I. WELLMAN'S POSITION AND ARGUMENTS

In a way that may shock those of us who have been taking procedural rights for granted, Wellman succeeds in accommodating much of what we want to say without accepting procedural rights. First, Wellman agrees, of course, that there may be, in many circumstances, perfectly good instrumental reasons to institutionally protect procedural rights (e.g., 287–288). In some circumstances, for instance, guaranteeing procedural rights may be a good—perhaps the best feasible—way of protecting substantive rights. But perhaps in some circumstances there are better ways of protecting substantive rights, and a system that fails to protect purported procedural rights but does an equally good job in other respects is not morally worse for this failure. Second, and relatedly, once the legal system recognizes procedural rights (as it may be a good idea to do, for the instrumental reasons just sketched) then, of course, any particular person is wronged if they are not given what the law promises all (288). Thus, Wellman only denies pre-institutional procedural rights, that is, procedural rights whose existence is not already grounded in institutional arrangements securing (or indeed, creating) such rights. Third, even if the person deciding on the lottery (as a cheaper way of administering criminal justice) is not violating any rights or wronging the person who is so “convicted” (when that person is, by sheer luck, the actual perpetrator), still the person making this decision may very well be blameworthy or culpable for making it (296), for they don't know—how can they?—that the lottery loser will be the perpetrator, and so they are willing to accept an intolerably high risk of a violation of substantive rights (that is, of punishing the innocent).

You may think that these claims are so successful in accommodating our intuitions about procedural rights that it's no longer clear what the controversy is. After all, consistently with his denial of procedural rights Wellman can insist with the rest of us that given our institutional arrangements, people—even the guilty—have rights to their day in court, and he can join the rest of us in criticizing those who deprive them of such rights. It is almost as if the only thing still in controversy is the terminology with which to word such criticism (is it that they violated pre-institutional rights, or merely that they frustrated expectations formed by the institutional setup itself, or perhaps that they are blameworthy for so acting even though they haven't violated any relevant procedural right?). But I don't think that this is so—more than that is at stake. Among other things, what may be at stake—at least to an extent—is the plausibility of Wellman's rights-forfeiture theory of criminal punishment,Footnote ² to which I return (very briefly) shortly. Other implications will be noted as we proceed, and it will emerge that matters of wider significance are at stake. Or so I hope.

Why, then, does Wellman reject more robust procedural rights? Some of Wellman's points target specific examples of purported procedural rights (see here his well-taken point (289) against a right not to be subjected to double jeopardy, a purported right that I find suspicious for other reasons as well). But Wellman's thesis is general—not that this or that procedural right doesn't exist, but that none do—and so I want to focus on lines of thought that can support this general claim.

One kind of reason Wellman offers against procedural rights in general has to do with the way in which this rejection coheres, if Wellman is right, with his rights-forfeiture justification of criminal punishment. Such theories claim—to a first approximation—that while we all have a right not to be intentionally harmed (for instance, in the ways that constitute in our society criminal punishment), the criminal implicitly forfeits this right when committing the crime. If so, punishing him no longer violates his relevant rights, regardless of the procedure in which it was brought about. Now, while it is of course legitimate to draw on the (purported?) plausibility of the forfeiture theory to defend the denial of procedural rights, this would not be a dialectically powerful move, for two reasons. First, it is vulnerable to the claim that the right version of a forfeiture theory does not commit one to the rejection of procedural rights (perhaps the criminal only forfeits his substantive rights, not his procedural ones, if such exist?Footnote ³), a claim that may be partly supported by the very intuitive implausibility of the denial of procedural rights. And second, and more obviously, such a move is vulnerable to the many criticisms of forfeiture theory.Footnote ⁴ Assuming Wellman's arguments are meant to appeal even to those of us who are not yet convinced by his forfeiture theory, then, we can set this dialectical move aside for our purposes here.

Another important motivation for the denial of procedural rights seems to be Wellman's healthy skepticism about the arguments in the literature for such rights, perhaps mostly by Nozick and Duff. I find much of his discussion here convincing,Footnote ⁵ and so will not assume anything along the lines of those defenses of procedural rights.Footnote ⁶

A central line of thought for Wellman seems to be an objectivist view about ought, duties, and rights. According to such a view, and again perhaps roughly, what determines who ought to do what is the objective state of affairs in the world, not the agent's beliefs about that state of affairs. Such objectivism stays in the background in the 2014 paper (though see 297), but it comes to the front in the more recent book (2017), and one can see why: if we assume subjectivism, then what determines whether, say, the punished's rights are violated is not whether or not he's guilty, but whether the punisher (or the court, or the state) believes—perhaps reasonably—that he is. And then, of course, choosing the person to be punished by drawing lots violates his rights, even if he is guilty (for the punisher cannot reasonably believe that he is). I agree, then, that subjectivism about ought (and duties and rights) defeats Wellman's thesis, so it's no wonder that he's an objectivist. But this doesn't mean that objectivism entails Wellman's thesis. It seems to me that objectivism—silent as it is on the question of which are the duties and rights that exist objectively (that is, based on the objective state of affairs rather than on the relevant agent's beliefs)—is neutral with regard to Wellman's denial of procedural rights.Footnote ⁷ All objectivism says are things like that if there is a general right to a fair trial, then whether it arises in a specific case depends on the objective state of affairs (say, whether someone is likely to be seriously harmed as a result of the trial) and not on the relevant beliefs (say, the state official's beliefs about whether someone is likely to be harmed). And thus understood, objectivism does not lend positive support to the denial of procedural rights (though subjectivism would have refuted it).Footnote ⁸ Let us then assume, with Wellman, some plausible version of objectivism, in order to keep the denial of procedural rights in the game at all, but without pretending that objectivism supports this thesis.Footnote ⁹

With the forfeiture theory assumed away, objectivism granted (for the sake of argument) but rendered irrelevant, and the rejection of arguments for procedural rights in the literature conceded, is there a positive case for the thesis that there are no procedural rights in Wellman's paper? I think that what remains is mostly the fact that—if he's right—we can do perfectly well without procedural rights, together with the intuition that if you commit a serious crime and then receive a proportional punishment, you really are in no (pre-institutional) position to complain (“My rights have been violated!”) about the procedure that led to this punishment, even in the extreme case in which your name was drawn randomly from a long list, so that you never received a fair trial.

II. THE MORAL CASE

Wellman only discusses procedural rights in the legal context. That is, although his denial of procedural rights is pre-institutional in the sense above (that is, he only claims that such rights do not have an institution-independent existence), in another sense they are still institutional—they are such things as a right to a fair trial. I want to focus—for this and the next two sections—on entirely pre- (or non-) institutional contexts. So, think about the following example.

Someone at work has apparently been spreading malicious rumors about you. Not something that leads to criminal liability or even liability in torts, but certainly a moral wrong, a moral wrong of the kind to which resentment is an appropriate response, as are perhaps some more external responses, such as not inviting the relevant person to have lunch with you at work. But you don't know who it was. Suppose you just randomly pick one of your many colleagues—call him David—and blame him, resent him, stop inviting him to lunch. It seems to me clear that you're wronging David by picking him without further evidence, perhaps by not letting him explain or deny or both, indeed, by resenting him and by excluding him from those lunches. This intuition survives (though challenged in interesting ways to which I return) even if, as it happens, David is the one who has been spreading these rumors.

Note that in this example there's nothing institutional at all. It's not about a legal right or some such. It's about the conditions that make such things as resentment appropriate. And yet, there seems to be a clear intuition about the presence of what in essence is a procedural right—not to be subjected to resentment without sufficient evidence, perhaps, or without a fair consideration, or some such.

Wellman may just reject this intuition, and because so far I've really just asserted it, it would be nice to offer further support for it (though, for the record, if you share this intuition—that even in an entirely non-institutional context such as this one, and even if David is the one who's been spreading those rumors, you're wronging him by blaming him without sufficient evidence—that is already a weighty reason to affirm procedural rights). I want to suggest two thought experiments that support this claim.

Suppose I find out about your resenting David, without yet knowing who it is who has been spreading the rumors about you. I am happy to already at this stage blame you, and indeed pronounce that you're acting wrongly. Who does such a thing—picking arbitrarily the person to resent? And I am willing—already at this stage—to claim not just that you're blameworthy for so acting, and not just that you're acting wrongly here, but that you're wronging David, that you're violating a duty to David, that you owe it to him not to do so. It doesn't feel like I'm missing any relevant information (“But wait, is he the one who did it?”), nor do I feel compelled to take back all these judgments once the surprising information comes in, namely, that by fluke the one you arbitrarily resent is the one who is to blame. To the extent that you feel the weight of these intuitive judgments, you have a reason to side with procedural rights (at least in this case).

The second thought experiment I want to offer comes from the literature on objectivism.Footnote ¹⁰ One of the considerations offered in favor of objectivism is the thought about what a fully informed advisor would do. You're a physician, trying to decide whether to administer treatment A or B. The evidence seems to indicate that A has a better chance of success here, and this is what you believe. But you're not sure. So you ask the ideal, fully informed observer “Which treatment ought I to administer?” If she knows that in this case what will best help the patient is treatment B, this is what she should advise you to do. She most certainly shouldn't answer “You ought to administer A” with the “ought” understood subjectively, relativized to your beliefs or to the evidence available to you. And in general, it seems that an ideal advisor should respond to “What ought I to do?” questions understood as involving an objective ought.Footnote ¹¹ OK, then, what if you ask the ideal advisor, “Ought I to resent David?” The case is tricky, I think, because the question may be understood in more than one way. One way it may be understood is as equivalent in the context to the question “Is David the one who has been bad-mouthing me?” To this question, the advisor should answer with a simple “yes,” of course. But there's another way of understanding the question, something like “Ought I to resent David without sufficient evidence?” To this question, it seems to me, the advisor should answer in the negative.Footnote ¹² If so, this is an indication that one of the relevant dutiesFootnote ¹³ here is procedural rather than substantive.

There is considerable weight, then, to intuitions about procedural rights even in entirely non-institutional settings. So it's not true that we can get all we want here without procedural rights. Procedural rights are one of the things we want here.

III. WHO IS ENTITLED TO COMPLAIN?

But, you may think, surely if David is the one who bad-mouthed you at work, and if you resent him for that, then he's not entitled to complain, however it is that you got to the point of resenting him rather than others.

This—that in such a case David is not entitled to complain—is a fairly robust intuition, so I want to accommodate it. But we can do so without denying that his procedural rights have been violated here.

First, it is clearly right that he's not entitled to complain in the same way that someone else, who did not bad-mouth you, would have been entitled to complain had you resented her. But this says little. For we know that there's a substantive right in play—roughly, not to be resented and excluded from lunches without having wronged the relevant person—that is violated in her case, but not in David's.

Second, I think we should distinguish—here as elsewhere—between the existence of a right, and the appropriateness of a specific complaint about its violation. Perhaps, for instance, if I routinely violate people's free-speech-related rights, I am not in a position to complain when someone restricts my own speech. Even if this is so, this does not entail that such a complaint—a complaint I am not in a position to issue—is somehow mistaken.Footnote ¹⁴ It certainly doesn't entail that if I say, “You ought not to restrict my speech in this way,” I will be speaking falsely. More needs to be said here, of course, but the basic point is simple enough, and it's especially easy to appreciate if we keep the law in mind. For in legal contexts there are many norms—norms of standing, say, or of limitations, or of some kinds of estoppel—that only apply to the appropriateness of putting forward a claim, independently of the appropriateness of its content. The intuition that David is in no position to complain, then, can be accommodated by such procedural norms, consistently with the content of such a complaint being justified. When you bad-mouth someone, and they resent you for it, you don't get to complain because of procedural or evidential problems in what led them to resent you. Still, such procedural or evidential problems are indeed problems, and so the content of such a complaint would be true. This is evidenced, for instance, by the perfect appropriateness of a third party complaining about this: “Yeah, David wronged you, so he's in no position to complain about your awful procedure of picking whom to blame. But I am. It is a horrible procedure, one that you ought never to have employed!”

IV. RIGHTS, DUTIES, AND DIRECTIONALITY

But now a different point seems to be relevant (perhaps one that was there in the background all along). We need to distinguish between the question whether you've acted wrongly when you arbitrarily picked David for resentment, and whether you've wronged him; or, perhaps equivalently, whether you've merely violated a duty that applies to you, or violated a duty owed to him, that is, violated a right of his.Footnote ¹⁵ This is an important distinction in general, and it's relevant specifically here because you may think that the appropriateness of David complaining may be divorced in the way suggested above from the question whether a wrong (somehow involving David) has occurred, but is not divorced from the question whether he was wronged, whether a duty owed to him was violated, whether, indeed, a right of his has been violated.Footnote ¹⁶ When it comes to these further questions, you may think, the inappropriateness complaint is decisive.

And so, at this point the possibility emerges that there may be procedural duties, even if there are no procedural rights. Perhaps, in other words, you ought not to pick whom you resent arbitrarily, but you don't owe this duty to David (who, after all, did spread these rumors about you), and so are not violating any of his rights when you do resent him. Perhaps the state has a duty to grant defendants—even guilty ones—a fair trial, but perhaps it's not a duty the state owes to the guilty, so that when the state violates this procedural duty, it doesn't thereby violate the guilty's procedural rights, perhaps because there are no such rights.Footnote ¹⁷

I want to make two points about this possibility. The first is that for many purposes, it's close enough to an acknowledgment of procedural rights, and the second is that there's reason to think it doesn't give us all that we want after all.

First, then: according to the suggestion here, people do not have—in my example, or perhaps more generally—pre-institutional procedural rights. But there are pre-institutional procedural norms that govern how they (even those, like the guilty, whose substantive rights are presumably not violated) ought to be treated, and agents (including institutions) have procedural duties vis-à-vis the right way to treat others (including the guilty). According to this suggestion, for instance, if you're resenting David and exclude him from those lunches without sufficient evidence that he's the one who's been bad-mouthing you, you're acting wrongly, but you're not wronging him. Now, this gets very close to vindicating my intuitions about such things. Perhaps this is so partly because I don't think that rights are as morally central and important—and certainly not as basic—as norms and reasons and perhaps duties are.Footnote ¹⁸ If there are genuinely moral, pre-institutional procedural norms and duties, I find the further claim that there are no procedural rights much less threatening (and much less interesting too).Footnote ¹⁹

Second, even armed with procedural duties and norms, the denial of procedural rights still seems at least somewhat counterintuitive. Recall my lead example. It seems that when you arbitrarily pick David and then resent him, you're not just acting wrongly vis-à-vis David. You're also wronging David. Perhaps you're not violating his right to be included in those lunches or even not to be resented, because perhaps someone who did in fact bad-mouth you no longer has these rights (perhaps because he forfeited them). But the thought that you're not even violating his right not to be arbitrarily picked for this treatment remains as counterintuitive as it's always been. And it remains as counterintuitive even if he is in no position to protest. And given the acceptance of procedural duties, this should really be enough. For what is to be theoretically gained from a denial of procedural rights, once procedural duties are recognized (and once intuitions about who is entitled to complain about what have been explained procedurally, as above)?

V. BACK TO THE LAW

The last three sections have been a discussion of the non-legal, moral case. And as usual, we should not too quickly assume that what's right in a such a discussion—including, if I'm right, that David has a procedural right against being arbitrarily picked for resentment—applies to the law. So for instance, I fully agree with Wellman that many legal procedural rights are best understood as entirely institution-dependent. Still, I don't think that the moral case is irrelevant to the legal one. If the case for procedural rights in purely moral examples is sufficiently convincing, then this gives at least some reason to acknowledge such legal rights as well. At the very least, it shifts the burden to the shoulders of those arguing against them—given that you would be wronging David by arbitrarily picking him for resentment, what reason do we have to deny that the state would be wronging himFootnote ²⁰ by arbitrarily picking him for punishment? Of course, other considerations may also apply in the legal case, perhaps chief among them instrumental considerations.Footnote ²¹ But the moral case constitutes at least defeasible support for the legal case.

A convincing case against procedural duties and rights—in the purely moral context as well as in the more institutional legal context—remains to be made.

VI. THE PROCEDURAL LAW OF MORALITY: A RESEARCH PROJECT

The question whether we have moral procedural rights—in law or morality—is, of course, interesting on its own, as indeed is Wellman's paper. But I want to conclude by placing it in a wider, to a large extent unexplored, context.

Many procedural questions that we routinely ask about the law have almost undiscussed parallels in “cleaner” moral cases. In this paper we've seen two such examples: the main example of a right to a fair trial (or some such), and the moral counterpart of a right not to be resented without sufficient evidence (and perhaps, sometimes, an opportunity to explain); and also the general distinction between a claim being substantively true, and it being appropriate to raise it in a given setting—a distinction that is important, well-known, and relatively clear in the law, but that is underexplored in morality. But there are many other examples worth pursuing—and ones I indeed hope to pursue. What, for instance, is the evidence law for morality? Is there a moral analogue of legally inadmissible evidence, that is, evidence that may have probative value but that it would still be wrong to base resentment on? Resentment (and other moral responses) should be based on evidence, but can anything useful and productive be said about the relevant burden of proof for such responses? And is there anything like a moral statute of limitations? How about moral analogues of doctrines of estoppel, of the clean hands doctrine, of standing,Footnote ²² and so on?

My insistence on the existence of procedural (moral) rights—in morality as well as in law—is a move within this underexplored territory of the procedural law of morality, a territory that seems to me well worth exploring.