Vol. 9 No. 6 (June 1999) pp. 242-244.

A DEBATE OVER RIGHTS: PHILOSOPHICAL ENQUIRIES by Matthew H. Kramer, N.E. Simmonds, and Hillel Steiner. Oxford: Oxford University Press, 1998. 307 pp.

Reviewed by Jack Wade Nowlin, Department of Politics, Princeton University.

The "debate over rights" to which this volume’s title refers centers around the question of "what the holding of a right involves" defined at a fairly high level of abstraction, rather than around a more particular debate about the substance of our rights, such as whether we have a right to abortion on demand, physician-assisted suicide, or a morally "decent" society (p. 1). What unifies this work, one composed of three essays by three authors revealing three quite distinct perspectives on the matters at issue, aside from its broad central commitment to the basic "holding-of-a-right" question, is the authors’ common acceptance of the "analytical framework of jural relations" devised by Wesley Hohfeld in the early twentieth century. (p. 7) Indeed, the initial essay, written by Matthew Kramer, includes a lengthy explication, elaboration, and defense of Hohfeld’s framework with its focus on the analytic and definitional relationship of legal relations such as rights, duties, liberties, no-rights, powers, liabilities, and so forth.

From this common Hohfeldian starting point, the authors engage a series of questions about the "holding" of rights, including the following: (1) "What are the basic values which rights protect?" (2) "What are the necessary and sufficient conditions for the existence of a right?" (3) "To what extent can the task of singling out those conditions be purely analytical rather than normative?" (4) "Can jurists ascertain the existence of a legal right without having to rely on evaluative assumptions?" And (5) "[t]o what extend can rights be in conflict?" (p. 1) The authors take a number of overlapping positions on these various questions, making it impossible to neatly "package" their different perspectives.

Indeed, the authors’ "dialogue" and their various cross-cutting agreements and disagreements on these and other issues is the most attractive and enlightening feature of the book. For instance, Simmonds, a Reader in Jurisprudence at Cambridge University, and Steiner, a Professor in Political Philosophy at the University of Manchester, both endorse the "Will Theory" of rights, holding that rights are related to the "will" or "choices" of rights bearers. Kramer, a University Lecturer in Jurisprudence at Cambridge University, by contrast, endorses the "Interest Theory" of rights, holding that rights are related to the "interests" or "well-being" of rights bearers; though he is actually substantially more critical of non-Hohfeldian proponents of the "Interest Theory," such as Joseph Raz and Jeremy Waldron, than he is of the two "Will Theory" contributors to this work.

On the other hand, Kramer and Steiner, over against Simmonds, maintain that the question of what the holding of a right involves is largely an ANALYTIC one related to the search for clarity, simplicity, and rigor in our rights discourse. Simmonds, however, maintains that the question is essentially political, rather than analytic, and is related to whether we wish to privilege, say, individual autonomy, the peremptory force of rights, or something else as a matter of substantive morality. Finally, Steiner asserts that even quite particular answers to the question of what rights one actually has can be determined purely analytically; Kramer holds that this project is largely analytical but requires some minimum of evaluative content; And Simmonds maintains, predictably, that is it fundamentally a political or evaluative endeavor. The authors, then, take overlapping and crosscutting positions, sometimes reaching quite similar conclusions for very different reasons or very different conclusions for quite similar reasons.

Of particular interest is the way these differences manifest themselves in the authors’ central debate concerning the rival "Interest" and "Will" Theories of rights. As we have seen, Simmonds argues that the conflict between the two is primarily political–and therefore which theory we endorse depends on, say, whether we are more inclined toward Kantian liberal individualism or utilitarianism (among many other things)–and that the attempt to resolve the dispute on analytic grounds is essentially "arid." (p. 116) Kramer and Steiner disagree, endorsing competing theories ("Interest" and "Will" respectively) for analytic reasons and both arguing that their chosen theory presents far fewer analytical problems than its rival. Kramer, for instance, notes that the Will theory "defines ‘right’ in a way that commits the proponents of the theory to the view that children and mentally infirm people have no rights at all," a position that "tends to sound outlandish" and is gratuitously counter-intuitive. (p. 69) Steiner, on the other hand, points out that the Interest Theory has a great deal of trouble accounting for the common understanding of the position of third-party beneficiaries to contracts–who clearly have "Interest Theory" rights in the fulfillment of the agreement from which they are to benefit, but whose "rights" are in many instances simply waiveable by the promisee. Moreover, it is not clear why the number of "Interest Theory" rights-holders in a contractual context would not proliferate to fourth-, fifth-, and sixth-party beneficiaries in a highly counter-intuitive fashion.

What is notable about Kramer’s and Steiner’s positions, however, is how indistinct the line between their formal approach and the sort of overt political analysis endorsed by Simmonds can actually become in practice. Kramer’s and Steiner’s arguments, for instance, both trade off of our vernacular usage and understanding of rights, but it is unclear why these points are thought to be so telling. The basic point of Hohfeld’s framework was to bring greater clarity and rigor to our rights discourse precisely by unpacking an undifferentiated legal concept such as a "right" into analytically distinct elements and providing more particularized and easily understandable terms for each element. Such a project, of course, may involve a significant deviation from common usage as the meaning of an undifferentiated term is broken down and new terms are invented or assigned to its distinct parts. It may also involve deviations from common understanding as it clarifies existing confusions in the substantive treatment of legal relations.

Does it matter, then, that under the Hohfeldian framework the vernacular "right" to free speech is thought of and described with greater analytic precision as a "liberty" of free speech? The substitution in terminology certainly does not necessarily imply any sort of derogation of the legal/moral entitlement in question. Why, then, would it greatly matter that under the "Will Theory" the vernacular "rights" of children and animals are re-conceptualized and re-designated as something else, another "sort" of legal entitlement, a "claim," say, rather than as a "right" STRICTU SENSU? Or why would it be thought to be so important that the "Interest Theory" suggests that our treatment of third-party beneficiaries may need to be re-conceptualized or re-described in certain areas in order to recognize the (perhaps unenforceable) "Interest Theory" rights of contractual beneficiaries? In light of the presumptive goals of such analyses, we are left wondering what precisely the analytic "costs" of these deviations are and whether they can be determined wholly or even largely "apolitically." Certainly, as Steiner ultimately suggests, subscribing to either theory will require that one pay "some price in the currency of counter-intuitiveness"(p. 298) and one imagines that the evaluation of that price–and therefore the determination of the least "expensive" theory–is hard to ground in purely "analytic" concerns.

In any event, the preceding paragraphs should give some hint as to the flavor of the book. Additionally, all three of the essays are quite well written, and the authors expound their positions with admirable vigor and clarity. This work will certainly be of significant interest to anyone concerned with the Hohfeldian jural framework, the "Interest" and "Will" theories of rights, or the rival analytic and evaluative approaches to the philosophical foundations of rights theory. It is, then, a more than welcome addition to our ongoing "debate over rights.