Abstract
Having a legal right does not entail (also having) a power to commence legal proceedings or to undertake self-help remedies—let alone success in such endeavours. There is nevertheless a life of legal rights outside of institutional settings, one that need not rely exclusively upon legal powers for their enforcement. This chapter explains two ways by which to utilise rights in private and social settings. In doing so, it advances three unique, narrow theses. First, claims of right can be made using liberties, not just powers. Second, it is worthwhile to distinguish between two kinds of liberty-based ones: (i) claims of right and (ii) invocations of right. Both kinds concern the use of legal liberties in support of legal rights-correlative-to-duties (‘RCTDs’) but differ in content and end. Third, legal liberty-based claims and invocations of right constitute bona fide forms of lawful rights enforcement.
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Notes
- 1.
The distinction is not between so-called ‘second-personal’ and ‘second-person-plural’ addresses. See Darwall (2006: 9); Thomas (2015: 153–4).
- 2.
See the discussion in Chapter 4 § V.
- 3.
See Chapter 1 § II.2 on perimeters of protection.
- 4.
- 5.
Thomas (2015: 155).
- 6.
- 7.
This section only aims to provide a rough outline of the two modes. Even so, the following questions are important for further investigation. Question 1: Are there not rather four kinds of rights usage being discussed here: two ways to invoke and two to claim, each with one directed to the duty-bearer and another to some other group of people? Question 2: When you communicate your rights to a legal official, must you claim it, or is it possible to just invoke it? Does the answer differ if the communication is posed to a judge/arbitrator/mediator in a legal case, rather than posed to sorts of officials, such as a police officer?
- 8.
Duty-bearers may act out of a sense of obligation, out of self-interest, social, political, or legal pressure, or from a combination of these factors. This is akin to what is sometimes styled the Any Reasons thesis: allegiance to a legal system (and conformity with its norms) can be for any reason, e.g., calculations of long-term interest, concern for others, tradition, a desire to conform, etc. See Hart (1994: 203, discussing legal officials’ reasons for showing allegiance to the system’s norms).
- 9.
Of course, these need not be the only aims behind claiming or invoking rights. For example, a claimant might also be seeking public recognition or other sorts of validation.
- 10.
The analysis understands a duty’s compulsory quality in normative terms, i.e., not in terms of physical power. The matter under consideration here is whether issuing a communication—an invocation or claim—to fulfil a duty contains a compulsory quality.
- 11.
See Chapter 4 note 118 and the accompanying text.
- 12.
This, if we assume her property rights track something like Anthony Honoré’s eleven incidents of ownership. Honoré (1961). See Chapter 1 note 71.
- 13.
See Chapter 4 notes 129–34 and the accompanying text.
- 14.
The same may be said for HLA Hart and Hillel Steiner’s notion, which was styled a ‘primary enforcement power’ in Chapter 7 § III ‘Argument 2’. That too is better understood in terms of a legal liberty.
- 15.
E.g., Hart (1982: 172); Robinson et al. (1983: 269).
- 16.
Gilbert would probably oppose this account in favour of her (Hohfeldian claim-power) ‘demand-right’ on the basis that her alternative better explains the grounds of the claimant’s standing to make a claim of right. She notes that ‘naked’ liberties do not afford such standing, whilst her demand-right both does so and explains its very grounding. Gilbert (2018: 77). However, her account has merely infused claimability into AN RCTD without warrant. Instead, all that is needed is a relationship between an RCTD and a liberty, so that an exercise of the latter in furtherance of the former can come replete with the relevant sort of standing (to make a claim of right, rather than a bald assertion or meritless claim). Indeed, her own account suggests as much: she notes that, for liberty-holders, this standing is the function of the ‘protective claim’ (here, meaning the passive component of an ‘active’ Hohfeldian claim, if not simply the passive interpretation of a claim itself) which allows for them to make assertions of right rather than mere assertions (ibid). This in turn suggests the superfluity of either (a) incorporating the capacity or entitlement to claim into the RCTD itself, or (b) a ‘protective claim’, as the assertion is ostensibly done via a ‘non-altering’ power, not a liberty (on her view), and so would be function of a direct relationship between a demand-right and a duty. As discussed in Chapter 2 § III, moreover, the RCTD and correlative duty may assist a liberty-holder in reminding others why and how not to interfere, but his or her being entitled to so act is a function of the liberty itself. A liberty-holder permitted to do X thus has ‘standing’ to claim (via a different liberty) that she be free to do X because she possesses the (former) liberty. Whether absent a perimeter of protection the claim would be respected is another matter.
- 17.
Bibliography
Darwall S., The Second-Person Perspective: Morality, Respect and Accountability (Harvard University Press 2006).
———, Morality, Authority, and Law: Essays in Second-Personal Ethics Vol I (OUP 2013).
———, ‘The Nature and Value of Rights’, in Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton University Press 1980).
———, ‘Critical Notices: Rights and Demands’ (2019) 79(3) Analysis 530.
Goble G., ‘Affirmative and Negative Legal Relations’ (1922) 4 Illinois L. Q. 94.
———, Essays on Bentham: Jurisprudence and Political Theory (Clarendon Press 1982).
———, The Concept of Law (2nd edn, Clarendon Press 1994).
———, ‘The Relations Between Equity and Law’ (1913) 11 Michigan L. Rev. 537 [‘Hohfeld (1913b)’].
———, ‘Ownership’, in A.G. Guest (ed), Oxford Essays in Jurisprudence (OUP 1961).
———, ‘A Restatement of Hohfeld’ (1938) 51 Harvard L. Rev. 1141.
Reiff M., Punishment, Compensation, and Law: A Theory of Enforceability (CUP 2005).
Robinson R.E. et al., ‘The Logic of Rights’ (1983) 33 U. Toronto L.J. 267.
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Frydrych, D. (2021). Chapter 9 Claims & Invocations of Right. In: The Architecture of Rights. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-76039-7_9
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