<i>Rights and Right-Holding</i>

Matthew Kramer is the foremost contemporary proponent of the Interest theory of rights, and his latest monograph is a definitive statement and defense of that theory. While some of the arguments in Rights and Right-Holding are familiar to rights theorists, some novel ones are introduced in order to complete his account of right-holding. Since it is impossible to do justice to this rich and carefully argued book in such a short review, I will focus on the fresh ideas presented here.Let me start with a short exposition of the two main accounts of right-holding. The literature on rights is divided between theorists who subscribe to the Hohfeldian framework of deontic relations and those who don’t; Kramer is firmly in the first camp, while many other interest theorists explicitly or implicitly reject it. Within this Hohfeldian camp, however, there is a long-standing divide between Choice theorists and Interest theorists.One of Hohfeld’s main insights was that rights are deontic relations between two parties. Thus, the legal position of a right-holder correlates with a legal position of another party, where ‘correlativity’ should be understood as mutual entailment; each of the two positions in this relationship logically entails the other.The most discussed deontic relationship is that between a claim-right and a duty. While Hohfeld’s followers agree that claim-rights and duties always come together, they disagree about what binds them together. Take my contractual duty to deliver this book review. Presumably this duty is owed to (the editor of) this journal to whom I promised that I would. According to the Choice theory, this is so because the editor has control over my duty, in that they could release me from it or demand compliance with it. On the competing, Interest theory this is so because my contributing the review would benefit the journal and therefore its editor. The standard Interest theory of right-holding claims that the party that holds the (claim-)right correlative to a duty is the party that stands to benefit from the performance of this duty. This expounds the widely held intuition that rights are advantageous to their holders.But contracts or promises such as the one above pose a problem to this view. Imagine, if you can, that my review will also benefit the readership of the journal. It would be strange to claim that the readership of this journal has a right against me that I deliver the review, especially since, if the editor releases me from my duty, the duty ceases to exist. Yet this is what the Interest theorist may be committed to.Interest theorists have proposed various solutions to this third-party beneficiary problem. The test for the success of such a solution is whether it can resist an outlandish proliferation of right-holders without restricting the class of right-holders too much. Kramer’s new formulation of the Interest theory aims to do just that: “Individually necessary and jointly sufficient for the holding of a claim-right by X are (1) the fact that the duty correlative to the claim-right deontically and inherently protects some aspect of X’s situation that on balance is typically beneficial for a being like X and (2) the fact that X is a member of a class of potential holders of claim-rights” (179). It may be worth noting how the first condition differs from Kramer’s (1998: 62) earlier formulation of it, whereby “necessary but insufficient for the actual holding of a right by a person X is that the right, when actual, preserves one or more of X’s interests.” Of particular importance are the additions of ‘inherently’ and ‘typically beneficial’ ‘on balance’. Both are effectively meant to respond to the third-party beneficiary objection mentioned above. While the first rules out as right-holders parties that benefit fortuitously from a duty, the second allows the interest theorist to ascribe a right to someone even when they do not perceive the protection offered by the duty as a benefit and would perhaps waive the duty if possible. A masochist, for instance, might find that an unwaivable duty against assault offers them no benefit, but they would still be counted as a holder of the correlative right under this version of the interest theory since such a duty is on balance, typically beneficial to human beings.This version of the Interest theory also allows Kramer to offer a renewed defense of the Correlativity Axiom. According to Kramer, the Correlativity Axiom posits that every claim-right has (at least) one correlative duty and every duty has (at least) one correlative claim-right.1 The second part of this axiom in particular is widely disputed since there seem to be many (legal or moral) duties that do not correlate with rights, such as the legal duty to pay taxes or the moral duty of benevolence or charity. The former, Kramer maintains, like every legal duty, “is correlated with a legal claim- right vested in the system of governance that has imposed the duty” (Kramer 2022: 392). He emphasizes elsewhere that “this thesis about every legal duty, a thesis that is sufficient to sustain the Correlativity Axiom, is a straightforward corollary of my version of the Interest Theory of right- holding” (Kramer 2022: 392). Strictly speaking, this is only so when combined with the assumption that a system of governance is the kind of (collective) entity that can have rights.The second type of duty is more difficult to accommodate, and here Kramer proposes a novel yet highly loaded solution. Duties to give to charity—or eleemosynary duties, in his terminology—are owed to several different parties. First, they are owed to different charities disjunctively; second, they are owed to the system of governance (if imposed by the law); and third, they are owed by each bearer to themselves! This might strike the reader as bizarre and at odds with the interest theory since it doesn’t seem to be in one’s interest to have duties at all, let alone duties that are often seen as quite demanding. Nevertheless, Kramer maintains that it is typically beneficial on balance for human beings to act in conformity with the requirements of morality.This ingenious defense of the Correlativity Axiom may be a step too far for some. Arguably, it goes against the spirit of Hohfeldian correlativity, which was meant to highlight that rights are deontic relationships between two different parties. Moreover, it’s unclear that the second part of the axiom, as formulated by Kramer, was envisaged by Hohfeld, as there is no evidence for it in Hohfeld’s text. What he was at pains to emphasise was that X’s claim-right against Y is equivalent to Y’s duty toward X but not necessarily that every legal, let alone moral, duty has a correlative claim-right; in other words, that every claim-right correlates with a directed duty and vice versa.We can now turn to the second condition for the holding of a claim-right, which requires that the right-holder be a member of a class of potential holders of claim-rights. We should start by noting that Kramer’s rather complex account only spells out the conditions under which someone can be a right-holder; it is silent on whether these potential right-holders should be ascribed rights, by law or morality. Like most Interest theorists, and in contrast to Choice theorists, Kramer wants to include in this class many creatures that are not full-blown moral agents, such as dead and unborn people, fetuses, permanently comatose people, anencephalic infants, and some nonhuman animals.A law that prohibits walking on the grass may seem to benefit blades of grass, and, inasmuch as the grass has interests, legal rights could be ascribed to blades of grass. Kramer does indeed take an expansive view of what counts as an interest, and, on that view, insentient and inanimate creatures can have interests. Yet not all creatures with interests can have rights; a separate necessary condition needs to be fulfilled.Here Kramer joins many other theorists (e.g., Joseph Raz and Frances Kamm) in thinking that only creatures that possess ultimate value can be right-holders. “Such value is possessed by beings if and only if (1) they are êtres pour eux-mêmes and (2) the furtherance of their interests is intrinsically valuable” (317). He chooses the Sartrean French phrase, he explains, in order to avoid reference to consciousness and thus leave open the possibility that artificial intelligence, for instance, might be a potential right-holder.Kramer ultimately finds that key to having such value is the possession of a “level of self-reflective attunedness that is characteristic of conscious engagement with oneself and the world” (318). It might seem like this would rule out many of the creatures mentioned above. But, while Kramer concedes that “myriads of human beings” are not êtres pour eux-mêmes (323), they are ultimately included in the class of potential right-holders by way of an explicit embrace of speciesism.According the Kramer, the two requirements above “apply as generics, rather than universally quantified propositions” (327) to the species, rather than to each individual member of that species; in other words, they ascribe to human beings “a property which is characteristic of them but is not universally shared by them” (324). Note that this does not apply to all nonhuman animals; this is because an ‘ethically pregnant commonality’ only obtains between human beings.But if these conditions are met by the entire species rather than by individuals, it seems that the right-holder is the species as a whole, not individual members of it. This is a problematic conclusion in two ways: first, because it is debatable whether the human species, which is an unorganized collectivity, can hold rights as a single entity, and second, because what we would ultimately want is to ascribe rights to individual human beings not the species as a whole.I take it that Kramer would reply that humanity, as an ethical community, can hold rights as a whole because the ascription of a right here involves aggregative universal quantification even though the ascription of value did not involve a universal quantifier. Moreover, he also claims that individual members of the species can hold additional homologous rights at least when the inherent protection bestowed by a duty is “typically advantageous on balance” for them as individuals (382–84); this is to say that, when a duty is beneficial for most but not each member of the species, not every individual will be a right-holder. So it’s not clear to me that this argument actually succeeds in ascribing rights to all human beings, including comatose people and anencephalic infants.2 Those dissatisfied with the Choice theory because it cannot ascribe rights to creatures who are not agents may have to look elsewhere for an alternative.Many of the complex and sophisticated arguments in this impressive book had to be left aside in this short review, but they would repay careful reading. The first book-length defense of the Interest theory of rights, Rights and Right-Holding is required reading for any rights theorist.