Rights and Demands: A Response to Kamm

Law and Philosophy https://doi.org/10.1007/s10982-024-09519-y  The Author(s) 2025 MARGARET GILBERT RIGHTS AND DEMANDS: A RESPONSE TO KAMM (Accepted 23 September 2024) ABSTRACT. I respond to some questions raised by Frances Kamm with respect to my book Rights and Demands (2018). The book focuses on demand-rights and asks how we accrue them. In other words, how does one accrue the standing to demand an action of someone or rebuke them for non-performance? My response to Kamm emphasizes how I understand ‘‘directed duties’’ in this context. Contrary to the standard practice of rights theorists, I do not start from the assumption that directed duties are constituted by ‘‘plain’’ duties in the context of other factors (about which rights theorists disagree). Rather, I understand my duty to you as the correlative and equivalent of your standing to demand the action in question. I offer a number of further clarifications and conclude by distinguishing the targets of my discussion from other phenomena of interest to moral philosophers, such as complaining and blaming. I thank Frances Kamm for her thoughtful response to my book Rights and Demands.1 The present discussion focuses on a concern that she raises regarding directed duties.2 In order to defuse that concern, I must say something about the context in which my approach to directed duties was developed. I. THE DEMAND-RIGHT PROBLEM My focus in Rights and Demands is to understand–at the deepest level–how one person gains the standing (or, in other words, the authority) to demand some action of another person. In my terms, 1 Frances Kamm, ‘‘A Note on Margaret Gilbert’s Rights and Demands’’, Law and Philosophy 40 (2021): 89–95. See also Frances Kamm, Rights and Their Limits: In Theory, Cases, and Pandemics (Oxford and New York: Oxford University Press, 2022), Appendix 1, ‘‘Claiming and Waiving Rights’’, 349–352, which draws on Kamm (2021). I focus on Kamm, ‘‘Note’’, here. 2 It was also raised by Gopal Sreenivasan, ‘‘Review of Rights and Demands’’, Notre Dame Philosophical Reviews (2019). I focus here on Kamm’s discussion. MARGARET GILBERT how does one person accrue a demand-right against another? I call this the demand-right problem.3 In chapter 5, I consider whether the most prominent philosophical accounts of rights–specifically claim-rights, or claims–offer a solution to the demand-right problem and argue that they do not. Regarding the accounts I consider, I argue as follows. Either there can be a right, according to the account, without the right-holder having the standing to demand the object of the right, or the account presupposes that the right-holder has this standing, without explaining how they accrued it. Among the accounts considered are what I refer to as moral status accounts, of which Kamm’s account is a prominent example.4 Kamm agrees with me on the point that there can be a right on her account, as on many others, without the right-holder having the standing to demand the object of the right.5 She also agrees that it is important to be clear on this point.6 She then states her central concern with what I have to say. This stems from her understanding that your having a right implies, as she puts it, ‘‘that someone else has a duty owed to you in particular as the right-holder.’’7 Or, in other terms that she uses, to have a right implies that the right’s addressee has the corresponding directed duty. This, she suggests, is something I deny. Evidently, that depends on what she means by ‘‘directed duty,’’ and on what I mean by it. I now address the latter question. II. DIRECTED DUTIES: THE ‘‘DUTY-PLUS’’ ASSUMPTION Consider Hohfeld’s famous ‘‘equivalence’’ between a right, or claim, and a duty, or, more fully, a directed duty–a duty to or, as he puts it, toward the right-holder. Here is his illustrative example: 3 Margaret Gilbert, Rights and Demands: A Foundational Inquiry (Oxford and New York: Oxford University Press, 2018), 77–79. 4 Gilbert, Rights, 93–94. 5 Kamm, ‘‘Note’’, 90. 6 Kamm, ‘‘Note’’, 93. 7 Kamm, ‘‘Note’’, 90. Given her reference to ‘‘someone else’’ in the quoted statement, Kamm may reject the possibility of rights against oneself. I do not do so, but I set this issue aside here. For some discussion in connection with demand-rights, see Gilbert, Rights, chapter 8, sec 5.4. RIGHTS AND DEMANDS if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place.8 In other words, emphasizing ‘‘equivalent’’: the relation in which X stands to Y when X has a right against Y to Y’s u-ing is the very same relation that Y stands in to X when Y has a duty toward X to u.9 Note that in and of itself this equivalence tells us nothing about what either rights or directed duties amount to. In other words, it tells us only that one and the same relation can be described in two ways. Given that the equivalence holds, how should we interpret its terms? The majority of contemporary rights theorists focus on ‘‘Y has a duty to X to u’’ and make a significant assumption about directed duties. They assume that a directed duty is built up out of a nondirected duty–which I refer to as a plain duty–plus some additional factor, in particular a relation of the putative right-holder to the duty.10 From here, rights theories diverge by reference to their conception of the additional factor in question, as it was open to them to do. Some say fulfilment of the duty is in the interest of the right holder; others say the right-holder is in a position to enforce, or to waive, the duty; yet others say that the duty is responsive to the right holder’s moral status, and so on. Now the just referenced duty-plus assumption is just that: an assumption, and one that may well be erroneous. It is not obvious on the face of it that a duty to someone is composed of a plain duty plus something else. In other words, the phrase ‘‘duty to’’ needs an interpretation, and it could be that the appropriate interpretation of ‘‘duty to’’ in the present context does not appeal to a plain duty plus something else.11 8 Wesley C. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, Walter W. Cook, ed., (New Haven: Yale University Press, 1964), 38. 9 Joel Feinberg refers to ‘‘the same relation seen from two different vantage points’’ in ‘‘The Nature and Value of Rights’’, The Journal of Value Inquiry 4 (1970): 243–260, at 250. In Matthew Kramer, Nigel Simmonds, and Hillel Steiner (1998), A Debate over Rights: Philosophical Inquiries (Clarendon Press, 1998), 24, Matthew Kramer presents the analogy of a slope that is, from one perspective, an upward slope, and from another perspective, a downward one. 10 Hohfeld himself may have made this assumption, or been inclined to it. Be that as it may, one cannot immediately read it off from his illustrative example, or assume that it must be correct if he did make it. 11 ‘‘In the present context (...truncated)