ZHAO Shukun* & YU Qing**

 

Abstract: To defend the explanatory power of the choice theory of rights, choice theorists have put forward the impossibility theorem, the proposition of moral priority, and the redundancy theory of rights to deny the existence of inalienable rights. However, the impossibility theorem confuses power and privilege and breaks through basic legal relations; the proposition of moral priority shifts from the importance of rights to the absoluteness of rights by refusing to recognize the “threshold” of rights; the redundancy theory of rights ignores the “severity increasing effect” of rights. Therefore, the accusation made by choice theorists is groundless.

 

Keywords: rights · inalienable · Hohfeld · normative power

 

What do rights protect? For the question, there are two representative theories that answer that question, namely, the choice theory and the interest theory. The choice theory believes that “the essence of rights is to confer power and choice on right holders;” while the interest theory holds that “the essence of rights lies in interests protected by laws.”¹ Both of their theoretical frameworks attempt to enhance their own explanatory power by analyzing what “people say” about rights. That is to say, the aforementioned rights theorists are concerned about “discovering or revealing the meaning of ‘a right’” rather than the conceptual meaning of “giving.”² However, it was widely believed that there are certain inalienable rights, and Thomas Jefferson’s wise words still influence the world today: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” Additionally, the immunity granted by the Constitution and the rights of criminal defendants in criminal law are also what citizens may not waive. In modern liberal cultures, these rights are considered fundamental.³ Because the choice theory respects individual autonomy, it has difficulty recognizing people’s inalienable rights.⁴ When faced with the accusation of theoretical narrowness, choice theorists typically respond with two strategies. The most typical strategy is to narrow down the scope of the theory’s explanation. For example, Hart believes that the choice theory can only explain the rights in the operation of “general” laws.⁵ Another strategy is to directly deny the rights to be explained. For example, Hillel Steiner uses the “impossibility theorem” and the “proposition of moral priority” to argue that rights cannot be inalienable and that even if they could be, this would not be morally justifiable.⁶ The first strategy actually confines the choice theory to a limited scope, acknowledging the limitations of the theory. The second strategy directs the question to the usual understanding of rights. In Steiner’s view, it is not that the explanatory power of the choice theory is insufficient, but that the inalienable rights are not tenable. Similar strategies are common. For instance, when faced with role-defining rights that cannot be explained by the interest theory, Kramer directly denies them as rights.⁷ The second strategy generally involves the justification for rights to be explained and leaves more room for discussion and reflection. If the argument of the second strategy is successful, choice theorists will not only have more reasons to respond to the doubts of others, especially those interest theorists, but also expose their everyday misunderstanding of rights. This paper takes the second strategy as the object of reflection to reproduce the three criticisms of choice theorists, namely the impossibility theorem in logical analysis, the proposition of moral priority in moral argument, and the redundancy theory of rights in semantics, and points out that the accusation against inalienable rights made by choice theorists is groundless. Rebuttals in these three aspects constitute the core part of this paper, which are discussed in the second, the third, and the fourth sections respectively. Section 1 discusses the neutral starting point for theories of rights. In order to deny inalienable rights, choice theorists provide coherent arguments. However, these arguments have to admit an important premise, that is, they have to be based on a neutral theory. Any scholar who is familiar with the long-running debate between the choice theory and the interest theory may have doubts about whether these arguments are reasonable presentations of answers preset by the choice theory. Choice theorists promise, “(these arguments) are entirely independent of the choice theory, and apply equally to rights conceived in accordance with the interest theory.”⁸ The significance of starting with a neutral starting point is that this establishes a reflective standard for reviewing what choice theorists say wrong and to what extent it is neutral.

 

 

A coherent theory of rights usually consists of two parts: the logical structure and normative functions of rights. The former is a matter of concept, explaining what rights are; while the latter is a matter of normativity, explaining why rights are important. In terms of the logical structure of rights, Hohfeld’s framework has been widely accepted. As far as normative functions of rights are concerned, there are two competing theories on what rights can bring to right-holders, namely the choice theory and the interest theory. Both of them recognize the more fundamental function — the normative power of rights. Therefore, Hohfeld’s framework and the normative power of rights are an indisputable fact about rights and also the neutral starting point discussed in this paper.

 

 

Hohfeld told us that various uses of rights are superficially similar but actually different. This superficial similarity often leads to conceptual confusion.⁹ In order to clarify the concept of rights, Hohfeld pointed out that there are four basic components of rights, namely the claim, the privilege, the power, and the immunity. Hohfeld arranged the four components in tables of “opposites” and “correlatives” so as to display the logical structure of his system. In order to fill out the tables, he added another four terms. The logical structure of them is as shown in the figures below.

 

Fig. 1 basically defines what Hart called the “primary rule,” that is, the obligatory rule that orders people to do or not to do certain behaviors. Fig. 2 basically defines what Hart called the “secondary rule,” that is, the authorizing rule that stipulates how actors can introduce, change, and modify the primary rule.¹⁰ The concept of powers is precisely a concept that “stitches” the two rules together. Therefore, Fig. 1 and Fig. 2 represent the first-order and second-order relations. Fig. 1 corresponds to first-order rights, which point to the actual physical behaviors of an obligor; while Fig. 2 corresponds to second-order rights, which act on first-order rights. For example, I have the privilege to use or not to use my computer, and the claim against others taking or using it. Also, I have several powers with respect to my claim — I may waive, annul, or transfer the claim. When I sell the computer to you, you therefore have the claim on transferring it and I am therefore obliged to hand it over. Obviously, my second-order rights (powers) are a prerequisite for creating your first-order rights (claims). However, this one-way pointing between the first and second order rights induces an infinite unclosed system. Take the army’s selection of excellent soldiers as an example. The squad leader has the right to select A as an excellent soldier; the platoon leader has the right to deny the squad leader’s power; and the company commander has the right to deny the platoon leader’s power... This leads to a trend of regress toward higher orders. Similarly, I have a claim over my property. In second-order rights, my immunity prevents others from changing my claim at will, but the state may expropriate my property under certain circumstances. At the same time, I also have third-order immunity, so that the state may not change my second-order rights at will. For example, the state may expropriate my land, but it may not buy or sell my land at will. The first-order and second-order systems basically show the internal structure of rights. Meanwhile, the multi-level structure of rights also shows that rights are often not a simple first-order state put forward by Hohfeld, but a state of “molecular rights” proposed by Wenar.¹¹

 

 

According to Hohfeld’s correlative relations, the contents of rights and duties are equivalent, “if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) relation is that Y is under a duty toward X to stay off the place.”¹² Hohfeld’s framework describes to some extent the normative power of rights. However, as a conceptual and formal framework, it cannot explain too much about the strength and source of this power. We can introduce the concept of “reasons” to analyze the “normative power of rights.”¹³ “X has a claim-right against Y that he shall stay off the former’s land” can be expressed as “Y has reason R to stay off the land,” and Y’s reason R for staying off the land is X’s claim-right. The problem is that not only X’s claim-rights can provide a reason for Y to stay off the land, but other normative concepts such as virtue, liberty, and equality, etc. can also provide a reason. For example, although it is a wasteland, there are beautiful flowers growing on it, and Y has a heart of compassion, does not want to trample on the flowers and plants, and stays off the land. The duty of mercy requires Y to stay off the land, but it does not correspond to anyone’s right. In this case, if you want the concept of rights to be important, the reason for rights has to make a practical difference, that is, it has to be a final reason. This means that (1) rights reasons can often rule out other moral reasons; and that (2) rights provide a strong justification basis for the behavior of right holders, even if there are other stronger moral reasons. Dworkin’s concept of “trumps” may better describe the priority of such reasons. In Dworkin’s view, rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole.¹⁴ Of course, whether there is a right of absolute priority is still a matter of debate. When Professor Chen Jinghui used the “protected concept” to describe the normative power of rights, he proposed two versions of understanding, the strong and weak versions. The difference between them is whether rights reasons can always rule out other moral reasons. The strong version holds that rights reasons always rule out other moral reasons, so a substantive debate can be closed by simply saying “it’s one of my rights.” However, it cannot explain the phenomenon of rights conflicts. The weak version recognizes the trump effect of rights, and at the same time allows rights to be overridden by other values, which is more in line with the practice of rights.¹⁵

 

Where does this unique normative power of rights come from? It ultimately rests on some kind of substantive value promises. From the perspective of the choice theory, the significance of rights lies in the fact that they empower right holders to exercise control over the duties of others, so that right holders’ free will in specific areas is ensured.¹⁶ Individual autonomy becomes the value promise of the choice theory. Since individual autonomy is so important, background reasons that interfere with individual will have to be ruled out, even if they are very powerful. Therefore, in order to protect individual autonomy, the choice theory is more inclined to agree with the strong version understanding of the normative power of rights, and understands rights as trumps over other moral reasons. Value promises of the interest theory are things that are good for individuals. The interest theory has different explanations for this. The representative theory is Raz’s view on rights to the common good.¹⁷ The reason why rights have additional normative power is that they protect not only the individual interests of right holders, but also the common good of community members. The protection of individual interests by rights, though slight, creates additional protection by promoting the common good. With the help of the power of the common good, the interest theory well matches the normative power of rights. Raz’s interest theory is more inclined to agree with the weak version understanding of the normative power of rights. Because rights serve the common good more, individual interests may be sacrificed for the common good. If other moral reasons are provided by the common good, rights may be overridden in the process of achieving a trade-off.

 

Based on the above two basic consensuses, choice theorists have put forward three critical propositions to deny inalienable rights. The impossibility theorem is a logical criticism on the basis of Hohfeld’s framework. The proposition of moral priority and the redundancy theory of rights are the moral criticisms based on the normative power of rights and the semantic criticism respectively. Among them, the proposition of moral priority makes full use of the “practical difference” caused by rights and rules out any moral justification of inalienable rights; while the redundancy theory of rights points out from the perspective of semantics that the concept of inalienable rights cannot match the consensus on the normative power of rights because it has no “freedom of choice.”

 

 

After clarifying the neutral starting point for theories of rights, it is time to turn to the analysis of the question “what is an inalienable right?”? An inalienable right is a right that cannot be taken away. The intentional action of the right holder to waive it cannot annul the duties of others, and others’ failure to perform relevant duties still constitutes a tort. If the right holder cannot annul relevant duties, this means that he lacks the power to change his own normative state, that is, disability in Hohfeld’s system. In Hohfeld’s view, a right is a claim in the “strictest sense” or “in the most essential sense.” Therefore, an inalienable right can be simply expressed as: claim + disability.¹⁸ Based on this concept, choice theorists put forward the impossibility theorem, which logically denies the possibility of inalienable rights.

 

 

Let’s assume that there are inalienable rights, this means that right holder A has both the claim-right and the disability D1, and disability D1 implies immunity I2 — as the two basic components are correlative, which means, B therefore has an immunity I2. So whether B’s immunity is inalienable? If it is alienable, which means that B has power P2, then A’s right is also alienable, because B’s power P2 waives the protection of immunity I2, which reverses disability D1 and turns it into power P1, the opposite component. On the contrary, if B’s immunity I2 is inalienable, then there will be B’s disability D2, and a C’s immunity I3 will be generated. At this time, the same question is asked, is C’s immunity I3 inalienable? If it is alienable, then B’s immunity I2 is also alienable, because C’s power P3 waives the protection of immunity I3, which reverses disability D2 and turns it into power P2, the opposite component. If B has P2, this means that B may annul A’s disability, so that A’s right becomes an alienable right, that is, claim + power. On the contrary, if C’s immunity I3 is inalienable, then there will be C’s disability D3, and an immunity I4 of D will be generated. At this time, the same question is asked again, is D’s immunity I4 inalienable? By analogy, disability will be transferred to infinite subjects such as E, F, G...

 

Therefore, according to Hohfeld’s framework, inalienable rights logically fall into a non-closed chain of infinite regression, triggering “infinite regress.” The exception is a link in the non-closed chain, say K, whose rights are alienable, meaning that K has power and immunity. At this time, K’s power waives the immunity, which causes L to be unable to obtain the corresponding disability, so that the extension of the chain is terminated and a logically closed loop is formed. However, K’s power also turns the disability of the chain before K into power, then the rights of the initial person A become alienable rights, that is, claim + power. What is more troublesome is that such claims can be made by persons from E, F, G... to ∞ (infinity). However, even if in the case of ∞, the normative state of ∞ is still undeterminable. The normative state of ∞ can only be determined after the claim of ∞+1 is determined, but the problem is that, the normative state of ∞+1 can only be determined after the claim of ∞+2 is determined, and so on and so forth. There is a contradiction in this infinite regress. According to Hohfeld’s correlative and opposite relations, disability has only one corresponding immunity, but when A’s right is inalienable, the number of immunities is always one less than the number of disabilities, because A is the disability holder, but not the immunity holder. Therefore, inalienable rights contradict Hohfeld’s framework, which makes the former logically untenable.¹⁹

 

The impossibility theorem is a logical reasoning based entirely on Hohfeld’s framework. The theorem is based on Hohfeld’s correlative and opposite relations. If Hohfeld’s framework can be overridden or his correlative and opposite relations can be modified, then inalienable rights can must be be logically untenable. Some scholars started from this angle and tried to prove that the impossibility theorem is not tenable.²⁰ This argument starts from two aspects. First, the problem of infinite linear regress in the impossibility theorem is not a logical feature of inalienable rights, but a problem in Hohfeld’s framework itself. In the above, we have revealed that Hohfeld’s framework itself includes the first and second orders, and even higher orders. The example of the army can easily show that Hohfeld’s framework itself may cause a trend of regress toward higher orders. This inference rule is exactly the same as the rule of the impossibility theorem. Second, the infinite regress can be avoided by modifying Hohfeld’s derivation rules. Hohfeld’s opposite relations are expressed as a relation of exclusive disjunction. In a specific legal relation, A has either a duty or a privilege for behavior φ. This rule leads to the fact that power necessarily has the opposite disability. If we add another possibility of “neither” to the two possibilities of “either...or”, then the infinite regress will be overcome. Because A’s power does not necessarily lead to disability, disability and power are not opposite. However, there are significant problems with this modification of the derivation rule. It may lead to equating the phenomenon of rights with natural events or natural facts, which violates the common view about rights.²¹

 

“The infinite linear regress is not the logic of inalienable rights, but a general problem of Hohfeld’s framework.” This problem is too complicated, because demonstrating the attribution of the “infinite linear regress” involves determining “whether Hohfeld’s framework is reliable.” What’s more, questioning and modifying Hohfeld’s framework is contrary to the “neutral starting point” of this paper. As far as the logical structure of rights is concerned, Hohfeld’s theory is still regarded as the most influential basic framework, and sufficient reasons are needed to completely abandon it.²² But, in the author’s opinion, even under the premise of accepting the validity of Hohfeld’s framework, the impossibility theorem is not tenable.

 

 

Choice theorists claim that the impossibility theorem is based entirely on neutral facts, but this is not the truth. The impossibility theorem has three errors in logical reasoning.

 

First, the impossibility theorem breaks through the basic legal relation. The purpose of Hohfeld’s decomposition of rights into four components is very clear, which is to provide the most basic cognitive tools for clarifying the essential nature of various complicated legal phenomena, in other words, some basic concepts, categories, and thinking patterns.²³ Therefore, he uses some “legal metalanguage” to explain his understanding of legal relations. The “family of rights,” an organic whole composed of correlative and opposite relations, is generated by analyzing basic legal relations.²⁴ The most notable feature of the impossibility theorem is the regress between infinite subjects, which obviously breaks through basic legal relations. Let’s take the right not to be abused given by the criminal law as an example. B tortured and ill-treated A in an inhumane way. During the public prosecution stage, A forgave B in consideration of B’s previous kindness, but A’s request could at most reduce B’s crime but could not exonerate B. In the specific legal relation between A and B, A has a disability to change his criminal legal relation with B, so A’s request will not change B’s legal status (B has immunity), and B still bears his due legal liability. At this time, the impossibility theorem requires to either (1) introduce another person C’s immunity to correspond to A’s disability, a disability caused by inalienability, and C’s immunity is inalienable, and the cycle continues like this; or (2) introduce another person C’s immunity, but C has the power to waive his immunity, reversing A’s disability into a power, which in turn reverses B’s disability into a power. Thus, the linear regress of inalienable immunities ends by becoming alienable. However, the introduction of C, who is not directly related to the specific legal relation, changes the specific legal relation (it is no longer the legal relation between A and B). In fact, the impossibility theorem is always a cycle of immunity and disability in a specific legal relation. If A has a disability to waive B’s duties related to A, then duty bearer B has immunity. Immunity is inalienable, and its inalienability means disability. This disability corresponds to the immunity of A, which in turn is inalienable, then the disability of A, which in turn corresponds to the immunity of B, the duty bearer. Disability and immunity form an infinite cycle between A and B in a specific legal relation. In the legal relation between A and B, there is no need to introduce a new person C. If you introduce C with immunity that is alienable, you will break through the specific legal relation between A and B. As a result, the legal relation between A and B is confused with that between A and C. As Corbin puts it, “the term ‘legal relation’ should always be used with reference to two persons, neither more nor less. One does not have a legal relation to himself. Nor does one have a legal relation with two others; he has separate legal relations with each.”²⁵ A so-called legal relation to the State or to a corporation or a contractual relation involving the interests of a third party may always be reduced to many legal relations between individuals.

 

Second, the impossibility theorem confuses Hohfeld’s components of rights. Hillel Steiner clearly stated, “Any power must include the freedom to exercise it... so power and liability to which it corresponds must include freedom and no-right it corresponds to.”²⁶ However, it is absurd to equate power with privilege because this violates the separability between Hohfeld’s components of rights. When discussing the transfer of general property rights, Hohfeld cautions, “A sharp distinction must be drawn among legal power, the physical power that is necessary for ‘exercising’ legal power, and the privilege, if any, to perform the act of alienation. Yet privileges may or may not exist.”²⁷ For example, if A and B agree not to transfer A’s house to C, then A’s act of transferring the house to C is A’s privilege between A and other people, and also A’s no-privilege between A and B. As Corbin puts it, “Legal power is not always accompanied by legal privilege; there may be a duty not to use it.”²⁸ This creates two different situations: (1) having power but bearing the duty not to use it; (2) having no power — disability, that is, having no ability to change the normative state of oneself or others. The impossibility theorem confuses the two situations, which leads to a linear infinite regress.

 

In earlier versions of the impossibility theorem, Steiner continued the logic that power equals privilege, deducing that disability equals duty. If officials lack the power to waive the duty to comply with criminal law, it means that they lack the freedom to waive the duty, which will inevitably lead to the existence of the duty. He said, “Such a duty constitutes a Hohfeldian disability.”²⁹ Obviously, Steiner confuses situations (1) and (2). As a result, he has to introduce a third person. In the impossibility theorem, A has a disability, which means that B has the corresponding immunity. We will ask the question of whether B can waive the immunity. The answer is no, then B has a disability. If situations (1) and (2) are confused at this time, disability means duty, then B cannot change the normative state of himself or others. This is not because B lacks power, but because B bears a duty not to exercise the power. What is troublesome is that Hohfeldian duties are directional, and we must ask the question of who has the corresponding claim, or who bears the duty. Therefore, a new claim holder must be introduced to bear the corresponding duty. In the impossibility theorem, this means that C must be introduced to hold the immunity corresponding to B’s disability, and so on. This is the reason why the impossibility theorem will definitely break through basic legal relations. The purpose of Hohfeld’s framework is to eliminate the ambiguity of the language of rights. Why does Steiner believe that “power is equal to privilege and disability is duty” after admitting Hohfeld’s framework? One possible reason is that the choice theory only explains certain concepts of rights. When the choice theory defines rights as “protected choices,” it inevitably emphasizes privilege and power, because they directly facilitate the exercise of choices.³⁰ Hart uses the term “small sovereigns” to describe the domination of right holders over the duties of others.³¹ If Hohfeld’s language is used to describe the concept of rights in the choice theory, rights are claims that include powers.³² However, Hohfeld’s framework tells us that there is a right that does not include a power, that is, disability. In order to match the case of disability, Steiner has to interpret disability as “having a power but bearing a duty not to exercise the power”, that is, interpreting (2) as (1). The purpose of Steiner’s impossibility theorem is to deny inalienable rights, but the process of his deduction just reflects the dilemma of the choice theory’s concept of rights, that is, the choice theory cannot explain rights that do not include powers. In the face of such rights, choice theorists such as Steiner can only fall into the logical dilemma, admitting the validity and neutrality of Hohfeld’s framework while ignoring the basic consensus on and premise of it.

 

Third, the impossibility theorem ignores the hierarchical nature of the internal structure of rights in terms of logical reasoning. In the logical reasoning of the impossibility theorem, if a certain subject N on the non-closed chain has a power and waives the protection of immunity, this will reverse the disability of N-1 and turn it into power, thus going back to the original subject and turning its disability into power. Here, first-order, second-order or higher-order relations within rights are ignored. In the basic legal relation between A and B, if A has an inalienable right, then A has a disability, and B has the corresponding immunity. If B’s immunity can be waived, this just means that B has power and A has the corresponding liability. The logical reasoning that “B’s power waives the protection of B’s immunity so as to reverse A’s disability” does not necessarily hold, since A may have a higher-order power. That is to say, in the logic chain of the impossibility theorem, B’s waiver of immunity does not necessarily reverse A’s disability, and you also need to see if A has a high-order power or whether A has the ability to waive his own liability — those caused by B’s power. Therefore, the correct reasoning should not be a backward inference, but a forward one based on the relation between power and liability. Why does the impossibility theorem ignore the hierarchy of the internal structure of rights? The answer seems to come back to specific concepts of rights. In Hohfeld’s framework, privilege is a first-order right, while power is a second-order right. The confusion of power and privilege will inevitably destroy the hierarchy of the internal structure of rights.

 

Therefore, after correcting the three errors of the impossibility theorem, are the inalienable rights tenable when using Hohfeld’s framework correctly? Assuming that in the basic legal relation, A has an inalienable right, then A has a disability, and B has the corresponding immunity. Is B’s immunity alienable? If the answer is “no’, then B has a disability. At this time, B’s disability means that B cannot change himself and A’s normative state. In other words, the immunity holder corresponding to B’s disability is A. Therefore, there is a spiral cycle of disability and immunity between A and B (as in Hohfeld’s framework). If the answer is “yes,” i.e., the immunity is alienable, then B has a power and A has the corresponding liability (the liability that eliminates his own disability). In this case, A has disability + liability, and B has corresponding immunity + power. Referring to the question “can the immunity be waived?”, we can ask the question of “can A change its liability?” If the answer is “no,” then A has a higher-level disability and B has a higher-level immunity. If the answer is “yes,” then A has a high-level power, and B assumes the corresponding high-level liability, thus forming a spiral cycle. The spiral loop here is not the linear regress of the impossibility theorem. The most obvious difference is that the linear regress is passed on among infinite subjects, while the spiral loop happens only between two subjects, so it does not create a situation where immunity is not equal to disability. Furthermore, the linear regress is caused by the disability of the subject, so it must be blocked by a subject who “has the power.” The spiral loop is an inevitable phenomenon caused by the characteristics of powers. Therefore, the correct use of Hohfeld’s framework to analyze inalienable rights will lead to a perfectly balanced and symmetrical situation.³³

 

The impossibility theorem precisely reflects the errors and non-neutrality of choice theorists in the field of inalienable rights. Superficially, the errors lie in changing or breaking through basic legal relations and ignoring the hierarchy of the internal structure of rights; at root, the errors are caused by choice theorists’ confusion about the correct understanding of the right components. The non-neutrality lies in the fact that the rights in the impossibility theorem are only “artificially constructed concepts” defined by choice theorists, rather than the rights as generally understood. In other words, only choice theorists endorse this concept of rights, so deductions of the impossibility theorem are not neutral.³⁴ The correct use of Hohfeld’s framework to analyze inalienable rights will not induce the impossibility theorem, which is just an inevitable phenomenon caused by the redefinition of the concept of rights by choice theorists.

 

 

The above argument is a logical reflection, and what follows is a moral reflection. Inalienable rights can be expressed as: claim-rights + disabilities. The characteristics of such rights are mainly derived from the “disability” part of the concept, rather than the “claim-right” part. On what moral ground are disabilities attached to rights? Does the moral ground threaten the importance of rights? In other words, does the moral ground of inalienable rights, as a type of rights, match the universal characteristics of rights, i.e., the normative power of rights? Choice theorists attack inalienable rights from this perspective, trying to indicate that inalienable rights cannot be morally justified.

 

 

What is the proposition of moral priority? Steiner put forward three “neutral facts”: (1) whatever debates we may have about theories of justice, moral rights are generally regarded as fundamental elements of justice; (2) theories of justice constitute the main criteria for the moral evaluation of legal systems; and (3) a legal system is understood as a set of general rules that forcibly dominate any other rules existing within a group of people. Through the logical chain of moral rights — basic elements of justice — legal systems — coercive power, Steiner deduces the proposition of moral priority. The final result of the proposition of moral priority is that “as the primary standard for the moral evaluation of those governing and enforceable rules, the requirements of justice principles or moral rights based on these principles are higher than those of other moral principles.”³⁵ When various types of duties are in conflict, the fulfillment of directed duties related to rights is what morality requires. According to Professor Chen Jinghui, the reason for action provided by a right is expressed as “the ultimate reason for implementing specific duties.”³⁶ This conclusion is consistent with the unique normative power of rights. For example, as editors at a journal, we may disagree about which topics to publish. Usually, we will try our best to reach a consensus on which choice is morally best. When a consensus cannot be reached, the debate will not continue indefinitely, as the editor-in-chief will use his “ace in the hole” by saying, “I am the boss, I have the right to decide what topics to publish.” At this time, the editors will no longer argue about which choice is morally best, because all moral considerations are defeated by “my right.”³⁷

 

So far, the proposition of moral priority seems to only explain the absolute priority of rights, and has nothing to do with inalienable rights. So what is Steiner’s intention in putting forward the “proposition of moral priority”? Steiner pointed out at the beginning of “Directed Duties and Inalienable Rights” that “rights cannot be inalienable and that even if they could be, this would not be morally justifiable.”³⁸ The impossibility theorem is used to prove that “rights cannot be inalienable”; the proposition of moral priority is used to prove that “inalienable rights would not be morally justifiable.” In other words, if rights are recognized as having absolute priority, then inalienable rights would not be morally justifiable.Specifically, moral arguments supporting inalienable rights can be broadly classified into: utilitarianism, paternalism, and the harm principle, etc.³⁹ If one or all of the moral defenses including utilitarianism, paternalism, and the harm principle are correct, this means that inalienable rights would be morally justifiable. However, on the premise of acknowledging the proposition of moral priority, this kind of moral justification is invalid, because “waiving rights” as a reason provided by rights is always higher than reasons for “inalienable rights” provided by other moral principles. Let’s take the moral defense of appealing to paternalism as an example. The point of view holds that the purpose of recognizing that rights are inalienable is to expand the scope of protection for right holders, so that they are protected from harm by not only others, but also themselves. Criticisms of the view can generally be divided into moral and conceptual ones. Morally, as stated in criticisms, the view limits individual liberty; conceptually, it wrongly and even paradoxically assumes that rights holders lack the qualities necessary for moral competence. In Steiner’s view, neither of the above-mentioned criticisms is persuasive enough, because they both rely on a specific position. Moral criticism relies on a specific distributive justice, while conceptual criticism relies on the choice theory of rights. From a neutral position, Steiner argues that the most obvious problem with the moral defense of paternalism is that it instrumentalizes rights as means to achieve certain ends. This way of defending places moral rights under certain moral values or principles, which are ruled out by the proposition of moral priority. Likewise, other moral defenses are also ruled out because of the instrumentalization of rights. Therefore, on the premise that the proposition of moral priority is tenable, no matter what moral defenses people provide for inalienable rights, they will be invalid.

 

The ingenuity of the proposition of moral priority lies in two aspects: (1) it is a conclusion derived from “neutral facts”; (2) it denies any moral defense of inalienable rights in an effective way, that is, any moral defense for inalienable rights would be invalid without overriding the proposition of moral priority. Therefore, the first step in a moral defense for inalienable rights is to refute the proposition of moral priority. This section merely refutes the proposition of moral priority, paving the way for a moral defense of inalienable rights. As for what kind of moral defense can be provided for inalienable rights, it needs another paper to answer the question, so I won’t go into details. If the proposition of moral priority does not hold, this at least gives people an intuition that some rights are inalienable, that is, other moral principles limit the waiver of rights.

 

 

Criticisms of the proposition of moral priority can be divided into two aspects: (1) What is wrong with the proposition of moral priority? (2) Is the proposition of moral priority neutral?

 

Let’s go back to Steiner’s second neutral fact. Perhaps many theorists agree that moral rights are the criteria by which legal institutions are evaluated. However, is it the only criterion?⁴⁰ If not, then the proposition of moral priority has the problem of being not exhaustive. In human practice, moral rights are not the whole of morality, and other elements such as freedom, equality, fraternity, etc. also play an important role. Will moral rights be overridden when multiple normative concepts conflict? In other words, is it possible to sacrifice all other moral principles to ensure the importance of moral rights? Now, let’s make a modification of the above-mentioned example of publishing articles. Assuming that terrorists demand the new issue of the newspaper to publish a certain article, otherwise, they will blow up the municipal office building and nearby residential buildings. At this time, the editor-in-chief still insists on publishing another article he likes, and says, “This is my right.” Is the editor-in-chief’s behavior morally justified? In Steiner’s view, the behavior of the editor-in-chief is still justified, because the duty bearer simply “makes a (moral) mistake” by failing to fulfill other types of moral duties. Only failing to fulfill directional duties related to rights is considered unjust. This argument focuses on practical differences made by rights. If you want to make rights more important, they must act as a final reason that rules out other moral reasons. In Steiner’s view, reasons for “inalienable rights” provided by other moral principles are just background reasons, while “waiving rights” is the trump reason provided by rights. Obviously, Steiner adopted the strong version of understanding of the normative power of rights. Because what the proposition of moral priority conveys is that any background reason supporting “inalienable rights” cannot override the trump reason for “waiving rights” provided by rights. As mentioned in the first section of this paper, the strong version understanding will lead to an absolutely right position, but cannot explain the phenomenon of justifiable tort. Let’s have a look at the famous wilderness example:

 

Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, which is clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period, you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.⁴¹

 

In this example, the backpacker failed to fulfill the directional duty, and the ownership of the house owner was infringed. But the infringement was justified because the right of the house owner was overwhelmed by other considerations — the life of the backpacker. The dichotomy between “infringement of rights” and “violation of rights” explains this phenomenon well: infringement of rights means that the duty bearer fails to perform his duty but has sufficient moral reasons; while violation of rights means that the duty bearer fails to perform his duty but is not supported by moral reasons.⁴² Infringement of rights doesn’t necessarily cause a violation of rights. Rights can always be justly infringed when they are overridden by competing “sufficient moral reasons”. Even if rights are seen as trumpings over “contextual justification”, they do not necessarily override all valuable social goals.⁴³ Gewirth says there is at least one absolute right: “All innocent persons have an absolute right not to be made the intended victims of a homicidal project.” Such a right means that it cannot be overridden under any circumstances. It is absolute and therefore can never be justly infringed, it must be fulfilled without exception.⁴⁴ However, not everyone agrees with the statement of “without exception” if we add enough weight to the considerations, such as the lives of 6 billion people. David Lyons described this phenomenon with the phrase “argumentative threshold”: rights provide the right holder with an argumentative threshold against objections. Objections may only be raised against the right holder beyond the threshold.⁴⁵ The ambiguity of the threshold setting makes the proposition of moral priority fragile. On the premise of considering the normative power of rights, the “finality” of the final reason should be relaxed to adapt to the situation where rights are overridden. Therefore, the proposition of moral priority should be expressed more precisely as a weaker version of the “protected idea”: rights “usually” rule out other moral reasons, but in a given situation, a non-right consideration factor determines that something should or can be done. People don’t want to draw an unreasonable conclusion from the “importance of rights” that all fundamental rights are absolute. Even the most determined deontologists have to admit that “perhaps there are evils great enough so that one would be justified in murdering or torturing an innocent person to prevent them.”⁴⁶ Therefore, the proposition of moral priority is at best a necessary but not a sufficient condition for the existence of rights.⁴⁷

 

There is a view that attempts to deny the “threshold” of rights. The view is known as specificationism, in which every right is defined by an elaborate set of qualifications that define the space of the right and specify when it applies and when it does not.⁴⁸ For example, in the trolley problem, a person’s right to life can be specified as the right to be free from fatal danger when there is no need to avoid the loss of a large number of innocent lives. Therefore, sacrificing one person to save six persons does not violate the right to life. At this time, there is no conflict of rights, so rights will not be overridden by other factors. In the view of specificationism, all rights are absolute, because the space of rights can be delicately determined. Steiner takes a similar approach to the wilderness example, criticizing: “These examples essentially rely on the underspecification of rights that are supposed to be overridden.”⁴⁹ In Steiner’s view, rights can always be “compossible.”⁵⁰ However, specificationism also has some fatal flaws.⁵¹ Firstly, it is impossible to fully concretize all rights. Human beings live in a complicated world, and different moral considerations will come into conflict in different forms. With regard to the concretization of rights, any pre-made list would prove ineffective because it cannot predict new exceptions. Secondly, specificationism cannot explain the “moral residue” after rights are overridden. In the wilderness example, from the perspective of the “threshold” of rights, although the behavior of the backpacker is justified, his behavior still infringes the ownership of the house owner, so he has to apologize and compensate the house owner. However, according to specificationism, if the behavior of the backpacker does not infringe on the ownership of the house owner, then the backpacker does not need to compensate and apologize, which conflicts with common sense and practical practices. Therefore, specificationism cannot deny the threshold of rights. Rights are indeed unique among moral considerations, but they are only pro-tanto.⁵²

 

On the issue of neutrality, the proposition of moral priority is also less than satisfactory. Firstly, based on the fact that rights have unique normative power, Steiner claimed that the proposition of moral priority is a “neutral consensus.” As mentioned in Section 1, both the choice theory and the interest theory recognize that rights have unique normative power, but they have different explanations for the strength and source of the normative power. The proposition of moral priority adopts the strong version understanding of the normative power of rights, which is more inclined to the choice theory. Of course, this inference may be a little bit far-fetched. However, from Steiner’s explanation, the proposition of moral priority emphasizes the absolute priority of rights reasons over background reasons, and its purpose is to reject the consequentialist approach that regards rights as tools. Terms such as “dictionary sequence,” “marginal constraint,” and “trumps” listed in the proposition of moral priority are all deontological views of rights that fight against consequentialism.⁵³ Therefore, the proposition of moral priority can basically be reconstructed as a deontological view of rights. If such an understanding holds, it can only explain the role of rights in Kantian moral and political theories. Deontology usually rests on concepts such as “individual autonomy,” “dignity,” and “initiative”, and only a Kantian would recognize the importance and explanatory power of such concepts. From this, we may find the close relationship between the proposition of moral priority and the choice theory of rights. Wenar once summarized the connection between the two mainstream rights analysis and substantive theories: “In moral and political theories, the choice theory is used to support Kant’s normative theory (emphasizing individual autonomy), while the interest theory is used to support the welfarist normative theory (emphasizing individual well-being).”⁵⁴ The debate between the choice theory and the interest theory is essentially one between Kantianism and welfarism.⁵⁵ Therefore, the proposition of moral priority is not a neutral consensus recognized by both the choice theory and the interest theory as Steiner said.

 

Secondly, the proposition of moral priority denies the concept of rights in Razian interest theory.⁵⁶ In other words, a Razian interest theorist would not admit the validity of the proposition of moral priority. As a representative of the interest theory, Raz defines rights like this, “‘X has a right’ if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.”⁵⁷ Raz further explains the justifiable logical chain of “interest-right-duty” in this definition. Interests are the basis of rights, “the justification of rights lies in the fact that rights serve the interests of right holders”; rights are the basis of duties, “rights can always justify the existence of duties of others.”⁵⁸ Rights play the role of the intermediate conclusion in the argument from the ultimate value to duties. Interests justify rights and rights justify duties. At this time, rights and duties no longer have a Hohfeldian conclusive relation but a justified one. However, not all rights can justify their corresponding duties, and Raz adds restrictive conditions likesuch as this: a right can be a sufficient reason for a duty only in the absence of a bigger conflicting reason. That is to say, rights certainly have coercive power, which is sufficient to make people bound by duties. However, rights are only sufficient reasons for duties rather than decisive reasons, because rights may be overwhelmed by conflicting reasons and considerations. In this sense, rights are merely mouthpieces of certain important interests, and should be considered along with other competing reasons. Perhaps it is easier to explain this through the distinction between “what should be done” and “what one is obliged to do.” Generally speaking, “should” means that there are multiple possible reasons for action, and what people are actually asked to do when considering all kinds of reasons. The reason for “what should be done” at this time is a reason that isn’t overridden. “Duties” are classified only as the moral equivalent of rights, and the reason for “what is obliged to do” is merely a unique reason provided by rights. If you agree with the morality based on rights, then the reason provided by rights is a decisive reason; if you think that rights are only one of many moral values, not the whole of them, and not the basis of morality, then rights are just a part of what needs to be weighed morally. In this context, duty does not necessarily imply what the duty bearer “should” do. That is to say, a directed duty is merely a contributory ought and not a conclusive ought.⁵⁹ Therefore, for Raz, rights only take precedence over their justified duties, rather than other moral principles. As a representative of some important interests, rights have to compete with other moral reasons, and may possibly be overridden. This idea of rights conflicts with the proposition of moral priority. Additionally, Steiner gives normative power of rights a novel interpretation from the perspective of institutional foundations. In the logical reasoning of “moral rights-basic elements of justice-legal system-coercive power,” rights rely on the legal system to gain a dominant position. According to Raz’s distinction between first-order and second-order reasons, rights in the proposition of moral priority become an exclusionary reason because of their (legal) nature: a second-order reason for not acting on a first-order reason.⁶⁰ It is precisely because of this that although interests protected by rights are small, as an exclusive reason, they do not need to participate in the measurement of the strength of reasons because of their nature of being higher than that of first-order reasons. In contrast, rights defined by Raz operate more in the form of first-order reasons, and therefore have to participate in the measurement of “reason strength.”

 

In short, the fallacy of the proposition of moral priority is that it elevates the unique reasons for action provided by rights to general principles, and even claims that rights matter only when such reasons play a decisive role without exception. We have to admit that “if someone is undoubtedly at least partially a utilitarian, he must be willing to admit that some rights are based on the utilitarian ground.”⁶¹ When it comes to substantive theories on the importance of rights, the proposition of moral priority draws on the power of deontology, and denies the concept of rights in the Razian interest theory, so that it deviates from neutrality.

 

 

Some theorists deny the existence of inalienable rights for the following reasons:recognizing such rights will lead to the consequences of redundancy theory, and make rights meaningless.⁶² It is worth noting that “the redundancy theory involves all the problems of ground for the existence of concepts.”⁶³ If concept A is very similar to concept B, and its actual function can be replaced by that of concept B, then concept A becomes meaningless and loses its ground for existence. What redundancies do objectors see in inalienable rights?

 

In simple terms, “A’s right for B to do φ” provides B with a behavioral prohibition. If B does an opposite behavior to φ, he makes a directional moral error. This is the normative power of A’s right over B. When looking only at the opposite behavior of φ, it has two moral possibilities: moral prohibition and moral permission. If it is a morally permitted act of waiving rights, it will free the duty bearer from the directional duty, and the duty bearer’s behavior opposite to φ becomes morally permitted; if it is a morally prohibited act of waiving rights, it will not free the duty bearer from the directed duty. Then, alienable rights can be abstractly expressed as: right prohibition + moral permission; inalienable rights can be abstractly expressed as: right prohibition + moral prohibition.⁶⁴ However, the combination of right prohibition and moral prohibition does not necessarily lead to the existence of inalienable rights. In the case of right prohibition + moral prohibition, “right prohibition and moral prohibition” are overlapped in content. Therefore, even if there is no right, the behavior opposite to φ is still prohibited by moral rules, so is the concept of rights still necessary? For example, in an ancient community, neither the concept nor the practice of rights existed, but everyone had a natural duty not to kill others at will, otherwise it is difficult to maintain the community for a long time. Even without the concept of rights, there is no “lifting” of the prohibition against arbitrary killing, so there is conceptual redundancy in inalienable rights.

 

All concepts of rights become redundant due to the existence of moral prohibitions. That is to say, in the case of “right prohibition + moral prohibition,” it is still meaningless to admit that rights are alienable, because the intentional action of waiving rights can only “lift the right prohibition,”, but cannot obtain the effect of “moral permission.” The duty bearer is still bound by moral prohibitions. From this, can we draw the following conclusion? In the case of moral prohibition, rights are redundant, or in other words, rights should not interfere with moral prohibitions. This is denied by a view as below: although the intentional action of waiving rights cannot lift the moral prohibition, it protects an independent value, that is, the “freedom of choice.”⁶⁵

 

By far, we can draw the following conclusion: recognizing inalienable rights will lead to redundancy in rights, while alienable rights overcome the redundancy theory because they protect the freedom of choice. If you want to draw the opposite conclusion, you need to prove two things: (1) in the case of right prohibition + moral prohibition, rights are not redundant; (2) the “freedom of choice theory” does not hold.

 

Let’s start with the first one. Moral prohibition and right prohibition have the same content and are closely related, but can moral prohibition completely replace right prohibition? If the purpose of the right prohibition is just to show a kind of moral prohibition, then the concept of rights is indeed unnecessary. What function does right prohibition serve if what it does is more than just displaying what is morally prohibited? In linguistics, redundancy is often regarded as a kind of meaningless information, but with the development of linguistics, redundancy is also regarded as a strategy, that is, “redundant information strategy.” For example, to invite a friend to my house, I would say, “Come to my house for dinner at 7 o’clock on the evening of Saturday, remember 7 o’clock on Saturday!” Obviously, “7 o’clock on Saturday” is a kind of redundant information, but such way of expression is to highlight the key points and increase the anti-interference ability. In the same way, right prohibition highlights the inviolability of the content by repeating the content of moral prohibition. The expression “you insulted me and infringed my right of reputation” is often more serious than “you insulted me and it was immoral”. More importantly, it also increases the severity, the “severity increasing effect.”⁶⁶ This goes back to the discussion of the normative power of rights. When someone has a right, the right holder seems to be in a “special position,” and his moral concerns are usually higher than those of others. Therefore, if a moral prohibition can also be expressed as a right prohibition, this means that the directional moral error expressed by rights is more deserving of being prohibited than the pure moral error. In the history of human development, the duty not to arbitrarily abuse, enslave, and kill others did not appear simultaneously with the right to bodily integrity, the right to liberty, and the right to life. Even without these rights, a society can still rely on benevolence, pity, compassion, goodwill or duties backed by forced sanctions to ensure people’s well-being.⁶⁷ The reason why expressions like the right to life are still needed is that a directional error made by a person is more serious than a purely moral error. It is often associated with apology, compensation, and punishment, etc. Therefore, even if “behavior prohibitions” provided by both rights and morality are the same in terms of content, there is a difference between them. The function expressed by rights is to “increase the severity of moral prohibition,” rather than to “accurately express the requirements of moral prohibition.” In addition, the expression of rights also has the function of stopping disputes. As Raz argues, rights act as intermediate conclusions in the argument from the ultimate value to duties. Moral expressions are often caught in disputes over “what value takes precedence” and “what is the ultimate value,” while rights have unique normative power and can provide a strong justification basis for behaviors. Through the adjustment of the intermediate stage, practical arguments can continue without getting bogged down in questions on the ultimate value. That is to say, this function of rights makes social life possible. This is not only because it saves argumentative practices, but because it facilitates the formation of a public culture around shared intermediate conclusions.⁶⁸ Right prohibition and moral prohibition are overlapped in content, but they perform different functions and lead to different consequences. Therefore, there is no conceptual redundancy in inalienable rights.

 

Having dealt with the redundancies caused by inalienable rights, it is necessary for us to look at the solution provided by the “freedom of choice theory.” The above argument is based on the basic fact of the normative power of rights. If this unique power has to come from the “freedom of choice,” then inalienable rights cannot provide the “severity increasing effect.” However, the “freedom of choice” is empty in terms of the content. Whether a choice is right or wrong is merely dependent on whether it comes from one’s free will, rather than whether it is right or wrong in a substantive sense.⁶⁹ Such an understanding must have overlooked three levels of the normative concept: should-justification-moral good. Normative concepts place demands on us and tell us what we “should” do. As we continue to ask what are the conditions supporting the term “should,” justification emerges from the normative concept. It means the reasons provided by the normative concept are justifiable for the action. We can continue to ask, “Where does the justification come from?” The common answer is the moral good, since the normative concept presupposes a theory of value. That is to say, the normative concept is not only a prescriptive concept, but also an evaluative one. It not only places demands on us and tells us what to do, but also evaluates whether the behaviors are “good” or “bad.” The “freedom of choice” provided by rights, as normative concepts, is only justifiable when it has the attribute of “good.” Only by having this can it instruct people what they “should” do.⁷⁰ Therefore, the “freedom of choice” is not a thin concept, but a thicker one with substantive content. As Benn and Weinstein put it, “Our conception of freedom is bounded by our notions of what might be worthwhile.”⁷¹ The “freedom of choice” provided by rights is a moral concept that presents an ideal picture of human beings. If there is an opportunity to eliminate immoral options for human beings, people will not feel that this action reduces the range of choices.⁷² The value of the freedom of choice is reflected in the pursuit of good, which requires people to only make a choice among goods.⁷³

 

Defining the concept and scope of “freedom of choice” helps us understand why an inalienable right is supported at the legal level. For example, the act of enslaving others is not only prohibited by morality, but also prohibited by rights because of the right to liberty. The “freedom of choice” theory holds that recognizing that “the right to freedom can be waived” can overcome the redundancy of rights caused by right prohibition and moral prohibition. Because in theory, waiving rights can protect the freedom of choice; and in practice, lifting the prohibition of rights helps the duty bearer find the justifiable ground for infringement.⁷⁴ Herein lies the importance of inalienable rights, however, and the purpose of the double prohibition is to protect the strictness of rights. Duty bearers who want to free themselves from the duties related to rights no longer seek reasons higher than moral prohibitions, but those higher than right prohibitions. From this perspective, inalienable rights do not impair the priority of rights, but recognize and give play to it. What’s more, inalienable rights rule out intentional actions of the parties. Right holders’ act of voluntarily choosing to be enslaved by others does not justify the enslavement, because the “freedom of choice” is limited to various goods, and a person may not freely choose to lose his freedom. That is to say, rights do not provide an option for the permanent loss of freedom. In social practice, it is easier to know whether a person is enslaved by another than to know whether such enslavement is consented to by the person. In the absence of absolute inalienable rights, anyone may enslave another and claim that they have obtained the consent of the person being enslaved. In order to avoid the emergence of “justified slavery,” the law has sufficient moral reasons to recognize that certain rights are inalienable.

 

 

For a long time, the belief in inalienable rights had been so strong that theorists did not seriously examine their existence. In order to defend the explanatory power of the choice theory, choice theorists provide three propositions to conclude that there is no inalienable right. By reflecting on the impossibility theorem, the proposition of moral priority, and the redundancy theory of rights, this paper points out that these attacks are groundless. It is of great significance to examining inalienable rights. They can not only be used to verify the reliability of the choice theory, but also involve a more fundamental idea of rights — what is the position of rights in the moral system. There is no doubt that morality is not based on rights, on the contrary, rights are morality with uniqueness. That is to say, rights have unique moral values, rather than comprehensive ones. Rights can only provide certain moral reasons, not all of them. Knowing this, we can see why some rights are inalienable — it is other areas of morality that limit rights.

 

(Translated by CHANG Guohua)

 

* ZHAO Shukun ( 赵树坤 )，Professor at Southwest University of Political Science and Law (SWUPL).

 

** YU Qing ( 余庆 ), Doctoral student at the School of Administrative Law, SWUPL. This paper is a phased result of the important project “A Research of General Secretary Xi Jinping’s Important Statement on Respecting and Safeguarding Human Rights” (No. 228ZD004) supported by National Social Science Fund of China and the SWUPL student scientific research innovation project of 2021 (No. 2021XZXS-070).

 

1. Brain H. Bix, A dictionary of Legal Theory (Oxford: Oxford University Press, 2004), 126.

 

2. Leif Wenr, “The Analysis of Rights,” in The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy, Matthew H. Kramer, Claire Grant, Ben Colburn and Antony Hatzistavrou eds. (Oxford: Oxford University Press, 2008), 254.

 

3. Horacio Spector, “Value Pluralism and the Two Concepts of Rights,” San Diego Law Journal 46 (2009): 826.

 

4. For criticisms in this regard, see MacCormick, “Rights in Legislation” in Law, Morality and Society: Essays in Honour of H. L. A. Hart, P. Hacker and Joseph Raz eds. (Oxford: Oxford University Press, 1977), 189-209.

 

5. H. L. A. Hart. Essays on bentham: Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), 188-193.

 

6. Hillel Steiner and Chen Jinghui are typical representatives of the second strategy. This paper focuses on reflecting on the arguments of the two. See Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 230-244; Chen Jinghui, “Inalienable Rights: Are They Tenable?” Tsinghua University Law Journal 2 (2020): 5-21.

 

7. Matthew Kramer, “Rights Without Trimmings,” in A Debate Over Rights, Matthew Kramer, N. E. Simmonds and Hillel Steiner (Oxford: Oxford University Press, 1998), 9-14.

 

8. Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 230.

 

9. Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” 26 The Yale Law Journal 8 (1917): 710.

 

10. H. L. A. Hart. The Concept of Law, translated by Xu Jiaxin and Li Guanyi (Beijing: Law Press · China, 2018), 137.

 

11. Leif Wenar, “The Nature of Rights,” 33 Philosophy & Public Affairs 3 (2005): 228.

 

12. It is necessary to point out that the right here only refers to the right in the narrowest sense, that is, the claimright. See Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”, 23 The Yale Law Journal 1 (1913): 32.

 

13. Zhu Zhen, “Taking reasons seriously: an analysis of the classification, justification, and functions of emerging rights,” Seeking Truth 2 (2020): 108-112.

 

14. Ronald Dworkin, “Rights as Trumps”, in Theories of Rights, Jeremy Waldron ed. (Oxford: Oxford University Press, 1984), 153.

 

15. Chen Jinghui, “The normative power of rights: a criticism on the interest theory,” Peking University Law Journal 3 (2019): 590-591.

 

16. H. Hart, “Are There Any Natural Rights?” 64 The Philosophical Review 2 (1955): 178.

 

17. For research on Raz’s view on rights to the common good in China, see Zhu Zhen, “The strength and limitation of the view on rights to the common good,” The Jurist 2 (2018): 32-44. For Raz’s view, see Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1996), 44-59.

 

18. These definitions draw on the views of Professor Chen Jinghui. For details, see Chen Jinghui, “Inalienable Rights: Are They Tenable?” Tsinghua University Law Journal 2 (2020): 12.

 

19. The above is the content of the impossibility theorem, which first appeared in Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), 71-72. However, for the most complete details, see Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 239-244. Professor Chen Jinghui, a Chinese scholar, has also cited it, see Chen Jinghui, “Inalienable Rights: Are They Tenable?” Tsinghua University Law Journal 2 (2020): 17-21.

 

20. See Pierfrancesco Biasetti, “Infinite Regress and Hohfeld: A Comment on Hillel Steiner’s ‘Directed Duties and Inalienable Rights’,” 126 Ethics 1 (2015): 139-152.

 

21. Professor Chen Jinghui has revealed the absurdity of this modification. See Chen Jinghui, “Inalienable Rights: Are They Tenable?” Tsinghua University Law Journal 2 (2020): 18-19.

 

22. Alon Harel, “Theories of Rights,” in The Blackwell Guide to the Philosophy of Law and Legal Theory, Martin Golding and William Edmundson eds. (Oxford: Blackwell, 2005), 192-193.

 

23. Xiong Jingbo, “The Justification of the ‘Lowest Common Denominator’ of Laws: the Internal Logic and Significance of a Complicated Legal Relation Theory,” Law and Social Development 3 (2019): 74.

 

24. It is in the chapter on “Basic Legal Relations” that Hohfeld explains the basic components of rights, and correlative and opposite relations. See Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, translated by Zhang Shuyou (Beijing: The Commercial Press, 2022), 53-54.

 

25. Arthur Linton Corbin, “Legal Analysis and Terminology,” 29 Yale Law Journal 2 (1919): 165.

 

26. Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), 61.

 

27. Hohfeld. Fundamental Legal Conceptions as Applied in Judicial Reasoning, translated by Zhang Shuyou (Beijing: The Commercial Press, 2022), 82.

 

28. Arthur Linton Corbin, “Legal Analysis and Terminology,” 29 Yale Law Journal 2 (1919): 169.

 

29. Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), 71.

 

30. Alon Harel, “Theories of Rights,” in The Blackwell Guide to the Philosophy of Law and Legal Theory, Martin Golding and William Edmundson eds. (Oxford: Blackwell, 2005), 194.

 

31. H. L. A. Hart, Essays on Bentham: Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), 183.

 

32. Leif Wenar, “The Analysis of Rights,” in The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy, Matthew H. Kramer, Claire Grant, Ben Colburn and Antony Hatzistavrou eds. (Oxford: Oxford University Press, 2008), 263.

 

33. This part of argument is derived from Simmonds. See N. E. Simmonds, “The Analytical Foundations of Justice,” 54 Cambridge Law Journal 2 (1995): 319.

 

34. For interest theorists, rights are limited to Hohfeldian claims. See Matthew Kramer, “Rights Without Trimmings,” in Matthew Kramer, N. E. Simmonds and Hillel Steiner, A Debate Over Rights (Oxford: Oxford University Press, 1998), 9-14. For an incisive summary of the “redefinition of phenomena to be explained” by choice and interest theorists in response to narrow problems, see Leif Wenar, “The Analysis of Rights,” in The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy, Matthew H. Kramer, Claire Grant, Ben Colburn and Antony Hatzistavrou eds. (Oxford: Oxford University Press, 2008), 263-268.

 

35. Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 233.

 

36. Chen Jinghui, “The normative power of rights: a criticism on the interest theory,” Peking University Law Journal 3 (2019): 590.

 

37. The example comes from Steiner. See Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 234.

 

38. Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 230.

 

39. For arguments using consequentialism, see Russell Hardin, “The Utilitarian Logic of Liberalism,” 97 Ethics 1 (1986): 47-74. For arguments using the harm principle, see Terrence McConnell, “The Nature and Basis of Inalienable Rights,” 3 Law and Philosophy 1 (1984): 25 -59. For arguments using dignity, see Arthur Kuflik, “The Utilitarian Logic of Inalienable Rights,” 97 Ethics 1 (1986): 75-87.

 

40. Utilitarians believe that legal systems should be evaluated solely on the basis of human welfare. Utilitarians like Bentham would reject moral rights unless we assume that arguments based on moral rights are fully consistent with arguments based on welfare.

 

41. Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” 7 Philosophy & Public Affairs 2 (1978): 102.

 

42. Judith J. Thomson, “Self-defense and Rights”, in Rights, Restitution, and Risk, William Parent ed. (Cambridge: Harvard University Press, 1986), 40.

 

43. Even Ronald Dworkin and Robert Nozick, who insist on “the supremacy of rights”, admit that rights may be overridden under “emergencies” and “catastrophes.” See Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 92; see Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974), 28-33.

 

44. Alan Gewirth, “Are There Any Absolute Rights?” 31 The Philosophical Quarterly 1 (1981): 1-16.

 

45. Davind Lyons, Rights, Welfare, and Mill’s Moral Theory (Oxford: Oxford University Press, 1994), 152.

 

46. Thomas Nagel, Concealment and Exposure (Oxford: Oxford University Press, 2002), 36.

 

47. Alon Harel, “Theories of Rights”, in The Blackwell Guide to the Philosophy of Law and Legal Theory, Martin Golding and William Edmundson eds. (Oxford: Blackwell, 2005), 198.

 

48. John Oberdiek, “Specifying Rights out of Necessity,” 28 Oxford Journal of Legal Studies 1 (2008): 127-146.

 

49. Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 239.

 

50. The choice theory based on “compossibility” rules out conflicts of rights. See Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), 57-58.

 

51. Typical representatives against specificationism include Joel Feinberg and Judith Thomson. For more detailed discussion, see Joel Feinberg, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), 221-251; Judith Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), 82-104.

 

52. Danny Frederick calls “threshold” “pro-tanto” and denies specificationism. See Danny Frederick, “Pro-tanto Versus Absolute Right,” 45 Philosophical Forum 4 (2014): 375-394.

 

53. Hillel Steiner, “Directed Duties and Inalienable Rights,” 123 Ethics 2 (2013): 239.

 

54. Leif Wenar, “The Analysis of Rights,” in The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy, Matthew H. Kramer, Claire Grant, Ben Colburn and Antony Hatzistavrou eds. (Oxford: Oxford University Press, 2008), 258.

 

55. Leif Wenar, “The Nature of Rights,” 33 Philosophy & Public Affairs 3 (2005): 224.

 

56. N. E. Simmonds, “Rights at the Cutting Edge,” in A Debate Over Rights, Matthew Kramer, N. E. Simmonds, and Hillel Steiner eds. (Oxford: Oxford University Press, 2000), 203-205.

 

57. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 166.

 

58. Joseph Raz, Ethics in the public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1996), 45.

 

59. Gopal Sreenivasan, “Duties and Their Direction,” 120 Ethics 3 (2010): 470.

 

60. Joseph Raz, Practical Reason and Norms, translated by Zhu Xueping (Beijing: China Legal Publishing House, 2011), 27-44.

 

61. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 187.

 

62. The view of the redundancy theory of rights comes from Professor Chen Jinghui. See Chen Jinghui, “Inalienable Rights: Are They Tenable?” Tsinghua University Law Journal 2 (2020): 5-21.

 

63. Chen Jinghui, “Is There a Right to Do Wrong?” Science of Law 2 (2018): 4.

 

64. Chen Jinghui believes that inalienable rights can usually lead to directional errors and pure moral errors at the same time. See Chen Jinghui, “Inalienable Rights: Are They Tenable?” Tsinghua University Law Journal 2 (2020): 8 and 16.

 

65. Hereinafter it is referred to as the “freedom of choice theory,” see Chen Jinghui, “Inalienable Rights: Are They Tenable?” Tsinghua University Law Journal 2 (2020): 16.

 

66. The severity increasing effect of rights is essentially their unique normative power. For more details about this part of discussion, see Chen Jinghui, “Is There a Right to Do Wrong?” Science of Law 2 (2018): 11; Zhu Zhen, “The strength and limitation of the view on rights to the common good,” The Jurist 2 (2018): 34.

 

67. The thought experiment proposed by Joel Feinberg: a world without rights can still be maintained or become better with kindness, pity, compassion, and goodwill. See Joel Feinberg, “The Nature and Value of Rights,”Journal of Value Inquiry 4 (1970): 243.

 

68. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 181.

 

69. Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge: Cambridge University Press, 1988), 26.

 

70. For the discussion of the three levels of the normative concept, see Chen Jinghui, “Moral Goodness, Rationalization, and the Normativeness of Laws: a Reflection Centered on Hart’s Theory,” Science of Law 4 (2012): 25-28.

 

71. S. I. Benn and W. L Weinstein, “Being Free to Act, and Being a Free Ma,” 80 Mind, New Series 318 (1971): 195.

 

72. This assertion has to answer the following question: Thinner concepts are more recognized by community members, and thicker concepts are more prone to value conflicts. Can the substantive content of the “freedom of choice” be shared by communities with diversified values? Due to space limitations, this paper did not discuss this. For the discussion on perfectionism, see Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 369-431; Robert George, Making Men Moral: Civil Liberties and Public Morality, translated by Sun Haibo (Beijing: The Commercial Press, 2020), 272-375.

 

73. According to Professor Fan Libo, rights themselves have inherent morality, that is to say, “rights not only protect choices, but also promote personal well-being centered on autonomy by guiding choices.” See Fan Libo, “The Inherent Morality of Rights and the Right to Do Wrong Things,” ECUPL Journal 3 (2016): 20-23.

 

74. Chen Jinghui, “Inalienable Rights: Are They Tenable?”, Tsinghua University Law Journal 2 (2020): 16.