Christine M. Korsgaard, Arthur Kingsley Porter Professor of Philosophy at Harvard, is the author of four books.  Creating the Kingdom of Ends is a collection of essays on Kant’s ethics and Kantian ethics. The Sources of Normativity is an investigation into modern views about the foundations of obligation. The Constitution of Agency is a collection of essays on practical reason and moral psychology.  Self-Constitution explores the foundations of morality and practical identity in the nature of human action.  She is currently working on Fellow Creatures, a book about the moral and legal status of non-human animals, and The Natural History of the Good, a book about the place of value in nature.

Provisional Rights and the State

Christine M. Korsgaard

Considered as normative entities, rights have an unusual feature: there is a sense in which they do not exist until they are instituted legally. For this reason, someone being abused or disrespected in certain ways can voice the exact same response by complaining that she has no rights or by protesting that she does have rights.  In the text below, adapted from a section of a paper in which I defend the view that both non-human animals and the world’s poor have rights against humanity collectively speaking, I argue that Kant’s doctrine that natural rights in the state of nature are “provisional” gives us the best way to understand this feature of rights.  At the same time, it grounds his argument that we have a duty to live together in the political state.

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So far, what I have said has been ambiguous between two claims: that animals should have rights and that they do have rights.  There is a reason for this ambiguity, for there is a problem about what is going on when someone makes the case for a legal right.

If I say that I am arguing that someone “should have a right,” that has the disadvantage of making it sound as if all I am saying is that there is something to be said in favor of her having the right, some reasons that would support the policy of giving her the right.  But that may not seem like the correct way to argue for a right, since a right ordinarily functions as a trump and a trump requires something stronger than some considerations in its favor. If I have a right to something, call it X, then you have no right to deprive me of X. My right is supposed to be a decisive consideration against your depriving me of X, however good your reasons for depriving me of X would be if I did not have the right. So to say that I have a right to X not just to say that there is a very strong reason for me to have X: it is to say something about the relations in which I stand to those against whom I claim the right. However good others’ reasons are for depriving me of X, they will be wronging me if they do so. That includes my relations to society collectively speaking.  But if my right is a trump even against society collectively speaking, how can society collectively speaking be in a position to grant me the right? When someone claims that she has a right, she is claiming precisely that no one is in a position to deny her that to which she has a right. But if no one is in a position to deny her the right, then it seems as if no one is in a position to grant her that to which she has the right either.  What she is saying is precisely that this is not the sort of thing that others may withhold or to grant, however good their reasons.  Consider, for instance, the idea that a nation might give its slaves a right to their freedom. Is another human being’s right to her freedom something that it is ours (all of us? the rest of us?) to give?  How can society give someone his freedom, if it was already his own by right?

Some philosophers propose to deal with this problem by invoking the idea of a “moral right” and saying that moral rights are the grounds on which we should establish legal rights. That enables them to split the difference – the moral rights do already exist, although the legal ones do not.  Then we can say that what society does when it enacts laws protecting people’s rights is not granting them rights they did not already have, but protecting their moral rights by making them legal and so coercively enforceable.

That can sound sensible until we remind ourselves what exactly a right is.  A right, at least according to Kant and others in the natural rights tradition, is – by definition – a claim that may legitimately be coercively enforced. You have a right when you have a claim on others to act in a certain way and it is morally legitimate for you (or for society on your behalf) to defend yourself with the use of force against violations of that claim.  Not all moral claims, we believe, may be coercively enforced.  I cannot sue you for hurting my feelings or being rude to me or have you thrown into prison for breaking my heart, though you should not do these things.  I cannot have you arrested if you fail to open a door for me when my arms are full of packages or to help me change a tire by the side of the road.  How do we draw the distinction?  Some philosophers would argue that the distinction should be drawn on pragmatic or consequentialist grounds: on whether the costs of coercive enforcement are worth preventing wrongs of this kind. Kant, however, believed that the distinction is based on principle. Since coercion is in general wrong, we may only use it against coercion itself, when we are “hindering a hindrance to freedom.”  According to Kant, I am free when I can pursue my own ends and in doing so I am not subject to the wills of other people. I am not made subject to your will when you try to break my heart, for I am perfectly free not to care.  I am not made subject to your will when you fail to open a door for me, for that doesn’t stop me from going through the door.  But I am made subject to your will when you enslave me or make use of my person or my property without my consent. So my claims against your doing those things are coercively enforceable – that is, they are rights.

This account of what makes a moral claim one of right makes trouble for the proposed use of the distinction between moral and legal rights. It follows from it that if there are any rights, there is a sense in which they already have the status of law: that is, they may legitimately be coercively enforced. This, after all, is why we think it can sometimes be morally legitimate for people to fight even their own governments for their freedom: because they have a coercively enforceable right to that freedom even if there is no positive law upholding it. On this view, natural right is underwritten by natural law; indeed they are almost the same thing. So the state cannot be seen as making it possible to coercively enforce a claim that is already there, since the claim was not only already there, but already coercively enforceable too.

Now this may not seem like a big problem.  For of course there is still a question about the relation between law in this natural sense and the positive statutes that are actually passed by some political society. So why shouldn’t we say that a state that makes a law establishing a right is simply acknowledging a natural right that is already there, by making its own laws match the natural laws?

But there’s a problem with this too, which was brought out first by Hobbes, and then, following him, Kant. They pointed out that there is a sense in which rights do not exist even morally until laws upholding them are enacted by political society. After all, to say that a right exists morally is not only to imply that you are entitled to defend your claim with force.  It is also to imply that people have a moral obligation to respect your claim.  But Kant and Hobbes argued that no one can be morally obligated to respect my rights until he has some guarantee that I will respect his rights. For if I force you to respect my rights without giving you a guarantee that I will respect yours, then I am putting you in a position where you are subject to my will and so unfree. Or as Hobbes put it, a person who respects the rights of others when they do not respect his “would but make himself a prey to others, and procure his own ruin.” Hobbes and Kant argued that it follows that no one has a duty to respect anyone’s rights until some mechanism of enforcing everyone’s rights is in place. Since a right involves a duty on the part of others to uphold that right, and others cannot have that duty unless their rights are upheld as well, rights occupy what we might call interpersonal space – my rights and yours can only be realized together.

Kant argued that it is only the political state that can provide guarantees of the enforcement of everyone’s rights. So if I say, “I have a right to X,” I make a demand on others that I am not in a position to make unless we live together in a political state: claims of right presuppose the existence of the political state, that is, it presupposes our membership in a collective body with a General Will devoted to upholding the rights of all.  Claims of right presuppose this even if we are in the state of nature and the political state exists only in idea, so when I claim a right in the state of nature I commit myself to supporting the existence of a political state.  According to Kant, this means that we have a duty to live in the political state.  Our rights in the state of nature, are, as Kant put it, “provisional.” They exist in the sense that we have the right to defend them, but not in the sense that anyone else has a duty to respect them.  It is only when the state is actually formed that they become, again as Kant put it, “conclusive.”

Kant’s distinction between provisional and conclusive rights explains the status of so-called natural rights much better than the distinction between moral and legal rights does. Provisional rights are in one sense already legal, since the right-holder is morally entitled to coercively enforce them.  In another sense, however, they are not yet quite moral, since no one else is obligated to respect them.  What society does when it legalizes a right is neither to grant the right holder something that is already his own and not society’s to give, nor to acknowledge a merely moral right that is already there by making it enforceable. What society does instead is to realize a right whose existence is essentially incomplete or imperfect in the state of nature.