In his rich and carefully argued book, Rights and Right-Holding: A Philosophical Investigation, Matthew Kramer seeks to articulate the essence of any entitlement (whether legal or moral) that can be classified as a right and the essence of an entity’s holding that right (P. 5). He does so both concerning rights in the capacious sense — which includes all four entitlements identified by Wesley Newcomb Hohfeld (claim-rights, liberties, powers, and immunities)1 — and concerning rights in the narrower sense of claim-rights only.
The book is a (qualified) defense of the fundamentals of the Hohfeldian analysis of rights — in particular, what Kramer calls the correlativity axiom, under which each duty is correlated with at least one claim-right with the same content (and every claim-right is correlated with at least one duty with the same content). And it defends an interest theory of the holding of a claim-right against the so-called will theory. Under the will theory, A holds a claim-right if and only if A has the power to control the existence and enforcement of the correlative duty (through waiver, demand, and the like).
I have elsewhere criticized the book’s discussion of liberties (and their correlative, no-rights).2 My goal here is to praise the bulk of the book — and particularly Kramer’s non-justificatory approach to claim-rights and their correlative duties. An example of a justificatory approach is Raz’s interest theory of rights. Under this theory, to say that A has a claim-right is to say that A has an interest that is a ground for holding another to be subject to a duty.3 For example, you have a moral right to privacy if your interest in privacy justifies my moral duty not to open your mail. Under Raz’s theory, rights are dynamic in the sense that they justify more particular duties. The justified duty is not the right’s correlate, for it has more particular content than the right does.
An essential part of Hohfeld’s project was distinguishing what necessarily follows from a legal right’s existence from conclusions that might be justified from its existence. The cardinal Hohfeldian sin is to misconclude from A’s legal liberty-right vis-à-vis B to φ that A necessarily has a legal claim-right against B to non-interference in A’s φ-ing. Sometimes the claim-right is justified, and sometimes it isn’t. No claim-right follows as a matter of deontic necessity. In this sense, Hohfeld offered a non-justificatory theory of legal rights.
Kramer carries on the same tradition. Although he is skeptical about Raz’s justificatory theory, he freely concedes that Raz’s theory is compatible with his own (P. 129). Your Razian right to privacy would be correlated with non-specific duties on me to respect that privacy — duties that have the same non-specific content as your right. And when one concludes that my particular duty not to open your mail is justified, it necessarily follows that you have a claim-right with the same content — a claim-right that I not open your mail (Pp. 124-27).
Much of Kramer’s book spells out how claim-right correlates for duties or duty correlates for claim-rights can be found, both in morality and law. Using analytical maneuvers well beyond those Hohfeld envisioned, Kramer identifies deontic positions that have previously been ignored. This makes his project, in a curious sense, the converse of Hohfeld’s. Whereas Hohfeld sought to keep justificatory views from leading us to misconclude that certain claim-rights and duties necessarily exist, Kramer seeks to keep justificatory views from leading us to misconclude that certain claim-rights and duties do not necessarily exist.
The most significant part of Kramer’s book is its defense of his interest theory of the holding of a claim-right:
Individually necessary and jointly sufficient for the holding of a claim-right by X are (1) the fact that the duty correlative to the claim-right deontically and inherently protects some aspect of X’s situation that on balance is typically beneficial for a being like X, and (2) the fact that X is a member of the class of potential holders of claim-rights. (P. 179.)
When seen from a justificatory perspective, many elements of this account look like non sequiturs. Consider the typically requirement in section (1). How can the fact that B’s duty protects some aspect of A’s situation that is typically beneficial for a being like A (but not actually beneficial to A) explain A’s claim-right vis-à-vis B? It can’t if the goal is justification. Or consider the beneficial requirement, also in section (1). According to this requirement, officials can hold a claim-right against the public that the public not interfere in the officials’ carrying out their responsibilities only if the officials benefit from the public’s correlative duties of non-interference. The reason they benefit, Kramer argues, is that the public’s duties allow the officials to better execute their chosen job (P. 228). But how can that incidental benefit explain why the officials hold the claim-right when the claim-right’s justification is the benefit to the public, not the benefit to the officials? Again, if the goal is justification, it can’t. These problems evaporate, however, when Kramer’s theory is understood as non-justificatory.
Similar (apparent) problems arise concerning Kramer’s theory of what it takes to be a possible holder of a claim-right, in section (2) of the formulation of his interest theory above. For the record, I am skeptical about the details of Kramer’s theory. But some aspects of his theory only appear problematic because one has adopted a justificatory perspective. The fundamental criterion for inclusion in the class of possible holders of a claim-right is being a creature with ultimate value (P. 312), which is the case if and only if one has the capacity for self-reflection and the furtherance of one’s interests is intrinsically valuable (P. 316). But membership in the class is not a matter of simply identifying entities that satisfy the fundamental criterion (which would exclude, for example, fetuses and the comatose). Rather, the goal is the identification of a community with ethical ties (P. 330).
Due to considerations that space restrictions keep me from elaborating here, the result (which Kramer himself acknowledges) is speciesism. Kramer’s theory is speciesist in two senses. First, all members of the human species are admitted into the class of possible holders of a claim-right, despite the fact that some members (such as anencephalic infants) will never have the capacity for self-reflection during their life (P. 326). Second, even though Kramer includes some non-human animals within the relevant community, he excludes vermin (such as cockroaches and tsetse flies) (P. 345).
Seen from a justificatory perspective, these conclusions look suspect, for they seem to generate duties protecting anencephalic infants that are equivalent to those protecting competent human adults and to reject duties protecting vermin. But because Kramer’s theory is non-justificatory, that isn’t the case. There is nothing about Kramer’s theory that excludes the possibility that we have more stringent duties to protect vermin than we have to protect anencephalic infants. The point is simply that the claim-rights correlated with the duties that protect vermin cannot be held by the vermin, whereas any claim-rights correlated with the duties that protect anencephalic infants can be held by the anencephalic infants.
Because Kramer’s theories are divorced from justificatory matters, the rights and right-holdings they identify seem curiously epiphenomenal. They accompany our justificatory enterprises but perform no work in them. Nevertheless, Kramer’s theories have succeeded in capturing an important set of everyday patterns of usage of the term right (and associated terms). Of course, the fact that his theories track such patterns is not a sufficient reason to accept them. They must articulate meaningful concepts of a right and of an entity holding a right. But I think Kramer’s theories do. They are the concepts, like Hohfeld’s, that are employed after justificatory work has been completed. And, like Hohfeld, Kramer has shown that sensitivity to these concepts is essential to keeping justificatory concerns from interfering with our deontic reasoning about the rights and right-holdings that are justified.
- Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16 (1913). Hohfeld himself generally used the terms rights and privileges instead of claim-rights and liberties.
- Michael S Green, Liberties and Absences, 17 Jur. __ (forthcoming 2026), available at SSRN (Jan. 10, 2026).
- Joseph Raz, On the Nature of Rights, 93 Mind 194 (1984); Joseph Raz, Legal Rights, 4 Oxford J. Leg. Stud. 1 (1984).
