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This debate on the very content of rights seems to me more fundamental than the others. After all, how could we even define rights without having a response to the key question of how we should articulate their content?
This should be distinguished from what Thomson (1985) calls ‘moral specification’, according to which the content of rights is specified on the basis of an implicit assertion that invokes a moral predicate such as ‘John has the right not to be killed unjustly’.
This distinction is widely recognised in the literature. Liberto (2014) holds that a key difference between both conceptions is that according to the former, ‘all justifiable exceptions are built into rights’ (3), while the latter assumes the opposite. Oberdiek (2008) suggests that, contrary to generalism, the specificationist approach maintains that ‘[t]he content of a right just is what it does or does not ultimately permit’ (136). Zylberman (2022) asserts that the distinctive point of specificationism is that the very content of rights includes its exceptions clauses and, for this reason, an assertion as ‘A has right against B’ really means ‘A has right against B that B (not) φ unless exception 1, exception 2, …, exception n’ (4). Shafer-Landau (1995) suggests that, contrary to generalism, specificationism implies that there is no right to X (for example, a right not to be killed) ‘simpliciter’ but rather a right to X ‘except in the circumstances A, B, C, etc.’ (210). According to Frederick (2014), specificationism implies that any right has ‘exceptions implicit in its content’ (381).
For example, the well-known argument on moral residue is at the centre of the conventional discussion. Put briefly, the idea (in favour of generalism) is that this conception can explain the moral residue that any resolution of conflicts of rights implies, while specificationism cannot. For this conventional discussion, see: Oberdiek (2008), Thomson (1985) and Wellman (1995).
This type of reasoning is crucial when we have conflicting reasons regarding the moral permissibility of an action, so we must balance them against each other if it is possible to do so. For an analysis of this standard conception, see: Moller (2012).
Regardless of the ongoing discussion on how practical reasoning should be understood, it is widely accepted that it is a distinctive type of reflection that each of us engages in when we are trying to determine what we should do – the idea I assume in this manuscript (Mullins 2020; O’Neill 1996; Steiner 1998). Certainly, there is a discussion on whether practical reasoning is (or not) about what is morally permissible (O’Neill 2000). I cannot settle this complex dispute here, but in my analysis, I assume a conception of practical reasoning that is relevant in the context of critical morality. Practical reflection in this sense is not, for example, simply about instrumental (or prudential) reasoning directed to action; it is rather about what should be done – where the ‘should’ has a moral meaning referring to what is morally permissible (O’Neill 1996). Assuming this moralised view of practical reasoning, I hold that if specificationism is true, rights are not intermediate points in reflection on what should be done, and, therefore, they are practically inert in this specific sense. This is precisely what occurs in Feinberg’s example.
I am assuming Hart’s classic attack on the idea that liberty-rights are rights in the strict sense. According to Hart (1982), ‘it is not at all clear that lawyers or anyone else would speak of a completely naked or unprotected liberty as a right, or that any useful purpose would be served if they did’ (173).
Two clarificatory points. First, I argue elsewhere that rights should be understood as intermediate action-guiding principles: (Rettig 2020). That argument is a detailed justification of O’Neill’s so-called ‘claimability condition’ (O’Neill 1996). I do not discuss that condition in this paper. Second, Oberdiek (2008) seems to suggest that Raz’s view on rights is compatible with specificationism: ‘Specified rights (…) are compatible with a Razian framework incorporating exclusionary reasons. A specified right represents the outcome of the interaction of the many antecedent pro tanto reasons that bear on one's action’ (139, n24). However, it should be noted that such an interpretation is problematic. On the one hand, specificationism holds that rights are conclusions all-things-considered; this means, rights are the final points of reasoning, as was explained in Section 2 of this manuscript. On the other hand, Raz, in the key passage I quote, explicitly says that rights are ‘typically intermediate conclusions’ of reasoning (1986, 181; see also: Raz 1984, 208-209); therefore, they are not final points. Furthermore, Oberdiek (2008) seems to rely on a misinterpretation of Raz’s conception of exclusionary reasons because they are not absolute reasons (see footnote n13 of this manuscript).
The same idea applies to clear cases of rights conflict – as I said before, I have serious doubts about whether the hiker has a right in the strict sense because it seems to be a liberty (or privilege) rather than a right. Consider a case in which there is a conflict between the right to freedom of movement and the right to public protest. For the sake of the example, assume some citizens are protesting (for good moral reasons) in the middle of an important street; this implies that other citizens cannot get to work. What should the government do in this case? For example, should it disperse the protest using reasonable force? Should it abstain from dispersing the protest? Regardless of the response to this practical question, it is intuitive to believe that both rights may play an intermediate role in our reflection on what should be done.
The sentence ‘assuming that we do not want to generate a rights language…’ is inspired by Steiner’s approach to rights, especially when he says regarding rights analysis: ‘Because we’re not here in the business of creating a new language…’ (1998, 236).
For an analysis of secondary duties that rights may generate but which do not necessarily define their content, see: Waldron (1989).
This point is broadly omitted in the philosophical literature assuming the pro-tanto conception of rights (many thanks to Giulio Fornaroli for helping me to see this). Let me give some prominent examples. First, Beitz (2008) believes that human rights are not absolute but pro-tanto practical reasons (117). Furthermore, Beitz (in my view, correctly) assumes that an account of human rights should be ‘action-guiding’ (119). However, Beitz’s account is completely silent regarding the question of how to address conflicts of rights. There is no principle-based method in Beitz’s account to address these conflicts. Second, Griffin’s theory of human rights assumes that there are genuine ‘right-right conflicts’ (2008, 68). Furthermore, he (in my view, correctly) emphasises that any account of rights should say something substantive about these distinctive conflicts of normative requirements (57). However, Griffin’s account does not provide us with any principle-based procedure to address rights conflicts. Third, as well known, Kamm (2001) provides an extremely detailed taxonomy of rights conflicts. Nevertheless, Kamm’s account does not provide us with any explicit principle-based procedure to address rights conflicts. For a detailed analysis of this notable gap in the philosophical literature (and more examples), see: Rettig & Fornaroli (2023).
Two clarificatory points. First, Oberdiek briefly suggests in a footnote that if we hold that rights are pro-tanto reasons, they cannot be exclusionary reasons because exclusionary reasons cannot be overridden (2008, 139, n24). In my view, his claim seems to rely on a misinterpretation of Raz. Exclusionary reasons are not absolute reasons that cannot enter into a balancing of reasons; they can be subject to balancing and, therefore, they can be overridden, but (and this is the key point) their distinctive aspect is that they can be overridden only by second-order reasons. That is why Raz (1988) says: ‘an exclusionary reason may also conflict with and be overridden by another second-order reason’ (40; see also: 45-47). Second, my argument assumes important aspects of Raz’s account of reasons (elaborated in his well-known book Practical Reason and Norms), but it is not constructed in a manner that takes Raz’s own approach to rights as its very basis. To be more precise, I mention Raz only four times in my manuscript: (i) I borrow vocabulary from his account of reasons (4); (ii) I state that the idea that rights are intermediate points is highly intuitive (8); (iii) I quote Raz as a reference to the idea that some conflicts of reasons cannot be solved (9); and (iv) I quote Raz as a reference to the idea of exclusionary reasons (13). Only “ii” is strictly related to Raz’s account of rights, but it is an idea that I use only to begin that section, which contains an independent argument about rights. The other references to Raz (i, iii and iv) are related to his account of reasons, which, of course, is influential in my argument, but (and this is crucial) this does not imply that I take Raz’s account of rights – and its difference from the Hohfeldian framework – as the very basis of my paper. I thank an anonymous reviewer for suggesting that I clarify this.
Liberto (2014) is not an alternative version of specificationism in the strict sense, but rather, a hybrid theory of rights; in her own words: ‘I argue for the Restricted Account of the moral specification of rights, which stakes out a middle-ground’ in the debate analysed in this manuscript (2014, 1). The reason is that, as Mullins (2020) notes, ‘Liberto’s account is closer to a form of generalism, since it allows that rights can still be defeated by other considerations in the process of coming to a deontic conclusion’ (15). For this reason, Liberto accepts that if an exception to a right is morally justified by considerations that are not related to the role of that right within an ethical theory (for example, to promote the interests of the right-holder), then such an exception should be understood as an infringement of that right (Liberto 2014, 195).
Many thanks to Gopal Sreenivasan for helping me to clarify this.
This point is based on Montague’s claim: ‘I don't see how exceptions could be genuinely justified if they weren't derivable from ethical theory’ (2015, 249). After this, Montague reinforces this by saying: ‘According to specification, then, determining the permissibility of killing culpable aggressors in self-defense would require a principle that also provides a basis for determining whether executing murderers is permissible (…)’ (2015, 250; emphasis mine).
In the case of Zylberman (2022), it is unclear if it is an alternative version of specificationism. After all, Zylberman himself notes that his account significantly differs from standard specificationist accounts (11).
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Acknowledgements
An early draft of this paper was presented at the Workshop of the UK-Latin America Political Philosophy Research Network (2022). I would like to express my sincere gratitude to Adina Preda, Ezequiel Spector, Julio Montero, and Saladin Meckled-García for their very useful feedback during that workshop. I would also like to extend special thanks to Steve Macedo for engaging in an extended, and extremely valuable, conversation on the topic of this manuscript. This article is an outcome of a national grant of the Chilean ANID, Project Fondecyt 11230361.
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Rettig, C. Rights and Practical Reasoning: A Practical View on the Specificationism vs Generalism Debate. J Value Inquiry (2023). https://doi.org/10.1007/s10790-023-09946-5
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DOI: https://doi.org/10.1007/s10790-023-09946-5