This article evaluates what Scanlon has written on contractualism from the perspective of the theory of rights. It asks: where are the rights within contractualism? And: where is contractualism within the space of rights? Scanlon’s discussions and omissions show the urgency of aligning contractualism (indeed any normative theory) with an adequate analysis of rights. Topics include what rights are, how to tell who has them, and the importance of thinking about the power to change them.
H.L.A. Hart, Essays on Bentham (Oxford: Oxford University Press, 1982), p. 185; John Plamenatz, Consent, Freedom, and Political Obligation (Oxford: Oxford University Press, 1938), p. 82; Robert Louden, “Rights Infatuation and the Impoverishment of Moral Theory,” Journal of Value Inquiry 17 (1983): 95; Glanville Williams, “The Concept of a Legal Liberty,” in R. Summers, ed. Essays in Legal Philosophy (Oxford: Blackwell, 1968), p. 125; Joseph Raz, Ethics in the Public Domain (Oxford: Oxford University Press, 1994), p. 275; J.L. Mackie, “Can There be a Rights-Based Moral Theory?” in Jeremy Waldron, Theories of Rights (Oxford: Oxford University Press), p. 179; Hillel Steiner, An Essay on Rights (Oxford: Blackwell), p. 93.
See Wenar, “The Nature of Rights”Philosophy and Public Affairs, 33 (2005): 223–53; and “The Analysis of Rights” in M. Kramer, C. Grant, B. Colburn, and A. Hatzistavrou (eds.), The Legacy of H. L. A. Hart (Oxford: Oxford University Press, 2008), pp. 251-73.
Margaret Gilbert, “Scanlon on Promissory Obligation: The Problem of Promisees’ Rights,”The Journal of Philosophy101 (2004), p. 91. Many thanks to Margaret Gilbert for drawing my attention to her careful discussion of Scanlon on promissory rights. Much of what I say in this section goes over ground that Gilbert already covers in this article. For an exploration of the direction of duties, see also Gopal Sreenivasan, “Duties and their Direction,” Ethics 120.3 (2010): 465-94.
Hohfeld, Fundamental Legal Conceptions, p. 36. Scanlon of course knows the Hohfeldian system: he described what he called its “common” distinctions, and deployed these distinctions himself, as far back as 1978 (DT, p. 28). (Though it may be worth noting that when presenting the Hohfeldian distinctions here Scanlon characterizes the duty corresponding to a claim-right only as a duty, not as a “duty to.”)