Hillel Steiner has in a recent article attacked the notion of inalienable rights (Steiner 2013). He does not only employ substantive moral arguments for this purpose, but also arguments that rely directly on the system of analysis developed by Wesley Newcomb Hohfeld. The Hohfeldian scheme can, according to Steiner, be used to show that inalienable rights lead either to logical contradictions or to infinite arrays of legal positions, and this can only be avoided by conceding that all rights are alienable. So runs Steiner’s argument.
A closely similar argument made by Steiner in An Essay on Rights (Steiner 1994) two decades ago was refuted by Nigel Simmonds (1995).Footnote 1 Simmonds’s article alone is sufficient for understanding where the problem in Steiner’s argument lies. A reply to Steiner’s more recent essay has been published in Ethics by Pierfrancesco Biasetti, who also discusses the issue further in a related article (Biasetti 2015a, b).
Though Steiner’s argument is based on a misguided application of Hohfeld, he raises an interesting question about the infinities that are present in the Hohfeldian system. Biasetti concedes Steiner’s point to a certain extent, arguing that the Hohfeldian analysis needs to be modified in order to amend a more general problem that does not pertain to inalienable rights. This is due to a particular feature of the Hohfeldian analysis: any Hohfeldian system contains an infinite number of legal positions. Although Biasetti is correct in that the ‘nonclosure’ of normative positions is an intrinsic feature of the Hohfeldian system—rather than pertaining to the inalienability of rights, as Steiner claims—I disagree with both over whether this is actually a problem.
The Hohfeldian Analysis
The Hohfeldian analysis was devised by Wesley Newcomb Hohfeld, an American legal scholar. He wished to expose how jurists used legal terms, such as the word ‘right’, ambiguously, and how this led to faulty reasoning. Though Hohfeld was a jurist, his framework is equally suitable for the analysis of moral and other normative systems. In the Hohfeldian analysis, normative relations are reduced to eight basic positions, four of which are typically called first-order positions and the other four higher-order positions. It can roughly be said that the first-order positions pertain to whether a given type of action is required, permitted or forbidden in relation to a given party,Footnote 2 whereas higher-order positions concern how normative relations can be changed, and thus relate only indirectly to the permissibility or obligatoriness of physical conduct.
The first-order positions are duty, liberty, claim and no-right. One’s having the duty to φ means that φ-ing—which can be any type of conduct—is obligatory. It also entails that at least one party has a claim (also known as claim-right) to this conduct.Footnote 3 A Hohfeldian duty is thus always held toward someone. For instance, if I have the duty to pay you £500, then you have the claim-right that I pay you £500. These two positions are correlatives: a duty entails at least one claim-right (Fig. 1).Footnote 4 Similarly, liberty and no-right are correlatives. A’s having a liberty to refrain from φ-ing towards B means that A is not duty-bound toward B to φ. Such a liberty is entailed by a no-right, that is, lack of claim. Thus, B holds a no-right in relation to A with regard to A’s φ-ing.
There are four higher-order positions: power, disability, liability and immunity. Power means that one can change a legal relation through a volitional act, whereas disability logically means the lack thereof. Similarly, B’s having a liability towards A means that A can change a legal relation that pertains to B, and immunity implies the absence of such a relation.
The Hohfeldian table does not yet tell us how the concept of ‘right’ should be defined, and there is considerable disagreement in this regard. According to Steiner, Hohfeldian claims and immunities are rights, as they entail constraints for the correlative duty-bearers and disability-holders, respectively.Footnote 5 I will here use the term ‘right’ interchangeably with ‘claim’, as the argument I am addressing focuses on the inalienability of claims.
The Hohfeldian framework does not make many normative claims about moral or legal relations, perhaps none at all. It does presuppose certain things, such as the correlativity of claim-rights and duties (the so-called correlativity axiomFootnote 6), but in general the framework is neutral when it comes to evaluative assertions about the content of morality or of a legal system or of another type of normative system. Steiner believes, however, that the Hohfeldian system can be used to show that no rights can be inalienable. His argument is dependent on a particular feature of the Hohfeldian system: that higher-order positions, such as powers and liabilities, can also pertain to other higher-order positions. For instance, if a traffic police officer has the power P1 to impose an obligation O for a driver to stop his or her car, but the police commissioner may fire the officer, then the police commissioner has the power P2 to extinguish the power P1 of the officer. In this case, P1 pertains directly to O, whereas P2 pertains to P1. There is an infinite number of such higher-order relations—for instance, the mayor could have the power P3 to fire the police commissioner and thus extinguish P2—even though at some point the relations most likely become disability-immunity relations. This is the recursion (which Steiner calls the ‘regression’) of higher-order Hohfeldian relations. I will analyse the nature of the Hohfeldian recursion more closely in the third section. I will, however, first present the structure of Steiner’s argument.