2.1. Rights

It is useful to have a single word for the situation of a person whose right has been violated, and it is common to say that such a person has been wronged. It may well be that there are contexts in which people are happy to talk of someone being wronged, when no right of their has been violated.Footnote ¹ That said, I shall stipulate, for present purposes, that for me to wrong you by acting in some way is for me to fail to respect your right to my not acting in that way. More precisely, in rights theory terminology, for me to wrong you is for me to fail to respect a claim, or claim-right of yours. For present purposes, understanding that claims are at issue, and before saying what I shall take them to be, I shall continue to talk, baldly, of “rights.”

We now have the question: what is it for you to have a right “against me,” as it is said, to some action of mine?

2.2. Directed obligations

It is common to connect rights with obligations, in the following way. For you to have a right against me to some action of mine, is for me to have an obligation to you not to act in that way. “Duties” as opposed to “obligations” are often referred to in this context. I take these two terms as having essentially the same meaning in the discourse in question and have arbitrarily chosen to use “obligation” here.

It is important to take note of the phrase “to you” in what I have just said: the obligation in question is an obligation to you.

An obligation to someone has been referred to variously in the literature as, at least, a directed obligation, a relational obligation, and a bipolar obligation. I shall use the label “directed obligation” here.

2.3. A set of “equivalences”

Let me sum up what I have said so far, and emphasize one aspect of it. Using a term from the jurist Wesley Hohfeld, I shall assume that the following statements are “equivalent”:

1. i. X would wrong Y if X performed action A.

2. ii. Y has a right against X to X’s not performing action A.

3. iii. X has an obligation to Y to refrain from performing action A.

In other words, as I shall understand them, these statements all refer to the same state of affairs and, more precisely, the same relation between X and Y. The statements that refer to X initially—stating that X would wrong Y if X performed action A, and that X has a certain obligation to Y—refer the relation in question is viewed from X’s perspective. In contrast, the statement ascribing a right to Y views that relation from Y’s perspective.

To sum up: I interpret my question about wronging—Can I wrong someone in the state of nature? —as equivalent to a question about rights (or, more precisely, claim-rights). To put that question, now, in general terms: If X is in the state of nature with respect to Y, can X have a right against Y? Equivalently, Can Y have an obligation to X if X and Y are in a state of nature with respect to one another?

The last formulation may seem to be a helpful way of putting things—if we are comfortable with the idea of obligation, and less comfortable with the idea of a right. We are not yet out of the woods in terms of our question, however. What, after all, are directed obligations? In particular: are they—as it might seem—obligations “with a twist”?

2.4. Directed obligations in rights theory

Anglophone rights theorists commonly assume at least the following two things about the directed obligations that are equivalent to rights.

First, they commonly assume that an obligation is a requirement. In the moral case, for instance, it is a moral requirement, something that one “must” do, morally speaking. Such a requirement may be subsumed under a deontic moral rule or principle. The same goes, with relevant changes, for the legal case.

Second, they commonly assume that directed obligations are constituted, in part, by obligations simpliciter.

That has not exactly led to a consensus on the nature of rights, since theorists do not agree on what is needed to constitute a directed obligation beyond an obligation simpliciter.

Most notably, “will,” or “choice” theories see the directedness at issue as a matter of certain powers of the right-holder relating to the obligation in question, powers they may or may not choose to exercise. For instance, the right-holder has both the power to waive the obligation, in the sense of eliminating it, or at least refraining from enforcing it, and the power to enforce it. According to these theories, it is by virtue of these powers of the right-holder that the obligation of the right’s addressee is directed to the right-holder.Footnote ²

Interest theories, in contrast, see an obligation as directed toward a certain person if it is related in a particular way to the interests of that person. For instance, that person’s interests suffice to ground the obligation.Footnote ³

Where to go, given this impasse?

2.5. A further equivalence: Alluding to owing

It is common to take there to be yet another, equivalent, way of describing the situation in which, for instance, Max is obligated to Julia to do the dishes. One might say, instead: “Max owes Julia his doing the dishes.”

Here, the word “obligation” does not appear, so there is little if any temptation to think that an obligation in the sense of requirement is part of the situation in question. At the same time, a relation between two people is clearly at issue.

Now, “owe” is another ambiguous term. Certainly, philosophers have used it in different ways.Footnote ⁴ So, even if we add to our list of equivalences,

iv. “X owes Y X’s doing A.”

we may wonder if there is not a way further to clarify the nature of the relevant situation.Footnote ⁵

2.6. The standing to demand an action

One might now make note of the fact that many theorists have emphasized a connection between having a right to some action and demanding that action. Thus, Jeremy Waldron writes of a right-bearer as “one who is…vigorously conscious of what she is entitled to demand of others.”Footnote ⁶ And to give just one more example, Judith Thomson observes that “to assert a right is to demand its object.”Footnote ⁷ Picking up on what seems to me to be the appropriate understanding of the connection between rights and demands, I shall take the following further equivalence as read:

v. Y has the standing to demand of X that X do A.

I should make clear how I think “standing” should be understood in this context.Footnote ⁸ To have the standing to demand an action, in the relevant sense, is to have the relevant form of authority. Thus, having the standing to do something in some context is to be distinguished from being justified in doing it in that context.

For example, suppose Jack has the standing to demand a certain action of Jill, because she has promised him that she will do it. Performing that action, however, will cause her much pain. All else being equal, it may be that Jack ought not to demand that action of Jill, irrespective of his standing to do so. In other words, he has the authority to demand the action, although he would not be justified in doing so.

There are, I take it, many situations in which one should not make a demand in spite of one’s standing to make it. Indeed, I assume that, generally speaking, it will be morally, and quite likely prudentially, better to use gentler methods than demands—or their after-the-fact counterparts, rebukes—when gentler methods are likely to succeed. So one might ask, “Will you be making dinner soon?” or “Did you forget—you were going to return that book today?” rather than demanding that dinner be made, or the book be returned that day, even though one has the standing to make these demands.

2.7. Recapitulation: The equivalences posited. The initial question rephrased

Before moving on, let me put together the full set of equivalent statements that I am taking as read for present purposes, irrespective of the fact that others may understand some of the relevant terms differently.

I start with those that describe the relationship in question from X’s point of view:

X would wrong Y by performing action A.

X has an obligation to Y not to perform A.

X owes Y his, X’s, abstention from performing A.

The following further equivalences, in contrast, take up Y’s point of view:

Y has a right against X to X’s abstention from performing A.

Y has the standing to demand of X that X not perform A.

The question with which I started this talk was as follows. Can I wrong someone in the state of nature? Given the equivalences just reviewed, it is now possible to rephrase the initial question in general terms as follows: Can I possess a demand-right in the state of nature?

2.8. Hart’s question

Can I possess a demand-right in the state of nature? The question calls to mind the title of a famous article by H. L. A. Hart, “Are There Any Natural Rights?” (Reference Hart1955). Indeed, there is reason to see it as Hart’s question, appropriately construed. Let me explain.

For Hart, a natural right has roughly the following two properties. First, it is a right that every mature human being has against every other such being. Second, it has not been “created or conferred” by one or more human beings. In contrast, it exists “naturally.”

Primary examples, for Hart, of rights that are “created or conferred” by one or more human beings, and hence primary examples of nonnatural rights, are the rights of those who make agreements and promises. I take the rights most closely associated with agreements and promises to be demand-rights. In what follows, I shall take Hart to be questioning precisely whether there are any natural demand-rights.

Before turning to that question, it will be helpful to consider the nonnatural demand-rights of the parties to agreements. That is in part because the two main arguments for natural rights that I shall examine respond to the question: how are the nonnatural demand-rights of agreement possible?

3.1. The demand-rights we accrue from agreements

It would generally be acknowledged that if Max and Julia have agreed to meet at the Coffee Bean at four, then each has a demand-right against each to their presence at the Coffee Bean at four.

Should one add any provisos here? For instance, should one add the assumption that Max did not coerce Julia into making this agreement? I think not. For suppose Max had coerced Julia into making this agreement with him. And suppose that Julia is about to default on the agreement. Surely—by virtue of their agreement—Max has the standing to demand of Julia that she does not so default, even if, all things considered, he should not exercise this standing. Equivalently, surely Julia is obligated to Max, in the sense at issue, to conform to the agreement—which does not mean that she is morally required to keep to the agreement, all things considered. That she was coerced may result in her freedom from any such a moral requirement.

Similar things may be said of an agreement requiring morally impermissible actions of one or more participants. I take it that if Shelly and Paul have agreed that, among other things, she will perform some heinous act, then, all else being equal, she is morally required not to keep to the agreement, given its content. I take it that Paul, meanwhile, retains the standing to demand that she keep to it—a standing which he should not exercise, all things considered. For further discussion see Gilbert (Reference Gilbert2023).

I should emphasize that in talking about the standing to demand an action I am not, as I understand it, talking in the moral mode. I can, then, allow both that, as promisee, Max has the standing to demand performance, and that, as a moral matter, he ought not to exercise this standing. That he received a promise is all that is needed for him to have the standing to demand performance, irrespective of the context and content of the promise.

Thus, we do best to think of such standing, simpliciter, as a power that is neither a legal nor moral power—granting that “moral” does not merely mean “nonlegal.”

3.2. A joint commitment account of agreements

I have argued elsewhere for an account of agreements that explains their provision of nonnatural demand-rights to the parties.Footnote ⁹ The account runs roughly as follows:

For those unfamiliar with joint commitment in my technical sense, I should say something about it here.Footnote ¹⁰

First, the kind of commitment involved is normative rather than psychological. If one fails to abide by such a commitment, one acts in error, all else being equal. This error is not a specifically moral error. It might be referred to simply as an error in action.

Second, a joint commitment is a commitment of the will. A personal commitment—such as created by a personal decision—is established by virtue of the exercise of just one will.Footnote ¹¹ A joint commitment—a commitment of the parties as one— is established by virtue of the exercise of two or more wills.

More fully: in the basic case, on which I shall focus here, two or more people have jointly committed themselves in some way if and only if, as is common knowledge among them, each has expressed to the other(s) their readiness for the establishment of the joint commitment in question.Footnote ¹² At this point, all equal, each party ought to act in conformity to the commitment.

Note that “each has expressed to the other(s)” is to be construed broadly: the parties do not need to be face-to-face. As to the phrase “as a body” in the locution “jointly committed to endorse as a body a certain plan,” I understand it to mean, roughly, that the individual parties are to act as would the representatives of a single individual who has the plan in question.

I take it that personal inclinations, desires, and interests, as such, are trumped by a joint commitment, as by a personal one. Thus, one acts in error if one fails to conform to the commitment just because that better suits one’s inclinations, for instance. If, however, it would be morally wrong to conform to the commitment, all things considered, one should not conform to it.

A nonbasic joint commitment depends on a basic joint commitment, such as a joint commitment to conform as a body to whatever rules of behavior a particular person lays down under certain conditions. Given this particular basic commitment, the parties will accrue a nonbasic joint commitment if and when the person in question lays down a rule of behavior under the conditions in question. A special feature of nonbasic commitments, then, is that some of the parties to them may not know they exist.

3.3. Agreements, joint commitment, and the standing to demand

I take it that if anyone has the standing to demand an action of another person, the parties to a given joint commitment have the standing to demand of each of their fellows that they conform to it. To see this, suppose that Sophie and Josh are jointly committed to espouse as a body a certain plan. If Josh questions Sophie as to her standing to demand conformity of him, she can appeal to the jointness of their commitment. She can appeal, in particular, to the fact that both she and Josh, by virtue of their several expressions, imposed it upon them both. This puts her in a position to “call him to order,” just as she can call herself to order if she appears to be failing to conform to a standing decision she has made. Josh, of course, is in the same position in relation to Sophie.Footnote ¹³

The proposed joint commitment account of agreements, then, implies that the parties to every agreement have nonnatural demand-rights to each other’s conformity to their agreement. If for no other reason, I take the account to be plausible, and will assume its accuracy here.

4.1. Transcendental arguments

Prominent theorists have proposed that if we allow that agreements and promises ground nonnatural demand-rights, as we generally do, then we must allow that there are natural demand-rights. Thus, they have proposed what are known as transcendental arguments for the existence of natural demand-rights. In this case, a transcendental argument is, roughly, an argument to the effect that the existence of natural demand-rights is a condition of the possibility of something we already know to exist, the nonnatural demand-rights of agreements and promises. The theorists I have in mind are H. L. A. Hart, and Stephen Darwall. I now discuss the arguments of each in turn.

4.2. Hart

H. L. A. Hart proposed a transcendental argument for the existence of natural demand-rights in his classic article “Are There Any Natural Rights?”Footnote ¹⁴ This argument has been criticized as failing to reach its target—a demonstration that there is at least one natural right—and his own opinion of it, post-publication, is unclear.Footnote ¹⁵

My own interpretation of the argument is somewhat different from those with which I am familiar. I start, therefore, by briefly explaining that interpretation here, going on to explain the problem with it on that interpretation.Footnote ¹⁶

Hart notes, congenially, that when we make agreements and the like we bring it about that each party has the standing to demand conforming action of the other. In this way, then, each party is in a position authoritatively to “interfere with the other’s freedom of choice,” putting pressure on them to act in one way rather than another. This, he suggests, implies the following: absent agreements and the like, each person has a demand-right against every other to that other’s noninterference with his choices. Such noninterference would include not demanding any particular form of behavior.

If correct, this conclusion would be important not only in itself but because, in Hart’s view, and perhaps truly, one person’s coercing another to do or abstain from doing something is only justified if the coercer has a demand-right to the action or abstention in question.

Hart is wrong, however, about the implications of the fact that, when we make agreements and the like, we bring it about that each party has the standing to demand conforming action of the other. It does not imply that each of the parties had the demand-right at issue prior to his entry into the agreement or other such relationship. That is, it does not imply that each of the parties started out with a demand-right against the other to that other’s noninterference with his choices. Nor does it imply that either party had any other prior demand-rights.

Rather, the implication is that—prior to making appropriate agreements and the like—each lacks the standing to make the relevant demands on others and in that way interfere with their freedom. In other words, each lacks the pertinent demand-rights.

In the language of rights theory, slightly amended, each has an immunity from others’ authoritative demands—but has no relevant demand-right against them.

More succinctly, A’s lack of the standing to demand some action of B, is not equivalent to B’s having the standing to demand any action, including the refraining from action, of A.

There is no argument here, then, for the existence of natural demand-rights.

4.3. Transcendental arguments (2): Darwall

In The Second-Person Standpoint Stephen Darwall offers a transcendental argument of his own, one that also appeals to agreements. His argument is couched in terms of directed or, as he calls them, bipolar obligations.

Darwall argues that those who make everyday agreements could not obligate themselves to one another to act as agreed were they not “already obligated to one another…” as “free and equal rational persons.”Footnote ¹⁷ I think Darwall understands what it is to be obligated to another person along the lines sketched here. Be that as it may, I shall consider his argument in light of that understanding.

In what appears to be an explanation of the point that agreement-makers are already obligated to each other, Darwall appeals to an analogy. He says:

The pertinent problem here is that the point following “so also” appears to concern not prior obligations of the relevant parties to each other—as was expected—but rather a prior “standing to obligate” one another.

At this point, it is worth pausing for a moment to consider the phrase “standing to….” where the blank is filled by a verb.

4.4. Senses of “standing”

I have found it natural to use the term “standing” in the phrase “standing to demand,” when “demand” is taken in an important, narrow sense of the term. As noted, I take standing, in that sense, to be a matter of authority.

That said, it is clear that some other uses of the term “standing” that have currency in moral philosophy, do not fit this mold.Footnote ¹⁹ In the case of Darwall’s discussion, it seems that the most that is true is that agreement-makers have the prior standing, in the sense of capacity, together to obligate one another as they do when an agreement is made. But that capacity is not clearly a matter of authority.

It seems, then, that Darwall sets out to argue for agreement-makers’ prior standing in the sense of authority to make demands of one another, the equivalent of supposed obligations they have to each other. The only kind of prior standing that is apparent in the situation he describes, however, is standing in the sense of capacity—the capacity in particular to obligate one another by making an agreement. This is not the equivalent of any obligation of each to each.

4.5. Commanding

Darwall refers to God’s commands, and it is worth briefly considering the standing—in the sense of authority—to command someone to do something, outside the theological context.

One might think that, in paradigm cases of commanding, if A has the standing to command B to do X, say, then B is already obligated to A to perform any action within a certain range, a range within which X falls. For instance, B may already be obligated to do anything morally permissible that A says that B is to do.

How might this particular directed obligation have come about? One way, clearly, is through an agreement, explicit or tacit, with the appropriate content. I am not sure that there any significantly different ways.Footnote ²⁰

Suppose, then, that in the paradigm case A cannot command B to do X unless B is already obligated to A in the way just indicated. This does not seem to imply anything about the preconditions of agreement-making. In particular, it has no tendency to show that those who make agreements have any natural directed obligations—or demand-rights against each other.

4.6. An important feature of some typical agreements

I submit, then, that in order to have the standing in the sense of capacity to make agreements with one another, A and B need not have any natural obligations to each other, in the sense of “obligations to each other” at issue here. Ergo, they need not have the natural standing—in the sense of authority—to demand anything of each other.

That said, it is worth noting the following. In the standard, face-to-face case of agreement-making some important nonnatural directed obligations will have been established between the parties prior to—or at least contemporaneously with—the making of their agreement.Footnote ²¹

What I have in mind is this. The parties will tacitly have indicated to one another their readiness jointly to commit to acknowledging, as a body, their co-presence. In short, to use an overworked phrase in a specific sense, they will have mutually recognized each other. Further, they will have established some very basic nonnatural directed obligations between them, including a general obligation of each to each not to undermine either one’s capacity to conform to the joint commitment.Footnote ²²

As a result, conformity to many fundamental moral requirements will—in effect—be enjoined upon them as the direct result of their commitment. And they will have the standing to demand actions that accord with those requirements, in the guise of compliance to the joint commitment itself.

This thought about mutual recognition is one reason that I began this discussion with an example in which the parties—Anna and Lena—did not encounter one another literally face-to-face. They were, as I put it, total strangers. Total strangers, I surmise, cannot wrong one another—on the construal of wronging adopted here—though they can act wrongly with respect to one another. In other words, you cannot wrong someone—on that construal—when you are in the state of nature with respect to them.

4.7. The variety of joint commitments

As I have argued elsewhere, there is reason to see many central social contexts beyond agreements and mutual recognition as involving joint commitments, and the accompanying demand-rights.Footnote ²³ For instance, there is a social rule of a particularly consequential type, when the members of a population are jointly committed to uphold, as a body, a certain rule governing their behavior.Footnote ²⁴ This gives the parties demand-rights against one another to conformity to the rule in question, and the corresponding standing to rebuke one another for nonconformity.

Clearly, this feature of social rules of the type in question is of great practical significance. If one understands that the other members of the population in question are in a position to demand one’s compliance, and to rebuke one for noncompliance, this gives one a particularly strong motivation to comply.

As the example of social rules suggests, and as it is important to emphasize, the parties to a given joint commitment need not know each other personally, or even know of each other as individuals. They may know, for instance, that those who live on this island—whoever exactly they are—have expressed their readiness jointly to commit with others in that situation to uphold, as a body, the rule in question.

Further consequential social phenomena constituted by joint commitments include collective goals, beliefs, and values. In each case, the parties to the commitment have demand-rights to action in conformity to it.

4.8. Two further arguments for natural demand-rights that fail

Before concluding, I briefly discuss two further arguments that might be put forward for the existence of natural demand-rights, arguments I take not to support their conclusion.

Someone might propose that if my interests suffice to ground a moral requirement or nondirected obligation of yours, then I have the standing to demand that you fulfill that obligation.Footnote ²⁵ Supposing for present purposes that the obligation involved here is itself natural, it is hard to see how it, or the interests that suffice to ground it, also suffice to ground the standing, in me, to demand compliance. I propose that they do not.

Let me present just one example to support this proposal. Suppose my interest in staying alive suffices to grounds a moral obligation for you, a stranger, to save me from drowning, it being possible for you to do so without risking significant harm to yourself. It is by no means clear that I have a demand-right that you save me in this case, or, correspondingly, that you are obligated to me to do so, in the sense at issue here. Indeed, in calling to you for help, I am likely to utter a plea rather than a demand.

The same point can be made if your moral obligation to save me is grounded in my value as a person.Footnote ²⁶ Indeed, it is unclear whether any context other than an applicable joint commitment would grant me the standing to demand that you save me from drowning, irrespective of whether or not you have a moral obligation to do so.