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The Very Thought of (Wronging) You: the Form of Equal Recognition1

Ariel ZylbermanUniversity of

Toronto

When Claudius poured poison into his brother’s ear did he thereby wrong King

Hamlet or did he merely perform a wrong act?

To understand this question we may distinguish two types of duties, duties

with regards to another and duties to another, and then ask which type Claudius

breached.2 If you entrust upon me the care of your ficus tree while you are away on

holidays, I have duties with regards to the ficus tree, but no duties to the tree. If

upon your arrival it turns out that I have not watered the now moribund tree, I have

wronged you, not the tree. Although I have duties with regards to your tree, I have

no direct normative connection to it.3 In light of this distinction, we may ask again: is

Claudius’s murder a wrong to Hamlet or merely a wrong with regards to Hamlet?

My aim in this paper is to address a more general version of this question:

What is the form of juridical wrongs and rights? Are they wrongs to someone or

merely wrongs with regards to someone? Is the idea of a direct normative

connection between you and I basic or merely derivative? I will argue that juridical

1 I am grateful to Matthias Haase, Doug Lavin, Arthur Ripstein, and Glenda Satne for

comments on an earlier draft. 2 Immanuel Kant, The Metaphysics of Morals, in Practical Philosophy, trans. and ed.

Mary Gregor (Cambridge: Cambridge University Press, 2006), 6:442. 3 I assume for the sake of argument that we hold no duties to living organisms as

such. Naturally, environmentalists may disagree.

The Very Thought of (Wronging) You: the Form of Equal Recognition

wrongs and rights are relational: in the fundamental case wrongs signify a breach of

a duty to someone and rights signify claims against others.

To do so, my argument unfolds in three stages. I begin by showing that the

puzzle about Claudius arises from a tension between the common view that rights

correlate with duties and traditional philosophical views about the justificatory

structure of rights. While the former presupposes the claim that rights are

necessarily relational, the latter presupposes the view that rights claims are

ultimately non-relational. While the former regards the juridical relation between two

parties as normatively basic, the latter looks for the normative ground of juridical

claims outside of the relationship.

Instead of solving this puzzle by trying to reconstruct relational rights and

wrongs out of the non-relational material of right and wrong actions, my strategy

will be to be dissolve the puzzle. I do so by articulating three assumptions behind

the puzzle, assumptions about the fundamental form of a juridical judgment (§2),

about the form of justification of rights (§3) and about the value of the bearer of

rights (§4). For each assumption, I develop the relational alternative according to

which there is no gap between the nature and the justification of rights.

And finally, having in view the contrast between the non-relational model of

rights that informs the puzzle and its relational alternative, I turn to a direct defense

of the relational model (§5). In particular, I argue that the non-relational model fails

either because it cannot make sense of rights or if it does, it explains rights only by

presupposing the relational model.

Once we cast aside the non-relational set of assumptions about rights, we

should see that there is nothing more basic, nothing of normative significance

behind, under or above, the relationship of right. The very thought of you is already

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imbued by the form of equal recognition, and this form is constitutive of the

relationship of right.

1. Of Rights and Shadows: Naturalist and Institutional Ideas of Rights

When Claudius murdered his brother, we say that Claudius infringed Hamlet’s

rights. But what is it for Hamlet to bear a right? What justifies Hamlet’s claim to a

right? And what is it for Claudius to infringe that right?

Let me begin with the first question about the nature of individual rights. The

two predominant answers are either naturalist or institutional.4 The naturalist

answer is usually that rights are valid claims against others and that the validity of

said rights is in principle independent of social and institutional recognition. Joel

Feinberg, for example, argues that a valid claim to X has two main components: the

rights-bearer is at liberty in respect of X, i.e., has no duty not to relinquish or refrain

from X, and this right is the ground of duties in others either to grant X to the rights-

bearer or not to interfere with X.5 Under this model Hamlet has the right to life, and

this right grounds a duty on Claudius not to interfere arbitrarily with Hamlet’s life.

Since Claudius obviously breached his duty, Claudius wronged Hamlet.

Whereas a naturalist could say that Hamlet has the right to life independently

of any social or legal recognition, the institutional theorist must deny this. Rights, as

Bentham had argued, are unintelligible independently of social or legal recognition.

According to the institutional model, rights cannot be simply valid claims. Instead,

the nature of rights must be internally connected to institutional recognition. Rex 4 My discussion in this paragraph is indebted to Rex Martin, A System of Rights

(Oxford: Oxford University Press, 1993), chapter 3. 5 Joel Feinberg, “The Nature and Value of Rights,” The journal of Value Inquiry, Vol.4

(1970), pp. 249-50.

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Martin, for example, argues that individual rights are institutionally accredited ways

of acting or of being treated.6 Martin does not deny that rights may take the form of

claims. Instead, he denies that rights can be valid claims that are nonetheless not

recognized by any legal institution. Under this model, Hamlet would bear the right to

life only if the laws of Denmark recognized this right.

Note, however, that despite their disagreement, naturalist and institutional

theories of rights share two key commitments.

First, both endorse the doctrine of correlativity of rights and duties. Any right

that Hamlet bears will have as a matter of logical entailment a correlative duty on a

second party.7 A key claim these theories share, then, is that rights can only be

understood as paired with, correlated to the duties or obligations of another. This

claim stands in stark contrast, for instance, to views like that of Thomas Hobbes

according to which a natural right not only requires no obligation on the part of

others but is in fact opposed to any obligation. For a view like Hobbes it seems

possible that a completely isolated person bear rights. By contrast the naturalist

view of rights as valid claims and the institutional view of rights as accredited ways

6 Martin, A System of Rights, p. 69: “A legal right is an established way of acting or

of being acted toward, distinctively legal insofar as governmental action is required,

or essentially involved, in the formulation, enforcement, and harmonization of rights

such as these. If this is so, then the identification of legal rights with (valid) claims or

with what would justify such claims, where that suggests leaving aside altogether

recognition or enforcement in law as necessary features, is simply incoherent.”

7Although Martin weakens the doctrine so that correlativity is not a matter of logical entailment, nonetheless he retains the key thought that rights are “normatively directed.” The mere fact that someone bears a right generates a normative constraint on the conduct of others.

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of acting would deny that the idea of a right without any correlative duties makes

any sense.

The doctrine of correlativity to which both naturalist and institutional views

subscribe enables us to say that Claudius’s poisoning is a relational wrong, a wrong

to Hamlet, rather than merely a wrong act which happened to fall on Hamlet.

Indeed, as H.L.A. Hart has argued, unless we can draw a distinction between rights

and wrongs and right actions and wrong actions, the very idea of a right would

disappear.8 A society ruled solely by the duties of natural law would declare murder

and adultery wrong acts, but not wrongs to others. But once the idea of a wrong to

another goes, so does the idea of a right. The doctrine of correlativity is meant to

capture this relational idea of right by representing correlative duties as duties owed

to another. 9 8 H.L.A. Hart, “Are There Any Natural Rights?” The Philosophical Review, 64:2

(1955), p. 182. Feinberg makes the same argument in “The Nature and Value of

Rights.”

9 A handful of current thinkers have defended in different ways the view that a direct

connection between two parties is normatively basic and fundamental to an

understanding of juridical wrongs and rights. See Arthur Ripstein, Force and

Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University

Press, 2009); Martin Stone, “The Significance of Doing and Suffering,” in G. Postema,

ed., Philosophy and the Law of Torts, (Cambridge: Cambrdige University Press,

2001), pp. 131-182; Michael Thompson, “What Is It to Wrong Someone? A Puzzle

about Justice,” in R. Jay Wallace, P. Pettit, S. Scheffler & M. Smith, eds., Reason and

Value (Oxford: Clarendon Press, 2004); and Ernest Weinrib, The Idea of Private Law

(Cambridge, MA: Harvard University Press, 1995). Although currently a minority,

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However, a puzzle begins to emerge once we consider the naturalist and

institutional views about our second question concerning the justification of

individual rights. What is the ground of a right?

Ronald Dworkin famously classified political theories into duty-based, right-

based, and goal-based theories, a classification others have extended to all moral

theories.10 Dworkin’s central idea is that in any political theory we may distinguish

judgment types that are basic from those that are derivative. A judgment is basic in

a justificatory sense: it marks the end-point of justification in an order of judgments.

Thus an X-based theory is a theory that gives pride of justificatory place to an X-

type judgment and derives the rest of the theory from X.

The second commitment naturalist and institutional views share, then,

concerns the form of justification of individual rights. We justify individual rights by

abstracting away from the relationship between the two parties and focusing

instead on a basic value external to the relationship of right. The basic judgments in

our theory will be either about outcomes (goal-based), or about the duties of an

agent (duty-based), or about the rights of a patient (right-based). But by abstracting

away from the correlative relationship of right and focusing on just one of the terms

of the relationship, we lose from view the direct nexus between Claudius and

these thinkers follow a long tradition that includes Aristotle, Kant, and Hegel. Here, I

mean to follow and develop this tradition. 10 Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press,

1978), pp. 90-96. See also Joseph Raz, The Morality of Freedom (Oxford: Oxford

University Press, 1986) chapter 5; John Simmons, The Lockean Theory of Rights

(Princeton: Princeton University Press, 1992), p. 69; and Jeremy Waldron, The Right

to Private Property, (Oxford: Oxford University Press), pp. 63-68.

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Hamlet. This view of the justification of rights makes it difficult to understand how

Claudius could wrong Hamlet, and how Hamlet could be Claudius’s victim.

Goal-based theories focus primarily on the outcomes in the world of

Claudius’s action. Although John Stuart Mill, for instance, defends the harm principle,

his utilitarianism pushes him to regard as normatively fundamental the production

of pain and well-being in the world. The central normative consideration for a

utilitarian like Mill is the production of welfare in the world. This makes it difficult to

understand how Claudius could wrong Hamlet, for the key normative consideration

is instead whether Claudius performed a bad action, rather than whether Claudius

wronged someone. Utilitarians like Mill will find it difficult to explain how Hamlet is a

victim rather than simply the accidental location of diminished welfare in the world.

Duty-based theories focus primarily on whether Claudius violates one of his

duties, say, emerging from the natural law. John Locke, for instance, argues that we

may understand the rights of others as God’s property.11 Duty-based theories

similarly make it difficult to understand how Claudius could wrong Hamlet, for what

looks like a wrong to another is in fact simply a wrong to God, since the other is

God’s property. Duty-based theories like Locke’s will find it difficult to explain how

Hamlet is a victim rather than the mere occasion of Claudius’s breach of the moral

law.

Right-based theories focus primarily on whether Hamlet’s rights are infringed.

James Griffin, for instance, argues that human rights are based on a person’s liberty

and autonomy.12 Since the fundamental normative judgment is about a person’s

rights, rights may be infringed not only by other persons, but also by natural 11 John Locke, The Second Treatise: An Essay Concerning the True Original Extent

and End of Civil Government (Indianapolis: Hackett Publishing Company, 1980), §6. 12 James Griffin, On Human Rights (Oxford: Oxford University Press, 2009).

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conditions.13 Right-based theories may find it difficult to explain how Claudius is the

perpetrator of a wrong rather than merely an accidental harbinger of tragedy.

When we juxtapose these two commitments, the result is a puzzle, for

naturalist and institutional theories alike view the correlative relationship of right as

normatively derivative. Judgments of right bottom out in some value external to that

relationship: outcomes, duties or further rights. We have followed Hart’s distinction

between rights and wrongs, on the one hand, and right actions and wrong actions,

on the other. The idea was that a society that possessed only the concept of right

and wrong actions would not possess the concept of rights and wrongs. Individual

rights and wrongs have a relational structure: I have rights against you, and you

owe duties to me. If I can only understand your murder, torture or theft as a wrong

act, but not as a wrong to me, I cannot think of myself as a bearer of rights.

A puzzle emerges, then, because the shared commitment about justification

yields precisely this result: the fundamental normative idea is that of right and

wrong actions, rather than that of rights and wrongs. Although naturalist and

institutional theories recognize that individual rights depend on the doctrine of

correlativity, their justificatory structure pushes them to locate the grounds of rights

in some factor external to that relationship. And once they deem the correlative

relationship of right normatively derivative, they put in danger the very idea of

rights. By focusing exclusively on outcomes, agents or patients goal-based, duty-

based, and right-based theories tear asunder the relationship they initially hold

together. And this ends up changing the doctrine of correlativity. Rather than

thinking of my rights and your duties as equally basic elements of a single

relationship, naturalist and institutional theories end up giving pride of justificatory 13 Thus Joseph Raz argues, for example, that your rights may be infringed by

“starvation and disease.” The Morality of Freedom, p. 205.

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place to either element of the relationship. Correlativity becomes reductive.

Hamlet’s rights are reducible to, mere shadows of, Claudius’s duties. Alternatively,

Claudius’s duties are reducible to, mere shadows of, Hamlet’s rights. None of these

theories allow the initial correlative view that Claudius and Hamlet are embraced

directly in a relationship of perpetrator-victim. The direct connection becomes the

shadow of a shadow and possibly a mere illusion. And once this happens, the very

idea of rights becomes unstable.

Our puzzle, then, is this: how can we construct relational rights and wrongs

out of the “normatively basic” material of right and wrong actions? How can we

construct Claudius’s wrong to Hamlet out of the normatively basic material of

Claudius’s wrong with regards to Hamlet? 14 14 A structurally analogous puzzle emerges in epistemology from empiricist and

rationalist models of perceptual knowledge. On the one hand, we acknowledge that

perceptual knowledge must be relational, i.e., perceptual knowledge is my

knowledge of some object or state of affairs in the world. On the other hand, the

foundationalist structure of justification requires that the ground of perceptual

knowledge be intelligible independently of the perceptual relation. Rationalists tend

to focus on the object, while empiricists tend to focus on the subject’s sensations.

Hallucinations make the problem sharper, for my sensation is supposed to be the

same whether or not the object is present. The puzzle, then, is this: if perceptual

knowledge is by its nature relational but we justify our claims to know by dropping

the relation entirely and focusing on only one of its terms (the object in itself or my

sensations), how is it possible to get the relational back into the picture? The worry

for the empiricist, for instance, is that once I have retreated into my phenomenal

experience, it seems very difficult, if not impossible, to build perceptual knowledge

out of mere sense-data. Kant called this common assumption of dogmatists and

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The puzzle is worrying because this project may be doomed. If Hart and

Feinberg’s thesis is correct, rights and wrongs are irreducibly relational. But if that is

so, the justificatory structure of standard theories renders us skeptics about rights.

Rights become shadows.

2. The Monadic Assumption

Faced with this puzzle about rights, our immediate impulse may be to try to solve it

by showing how there is no tension between the nature and the justification of

rights. Whether we endorse a goal-based, a duty-based or a right-based theory, our

task would be to construct relational rights from right and wrong actions. Although I

cannot show that this task is impossible, I will try to show that it is unnecessary.

Instead of solving the puzzle, we should dissolve it. We dissolve the puzzle by

rejecting the assumptions on which it rests to prevent it from arising. Our task would

not be to construct relational rights from right and wrong actions but to understand

how relational rights are normatively basic. 15

The key assumption we need to articulate and reject is that the nature and

justification of rights are different creatures. We replace such assumption with the empiricists transcendental realism. We may call the assumption common to

naturalist and institutional theories transcendental juridical realism.

15 There is, of course, a second way of dissolving the puzzle. We would reject the

doctrine of correlativity and stipulate that rights do not require correlative duties on

others. I do not explore this possibility because most theorists endorse the doctrine

of correlativity and because, with these thinkers, I deem absurd the idea that I can

bear rights in complete isolation from others. In any case, since correlativity is so

widely accepted, I will not make it my task here to defend it. Instead, I will assume

its truth and then try to accommodate its insights within a theory of rights.

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alternative view that there is no gap between the nature and justification of rights.

The ground of my right is not some further fact beyond, beneath or beside my claim

before you. Instead, the ground of my right is immanent within that claim.

In the remainder of this paper, I will try to dissolve the puzzle, then, by

articulating three more specific versions of this assumption and subsequently

replacing them with the relational alternative. Each alternative will articulate the

thought that the ground of rights is internal to rights. My main argument for the

relational model will be the following: We should endorse the relational model of

rights that begins to emerge because it explains better the relational structure of

rights and wrongs without coming to the brink of skepticism about rights.

The first specific version of the assumption that the justification of rights

appeals to facts different from their nature concerns the fundamental form of a

juridical judgment. The Monadic Assumption, as I will call it, is the view that the

fundamental form of a juridical judgment is monadic.

We should begin by drawing a distinction between two basic forms of

judgment: relational and monadic. A monadic judgment represents the subject as

bearing a certain property independently of any relations the subject may have to

others (e.g., Alice weighs 120 pounds). A relational judgment represents the subject

as bearing a certain property in relation to others (e.g., Toronto is larger than

Vancouver). But this contrast is still too rough, so we must draw two further

distinctions. We should distinguish between weak and strong relational judgments. A

weak relational judgment is reducible to the conjunction of two monadic judgments,

while a strong relational judgment is irreducible to monadic judgments. Our former

relational judgment appears to be weakly relational, because it might be reducible

to a conjunction of the monadic judgments Toronto has X size and Vancouver has Y

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size. A better candidate for a strongly relational judgment may be Toronto stands to

the East of Vancouver. In addition, we should demarcate interpersonal relational

judgments from generic relational judgments, where interpersonal relational

judgments represent the relation between at least two persons. Alice gives a gift to

Beth is an example of an interpersonal, strongly relational judgment.16

Although this logical contrast between monadic and relational judgments is

abstract, it is perfectly familiar to any adult who observes two infants play. When we

describe infants playing, it is common to say that the infants are not yet playing

together. Instead, they are “parallel playing:” they play the same game (building

sand towers, cooking, having a tea party) separately. When infants parallel play, we

describe their activity through weakly relational judgments: A is pouring tea, and so

is B; B is eating a cookie, and so is A, etc. When infants play together, we describe

their activity through strongly relational judgments: A is pouring tea in B’s cup; B

gives a cookie to A, etc. The excitement of parents at seeing their own infant

suddenly play together with another has a key logical dimension: the parents now

represent the child’s activity through strongly relational judgments. This logical shift

is a sign that the infant is “growing up.”

The contrast between monadic and relational judgments gives us the

language for expressing the assumption that the justification of rights must be

external to rights. Dworkin taught us that a theory is X-based when it gives pride of

justificatory place to a specific type of judgment. A practical theory is derived from a 16 Having articulated these subtler distinctions, I will leave them behind to focus

exclusively on the contrast between a monadic judgment and an interpersonal,

strongly relational one, a contrast I will hereby abbreviate as one between monadic

and relational judgments. For parallel distinctions, see Michael Thompson, “What is

it to Wrong Someone?,” p. 335-6.

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judgment of goals, a judgment of duties, or a judgment of rights. All these

judgments, we may now say, share a common form: they are all monadic

judgments. They abstract away from the relationship between two persons and

focus instead on outcomes, agents or patients. None of these judgments takes the

relational form. This is precisely why the relationship between Claudius and Hamlet

appears as normatively derivative and potentially insignificant.

Goal-based, duty-based and right-based theories (implicitly) rest on what I will

call the Monadic Assumption, namely, the view that an order of juridical judgments

is ultimately grounded in a monadic judgment. We may illustrate the Monadic

Assumption through the following table:

Relational Judgment Monadic Judgment

Claudius produces a bad outcome in the

world

Claudius poisons Hamlet Claudius breaches his duty (with

regard to Hamlet)

Hamlet’s right is infringed

The two columns of the table illustrate the justificatory structure of X-based

theories. The direction of justification is rightwards. Relational judgments are

ultimately justified by one of three types of monadic judgments. Justification comes

to an end in a monadic judgment about outcomes, duties or rights. All three theories

presuppose that the fundamental form of a juridical judgment is monadic.

In its common form, the Monadic Assumption amounts to the view that (i)

juridical judgments are relational, (ii) relational juridical judgments are normatively

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derivative, and (iii) a justificatory order of juridical judgments bottoms out in a

monadic judgment. Since monadic judgments represent values that are intelligible

independently of any relational juridical judgment, the Monadic Assumption repeats

the general view behind our puzzle that the fundamental ground of rights must be

external to the rights themselves.

Let me illustrate how naturalist and institutional theories make the Monadic

Assumption. The naturalist represents rights as valid claims. Valid claims must be

represented through a relational judgment: Hamlet has a claim against Claudius. But

we may reasonably ask, why is Hamlet entitled to such a claim? Should we endorse,

for instance, Griffin’s personhood account, our answer will take this form: Hamlet

has a valid claim because being alive is necessary for protecting the values of

personhood. But notice that there has been a shift in the form of judgment. Whereas

the initial judgment was relational, the justifying judgment is monadic. The

personhood account bottoms out in the monadic judgment: Hamlet is autonomous.

According to Griffin’s picture of autonomy, the value of autonomy must be

represented monadically.

Institutional theories replicate the same structure. The institutional theorist,

such as Martin, represents rights as institutionally accredited ways of acting.

Institutionally accredited ways of acting must be represented through a relational

judgment: the legal institutions of Denmark vest Hamlet with the title to life. As a

result, Claudius has duties to Hamlet. But we may reasonably ask, why is Hamlet so

accredited?

Institutional theories of rights, like that of Martin or Charles Beitz, tend to bottom out

in urgent individual interests. But notice that, once again, there has been a shift in

the form of judgment. Whereas the initial judgment was relational, the justifying

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judgment at the second level is monadic. Beitz’s practice account bottoms out in the

monadic judgment: Hamlet has an urgent interest in _____. According to Beitz’s

picture we fill in the blank with a value that is intelligible independently of rights and

independently of relationships to others.

We may reject the Monadic Assumption by embracing its negation, which I

will call the Relational Assumption. This is the view that the fundamental form of a

juridical judgment is relational. Juridical judgments bottom out in the relational form.

If the Monadic Assumption denies the basic normative significance of a direct

connection between two parties in a juridical relationship, the Relational Assumption

affirms it. One way to explain this contrast is by deploying the classical philosophical

distinction between form and matter.17

The idea of form I have in mind is the idea of an immanent normative

principle of a distinct kind. Let me illustrate this idea through a living organism such

as an oak tree.18 The form of a tree marks a distinct kind of tree, say, the oak tree, 17 For Aristotle’s view that a relational juridical judgment expresses a form of justice,

see Aristotle, Nicomachean Ethics, trans. Terence Irwin (Indianapolis: Hackett

Publishing Company, 1999), V. For Kant’s view that a judgment of right represents

the form of interaction between two parties, see Metaphysics of Morals, 6:230.18 I should mention here that for the purposes of my argument, no commitment is

necessary to the view that this idea of form must be instantiated in organic nature.

Even Kant’s view appears to be that rather than understanding the political in terms

of the organic we should understand the organic as an analogy of the political kind

of organization, the political body (CPJ, n. 5:375). For this very brief account of form,

I draw from Aristotle, De Anima, 2.1-3; Immanuel Kant, Critique of the Power of

Judgment, §63-5; Michael Thompson, Life and Action, part I, specially pp. 80-82;

Ernest Weinrib, “Legal Formalism: On the Immanent Rationality of Law,” The Yale

15


by setting apart the activity characteristic of oak trees both from that of other life

forms (such as plants and animals) and other species of trees (such as maples and

Eastern white pines). The explanation of the individual tree in terms of its form (the

oak species) is an explanation of the tree in terms of the kind of activity that

constitutes an oak tree and that limits membership to that kind of activity. But this

explanation is also, in the second place, a teleological or final explanation, for a form

is a normative principle that sets the standards for judging members of that kind as

embodying the form to a greater or lesser degree, and thus as more or less

defective.19 A form as a normative principle of a distinct kind constitutes a unique

type of unity. We may call a mechanical, as opposed to a teleological unity, the

unity of a whole as merely an aggregate of independently intelligible and externally

related parts. A form in the mechanical sense is a unity externally imposed on the

parts. By contrast, a form in the teleological sense represents a type of unity where

the parts are unintelligible independently of their relation to each other and to the

whole. A form in the teleological sense is a unity that is internal to the parts as they

relate to each other. A heap of sand is an example of the mechanical type of unity,

where each grain of sand is perfectly intelligible independently of the other grains

and of the heap. A tree is an example of the teleological type of unity. Each part of Law Journal 97:6 (1988), §2.2 and specially pp. 959-960; and Ernest Weinrib, The

Idea of Private Law, §2.6.3.19 Cf. Stanley Cavell, The Claim of Reason, p. 11: “Both criteria and standards are

means by which or terms in which a given group judges or selects or assesses value

or membership in some special status; but criteria, we might say, determine

whether an object is (generally) of the right kind, whether it is a relevant candidate

at all, whereas standards discriminate the degree to which a candidate satisfies

those criteria.”

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the tree (roots, trunk, leafs, flowers, fruits, etc.) is unintelligible as the tree part it is

independently of its relation to the other parts and to the tree as a whole.

The idea of form as a normative principle of a distinct kind and as a

teleological unity helps us to understand the relational assumption in the following

way. The Monadic Assumption begins from the doctrine of correlativity, where the

rights A has against B are (logically) correlative to the duties B owes to A. But the

key monadic move is that the fundamental form of a juridical judgment is monadic.

The correlativity is normatively derivative. Instead, what is normatively fundamental

is a judgment about the rights of A, the duties of B, or some further desired

outcome. Now using the language of form, the Monadic Assumption renders the

correlativity of rights and duties a mere aggregate rather than an articulated unity.

My rights are intelligible independently of your duties, or your duties are intelligible

independently of my rights. By contrast, the Relational Assumption regards the

correlativity of rights and duties as an articulated, teleological unity. My rights and

your duties are reciprocally determining elements of an articulated whole. Just like

the root of the tree is unintelligible as root independently of its relation to the tree

as a whole, my rights and your duties are unintelligible as rights and duties

independently of their relationship to each other. The relationship of right is an

articulated unity, not an aggregate.

The Monadic Assumption forces us to focus exclusively on one of the terms of

the relationship (the matter) rather than on the relationship itself (the form). As a

result, we are forced to read the doctrine of correlativity reductively: your duties are

the shadows of my rights or vice-versa. But once we are liberated from the Monadic

Assumption, we may see that correlativity need not be reductive. Once we focus on

the form of our interaction, my rights and your duties form an articulated unity.

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Neither is reducible to the other. The direction of justification has been reversed:

rather than justifying our relationship in terms of a monadic judgment about duties,

goals, or rights, we understand and justify rights and duties in terms of the roles

they play in the whole, in our relationship of right. To say that the basic form of a

juridical judgment is relational is simply to assert that rights and duties must be

understood as reciprocally determining elements in our relationship of right.20

Let me develop the organic analogy further. There are, of course, many

physical and chemical necessary conditions for being a part of a functional biological

relationship. Leaves and kidneys cannot function without protein compounds. But a

reductive analysis of leaves and kidneys in terms of protein compounds presumably

cannot yield what leaves and kidneys do and what they are for. For the latter,

functional type of judgment, we need to focus on the relationship, say, between

chlorophyll structures and the photosynthetic function, or between the kidney and

the urinary system. Similarly, there are many necessary conditions for being a part

of a normative relationship of right. Persons, for example, must occupy space and

be capable of intentional action. But a reductive analysis of the rights-bearer in

terms of its necessary conditions presumably cannot yield the sufficient conditions

for having a right. For the latter, relational type of judgment, we need to focus on

the relationship between one person, as rights-bearer, and another, as duty-bearer. I

will return to this point about persons below (§4).

The main point for now is this. Regardless of the nature of rights, i.e., whether

rights are valid claims (naturalism) or institutionally accredited ways of acting 20 Notice that my claim here only concerns a juridical order of judgments. It may true

that in other orders (ludic, etiquette, broadly ethical) correlativity fails: some duties

may have no correlative rights or vice-versa. The Relational Assumption as I

articulate it here concerns exclusively a juridical order of judgments.

18


(institutionalism), naturalist and institutional accounts assume that the justification

of rights ultimately turns on some non-relational feature. Why is one entitled to a

right? The monadic assumption is the view that we answer this question ultimately

in a monadic way: because infringing rights has bad outcomes, or because

breaching duties is to perform a wrong action or having one’s rights infringed is to

suffer a wrong action. Monadic views then get entangled in the difficult (perhaps

impossible) task of deriving relational rights and wrongs from right and wrong

actions. By contrast, the relational assumption is the view that we answer the why

question ultimately in a relational way: if you infringe my right, you would wrong

me. The second personal ‘you’ here is ineliminable. There is no derivation of a

relational wrong from a wrong action. Your wronging me is normatively basic. More

precisely, my having a right against you is normatively basic and is just as basic as

you owing me a duty.

3. The Form of Juridical Explanation: the Instrumentalist Assumption

But as we will now see, our puzzle about the possibility of rights turns on a further

assumption about the proper form of explanation of rights. The puzzle arises, I will

argue, when we assume that rights must be justified instrumentally. Similarly, we

can dissolve the puzzle and account for the possibility of rights more easily when we

reject the instrumentalist assumption and replace it with its non-instrumentalist

alternative.

By ‘instrumentalism’ I understand a theory that grounds rights in a value

external to the juridical relationship; a value is external to the relationship when it is

intelligible independently of the rights in question.21 21 Arthur Ripstein, Force and Freedom, pp. 7-11, 217, and 225. Functionalism in the

law is a (welfarist) species of instrumentalism as understood here. See Stone, pp.

19


Our table illustrated not only the monadic assumption, but also how

justification must run rightwards and make a leap from the derivative relational

column to the basic monadic column. This move illustrates the structure of an

instrumentalist account of rights, for the ground of rights is intelligible

independently of any rights.22

It is easy to see how goal-based and duty-based theories are instrumentalist.

If the justification of A’s rights turns on the promotion of an independent value, such

as A’s autonomy or urgent interests, such justification would fit within a goal-based

theory. And a goal-based theory is instrumentalist. Rights are justified by a goal

whose intelligibility is independent of the rights in question. On many readings, we

can understand what autonomy and urgent interests require independently of the

language of rights. Duty-based theories are similarly instrumentalist. If the

justification of A’s rights turns on B’s discharging her duty, such justification would

also be instrumentalist. Rights are justified by and reducible to a value whose

intelligibility is independent of the rights in question, namely, the fulfillment of a

duty. Suppose that we analyze your duty in terms of your doing God’s will. You may 133, 141; and Weinrib, The Idea of Private Law, pp. 4, 48-49. 22 I should qualify this claim. The key feature of an instrumentalist account is that it

justifies rights by means of an extra-legal value. Instrumentalism is thus a logically

independent thesis from the monadic assumption, for the extra-legal value in

question may itself be intelligible only through relational judgments. However,

although logically distinct, the monadic assumption is usually found together with

the instrumentalist assumption. And in any case, both assumptions seem

responsible for getting us into our puzzle about rights in the first place. I am grateful

to Glenda Satne for helping me to see how instrumentalism and “monadism” are

two logically independent assumptions.

20


fail to satisfy God’s will even if, like Adam before the creation of Eve, you are the

only person in the world. But if you are completely isolated, no other person’s rights

come into the picture of your doing God’s will. The value of your acting in conformity

with God’s will is intelligible independently of the rights of others. Therefore, duty-

based theories also seem to be instrumentalist.

Nonetheless, it may be more difficult to see that right-based theories are

instrumentalist as well. It may be objected that right-based theories, precisely

because they are right-based, cannot be instrumentalist. But this would be a

mistake.

While the two predominant views of the nature of rights are naturalist and

institutional accounts, the two predominant views about the justification of rights

are interest- and choice-based theories. The former is associated with figures like

Jeremy Bentham and Joseph Raz; the latter with figures like Thomas Hobbes and

H.L.A. Hart.

Interest-theories ground rights in a value intelligible independently of any

rights possessed by the bearer, namely, the interests of the rights-bearer. Joseph

Raz’s explanation of rights exemplifies both the monadic and instrumentalist

assumptions: although my rights are grounds for your correlative duties, the

ultimate ground of my rights is a sufficiently important aspect of my well-being.23

Raz thus reduces duties to rights and rights to aspects of your well-being. But notice

that the relevant aspects of your well-being are intelligible independently of any

specific rights. It may be fundamental to your well-being that you do not suffer from

the pangs of hunger or disease, but neither hunger nor disease require the language

of rights to appreciate their value. Similarly, the badness of hunger and disease are

intelligible independently of any relation you have to others. Your hunger is no less 23 Joseph Raz, The Morality of Freedom, ch. 7, specially p. 180.

21


bad when you suffer it alone. If this is correct, Raz’s interest-theory of rights

furnishes a paradigmatic example of a monadic and instrumentalist explanation of

rights.24

This leaves a right-based theory with one apparently non-instrumental option:

a choice-based theory of rights. Choice-theorists argue that we should understand

rights as the protections of your capacity for choice.25 Their key claim is that rights

are the protections of your capacity to decide about some subject matter. However,

choice theories end up characterizing both the choice and its subject matter

independently of rights. If rights protect your capacity to choose the person you

marry, but your capacity to choose the person you marry is itself intelligible

independently of rights, choice-theories have ended up justifying rights

instrumentally. Similarly, residents of a world ruled exclusively by natural law may

have the capacity to choose about a number of subject matters (where to work,

where to live, what career to pursue, etc.), without having the idea of individual

rights at all. And to the extent this is so, choice-based theories of rights require an

instrumentalist form of justification.

In the end, right-based and duty-based theories are mirror images of each

other. One justifies the relationship of right by focusing exclusively on the non-

relational duty of one of the parties; the other justifies the relationship of right by 24 I am thus less charitable than Michael Thompson. Thompson thinks that for Raz

the correlativity of rights and duties is normatively basic “if the concept of interest

dependence is taken narrowly.” (n.23, p. 350) I think that Raz’s interest-theory of

rights betrays a commitment both to the Monadic Assumption and to

instrumentalism so that no “narrow” reading of Raz’s interest theory would save him

from these assumptions. I cannot embark here on a proper defense of this claim. 25 See H.L.A. Hart, “Are There Any Natural Rights?,” pp. 175-178.

22


focusing exclusively on the non-relational right (or the extra-legal interest or choice)

of one of the parties. By abstracting away from the relationship of right and focusing

on some feature of the agents that is intelligible independently of the relationship,

both theories betray their monadic and instrumentalist assumptions. To the extent

that right-based theories regard rights as more basic than duties, they have shifted

from our ordinary relational rights, the rights I have against you, to philosophical

non-relational rights, the rights I have regardless of any relationships I stand to

others. To the extent that right-based theories justify rights by virtue of interests or

choices intelligible independently of rights, they are just as instrumentalist as duty-

based theories. However, if we regard ordinary relational rights as basic, as we have

seen, neither right nor duty can be normatively prior to the other. Both must be

equal and reciprocally determining elements within a single whole.

As with the previous, monadic assumption, we may avoid our puzzle about

rights and its potential skepticism by rejecting the instrumentalist assumption. The

non-instrumentalist view is that we justify rights by staying within the relational,

juridical column.

Let me begin to articulate the character of a non-instrumentalist theory of

rights negatively. Recall that instrumentalist theories begin by conceding the

importance of the doctrine of correlativity. But they end up reading this doctrine

reductively due to the foundationalist pressure to ground an order of juridical

judgments in a monadic judgment. A non-instrumentalist theory of rights will justify

particular rights by showing their relation to a whole system of juridical judgments,

none of which bears the monadic form and none of which is extra-juridical. In

justifying rights, we cannot step outside the relationship of right. But the form of

that relationship is the correlativity of my rights and your duties. Thus, we must

23


justify rights by showing how they are aspects of the articulated teleological whole

of the juridical relationship in which I stand to you. The answer to the question why

Hamlet has rights against Claudius cannot abstract away from the relationship in

which Claudius and Hamlet stand.

But in order to characterize a non-instrumentalist theory positively we must

turn first to a third assumption concerning the nature and value of the bearer of

rights, i.e., the person.

5. The Juridical Idea of the Person

Rejecting the key assumption the nature and justification of rights are externally

related will require that we take an extra step and examine its roots in a particular

idea of the subject of the juridical judgment.

Let me begin to articulate this idea by considering James Griffin’s contrast

between what he regards as the two most fundamental ways of understanding the

value of personhood.26 On the one hand stands what he calls the “deontological”

understanding. Persons stand in contrast to things: while the value of a thing is its

price, a value that renders the thing perfectly fungible with another thing of an

equivalent price, the value of a person is its dignity, a value that renders the person

perfectly non-fungible. This deontological picture of the value of persons is

characteristic of right-based theories, according to which we ought to understand

rights, for instance, as trumps against aggregates of any other type of moral

consideration. On the deontological view, personhood has a value independent from

any other end that promotes the quality of a person’s life. On the other hand stands

what Griffin calls the “teleological” understanding of the value of personhood. On

this latter picture, the value of personhood stands on the same footing with any 26 James Griffin, On Human Rights, pp. 35-6 and 57.

24


other instrumental value essential to the promotion of a good life. Since on the

teleological understanding the value of personhood is instrumental to the promotion

of a good life, there is no theoretical barrier to “trade-offs” between the value of

personhood and other essential values, such as achievement, deep personal

relations, authenticity, etc. Griffin’s contrast between the two fundamental

conceptions of the value of personhood, then, turns on the basic question of

whether such value is vulnerable to trade-offs with other values and if so, to what

extent. We are back to the debate between right-based and goal-based theories.

For our purposes, Griffin’s contrast between deontological and teleological

pictures of the value of personhood is deeply illuminating not because of what the

contrast captures, but because of what it assumes and leaves out. Griffin’s contrast

turns on the assumption that the value of personhood must be represented in a

monadic judgment. Setting aside the issue of whether the value of personhood is

subject to trade-offs, Griffin assumes that this value is intelligible independently of

any relationship one person bears to another. The value of personhood may consist,

as Griffin himself argues, at least partly in the person’s autonomy. The deontological

and teleological understandings differ on the normative status of the value of

autonomy, i.e., whether autonomy is a value that may be traded-off with other

values or not. Consequently rights protecting autonomy in the deontological sense

will appear as trumps, and rights protecting autonomy in the teleological sense will

have to be balanced or weighed with other values. But both understandings assume

that the value of autonomy must be expressed in a non-relational judgment, such

as, a person is autonomous when she chooses her path in life.27 Other persons figure

in this account as incidental material for the exercise of autonomy, either as

27 For this formulation, see Griffin, On Human Rights, p. 33.

25


enablers or as hindrances, but not as essential partners for the realization of

autonomy.

The Monadic Idea of the Person, then, is the view that the value of

personhood is monadic and therefore intelligible independently of any relationship

the person may bear to other persons. A juridical person is a particular kind of thing

that has rights. Persons are understood as things, but things somehow possessing a

special normative and monadic property that enables them to bear rights.

Philosophers disagree, of course, about the nature of this special normative property

(e.g., choice or autonomy, interests and well-being, self-consciousness, rational

perfection, etc.), but they tend to agree that the special normative property is

monadic, a property intelligible independently of the relationship the person bears

to other persons.

The Instrumentalist assumption, recall, is that a judgment of right takes this

form: ‘A has the right to X because _____’ We fill the blank with an extra-legal value,

and we usually represent such value through a monadic judgment about goals,

duties or rights (interests or choices). But the monadic move rightwards raises

further justificatory pressure: why must you produce such and such outcomes? Why

do you bear such duty? Why do you posses such rights? The answer turns on the

(relative?) intrinsic value of the bearer of duties or rights. Our instrumentalist

judgment form becomes slightly more concrete: ‘A has the right to X because A is

_____’ The blank will now be filled by another monadic judgment, one specifying the

nature and value of the person. For the Monadic picture, the Monadic Idea of the

Person plays the role of ultimate ground in an order of juridical judgments.

26


Accordingly, we may dissolve our puzzle by rejecting the Monadic Idea of the

Person and replacing it with a suitably relational alternative. I begin to do so by

turning to the Stoic origins of the juridical idea of the person.

The middle Stoic Panaetius was the first Stoic to extend systematically the

metaphor of the prosopon, the role an actor plays, to the role real human beings

play in moral life. Panaetius’s idea is that we may understand appropriate actions

and the duties we have to others (kathekonta) in terms of the idea of the prosopon.

Paneatius’s further innovation is to categorize our kathekonta into four basic roles

and to rank them in order of importance.28 Although Cicero and Seneca further

develop the four-personae theory, I want to focus on Epictetus’s version as a

particular poignant appropriation and development of Panaetius’s thought.29

Like the earlier Stoics Zeno and Chrysippus, Epictetus argues that our most

fundamental self-understanding ought to be as citizens of a cosmic city composed of

both human and divine denizens. But unlike the earlier and radical Cynics, Epictetus

is careful to emphasize that our self-understanding as cosmic citizens is compatible

28 For a helpful discussion of Panaetius, see Michael Frede, “A Notion of a Person in

Epictetus,” in T. Scaltsas & Andrew S. Mason (eds.), The Philosophy of Epictetus.

(Oxford University Press, 2007). 29 My choice of Epictetus turns on the conciseness and clarity of his view and on the

fact that Epictetus clearly views these roles as constituting a stratified normative

order, whereas it is not as clear whether Cicero (or Panaetius for that matter) had

such a systematic and lexical order in view. For further discussion of the four

personae theory, see Christopher Gill, “Personhood and Personality: The Four-

Personae Theory in Cicero, De Officiis I,” Oxford Studies in Ancient Philosophy, 1988

6:169-199.

27


with a more earthly citizenship constituted by all manner of particular commitments

to others. It is worthwhile to quote Epictetus at length:

Consider who you are. First of all a human being, and this means that you

have nothing more authoritative than your power of moral choice and

everything else is subordinate to it, but it itself is free and independent... you

are a citizen of the cosmos and a part of it... So, what is the commitment of a

citizen? To have no private advantage, not to deliberate about anything as

though one were a separate part but just as if the hand or foot had reasoning

power and were able to follow the arrangements of nature, they would never

have sought or desired anything except after referring to the whole... Next,

remember that you are a son. What is the commitment made by this role?

That he considers all that is his own as being under his father’s sway... If you

take it into account in your deliberations, then each of these designations will

outline the appropriate actions on each occasion.30

For our purpose, two points in Epictetus’s appropriation of the four-personae theory

are important.

The first is the thought that being a human being, unlike the being of things,

is a normative and relational affair. To understand that you are a human being,

Epictetus argues, is to understand yourself as standing in a certain relationship to

others, a relationship he calls citizenship in the cosmos. On this picture, being a

person is not possessing a special normative property. Instead, being a person is

standing in certain forms of relationships to others. For this reason, Epictetus

conceives the idea of a human being as internally connected with certain

commitments, the commitments incumbent on any member of the cosmic city. Such 30 Epictetus, Discourses 2.10, in B. Inwood and L. Gerson (trans.), The Stoics Reader

(Indianapolis: Hackett Publishing Company, 2008), p. 200.

28


commitments are not the external, relational aspect of an internal, non-relational

thing (the human being); such commitments are constitutive of being human.

Arguably Epictetus does not make the monadic move. It is not that you are a citizen

of the cosmos because you have the independently intelligible power of moral

choice. Epictetus’s point seems to be relational. We only understand your power of

moral choice because of your relational standing as a citizen of the cosmos, as a

part in an articulated cosmic whole.

The second point is an upshot of the first: if we understand the nature and

value of a person only by virtue of the relationships in which she stands to others,

no person is confined to playing a single role or to having only one type of

normative commitment to others. Indeed, the relational picture makes it possible for

a single relationship to be constituted by a nested order of relational commitments.

Teachers and parents have the duty to respect the physical integrity of the children

in their charge, a duty they have to any other person. But they also have specific

duties to these children: teachers ought to educate their students, and parents

ought to nourish their children, physically and emotionally.

What I want to retrieve from the Stoic tradition is a juridical view of the

person fundamentally different from the Monadic one. We might call this alternative

the “Relational Idea of the Person.” According to this latter idea, a person is not a

thing bearing special normative properties; a person is a relational standing. As

Thompson puts it, the judgment X is a person is a de-relativization of a prior

relational judgment X is a person in relation to Y, just like X is a sister is a de-

relativization of the prior bipolar judgment X is a sister to Y.31 Just as it is impossible

for you to be a sister if you have never had a sibling, it is impossible for you to be a

person if you have never faced another person. The relationship of right is 31 See Michael Thompson, “What is to Wrong Someone,” p. 353.

29


constitutive of personhood analogously to the way that your relationship to the

offspring of your parents is constitutive of your siblinghood.

Notice, once again, that the necessary conditions for juridical personhood

may themselves be non-relational, but this does not mean that the sufficient

conditions must be equally non-relational. In order to be a sibling you need to be

born, but being a sibling is not a way of being born. Siblinghood is a relational

standing you have to the offspring of your parents. There are no non-relational

sufficient conditions for siblinghood. Similarly, there are no non-relational sufficient

conditions for juridical personhood.

If we return to my earlier contrast between two ideas of form or of unity, a

mechanical and a teleological one, we begin to see how the Monadic Idea of the

Person understands persons on the model of a heap of sand: a grain of sand is

intelligible independently of the relationships it bears to other grains of sand. Just as

comprehension of the grain of sand presumably requires representation by a

monadic judgment of the form A grain of sand is ____ where the blank is filled by

some non-relational property, comprehension of the person presumably requires

representation by a monadic judgment of the form A person is _____ where the blank

is filled by some non-relational normative property. The heap (the relations of one

grain to another) is purely external to the nature of the grain; the juridical nexus

(the juridical form of the relation of one person to another) is purely external to the

nature of the person. By contrast, the Relational Idea of the Person represents

persons on the model of a teleological unity: a hand or foot is unintelligible

independently of the relationships it bears to the body as a whole. As Aristotle used

to say, outside of the context of the living body, a foot is a foot only homonymously.

30


We may say that outside of the context of the relationship of right, a person is a

person only homonymously.

The family of monadic assumptions coalesces into a force that compels us to

leap out of the relationship of right into a monadic value most fundamentally

expressed as the value of the person. The family of relational ideas encourages us

to move in the opposite direction. We only comprehend the idea of individual rights

and of a rights-bearer precisely by staying within the relationship of right rather

than leaping out of it.

So what is it to be a bearer of rights? What is a person? These questions are

fundamental, but they are also fundamentally misleading. They are misleading

because they tempt us to think of the relationship between persons as merely

external, just like the heap is external to the nature of the grain of sand. They are

misleading because they appear to be different questions. A bearer of rights stands

in certain juridical relationships to others; a person is a thing with a special

normative property (e.g., dignity, autonomy, rationality, etc.). The core of

personhood is supposed to stand behind, or underneath, the relationship of right as

a non-relational property. To get a picture of the rights-bearer we must start with a

monadic account of the value of personhood and then somehow get strong relations

back into the picture. This is the same task, raised to a higher level, of solving the

puzzle.

However, we have reason to reject this strategy. Just like two infants playing

together is irreducible to parallel playing, relational rights are not reducible to a

monadic value and an added weak relation. Similarly, we have reason to reject the

assumption that the value of personhood is monadic, something hovering above or

underneath our relations to others. What is distinctive about a person as bearer of

31


rights is precisely what the monadic idea of the person does not let us see: you are

constituted as a person by standing in a relationship of right to others. The nexus

between a person and her rights, and between rights and the value of their bearer,

is internal. We must resist the temptation to confuse the non-relational necessary

conditions of personhood such as being an object, occupying space, or being alive

with the normative, sufficient conditions for personhood. Only my relation to another

person as rights- and duty-bearer is sufficient to give us juridical personhood.

In sum, if we are to dispel the monadic view, we cannot answer the question

of personhood with the monadic judgment A is a person if and only if ______ and by

filling the blank with some non-relational property. Instead, we must understand

persons as one of the parties in the relational juridical judgment A has rights against

B, and B owes correlative duties to A. You and I count as persons not because of a

monadic property we share in common, but because you and I can play the roles of

A and B in the relational juridical judgment. Either one of us can be subject and

indirect object, or addressee, of such judgment.

6. The Very Thought of You: The Reciprocity Condition

The assumption that our initial questions about the nature and justification of rights

have logically independent answers has got us into a puzzle. How can we generate

strongly relational rights from a monadic value plus weak relations? If it is correct to

suppose that strong interpersonal relations (like having rights against each other,

being a sibling or playing together) are irreducible to weak relations (like having the

same size, or parallel playing), then the answer must be that no rights can be

generated from a monadic value. Rights become shadows.

32


I have been arguing that we should endorse the relational model of rights

because it avoids the puzzle and dodges the threat of skepticism about rights. I now

want to sharpen this argument by showing that the monadic model of rights either

cannot explain juridical categories like rights and duties, or, if it does, it can only do

so by presupposing the basic normative status of the relational assumptions. I will

develop this argument in detail for the Monadic Idea of the Person. If the argument

succeeds, the extension to the other assumptions should be straightforward.

Very roughly, I argue that the monadic idea of the juridical person is

intelligible only against the presupposed background of the relational idea of the

person. The point is that the monadic idea may succeed in capturing many

important aspects of personhood in non-relational terms, but these are simply the

necessary conditions of personhood. The monadic idea only captures what is

normatively sufficient to personhood by surreptitiously relying on the relational idea

that the relationship of right is constitutive of personhood. The juridical judgment I

am a person turns out to be parasitic on the relational judgment you are my equal in

rights and duties. If that is so, the relational idea of the person must be normatively

basic. And this would mean that we only understand ourselves as rights-bearers by

jettisoning the monadic model of the person. Let me now develop this argument in

more detail.

Part of the motivation behind the monadic idea of the person is that it is not

just me who is entitled to certain rights by the mere fact of being a person. The

powerful moral thought behind this idea of personhood is its generalized version,

the idea that every person possesses an equal entitlement to basic rights by the

mere fact of being a person.

33


This means that the monadic idea of the person presupposes what I shall call

the “Reciprocity Condition,” the view that if you have duties to me based on my

rights, then I have the same duties to you. If I have the right to life and you have

the duty to respect my right to life, say, by not murdering or torturing me, I have the

very same duties to you. But if I have the same duties to respect your life, this

means that you must have the very same right to life against me that I have against

you.

To appreciate the force of the reciprocity condition we should distinguish

general from special rights and duties. Unlike special rights and duties which arise

either from specific transactions between persons (e.g., a specific contract) or from

specific standing relationships between persons (e.g., sergeant-troop, parent-child),

general rights emerge simply from a person’s standing qua person. General rights

correlate to general duties.32 This distinction was implicit in Epictetus’s claim that

certain commitments attach to general roles, like the role citizen of the cosmos,

while others attach to special roles, like the role son or councilor.

When it comes to special rights and duties, the reciprocity condition most

often fails. The rights and duties of a sergeant, a teacher or a parent are not those

of a troop, a student or a teenage son. When I promise to you that I will care for your

ficus tree, you now have rights that I do not have, the right, namely, that someone

care for your ficus tree. The reciprocity condition fails for special right-duty pairs

because such pairs are usually asymmetrical.

However, when it comes to general right-duty pairs, it is crucial to see that

the reciprocity condition must hold. That is because when it comes to general rights,

rights attaching to your standing as a person, you and I stand in a perfectly 32 For this well-known distinction, see, for instance, H.L.A. Hart, “Are There Any

Natural Rights?,” The Philosophical Review 64: 2 (1955): 188.

34


symmetrical condition. If I have the general right to freedom of expression, you have

the correlative duty to not interfere with my speech. But the mere fact that you

have this general duty to me entails both that I must owe you the very same duty

and that you must bear the very same right to freedom of expression. We can state

the reciprocity condition thus: if have a general right to X against you, you must

have a correlative duty to me with regards to X, and consequently you must also

have the same right to X against me, and I the correlative duty to you. You and I are

one in general rights.

Keeping in view the reciprocity condition is important for understanding the

form of first-person and second-person juridical judgments. If the reciprocity

condition holds, my thought of you as bound by a duty to me presupposes that I

think of you as an equal person to me, i.e., a person bearing the very same general

duties I bear. And if this is so, when I think of myself as a bearer of rights I

presuppose that I am an equal person to you, i.e., a person bearing the very same

general rights you bear.

If we set aside the juridical asymmetry introduced by special rights and

duties, two persons must always stand in a perfectly symmetrical relationship. Each

must have the very same rights and duties as the other. But given the symmetrical

reciprocity condition, whenever I think of you as having a certain general duty to

me, I must think of myself as having the very same duty to you. The same occurs on

the side of rights. Given the symmetry brought out by the reciprocity condition,

whenever I think of myself as having certain general rights against you, I must think

of you as having the very same rights against me.

But what is the significance of the reciprocity condition? I would like to

highlight two crucial upshots of symmetrical form brought out by the reciprocity

35


condition. The first is that the reciprocity condition is a representation of the

normative form of the doctrine of correlativity. This form is the norm of equal

recognition. If I stand in a juridical relationship, I am bound to recognize you as my

equal.

It is of crucial importance to realize that equal recognition has three features:

it is formal, juridical and relational. Equal recognition is formal because what I

recognize in you is not a particular basic value. You and I are not equals because we

equally deserve to possess a certain measure of a good like well-being, rationality,

autonomy, or any other substantive value. We are not equals because we possess

the same urgent interests. In our terms, this judgment of equality would be merely

weakly relational. Instead, our equality is formal and strongly relational: our equal

standing as rights-bearer vis-à-vis each other is irreducible to a monadic property,

just like to the left of is irreducible to occupying a certain space or being a sibling to

is irreducible to being born to these parents. Equality of recognition, then, is formal,

strongly relational and juridical. It is juridical because our formal and strongly

relational equality is precisely our equal standing vis-à-vis each other with regards

to our general rights and duties. Our rights and duties are strongly relational, then,

in the sense that they are rights against each other and duties owed to the other.

The second upshot of the reciprocity condition is that there is an internal

conceptual connection between first-person and second-person juridical judgments.

Second-person juridical judgments like you are bound to respect my right to the

security of my person entail the first-person judgment I have a right to the security

of my person against you. But notice two crucial features of this logical relationship.

The first is that the entailment runs also in the other direction. The first-person

judgment I have a right to the security of my person against you entails the second-

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person juridical judgment you are bound to respect my right to the security of my

person. This mutual entailment further supports the view that the reciprocity

condition brings out the strongly relational character of our rights and our status as

persons. The second crucial feature is that, given the reciprocity of general rights,

when I judge that I have the right to X I must also judge that you have the very

same right to X. This generates a new form of entailment. First-person juridical

judgments like I have the right to security of the person entails you have the right to

security of the person. And the entailment here also runs both ways.

These two features should not be surprising to anyone familiar with the

doctrine of correlativity. What may be more surprising, however, is the result that

there is an internal connection between first-person and second-person general

juridical judgments. The second-person judgment involves me in the same way in

which my first-person judgment involves you. This is not a coincidence. After all, the

surprising and crucial element of this conceptual relation is that either one of us can

occupy either role. The first-person judgment I have a right to the security of my

person against you is not a thought exclusively for me, but rather is a thought that

both of us must have if either of us is to think of ourselves as bearers of rights.

The reciprocity condition and the norm of equal recognition bring out the

surprising logical fact that there is a latent identity between a first-person and a

second-person juridical judgment. Whenever I think of myself as a bearer of general

rights, I must think of you as bound to me. But you must think the very same

thought.

If the monadic idea of the person is indeed committed to the reciprocity

condition, as it appears to be, then the monadic idea of the person has explanatory

power only because it presupposes the relational idea. It presupposes the relational

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idea because, at bottom, the monadic idea leads to the recognition that first-person

and second-person general juridical judgments are essentially the same, rather than

externally and contingently related judgments. The judgment I am a juridical person

is not really monadic because it is a thought for two: you and I think the very same

thought when you and I are in a relationship of right. The judgment I am a juridical

person is not a monadic but a relational judgment because it represents the unity of

first-person and second-person general juridical judgments.

This is a good moment to review my argument. I first argued that the

monadic idea of the person presupposes the reciprocity condition. If I think of you as

bound to me, I must think of you as bearing the same general rights and duties I

bear. I then argued that the reciprocity condition brings out the key juridical norm of

equal recognition. Reflection on the reciprocity condition and the norm of equal

recognition led us to see that there is an internal connection between first-person

and second-person juridical judgments. I can only judge that you bear certain

general duties to or rights against me if I can judge myself as bearing the very same

general duties to and rights against you. Crucially, the converse must also obtain: I

can only judge myself as having certain general rights against and duties to you if I

can judge you as bearing the same general rights and duties. If the argument so far

is correct, it should deal a fatal blow to the monadic idea of the person.

The monadic idea of the person is the view that we best comprehend the

value of the person through a monadic judgment. This means that the relations of

one person to another are completely external and accidental to the nature and

value of the person. But if this is so, the first-person judgment I am a bearer of rights

should be intelligible independently of any second-person judgment. Put differently,

for the monadic idea to hold its ground, the first-person judgment I am a bearer of

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rights must have no logical entailments to second-person juridical judgments. Thus,

the judgment I have the right to life must not entail you have the right to life, etc.

But the reciprocity condition to which the monadic person is committed brings out

two kinds of entailments: one between my rights and your duties, and the other

between my rights and your rights. Since our general rights are identical, the

judgment I have the general right to X entails the judgment you have the general

right to X, and vice-versa. Thus the reciprocity condition entails that the first-person

judgment I am a bearer of rights is unintelligible independently of second-person

juridical judgments. It also entails that the judgments I am a bearer of rights and

you are a bearer of rights are in fact the very same thought. This is because when

you and I stand in a relationship of right, we must think the very same thought I am

a juridical person. I can only think of myself as a bearer of rights against you. But

this means that you can only think of yourself as a bearer of rights against me.

If this line of reasoning is correct, the monadic idea of the person bears the

seeds of its own destruction. For the monadic idea, the judgment I am a person is

logically independent from my thoughts of you. Of course, there might be a sense in

which I can think of myself as a person without thinking of you: I can think of myself

as a being with certain capacities, or perhaps as a psychological or spatial

continuity. However, as the reciprocity condition brings out, I cannot think of myself

as a juridical person, as a bearer of rights, without thinking of you. I cannot think of

my general rights without thinking that you have the very same rights. The

reciprocity condition leads to the conclusion that the judgment I am a person is

always a thought for two.

When I think of myself as a person I do not go through the syllogism: All

persons are ____ (blank filled by monadic property); I possess _____; therefore I am a

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person. Given the logical features of the reciprocity condition, thinking of myself as

a person cannot be going through this syllogism, which starts from a monadic

property and then represents others in a weakly relational way, i.e., as having the

same monadic property. Instead, the reciprocity condition and the norm of equal

recognition bring out the latent form of first-personal juridical judgments. When I

think of myself as a person I think of myself as your equal. But if this is right, the

second-personal you is ineliminable from my first-person juridical thought.

Once we realize this logical feature of the reciprocity condition, we also

realize that the monadic idea of the person collapses into the relational one. This is

to say that the monadic idea is capable of any explanatory work of the idea of rights

by surreptitiously relying on the relational idea. The monadic idea gives us the

impression that we are explaining rights by building from a monadic property. Its

commitment to the reciprocity condition shows that this is an illusion: it can only

explain the thought I am a bearer of rights by relying on the strongly relational

judgments my rights correlate to your duties to me and you and I have the very

same general rights. And this reinforces the analogy with other strongly relational

concepts like sibling and kidney. Just like the concepts of siblings and kidneys

cannot be reduced to their monadic necessary conditions (being born to my parents

or having a certain protein structure) but require strongly relational judgments, the

concept of a rights bearer cannot be reduced to its monadic necessary conditions

but requires the strongly relational judgment characteristic of the mutual entailment

of first-person and second-person judgments of general rights.

7. The Very Thought of You: Rights as Entitlements to Equal Recognition

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Supposing that I have succeeded in dissolving our puzzle about rights by replacing

the monadic assumptions with their relational counterparts and by arguing,

specifically, that the monadic idea of the person has explanatory power only by

surreptitiously relying on the relational idea, what does this all mean for our initial

questions about the nature and justification of rights and wrongs?

The key lesson I mean to draw from this reflection is that our questions about

the nature and justification of rights are internally related. To comprehend the

nature of rights is thereby to comprehend their justification, and to justify rights is

thereby to have explained their nature. This means that we cannot look for the

ground of rights in some value independent from rights. One might be tempted to

think that if there is no external justification of rights, rights are arbitrary. But this is

exactly the inference I have been trying to resist. The justification of rights is

immanent to their nature. What could this mean?

If we reject the monadic assumption, we presume that the fundamental form

of a juridical judgment is relational, and if we reject the instrumentalist assumption,

we adopt a non-instrumental model of the justification of rights. Aristotle and Kant, I

think, used this non-instrumental model to explain the normativity of organisms like

leaves and kidneys. We understand the nature of a leaf or kidney by understanding

its function, its normative role within the whole. And we understand the normative

role within the whole organism not by explaining the organ in terms of its monadic

necessary conditions (even if these are important in a different level of analysis),

but instead by understanding the strongly relational role the organ plays in the

organism. The leaf photosynthesizes; the kidney filters blood. Similarly, I have been

arguing that we should deploy this model for understanding the nature and

justification of rights. We understand the nature of a right by understanding its

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normative role within the whole. The whole in question, in its most immediate stage,

is the relation between two persons. The role a right plays within such a whole is to

demarcate a specific type of normative relationship: my entitlement to equal

recognition.

My entitlement to equal recognition, recall, is formal and strongly relational.

Equal recognition is not the entitlement that others recognize the value of a

monadic property I bear, such as dignity or autonomy. Instead, equal recognition is

strongly relational and formal. It simply represents this norm: you and I ought to

interact with each other as equals in general rights. The norm of equal recognition

thus informs the latent identity between first- and second-person judgments about

general rights. The judgment I have general right X entails you have general right X,

and vice-versa. There is nothing more to the norm of recognition.

And yet, in spite of its spare formality, the norm of equal recognition can

illuminate the way in which the nature and the justification of rights is identical. At

bottom, rights just are entitlements to equal recognition; we justify rights essentially

by showing how they are requirements of equal recognition. Although formal, this

relational view of rights stands in stark contrast to the predominant accounts of the

nature and justification of rights. Naturalist and institutional models of rights tend to

make the instrumentalist assumption that the ground of rights is in principle

intelligible independently of rights. Rights are thus justified by some type of interest

or choice. The relational view of rights as entitlements to equal recognition eschews

the three monadic assumptions usually made by predominant theories. We

understand rights as entitlements to equal recognition when we eschew the

assumption that at bottom juridical judgments take a monadic form, the assumption

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that we justify rights instrumentally, and the assumption that the value of

personhood is intelligible non-relationally.

Reflection on the reciprocity condition brought out surprising logical facts

about first-person and second-person judgments about general rights. We realized

that there is a latent unity behind such judgments, informing the logical fact that

they mutually entail each other. This is due to the symmetrical character of the

basic principle of rights, the norm of equal recognition. And if my argument is

correct, we have also seen how the monadic idea of the person is able to account for

rights only by relying on this basic principle.

To the extent that my arguments persuade, we should begin to imagine

differently what it is for me to think of you juridically. The Monadic Model

encourages a familiar yet odd picture. It represents my thought of you as the output

of a theoretical syllogism starting from the premise All persons are _____, then filling

the blank with some non-relational normative property, and finally asserting that

you are a particular instance of this general concept. The general structure of the

account is to begin with some monadic property and then to reduce rights, duties

and the value of personhood to a weakly relational concept. This structure got us

into our puzzle about rights.

However, in the fundamental case, the direction of the argument is precisely

the converse. I start from the thought you are my equal in general rights, a thought

identical with I am a bearer of general rights. And from that thought I may move to

the more general one a person bears such and such general rights and duties. We

must avoid the natural temptation to think the latter judgment more fundamental,

as if it gave us a metaphysical snapshot of the internal constitution of a person. In

this sense, juridical judgments, like organic judgments, are strongly relational. In

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thinking of you as a person, you and I think the same thought. I am a bearer of

rights is always a thought for two.

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