2.a) Blindness to Purposiveness?

Over and over, Ewers asserts that my Interest Theory treats legal claim-rights as if they are brought into existence for no reasons at all. He declares, for example, that, “if we stick to Bentham’s Test, then [legal] rights cannot be understood as purposefully created entities made to serve certain functions.”Footnote ¹⁰ That contention, in one form or another, appears again and again in the second half of Ewers’s article. On the final page of the article, for instance, we encounter the following proclamation: “As long as we use Bentham’s Test, we cannot understand [legal] rights as purposefully created entities aimed at achieving certain ends.”Footnote ¹¹ However, the persistent repetition of this allegation by Ewers does not render it true.

To see why Ewers has gone astray, we should begin by pondering the small grain of truth in his repeated assertions. As I have remarked in the final paragraph of section 1 above, neither my formulation of the Interest Theory nor my formulation of Bentham’s Test makes any reference to the considerations that have been perceived by legal-governmental officials as sufficient to justify the imposition of this or that legal duty. In particular, the Interest Theory does not presume—as Razians do—that the perceived justification for every legal claim-right resides in the fact that the holding of the claim-right will inherently protect some aspect of the holder’s situation that is typically beneficial on balance for such a being. My rejection of that Razian thesis is amply warranted, for it is clearly false. I discuss a number of counterexamples to that thesis in Rights and Right-Holding, but I will here broach only one. A summary of that counterexample will be valuable for my next subsection as well as for this subsection.

In Rights and Right-Holding, I ponder whether Josef Mengele held a moral claim-right not to be subjected to punitive torture.Footnote ¹² Although my focus in this article is on legal claim-rights rather than on moral claim-rights, we can simply assume that the legislators and other legal-governmental officials in the country Uprightia during the lifetime of Mengele anticipatorily embraced my moral argumentation and thus came to accept that Mengele did indeed hold a moral claim-right against being subjected to punitive torture. Hence, when the legislators or other officials in Uprightia enacted some laws which explicitly provided that the subjection of anyone within their jurisdiction to punitive torture would be legally impermissible, and when they declined to carve out any exceptions for monstrous evildoers such as Mengele, their justification for enacting those laws was grounded on the line of moral reasoning which I present in the next two paragraphs.

Suppose then that Mengele—directly responsible for hundreds of thousands of murders and gruesome atrocities at Auschwitz—had been captured and brought to justice after the Second World War instead of being sheltered by Argentina and Paraguay and Brazil. Given that Mengele had perpetrated many thousands of acts of grisly torture, the subjection of him to punitive torture would have been richly deserved. Nonetheless, he had a moral claim-right not to be subjected to such torture. His moral claim-right was justificatorily attributable not to the importance of his interest in being free from excruciating pain (an interest that was of no positive ethical weight whatsoever), but instead to the importance of upholding the moral integrity of any system of governance whose officials had managed to apprehend him. By stooping to afflict Mengele with the torture which he thoroughly deserved, the officials in that system of governance would have degraded its moral integrity and their own moral integrity by using the system’s punitive mechanisms to cater to urges for revenge. Though Mengele could legitimately have been executed and should have been executed, the subjection of him to torture would have turned the process of punishment into an enterprise of overweeningly sadistic self-indulgence. Mengele deserved no better; still, had a system of governance eschewed all normal restraints for the purpose of giving him torturously what he deserved, it would have debased itself by shaping its punishments to conform vindictively to his flagitiousness. Extenuatingly understandable and primally satisfying though such measures would have been, they would have overstepped the bounds within which a system of governance must remain if it is to differentiate its own workings from the gross unrestraint to which its punitive responses would be addressed. Even in application to someone as demonic as Mengele, the indulgence of an urge for vengeance by a system of governance would have degraded the system’s moral integrity—because the indulgence of such an urge would have manifested and exacerbated the system’s own weakness through its failure to bring about adequately the conditions under which its citizens can warrantedly harbor ample levels of self-respect on the basis of their own individual and collective achievements. A system of governance that is ethically healthy enough to adhere to a pattern of self-restraint will operate its punitive mechanisms without inclining its citizens to derive gratification from the infliction of agony on other people. Given that one’s deriving of gratification from the agony of other people is akin to sadism, a system of governance which caters to that impulse through punitive torture would be ignominiously presupposing that its citizens are partly dependent on the extreme adversities and littleness of others for their own self-esteem.

Thus, Mengele had a moral claim-right not to be subjected to punitive torture, even though his interests in being free from excruciating pain and terror and humiliation did not contribute at all to the moral justification for his having such a claim-right. Justificatorily, that claim-right was entirely derivative of the moral duties borne by the officials who might have captured Mengele. Its justification lay in the furtherance of their moral probity and the moral probity of their system of governance, rather than in the furtherance of his well-being.Footnote ¹³

Now, what is most notable in the present context of my rejoinder to Ewers is that the preceding three paragraphs affirm (rather than deny) that the enactment of laws in Uprightia which conferred a certain legal claim-right upon Mengele was undertaken for a purpose. Those laws were enacted for the purpose of upholding the moral integrity of the Uprightian system of governance. Quite misguided is the notion that a proponent of the Interest Theory of Right-Holding and of Bentham’s Test cannot recognize that the specified laws were enacted for that purpose. Indeed, although the Interest Theory and Bentham’s Test are deliberately formulated without any reference to the purposes of laws—in order to avoid the mistake of Razians who suppose that the purposes of right-conferring laws must be of a specific type—any application of the Interest Theory or of Bentham’s Test will have to advert, implicitly if not explicitly, to the purposes of laws when interpreting them.

Ewers seems to think that I am wary of interpretive approaches which seek to ascertain the intentions or purposes of laws.Footnote ¹⁴ Perhaps I harbored some such wariness three decades ago when I wrote my essay “Rights Without Trimmings”—an essay almost entirely superseded by Rights and Right-Holding, as I make clear in the 2024 book—but, if so, I dropped any attitude of that kind long ago. In several of my books, especially in my 2017 tome Liberalism with Excellence and my 2021 volume Freedom of Expression as Self-Restraint, I have developed quite an elaborate account of legal interpretation that is aimed at discovering the purposes of various laws.Footnote ¹⁵ As I readily acknowledge, sometimes the conclusion to be reached is that a particular law does not have any ascertainable purpose. Nonetheless, usually some purpose or set of purposes can accurately be ascribed to any particular law(s). When proponents of the Interest Theory of Right-Holding want to pin down what a particular duty-imposing law requires in any number of situations, they have to engage implicitly or explicitly in a process of legal interpretation through which they can discern the purpose(s) of that law. Their interpretive conclusions then inform any application of the Interest Theory or of Bentham’s Test, by enabling the proponents to know the scope of the legal duty whose existence is taken as given in the course of any such application.

Ewers declares that, under my account of right-holding, “to determine whether person Q holds a right, it is ‘[q]uite immaterial … whether or not the underlying purpose of the norm or decision is to promote the interests of Q.’”Footnote ¹⁶ Ewers’s assertion, containing a quotation from an article of mine published in 2007, is very misleading at best. What is true, as I have emphatically reaffirmed here, is that a person Q can hold a legal claim-right correlative to some specified legal duty whether or not the considerations that have led legal-governmental officials to impose the duty are focused on the desirability of furthering the interests of Q. My example of Mengele’s legal claim-right not to be subjected to punitive torture is illustrative of that point afresh. However, Ewers’s wording is at best highly misleading because it implies that the purposes of laws do not play any role when the Interest Theory or Bentham’s Test is applied to particular legal duties. On the contrary, as I have outlined in my preceding paragraph, any application of the Interest Theory or Bentham’s Test to a particular legal duty must rest implicitly or explicitly on an accurate interpretation of any law under which the duty has been imposed. Such an interpretation is centered on fathoming the purpose(s) which the relevant law has been introduced or retained to serve.

2.b) Mere Effects?

Ewers’s insistence that my Interest Theory of Right-Holding blinds its proponents to the purposiveness of the making and preservation of laws is baseless, then. His main worry about my Interest Theory—expressed again and again in the second half of his article—is that the theory (supposedly) construes claim-rights as “mere effects” or “side effects” of the laws under which they exist.Footnote ¹⁷ The phrases “mere effects” and “side effects” occur at numerous junctures throughout his musings. Let us look at only one example, where the two phrases occur in close proximity:

Here and oft elsewhere in the second half of his article, Ewers proclaims that my Interest Theory of Right-Holding regards instances of the holding of claim-rights as “mere effects” or “side effects” of the laws under which the claim-rights have been conferred. Far from constituting a potent objection to the Interest Theory, these repeated contentions by Ewers are distortively misconceived. With them he misunderstands or misrepresents the central character of the theory. Ewers is ignoring exactly what differentiates the Interest Theory or Bentham’s Test as I articulate each of them in Rights and Right-Holding from the Interest Theory or Bentham’s Test as I articulated each of them a few decades earlier in “Rights Without Trimmings.”

At a couple of junctures, Ewers glancingly seems to recognize the import of the words “and inherently” in my formulation of the Interest Theory and the import of the words “minimally sufficient” in my formulation of Bentham’s Test.Footnote ¹⁹ For the most part, however, he either ignores each of those phrases altogether or else proceeds as if they are minor embellishments. Yet that wording in each case is the very heart of the Interest Theory and of Bentham’s Test. With that wording, the Interest Theory or Bentham’s Test affirms that some party P does not hold a claim-right correlative to a given duty D unless the scope of the deontic protection bestowed by D always—rather than only contingently—includes some aspect of P’s situation that is normally beneficial on balance for beings like P.

Consider again any legal norm in Uprightia that conferred upon Mengele (and upon everyone else) a claim-right not to be subjected to punitive torture. I shall here designate that legal norm as ‘LN’. On the one hand, the furtherance of Mengele’s interests—his interests in being free from excruciating pain and humiliation and terror—did not figure at all in the justificatory basis for the enactment or preservation of LN. In the circumstances outlined in my preceding subsection, the Uprightian legal-governmental officials acted on the basis of the correct moral justification for having a law like LN, and they therefore did not attach any positive weight to the interests of Mengele that have just been mentioned. The purpose which they instead pursued through their enactment and implementation of LN was that of upholding the moral probity of the Uprightian system of governance and the moral probity of the officials who run that system. However, the fact that Mengele’s interests did not play any role in the justification for LN is no ground at all for concluding that the deontic protection of his interests through the existence of the legal duty imposed by LN was a ‘mere effect’ or a ‘side effect’ of the operativeness of that duty. Whenever that legal duty was incumbent on people in Uprightia, Mengele was deontically protected there against the tribulations of being subjected to punitive torture. Hence, both under the terms of the Interest Theory and under the terms of Bentham’s Test, Mengele held a legal claim-right correlative to the legal duty imposed on everyone in Uprightia by LN—but only because the deontic protection of his interests in being free from excruciating pain and humiliation and terror was integral to the existence of that duty. The deontic protection of those interests was an inherent effect rather than a ‘mere effect’ or a ‘side effect’ of the existence of that duty.

When Ewers at almost every stage disregards the words “and inherently” in the Interest Theory, and when he disregards my invocation of minimal necessity in Bentham’s Test, he misses the whole point of my reflections on the nature of claim-rights and the nature of the holding of claim-rights. Precisely what distinguishes the holding of a claim-right from an instance of incidental deontic protection is that the former is inseparable from the existence of the correlative duty, whereas the latter is not. If Doris holds a claim-right to be paid $500 by her employer as remuneration for her weekly hours of labor, the deontic protection conferred upon her by her holding of that claim-right is inseparable from the very existence of the correlative duty that is borne by her employer. In that respect, her holding of the specified claim-right differs crucially from any incidental deontic protection conferred upon the grocery shop where she normally purchases most of her food each week. Any deontic protection bestowed on the interests of the shopkeeper through the duty borne by Doris’s employer is disseverable from the existence of that duty and is thus not an instance of the holding of any claim-right by the shopkeeper vis-à-vis the employer.Footnote ²⁰

Ewers puzzlingly submits that the role of modal concepts in the Interest Theory of Right-Holding is somehow inimical to the very character of the Interest Theory as a theory. His worry along these lines is expressed in the following assertions, and is repeated at several other junctures in the second half of his article:

A relatively minor misstep in this passage is the suggestion that the Interest Theory or Bentham’s Test “operate[s] on a purely modal relation” and that “interests play no explanatory role.” Modal concepts do of course figure centrally in the Interest Theory and in Bentham’s Test, but so do evaluative concepts. Indeed, I devote many pages in Rights and Right-Holding to the evaluative premises on which the Interest Theory has to draw.Footnote ²² The notion that those evaluative premises play no explanatory role is without any basis in what I have written.

Even more objectionable is the false dichotomy at work in Ewers’s contention that my Interest Theory is “not aimed at explaining or elucidating the nature of rights (or right-holding), but only at detecting when they are present.” On the one hand, the Interest Theory of Right-Holding—like Bentham’s Test—is superlative in enabling its proponents to ascertain whether any particular party holds a claim-right correlative to a specified duty. One of the great virtues of the theory is indeed that it perspicuously and precisely differentiates between parties who do hold claim-rights correlative to specified duties and parties who do not hold claim-rights correlative to those duties. On the other hand, it fulfills that role so effectively because it correctly distills the general nature of the holding of any claim-right. What the Interest Theory underscores, pace Ewers, is that the holding of any claim-right is not a ‘mere effect’ or ‘side effect’ of the existence of the correlative duty. Rather, the deontic protection enjoyed by a party through his or her holding of a claim-right is integral to the existence of the correlative duty. Although the furtherance of Mengele’s interests in being free from agony and humiliation and terror was not at all the justificatory purpose behind the imposition of a legal duty upon everyone else in Uprightia to abstain from subjecting Mengele to punitive torture, the conferral of deontic protection on those interests of his was inseparable from the imposition and continued existence of such a duty. By recourse to the Interest Theory’s encapsulation of what the holding of any claim-right involves, therefore, we can recognize that Mengele held a legal claim-right in Uprightia not to be subjected to punitive torture. In other words, the reason why the Interest Theory enables us to identify Mengele as the holder of such a claim-right is that it furnishes us with a correct theoretical exposition of the necessary and sufficient conditions for the holding of any claim-right. In application to my Interest Theory of Right-Holding, Ewers’s contrast between a “detection device” and a theory is a false dichotomy.Footnote ²³

To be sure, the modal elements and evaluative elements in the Interest Theory of Right-Holding are not constitutive of a complete theory of legal or moral claim-rights. For one thing, as has been discussed in section 2.a above, any application of the Interest Theory in the domain of law must implicitly or explicitly draw upon a theory of legal interpretation for determining whether a specified legal duty exists and what the implications of that duty are. Such a theory of legal interpretation, which I have elaborated elsewhere in the books of mine to which I have referred earlier, is not itself furnished by the Interest Theory or by the Hohfeldian analysis of rights. Even more evident is that neither the Interest Theory nor the Hohfeldian analysis per se can answer any justificatory questions about legal and moral duties and their correlative claim-rights. That is, neither of them can tell us which moral duties people do bear and which legal duties people morally ought to bear. Without answers to those questions, neither the Interest Theory nor Bentham’s Test in itself can tell us which moral claim-rights people do possess and which legal claim-rights people morally ought to possess. Throughout my 2024 book, from the opening chapter onward, I emphasize that I am not there addressing the justificatory questions which I have just mentioned. I have addressed such questions in most of the books that I have published from 2009 to the present, but Rights and Right-Holding is one of the exceptions. It instead addresses the non-justificatory inquiries to which the Interest Theory and the Hohfeldian analysis supply answers.

Still, although Rights and Right-Holding does not answer and does not purport to answer the questions which it explicitly does not address, it provides a comprehensive theory of the non-justificatory aspects of rights and right-holding. When that theory (composed of the Hohfeldian analysis and the Interest Theory) is combined with a sound theory of legal interpretation and with sound theories in moral and political philosophy about the justificatory foundations of rights, we can come up with a complete account of moral and legal rights that includes a complete account of the holding of moral or legal rights. Of course, the endeavor of coming up with such an account is unending, as is the disputation among the philosophers who are engaged in that endeavor. Nobody can credibly profess to have resolved every relevant question in ways that are beyond reasoned contestation by anybody else. Nevertheless, the Interest Theory—by having distilled the general character of the holding of any claim-right—is a crucial contribution to that endeavor.

Particularly strange in Ewers’s contrast between the Interest Theory as a “detection device” and the Interest Theory as a theory is his apparent impression that I concentrate inordinately on the desideratum of extensional adequacy. In other words, he appears to be under the impression that I am preoccupied with securing a very high degree of fit between the conclusions about particular situations delivered by one’s theory of right-holding and the conclusions about particular situations delivered by legal experts and ordinary people. He thinks that that putative preoccupation is what has led to the development of the Interest Theory as a “detection device.” Consider the following passage:

Anyone who reads as far as Chapter 1 in Rights and Right-Holding will discover that my priorities are in fact the inverse of the priorities which Ewers seems to attribute to me. In that opening chapter, I criticize Leif Wenar for his overweening fixation on what he conjecturally takes to be the views about right-holding harbored by ordinary speakers of English.Footnote ²⁵ I there adduce a number of considerations against such a fixation. My stance there is echoed throughout the book, where I frown upon invocations of intuitions and upon surmises about the views of ordinary people. Especially ironic here is Ewers’s commendation of Van Duffel, whom I criticize in Rights and Right-Holding for his overreliance on intuitions at the expense of sufficient theorizing.Footnote ²⁶