Rights as Rules

Author(s): Frederick Schauer

Source: Law and Philosophy, Vol. 6, No. 1 (Apr., 1987), pp. 115-119
Published by: Springer
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 Discussion

FREDERICK SCHAUER

RIGHTS AS RULES

In 'Rights-based Rights' (Law and Philosophy3 (1984): 407-21),

Diana Meyers raisesan important question regarding the relation of
rights to their backgroundjustifications.She focuses on those who,
like Dworkin and Rawls, would derive particularrights from more
general foundationalrights, but the question is larger than that.If we
pay close attention to Meyers' arguments,and especially to what is
missing in those arguments, we will emerge with a better under-
standingof the structureof rights.
Meyers employs in her discussion a characterizationof rights as
guaranteesproviding the right-holder with some degree of resistance
to the goals either of welfare maximizationor of any other form of
public interest calculus.Although this conception of rights is by no
means without controversy,it is one that I more or less accept,and is
presupposedin this commentary.Under such a conception of rights,a
right provides the right-holder with a shield with which to ward off
the forces of general welfare maximization.1But like almost all
shields,rights are not infinitely protective. Under some circumstances
the resistanceof a right may be penetratedby more importantrights,
by particularlymomentous rights-based claims based on rights of
equivalent importance, or by especially exigent general welfare
claims.Under these circumstances,however, the right does not vanish,
even though it is insufficientlyprotective in this instanceto justify the
conduct encompassedby the right. The claim of right persistseven in
the face of non-recognition on a particularoccasion. At times this
persistencemay take the form of remorse on the part of the abridger
of the right At other times we may believe that compensationis owed.

1
Meyers argues that rights also resist "well-intentionedpaternalism"
(Mayers,p. 409), but this somewhatmore problematicsupplementis not
germaneto thisdiscussion.

La andPhilosophy 6 (1987) 115-119.

? 1987 D. ReidelPublishingCompamy.

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116 Frederick
Schauer

And at other times we may believe that nothing more is owed the
disappointedright-holder than an explanation But whether apology,
explanation, or compensation, there is still something, and Meyers
properly takes the persistence of some claim even in the face of
instantdenial to be an importantfeature of the structureof rights.If
there is no such persistence,we have at least a clue that something is
amiss.
In the case of a rights-based argument for rights, such as
Dworkin's,we may, accordingto Meyers, be faced with a situationin
which the justificationfor recognizing a right in the first instancealso
provides the justificationfor abridgingthe same right If, under some
exigent circumstances,claims of the general welfare can justify
restrictingthe activities encompassedby a right, then surely it must
also be the case that claims of right can provide right-abridging
justifications as well. And if, as in Dworkin's schema, all of the
particularinstantiatedrights are derived from one more fundamental
but more abstractjustification,then it must also be the case that that
foundationaljustificationcan provide the basisfor denying the ability
to exercise a right in a particularinstance.But Meyers argues that if
the foundationaljustificationfor a more particularizedright provides
the rationalefor denying the protection of the particularizedright in
a given instance,then the right-holder can hardly expect compensa-
tion, remorse,explanation,or any other form of persistence.If a claim
to a particularright is grounded in a foundationalright to equal con-
cern and respect,then the denial of the particularright in the name of
equal concern and respect cannot give rise to a claim for even some
recognition of a currentlyineffective right. A rights-basedjustification
for particularrights,therefore, cannot explain the persistenceof rights
in many instances,and therefore,accordingto Meyers, cannot serve as
a satisfactorymethod ofjustifying rights.
Let us pause for a moment at the argument that claims of right do
not persist in those instancesfor which the foundationaljustification
of the right also provides the justificationfor the restriction.Consider
first the idea of a rule, apart from the context of rights. On many
occasions rules will seemingly be applicablein cases in which their
justificationsare inapplicable.Indeed,it may be centralto rulenessthat

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Rightsas Rules 117

in at least some cases the compass of a rule will diverge from its
justification,for if it were otherwise there would be no need for the
rule. And whether or not this is true of rules as supralinguisticentities,
it is certainly true of rule-formulations,bounded as they are by the
imperfections and limitations of language. Yet this imperfect fit
between a rule's linguistic articulationand its underlyingjustification,
an inevitable feature of the indeterminacyof rules and language,does
not eo ipsocause the justification to trump the rule. I may think it
unfair that I must pay for an airbag even though I use my seatbelt
religiously,and society may think it unfairthat college professorsmay
take tax deductions for their inevitable costs of food and lodging
when they are teaching at another institution,but in neither case does
the justification trump the rule. If we take rules seriously, and
especiallyif we take rule-formulationsseriously,then rules and rule-
formulationsmay generate argumentsthat would be unavailablehad
we not elected to reduce abstractand infinitely flexible justifications
to more particularand less pliable rules. Whether for reasons of
expediency, or for that aspect of fairnessthat comes from certainty
and predictability,we often choose some amount of"ruleness"instead
of instanceby instancedetermination.And when we choose ruleness,
the failure to provide to a person the protection availableunderthe
rule, rather than under its justification, occasions some degree of
remorse, obligation of compensation, obligation of explanation, or
some other form of persistence.If my rights undera ruleare denied, I
have been deprived of something important (even if justifiably),
despite the fact that the reasonsunderlying the rule do not apply to
me. The rule itself grants rights independent of those that may be
"deserved"under the rule'sjustification,and thus divorcing the rule
from itsjustificationin a given instancedoes not even in that instance
extinguishall claimsof rule-basedright.
Much of the foregoing applies to the particularizationof general
foundationalrights, such as the right to equal concern and respect.
The impetus towards setting out, in advance and in comparatively
clear form, specific rights such as the right to political participation
and the right to equal employment opportunity,is analogousto the
impetus towardssetting out the justificationfor a rule in the form of a

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118 Frederick
Schauer

rule. Particularity,in a non-ideal world, provides,among other things,

certainty, predictability, uniformity, mental manageability, and
insurance against misunderstandingand misapplication of general
principles.If we did not believe these values to be important, we
would have no need to particularizeabstractfoundationalrights, but
could instead apply the abstraction directly to cases without the
mediatingforce of particularizedrights.
Once we understandthis parallelbetween rights and rules, we see
as well that it is not necessarily the case that the holder of a
particularizedright has no grievance when the right is withdrawn in
the name of its foundationaljustification.For just as the very act of
creatinga rule prevents a rule from collapsinginto its justification,so
too does creating a particularizedright prevent that right from
collapsinginto the foundationalright that generatedit.
We can now see that even some of Meyers' examples are mis-
directed.If a duly elected ruler is peremptorilyremoved for violating
a minority'srights,2or if the votes of a Hitler's voters are rejected,3
there is indeed an infringement of derivative rights, and there is the
consequent residuum of moral force. The voters, although not
entitled to compensation, are entitled to something, and we can
imagine feeling at least that a specialexplanationis owed. We are not
owed an apology, becausethe restrictionisjustified,but the restriction
of the right to vote requiresan explanation,and requiresa justifica-
tion of specialforce. This is so because,and only because,rights have
attachedfrom the rule itself even in caseswhere the justificationfor
the rulejustifiesthe restriction.
When an abstract right is particularized,therefore, it picks up
something along the way, and what it has picked up - its ruleness - is
not all lost when the particularizedright is abridged in the name of
the selfsame foundational abstract value that generated it. The
particularizedright does not collapse into the general precisely
itself has a moral component.
becausethe act of particularization

2
Rights',p. 412.
Meyers,'Rights-based
3 Meyers,'Rights-based
Rights',p. 412.

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Rightsas Rules 119

Meyers argues that the approachshe is attacking,the derivation of

particular rights from foundational rights, will work only if
"supplementarynormative premises"4are added to unitary systems
such as those of Dworkin and Rawls. But what she misses is the
extent to which the justificationsfor having rules in general serve as
those supplementarynormative premises.Thus, in any case in which
there is a particularizedrule, that rule, by virtue of being a rule, con-
tains some quantum of the normative force behind ruleness, as
opposed to the normative force behind some particularrule. This
normativity attaches to any rule, and is inherent in the act of
particularization.Individuatedrights are in fact rules of this very sort,
and carry with them not only the normative force behind the
foundational right, but also the normative force behind the act of
individuation.The move from abstractfoundationaljustificationsto
concrete particularized rights, therefore, carries with it those
supplementary normative premises necessary to save a system of
rights-basedrights.5

University of MichiganLaw School,

Ann Arbor,Michigan48109,
USA

4 Meyers,'Rights-based Rights',p. 418.

5 An earlierversionof thispaperwaspresentedat the annualmeetingof the
AmericanPhilosophical Association,EasternDivision,in December,1984.

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