Rights, Wronging, and Equality of Status

Law and Philosophy  The Author(s). This article is an open access publication 2024 https://doi.org/10.1007/s10982-024-09506-3 GIULIO FORNAROLI RIGHTS, WRONGING, AND EQUALITY OF STATUS (Accepted 24 April 2024) ABSTRACT. Two problems about rights have received so far little attention. One is the problem of identifying a general value in the practice of rights. The second is to see when, if at all, rights violations wrong the right-holder, in a morally significant sense. In the present essay, I address the first question by investigating the second. I first show that if we commit to the two ideas, common in the contemporary philosophy of rights, that claim-rights always correlate with directed duties and that rights aspire to protect interests of the right-holder, we make it hard to explain why rights violations, in general, wrong right-holders. In the final section, I present what I see as a promising solution to the puzzle. I describe a particular social environment (the society of equals) where interacting with others through rights is indeed valuable because respecting rights communicates that one takes seriously others’ equal moral status. In such a society and only in such a society, I conclude, moral agents are required to treat all rights violations as wrongs perpetrated against the right-holder. I. INTRODUCTION Rights are part of our social landscape; we interact with others through them, we demand their respect, and we treat their violations as morally salient. But, is a world containing this peculiar way of managing our interactions with others morally superior to one where rights do not exist? This question was famously posed by Joel Feinberg. He answered that having a right means having a ‘valid claim’ against others’ conduct and that the possibility of asserting valid claims is what gives rights their moral value: for ‘the activity of claiming […] makes for self-respect and respect for others, gives a sense to the notion of personal dignity, and distinguishes this GIULIO FORNAROLI otherwise morally flawed world from the even worse [rights-excluding] world of Nowheresvile.’1 In the present paper, I attempt to answer the same question focusing on the relationship between rights and wrongs. If interacting with others through rights is valuable, to the point that it ‘gives a sense to the notion of personal dignity’, it seems plausible that depriving others of the opportunity to enjoy rights may be a moral wrong. Hence, focusing on the relationships between rights violations and moral wronging can help investigate the sense in which the practice of rights adds something valuable to our social landscape. A significant consensus across moral and legal theory already accepts as a matter of definitional necessity that rights violations correspond to wronging.2 The authors endorsing this thesis do not distinguish, however, between a morally significant sense of wronging and one under which wronging is merely taken to correspond, as a matter of definition, to the violation of a right. Hence, under the latter view, the thesis that rights violations correspond to wronging becomes no more than an analytic statement which does not add much to our understanding of the relationship between rights and moral reasons. In this essay, instead, I am solely interested in a particular sense of wronging. I am going to take a moral wrong as any interaction that makes it fitting for a victim to express resentment towards the perpetrator and for the perpetrator to be in moral debt towards the victim. Moral wronging, as I understand it here, is further characterized by its inherent connection to corrective justice; wrongs create the need, for the wrongful agent, to make up for what they did. 1 Joel Feinberg, ‘The Nature and Value of Rights’, Journal of Value Inquiry, 4.4 (1970), 243–60, p. 257. See Frances Kamm, ‘Rights’, in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. by Jules Coleman, Kenneth Himma, and Scott Shapiro (Oxford: Oxford University Press, 2004), pp. 476– 513, p. 478; Michael Thompson, ‘What Is It to Wrong Someone? A Puzzle about Justice’, in Reason and Value: Themes from the Moral Philosophy of Joseph Raz, ed. by R. Jay Wallace and others (Oxford: Clarendon Press, 2006), pp. 333–84; Simon Căbulea May, ‘Moral Status and the Direction of Duties’, Ethics, 123.1 (2012), 113–28; David Owens, Shaping the Normative Landscape (Oxford: Oxford University Press, 2012), p. 46; Visa Kurki, ‘Rights, Harming and Wronging: A Restatement of the Interest Theory’, Oxford Journal of Legal Studies, 38.3 (2018), 430–50; Rowan Cruft, Human Rights, Ownership, and the Individual (Oxford: Oxford University Press, 2019), p. 76; Julian Jonker, ‘Directed Duties and Moral Repair’, Philosophers’ Imprint, 20.23 (2020), 1–32 and ‘Rights, Abstraction, and Correlativity’, Legal Theory, 29.2 (2023), 122–50. For critical viewpoints, see Nicolas Cornell, ‘Wrongs, Rights, and Third Parties’, Philosophy & Public Affairs, 43.2 (2015), 109–43, Cruft, ‘Why Is It Disrespectful to Violate Rights?’, Proceedings of the Aristotelian Society, 113.2 (2013), 201–24 and Janis David Schaab, ‘Why It Is Disrespectful to Violate Rights: Contractualism and the Kind-Desire Theory’, Philosophical Studies, 175.1 (2018), 97–116. 2 RIGHTS, WRONGING, AND EQUALITY OF STATUS If we just considered rights that protect morally relevant interests, we would have an answer ready regarding why their violations wrong the right-holder: as a morally relevant interest is one that everyone is required to take into account in their deliberation, we could easily appeal to that to explain why each rights violation corresponds to wronging. But an account of this kind fails to respond to our initial inquiry; it fails to explain why rights, in general and to an extent independently of the moral relevance of the interest they protect, feel valuable. For these reasons, I propose a different account. I introduce a type of idealized society – the society of equals – where the distribution of rights follows two regulative norms. Firstly, any departure from an equal distribution of rights is justified in terms that do not contradict the society’s general commitment to equality. Secondly, in deciding which rights to implement, the society attempts to strike a fair balance among the competing interests of various categories of citizens. When a distribution of this kind is in place, equality of status acts both as the baseline for the fair distribution of rights and as a constraint on the public recognition of each right. Under such conditions, by respecting the rights of another, I recognize them as somebody whose equality of status can be a source of stringent reasons for my action. Vice versa, by violating somebody’s right in a society of equals, I communicate that I do not take their equality of status as a source of constraints on my practical deliberation. Hence why, under the society of equals, citizens ought to consider eac (...truncated)