Rights & Right-Holding: A Philosophical Investigation. An Interview with Professor Matthew Kramer ~Lindagine.it

                                                                                                                  

Rights & Right-Holding: A Philosophical Investigation. An Interview with Professor Matthew Kramer

 
ABSTRACT:
This interview, hosted by Linda Cianci (Lindagine), with Professor Matthew Kramer, one of the most esteemed legal philosophers and a full professor at Cambridge University, delves into his latest academic work, Rights and Right-Holding: A Philosophical Investigation. Several critical themes are discussed, including the relationship between law and morality, the nature of rights, and the challenges posed by emerging technologies, such as artificial intelligence. A key focus of the interview is the distinction between the interest theory and the will theory, particularly in relation to the protection of vulnerable individuals or groups. Professor Kramer defends the interest theory against objections raised by proponents of the will theory. The conversation also highlights the importance of clarifying different types of universal quantification in Kramer's work and its significance for both legal practitioners and scholars.
 
KEYWORDS:
Legal philosophy, law and morality, rights, artificial intelligence, legal frameworks, Hofeld, jurisprudence, Interest and Will Theory.

INFO:
Full audio interview on "The Lindagine Podcast" 

INTERVIEW:

Interviewer -Linda Cianci (Lindagine): Professor Kramer, one of the key questions we often grapple with in legal philosophy is the nature and structure or rights, who can claim them. You offer in your new academic work, Rights and Right-Holding: A Philosophical Investigation a new perspective on this matter, especially in relation to rights-holders. May you give us a general picture of it and might you tell us what was your driving need that inspired you the writing of the book and if it embodies a continuation of some of your old thoughts or it means to you a radical change on your academic perspective that set off a new beginning?

Prof. Matthew Kramer: Thank You for asking. Let me explain step by step. Rights and Right-Holding is a book that covers 3 main areas: moral philosophy, political philosophy, and legal philosophy. It was published in August of this year and the book jacket is a scene from Shakespeare's “Much ado about nothing”. What impelled me to write it was the number of written essays on the topic over the years, from really 1997 onward. In 1997, a book of mine called John Locke and the Origins of Private Property was published. In that book, I included a discussion of the analytical framework introduced by the American legal theorist , Wesley Hohfeld in the early 20th century, and then a year later, in 1998, I published a long essay in a co-authored book entitled A Debate Over Rights, co-authored with Nigel Simmons and Hillel Steiner. Each of us these 3 co-authors contributed a long essay, and so together those 3 essays made up the book. The book concerned two topics, rights and right holding. In there, I included a much more extensive investigation of the analysis devised by Hofeld and, for the first time, I presented a discussion of the debates between so-called interest theorists and will theorists over the nature of right holding, defending the first one. That is what it means to hold a right, in particular, what it is to hold a claim right. That is the sort of entitlement that is correlative to a duty. Broadly speaking, my theoretical allegiances have remained constant in times, I’ve always been and continued to be a defender and an exponent of the Hofeldian analysis of legal and moral positions. But, nonetheless, Rights and Right-Holding includes many aspects of the topics that I'm discussing which I've never explored before, and, indeed, which nobody has tackled before.
 
Interviewer -Linda Cianci (Lindagine): That’s a fascinating point. Building on this, May you discuss, more in details, for our readers, what the book is about?

Prof. Matthew Kramer: Certainly. There are five chapters in the book and there's quite a short introductory chapter, though it's an important one too. Let me focus on the second chapter, that is after the introductory chapter. Specifically, there is an exposition of the Hofeldian analytical Framework, but it goes into far more detail. I think is philosophically much more sophisticated than anything that I've written previously on the matter. The third chapter defends a certain aspect of the Hofeldian theoretical framework, and that is the axiomatic insistence in that framework on the correlativity of claim rights and duties. Chapter four of the book, instead, covers the debates between interest theorists and will theorists about the nature of the holding of rights, specifically about the nature of the holding of claim rights; while chapters five addresses a matter which I have explored in an earlier essay published in 2001. I considered whether not only human adults, but also babies, infants, people suffering from dementia, dead people, future generations, non-human animals, and entities or the comatose people, can hold rights.
 
Interviewer -Linda Cianci (Lindagine): Thank you for your insightful response, Matthew. You mentioned the concept of “correlativity of claim rights and duties”, while exposing the third chapter. Is there a specific meaning do you assign to this term?"

Prof. Matthew Kramer: Thank you for the question, Linda. Absolutely. I use the term “correlativity” with a specific intention. This is an aspect of the Hofeldian framework. I mean a biconditional entailment: every claim-right entails the existence of at least one duty and every duty entails the existence of at least one claim-right with the same content so that the parties are the same invertedly, and so it is the content of the claim-right and the content of the duty. The claim-right and the duty are correlative in the sense that each entails the other. Let me provide a more practical explanation: suppose John holds a claim-right against Mary to be paid 10 pounds by her on a certain date. The correlative of that claim-right would be Mary's duty to pay John 10 pounds on the specified date. This is rather mundane example of a claim-right and a duty that are correlative to each other. Each entails the existence of the other. Let me add also that this relationship between claim-rights and duties include more critical commentary than any other aspect of the Hofeldian analysis. I felt the need to devote a whole chapter to defending this insistence and I think that I've succeeded. I had started defending it back more than a quarter of a century ago, but I felt that I needed to add and revise what I had written then, incorporating all my new reflections, pretty straightforwardly, into Chapter 3 of this new book.

Interviewer -Linda Cianci (Lindagine): Thank you for the clear explanation, Matthew. It really helps clarify the complexities involved and provides with a more nuanced understanding of the topic at hand. You also mentioned two more theories in your book in relation to right-holding: the will theory and the interest theory. Have you developed a hybrid model that allows these two theories to coexist, or do you advocate for one over the other? Could you explain the reason why of your position?"

Prof. Matthew Kramer: This is a crucial question, thank you for asking. My own approach is not a hybrid approach. It is not a dispassionate or entirely impartial overview that I am a proponent of the interest theory of right-holding. In chapter four, indeed, I energetically mount critiques of the will theory of right-holding. As far as I'm concerned, the debates between interest theorists and will theorists are now at an end. I think the interest theory has conclusively triumphed, but I await the responses of will theorists. I imagine they won't agree with me on that point, because philosophical disagreements seldom come to an end, generally they ramble on and on. Anyway, there are notable legal philosophers and political philosophers who are seeking to develop hybrid theories, such as Basan and Mcbride. I assailed both their exposition, yet not in rights and right holding, for the reason that they are currently producing a book which has not yet appeared, so I wasn't able to grapple with them in rights and right-holding, but I have undertaken critiques of their approaches in some of my earlier essays on this matter. But, back to the core point. My own perspective on the matter is that of an interest theorist. In just one interview, I can't really even distill the gist of the interest theory, because it would require a great deal of elucidation. But the best approach might be simply to read the “distillation” of the interest theory which I do provide both in Chapter 3 and Chapter 4 of Rights and right holding, at page 101, where we can find the statement: "It is individually necessary and jointly sufficient for X to hold a claim-right that: (1) the duty correlative to the claim-right deontically and inherently protects some aspect of X's situation, which, on balance, is typically beneficial for a being like X; and (2) X is a member of the class of potential holders of claim-rights."

Interviewer -Linda Cianci (Lindagine): Thank you for the simple and punctual explanation, Matthew. Building on this, considering all the topics of your book, you’ve just said you fierily advocate the interest theory over the will theory. Might you explain us why the Interest Theory offers a more inclusive way of protecting vulnerable individuals or groups, such as children, animals or non-human entities that you analyse in your work? In what cases might the Will Theory fall short in this regard and why?"
 
Prof. Matthew Kramer: Well, you can see that what I’ve just mentioned, especially the second clause, it is clearly broaching the matters which I discuss in the final chapter of the book, concerning whether any being X, whether it is a human being, a non-human, an animal, a dead person, future generations of people, or any of these beings, can hold claim rights at all. This set of matters falls under the second clause, as a necessary condition for holding a claim-right is that the being in question must be a potential holder of claim-rights —that is, capable of holding claim-rights at all. If this necessary condition is not met, then there is no instance of a claim-right being held. However, the rest of this topic requires more elucidation than I can provide here. Suffice it to say, the core of the interest theory competes with the core of the will theory, as both theories seek to address the same fundamental question. They begin with the assumption that some form of legal or moral duty exists. For instance, to return to the earlier scenario I mentioned, imagine that in a particular jurisdiction—such as is the case in several American states—there is a legal duty imposed on women to refrain from seeking abortions. Similarly, there may be a corresponding legal duty imposed on doctors or other medical practitioners to abstain from performing abortions—whether all abortions or those under specific circumstances, such as beyond a certain stage of pregnancy. In seeking to determine who holds a claim-right correlative to a duty, we are asking whether the duty affects the situation of some being in a manner that is typically beneficial for that being. For instance, if we ask whether fetuses hold legal claim rights correlative to certain legal duties, we must first establish if fetuses can hold claim rights at all, as I argue they can. Although I generally support the pro-choice side of the abortion debate, I nonetheless argue that fetuses can hold claim rights. Specifically, there are legal and moral duties regarding how fetuses can permissibly be treated, and, given this, fetuses do hold claim rights. However, this conclusion is distinct from the conclusion that there should be specific legal duties concerning the well-being of fetuses. To answer who holds a claim right correlative to a particular legal duty, such as the duty not to abort fetuses, we must determine which beings are affected in ways that are typically beneficial for them, and whether fetuses, as beings capable of holding claim rights, fit this description. Under my interest theory, it follows that fetuses do hold claim rights, as not being aborted is typically beneficial for a being like a fetus. Thus, the duty not to abort fetuses correlates with claim rights held by fetuses. This fits within the framework of the interest theory of right-holding, which I propose. The theory posits that a being’s interests—various aspects of their situation that are typically beneficial—are inherently protected when they hold a claim right. By "inherently protected," I mean that compliance with the duty in question directly affects the well-being of these beings. This approach applies to all legal and moral duties, not just some, and provides a comprehensive framework for understanding claim rights. In contrast, will theorists, such as Nigel Simmons, Hillel Steiner, and H.L.A. Hart, focus on where legal powers of control over a duty are located. For will theorists, the determining factor is who holds the legal power to waive or enforce the duty, rather than considerations about what is beneficial for the beings involved. These legal powers are central to identifying who holds claim rights correlative to particular duties.
Though both the interest and will theorists address the same fundamental question—who holds the claim rights correlating to a particular legal duty—they arrive at very different answers due to their divergent views on what constitutes holding a claim right. My approach aligns with the interest theory, and I respond to objections from proponents of the will theory, defending the interest theory against claims that it is overly expansive, identifying too broad a range of claim-right holders and critiquing the will theory, arguing that it is almost eliminativist. By this, I mean that the will theory, when fully analyzed, leads to the conclusion that hardly any claim rights exist, a view which its proponents did not intend to establish. This conclusion should be troubling for will theorists, especially given their aim to clarify the nature of claim-right holding, particularly in private law. While the will theory is not entirely eliminativist, as I explain in Chapter four, it comes close to that position, which I believe is a significant weakness. I look forward to responses from will theorists, as, to my knowledge, none have yet addressed this objection. If no adequate response is forthcoming, I contend that the will theory is a dead letter—a relic of philosophical history no longer relevant as a viable theoretical option.

Interviewer -Linda Cianci (Lindagine): Thank you for your thorough response, Matthew. It offers much to reflect on, especially in the way it connects with broader issues. Let’s now shift the conversation, more specifically, to who can hold rights, to these potential holders of claim-rights, that you’ve just mentioned. Throughout your book, you adopt a rigorous analytical approach to discussing rights and rights-holding, yet the instances you’ve just discussed about seemed to be predominantly ethical. What is your perspective and position in relation to this matter?

Prof. Matthew Kramer: Thank you again for the question, Linda. This is another core point of the book. In the fifth chapter, I pondered, at some length, the range of the beings and types of beings, that can hold claim-rights at all, or indeed other Hofeldian entitlements. The questions are predominantly ethical and just partly analytical. My position on this matter stems from my background and works over the past 15 years. It is an evolution of mine, especially regarding that this perspective is absent in my past essays, such as those published in 1998 and 2001. This is precisely because that moral and political philosophy is of relatively recent vintage. In that respect, this is also one of the main reason why my approach is entirely new and different from what I've done and tackled before. It is a synopsis of the book.

Interviewer -Linda Cianci (Lindagine):
That’s a fascinating point. Thank you for sharing such precious details, Matthew. They can really nourish the curiosity of both professionals in the fields and a broader audience. Building on what you’ve just said about potential right-holders: “What changes do you foresee in the future, especially in relation to how we will define right-holders in the future? Regarding what you’ve just mentioned: “what is the most misunderstood aspects of rights, holding in contemporary legal field or moral theory?”.

Prof. Matthew Kramer: In addition to what I’ve just said and to respond to your questions, I would like to underscore one additional point on this matter. Although the fifth, so the final chapter of my 2024 book addresses ethical questions, it is crucial to distinguish, as I do at several junctures, between the ethical issues I am addressing and those I am not. The set of questions I engage with pertains to the status of certain beings as potential holders of claim rights—specifically, whether it is appropriate to ascribe claim rights to certain beings if they are integrally and inherently protected by legal or moral duties. For instance, in jurisdictions where fetuses are legally protected from abortions or from the ingestion of harmful substances, the question arises as to whether the legal duties imposed on individuals in such cases are correlated with claim rights held by fetuses. This is not a matter of debate, as I defend the thesis in Chapter 3 that every duty is correlated with at least one claim right. The central question in Chapter 5, therefore, is not whether the legal duties are correlated with claim rights, as that issue has already been resolved. Instead, the question is whether any of these claim rights are held by fetuses, which necessitates asking: Are fetuses capable of holding claim rights? This is not an analytical question in the strict sense, as it cannot merely be deduced from the logic of correlativity between claim rights and duties. While the logic of correlativity plays a role, it is insufficient for determining the status of fetuses as potential holders of claim rights. Addressing this issue requires the application of ethical reasoning, a form of reasoning I have engaged in for over fifteen years across several of my published works. Among these works, *Liberalism with Excellence* (2017) stands out as particularly significant, especially Chapter 6, where I begin to explicitly articulate a concept that I had previously developed implicitly in earlier publications: "Stoical Liberalism." This form of liberal democratic philosophy draws heavily from both ancient and modern Stoicism, including the works of Spinoza. I employ this philosophical framework to examine the status of fetuses and other beings as potential claim-right holders. However, it is essential to clarify that in Chapter five, I am not addressing whether fetuses currently hold specific moral or legal claim-rights against being treated in certain ways, such as being aborted. These questions are addressed in another work, Abortion and the Limits of Governance. In Rights and Right Holding, my primary focus is on whether fetuses or other beings are capable of holding claim rights at all, rather than on whether they should hold specific legal or moral claim rights. The ethical reasoning I engage in to address whether fetuses are capable of holding claim rights is distinct from the reasoning involved in determining whether they should hold specific legal or moral claim rights. It is thus imperative to differentiate between these distinct ethical questions. While questions concerning the moral and legal claim rights of beings such as fetuses or non-human animals may be of greater interest to the general public, there is also significant interest in whether these beings are capable of holding claim-rights in the first place. This question has been central to much litigation over the past few decades, particularly in cases where legal scholars and practitioners, notably at Harvard Law School, have sought to secure legal rights for non-human animals, such as apes. In these cases, the key issue is not solely whether certain legal duties should exist, but rather whether these duties are correlated with claim rights held by the animals. The status of non-human animals as potential claim-right holders has thus been a pivotal issue in much of the recent legal discourse. Consequently, the questions I address in Chapter 5 will be of significant interest not only to moral, political, and legal philosophers but also to a broader audience. Although non-philosophers may not necessarily grasp all the philosophical intricacies of the chapter, the fundamental questions I raise extend beyond the confines of academic philosophy and are of broad public interest.

Interviewer -Linda Cianci (Lindagine):
Thank you, Matthew, for providing great clarity on this issue. It’s precious the way you’ve broken down the key elements for us, and this will undoubtedly enrich the conversation. Let ask you a question for who is not a legal philosopher or just not a professionals in the field. "What are the enduring lessons from your book that you would like contemporary readers to take away from your work? Furthermore, can the concepts presented in Rights and Right-Holding be applied to our daily lives or future legal careers, and if so, how?"

Prof. Matthew Kramer: If I had to highlight the most significant new contribution of this book, it would be the extensive exploration of quantificational logic, which marks a departure from my previous writings. While I am not retracting any earlier work, this book delves far beyond anything I have written before, particularly in its differentiation among three types of universal quantification. Although this may not be immediately accessible to non-philosophical readers, it is essential to understand that there are multiple types of quantifiers in logic, the two most common being universal and existential quantification. In my book, I not only discuss these two common types but also make crucial distinctions among different kinds of universal quantification: aggregative, distributive, and disjunctive. These types are often left unclarified, even among logicians. In my work, I aim to clarify them and emphasize their non-equivalence, particularly the importance of disjunctive universal quantification in understanding the nature of certain duties and their relationship to claim rights. If I were to encourage readers to explore the book, I would point to this disambiguation of quantification as a key feature, as it appears in every chapter from Chapter 2 onward. While it may seem opaque in this brief explanation, I believe it is presented clearly in the text itself, and I would urge readers to examine it closely. On a related note, some of my earlier writings on rights and right-holding have been cited in judicial opinions and legal briefs, as you correctly noted. This indicates that my work has relevance not only to philosophers but also to legal practitioners and scholars, and I hope this will continue. For example, litigation concerning the status of non-human animals as potential holders of claim rights has frequently referenced my work. Although the courts have generally ruled against this proposition, I have argued in favor of it.

Interviewer -Linda Cianci (Lindagine):
Thank you for your insightful response, Matthew. It provides much to reflect upon. As we reach the conclusion of our interview, I would like to extend my sincere thanks for your time and for your clear explanation that helps clarify the complexities involved in the book in a manner that is accessible to everyone. Unfortunately, due to our limited time, we were unable to discuss your book jacket referencing Shakespeare's Much Ado About Nothing, but we will save that for the 'second act' of this interview. Thank you once again, and I look forward to our next conversation."

 Prof. Matthew Kramer: Thank you very much, Linda, for the invitation and the today discussion. I look forward to our next conversation about Shakespeare and the relationship between law and literature.

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