The Journal of Value Inquiry 22:183-192 (1988) 9 Kluwex Academic Publishers,

Offices, duties & rights

CARL WELLMAN Department of Philosophy, Campus Box 1073, Washington University, St. Louis, MO 63130

"Human Rights and the Social Order" is an exceptionally rich paper. It is packed with moral wisdom and theoretical insights, argued in complex detail, and formulated in a subtle yet precisely defined terminology. But what impresses me most is Professor Maynard Adams' bold approach to the grounds of human rights, an approach that is at once strikingly original and carefully developed. Since I cannot begin to do justice to his paper as a whole, let me focus my attention on his two central theses - that personhood is a natural, inalienable office and that human rights are grounded in the office of personhood. But first, a methodological dilemma. Professor Adams writes in a carefully constructed language of his own embodying concepts derived from his epistemological and metaphysical theories and designed to express accurately his conception of human rights. My own conceptual framework and the language in which I do philosophy is, as one would expect, very different. Now, am I to respond to his paper in his language or in my own? If the former, I may be too uncritical, for I will accept without sufficient examination the presuppositions he has built into his language. If the latter, my criticisms, whether positive or negative, may be irrelevant to his real views, for in changing the language I may unwittingly change the theses or arguments under examination. Either way, there is a very real danger that I will fail to fulfill the responsibilities of my office as a critic. With some hesitation, I shall adopt the latter alternative of discussing his paper in my own language. Surely, what the critic can best present is an alternative perspective on the paper, and the best person to speak for its author is not myself but Professor Adams.

1. Offices Adams asserts, and it is crucial to his conception of the grounds of human rights to maintain, that personhood is a natural inalienable office. The theo-

184 retical importance, and originality, of this thesis may be disguised by its language. Most moral rights are, in the language of Hart, special rights; they are rights one possesses by virtue of some special standing. I have the right to vote as a citizen, the right to assign reading as a teacher and the exclusive right to use my automobile as an owner. But human rights are general rights; to possess human rights one needs only to be a human being. Hence, human rights are universal, inalienable, and fundamental. Professor Adams is here introducing the corresponding concept of a human duty, a fundamental morN responsibility one has, not as a citizen, teacher or owner, but simply as a human. This is the real import of asserting that personhood is an office. I became interested, and puzzled, by the concept of an office some years ago when I was analyzing the language of duty and obligation. Permit me to remind you of what I then wrote: To say that it is someone's duty 1 to do an act is to claim that there are moral reasons for doing the act which make it more reasonable than any other act possible in the circumstances....There is, however, another sense of the term which involves a more restricted range of reasons. This is the sense in which one can always ask "duty as a what?" It is my duty as a citizen to vote, as a father to support my family, and as a professor to write dull journal articles. To say that someone has a duty 2 to do an act is to claim that there are duty-imposing reasons for the act which give it a greater claim to rationality than any altemative....The precise nature of duty-imposing reasons is unclear. I have duties in this sense as a father, citizen, church-member, juror or professor. I do not have duties as a spendthrift, liar, or a redheaded man. It is uncertain whether I have duties as a friend or as a golfer. Duties arise out of one's station or role in society. But just what is it about a role that imposes a duty and how does it do so? These questions I am unable to answer. I Bradley's choice of the word "station" and mine of "role" reflect our shared presupposition that all offices are what Adams calls "conventional social kinds." Bradley probably thought that one's duties were attached to one's station by the mores o f one's society, and I imagined that social roles brought with them duties because of the socially defined expectations concerning the proper way to play the role. Since Adams challenges our presupposition, let us reexamine the range o f variables it makes sense to insert into the expression "one's duty as a ." Are there any natural offices? A natural office would, I suppose, be some position, status or situation such that (a) it can be defined without reference to any social institution and (b) duties are attached to it independently of any organization rule or social convention. Presumably the offices of husband

185 and wife are conventional. These are two socially defined roles governed by conventional morality. But let us imagine two unmarried individuals living together and having sexual intercourse regularly in a society that has not created any role of cohabitor outside of marriage. To my mind, each of these individuals would occupy a special position and this natural position would bring with it specific moral obligations such as the duty to contribute one's fair share to the maintenance of the shared household and the duty to limit sexual intercourse to mutually acceptable times and manners. Here, then, would seem to be an example of a natural office. Why did I not recognize the existence of natural offices before Adams pointed them out? Perhaps because the existence of a natural office is typically obscured by a superimposed conventional office. Parenthood is both a conventional institutional role and a legally defined status in our society. But parenthood can also be defined in purely biological terms. As such, it may well impose a moral duty to help meet the needs of the child until the child is old enough to fend for himself or herself, a moral duty quite apart from any legal duty of child support or mores forbidding abandonment of tile child. Again, parenthood might be defined in terms of the activity of parenting or caring for the child. In some families, for example, the "real" parent is an older sibling or a grandparent or an aunt. This natural position of being the one who parents may also bring with it the moral duty not to abuse the child in caring for it and perhaps even a moral obligation not to neglect or abandon a child who has become dependent upon one. Professor Adams has shown us the existence of natural offices virtually ignored by recent ethical theory. One may have duties as a cohabitor or as a biological parent. But his next step is far more radical than this. He asserts that one can have moral duties simply as a h u m a n being. Shall we accept this implication of his thesis that personhood is a natural inalienable office? He surely argues for his thesis in a very plausible way. Let me reformulate his argument in my own terms: (1) To be human is, morally speaking, to be a person. (2) To be a person one must conceive of oneself as a person. (3) To conceive of oneself as a person is to recognize a moral imperative to define and live a life of one's own that would stand justified under a rational and moral criticism. (4) This recognition is valid because increasingly confirmed by the crosscultural moral emotions of mankind. Hence, to be human is to have a constitutive responsibility, a moral duty one has as a human being.

186 This argument is logically valid, but is it sound as well? Although I cannot establish the falsity of any of its premises and willingly grant premise (1), let me pose some unresolved questions concerning the others. (2) To be a person one must conceive of oneself as a person. Am I a person only while I am conceiving myself as a person or will one act of conceiving make me a person all my life? How clear, accurate and articulate must my concept of a person be in order for my act of conceiving of myself as a person to be effective in making me a person? In short, I do not really understand just how the semantical dimension is constitutive of personhood. (3) To conceive of oneself as a person is to recognize a moral imperative to define and live a life of one's own that would stand justified under rational and moral criticism. Precisely what is the content of this moral imperative that one must recognize in order to conceive of oneself as a person? It does not seem to me that Adams has formulated any moral imperative. His formulation seems to boil down to an imperative to do what is right. This does not so much affirm a specific moral duty or responsibility as the form of any and every moral obligation. Perhaps personhood does not require the recognition of any moral responsibility at all but only a sense of duty whatever its content may be. (4) This recognition is valid because it is increasingly confirmed by the cross-cultural moral emotions of mankind and our moral emotions are cognitively valid. For the sake of the argument, I will grant Adams' anthropological generalization and moral epistemology. Still, he surely does not allege that the moral emotions of any human being are infallible or deny that some humans have perverse moral emotions. Therefore, let us imagine a new Nietzsche who recognizes an imperative radically at odds with, even diametrically opposed to, the one Adams has formulated - assuming that he has managed to formulate a genuine moral imperative. This new Nietzsche might proclaim "a new morality," and we might prefer to say that he or she has rejected morality entirely. But should we go on to infer that he or she is not a person? Adam's argument would seem to require this very dubious inference. Therefore, although I cannot refute the argument for the conclusion that to be a person is to have a constitutive responsibility, and thus to occupy a natural office, I remain unconvinced because of these worrisome questions. I also remain puzzled by the very concept of an office implicit in the thesis that personhood is a natural inalienable office. The relevant defmitition from the OED reads "a position or place to which certain duties are attached." But Adams writes "An office-concept locates those to whom it applies in terms of a responsibility or set of responsibilities they have" (p. 7). To my mind, he is reversing the internal logic of the concept. According to the OED, the position or location can be independently specified, and the duty or duties follow from this specification in some way. According

187 to Adams, it is the possession of specified duties that implies that one occupies the position or place of the office. Now I would agree with Adams that the office itself is not logically independent of the duties attached to it; detach the duties and no office remains. But I also insist with the OED that the position or place that confers the office-with-duties is logically prior to the duties and the office that follow from it. It does not, of course, very much matter whether Professor Adams has or has not violated ordinary usage. A philosopher is entitled to define and use his or her technical vocabulary. What does matter is whether the conception of an office Adams proposes advances ethical theory. I very much fear that it does not. First, on his conception, one is supposed to identify an officeholder by identifying a responsibility-bearer. How, then, does one identify the individual who has some specified duty as a ? I usually do this by locating the office-holder responsible for performing that function or action, but clearly Adams is going to need some other and independent procedure. I find it hard to imagine what that could be. In this regard, it is instructive to notice that Adams himself writes "Although we define a person in terms of the normative presence of a certain responsibility and its requisite powers, we customarily identify something as a person on the basis of a familiar physical form" (p. 13). It is not impossible, to be sure, that we all have the logic of the concept of personhood backwards, but surely the presumption is that we are using the word "person" correctly even if we are unable to provide an adequate definition of the concept upon demand. Second, Adams' conception renders vacuous all arguments of the form: "X has a moral responsibility for doing R because X holds office O," in which the office is characterized in terms of the position or place that confers the office. To argue, for example, that Jones is morally responsible for feeding this child because Jones is its parent is to infer the duty from the location that Jones occupies. Adams wants to reverse the logic and locate the individual in the office of parenthood on the basis of the duty to support the child. But what substitute argument does Adams then provide for establishing the duty? This is a serious matter. The philosophical problem of specifying the grounds of human rights is a most recalcitrant one. This is precisely what gives importance to the highly original approach of Professor Adams. But now he is introducing the analogous concept of a fundamental human duty, a responsibility every individual has simply a s a human person. But his way of conceiving of the office of personhood invites a similarly recalcitrant problem of specifying the grounds of human duties. Therefore, I am forced to question his conception of an office as well as his argument to prove that personhood is a natural inalienable office.

188 2. Duties and rights The other thesis central to Professor Adams' fascinating paper is that human rights are grounded in the office of personhood. In my conceptual framework, this amounts to asserting that human rights are grounded in human duties, the duties one has simply a s a human being in the morally relevant sense of being a person. Since this thesis is highly original and of great theoretical interest, let us examine it with some care. Permit me to begin by quoting myself once more, this time a passage in which I tried to ground a right on a duty. 2 Normally, the parent has a moral duty to care for the child. This includes at least the duty to see to it that the child's basic human needs for food, shelter, clothing, personality development, education and protection of life and health are satisfied. But the parent cannot full'ill this duty to care for the child if friends, neighbors, strangers or just busybodies are free to interfere with his or her activities of raising and providing for the child. Thus by something like the Kantian principle that ought implies can, the parent's duty to care for the child implies an ethical claim-right of the parent against others that they not interfere with the parental activity of caring for the child. I imagined when I wrote those words that I had a sound instance of the general kind of argument proposed by Professor Adams, an argument from the existence of a recognized duty to the existence of a right to a necessary condition of fulfilling that duty. But precisely what is the principle upon which my argument was supposed to hinge, the one I characterized glibly as "something like the Kantian principle that ought implies can"? Upon critical reflection, I find myself unable to formulate any such principle. The Kantian principle itself, alas, will not render my argument logically valid. Using the principle that ought implies can, one is permitted to infer that the necessary conditions of fulfilling a duty are satisfied from the existence of that duty. Or, by converting the principle, one may infer from the fact that one or more of these conditions is not satisfied the conclusion that there is no genuine duty to perform the act one is rendered incapable of performing by the absence of these conditions. But neither of these inferences moves from a duty to a right. The same sort of fallacious argument that originally, and wrongly, persuaded me seems to reappear in Adam's first attempt to explain just how the fights of an office are grounded in the responsibilities of the office. "Any attempt to assign responsibilities to an office without the requisite freedom and means is null and void for reasons of logic" (p. 10). I entirely agree. But

189 unfortunately the logical reasoning of which Adams reminds us moves in the wrong direction for his purposes. It does not begin with the existence of a genuine responsibility and infer the existence of rights to the requisite freedom and means; it begins with the absence of the requisite freedom and means and infers the nonexistence of the responsibilities , responsibilities that cannot exist because any attempt to assign them must be null and void. Still, let us not give up too easily. It may be wishful thinking, but I believe that Professor Adams and I are somehow on the right track. There really is some sort of sound argument from the duties of an office to a right to the necessary conditions of carrying out these duties. Let me try once more to formulate a valid example of such an inference. Recall section 3 of article 23 of the United Nations UNIVERSAL DECLARATION OF HUMAN RIGHTS. It reads in part, "Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity...." What is most puzzling about this assertion is the inclusion of the words "and his family." Why should it be that an individual worker has a human right to a remuneration sufficient to support, not merely himself or herself, but the other members of his or her family also? My suggestion is that the affirmation of this alleged human right presupposes the office of a breadwinner. It is taken for granted that the social institution of the family typically involves a division of responsibilities such that the worker has the duty of supporting himself or herself and the other members of the family. And in our society this was traditionally the case. Now the office of breadwinner is a conventional one. It is embodied in the economic and social institutions of our society, and of some other societies, and sanctioned by the mores of our society, and some others. Thus, the duty of supporting the other members of the family is imposed upon the worker who holds the office of breadwinner by his or her society. But it would be unfair for society to expect him or her to carry out this duty in the absence of favorable remuneration. There would be an injustice in imposing an institutional duty without at the same time providing for the necessary conditions of fulftlling it. Accordingly, IF we assume that the individual has a fundamental right to just treatment by society, then any society that imposes a duty of family support upon the worker has a moral obligation to that worker to shape its institutions so that any breadwinner will receive a remuneration sufficient to support himself/herself and his/her family. In this way, a moral right to favorable remuneration can be grounded in the worker's duty of support, a duty the worker has by virtue of the office of breadwinner. No doubt other arguments of the same sort come readily to mind. My argument, even if sound, applies only to conventional or institutional offices. But if Professor Adams intends to ground human rights on the office of personhood, he needs an argument that applies to natural offices. Are

190 there any such arguments? Adams hints at several arguments of this sort, but develops none fully and explicitly. Let us see what we can make of his several suggestions. "The first thing we can say about the rights of any office is that the office-holder has the right to fulfill, or to try to fulfill, the responsibilities of the office" (p. 11). This brief passage might encapsulate a two-stage argument. A duty implies a liberty-right to fulfill that duty, and a liberty-right to do something implies a claim-right to the necessary conditions of exercising that liberty. Although this is a plausible argument, it is invalid as it stands. To be sure, "X has a duty to do A" does imply "X has a liberty of doing A." This is because the existence of a duty to do some specified action is logically incompatible with any duty to refrain from doing that same action, and the absence of any duty to refrain from some specified action is precisely what one means by a liberty in the Hohfeldian sense. But a genuine liberty-right is more than a naked liberty; it also contains associated elements that, if respected, confer autonomy concerning the exercise of that liberty upon the right-holder. Unfortunately, there is no reason to suppose that the existence of a duty implies these associated elements as well as the core liberty. But even if it did, the existence of a full liberty-right to do something would not imply any claim-right to the necessary conditions of so doing. To say that X has a liberty of doing A is simply to deny that X has any duty to refrain from doing A. But the absence of any such duty of X could hardly imply any duty of Y, some second party, to provide any and all means necessary to the doing of A. Therefore, this first sort of argument fails because it ignores, or at least vastly oversimplifies, the logic of rights. Another very brief passage suggests a very different sort of argument. "It is wrong for one to interfere with or to deny another any of these freedoms or conditions..." necessary for one to fulfill the defining responsibility of personhood (p. 17). Perhaps "X has a duty to do A" implies "Others have a duty not to prevent X from doing A." Somehow it does seem morally wrong to prevent anyone from fulfilling his or her moral obligations. Although Adams does not explain just why such interference with a dutiful moral agent is morally wrong, I am willing to grant him this step in the argument. But once more the nature of a right returns to plague us. Establishing a duty of others not to interfere may not be establishing a duty to X, and the logical correlative of any claim-right is a relative duty. Not all duties are duties to some second party, for there may be no party with the power to claim performance or remedy. Even if the duty of noninterference were a duty to X, this would establish only a naked claim to noninterference. But a claimright is more than a single claim; it incorporates associated elements that, if respected, confer freedom and control concerning the enjoyment of that claim upon the right-holder. Therefore, although it is probably true that it

191 is morally wrong to prevent an office-holder from performing the duties of the office, this is not sufficient to ground any right to noninterference on the duties of the office. Still another passage suggests a third and very different sort of argument. "To prevent others from defining and living their own lives...would be to violate their personhood in the most fundamental way" (p. 11). If I understand this correctly, the argument hinges upon the content of the fundamental human responsibility to def'me and live a life of one's own rather than upon any generic inference from duties to rights. Personhood is defined in terms of the moral responsibility to define and live a life of one's own that would withstand rational and moral criticism. The individual human being has this duty as a p e r s o n . Hence, to prevent him or her from fulfilling this defining duty is to violate his or her personhood. Assuming that every individual has a fundamental right that one's persorthood not be violated, it would seem to follow that each individual has a right that others not prevent one from defining and living a life of one's own. Although this argument does seem to be logically valid, I very much doubt that it is the sort of argument Professor Adams needs in order to ground human rights in human duties. For one thing, an essential premise of the argument is the existence of a fundamental right that others not violate one's personhood. But what is this if not one of the very human rights Adams is trying to ground? To take this right for granted is to accept at least this human right without any ground at all, thus undermining the entire enterprise of grounding human rights. But if Adams is going to provide a ground for this basic right, dearly he can avoid circular argument only by advancing some other and logically independent argument for this human right. For another thing, how could one derive the various specific human rights from this central fundamental human right not to have one's personality violated? Adams supposes that the content of these specific human right s will be the necessary conditions, freedoms or means, of fulfilling the constitutive responsibility of personhood. But even granted that the assumed right not to have one's personhood violated does imply a right not to be prevented from fulfulling the constitutive responsibility of personhood, this right does not in turn imply any right that others provide one with the necessary conditions of fulfilling this human duty. Failing to provide the necessary freedoms and means is failing to help one to live as a person; it is not preventing one from so doing. I, too, am in favor of respecting personhood, but more than this is required to enable Adams to complete his imaginative and admirable project successfully. My conclusion, and it is one to which I come very reluctantly, is that Professor Adams has failed to make his case. He has not explained satisfactorily how human rights can be grounded in the duties of the human

192 office. Nevertheless, I sincerely encourage him to continue his imaginative line o f reasoning. It may be that he can fill out the hints I have examined in ways that turn one or more o f them into sound and sufficient arguments. Or perhaps he can formulate new and different arguments o f the required sort. Whatever the final outcome of this fascinating project, we can and should learn some important lessons for moral theory. There are natural offices as well as conventional ones, and sometimes rights can be grounded in the duties o f an office. These insights are more than one can learn from many a philosophical paper.

No~s 1. "Some Deontological Expressions," Philosophy and Phenomenological Research 32 (December 1971), p. 217. 2. "Consent to Medical Research on Children," in Consent: Concept, Capacity, Conditions, and Constraints, ed. L.T. Sargent, Beiheft Nr. 12, ARSP (1979), p. 100.