Precis of Rights and Demands

Talk of “rights” is notoriously ambiguous. Rights and Demands—henceforth R&D—focuses on a particular idea of a right.1 I call the corresponding rights “demand-rights”. Crucially, to have a demand-right to a particular action is to have the standing or authority to demand that action of the right's addressee. Demand-rights are of clear practical utility. Your understanding that I have a given demand-right against you may be enough for you to act accordingly, without my needing to exercise that right. It is clearly important to understand how we accrue demand-rights. That is the central task of the book. In the first part of the book I position my discussion of demand-rights within contemporary rights theory. This tends to focus on what are referred to as claims, and on jurist Wesley Hohfeld's suggestion that A's claim against B to B's phi-ing is correlative (and equivalent) to B's duty to A to phi. A duty to someone is generally referred to as a directed duty. What is a directed duty? This question has been a focus of contemporary rights theory—but there is no consensus on an answer. Rights theorists do tend to agree on one thing: a directed duty comprises, at least in part, what I call a plain duty—a duty, period. I argue that this “duty-plus” assumption is questionable.2 What, then, of claims? A generally overlooked remark of Hohfeld's, transferred from the legal realm to the realm of everyday life, suggests the following: for A to have a claim against B to B's phi-ing is for A to have the standing to demand of B that B phi.3 In my terms, it suggests that claims are demand-rights. Further, for B to have a duty (or obligation) to A to phi is for A to have the standing to demand that B phi. How—at the deepest level—is it possible for one person to accrue this standing? That is the demand-right problem. I argue that a solution cannot be found in the most prominent contemporary rights theories.4 In the second part of the book, I focus on promises and agreements. That they ground demand-rights is generally acknowledged. How can their doing so be explained? Following Hume, contemporary promise theorists assume that promissory obligation is a matter of moral requirement. I argue that this assumption faces two significant objections. First, promissory obligation is part and parcel of any promise, no matter its content, content, or the consequences of performing it. Second, it is a directed obligation, equivalent to a demand-right in the promisee. Focusing on Thomas Scanlon's prominent moral principle account, I argue that such accounts cannot accommodate these points.5 I then develop my own account of promissory obligation. This crucially invokes a particular idea of joint commitment—an idea I take to be central to human life in society. A joint commitment is a commitment of two or more persons, who are committed as one. In the basic case both becoming and ceasing to be jointly committed requires appropriate, open expressions of readiness from each of the parties in conditions of common knowledge.6 Being so committed is a normative matter: the parties are subject, as one, to an exclusionary normative constraint. In other words, there is something that, as one, they ought to do. The “ought” in question is exclusionary: it can be overridden by some considerations, but excludes consideration of others, including one's inclinations or desires as such. Though the qualifier “moral” may be differently interpreted, I take this “ought” not to be a specifically moral one.7 Any joint commitment is, to put it generally, a joint commitment to do something as a body, in a broad sense of “do”. For example, it is a joint commitment to endorse as a body a certain plan. More fully, it is a joint commitment to emulate, in relevant respects, a single endorser of the plan in question, by virtue of the several actions and utterances of the parties. I argue that joint commitment is a ground of demand-rights and the equivalent directed obligations.8 I first observe that, intuitively, the parties have the standing to demand conformity of one another. I then justify this intuition by reference to the fact that in acting contrary to a joint commitment a given party has acted contrary to a normative constraint of which each party is, in brief, a co-author. As I explain, this suggests a particular, plausible interpretation of an idea from Joel Feinberg: in demanding an action to which one has a right, one is demanding an action that is in a sense one's own.9 Two significant points about the demand-rights of joint commitment are as follows. First, given only that to have a demand-right is to have the standing to demand an action of another, it is not clear whether and, if so, how normativity enters into the picture. If the demand-right is grounded in a joint commitment, however, the right's addressee will be subject to the normative constraint that is the joint commitment. So it will indeed be the case that, all equal, the right's addressee ought to perform the action in question.10 Second, even when the “ought” of our joint commitment is overridden, so that I ought not to conform, all things considered, the directed obligation that it grounds will remain. In other terms, I will still owe the other parties conformity to the commitment, and they will retain the standing to demand that I conform to it. Having concluded that joint commitment is a ground of demand-rights, I argue for joint commitment accounts of both agreements and promises. I propose that both are—in the clearest cases—joint decisions, constituted by a joint commitment to endorse as a body a certain plan, a commitment entered into by virtue of a specific type of explicit process. Their differences are relatively superficial, depending on type of explicit process involved.11 Drawing on previous work, I argue briefly that a large variety of phenomena incorporate joint commitments and therefore demand-rights. These include intending and acting together, mutual recognition, in a sense I explain, and a variety of collective attitudes.12 Is joint commitment the only ground of demand-rights? No other ground has emerged in discussion of contemporary rights theories, and there are other reasons for thinking that there are none.13 What about moral demand-rights—demand-rights whose existence can be demonstrated by moral argument, without appeal to a joint commitment as the immediate basis of the right? At the outset of the third part of the book I review several arguments for the existence of at least one moral demand-right and find them wanting. For instance, Hart's famous argument for the existence of at least one natural demand-right shows at most that there is at least one natural immunity, which is not the same thing. Nor does the suggestion that there “just are” moral demand-rights convince. A demand-right—the standing to demand an action—cannot just “be there”. It requires an intelligible ground. Turning to the idea that we have demand-rights against one another to moral conduct as members of “the moral community”, I argue that this is doubtful unless we construe the quoted phrase in terms of an actual joint commitment. There may well be many moral communities grounded in a joint commitment of their members, and an all-encompassing moral community of this kind is a possibility, if not currently in place. Many of our judgements as to who has the standing to demand appropriate action of whom may stem from our location within a particular moral community.14 Others may stem from our understanding of what is at stake in the pervasive phenomenon of mutual recognition understood as I explain.15 I briefly consider the possibility of an appropriate a priori joint commitment of all humans capable of being jointly committed, whose establishment does not require the parties’ expressions of readiness for it. Even if one allows for this, it does not refute the joint commitment conjecture.16 I emphasize that the idea that there are no moral demand-rights in the sense at issue here is consistent with there being moral rights according to many common characterizations in moral theory.17 Often, as with Jeremy Bentham, the institutional realm is considered the sole or at least the primary realm of rights. Focusing on law, I consider several questions about demand-rights and institutions.18 I first discuss whether there can be demand-rights in legal systems abstractly conceived. After distinguishing between legal analogues of demand-rights, and demand-rights proper, I offer an affirmative answer. Next, I consider legal systems that “exist” in a given population, focusing on two questions relating to actual demand-rights, as opposed to those incorporated into legal systems abstractly conceived. First: do members of the population in question have demand-rights against each other to conformity with the rules of the system? I call this the population question. In order to answer it one needs an account of the existence of a legal system, and many such accounts have some plausibility. A variety of potential criteria of adequacy for such an account are discussed, and eight candidate accounts—most drawn from the literature—are considered. The last has a joint commitment at its core. It is the only account that allows for a positive answer to the population question. It is also the only account to satisfy all the listed criteria of adequacy. Focusing on the joint commitment account, I discuss the demand-right holder question: given that a particular legal system, LS, exists in the sense of the account, do those with a demand-right to someone's phi-ing, according to LS, have an actual demand-right to that persons's phi-ing? I argue that they do.19 That said, this is also true of the other members of the population. I note that the law can counteract this proliferation of demand-rights, should it so desire, by restricting legally permissible enforcers, and enforcements, of demand-rights. Human rights are a major contemporary concern, yet their nature, as well as their content, has been hotly contested. Thus, they are sometimes viewed as moral rights, sometimes as institutional rights. Within either conception, they may be conceived of as demand-rights. Focusing on that conception, I discuss human rights in light of the arguments so far presented in Rights and Demands.20 These strongly suggest that those who are said to have particular human rights, moral or legal, only have the standing to demand the objects of those rights, or compliance with associated standards, on the basis of an applicable joint commitment. I discuss several ways in which that would be possible. If my arguments are sound, the main takeaways from the book are two. For one person to have a demand-right against another, it suffices that they are parties to a pertinent joint commitment. That may well be necessary also. Given the practical value of demand-rights, whether exercised or simply understood to be present, the second point may seem concerning. There is, however, a more optimistic take on the matter. Our joint commitments, along with the ensuing demand-rights and directed obligations, are under our control. We are not equally powerful, and some may find themselves forced into ratifying joint commitments that involve their own subjection. Our moral task is to make joint commitments that are morally sound

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