Natural Law's Modern Cousin Germain: Specifying Rights

TO MAKE THE MOVE FROM a general concept to a specific conception of right, say, from the "right to life" to the "right to life from the first moment of conception until natural death," is sometimes a very controversial and complex subject. All of a sudden consensus as to concept falls apart when the concept is specified, concretized, particularized, or qualified into specific conception. In Finnis's view, general concept of rights have to be specified into conceptions, and this must be done by changing the rights from two-term rights ("I have a right to X" to three-term rights using the Hohfeldian analysis that Finnis adopted and which we discussed in an earlier posting* ("A has a right to X, which B has a commensurate duty"). The number of factors that must be thought through in specifying rights, in the determination of concept to conception, can be daunting:

1. One must identify the duty holder(s) who must respect or give effect to A's rights;
2. One must define the content of the duty--what specific acts, times, circumstances, conditions, apply to that duty.
3. One must identify the correlative scope of A's claim-right.
4. One must identify the conditions under which A may waive or lose his claim-right or waive any other persons duties that correlate to A's right.
5. One must identify A's remedies in the event there is non-performance of the duty and A's rights thereby infringed.
6. The liberties relating to A's claim rights, and any limits on those liberties, particular those that may involve the duty of non-infringement of others' liberties, which means a specification of duties upon A with regard to the claim-rights of others (e.g., B).
   

The moment B is brought it, it requires a similar analysis (1-6 above), which brings us to C (for which the same analysis, 1-6 must be made), which brings us to D . . .

Going from Concept of Right to Conception of Rights is Daunting
The Natural Law Must Guide

This is what happens to a rights analysis that is placed within a communal framework. It is no wonder, then that people who share the same concept of right (the right to life, or the right to free speech, or the right to trial by jury) have a difficult time when it comes to specific determination of that right, what Finnis calls conceptions of that right. The whole calculative complexity of the specification steps outlined above causes unanimity in concept to result in disagreement in conception.

The only way to order the specification of rights with any hope at consensus is to have some sort of overriding guiding principles:

There is, I think, no alternative but tho hold in one's mind's eye some pattern, or range of patterns, of human character, conduct, and interaction in community, and then chose such specification of rights as tends to favour that patter, or range of patterns. In other words, one needs some conception of human good, of individual flourishing in a form (or range of forms) of communal life that fosters rather than hinders such flourishing.

NLNR, 219-20. Such a matrix, Finnis observes, will distinguish art from trash, culture from ignorance, friendship and respect from hatred, group bias, and "anarchic sexuality." It will recognize that children need to be formed, but will reject "servility, infantilism, and hypocrisy," and so forth. NLNR, 220. It will, in fact, add some sort of objectivity to the process of moving from concept to conception. Without some sort of overarching matrix, the work and public discussion in moving from concept to conception can not only be fruitless, it can be positively harmful to the common good and lead to endless bickering, infighting, and ill-will. Ultimately, the concept of rights must be nestled within the framework of natural law:

Human rights (not to mention the public order and morality which constitute a necessary framework for their enjoyment) can certainly be threatened by uses of rights-talk which, in bad faith or good, prematurely ascribe a conclusory or absolute status to this or that human right (e.g., property, contract, assembly, speech). however, if its logic and and its place in practice reasonableness about human flourishing are kept in mind, the modern usage of claims of right as the principal counter in political discourse should be recognized (despite its dubious seventeenth century origins and its abuse by fanatics, adventurers, and self-interested persons from the eighteenth century until today) as a valuable addition to the received vocabulary of practical reasonableness (i.e., to the tradition of 'natural law doctrine').

NLNR, 221. It is like rights are a wild steed, and they must be reined-in and broken in by a steady hand, the steady hand of the natural moral law.

For all their problems, their "dubious . . . origins," their "abuse by fanatics, adventurers, and self-interested persons," for all their potential for capture and appropriation by opportunists, rights have some valuable contributions to make in public discourse as they have some intrinsic features which makes them particularly effective in certain areas. Finnis identifies three such traits:

1. Rights emphasize equality, which is "the truth that every human being is a locus of human flourishing which is to be considered with favour in him as much as anybody else." This keeps "justice in the foreground of our considerations."
2. Rights-talk tends to dissipate or counter the tendency towards utilitarian or consequentialist "calculation" since rights are frequently touted as absolute. And any absolute right queers a utilitarian's work, throws a wrench in the consequentialist machine.
3. Since rights must be specified, they serve as useful vehicles for identifying and amplifying "a usefully detailed listing of the various aspects of human flourishing and fundamental components of the way of life in community that tends to favour such flourishing for all." NLNR, 221.
   

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*See Natural Law's Modern Cousin Germain: Rights Talk.

Natural Law's Modern Cousin Germain: Rights Talk

HUMAN RIGHTS OR NATURAL RIGHTS ARE here to stay, and so we must become accustomed the "grammar of rights" though it does not fit perfectly into the natural law without some accommodation. The accommodation, however, needs to be from the end of right, not from the end of law. Morality ought not change so as to accommodate rights. Rights ought to accommodate to the good. (And for Finnis human rights are nothing less than moral in origin.) Rights talk ought to accept a "grammar of morality," the grammar of the natural moral law. Else rights cannot find a sound basis, and without basis seem to be the favored tool of the unscrupulous, the powerful, the clever, or those with their hands on propaganda machines who use the vehicle of rights to advance agendas that are nothing less that vice writ large, and advance an immorality institutionalized and writ into law.

With that caveat, however, it remains true that the principles of natural law can be framed in the language of rights, and that "the modern grammar of rights," at least according to Finnis, "provides a way of expressing virtually all the requirements of practical reasonableness." NLNR, 199. There is, however, something lost by expressing moral realities in rights language rather than in law language or duty language. The insight that one obtains from framing issues in terms of duty or in terms of law must not allow these classical formulations to be treated as unwanted cousins. In other words, we ought to be comfortable speaking of duty and law at the same time we speak of right.

Wesley Newcomb Hohfeld

Not only do we forget duties when we sound off on rights. We are sloppy in our rights talk. So the first thing that Finnis does in his treatment of rights is to focus on the subtle language that is involved in rights. He does so by adopting (and adapting) the language of the short-lived American scholar, Wesley Newcomb Hohfeld (1879-1918). The effort of Hohfeld to disambiguate the term "rights" is a remarkable achievement.

Finnis encapsulates the Hohfeldian effort by distinguishing four basic "Hohfeldian rights":

1. a "claim-right" (which Hohfeld calls a "right stricto sensu," a right in the strict sense);
2. a "liberty" (which Hohfeld calls a "privilege");
3. a "power"; and
   
4. an "immunity".
   

Distinguishing rights into these four general categories, Hohfeld then suggested that rights need to be understood within a "three-term relation between one person, on act-description, and one other person." NLNR, 199. Applying the triadic schema with the four-fold division of rights, we get the following expansion of rights:*

1. A has a claim-right that B should φ, if and only if B has a duty to A to φ.
2. B gas a liberty (relative to A) to φ, if and only if A has no claim-right ("a no-right") that B should not φ.
3. B has a liberty (relative to A) not to φ, if and only if A has no claim-right ("a no-right") that B should φ.
4. A has a power (relative to B) to φ, if and only if B has a liability to have his legal position changed by A's φ-ing.**
5. B has an immunity (relative to A's φ-ing), if and only if A has no power (i.e., a disability) to change B's legal position by φ-ing.**

NLNR, 199. All of a sudden "rights" become saddled with a matrix of more intricate language, and we speak of claim rights, of no-rights, of a liberties, of duties, liabilities, immunities, and disabilities. In the area of rights as we commonly discuss them, however, the notion of "claim-right" and "liberty" appear to be most important.

If A has a claim-right, then B has a correlative duty. If A's claim-right positive, then A can require something of B (to be given something, to be assisted in exercising the claim-right to φ). If A's claim-right is negative, he has a right not to be interfered with or dealt with or treated in a certain way by B. A has a liberty to φ (or not to φ) if he is free of any duty to B in the matter, which means that B has no claim-right over A that A not φ (or φ).

If A's claim-right or liberty involves more than B (i.e., also involves C, D, etc.), then that claim-right or liberty is multital.

A claim-right and a liberty are distinct, but are not mutually exclusive. Accordingly, A may have both a claim-right and a liberty to φ.

Hohfeld's rights analysis seems to suffer from one weakness, and that is that commonly people do not talk about a three-fold relationship when it comes to rights (A, B and φ). Usually, people talk in a two-term manner: A has a right to a subject matter, to a thing. Unfortunately, speaking of rights in a two-term manner disguises how rights for one person may be an obligation (and, therefore, a loss of rights or liberty for another). When a homosexual claims his "right" to marriage, does he ever think about how and who his "right" may effect? What sort of obligations he will impose on others? NLNR, 201.***

The relationship between claim-right and duty appears to present a problem when rules or rights are translated into the Hohfeldian schema. If B has a duty, when is A said to have a claim-right? There are two possible answers which a person who wants to translate a rule or a right into the Hohfeldian schema must choose:

1. A has a claim-right that correlates to B's duty if and only if there is a person A for whose benefit that duty has been imposed on B, which is to say that A is to be the recipient of B's performance consonant with his duty.
2. A has a claim-right that correlates to B's duty if and only if there is a person A who has the power to remedy B's disregard of that duty by judicial remedy.
   

NLNR, 202-03.

But, pulling away from the technical Hohfeldian analysis, Finnis sees the problem as a little more basic, more fundamental than merely translating rights into more precise Hohfeldian formulations and choosing what stipulation one wants in adjoining claim-rights to duties:

[T]here is a philosophical problem not to be solved by stipulation. This is the question: What, if any, is the underlying principle, unifying the various types of relationships that are reasonably said to concern 'rights'? Or, more crudely: Is there some general explanation of what it is to have a right?

NLNR, 203. At heart, the difference in which stipulation one should use is the difference between one's vision of rights. Are rights to be considered as benefits or interests (so that A's claim-right involves "benefits" or "advantages")? Or are rights to be considered as vehicles which respect choice? The first stipulation views rights as benefits or interests, whereas the second stipulation would emphasize the importance of choice or will.

But for Finnis, the decision is not required:

[I]t is not necessary here to settle the dispute between the 'benefit' and the 'choice' theories . . . It suffices that . . . we may safely speak of rights wherever a basic principle or requirement of practical reasonableness, or a rule derived therefrom, gives to A . . . the benefit of (i) a positive or negative requirement (obligation) imposed upon B (including, inter alia, any requirement not to interfere with A's activity or with A's enjoyment of some other form of good) or of (ii) the ability to bring it about that B is subject to such requirement, or of (iii) the immunity from being himself subjected by B to any such requirement.

NLNR, 205.

This was all rather tedious. Let's see where Finnis goes with it.

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*A and B signify persons, but they need not be individuals, they can be natural persons or corporate persons (e.g., the State or business entities). The symbol φ represents an act-description.
**In 4 and 5, the act φ has juridical connotations. In other words, it involves a juridical act or a legally-cognizable act such as buying, selling, leasing, granting, conveying, marrying, paying, adjudicating, enacting, etc. NLNR, 200. In 1, 2, and 3, the act φ can be either juridical in nature or natural (with or without juridical import), e.g., walking, hitting, traveling by plane, defaming.
***All this seems laboriously technical, but Finnis explains that the "persistence of 'two-term' 'thing-oriented' rights talk" in conjunction with the "'three-term' 'act-oriented' schema of rights" becomes important when certain natural rights (e.g., the right to life) are discussed.