as a node in a system of roles. Wenar’s strategy is to treat the cases in which “role” and “right” are connected within a normative system as basic, and then work outward to a broader range of cases by focusing on the desires proper to kinds of beings identified in some way other than in terms of constructed personae.
I think Wenar is correct to focus on the right-role connection, and to work from it to an account of less central cases. In this brief comment, I want to raise a question and make a proposal. The question concerns Wenar’s explication of the idea of a role in terms of its characteristic desires: is the constitutive end to which he appeals usefully characterized as a desire? The question in turn, sets the framework for my proposal of a slightly different way of developing Wenar’s central idea about roles. Rather than treating constructed personae as a special kind of kinds, I will suggest treating all talk about rights bearers as appealing to constructed personae.
Wenar introduces the idea of a right bearer’s characteristic desires through Bernard Williams's claim that “to know what a bank clerk is involves a good deal about the social fabric in terms of which the role of a bank clerk is defined – but when I understand that role in those terms, I also understand in outline the sorts of things a man would have to do in order to be called a good bank clerk.” He moves from this to the related, though distinct, idea that the characteristic excellence of the carrying out of a social role is to be characterized in terms of what the holder of that role properly wants. As Wenar notes, many, perhaps most occupants of certain roles don't actually care one whit about whether the constitutive end of the role is met. Nonetheless, he correctly notes that we suppose that the end is still constitutive. However, the correct understanding that follows from the idea of the constitutive end is that the end is a formal feature of the role.
I wonder, however, whether putting this in terms of desires is an unnecessary detour in the account, and a potentially misleading one at that. Consider Wenar’s remark about the place of interests in his account. “The meaning of ‘interest,’ like butter, is semisolid. When Interest theorists are rigorous, and freeze the concept into hedonist or objective list meaning, the concept then becomes unsuitable for analyzing rights outside those of a limited, if growing, set of natural-kind right-holders.” He continues “But ‘interest’ can also be smeared across roles by deriving its meaning from role-based desires.” My thought is that something similar is true of desire: characteristic desires figure in talk about rights because of their place in specifying constructed personae. Like “interests,” “desire” has a variety of uses, many of which have no bearing on explicating the concept of a right.
This may seem like a minor point of emphasis, and it may well be. However, I draw attention to it in the context of explicit roles because Wenar deploys the same apparatus in characterizing cases in which no role applies in any straightforward way. I want to suggest that the introduction of desires introduces a potential ambiguity in those cases. By beginning with institutional roles, Wenar frames his proposal in a way that guarantees that the nature of the role in question will be seamlessly integrated with both the system of rules and its characteristic ends. Think here of the goalie, whose constitutive activity does not exist apart from the rules in which it is situated. Of course, there are people who stop other people from getting spherical objects into various locations. But whatever they want, they don't have rights based on those desires. Indeed, the goalie's rights are only against other players and referees because there are no goalies outside of games. To say that is also to note that the status of goalie within a game does not carry over outside of the game. Public officials can interfere with the goalie's possession of the ball.
Wenar's first step in broadening the analysis is to move from cases in which having a right enables a person to carry out the rolling question two cases, such as the rights of a promisee, in which the right follows the rule, and the purposes inherent in the role, without there being any corresponding duties.
To carry this analysis over to rights not attaching to official roles Wenar focuses on characteristic forms of activity, and what people have reason to want, noting that “we do not regard ‘human’ as a role. We see ‘human’ simply as the kinds of things we are. Explaining the modern understanding of human rights requires an expansion of the role-based analysis.”
The expansion comes with the characterization of the broader idea of a “kind,” which subsumes both natural and social kinds. Wenar proposes that we think of rights bearers in terms of the desires characteristic of their kind. Within a system of norms that takes as its object things identified by their kind-membership, “claim rights correspond to those enforceable strict duties that the members of the relevant kind want to be fulfilled.”
Focusing on kinds and treating roles as though they are a special kind of kind, and seeking the characteristic desires of members of the kind “human” Wenar comes closer than I think he should to a version of an interest theory, treating human rights as protecting something that can be characterized without recourse to the concept of a right or any of its cognates. Such an approach however, risks losing the article’s central insight about the relation between rights and roles. If we ask what human beings have reason to want, we seem to be pushed towards the thought that normative questions about rights are questions about what each human beings has reason to want, rather than about what sort of roles right bearers occupy in relation to each other.
In seeking to extend his account where no roles are available, Wenar accepts Arthur Applbaum’s claim that the idea of a role contains “a whiff of the premodern.” By this he appears to be attending to two features of premodern roles – both their place in a system of differentiated status, and their supposed theological grounding. Yet the modern understanding of rights might just as well be understood in terms of what James Q. Whitman has called “leveling up.” Prior to the modern era, and for many people for much of it, certain things were the exclusive prerogatives of aristocrats, most notably the right to act in one’s own name, or of sovereigns, the right, as Grotius puts it, not to be subservient. Those rights are now thought of as standard rights of human beings, and the journals are filled with discussion of both their grounding and their limits. I want to suggest that they are among the rights that attach to the role of modern citizen, a role that could not be occupied except by bearers of those rights, each of whom wants (in Wenar’s technical sense) to carry out the purposes of such role bearers. By focusing on the characteristic role, modern human rights can be understood in terms of the role-based analysis, so the attempt to treat roles as a special case of kinds in an unnecessary detour. My thought, then, is that roles are always available.
On the extension of Wenar’s central insight that I am proposing, “human being” is itself a role, which typically includes several sub roles, both the role of private person and that of engaged
citizen. Instead of looking at the characteristics of human beings apart from being rights holders, (or even the factual characteristics, such as consciousness, vulnerability, or the capacity for choice) that enable them to be rights holders, or make them worthy of being right holders, I propose that the focus shift to their characteristics as right holders. From this perspective, the normative questions about rights are themselves questions about membership in a system of right-bearers.
Wenar's example of the rule against abusing farm animals comes close to focusing on roles, in a way that comes into focus with the question of enforcement. If the rule protects the animals “as livestock” then the manager who enforces it does so on behalf of the owner, who may well be unaware of the particulars (or maybe a corporation and thus necessarily unaware as such.) If the rule protects the animals “as sensate beings” they do seem to have rights, and the manager who enforces the rules does so on behalf of the animals. I described this as coming close to focusing on roles, because although there is nothing unfamiliar about a temporarily incapacitated or artificial role-bearer depending on others to act on its behalf. For “animal” to be a role in the relevant sense, someone else must actually or potentially occupy the related role of guardian or enforcer. I'm not sure what to think about this, though I sometimes think that the same oddness can be said about the idea of animals or trees having rights. I do not mean to take a position on that question here; the point of Wenar's analysis and of my proposed development of it is to characterize the form of thought in which rights figure, not to determine which rights-claims are correct.
I may be trying to push Wenar towards the “stipulative” approach to kind-desires that he attributes to Rawls, and contrasts with the approach “kind-normative” approach common to philosophical anthropology and accounts emphasizing what is valuable to humans. It may be that the approach I am advancing requires the desires be stipulated, but, if what I say above about the relevant concept of desire, that will be true even in the paradigmatic cases; the relevant concept of desire is necessarily role-dependent.
In talking about constructed personae, I should note that that “constructed” and stipulated” are potentially ambiguous. Of course I didn't mean to suggest, or to attribute to Wenar the thought that such matters are entirely up to us. Indeed, it makes perfect sense to describe the standard private law of rights of property ownership and contractual performance in terms of constructed persona, because they set out a role within a network of broader private arrangements. Although some writers insist that property and contract are constructed as a way of saying that they have no normative significance, my suggestion doesn't require this more robust sense. It only requires that personae are constructed in the weaker sense that the role of promisee or property owner can only be specified in terms of the relationships in which an occupier of that role stand to others. So, too, with the broader class of human rights: the idea that they are human rights is the idea that human beings occupy a number of distinctive roles or offices, including participant in private transactions, scaled-down sovereign, and participant in public life. Further human rights are usefully thought of as things that are required in order for human beings to properly fulfill those roles. Needless to say, there is much disagreement about exactly what those roles entail, how they relate to each other, and what is required if they are to be properly fulfilled. But as Wenar points out, the theory of the nature of rights should identify the subject matter of dispute, not resolve those disputes.