TY - JOUR
AU - Moore, Michael, S
AB - Abstract The article considers in detail one criticism of an earlier paper of ours advanced by both Matthew Kramer and Andrew Halpin. This is the criticism that the content of deontic statuses (such as rights and duties) does not shift but is identical in truly correlatively-related deontic statuses. We argue that the content does shift in both our scheme and in Hohfeld's scheme for the logic of rights, and that such shifts are both good things and consistent with correlativity, properly understood. Miscellaneous other criticisms are also discussed, albeit more briefly. I. Introduction We are pleased to have drawn the critical attention of two such sophisticated theorists as Andrew Halpin and Mathew Kramer. We are also pleased with the high quality of their comments. Critiques in the academy sometimes have the flavor of ships passing in the night, but with ships as well navigated as are these, real disagreements can be quickly isolated and efficiently discussed. Out of the numerous points raised by Halpin and Kramer, we have picked only one to discuss at any length. We also and more briefly advert to several other bones of contention between the four of us, but on these we have by-and-large had our say in the long article the subject of these critiques,1 so we can here keep it short. II. The Issue of “No Right” vs. “No-Right” One issue common to both Halpin and Kramer is the issue of what the term, “no-right,” both does and should mean in the Hohfeldian analysis of rights. Our view of “no-right” is that it is merely an idiosyncratic way of Hohfeld to say that it is not the case that X has a right, as against Y, that Y do action A. Or, as Kramer puts our view, that X has no-right only means that X has “no right” (unhyphenated). Kramer accuses us of conflating “no-right” with “no right.” Kramer worries that his conflation accusation may seem to some readers to be “fussy and pedantic.” It certainly could be seen that way. Leave the logic of rights for the moment and consider usage of the mental state operator, “believe.” Suppose some criminal defendant, X, is charged with knowingly doing some act A that is forbidden by statute. To be guilty, X must have believed the proposition (“p”) that he was doing A, represented as: XBEL(p). (1) There are two ways of negating that proposition in criminal law, showing that X was mistaken about the criminal aspects of what he was doing, and showing that X was ignorant of those aspects. Mistake should be represented as: XBEL(∼p) (2a) Proving mistake (2a) shows (1) to be false via the premise that X (like everyone else) does not often have contradictory beliefs; this premise is: ∼(XBEL(p)andXBEL(∼p)) (2b) Via De Morgan’s laws and the disjunctive syllogism, (2a) and (2b) yields: ∼XBEL(p) (2c) Which contradicts (1), which is what the state needs to prove to show a knowing violation. Ignorance, in contrast to mistake, is where X has no beliefs with respect to p: ∼(XBEL(p)orXBEL(∼p)) (3a) By De Morgan’s laws (3a) is equivalent to: ∼XBEL(p)and∼XBEL(∼p) (3b) Which by Simplification in turn implies (3c): ∼XBEL(p) (3c) Which again negates (1), the proposition that the state must prove for mens rea. Kramer would seemingly label (3c) a case of “no-belief;” whereas case (2c)—which just as it stands is identical to (3c)—would be an instance of “no belief.” For the derivation of no-belief (ignorance) requires X to have been in a state Kramer might well call “belieflessness,” whereas the derivation of (2c) involves no such state because X does have beliefs with respect to p. It is unclear how anything very important in psychology follows upon observing Kramer’s distinction or its labels here. For example, we disagree with Kramer’s interpretation of Hohfeld; is it fruitful to say that we have no belief that Kramer is right, not that we merely have a “no-belief” about it? Or that there is a disagreement between us, not that there is merely a “no-agreement?” Still, the proof is in the pudding, so let us return to Kramer’s actual usage in the logic of rights. Recall that for Hohfeld the status of “no-right” figures into two relations: it is (1) the opposite of claim-right; and (2) it is the correlative of privilege. More exactly, for Hohfeld: (1) X has a right against Y that Y do action A (“X RT Y (Ay)”) if and only if (“iff”) ∼ (X NO-RT Y (Ay)); and (2) Y PRIV X (Ay) iff X NO-RT Y (∼Ay). As we say early in our article, the “no-right” that figures as the opposite of claim-right in (1) is the very same status as the “no-right” that figures in the correlative of privilege in (2). Kramer’s view is that Hohfeld should have (and perhaps did) distinguish “no-right” from “no right” in both of these usages. A no right is nothing at all; the term simply names the absence of a right. Whereas a no-right for Hohfeld, Kramer tells us, is a deontic status, the term naming a real thing, what Kramer calls a state of “rightlessness,” and not just the absence of some type of thing. It is this second usage of “no-right,” the usage of the term as a correlative, that reveals an important aspect of the issue between Kramer and ourselves. We tolerate a content shift between privileges, on the one hand, and their correlatives and opposites, on the other; neither Kramer nor Halpin accept such content-shifts (because they seem to think that if the content shifts for the privilege/no-right correlation, yet it does not shift for the claim-right/no-right opposition (which is what we think), then “no-right” is not being used univocally). When correlated with a privilege of Y to do A, our “no right that X do A” is really a “no right that X not do A”; their “no-right,” by contrast, is a no-right of the same content as that of the privilege with which it is correlated. And this is a difference carrying large systemic implications, making discussion of it neither fussy nor pedantic. We divide our disagreement with Kramer and Halpin here into three disagreements. The first is an historical inquiry about Hohfeld’s semantic intentions: what did Hohfeld mean by “no-right”—what we say he meant, or what Kramer-Halpin say on this score? The second is a more sociological enquiry: what has the secondary literature on Hohfeld that has developed over the past 100 plus years taken Hohfeld to have meant? The third is a normative inquiry: what should Hohfeld have meant by “no-right,” and by what criteria do we make such a normative judgment? III. What Hohfeld Meant by “No-Right” As to the first question—what did Hohfeld mean—we think this is so clear that it is hardly any contest. Hohfeld does not discuss the meaning of “no-right” when used as the opposite of “claim-right.” Rather, he confines his discussion of “no-right” in its usage with respect to privilege. Hohfeld defines a privilege as “the opposite of a duty, and the correlative of a no-right.”2 Considering first its role as the opposite of a duty, Hohfeld regards it as “obvious” that what is meant is not that the privilege-holder has a duty “of the same content or tenor as the privilege”3—for “it is obvious” (to Hohfeld as well as to standard deontic logic) that one can have both a duty to do A and a privilege to do A.4 Rather, what is meant to be the opposite of a privilege of X against Y that X do action A is that X has a duty to Y that X not do action A: When it is said that a given privilege is the mere negation [opposite] of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question.5 Notice that Hohfeld here goes directly and clearly against the interpretation Kramer and Halpin propose for him. For on their interpretation, the opposite of a privilege by X as against Y that X do A, would be a duty owed by X to Y that X do A. This is precisely the duty Hohfeld says he does not mean, a point Hohfeld regards as “obvious.” Further, Hohfeld is equally clear that he means just what Kramer and Halpin say he doesn’t and shouldn’t mean, namely, that when X has a privilege to do A as against Y, the opposite of the privilege to do A is the duty not to do A. And again, this is so obvious to Hohfeld that he qualifies his saying so with, “of course.”6 Coming secondly to no-right in its correlative relation to privilege, Kramer and Halpin are equally off base in construing Hohfeld’s “no-right” that is the correlative of privilege, as having a content identical to the content of the privilege. On their view, when X has a privilege to do A as against Y, then Y has no-right that X do A. Such an interpretation is contradicted by Hohfeld’s own example: the correlative of X’s privilege of entering himself is manifestly Y’s ‘no-right’ that X shall not enter.7 The content of the no-right thus is the negation of the content of the privilege, just as we say in our article and just as Kramer and Halpin deny. Notice, again, how obvious Hohfeld thinks this interpretation is, regarding the Kramer/Halpin view as “manifestly” not correct.8 Why does Hohfeld regard this as so “obvious,” so “manifestly” true, so much a matter of course? Because Hohfeld apparently knew that in these matters he was merely retracing Aristotle’s beginnings in deontic logic. Hohfeld’s very word, “opposite,” likely came from Aristotle’s “square of opposition.” In Aristotle’s square the permission to do A “opposes” the obligation not to do A, and the permission not to do A “opposes” the obligation to do A. To get permission and obligations to be opposites, Aristotle saw that one must not make their contents identical but rather, be the negation of the other. Hohfeld here had the same thought about his privileges and duties. Despite all of this, Kramer has in correspondence mounted a defense reminiscent of Ronald Dworkin’s well-known interpretive stance: if one makes Hohfeld’s system “the best it can be,”9 that system means what Kramer says it means, not what we say it means. Kramer: The stumble by Hohfeld on p. 33 [of his 1913 article] is the only place where he uses the term ‘no-right’ (as opposed to mentioning that term). Hence, I am scarcely calling for any sweeping departure from Hohfeld’s text…. Second, in a sense my remarks about no-rights is exegetical, because I’m rescuing Hohfeld from his own carelessness. He should have recognized that the correlate of a liberty [privilege] must have the same content as the liberty. It’s plausible to think that he would have recognized that point if he had devoted more attention to the matter.10 So, as Dworkin might have said, to make Hohfeld the best he can be we should construe him to believe what Kramer says that he should have believed, not what he said. Two points: first, it remains to be seen whether Kramer’s view is in fact what Hohfeld should have believed (on which more below). Second, even Dworkin conceded that making Agatha Christie the best she could be should not result in her ending up in the company of Leo Tolstoy. What the author has said has to limit what he can be taken to have meant—and even what he would have meant had he thought more about it. Andrew Halpin concedes that “the standard representation of Hohfeld’s scheme [is] that a liberty to do something is correlative with a no-right that the thing not be done, and the opposite of a duty to do something is a liberty not to do that thing,” citing Glanville Williams. Nonetheless, Halpin like Kramer seeks to make Hohfeld the best that he can be by making the correlative of a liberty to do something, “a no-right that the thing be done,” and by making “the opposite of a duty to do something” into a liberty “to do that thing.” This, Halpin assures us, allows us “to take Hohfeld at his word,” disappears oddities in Hohfeld’s account, imposes a “more stringent terminology for Hohfeld,” pays “other dividends,” and thus corrects our “defective … representation of Hohfeld.”11 Halpin’s “Hohfeld-taken-at-his-word” is the Hohfeld for whom, according to Halpin, “the L-NR relation [the liberty/no-right correlation] is regarded as the opposite or negation of the R-D [rights/duties] relation.” Because the right-duty correlation is: XRTY(Ay)↔YDUTYX(Ay) (1) a literal negation of the relation would be: ∼(XRTY(Ay)↔YDUTYX(Ay)) (2) which of course cannot be what Halpin’s Hohfeld could mean. Rather, Halpin intends (3) to be the “negation” of the right-duty relation. ∼XRTY(Ay)↔∼YDUTYX(Ay) (3) Or, alternatively for Halpin: XNO‐RTY(Ay)↔YNO‐DUTYX(Ay) (4) Since, as Halpin tells us, a No-Duty is identical to a privilege for Hohfeld,12 this gives us: YPRIVX(Ay)iffXNO‐RTY(Ay) (5) which is the correlative of privilege for which Kramer also plumps, given that the content of the no-right is identical to the content of the privilege. The above is presented by Halpin as following from an injunction to “take Hohfeld at his word.” Yet Hohfeld never spoke of the privilege/no-right relation as the negation of the right/duty relation. Rather, Hohfeld only spoke of statuses (such as privilege) being the “opposite or negation” of statuses (such as duty), immediately qualifying even that statement by saying that “some caution is necessary at this point.”13 As we noted before, this caution is explicit for Hohfeld: when it is said that a given privilege is the mere negation of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question.14 Hohfeld’s “word” is not that elucidated in Halpin’s (1)-(5) above; Hohfeld’s actual word is what we just quoted. IV. The Scholarly Consensus on What Hohfeld Meant, and Should Have Meant, by “No-Right” Halpin accurately describes the scholarly consensus on what Hohfeld meant by “no-right:” the standard representation of Hohfeld’s scheme [is] that a liberty to do something is correlative with a no-right that the thing not be done, and the opposite of a duty to do something is a liberty not to do that thing. Kramer for his part goes into some detail as to just how accurate is Halpin’s assessment of post-Hohfeld scholarship; according to Kramer, in our interpretation of Hohfeld about “no-right,” we are in the good company of Glanville Williams, Peter Jones, Rowan Cruft, William Edmundson, Alon Harel, Leif Wenar, Hugh Lipton, and the early John Finnis.15 Moreover, the only study we know of wholly devoted to the meaning of “no-right” in Hohfeld,16 agrees with us and not with Kramer. Kramer is thus the proverbial “voice crying in the wilderness” on this issue, having at last found some companionship in the work of Andrew Halpin. The upshot is that the two of us, Hohfeld, and the virtually unanimous community of Hohfeld scholarship,17 all agree that Kramer and Halpin are not right in their interpretaion of Hohfeld (i.e., that the object of their belief is a “not-right”). Yet that point is hardly the end of the matter, for the right way to see their proposals is not as exegeses of Hohfeld, but as proposals on their own about how a logic of rights should be constructed. In other words, their proposals should also be judged on the merits by their coherence, elegance, ontological parsimony, and theoretical fecunditity. Such proposals seem to present genuine alternatives to our system and to Hohfeld’s system and need not be seen only as (inaccurate) interpretations of Hohfeld. 5. No-Right as Part of Kramer’s Minimalist Deontic Logic and Halpin’s Logic of Correlativity The most interesting question about Kramer’s and Halpin’s proposals to analyze “no-right” in their idiosyncratic way is also one we cannot assess adequately here. For in light of the systematic implications of their proposed redefinition for their own systems of throught, assessing the redefinition involves reassessing the systems in which it appears. Such systems have not been fully laid out by Kramer or Halpin in their short articles here, and while they may be laid out in detail elsewhere, we cannot pretend to have mastered them enough to return the favor of a system-wide critique. Each shows a promise of rendering coherent an elegant and interesting alternative to both our system and Hohfeld’s, and we respect the ambition and systematicity of each such alternative system. A. Kramer on No-right Kramer’s “no-right” redefinition is part and parcel of his minimalist, non-standard, deontic logic whose nature he only hints at in the present paper. In such a logic Kramer (like other minimalist deontic logics) retains the heart of Aristotle’s square of opposition, namely, X has a permission to A iff it is not the case that X is obligated not to A, and X has a permission not to A iff it is not the case that X is obligated to A. If Kramer’s “liberties” are his version of permissions, then his already discussed view of the opposite of X having a liberty to A (namely, X having an obligation to A) must be conjoined with Aristotle’s view of the opposite of permission to A (namely, an obligation not to A), which conjunction yields the result that a liberty to A is the opposite of both obligations to do, and to refrain from doing, A. Liberties for Kramer would then necessarily be what Hart called “bilateral liberties,”18 and what Kramer calls a state of “dutilessness.” One might then say that Kramer’s view is that his liberties are to be equated with options in standard deontic logic, not with permissions. This is the view we call in our paper the view of the “libertarian Hohfeldians.”19 Yet Kramer’s deontic logic is vigorously non-standard, so one cannot safely identify his notion of liberty with either options or permissions in standard deontic logic; perhaps a liberty is a single-termed “no-duty,” like “no-right;” perhaps the negation of no-duty is not a duty, nor the negation of no-right, a right; perhaps “opposite” thus doesn’t mean logical negation but something else. We are unsure what Kramer thinks about any of this. We do know that in Kramer’s non-standard logic, obligations can conflict in the sense that X can simultaneously be all-out (not merely prima facia) obligated to A and all-out obligated not to A. Given that hog-choker, it is no surprise that in Kramer’s logic strong moral combat is equally possible: X can be all-out obligated as against Y to A, and Y can be all-out obligated as against X to prevent X from A-ing. How all of this combines into a logic of rights that can compete with our correspondence thesis add-on to standard deontic logic, is not specified, not here at least. It is thus premature to render a judgment on the fecundity of the overall system that Kramer is proposing. This makes Kramer’s more specific proposal – redefining “no-right” in the ways indicated—equally a matter of curious but skeptical agnoticism for us. B. Halpin on No-Right The same agnoticism is our bottom-line assessment of Andrew Halpin’s also systematic recreation of a logic competitive with our own. Unlike Kramer’s logic, Halpin’s is not a brand of, amendment to, or enlargement of, any deontic logic, standard or otherwise. Halpin fully comprehends that our (and Hohfeld’s actual) system is built on standard deontic logic’s negation of the content of a permission (or privilege) in the content of the opposite duty.20 Halpin does not so much disagree with this core insight of deontic logic as ignore it. For the center of gravity of Halpin’s system is not deontic logic, whether standard, deviant, supplemented, or whatever; rather, Halpin seeks to construct a “logic of correlavity” in which correlativity is the centerpiece and not merely an add-on to some larger scheme of deontic logic. Halpin takes his cues from a different part of Aristotle than the square of opposition from which we and Hohfeld start. Halpin quotes Aristotle in the Rhetoric where Aristotle seeks to draw out the necessary implications of a status of one party for the status of another party: where it is proper to say of the person to whom something happened that it was good or just then it can also be said of the person who did it that he acted well or justly, so too if it is proper to say that of the person who did it then it is also proper to say it of the person to whom it happened.21 Thus (Aristotle again), if an act is justly commanded by one party, it is just to do the act commanded by the one commanded; likewise, if it is just to sell the right to collect taxes, it is just to buy such a right from such a seller.22 Halpin uses Aristotle to articulate a very broad but nonetheless precise notion of correlativity. Correlativity for Halpin includes both what he calls “factual correlativity” and “normative correlativity.” The unifying idea common to both of these kinds of correlativity is that the correlative relationship allows us to infer what must be the case for one party in light of what is the case for the other (correlatively related) party. For factual correlativity, what is inferred, and that from which it is inferred, are both non-normative, factual states of affairs. If A has punched B, then it must be the case that B was punched by A, and vice-versa. If A is the mother of B, then B must be the child of A, and vice-versa. Whereas for normative correlativity, what is inferred, and that from which it is inferred, are both normative facts. If A owes B a duty that A will transfer Blackacre to B, then B has a right as against A that A will transfer Blackacre to B. What is common to all of such core instances of correlativity, according to Halpin, is that “the correlative positions are linked within a simple occurrence of conduct [or other fact] affecting the two parties.” More specifically, “basic” (“core”, “shallow”) correlativity exists when but only when the two correlative positions must be “identified as the active and passive aspects of a simple occurrence of conduct.” Significantly for Halpin, it is when there is this identity of states of affairs affecting two parties differently that “we have the stirrings of a ‘logic’ of correlativity,” a “distinctive logic appropriate” to relations of correlativity and to nothing else. All of this leads Halpin to formulate his basic, generic notion of correlativity in terms of what he calls the “necessary coexistence” between two positions. What Halpin means is that correlativity-related positions have “their coexistence in necessarily arising out of the single form of conduct.” Notice that this makes the identity of content of correlative normative positions—such as that of privilege and no-right—foundational for basic correlativity. For Halpin, that the content of a no-right should be the same as (and not the negated opposite of) the content of the correlative privilege, is axiomatic to his “logic of correlativity.” As Halpin puts it, “the only sound logic of correlativity is associated with the basic core of normative correlativity … and [Hurd and Moore’s] more complex level of analysis abandons the logic of correlativity.” As with Kramer’s system, how Halpin’s system fares is beyond what can be assessed here. Again, we admire the rigor and the apparent coherence of the system Halpin has sketched. And it is plain that the resolution of the particular issue between us—the content of no-rights correlative to privileges, and of duties the opposite of privileges—stands or falls with one’s assessment of the general system of which this is but one implication. So we end with Halpin as we ended with Kramer on this issue, as curious but skeptical agnostics. VI. Miscellaneous Other Objections in Kramer and Halpin There are many points raised in the essays by Kramer and Halpin other than the point discussed above about the meaning and the content of a “no-right.” We do not have space to raise or respond to more than a few of these, and those only very briefly. A. Halpin’s Supposed Discovery of How Our Protected Permission Analysis of Liberty “Radically Undermines” Standard Deontic Logic Halpin helpfully articulates two requirements for a scheme of correlativity to fit in with standard deontic logic. He less helpfully (because erronously) thinks that our scheme violates the second of these. Halpin thinks that there is a problem in our representing the opposite (contradictory) of a protected permission because such a permission has a dual nature (both as a Hohfeldian liberty to do some act and a Hohfeldian claim-right-against the interference of others with the doing of that act). And “how is this negation of ‘claim-right against the interference of Y’ to be treated?” Halpin asks, supposing that the only answer is one that “radically undermines” standard deontic logic. Halpin’s problem is an invented one, plausible-sounding only because he would saddle us initially with using the Hohfeldian category of “claim-right” and then pulls the rug out from under us by saying that the Hohfeldian contradictory of claim-right, a no-right, “has been discarded by us.” By contrast, we would stay with our own categories. If X has an active right to A, or an active right not to A, then our analysis of active rights as protected permissions can be depicted as two squares of opposition (one for X doing A and one for Y preventing X from doing A), the corners of the two squares being connected by four biconditionals of correlativity connecting each X status on one square to one Y status on the other. This forms what might be called (with apologies to Aristotle) a deontic “cube of oppositions.”23 THE CUBE OF CORRELATED OPPOSITIONS Open in new tabDownload slide Open in new tabDownload slide Where: OB=duty PER=permission (privilege, liberty) Ax=X does A Py=Y Prevents…  biconditional  material (or one way) conditional  contradictory (or “opposite”)  contrary  sub-contrary There may be a problem here, but it is not one of the ones that Halpin would construct. The supposedly hard-for-us-to-locate two contradictories of an active right of X to do A are (1) X’s obligation to Y that X not do A, and (2) Y’s permission as against X that Y prevent X doing A. The relations of opposition between these statuses, on the one hand, and A’s permission as against Y that X do A, are represented: (1) in the X square; and (2) between the two squares.24 Halpin’s other worry here is to raise the spectre of an infinite regress (looming because Y’s protected permissions to prevent X from doing or not doing A will in turn need another cube stacked below this one to display how those permissions are protected by correlative obligations, and so on ad infinitum). In truth there is just such a regress but it is not vicious because the moral experience that deontic logic needs to capture replicates these relations in just such a fashion. This experience we described in our earlier article when we described issues of self-defense, resistings of self-defense, preventions of resistings, etc.25 The more pressing problem is with the content of the “Y prevents” in the lower square of opposition. As depicted, the obligations that are contraries within the lower square are: an obligation not to prevent X from doing A, and an obligation not to prevent X from not doing A. This is in contrast to what one might have expected, namely, an obligation to prevent X from doing A and an obligation not to prevent X from doing A. (A like worry surfaces about our choice of permissions to prevent of Y as sub-contraries in the lower square.) These are deliberate choices on our part, not inadvertent mistakes, because we think our logic vindicates such a non-standard, lower square of opposition (of course the alternative version of the lower square by itself would also be valid but it is not helpful in charting correlative relations with the X square). B. The Ontology and the Normative Significance of True Absences Historically philosophers have had a lot of fun playing with absences, negative facts, negative events, omissions (sometimes called “negative acts”), negative properties, and the like.26 Some radical adherents to correspondence truth are even happy at making donut holes into a ghostly kind of donut.27 We are not of that latter kind of mind-set, so we argued that both naked liberties and their correlative no-rights in Hohfeld are not existent moral qualities but only the absence of moral qualities—viz, the absence of a duty not to do the act one is privileged to do and the absence of a passive right in others that the actor not do that act. The liberty to pick one’s nose in private was our example of such a morally inert, naked liberty. Kramer, seconded by Halpin, disputes our “morally inert” characterization of naked liberties and of their correlative no-rights. Kramer and Halpin concede that “no-right” and “liberty” in Hohfeld name absences: “The status or position designated by ‘no-right’ is constituted by the absence of a claim-right” (Kramer); “if we take Hohfeld at his word…his liberty amounts to nothing more than no-duty” (Halpin) Not themselves being the kind of reifiers of nothingness as are the philosophers referred to above,28 they seek to ascribe moral significance to admitted absences of moral qualities. Indeed, they enlist us in this enterprise by quoting a concessionary footnote in our original article.29 Absences of moral qualities can have a kind of moral significance, the kind that we referenced in the earlier article. As we said there, that X owed Y no duty not to destroy X’s automobile (because X had consented, for example) can be a good reason why Y owes no duty to pay for X’s automobile. Yet such moral significance depends on there being real moral qualities operating in the background, such as the moral truth that secondary duties of compensation are owed iff there has been a breach of a primary duty not to cause harm to another. The moral significance of absences here: (a) is not to be confused with conferring ontological status on an absence; and (b) is dependent on there being real moral qualities at work in the context of which such significance is found.30 The reality of deontic positions should not be analogized to such moral significances of absences in particular moral contexts. For deontic positions (such as our protected permissions or Hohfeld’s liberties and no-rights) are the context-less building blocks out of which all particular moral facts are to be built. For moral realists such as ourselves,31 at least, such building blocks must be real moral entities and qualities. That a negative state of affairs can figure in substantive moral judgments does not give that state of affairs a place in deontic morality’s basic ontology. No more than the fact that absence of oxygen often explains things like deaths of persons or plants gives no-oxygen a place in the periodic table. C. Hohfeld Taking Active Rights Seriously: We accuse the Hohfeldian analysis of rights of diminishing the importance of active rights inasmuch as the analysis identifies active rights as mere Hohfeldian privileges (absence of duties-not) unprotected by any duties by others not to prevent their exercise. Halpin responds that the Hohfeld analysis respects active rights as much as does ours; only for Hohfeld, active rights are a compound, a “tight bundle” of Hohfeldian sticks consisting of both a privilege to do some act and a claim right by the privilege holder not to prevent the doing of that act. Halpin makes what might be called the “Annie Oakley” response, because in a famous duet Annie sings, “Everything you can do I can do better.”32 Five points: (1) active rights for Hohfeld are not basic the way passive rights are for him. Rather, an active right on his construal is a secondary, “molecular” construction out of more basic elements. (2) Moreover, the more basic element doing all of the serious lifting in the compound Hohfeld would call an active right is the claim-right. Not only is the passive right more basic than is the active right, but the normative “oomph” of the latter is all due to the former. (3) There is no analytic necessity that a right to do things be protected against interference by others; there are only the contingent moral truths about individual active rights. (4) Because of facts (1) – (3), it is doubtful that active rights à la Hohfeld can play the roles in moral theory that constitutes taking them seriously, namely the roles of: (a) being the basis for a rights-based rather than a duty-based deontological system; (b) being explicated by the choice (or “will”) theory of rights rather than by the less demanding interest theory of rights; or (c) being the basis for the lofty claims of Locke and Kant about natural rights, namely, that they are foundational for any doctrine of freedom, the very “seeds of liberty.” (5) In addition, the last part of our article33 was devoted to showing why the Hohfeldian division (of active rights into a privilege protected by a claim-right) was unnecessary because no actual moral phenomenon exists to demand such a division. D. The Supposed Benefits of the Fine-Grained Analysis of the Protections for Active Rights Made Possible by the Hohfeldian Analysis of Active Rights Halpin seeks to make a virtue out of what we regarded as a vice in point (3) in the immediately preceding discussion, urging that the flexibility of Hohfeld’s analysis contrasts favorably to the rigidity of ours. X’s right to speak on a given occasion, for example, can be seen by Hohfeldians to be protected by an indefinitely large number of claim-rights against different forms of interference. Another, Y, may have a duty: not to steal the script for X’s speech; not to threaten X with jail-time if he speaks; etc. But Y may not have a duty: not to require X to speak more softly; not to speak in a crowded theatre; etc. Halpin makes his criticism sound more potent than it is by ignoring the carefully chosen substitution we did in our paper. We did not join Kant and many others in urging that the correlative of an active right to do A was a duty of others not to interfere with the doing of A. Rather, we chose the more specific correlative, a duty not to prevent the doing of A. The difference this substitution makes in this context is this: “interference” is a much broader term than is “prevent.” One can interfere with someone doing something merely by making it more difficult for them to do it; one needn’t succeed in preventing the doing of an action merely to interfere with such a doing. Interferences are like other tryings or riskings: there are many ways to do them, and the consequentialist justification for such tryings or riskings considerably exceeds the availability of such justifications for completed wrongs.34 The upshot is that the variability in correlative duties not to interfere is significantly larger than it is for correlative duties not to prevent. That said, there is of course some residual variability about the permissibility of different means of Y preventing some action A that X has the right to do, as we admit in our article.35 Yet as we also point out in the article, that residual variability exists for all deontological prohibitions, even seemingly univocal ones like “don’t kill.” It is a deep question for deontology how a categorial obligation of a certain content (like “don’t kill”) nonetheless has an indefinitely large variation in the degrees of stringency attached to very finely individuated types of killings. We know that it does have such variation in degrees of stringency from criminal law’s reflection of this in the flexibility accorded sentencing for breaches of such obligations. Although this deep question is an important one, and one which we hope to address in a future article,36 we cannot resolve it here. It thus must remain for now a live issue between us and Halpin whether the variability of correlative duties of prevention is any greater than is the variability of other of our deontological obligations. E. The Unexpressed but Basic Disagreement Here? A frontal assault on our analysis—one so broad and direct that by comparison it makes the criticisms addressed here look like mere flanking maneuvers—would be that we are wrong about the general shape of both morality and law in that they both allow conflict of obligations for one person, and they both allow all forms of moral combat between two or more persons. Kramer indeed believes this, and Halpin at least partially subscribes to it as well. That the gods and our legal system can play with us in the ways we deplore in our article and in Hurd’s book, is anathema to us but not to Kramer and Halpin. A discussion along those lines would probably have come close to the heart of the deeper disagreement between us. But perhaps another time. Footnotes 1 Heidi M. Hurd and Michael S. Moore, “The Hohfeldian Analysis of Rights,” The American Journal of Jurisprudence 63 (2018): 295-354. 2 Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 16-59, at 32. 3 Ibid., 33. 4 Ibid., 32. 5 Ibid. 6 Ibid. 7 Ibid., 33. 8 These two mistakes by Kramer and Halpin are linked, as are the two opposite beliefs of ourselves. This is because the negated opposite of a privilege is equivalent to the correlative of that privilege. (Thus, if X has a privilege to do A as against Y, the negated statement of the opposite (“it is not the case that X has a duty to Y that X not do A”) must be equivalent to the statement of the correlative (“Y has a no-right against X that X not do A”). The upshot is that if Kramer and Halpin hold the opposite of a privilege to do A to be a duty to do A, they are committed to saying that the correlative of a privilege of X to do A is a no-right of Y that X do A. Similarly, if we hold that the opposite of X’s privilege to do A is a duty of X not to do A, we are committed to saying that the correlative of X’s privilege to do A is Y’s no-right that X not do A. And vice-versa in both cases. 9 Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), 77. 10 E-mail correspondence of Kramer to Moore and Hurd dated January 3, 2019. 11 SSRN, posting abstract, 18 July 2019. 12 Halpin seems to think his interpretation of Hohfeld gains some independent support from Hohfeld’s equating of privilege with no-duty; this equation is part of what Halpin presents as Hohfeld’s “word” to which Hohfeld is to be held. Yet such equation is devoid of implications for this purpose: of course the equation means that whatever the content of the privilege, so the content of the no-duty, and vice-versa, yet because Hohfeld shifts the content of the correlative no-right to be the negation of the content of the privilege, so he shifts the content of the no-duty identical to that privilege. 13 Hohfeld, “Some Fundamental Legal Conceptions,” 33. 14 Ibid. 15 See John Finnis, “Some Professorial Fallacies About Rights,” Adelaide Law Review 4 (1972): 377-388, at 379 (“the correlative of X’s privilege is Y’s no-right that X shall not exercise that privilege”). Kramer strains to recruit the later Finnis to his side of the issue, but in support of this recruitment badly misconstrues the quotation he lifts from Finnis’s retitled but only very slightly amended republication of the same essay, nearly forty years later, as, “Rights: Their Logic Restated,’ in Collected Essays Vol. IV, Philosophy of Law (Oxford: Oxford University Press, 2011), 376. The complete quote from Finnis 2011 is: if A has a claim-right that B do (or not do) X, a correlative duty to A to do (or not do) X must inhere in B. If the rule (or inference) providing for the foregoing relation is negated (or the inference denied), the new (or asserted) situation will be such that B, not now having that duty [i.e., to do (or not do)] to A, has a liberty not to do (or to do) X, while A now has no right (‘a no-right’) that B do (or not do) X. (Emphasis and bracketed explication added) (Finnis 1972 is the same except that the final proposition read (with his parentheses): “while A now has (a) no-right that B do (or not do) X.”) Finnis clearly agrees with us in both points in issue here: first, the scare-quoted parenthetical, “a no-right,” is an appositive usage, showing (as we say) that Hohfeld’s “no-right” was just his peculiar way of saying there is no right; second, the negation of content is just as we describe, a privilege not to do A being correlated with a no-right that one not do A and a privilege not to do A being correlated with a no-right that one do A. Kramer mistakenly interprets Finnis 2011’s parenthetical “(‘a no-right’)” to mark his distinction of “no-right” from “no right,’ and ignores the cross reference of, “that duty.” 16 Phillip Mullock, “The Hohfeldian No-Right: A Logical Analysis,” Archiv fur Rechts- und Socialphilosophie 56 (1970): 265-272. 17 The sole dissenter here appears to be George Rainbolt, The Concept of Rights (Dordrecht: Springer, 2006), relied on by Kramer. Yet Rainbolt seems blissfully unaware that he contradicts himself here. Although he does indeed say that “X has a liberty against Y that X do A if and only if Y has a no-claim on X that X do A” (Id. at 2), as Kramer approvingly quotes, Rainbolt also says that “To say that one has a liberty to do A is to say nothing more and nothing less than that one has no duty not to do A.” (Id.) Rainbolt apparently did not see that a statement of the correlative of a liberty is equivalent to a statement of the negated opposite of the liberty; given that equivalence, Rainbolt’s view of privilege’s correlative (his first statement) contradicts his view of privilege’s opposite (his second statement). Kramer deserves better allies than this, which he has in part and at last found in Andrew Halpin. 18 H.L.A. Hart, “Legal Rights,” in his Essays on Bentham (Oxford: Oxford University Press, 1982), 172. 19 Hurd and Moore, “The Hohfeldian Analysis of Rights,” 332-333. 20 Andrew Halpin, “Correlativity and Its Logic: Asymmetry not Equality in the Law,” Canadian Journal of Law and Jurisprudence 32 (2019): 83-108, at 95n40. 21 Halpin’s own translation of Aristotle. Ibid., 90n22. 22 Ibid., Halpin at one point recognizes how similar Aristotle here sounds to Hurd in her pronouncement of her correspondence thesis relating one party’s status to the status of another; yet ultimately Aristotle and Hurd part company on the feature that turns out to be central to Halpin’s idea of correlativity, viz, that the normative positions of the two parties be with respect to the same conduct. Hurd’s correspondence thesis, as Halpin recognizes, “is concerned with connecting two separate actions as codependent.” 23 We assume that one could be construct a like figure for the standard deontic hexagon, consisting of one hexagon regarding X’s action, a second hexagon on a parallel plane regarding Y’s preventative action, and vertical lines of correlativity connecting the two. But it would be a sufficiently complicated picture to be an unhelpful heuristic. 24 Opposing arrows of contradiction exist between X’s permission to A and Y’s permission to prevent X from A-ing, as they do between each of the other three pairs of opposing corners in the two squares. In the interest of visual simplicity, they are not shown. 25 Hurd and Moore, “The Hohfeldian Analysis of Rights,” 345-348. For the template for this replication, see Michael Moore, “Steinhoff and Self-Defense,” San Diego Law Review 55 (2018): 315-338. 26 Particularly amusing on the difficulties of saying anything sensible about nothing, is P.L. Heath, “Nothing,” in The Encyclopedia of Philosophy, ed. Paul Edwards, Vol. 5 (New York: Macmillan, 1967), 524. 27 See Richard Fumerton, “Moore and the Metaphysics of Causation,” in Kimberly Ferzan and Stephen Morse, eds., Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford: Oxford University Press, 2016). 28 Hopefully Kramer does not intend that we take his “rightlessness” and “dutilessness” to exist in the same way as do rights and duties. 29 Hurd and Moore, “The Hohfeldian Analysis of Rights,” 339n110. 30 There is an analogy here to the proper treatment of omissions (in the generic sense of that word, as an absence of any instance of a type of action). Omissions can have an admitted explanatory significance. E.g., “the plants died because the gardener failed to water them.” Yet: (a) that doesn’t make omissions into a kind of action nor does it confer causal power on omissions; and (b) such explanatory significance as omissions do possess on occasion exists only because there are causal laws connecting types of real things (events, states of affairs) to types of other real things as their consequences. 31 Michael Moore, “Moral Reality,” Wisconsin Law Review [1982]: 1061-1156; Heidi Hurd, “Relativistic Jurisprudence: Skepticism Founded on Confusion,” Southern California Law Review 61 (1988): 501-593; Moore, “Moral Reality Revisited,” Michigan Law Review 90 (1992):2424-2533. 32 Irving Berlin, “Anything You Can Do,” in the 1946 musical, Annie Get Your Gun. 33 Hurd and Moore, “The Hohfeldian Analysis of Rights,” 339-353. 34 Heidi Hurd, “What in the World is Wrong?,” Journal of Contemporary Legal Issues 5 (1994): 157-216. 35 Hurd and Moore, “The Hohfeldian Analysis of Rights,” 331. 36 Heidi M. Hurd and Michael S. Moore, “Punishment Proportional to Degree of Wrong Done,” Criminal Law and Philosophy, Symposium on Proportionality, forthcoming. © The Author(s) 2019. Published by Oxford University Press on behalf of University of Notre Dame. All rights reserved. For permissions, please email: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Replying to Halpin and Kramer: Agreements, Disagreements and No-Agreements
JF - American Journal of Jurisprudence
DO - 10.1093/ajj/auz012
DA - 2019-12-01
UR - https://www.deepdyve.com/lp/oxford-university-press/replying-to-halpin-and-kramer-agreements-disagreements-and-no-7EirQIRTUu
SP - 259
VL - 64
IS - 2
DP - DeepDyve
ER -