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IN DEFENSE OF PROCEDURAL RIGHTS (OR ANYWAY, PROCEDURAL DUTIES): A RESPONSE TO WELLMAN

Published online by Cambridge University Press:  20 April 2018

David Enoch
David Enoch*
Affiliation:
Hebrew University of Jerusalem, Department of Philosophy and Faculty of LawDavid.Enoch@mail.huji.ac.il
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Abstract

In a recent paper Christopher Heath Wellman argues that—with some important qualifications—there are no procedural rights. And it's not as if he is squeamish about his examples: even someone who is “convicted” and “punished” by lottery is not wronged—their rights are not violated—if in fact they are guilty of the relevant crime. I respond, rejecting Wellman's conclusion and argument. I also show how the discussion has important wider implications.

Type
Research Article
Information
Legal Theory , Volume 24 , Issue 1 , March 2018 , pp. 40 - 49
Copyright
Copyright © Cambridge University Press 2018 

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References

1. Wellman, Christopher H., Procedural Rights, 20 Legal Theory 286 (2014)CrossRefGoogle Scholar. All page references are to this paper, unless otherwise noted.

2. Developed and defended in detail in his more recent Rights, Forfeiture, and Punishment (2017).

3. Wellman (291) accuses such a suggestion of begging the question by assuming procedural rights. But it is no more guilty of question-begging than Wellman's own version of the forfeiture theory that seems to assume that there are no procedural rights. Begging the question is tricky.

In correspondence, Wellman made it clear that he does not think that a forfeiture theorist has to deny the existence of procedural rights. He explained that if he became convinced that there are procedural rights, this would lead not to a rejection of forfeiture theory, but to a modification thereof.

4. See, e.g., David Dolinko, Review of Christopher Heath Wellman, Rights, Forfeiture, and Punishment, Notre Dame Phil. Rev. (Dec. 18, 2017), http://ndpr.nd.edu/news/rights-forfeiture-and-punishment/, and the references there.

5. For an attempt to develop better versions of such arguments—perhaps in terms of subjecting people to a wrongful risk of conviction and harm—see Nate Adams, Grounding Procedural Rights (unpublished manuscript).

6. At one point (294) Wellman relies on a symmetry argument: “Symmetry suggests that if the presence of a procedurally impeccable determination of guilt cannot ensure that no rights are violated, then the absence of these same procedures would not entail a rights violation.” But I don't think that this is how symmetry considerations work—in our context, I don't find the suggested symmetry to have even an initial appeal. (And Wellman himself, in the following line, acknowledges that an asymmetric view may be an option here.)

7. In correspondence, Wellman agreed.

8. Perhaps it can be argued that while formally objectivism is consistent with the relevant kind of procedural rights, such rights are not consistent with the underlying motivations of objectivism. Of course, then we would need more details about those motivations. Without getting into the details, I don't think that they are likely to vindicate this line of thought.

9. Myself, I am attracted to a simple ambiguity view, according to which we should just disambiguate ought-judgments (or ones about rights, or about duties), and explicitly distinguish between an objective ought and a subjective ought. On such a view, the question at hand becomes whether there are objective procedural rights.

10. See, e.g., Graham, Peter A., In Defense of Objectivism About Moral Obligation, 121 Ethics 88 (2010)CrossRefGoogle Scholar.

11. This only amounts to an argument for objectivism if we're assuming also that the “ought” in the question to the advisor is the very same “ought” as everywhere else. As already noted, I am not committed to this further assumption.

12. At least in the same way the advisor should answer in the affirmative if you ask her—in a case in which you're missing some vital information—whether you should invest resources in getting that information.

13. Which doesn't yet mean that there's also a procedural right here, though it's close. I get to this shortly.

14. I think that once you understand this point, Smilansky's “paradox of moral complaint” is no longer a paradox at all. See Smilansky, Saul, The Paradox of Moral Complaint, 18 Utilitas 284 (2006)CrossRefGoogle Scholar.

15. I am here sliding over delicate issues in the theories of rights and their relation to duties. The transitions from wronging David to violating a duty owed to David to violating one of David's rights are non-obvious, and may be contested. It's possible—I'm not sure—that a fuller discussion of procedural rights will have to engage these delicate issues. For my limited purposes here, though—rejecting Wellman's case against procedural rights, and perhaps making an initial case for them—I think we can safely just assume that these transitions are good enough.

16. See 288 for the explicit distinction between a right being about someone and being owed to that someone.

17. It's not entirely clear whether Wellman, in Procedural Rights, denies any procedural duties, or just directional ones. In correspondence, Wellman explained that he only needs the latter, weaker claim.

18. For an argument to the conclusion that morality is not rights-based, see Joseph Raz, The Morality of Freedom (1986), ch. 8.

19. This is not a criticism of Wellman. Recall that for him, the denial of procedural rights is (perhaps among other things) a part of his defense of the forfeiture theory of criminal punishment. For this purpose, the difference between a defense of procedural duties and a defense of procedural rights may be crucial. And as Wellman clarified in correspondence (and as perhaps is not clear in the paper), he may be willing to accept procedural duties, so long as procedural rights do not come along with them.

20. Or, if you're only convinced that there are moral procedural duties, not procedural rights, then spell out the analogous legal case accordingly—perhaps the state won't be wronging David by punishing him, but will still be violating a procedural duty applying to it (vis-à-vis David).

21. For a reason that is not clear to me, Wellman seems to assume (e.g., 290) that if a normative status is grounded in instrumental considerations it cannot be a right. But this seems to me false, on pretty much any conception of rights.

22. See Herstein, Ori, Understanding Standing: Permission to Deflect Reasons, 174 Phil. Stud. 3109 (2017)CrossRefGoogle Scholar.