Eleanor Curran’s excellent book, Rethinking Rights, surveys the philosophy of legal rights, its history and current importance. The book’s purpose is “to examine the history of rights theory and the effects of that history and how it has been written, on how philosophers think about rights today….” (P. xiii.) Thus the book concerns, not a theory of rights, but a theory of rights theory. The book examines a number of modern theories of rights, in particular the analysis of rights due to WN Hohfeld. This analysis is employed as a means of investigating historical conceptions of rights, especially that of Hobbes; the author claims that the analysis at best only partially captures Hobbes’s sense of “‘right”. Whilst a proof of this would be an interesting philosophical result, the author does not explore until much later modern theories (of Nigel Simmonds and, perhaps, HLA Hart) which limit the Hohfeldian analysis to certain types of private law rights: Hohfeld’s analysis was never intended to capture all types of right, especially not those manifestations of rights-analysis that are premodern or early modern. Similarly, the author examines the two dominant theories of rights at the present day, the will theory and the interest theory, claiming that neither properly encompasses all kind of right. Though interest theorists and (to an extent) will theorists would resist such a claim, it could be argued that both theories represent particular regimentations of ordinary discourse about rights; rather than such theories failing to capture certain types of rights discourse (as the author suggests), there is an alternative explanation: that rights discourse itself is incoherent. Some discussion of such a possibility would have been welcome.
The main lines of argument in the first section of the book owe a debt to Brian Tierney, which is acknowledged in the Preface. And indeed the book’s second sentence repeats a history of rights propagated by Tierney, namely that the period from the late-medieval to early modernity is characterized by a shift from so-called “objective” right to the now more familiar “subjective” right. (Pp. xi, 4.) Much has been written which casts doubt upon this alleged shift, a version of subjective right appearing, for example, in Aquinas’s Summa Theologiae (II-II.57.1c) in the thirteenth century. (I do not personally subscribe to belief in the early modern origins of subjective rights; everything Grotius says of substance about rights is anticipated by Aquinas (Id. at IIII.57.1 ad 1)). The author understands the early modern writers, Hume in particular, to have “devastated” the philosophical justification of earlier doctrines of natural rights, a judgment not shared by a sizeable number of modern philosophers who expose the misunderstandings in Hume’s own premises (see Finnis, Natural Law & Natural Rights at 33-42). But a greater concern is the author’s tendency to regard Ockham, Aquinas, Grotius and Locke as belonging to a single and undifferentiated tradition, and thus for example to treat Locke as offering a “classical” theory of rights. (P. 6.) Such a classical theory is based on natural law, “which exists outside those it commands, and sets out what is morally right (and wrong)….” (P. 9.) This does not correspond to the natural law accounts of the major theorists, including Grotius and Locke, for whom natural law is not “outside” the person but is a “participation of natural law in the rational creature” (Aquinas, Summa Theologica at I-II.93.2c), and is not primarily concerned with right and wrong but with the good and the bad (Id. at III.94.2c).
Grotius is presented as a secular natural law theorist, in common with other commentators, though with more caution than most. (Pp. 13-14.) This is on the strength of his famous etiamsi daremus passage, translated here as that “if God did not exist, natural law would still be true.” (P. 14.) This is not in fact what Grotius says. He says that “even if we assume (what cannot be assumed without the uttermost wickedness) that God does not exist or that human affairs are of no concern to Him, what we have been saying [viz about natural rights] would retain somewhat the same status [locum aliquem]…” (“somewhat” not “completely”). The author alleges that Grotius is the first writer to base natural law on philosophical rather than theological premises. A brief glance at Aquinas’s treatment of natural law in the Summa Theologiae and elsewhere suffices to falsify this idea. Grotius is in any event not the secular figure of common mythology: a myth perhaps perpetuated by the fact that his constant and painstaking references to Biblical and sacred texts have been stripped out of most modern editions of his work.
The main purpose of the book is to differentiate individual rights from generic group rights or those based on function. The book traces the history of subjective/individual rights through the early modern period to the present, charting Hume’s and Bentham’s criticisms of natural rights and underlying doctrines, as well as Finnis’s debunking of those criticisms. The author asks: will this make any difference to the history of natural rights theory? And answers, rather curiously, no, on the ground that natural law theories are unlikely to be accepted by mainstream audiences in the conditions of modern western societies. (P. 35.) The avowed intention to offer a history of a history of natural rights theories cannot wholly absolve the author from an account of the truth of such arguments: the fact that philosophical tribalism means that most philosophers believe X is much less important than whether X is true, after all.
The core of the book is an argument against the use of Locke’s natural rights theory as the paradigm for a modern individual rights theory (one the author sees as entrenched in modern minds) (P. 39) in favour of Hobbes’s theory (43ff). The author provides some interesting discussion of Hobbes on natural right, though she argues that the foundation of such rights, for Hobbes, is liberty (P. 53); actually the ultimate foundation of rights in Hobbes could be found in fear, or at least the circumstances which bring about fear in the quasihypothetical natural condition. There follows a lively discussion of the extent to which Hobbes’s views on rights marry up with modern notions of rights, which proceeds (P. 65 n.1) to a discussion of how philosophy underwent a “jurisprudential turn” with regard to rights, centring particularly on the work of Hohfeld, which is detailed (P. 67 n.1) and criticised as not a universal analysis of rights. (P. 79 n.1.) There are in total three chapters on Hohfeld, which provide some interesting analysis of both its historical and present-day importance. Any discussion of Hohfeld that offers some new perspectives on his work is both unusual and welcome, especially if it challenges current orthodoxy. Among the limitations the author finds in Hohfeld’s analysis are two that, oddly, modern theorists would take to be strengths: its separation of right from liberty, and its excision of any notion of value from the concept of right. (Pp. 99, 115-16; 125-28.)
The book’s second part turns away from historical concerns and offers an assessment of the jurisprudence of rights. It concludes with a pair of chapters on the philosophy of rights. The first (chapter 7) offers a good summary of the major positions within rights theory (will and interest theories etc) and is thus far useful though unremarkable; but it is distinguished by an interesting thesis of the grounds of human rights which function akin to Finnis’s basic goods: agency/autonomy, fundamental interests/dignity, basic needs, a good life. (Pp. 130-34.) Here the author arguably blurs the line drawn earlier between “individual” rights and group rights, for the grounding of human rights (at this point under discussion) does nothing to pick out individuals and are referable to general characteristics: perhaps the author could elucidate the distinction in future work. The final chapter argues for a fourfold distinction among rights: (i) rights of assertion (roughly corresponding to Hohfeld’s claim-right); (ii) rights of aspiration (roughly Hohfeldian liberty but on a grander scale, to include e.g. the right to freedom of expression or the pursuit of happiness); (iii) rights of self-preservation and wellbeing (those required to uphold the possibility of a minimally decent life); and (iv) rights of legal or social organisation (rights unlike (i)-(iii)) that are not bestowed purely in virtue of the humanity of their holders but on the basis of social group membership). (Pp. 144-47.) There is scope in future work for the author to flesh out these ideas, and it is to be hoped that she will do so. For the moment, the book concludes by completing the discussion with which the book started: with the analysis of the concept of individual right.
There is much in this book to contest, but it is never less than vividly thought-provoking, and its discussion is always stimulating. Its relative brevity should encourage readers to engage with its clearly-forged and economically expressed doctrines, and anyone wishing to gain familiarity with the territory of modern rights theories and their history can be well advised to read it.
