1 What are epistemic rights?
The deliberate spread of false and misleading information about the opioid-based painkiller, OxyContin, by the pharmaceutical giant Purdue Pharma, has resulted in serious and indeed fatal harm. Many people have died. Many more continue to suffer. The case is notable both for the scale of the harm and for the complexity of the orchestrated misinformation campaign at its source. It is, however, far from anomalous. False and misleading advertising was, for example, fundamental to the devastating success of the tobacco industry in the 1950s and 60s (Proctor, 2011). Political misinformation and propaganda have been central to the success of political regimes throughout history. The spread of fake news, both historically and today, shares many of the characteristic features of these kinds of widespread and often coordinated misinformation efforts. The Purdue Pharma case serves as a useful basis for a discussion of epistemic rights not because it stands out but because it is, in some sense, archetypal.
Cases such as this are key to understanding epistemic rights and considering their role in complex, real world settings. As noted, I will discuss a range of cases throughout the book. In this first chapter, however, I answer the title question more directly by providing a definition and analysis of the concept of epistemic rights. What are epistemic rights? This is the foundational question of Chapter 1. As well as providing an answer to this question, I argue that epistemic rights are, first and foremost, a form of rights. I demonstrate that this is not as trivial as it sounds by contrasting my account of epistemic rights with a different notion of rights available in contemporary epistemology. Establishing that epistemic rights are as substantive as any other form of rights is key to establishing their significance in legal and moral discourse concerning rights.
In order to provide a substantive definition of epistemic rights, it will be helpful to break the foundational question down into two further questions. Firstly, what are rights? And secondly, what is it that makes them epistemic? These are the two focal questions of Chapter 1. When these questions have been answered, we will have a definition of epistemic rights to employ throughout the remainder of the book. It will then be possible to examine in more detail how epistemic rights operate in a variety of complex real world settings, such as the Purdue Pharma case.
What are rights?
The concept of rights is familiar in contemporary society, particularly in Western democracies where rights have accrued distinctive political force in the twentieth and twenty-first centuries. Especially notable is the emergence of declarations and covenants in the mid-twentieth century, seeking to articulate and enshrine a set of universal human rights, such as the International Bill of Human Rights (1948) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The International Bill of Human Rights includes, for example, the right to âlife, liberty and security of personâ (Article 3), the right to ârecognition as persons before the lawâ (Article 6) and the right to education (Article 26). The protection and promotion of human rights such as these are fundamental to the activism and advocacy work of political organisations like Amnesty International. Debates concerning the nature and efficacy of human rights comprise a significant cross-disciplinary literature (Freeman 2017; Donnelly and Whelan 2020; Smith 2020).
Beyond human rights, talk of rights finds a home in many spheres of public and private life. There are legal rights, determined by the legal system under which we live, such as the right to vote and the right to park in a parking space to which one owns a permit. Legal rights are, for many, distinct from moral rights, such as the right not to be discriminated against according to race or gender.8 Legal and moral rights are often spoken about as political or cultural rights and carved into sub-categories such as women's rights, black rights, minority rights, worker's rights, LGBTQ rights, disability rights and so on. For those living under constitutional law, there are also constitutional rights, such as those outlined in the Constitution of the United States, including, for example, the Second Amendment right to âkeep and bear armsâ and the Thirteenth Amendment right to freedom from slavery. In response to this diversity, rights theorising spans multiple disciplines including philosophy, politics and legal theory. A question central to rights theory is the question of what, if anything, unifies this diverse array such that we can sensibly refer to all of these as rights? In other words, what are rights?
I define a right as a complex entitlement that provides justification for the performance and prohibition of actions and omissions. I provide an analysis of the three distinct elements of this definition in the following sections. Firstly, I analyse the structure of rights and in doing so fill out the notion of a âcomplex entitlementâ, drawing on the widely accepted insights of the legal philosopher, Wesley Hohfeld (1919). Secondly, I analyse the function of rights by addressing the question âwhat do rights do?â Here, I unpack the part of the definition which states that a right âprovides justification for the performance and prohibition of actions and omissionsâ. Thirdly, I analyse the justification of rights by addressing the question âwhy does a right-holder have a right?â Here, I focus on the part of the definition which states that a right âprovides justificationâ. These analyses substantiate the definition of a right as a complex entitlement that provides justification for the performance and prohibition of actions and omissions.
The structure of rights
The task of defining rights begins for many with an analysis of rights proposed by the legal philosopher, Wesley Hohfeld (1919). Hohfeld's early twentieth century work offers one of the best known contributions to the literature on rights and focuses on the structure of rights. Hohfeld identified systematic ambiguities in the use of the term ârightsâ in legal contexts and sought to disambiguate these to provide greater clarity for the application of rights language in the law. In his own somewhat derisive terms, Hohfeld comments:
chameleon-hued words are a peril both to clear thought and to lucid expression ⌠inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions.
(Hohfeld, 1919, p.29)
Hohfeld identified four aspects or senses of the term right, which he labelled privileges, claims, powers and immunities. Of these, Hohfeld maintained that only claims were rights âin the strictest senseâ (p.30) according to a common understanding of rights in the law. In particular, Hohfeld highlighted the significance of the relationship between claims and duties. He noted that for every claim there is a correlative duty. In other words, if I have a claim, then someone else has a duty towards me either to act or not to act in a certain way. As Paul Graham (1996) puts it, âTo possess a claim is to stand in a position legitimately to demand something from another, and the other is under a duty to perform the demanded actionâ (p.260). Claims determine what duties people have with respect to othersâ rights.
In contrast, privileges, powers and immunities have no such relationship with duties. These represent different senses of the term right but are not, according to Hohfeld, rights âin the strictest senseâ. Privileges remove any restrictions there might be on me doing something but they do not oblige me to do it nor place a duty on anyone else to help or hinder me.9 Powers allow me to waive a claim that I have, in effect removing the duties placed on others by my claim. Immunities prevent others from taking away or altering the claims that I have and the duties that attach to them.
Property rights provide a useful example to illustrate these different senses of the term right (Wenar 2015). Take my mobile phone. I have a privilege-right to use my phone which means that there is nothing stopping me from using it. I have no duty not to use my phone. I also have a claim-right against you using my phone which means, for example, that I have the right to hide it from you or to ask you to stop using it and you have a duty not to use it without my permission. In addition, I have a power-right to allow you to use my phone, in which case, I waive my claim-right against you using it. Finally, I have an immunity-right which prevents you from taking away or altering my claim-right against you using it. You canât simply tell me that it is now your phone and expect me not to complain. These are the property rights that I have as a result of owning a phone. Each of these reflects a sense of the term right. Again, only claims, as the correlatives of duties, are rights âin the strictest senseâ according to Hohfeld. I refer to the combination of these four senses of the term right as a complex entitlement.
I follow Hohfeld (1919) in regarding claims as the substantive notion that we are primarily concerned with when talking about rights. As such, most of the discussion in the book is about epistemic claim-rights. This focus on claim-rights brings the significance of duties to the fore. As Hohfeld emphasised, all claim-rights correlate to some duty owed to the right-holder. Such duties are called directed duties because they are directed towards a right-holder. As May (2015) notes, âDirected duties and claim-rights are, in effect, the same relation viewed from different perspectivesâ (p.524). This does not, however, mean that all directed duties entail claim-rights. I might have a duty to help you carry heavy shopping bags up the stairs, but it doesnât follow that you have a claim-right that I do so.
On the other hand, claim-rights do entail directed duties. As Cruft (2013) puts it, âdirected duties are at the heart of rightsâ (p.201). For this reason, the examination of epistemic claim-rights requires the examination of epistemic directed duties and I will discuss both claim-rights and directed duties throughout the book. Note that, for simplicity, I refer to directed duties as duties. That is not to say that all duties are directed duties (see Sreenivasan 2010 for an account of non-directed duties). But directed duties, as the correlatives of Hohfeldian claim-rights, are my primary concern and, again for simplicity, I refer to these as duties throughout.
Given the focus that is placed on claim-rights, some additional terminology associated with claims is also worth noting. When speaking of claim-rights, rights theorists often speak of positive and negative rights. Positive rights are rights that pertain to what is done: rights to the actions of a duty-bearer. In other words, they require that a duty-bearer does something. Negative rights are rights that pertain to what is not done: rights to the inaction of a duty-bearer. In other words, they require that a duty-bearer does not do something. You might have a positive right that I make you a cup of tea, because I promised you that I would. You also have a negative right that I donât pour the tea over you when I bring it. Note that the inaction associated with negative rights is often referred to as an omission (especially in legal contexts) and I adopt this term throughout the book.
The distinction between positive and negative rights is important because rights are action-guiding. If I confuse a duty to do x with a duty not to do y, then I am misunderstanding what it is that the correlative right requires me to do (or not do). The right to free speech, for example, is not a positive right to be heard. It is a negative right not to be prevented from expressing one's views (Fried 1978, p.110). The man standing on a box and reading loudly from a religious text outside my office window does not have a positive right that I open my window and listen to what he has to say. He does have a negative right that I let him say it without interfering. Negative rights are sometimes referred to as rights to non-interference. Positive rights are rights to assistance.
To recap, a right is a complex entitlement, meaning that it is structured by the four senses of the term right that Hohfeld identified: privileges, claims, powers and immunities. This analysis of the structure of rights gives us an important piece of the puzzle but it is not the whole picture. It does not, for example, tell us what rights do. To explicate this, I now turn to the function of rights.
The function of rights
General consensus among rights theorists tells us that rights affect what we can and cannot permissibly do according to either morality or the law (or both). As such, rights correspond to actions and omissions. This point is worth emphasising in order to contrast it with the idea that rights correspond to, say, objects. I do not have a right to my mobile phone itself, rather, I have a right to actions regarding my phone, such as making a call or sending an email. My rights also correspond to the actions and omissions of other people regarding my phone. You are not permitted to make a call or send an email on it without my permission.
Lea Raible (2020) makes this point succinctly: âConceptually speaking, rights mandate actions ⌠They need to provide reasons for others to act in a certain wayâ (p.50). This feature of rights has implications for the way that we talk about them. It is not uncommon to hear talk of rights to objects, goods, or services, for example, the right to food, education or healthcare. But, as Raible notes, âa right to a good is an imprecise expression of a right ⌠we need to translate âfoodâ into specific actions that form the content of the dutyâ (p.48). A person does not have the right to food itself, rather (if such a right exists) it is (at least) a negative right to non-interference with her obtaining and eating food and, arguably, a positive right to the provision of food by, for example, the State.
Rights to goods and services such as food and healthcare are more contentious than they might at first appear. This is precisely because we must translate the goods and services themselves into actions and omissions to be performed by particular duty-bearers. Like rights, duties pertain to actions and omissions. I return to this in Chapter 2. For easier...
