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Thinking in Three Dimensions

Theorizing Rights as a Normative
Concept
Jean Thomas

Jurisprudence

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 Thinking in Three Dimensions: Theorizing Rights as a Normative Concept

Jean Thomas

Rights theory is in a paradoxical place. Theories about rights – which ones we have, what

justifies them, whether and how their scope may be limited – abound; at the same time, theories

of what rights are have reached an impasse:1 On one side there is the interest theory, which holds

that interests – aspects of human well-being – justify and direct duties. To have a right, on this

view, is to have an interest that warrants the imposition of a duty toward oneself in respect of

that interest. On the other side sits the will theory: it says that to have a right is to have control

over the duty in respect of that right in various ways – to be able to waive it, to enforce it, to seek

a remedy in respect of its violation, and so on.

 Assistant Professor, Queen’s University Faculty of Law. Email: jean.thomas@queensu.ca. Earlier

versions of this paper were presented at the Analytic Legal Philosophy Conference and the McMaster
University Philosophy Department Speaker Series, and I am hugely grateful to audiences there for helpful
comments. I am indebted to many colleagues for comments on this and previous drafts, in particular
Gregory Keating, Nicolas Lamp, John Oberdiek, Sara Moss, Liam Murphy, Sam Scheffler, Jeremy
Waldron, and Gregoire Webber. All errors remain entirely my own.
1 The dispute between will- and interest- theorists of rights has been described as an ‘endless feud’; see
John Tasioulas, ‘Taking rights out of human rights’ [2010] 120 Ethics 647, 656. Matthew Kramer, the
foremost contemporary proponent of the interest theory of rights has argued that there can be no
‘alternative’ to the interest theory; see Matthew H Kramer. ‘Some Doubts About Alternatives to the
Interest Theory of Rights’ [2013] 123 Ethics 245. Moreover, Kramer and Hillel Steiner, the foremost
proponent of the contemporary will theory of rights, together have argued that there is no ‘third way’ in
the interest/will theory debate. See Kramer and Steiner, ‘Theories of Rights: Is There a Third Way?’
[2005] 27 OJLS 281. Perhaps most tellingly, few contributions to rights theory either develop a
conceptual theory of rights on one of these two bases or even expand on one of them; much more
common are theorists who say something about rights that is supposed to be congenial to either or both.
In several cases this is because the will/interest theories are seen as serving different functions or values.
See, for instance, Leif Wenar, ‘The Nature of Rights’ [2005] 33 Philosophy & Public Affairs 223; Hallie
Liberto, ‘The Moral Specification of Rights: A Restricted Account’ [2014] 33 Law and Philosophy 175.

1
Theorists who argue about which rights we have tend to rely on these two main concepts of

rights, now calcified in mutual opposition, in the course of their substantive discussions. One

approach is to simply say that one’s substantive argument about rights relies on either the will or

the interest theory; the other approach is to say that one’s substantive argument is compatible

with either of these two main accounts. At the same time, theorists who argue about what rights

are often make moral and political arguments rather than conceptual ones.

In this article I will argue that this state of affairs represents a serious problem: the stalemate

among conceptual accounts of what rights are obscures and frustrates progress in the moral and

political discussion about which rights we have. Rights are too important to our moral and

political discourse for our concept of what they are to be an impediment to normative clarity in

this way. Our concept of rights ought to facilitate progress by focusing attention on what matters

most, namely, on what, normatively, disagreements concerning rights are about. I will propose a

way to re-orient ourselves: a theory of rights that pursues an altogether different path.

My starting point is the observation that RIGHTS2 is a normative concept. 3 While noone seriously

disputes that proposition, its implications for giving an account of RIGHTS have been neglected.

Consequently, conceptual theories of rights do not properly account for the way normative

2 I follow philosophical convention in using small caps to indicate that I am referring to the concept rather
than the term in question.
3 Geoff Sayre-McCord puts the point as follows: “normative concepts are such that when things (actions,
options, objects, people) satisfy them, there is ipso facto reason for someone to do (or refrain from doing)
something or to be (or avoid being) a certain way.” Geoffrey Sayre-McCord, ‘Rational Agency and the
Nature of Normative Concepts’ 2011 Published Online 15, 12.

2
concepts are distinctively used. The use of RIGHTS, in particular: (a) is general across normative

domains – moral and legal, most importantly – and substantive ethical views; and (b) involves

claiming or implying a substantive normative position. These features of its use give rise to three

desiderata for conceptualizing RIGHTS, which will be the subject of Part I.

1) Fidelity to, and charitable interpretation of, ordinary users: diversity in RIGHTS’ use

requires an account that is suitably general.

2) Deploying the concept RIGHTS involves making normative judgements – justificatory

content is baked into the way in which the concept is used. The theory must therefore

explain how the concept is action guiding.

3) But, in light of moral disagreement and value pluralism, a theory of RIGHTS cannot tell us

which rights we have. The theory’s conceptual structure must explain both the normative

judgements involved in its deployment and make room, within that same structure, for

ethical disagreement.

In Part II, I will argue for a model of rights comprising three elements: constraint, value, and the

right’s relational context. The three-dimensional concept I sketch constitutes progress in thinking

about rights because it accounts for rights’ normativity, allowing for substantive and contextual

normative differences among ordinary uses of RIGHTS, without compromising the idea that there

is something we can coherently say about the concept without knowing which domain or which

moral theory we’re in, thus meeting the criterion of generality. The concept I will outline

identifies and makes explicit its interpretive content. This means that it articulates the kinds of

normative judgments involved in recognizing any given right, but does not itself prescribe the

specific content of those judgments. To put the point more conventionally: evaluative criteria are

3
among the necessary and sufficient conditions for RIGHTS, but those criteria involve normative

judgments rather than normative conclusions. The account I propose thus allows us to interpret

disagreements about rights, or disagreements that involve the use of RIGHTS, as substantive

normative ones rather than as conceptual misunderstandings.

A normative concept is one that, on its own, can give reasons for action: a right, then, must be

capable of fully justifying the reason(s) it gives rise to. It follows that RIGHTS’ conceptual

structure has to somehow incorporate its justificatory content. But the generality of use across

normative domains and ethical commitments means that our concept of rights cannot effectively

disguise a substantive ethical position as a conceptual truth, leaving no space for meaningful

normative disagreement.4 The desiderata of generality and of accounting for normativity,

together, mean that the best account of rights would be one that brought out the shared

conceptual elements among the users of RIGHTS without taking sides in the deep normative

disagreements among them about which rights we should have.5 To do that it would have to

make sense against the background of the mainstream moral views.6

4 Wenar clearly recognizes this predicament: his conceptual account of rights in general in ‘The Nature of
Rights’ is purely formal; when he comes to giving an account of claim-rights, in the context of
establishing what directs legal duties, he takes sides: his ‘kind-desire’ account may or may not be a
version of the interest theory, but it certainly associates itself with the idea that rights protect goods –
even if these are goods we have reason to want. See Wenar, ‘The Nature of Rights’ (n 1) and ‘The Nature
of Claim-Rights’ [2013] 123 Ethics 202, 207.
5 The distinction between the purportedly conceptual question of what rights are as distinct from the
normative one of which rights we have was made famous by Judith Jarvis Thompson, The Realm of
Rights, (Harvard, 1990), 366-77. Wenar puts the point as follows: “Will theorists and interest theorists
have erred in adopting analyses framed to favor their commitments in normative theory. This has turned
the debate between them into a proxy for the debate between Kantianism and welfarism. Yet that

4
Theorizing rights as a normative concept requires thinking in three dimensions. The metaphor is

not accidental. Theorists recognize that rights exist in a context of value pluralism or contestation

about the value(s) they serve;7 from this seems to emerge the implication that a formal account is

necessary to permit rights to serve different values.8 The problem with this solution is that

normative disagreement about rights is not just about which values they should serve. It is about

whether rights are morally fundamental or instrumental; whether it makes sense to say there is a

right to do wrong; whether a right can be justifiably infringed or overridden, or if its scope must

be fully specified; whether rights should be recognized where we have not yet recognized duties

– whether a right without a remedy, in other words, can be a right at all. It is, in other words, a

disagreement between what are – or are taken to be – incommensurable ethical commitments, as

well as between competing values. This means that a formal theory that allows a right to ‘serve’

normative dispute cannot be resolved through a conceptual analysis of rights.” Wenar, ‘The Nature of
Rights’, at Error! Bookmark not defined..
6 Here I mean to invoke consequentialist and deontological views, broadly construed.
7 See Hallie Liberto: “different accounts of the form of rights fall naturally out of different accounts of the
function of rights”; Liberto, ‘The Moral Specification of Rights: A Restricted Account’ (n Error!
Bookmark not defined.); John Oberdiek, ‘Lost in Moral Space: On the Infringing/violating Distinction
and its Place in the Theory of Rights’ [2004] 23 Law and Philosophy 325.
8 In his Hohfeldian ‘Several Functions Theory’, Wenar makes the argument for a value-neutral,
descriptive account that, it seems to me, is shared by many rights theorists who rely heavily on Hohfeld’s
positions partly for the reason that they seem to account for rights’ normativity while remaning neutral
about value: the “ambition” of his theory of the nature of rights is “principally descriptive… not fashioned
to fortify any normative position. Rather, it is offered as a vernacular standard against which to measure
the interpretations of rights that various normative theories press us to accept.” Wenar, ‘The Nature of
Rights’ (n Error! Bookmark not defined.). See Wesley Newcomb Hohfeld, Fundamental Legal
Conceptions: As Applied in Judicial Reasoning (New Haven, Conn: Yale University Press, 1919), 57-60.

5
different values is never going to represent the language of rights to someone who thinks rights

are morally fundamental.

RIGHTS is a concept that allows us to yoke together incommensurable moral ideas in our

normative discourse. Or so I will argue in this paper. They allow us to proceed in our pursuit of

the question about what each of us owes and is entitled to without agreement on the deeper

question of whether deontology or some form of consequentialism is true. The advent of ‘rights’

as distinct from ‘The Right’ in political theory and history is precisely the emergence of a means

for shared endorsement of particular obligations we have to one another. That endorsement is not

always on the basis of the same reasons. The Magna Carta,9 after all, was a political treaty

before it was a constitutional document. The Rights of Man and the Citizen10 represented a

declaration about particular moral commitments in a political context, not a comprehensive

theory of the best kind of society. And while the rights in Magna Carta came, essentially, from

King John, those in The Rights of Man and the Citizen and in The Declaration of Independence11

were taken to come from God. This meant that when abolitionists wanted to end slavery, part of

the rhetoric they could use in their moral argument was that of rights. And there, too, the

commitment argued for could be shared by those with different ideas about how society is best

run, how law is best justified, and what morality requires of us comprehensively. RIGHTS, in

other words, has always been a concept that allowed people to make moral progress without first

9 Magna Carta, 1215, 17 John, (Eng.), translated in ENGLISH TRANSLATION OF MAGNA CARTA (British
Library), available at http://www.bl.uk/magna-carta/articles/magna-carta-english-translation [hereinafter
Magna Carta of 1215].
10 1789 CONST. Déclaration des Droits de l'Homme et du Citoyen [Declaration of the Rights of Man and
the Citizen] (Fr.)
11 THE DECLARATION OF INDEPENDENCE (U.S. 1776)

6
settling on comprehensive, foundational moral principles which have always been the subject of

deep disagreement.12

The problem for theorizing rights is therefore not only disagreement about what is valuable, nor

even about whether value pluralism is true. It is that people are able to capture something, using

the concept of rights, that is in a sense paradoxical; this is why rights are so often the focus of

serious disagreement. If something is so important that it can be the subject of a right, and if a

right means that considerations of utility or value do not override it, how can that something, if it

is at stake for many people, not override a single right? Rights lose their special force if we see

them as instrumental to values, because it is hard to make sense of their role as protecting the

inviolability of individuals in that way. And that latter role is classically the one rights have been

taken to have. On the other hand, if rights are absolute, then duties will have to be compossible, 13

which dramatically reduces the number of things we can have rights to. We therefore ought to

pursue a concept of rights that facilitates clarity in the moral argument underlying rights

discourse, rather than insisting on conceptual revisionism.

I. Three Desiderata for Theorizing Rights as a Normative Concept

12 The United Nations Charter of human rights was drafted in a way that the enumerated rights could be
agreed upon from a variety of more foundational points of view; see Mary Ann Glendon, ‘Knowing the
Universal Declaration of Human Rights’ (1998) 73 The Notre Dame Law Review 1153
13 ‘Compossibility’ of duties simply means that all the duties associated with rights can be fulfilled
without conflicting with one another: Hillel Steiner, An Essay on Rights (OUP 1994), at p. 2.

7
 a) Generality

Ordinary normative discourse is rife with the language of rights.14 When people want to extend

new legal protections they argue for the recognition of new legal rights. Sometimes these are

explicit arguments for recognizing new rights, sometimes they are arguments for better

protections of existing rights, or for protections of existing rights in new and different contexts 15.

Sometimes the language of rights is used to open a door in moral thinking and action that had

seemed determinedly closed, and so rights are used to express what might seem to be radical

moral positions: people argue that animals have political rights, for example, or that ecosystems

have rights 16. Often the concept of rights is used to challenge the moral credibility of new

institutions, like trade agreements 17. Political philosophy is itself replete with rights: one could

describe several political theories at a sufficient level of abstraction as saying something like: a

just society is one that protects certain rights with a certain priority. And most pervasively of all,

14 Jeremy Waldron describes the prevalence of rights in ordinary political discourse as follows:
the language of rights has now become the normal currency (or at least a normal currency) of
ordinary political discussion…People use the language of rights to express their vision of the
good society, or their conception of the respect we owe each other. They use it in conversation, in
legislatures, in pressure groups, in academic seminars, in democratic deliberations of all sorts. …
[I]t has long ceased to be a language specific to (the threat of) legal proceedings.
‘The Role of Rights in Practical Reasoning: “Rights” Versus “Needs”’(2000) 4 Journal of Ethics 115,
116.
15 World Health Organization, The Right to Water, Health and Human Rights Publications, Series 3, 2003,
online at <http://www.who.int/water_sanitation_health/en/righttowater.pdf>
16 Sue Donaldson & Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (OUP 2011); Elaine
C. Hsiao, “Whanganui River Agreement: Indigenous Rights and Rights of Nature”, [2012] 42
Environmental Policy and Law 371.
17 Emilie M. Hafner-Burton, ‘Trading Human Rights: How Preferential Trade Agreements Influence
Government Repression’ (2005) 59 International Organization 593.

8
the concept of rights is used as a locus of ordinary moral and political disagreement: is there a

right to abortion? Do corporations have rights? If they do, which ones do they have? What is the

scope of the right to free speech? Does the right to freedom of religion entail that religious

citizens be entitled to make arguments on religious grounds in the public sphere? Many of these

disagreements take place concurrently on moral and legal grounds.

The preceding examples furnish us with uses of the concept in different normative domains:

political, moral and legal. Within the latter, we have different kinds of rights which are theorized

separately.18 And rights have different, sometimes incompatible, justifications:19 different

accounts of rights are tied to different normative ethical commitments 20. But as is evident from

the instances of characteristic use I described above, RIGHTS is often used in normative argument

18 That is, constitutional rights are the subject of one branch of legal theory, the philosophy of human
rights another, that of private law rights yet another, and so on.
19 By ‘substantive’ I mean normative judgments of a broadly ethical kind. I take this to include moral
judgments and do not want to take on any theoretical baggage associated with either the relation or the
distinction between morality and ethics.
20 Rights play a role in both broadly deontological and consequentialist ethical theories. See John Stuart
Mill, Utilitarianism, ed, Colin Heydt (Broadview Press 2011), Jeremy Bentham, “Principles of the Civil
Code” in The Works of Jeremy Bentham, ed John Bowring (W. Tait Publishing 1843); William Talbott,
Which Rights Should be Universal? (OUP, 2005) (for consequentialist views). See Robert Nozick,
Anarchy, State and Utopia (Basic Books 1974); Immanuel Kant, The Metaphysics of Morals, ed Mary
Gregor (CUP 1996) (for deontological views about rights). Many normative ethicists, as I say below, take
an essentially dualistic view of rights. See John Locke, Second Treatise of Government (1690), ed C. B.
Macpherson (Hackett Publishing Company, Inc, 1980), Judith Jarvis Thomson, The Realm of Rights (n
5); FM Kamm, Intricate Ethics: Rights, Responsibilities and Permissible Harm (OUP 2007).

9
precisely because rights have a distinctiveness and coherence which holds constant across these

domains.21

My claim in this section is that we should charitably interpret ordinary use of the concept RIGHTS

– either by way of inference to the best explanation or by way of a normative imperative to foster

meaningful substantive discourse. It would constitute progress to articulate a concept of rights

that is sufficiently general to coherently account for uses of the term across various normative

domains, and that is in principle defensible from a variety of substantive normative points of

view.22 This I will call the criterion of generality for a successful model of RIGHTS. It requires

that we take all the above kinds of uses of RIGHTS to be data of the concept’s legitimate

employment, meaning that none of these uses of the idea of rights is obviously confused or

mistaken. That is, this desideratum requires that there is something we can say about what rights

are that does not commit us to a conclusion about which ones we have.

To conclude otherwise would imply that these ordinary users of RIGHTS are conceptually

confused, incoherent, or talking past each other. 23 This could be because different uses of the

concept would, in light of theories of rights that are divided among normative domains as well as

21 Wenar argues persuasively that the main theories of rights are unacceptably revisionist because they do
not account for many of the ordinary uses of the concept. See Wenar, ‘The Nature of Rights’ (n Error!
Bookmark not defined.).
22 People may accept and advocate the practice of rights enforcement because they view the rights as
direct reflections of real ‘natural’ individual moral rights; or they may view rights as instrumentally
necessary to promote one or another view of the good.
23 Ronald Dworkin, Justice for Hedgehogs (Harvard 2011) at 158-159; R. M. Hare, The Language of
Morals (OUP 1991); David Plunkett & Timothy Sundell, ‘Dworkin’s Interpretivism and the Pragmatics
of Legal Disputes’ (2014) 19 Legal Theory 242, 259.

10
between broadly ‘interest’-based and ‘will’-based,24 imply that one user is employing an

‘interest-theory right’ while the other is employing a ‘will-theory right’. Or it could be that if we

take there to be a deep conceptual difference between private law or property rights on one hand

and public or human rights on the other, an important dispute in the real world about who owes

what to whom with regard to natural resources, for instance, could be interpreted as an instance

of users employing different concepts but coincidentally sharing a term. And in cases of

normative concepts like RIGHTS, if two users of a term are employing different concepts, then

they can neither agree nor disagree substantively about the application of the concept – they’re

just talking about different things. 25

If, instead of taking various users to be employing different but legitimate concepts associated

with the term ‘rights’, we commit strongly to one of the positions within rights theory, we’re left

with the implication that ordinary arguments among users are simply non-starters because one or

the other of them is wrong about what rights can be. Thus, the fragmented state of rights theory

has the implication that ordinary users cannot be engaged in meaningful discourse, let alone

disagreement. Even setting aside the desideratum for conceptual analysis requiring fidelity to

24 See Hillel Steiner, An Essay on Rights (n 13); ‘Working Rights’, in A Debate Over Rights:
Philosophical Enquires (OUP 1999); Carl Wellman, Real Rights (OUP 1995); see also H.L.A. Hart,
Essays on Bentham (OUP 1982), 183-4. Later waves of will theory can be found in Hillel Steiner,
‘Directed Duties and Inalienable Rights’, (2013) 123 Ethics 230.
25 In meta-ethics this phenomenon has been given considerable attention and is simply understood to
involve users of a term ‘talking past’ each other. So, classically, if we are planning to meet at the bank
and I am using the term to employ the concept of ‘riverbank’ while you’re using it to employ that of
‘financial institution’, then we are not going to meet unless we clear things up. See Ronald Dworkin,
Justice for Hedgehogs (CUP 2011), 158-159.

11
ordinary use, this state of affairs seems to me to be embarrassing for theory and, worse,

potentially undermining of the vibrant normative discourse involving disagreements about rights.

It seems intuitively misguided to assert, moreover, as contemporary rights theory implies, that

what users of the RIGHTS are really talking about is how to identify rights holders, given the

existence of duties.26 The normative assumption many users seem plainly to be making is that

rights generate distinctive protections for individuals – not that they either benefit them or assign

them controls over people’s existing obligations. It deeply misinterprets those who argue that

there is a fundamental right to abortion, for instance, to adopt a theory of rights that requires that

we effectively tell those users that really the question of whether there is a right to abortion

doesn’t arise until we determine that there is a duty to provide or allow abortions. And that the

only work the concept of the right is doing is to tell us why the holder of the right associated with

that duty (assuming we decide on some non-rights-based ground that there is one) is the woman,

either because she benefits from the duty or because she has the greatest control over the

correlated duty. The much more intuitive interpretation of the assertion that there is a right to

abortion is that others are under duties that allow the right’s vindication, whatever those may be.

b) Normativity

I will make two arguments in favor of revising the way we think of RIGHTS as normative. The

first is negative, pointing out that formal theories of rights have important intrinsic limits. The

26 Kramer describes the project this way: “it recounts the general considerations that determine to whom
any legal duty is owed.” See Kramer, ‘Refining the Interest Theory of Rights’ (n Error! Bookmark not
defined.).

12
second is positive: theorists treat the uses of rights that are their explananda much too narrowly;

we should re-think the way in which RIGHTS is used, for the purpose of conceptualization.

i) The negative argument: limits of formal theorizing about rights

Consider the following claims:

(1) Everyone ought to have drinking water

(2) There is a right to drinking water

Identifying what makes the second claim distinct from the first is to explain the distinctiveness of

the concept of rights. 27 Without more information, the justifications for these two claims look

like they could be very similar. So the difference would seem to be formal. Separating form and

justification has been the central move in rights theory since at least J.J. Thompson. 28 And for

good reason. In the quest for a purely formal theory, though, conceptual theorists of rights make

their accounts increasingly formal. That is, they aim at a theory that can identify a right and

explain a right without giving substantive normative judgments as part of that explanation. 29

27 The locus classicus of this way of isolating rights’ distinctiveness in this particular way is Joel
Feinberg, ‘The Nature and Value of Rights’ (1970) 4 The Journal of Value Inquiry 243.
28 Thompson, The Realm of Rights (n 5).
29 One illustration of the trend in this direction is in Kramer’s articulation of the theoretical project: “If we
know the content of a legal duty, and if we know the sundry non-normative facts that bear upon the
fulfillment of that duty, we can employ the Interest Theory to ascertain who holds the correlative legal
right.” Kramer, ‘Refining the Interest Theory of Rights’, (n Error! Bookmark not defined.), 32.

13
We should be able to say what rights are without saying which ones we have, but we must do so

while confronting the fact that disagreements about rights are substantive normative ones. Now

of course people use RIGHTS all the time when they’re not disagreeing – when, for instance, a

party to a contract makes a claim for remedial damages in light of non-performance. But in all

instances in which that is possible, it is because the relevant parties agree about the normative

matters that make the right and its implications possible. If one party disagrees about whether

there is a right to damages, they are probably objecting to the interpretation of the right(s) the

other party is claiming under the contract. Those parties are not going to be able to make

progress in determining what the relevant right is without making substantive normative

argument and normative judgments. When people have a dispute about whether a right exists it is

almost impossible to fully make sense of that disagreement without seeing the moral one

underlying it. This is true even when it comes to evaluating the influential duty-directing

accounts of legal rights. Each main theorist of this kind wants to suggest that we can identify and

explain legal rights, in particular, without recourse to moral argument. To illustrate this point

about the nature of the real disagreement underlying apparently conceptual ones, consider one of

the most common points of disagreement between these kinds of theories. This involves whether

or not third-party beneficiaries of contracts have rights arising out of or otherwise relating to the

contractual obligations.

Consider a particular often-used type of example:30 A has a contract with B to take care of B’s

grandmother, G. A pays B to care for G over the weekend, and B fails to perform. G is injured as

30 This example is also used in Nico Cornell’s argument that it shows that wrongs can come apart from
rights; See Nicholas Cornell, ‘Wrongs, Rights, and Third Parties’ [2013] Philosophy & Public Affairs 43
109.

14
a result. On the duty-directing model of analysis, it is clear that B has a duty in this case which

he has breached. It is also clear that A had a contractual right against B, which gives rise to a

further remedial claim. So far everyone would likely agree. Even if they do agree on that, their

different theories give different explanations for why it is the case. But since the beneficiary of

B’s duty is, at least partly, G, a more difficult question arises: shouldn’t G also hold a right

against B? Contract law has one view of this kind of situation, and tort law has a somewhat

different view. Now the will theory can better explain why A is the holder of the contractual

right correlating to B’s duty, while the interest theory can better explain how we might think that

G also has some kind of right against B. The two theories argue at length about points like this

precisely because each captures an important intuition about rights. But, as I said above, simply

hybridizing these existing theories cannot work since the intuitions that support them are to some

extent about incommensurable things: inviolability and value.

The problem with all of this is that there is no way of resolving the question at issue on the

narrow terms of the current debate. Will- and interest- theorists may say that their arguments do

contain substantive normative premises about what can both generate and direct duties, but in

that case they are clearly taking sides in a substantive normative dispute, and they fail the

criterion of generality. They may, instead, want to insist that their respective accounts will,

without recourse to normative propositions about what justify rights, show why G conclusively

can or cannot be a right-holder in this kind of case. But this is belied by the legal context itself,

where questions of this kind have turned out to be whether or not a party like G should have a

right – there was no doubt that the law had not previous recognized rights in that situation. The

question of whether or not a right exists turns out, even where rights are most fixed and formal,

15
to be a substantive normative question, not one that could be resolved by way of logical

entailment and Hohfeldian analysis of the kind of thing a right is.31

The development of tort law illustrates the impossibility of there being a single correct answer

about whether G can be a legal right-holder in a case like this on the basis of a purely descriptive

theory of rights: contractual privity used to dominate the question of who could have rights in the

situation of third parties affected by contractual duties. If you weren’t a party to a contract, you

couldn’t have a right against one of its parties for an action arising in the domain of the contract.

The most famous case of this kind is Donoghue v Stephenson:32 at the time of its adjudication,

manufacturers only had obligations of non-negligence to those to whom they had contracts of

sale – typically these would be retailers. When a manufacturer of ginger beer, however,

negligently left a rotting snail in one of its opaque bottles, and Mrs Donoghue drank the bottle

and was made ill, the court decided to change the law. It concluded that in such circumstances

the retailer did hold the only contractual rights attached to manufacturer’s duty, but that Mrs

Donoghue had an independent tort right against the manufacturer that there not be rotting snails

in opaque bottles of ginger beer. At the time, that right was entirely new: it was not deduced

from the law or conjured from midair, it was determined by way of substantive moral argument.

Even at the time, though, judges disagreed about whether parties in Mrs Donoghue’s situation

had a right. They disagreed about whether the law should recognize a right-duty relation between

consumers and manufacturers. And because they did, they also disagreed about whether the

31 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions: As Applied in Judicial Reasoning (n 8).
32 [1932] UKHL 100.

16
manufacturer – or B, in our hypothetical case – had a duty correlating to the putative right under

dispute. But it was clear at the time that B-type parties did not have legal duties of that kind to G-

type parties. Courts changed the law because they thought it was wrong. To the extent that the

will- and interest- theories, are formal ones relying on Hohfeldian jural positions, and focusing

on the kind of thing that can direct duties, they begin with duties and ask about rights. Those

arguments simply cannot extend to circumstances where people disagree about whether a right

should exist and then must answer the question of whether there is a correlative directed duty.

The respective duty-directing theorists may respond that their arguments can certainly make

sense of such situations where the rights in question are legal ones, because that is all they claim

to be analyzing. The problem is that even in the legal context, disputes about rights are often

moral disagreements.

ii) The Positive Argument: Re-thinking What Counts as Concept Use

The need to say what rights are, as distinct from which rights we have, seems to have been taken

to mean that a successful concept of rights should be able to explain an instance of the concept’s

use – to say whether or not it is a right, and why – without making a normative judgment in the

moral or ethical sense. This imperative, though, has led to slippage in the idea of concept use: it

has been implicitly confused with the idea that we should be able to apply the concept, as

ordinary users do, without making the kind of normative judgments involved in asserting or

concluding that some right exists or doesn’t. This is to mistake two orders of concept application.

We employ a concept when we use it extensionally, making a particular claim of or about a right

in moral, political, or legal discourse; call this a first order use.

17
We also use a concept, intensionally, when we apply it in a second-order sense: we compare our

concept of rights to a given first order use, and deem that use to be a successful application of the

concept, or not. Second-order use can also form part of ordinary discourse: when someone says,

for instance, that it’s a mistake to say that everyone has a right to adequate health care when

there are clearly insufficient resources to allow for the fulfilment of the duties that would be

associated with that right; implicitly, this is partly a claim about what a right can and cannot be.

But for the most part, second-order concept use involves shaping the theory of something,

mapping its conceptual boundaries to preserve its coherence, so that first order uses get included

or excluded as legitimate extensions.

I want to bring rights’ character as a normative concept to the fore by suggesting that we rethink

the way we understand their use. In particular, we ought to recognize that first-order use of

RIGHTS involves substantive normative judgments. Theorists of rights take their task to be

explaining and accounting for rights when we find them in the law. And by ‘find them’ in the

law, I mean that theorists ‘see’ or identify the use of rights in a static, if paired, way: the rights of

parking ticket wardens vis-à-vis drivers; the rights of judges vis-à-vis litigants. Moreover,

contemporary rights theorists have further narrowed their aim, as I pointed out above, to target

the explanation for the direction of duties. But of course this is to assume that the relevant

question for the concept of rights is: given a directed duty, who holds the associated claim (and

thus the right)?33 This, however, is to misunderstand or misconstrue the first order use of the

33 Cruft puts the point this way: “Suppose I am subject [meaning that I am the duty-bearer] to a particular
duty DD. Is it owed to anyone? If so, whom?” See Cruft, ‘Introduction to «Symposium: Rights and the
Direction of Duties»’ (n Error! Bookmark not defined.); see also Kramer: “it recounts the general

18
concept of rights, even in the law. It is to treat a right as a kind of metaphysical widget which

‘belongs’ to its holder, with a logical relation to another normative position. Disagreement about

rights, on this kind of view, is taken to be distinct from their use, and thus doesn’t form part of

the explananda the concept is targeting. This assumption, though, is mistaken.

We can find rights, especially in the law, that resonate with that widget-like way of thinking

about what rights are. When someone makes a rights-claim, even if implicit – says ‘get off my

property’, gives a parking ticket, or makes a judicial order, expecting those actions to have a

certain normative effect – it might make sense to say that they’re holding a normative widget that

it is the task of rights theory to explain. Feinberg originally drew the distinction, to this kind of

effect, between making a claim of right and making a claim about rights.34 And while this

distinction is logically comprehensible, I think it has also been deeply misleading. For it is to

suggest that the only significant use of a right that needs explaining is the one Feinberg called

‘performative’ rather than ‘propositional’. 35 This is convenient for the aim of giving a morally

neutral account of what rights are, but it is deeply unfaithful to ordinary use. 36 Claims of rights,

as well as challenges to those claims, are also claims about rights.

considerations that determine to whom any legal duty is owed.” See Kramer, ‘Refining the Interest
Theory of Rights’ (n Error! Bookmark not defined.).
34 See Joel Feinberg, ‘The Nature and Value of Rights’ (n 27).
35 Ibid, 251.
36 It is not even clear that Feinberg meant for the ‘claim’ feature of rights to exhaust their nature or
whether he meant it to illuminate their value. See George W Rainbolt, ‘Two interpretations of Feinberg's
Theory of Rights’ [2005] 11 Legal Theory 227.

19
In legal discourse, the concept RIGHTS is applied at a variety of stages in the normative life of the

law. Someone will often go to court to claim that some right has been violated, and that they now

have a right to be compensated for that violation. Whether the claimant in fact has either of these

rights is the subject of judicial evaluation, the conclusion of which will be used in further claims

and evaluations of claims about rights made by others – both claimants and judges. In another

legal domain, when a legislator wants to protect some aspect of people’s lives, he or she can

propose the recognition of a legal right and its vindication in the enactment of legislation. These

are both uses of rights, which a good theory of them ought to be able to encompass.

In both moral and legal discourse, the concept of rights is clearly not applied (or not only

applied) as expressing fixed points in relation to known and identified duties or interests, but in

argument about when interests give rise to duties, and what the shape and content of those duties

will be. Our concept of rights must therefore reflect not only its static, widget-like uses, but all

those dynamic applications or uses of the concept as well: 37 claims about rights, as well as

evaluations, recognitions, and assignments of rights. And once we recognize these uses, we need

also add another: when we ‘see’ an existing right, say, in the law, we have to see not only a

relation to an associated duty, but that a right has been recognized by the exercise of a normative

judgment. The concept of rights should enable us to read or explain a right in terms of one of

these dynamic, reason-giving uses.

37 Recognizing the dynamic use of the concept of rights was a feature of Raz’s theory of rights – a feature
that proved persuasive and influential for many theorists of rights and for the success of the interest
theory more generally; see Raz, The Morality of Freedom, Error! Bookmark not defined.; Waldron
Liberal Rights: Collected Papers 1981-1991 (CUP 1993), 203.

20
 c) Making Conceptual Space for Ethical Disagreement

How can a concept of rights properly take account of normativity while fulfilling the criterion of

generality? Recall that generality requires that we articulate the shared conceptual elements

among users of RIGHTS without taking sides in the deep normative disagreements among them

about which rights we should have. To do that our concept of rights will have to make sense

against the background of the mainstream moral views. I want to suggest that we can accomplish

this by developing the concept RIGHTS such that it articulates the kinds of normative judgments

that are involved in using – understood now as explaining, evaluating, recognizing, and

assigning, as well as claiming – any given right, but that does not itself prescribe the specific

content of those judgments. The concept RIGHTS I will describe is thus one which identifies and

makes explicit its interpretive content.38

What do I mean by interpretive content? Consider another well-known normative concept:

justice.39 If I say that justice demands redistribution of wealth through tax and transfer, I am

38 We might think that this problem can be resolved by appeal to the idea that normative concepts are
‘essentially contested’. The problem with this is that it does not take account of the way in which ordinary
users draw on shared conceptual content of the term to support their argument, as in the case of the
dispute about tax and transfer in the concept of justice I discussed in the text above.
39 One of the most common ways of thinking about the relation between conceptual structure and the
substantive normative facts or judgements involved in applying a normative concept is the
concept/conception distinction referred to by Rawls, Hart and Dworkin. I take the kind of argument I
describe in the text to draw on elements of both shared conceptual or analytic structure and substantive
normative judgments – meaning that both the concept and the conception, to use that terminology, is in
play. I therefore don’t find that exact way of breaking down the problem to be particularly helpful. See
also G.A. Cohen’s argument against that approach: G.A. Cohen, ‘Rescuing Justice and Equality’, in On

21
presupposing that using the language of justice will have some meaning for you that goes beyond

the assertion that ‘there ought to be’ a redistribution of wealth through tax and transfer. Saying

that such an assertion is part of the normative demand of justice implies that there is some

conceptual content there, under the heading of justice, that you are likely to think will matter to

what ought to happen overall. This kind of argument for a political outcome that relies partly on

a normative concept like justice would be incoherent, though, if it did not also assume that there

is some content of JUSTICE that is open to normative disagreement. So any such argument that

draws on a normative concept relies on a shared conceptual foundation that can accommodate

normative disagreement on what the normative concept requires in any particular case.

II. A Model of Rights

I am going to argue that we should think of rights in three dimensions. The important thing about

the dimensional metaphor is that it allows us to see three things as being united and yet in tension

with each other: it is the paradigm for an object consisting in three elements where none can

reduce to the others. Any three-dimensional object, if one of the dimensions were taken to reduce

to one of the others, would simply disappear as an object in the real world. Think, for instance, of

a cube. A cube allows us to see two ‘things’ as being distinctively different and yet on one plane

– height and width, in two dimensions – and a third ‘thing’ necessary to create the object,

namely, depth. I will argue that the concept of a right has a similar structure: it involves two

kinds of distinct normative judgments: one about value in the context of the importance of

interests, and one about relational context. These are, in a sense, on the same plane, although

the Currency of Egalitarian Justice, and Other Essays in Political Philosophy (Princeton University Press
2011), 239.

22
they are distinct, because they are both evaluative judgments. The third dimension is just that of

constraint. It is not a value judgment of any kind. It represents the limit on choices that rights

create. It captures the side-constraint, ‘trumping’, or peremptory feature that rights are often

taken to have, 40 and the model thus allows a deontological view of constraint as compatible and

incommensurable with value within the single conceptual structure. But this model of rights

holds these three things in equivalent tension: it does not say which is more important or

fundamental, or which is in service of which. So the right to bodily security, for instance, might

be thought to protect the interest in bodily integrity and safety because that interest is morally

important; or it might be thought to protect that aspect of human well being only incidentally,

being explained and justified by reference to the moral imperative that people be the authors of

their own choices, not subject to being used by others. People can interpret this model, in other

words, according to their preferred normative commitments; this will have the effect of re-

orienting what might have appeared to be unbridgeable conceptual divides into normative

disagreements in particular instances.

a. The Joint Necessity of Constraint and Value: A Dualistic Model of Rights?

By constraint I mean a limit on the parameters of choice or permissible action, and I take this to

encompass the general idea of duty or obligation. By value I mean the relative worth of different

aspects of human wellbeing. I will begin by arguing for these two elements because most

40 These are each particular ways individual theories of rights have tried to capture what I am calling the
element of constraint. I do not, by using the terms illustratively, mean to suggest that these theories of
rights are the same, or even that they have the same view of the way in which rights are, or generate,
constraints.

23
theorists of rights in effect accept a model consisting in something like these two conditions. 41 It

is within the dimension of constraint that we think of rights as directed duties and as positions or

clusters of Hohfeld’s logical analytics in respect of what he called ‘jural positions’, which are

now widely taken to constitute the formal character of rights.42 The concept I set out here makes

room for those formal characteristics in its dimension of constraint.

Making something the subject of a rights-constraint makes that thing inviolable for the individual

the right protects.43 Inviolability creates a limitation on the actions and choices of others.44 If one

is a deontologist, one will take that limitation to reflect a foundational moral inviolability; if one

is an instrumentalist about rights, one will take that inviolability to be functional. These moral

views are lenses through which different people will see and interpret uses of RIGHTS.45 The

model of rights that I propose does not take a position about nature of the inviolability reflected

in the dimension of constraint. It is partly for this reason that the model is general in the sense

41 I take the enormous influence of Raz’s interest theory of rights to be explained partly because it is a
version of a dualistic theory: rights are intermediate points of reasoning that relate interests to duties. It
makes rights conceptually distinct from duties and justified by reference to interests, yet also conceptually
related to duties in such a way that we might say that although they do not yet represent duties their
intermediate place in reasoning makes them appositely called constraints of some kind.
42 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions: As Applied in Judicial Reasoning, 8.
43 This means that where individuals have rights, their element of constraint disables aggregation or
maximizing utility or wellbeing across persons. It does not, though, mean that the importance of the
interest is necessarily to the person who holds the right.
44 Note that ‘constraint’ is not the same as ‘restraint’. The latter would have the effect of always
prohibiting certain actions, whereas the former can require actions; it only limits the range of permitted
choices.
45 I am grateful to Sam Scheffler for helping me to see this interpretive possibility.

24
that it is defensible to those who use the language of rights but who are committed to different

substantive normative ethics.

One might think, for instance, of rights in formal terms such as the Nozickean hyper-sphere that

surrounds each of us. This is currently analyzed as a liberty paired with a perimeter of claims, to

put the point in Hohfeldian terms. 46 But of course the sphere must have a boundary somewhere

in that hyper-space: it thus includes some aspects of our well-being and not others, and a

principle of prioritization is necessary to determine which aspects are included and protected.

Perhaps the simplest explanation for distinguishing which ones get included in the sphere and

which don’t is that the aspects of our well being that are the most important go inside the sphere:

as Waldron says, citing Raz’s theory of rights, “a person may be said to have a right if and only

if some aspect of her well-being (some interest of hers) is sufficiently important in itself to

justify holding some other person or persons to be under a duty” 47 Importance, here, will be

normatively determined by the domain in which a given right is at issue. If we are considering

moral rights, then it is the moral importance of rights that will be the principle that prioritizes

which aspects of human well being are protected by moral rights. If we are analyzing legal

rights, then the matter appears more complex, since often it is the case that legal rights are

recognized or assigned on a moral basis – whether that is a basis of moral rights or some other

moral principle. But once assigned or recognized, legal rights protect aspects of human well

46Robert Nozick, Anarchy, State and Utopia (n 20), 57.

47 Jeremy Waldron, Rights in Conflict [1989] 99 Ethics 503, 504; see also his Liberal Rights: Collected
Papers 1981-1991 (n 37).

25
being that have been deemed to be important, legally speaking. The legal importance of interests

will mean different things to different people depending on their view of the relation between

law and morality. But that complexity doesn’t obscure the fact that legal rights protect interests,

and that fact means that those interests are of legal importance, whether we think they are moral

importance or not.

Rights’ constraining form have the effect of protecting aspects of human well being – they have

this effect whether one takes this to be their sole justification or no justification at all. This means

that the recognition or assignment of a right just is an articulation or prioritization of some

interests being more important than others, whether we want it to be or not.48 An account of

rights must make room for a justification for this prioritization of the protection of some interests

but not others, whether it is of the kind I outlined in the previous paragraph or not. Some have

taken the interest theory to prevail on this kind of basis: it makes no sense to create and observe

constraints simply for their own sake. 49

Formal or status-based theorists, might, though, think that although rights incidentally protect

some thing or interest which may itself be valuable, and although that protection is valuable, the

dimension of value that attaches to rights in these cases is only incidental rather than central or

48 I have argued more fully against the plausibility of purely formal accounts of rights, such as a Kantian
juridical account, Dworkin’s excluded reasons account, and Nozick’s purportedly formal account, in
Public Rights, Private Relations, Chapter 4 (OUP 2015), 77-99.
49 See W.D. Ross, The Right and the Good (OUP 1930); G. E. M. Anscombe, ‘Modern Moral Philosophy’
[1958] 124 Philosophy 1.

26
necessary to what rights are. 50 The right to free speech, for instance, can be explained as a

protection of an aspect of human life that is of great moral importance because it is especially

valuable to us, or because it is integral to our well being. But if one thinks rights exist only in

virtue of the equal moral status of persons, the right to freedom of speech will have to flow

through the role of the state, and of the rights individuals must have against it in order for their

personhood to be adequately protected. One can, on the account of rights I am advancing here,

hold this kind of view without inconsistency. The disagreement between this kind of view and a

more explicitly interest-based account of rights can be understood as differing interpretations of

the relative importance of the elements of constraint and value. The model I propose does not

take a position on how these two elements will be weighted, which is more foundational, or how

they might relate to one another. It simply asserts that wherever one finds an assigned or

recognized right or where one asserts a right, one will find the constraining form, and articulation

of relative value intrinsic to rights, however one takes the right to be justified or explained.

Even on this dualistic model, then, apparently conceptual disputes can be translated into

substantive normative ones about how one ought to interpret the relative weight and foundational

quality of these elements. Most importantly, viewing rights in this way allows us to interpret

ordinary uses of the concept, and especially disagreements about whether something is a right or

not, as substantive normative ones about the value of the thing in question. This allows us to

interpret ordinary use as genuine and meaningful disagreement, because it is normative

disagreement within the same general concept.

50 Robert Nozick, Anarchy, State and Utopia, (n 20), 174-83. Similarly, James Griffin argues that human
rights are those required by ‘personhood’, so that the interests they protect will be determined and limited
by what the incidents of autonomous personhood are. James Griffin, On Human Rights (OUP 2008), 8-9.

27
The model of rights as I have argued for it so far says that the dimensions of constraint and value

are jointly necessary to the concept of rights; it is essentially dualistic. It can be formalized as

follows:

Every Right is a norm that

(1) Creates constraint(s) oriented toward protecting the inviolability of individuals; and

(2) Assigns priority to important interests

b. Indeterminacy in the Dualistic Model

Outside a very small circle of theorists of rights, 51 something like this dualistic model is in fact

what people work with when the argue about or for rights: the idea of constraint, usually in the

form of Hohfeldian positions, justified by reference to something like interests. This, I would

suggest, is the result of the huge influence of Raz’s theory of rights, which, as I pointed out

above, can be interpreted as a dualistic one. 52 But if we accept the imperative for a general and

51 Only the contemporary will and interest theorists truly take the position that these two aspects are
mutually exclusive. See Matthew Kramer, ‘Rights Without Trimmings’ in Matthew Kramer, Nigel
Simmonds, and Hillel Steiner (eds), A Debate Over Rights: Philosophical Enquiries (n 24); Hillel Steiner,
‘Working Rights’ (n 24), Matthew H. Kramer, ‘Some Doubts about Alternatives to the Interest Theory of
Rights’ (n Error! Bookmark not defined.); Hillel Steiner, “Directed Duties and Inalienable Rights” (n
24).
52 In addition to Raz himself, above at note 41, see e.g. John Tasioulas “Taking the Rights out of Human
Rights” (n Error! Bookmark not defined.); F. M. Kamm, Intricate Ethics: Rights, Responsibilities and
Permissible Harm (n 20) ; Judith Jarvis Thomson, ‘Précis of The Realm of Rights’ [1993] 53 Philosophy
and Phenomenological Research 159, 161; Gopal Sreenivasan, ‘A Hybrid Theory of Claim-Rights’

28
normative concept of rights – one that can give reasons just on its own – then a dualistic model

turns out to be insufficient to explain why particular rights impose the constraints they do to

protect valuable interests. This is because indeterminacy plagues a dualistic concept of rights. If

rights are taken only to protect interests and to involve somehow corresponding constraints, the

conceptual content of RIGHTS does not itself sufficiently inform the constraint any particular right

involves, either by way of justification, entailment or moral requirement. It tells us too little

about the identity of those for whom rights will have normative implications, as well as about

what the shape of those implications will be.

This does not mean that we cannot recognize a right unless we already know the exact constraint

or duty attached to it. What it means is that deploying the concept of rights both makes and calls

for others to make normative judgments about the implications of the right for them. We can

think of this aspect of the concept of rights by an analogy with the concept of infectiousness: if

someone says they are infectious it means that they are making and calling for others to judge

what actions are necessary for them in light of what infectiousness means. The concept of

infectiousness, though, tells us neither what the infectious agent is, nor precisely what actions are

appropriate for which individuals: the latter will depend on their relative situation in regard to the

infectious agent. In that regard both concepts are action-guiding in the sense that they call for

individuals to make judgments about how exactly the concept applies to them. But neither

concept is action-guiding in that its deployment already circumscribes the actions it requires. To

[2005] 25 Oxford Journal of Legal Studies 257, 257-258; Rowan Cruft, ‘Why Aren’t Duties Rights?’
[2006] 233 The Philosophical Quarterly 175 at 175-177; Wenar, ‘The Nature of Claim-Rights’ (n 4);
Wenar, ‘The Nature of Rights (n 1).

29
arrive at conclusions about the specific actions required by the concept, people will have to make

judgments about the implications for their action of the deployment of the concept.53

If we begin with a right and try to reason our way to a duty, the inclusion of the element of value

or interest in the conceptual structure of rights tells us what substantive content the duties owed

in respect of that right will have. A right to food will generate duties to assist the right-holder to

enjoy the good of food. But on this conceptualization of rights, the right to food tells us no more

than that. It does not tell us whose choices are constrained by the right, nor does it specify, for

those who are thus constrained, what shape the constraint on their choices and conduct will take.

I argued above for the necessity of the element of value to the concept of rights by pointing out

that all rights are inevitably and inescapably rights to something. But we also can’t identify what

a right is to by reference to an interest alone. The entitlement implied by a given right remains

opaque unless we know what would constitute its violation. We can’t know what a right is to, in

other words, unless we know what it is ‘against’. Here I am not focused on the goods that are the

subject of the right, but on the limitation imposed on the actions and choices of others that

protects the given good. If we don’t know what could count as violating a right, this limitation

remains conceptually underdetermined; it can’t be meaningfully identified or accounted for.

More formally, we can say that: (1) constraint and interest are jointly necessary to a concept of

rights; (2) the necessity of constraint as an element of rights entails that we identify the constraint

as part of the identification of the right; (3) the conduct that would constitute a violation of the

53 I thank Sara Moss for suggesting this helpful analogy.

30
right reveals the shape and content of the constraint by bringing into relief the kind of behavior

that is and is not permitted by the right. (4) Following from (2) and (3): to identify the content of

the constraint in respect of a right we need to be able to tell whether it has been complied with or

violated, or what such compliance or violation would look like. Therefore, (5), if we can’t tell,

when faced with some conduct by a given actor and a putative right, whether or not the putative

right has been complied with or violated, we simply cannot say that it exists. 54 We cannot know

what a right is to, therefore, unless we can tell when it has been respected or violated.

I have argued for premise (1), the joint necessity of constraint and value, in section II(a). Premise

(3) is stipulative; it sets out what I mean by the content of a constraint. The conduct that would

constitute a violation of a right is the content of the constraint because it creates a functional

inviolability. The meaning of functional inviolability is simply that there is a course of action

that would constitute a violation, and the constraint prohibits that course of action. The crucial

premises are (2) and (4), and I will thus focus my argument on them. Premise (2) is what is

necessary to distinguish rights from important interests;55 premise (4) is necessary to show, and

the conclusion, (5), establishes, that the elements of constraint and value are not jointly sufficient

to constitute RIGHTS; the conceptual structure of a right must include some further content that

can inform the particular conditions of its violation.

54 This is the main point at which my proposed concept of rights differs from dualistic accounts such as
Raz’s, and the differences become greater and more significant when the third, relational dimension is
added, as will become clear in the following section.
55 See John Tasioulas, ‘Taking Rights out of Human Rights’ (n Error! Bookmark not defined.).

31
This way of thinking about the element of constraint in rights reinforces the idea that rights are at

least sometimes action-guiding in ordinary use.56 A right is very widely accepted to entail a

special kind of obligation—a directed one, or even an agent-relative one.57 This latter

characterization means that for each person the right of another either has a special normative

implication, or, in the case of third parties to rights arising out of transactions like promises, it

might have no implication.

This implies that in order for a right to establish a directed obligation, each person must be able

to tell whether the right of some other person has that kind of normative implication for him. The

best existing method for explaining how people can tell whether someone else’s right creates a

duty for them is the categorical one dividing rights on the basis of whether they are partly

grounded in a relation (including a transaction)—these being the ‘special rights’—or not—these

being the ‘general rights’.58

Now it’s true that special rights do seem to provide the information that allows us, and potential

duty-bearers, to reason from right to duty without additional contingent information. These

rights, then, don’t seem to pose the problems of indeterminacy we are concerned about. But that

doesn’t help us because many central cases of rights are the kind that would be classified as

56 Jeremy Waldron, ‘Duty-Bearers for Positive Rights’ (2014) Public Law & Legal Theory Research
Paper Series, Working Paper No 14-58.
57 See e.g. Ronald Dworkin, ‘Rights as Trumps’ in Jeremy Waldron, ed, Theories of Rights (OUP 1984),
153; Judith Jarvis Thomson, The Realm of Rights (n 5); Thomas Nagel, The View From Nowhere (OUP
1986), 175–82; Robert Nozick, Anarchy, State, and Utopia (n 20).
58 The distinction is Hart’s, most influentially and compellingly elucidated by Waldron, The Right to
Private Property (OUP 1988), Chapter 4.

32
general, such as basic human rights. And general rights are supposed to be ones that everyone

has independently of any transaction or relationship. That latter requirement means that they are

universal in the sense that everyone is a right-holder but also in the sense that everyone is

potentially a duty-bearer.

But now we are clearly back to the problem of indeterminacy: if I know that another person—

and especially that every other person—has a right to potable water, how do I know what the

specific and complete normative implications of that right are for me?59 I think it is reasonable to

claim that if I can’t tell, then the right in question can’t be the right kind of reason or

obligation—that it can’t be sufficiently directed. Because if I am to be under a special kind of

obligation that I owe directly to the person whose right is asserted; if that obligation is supposed

to be a distinctive kind of reason having an elevated or peremptory status among my other

reasons, then surely at a minimum I ought to have some way of knowing whether I have such a

reason. The right, in other words, has to be able to direct the obligation, not only in the abstract

universe of theoretical rights, but in a way that potential duty-bearers can discern on the basis of

reasons arising from the kind of thing a right is. Potential duty-bearers can only reason from right

to duty if there is information in the idea of what a right is that tells them what kinds of

judgments to make to determine whether a given right imposes a duty on them or not. One type

59 In some cases, such as the right not to be murdered, say, the normative implications for everyone
appears to be obvious – don’t murder. But that right does generate other obligations, such as the
obligation, perhaps, to intervene if a murder is about to take place, or to protect people against murder, or
to prosecute murderers, or to establish a system of justice that makes murder less likely, to support such a
system, and so on. And the shape and content of the obligations the right entails for different agents is not
clear just from the conceptual content ‘not being murdered is an interest with sufficient importance to
warrant imposing duties on others’.

33
of judgment is clearly about the importance of interests, but that information has no specific

bearing on whether or not a right directs their obligation toward the right-holder in the necessary

kind of way.

To bring this out, consider John Tasioulas’ account of what makes rights distinct from interests:

that they are “sources of duties or obligations.” So “[t]he existence of a right to , on the part of

A, grounds duties on the part of others variously to protect, respect, and so on A’s possession,

access, and so on to .”60 This dualistic model does a potential duty-bearer whether the

importance of  to A has the right kind of normative implications for me to make it A’s right,

rather than some other kind of reason I might have to help A secure or possess . How am I to

know whether I am one of the ‘others’ on whom this right does in fact impose the kind of

constraint associated with RIGHTS? Moreover, this way of putting things fails to answer the most

important question: by virtue of the conceptual content of RIGHTS, as a potential duty bearer I

cannot tell what I must do to in respect of the constraint imposed on me by A’s right to 

(assuming there is such a constraint). Any model of rights that includes interests means that, as

Tasioulas says, the right will ground various duties – “to protect, respect, and so on, A’s

possession, access, and so on, to .”61 The constraint may involve protection and respect, in

other words, but also may take many more possible shapes. But nothing in the dualistic model of

rights can specify which shape the constraint entailed by any given right will take for any

particular duty-bearer.

60 Tasioulas ‘Taking Rights out of Human Rights’, 656, emphasis added.

61 Tasioulas, ‘Taking Rights out of Human Rights,’ 656.

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I have so far argued that the elements of value and constraint are jointly entailed by rights; I then

tried to show why it matters that a dualistic model of rights constructed on the basis of that joint

necessity leaves out any further information about whom a right implicates and in what way.

Such an account of rights fails to explain how they become the requisite kind of categorical,

exclusionary, and directed obligation they are accepted to be. The dualistic model is thus

insufficient: the elements of constraint and value are jointly necessary but not sufficient to

understand what rights are. Something is missing from the model as so far developed.

The next question is: what is that missing piece in the conceptual content of a right? Value alone

is insufficient to identify what exactly a violation of a right, as opposed to the infringement of an

interest, would look like, since there are innumerable ways of infringing the various types of

constraints that could be associated with a given interest, and no obvious way – certainly in the

case of general rights – of knowing what constraints apply to which persons. What type of

normative fact or judgment would supply the answers to the questions of ‘why me’ in the case of

a potential duty-bearer and ‘why her’ in the case of the judge and observer, as well as to the

question of what shape the constraint should take—what action or inaction, on the part of that

person, will count as a violation of a given right?

c. The Missing Piece: The Relational Norm

I suggest that the relevant judgement, the missing piece, concerns the relational context or

structure in which any given right arises. Rights are a kind of relation – a formal one – but they

necessarily arise in response to another kind, which is external to them but also necessary to their

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establishment and existence. Duty-bearers are properly identified in respect of interests, on this

view, on the basis of whatever norms govern the relational structure or context between the

putative duty-bearer and putative right-holder. In this section I will introduce the argument for

the third dimension in the model of rights I propose and I will sketch its structure. The argument

and the outline of the relational element of rights will necessarily be somewhat cursory: a full

exposition and defense of this dimension of rights is beyond the scope of this section. 62

Just as the picture of rights so far described tells us that rights necessarily involve value but not

which particular interests are valuable, the relational element of RIGHTS cannot provide the

specific normative judgements to tell us which rights we have. But it can indicate that

relationality is part of rights’ conceptual structure, just as constraint and value are. Rights thus

involve two types of normative judgements—a judgement about value in the form of interests,

and a judgement about relational normativity.

Judgements about the normative implications of the relational structure of a right make up the

third element of their conceptual structure. This becomes evident in much the same way that the

element of value or interest becomes evident. In every right, an interest is in fact protected; that

special protection as a right embodies a judgement that that interest is important in the domain of

the right—legal rights protect legally important interests; moral rights protect morally important

ones.63 Actual rights invariably protect interests and thus involve normative facts or judgements

about relative value. This means that we cannot dispense with the element of value in

62 The relational element of rights is discussed in more detail elsewhere, see Jean Thomas, Public Rights,
Private Relations (Oxford: Oxford University Press, 2015), Chapter 7, 150-188.
63 I discuss the meaning of importance in a normative domain more fully at pages 26 and 27, ibid.

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constructing a model of rights. Rights do not, however, necessarily arise in respect of any

particular values. Their conceptual structure entails only a fact or judgement of that kind;

whatever the content of those judgements about which interests are valuable, the type of

judgement is necessarily part of what rights are. The fact that rights conceptually entail

normative judgements about valuable interests hence does not determine which rights we ought

to have. It is in this sense that the model fulfils the criterion of generality as well as of

normativity. What the model does tell us is that every right reflects judgements about the relative

value of goods or interests.

Relational norms figure in the concept of rights in exactly the same way as judgements about

value. Rights are recognized as claims addressed to some purported duty-bearer. One cannot

identify a right without reference to some person in a position to violate it, and to a type of action

that would constitute the violation. It follows that relational norms underlie claims about the

possible conditions of violation that are prohibited by the right.

The dualistic theory makes sense of any right, normatively speaking, only in terms of the

importance of the interest that the constraint protects. The interest, once defined, can only be

evaluated along the valence of more and less important (morally or legally). Yet we have rights

(and the constraints they involve) that protect the same interest – in the free practice of religion,

for instance – that are complexly differentiated in different relational contexts. My right in

respect of my freedom of religion will be different in relation to my government, my neighbor,

my employer, my parents, and my children. The content of those different rights, and the

different duties they involve, are not fully specified by the idea of more and less important. It

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makes no sense to say that the interest, once defined as important by the ascription of a right in

respect of it, is then for some reason less or more important in these different settings: if an

interest in an individual’s practice of religion is important, then that importance ought to

generate whatever constraint its importance justifies on everyone. Rights that protect the same

interest will, however, be different across different relational contexts. The content of a right

reflects both the interest and the relational context. A child’s right to education, for example, will

create constraints on the state, on her parents, on her teachers, possibly even on her neighbors,

but the shape of those constraints will differ across the various relational settings.

The differentiation among the various instantiations of these rights in different relational contexts

would, from the perspective of a dualistic model of rights including only value and constraint,

appear arbitrary, or at least external to the right itself. Physical integrity, health, religion,

expression, property, are all interests that are important enough to be almost universally

protected as (in these cases both moral and legal) rights; yet the actual content of the entitlements

they entail and the shape of the constraints they involve can justifiably vary across different

relational contexts. This variation cannot be explained by referring to the greater or lesser

importance of the interest.

If we thus conclude that constraint and value are jointly necessary but insufficient for a model of

rights and that the missing element in the model of Rights involves the relational context in

which a right arises, our model of rights will be three-dimensional, and will take this element of

relational, structural context into account, as follows:

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 Every Right3 is a norm that

(13) Creates constraint(s) oriented toward protecting the inviolability of individuals;

(23) Assigns priority to certain morally important interests; and

(33) Normatively reflects the relational structure in which it arises.

Employing the concept of rights, on this three-dimensional model, will involve a normative

judgement about the relational context of the rights claimant and the addressee of the claim. A

given right, in other words, comprises two types of normative considerations: an evaluation of

the importance of an interest, and an evaluation of the relational context.

Different relational structures give rise to different norms. But which relational features will give

rise to which constraints? We can say a few things as a general matter. One important type of

relationality involves positional features. These might include risk (threatened setback to

interest), power (control over others’ goods), and dependency (need/vulnerability + control over

good or interest needed or at risk). These positional relational contexts are governed by norms of

equal respect, since they attract our concern about people treating others as means in settings

where they have certain kinds of power over them, or failing to adequately consider their moral

status as equal in circumstances of risk. Other types of relationality involve the affective features

of care and trust, which give rise to norms that generate constraints in the form of requirements

to promote the other person’s wellbeing to some extent. Still others might be certain normative

features, such as having authority over someone, being a guarantor of their entitlements against

one another, and having control over their status relative to one another, which give rise to the

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kinds of dignitary protections associated with anti-discrimination norms and procedural norms.

Sharing common goods or common benefits might give rise specifically to norms of fair play

and reciprocity, and having a relationship involving representation might give rise to norms

involving taking a neutral outlook on the represented party’s beliefs and desires, as well as

certain obligations to accuracy and impartiality.

The particular norms that govern different particular relational contexts will necessarily need to

be further elaborated. But this does not preclude the inclusion of this element in a model of rights

any more than including interests in it does, since the fact that interests are necessary to a model

of rights does not, similarly, tell us which interests rights will protect, only that, in recognizing or

imposing rights, we will need to make a normative judgement about the relative importance of

interests. The relational element, similarly, will require that we consider the norms associated

with certain relational features as part of our assessment of whether a given right exists or not, or

whether one ought to be imposed or not. It also gives us a more nuanced and accurate way of

interpreting existing rights, since it allows us to see what the normative judgements are that have

gone into the recognition of a right, and to evaluate them.

Take the example of a right that seems to have a negative form but is not obviously ‘universal’ in

the sense that, while everyone has it, not everyone obviously owes duties in respect of it, namely,

freedom of conscience. Consider a woman in India. Do I have a directed obligation to her in

respect of her interest in freedom of conscience? If not, then, on the basis of the dualistic model,

we would have to say that she does not hold that right against me. But how do we know? If we

begin to think through who ought to have that obligation, it immediately seems that part of the

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answer will be relational, most simply because the right will impose constraints on actions that

can infringe the interest.

So far, the constraint operates in the same way as the interest in freedom from intentional harm

would; the complication arises because it is not enough to say that I am prohibited from limiting

her right to enjoy the good of freedom of conscience, because the question of whether I am

violating her right to that freedom, in contrast to infringing her enjoyment of the good, is the

central one when it comes to establishing, recognizing, or understanding a right. There are ways

that I could diminish her freedom of conscience: I could send her hate mail when she writes a

letter to the newspaper expressing a view I disagree with: would that constitute a (moral) human

rights violation? I could flood the newspaper with letters expressing another view, or I could

write an editorial attempting to discredit her. I could threaten her and her family with worse

forms of harm if she persists in her view. I could publicly mock her or her family for taking such

views; I could preach to all religious people that they ought to shun her, and so on. If, in doing

any of these things, I were her government, I would be committing a violation of her freedom of

conscience. But, just as myself, even if I did any of those things it would not seem intuitively to

count as a violation of her moral right to free conscience.

If we change the variables of physical proximity and personal connection—if, say, I were her

friend or neighbour, I would still not, by doing the kinds of things I referred to above, intuitively

be violating her right to freedom of conscience, though that seems to become less obvious as we

add layers of relational complexity to our hypothetical context between her and a potential duty-

bearer. Even if I were her neighbor or friend it is arguable that I have constraints of some shape

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in respect of her freedom of conscience: even if I cannot myself violate the right in any of the

ways described above, I might be morally required to avoid contributing to the violation of that

right by supporting her government in its actions. I might have a differently shaped constraint: I

might be required to support institutions that would protect her against such actions. What if I

were her employer? What if I were a religious leader in her Church or an elder in her

community? What if I were in both the previous relational positions to her? What if I own the

newspaper to which she wrote? What if I do not own it but have full editorial and managerial

control over it?

These questions cannot even begin to be addressed by a dualistic model of rights. Yet addressing

the above questions normatively is necessary to understand what the right requires. The way we

answer these questions will begin to delineate the conditions of fulfillment or violation of the

right in question: that is, in fully answering these questions in a fine-grained way we would come

to a better understanding of what actions, by whom, would constitute a rights violation and thus

where or whether the right exists.

III. Conclusion

On the three-dimensional model of rights, the concept itself tells us that we do make normative

judgements when we use the language of rights. It thus also tells us that when we ‘read’ existing

rights to understand what they are, those normative judgements must be part of the explanation.

The model I have sketched here meets the criteria of recognizing rights’ normativity because it

says that applying the concept will involve making normative judgements: it tells us that if X

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claims that she has a right against Y in virtue of Z, we have no non-normative way of figuring

out whether that is correct. It meets the criterion of being action guiding because it identifies the

types of normative judgements required to recognize or understand any given right, which also

are sufficient to identify plausible normative implications the right has for others. Yet its aim is

general: it is to bring to light the types of normative judgement that go into the recognition or

creation of any given right so that it can help to clarify the terms of many substantive

disagreements about which rights we have.

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