International Phenomenological Society

Rights Externalism
Author(s): Derrick Darby
Source: Philosophy and Phenomenological Research, Vol. 68, No. 3 (May, 2004), pp. 620-634
Published by: International Phenomenological Society
Stable URL: https://www.jstor.org/stable/40040748
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Philosophy and Phenomenological Research
Vol. LXVIII, No. 3, May 2004

Rights Externalism
DERRICK DARBY

Northwestern University

Rights externalism is the thesis that a subject's status as a rightholder is secured

account of it having a certain nature, but on account of it being afforded a certa
of social recognition. I believe that rights externalism has been given short shrift
because a certain objection is widely taken to be a compelling reason for reje
This objection goes roughly as follows. Both in theory and in practice we com
appeal to the fact that subjects possess certain nonconventional rights (independe
whether these rights have been socially recognized) to criticize immor
practices, arrangements, and institutions. But if being a rightholder is d
determined by whether subjects have been afforded a certain sort of social recog
then we cannot appeal to the fact that subjects possess certain nonconvention
for critical purposes in some instances, namely, in those instances where the
social recognition has not been extended. Although this objection is taken by som
internalists to justify favoring rights internalism over rights externalism, I argu
does not.

Externalism in the philosophy of language and mind imposes a social

condition on the determination of what some of our words mean and on the

content of our mental states. In contrast, externalism in the philosophy of

rights imposes a social condition on what must be so for a subject to be a
rightholder. The general idea is that features of a subject's psychology,
physical constitution, or any other facts about how it is constituted do not
determine its status as a rightholder. Rather it is determined by features of the
subject's social environment and a certain sort of relation that obtains
between it and this environment. Rights externalism is the thesis that a
subject's status as a rightholder is secured not on account of it having a
certain nature but on account of it being afforded a certain sort of "social
standing."1 From this vantage point, then, it is not the case that we first
establish that something is a rightholder by discovering or proving that it has
a certain right-endowing property and then afford it social standing. Rather it

Versions of rights externalism differ regarding how to explicate the social standing
requirement yet they agree in taking the conferral of social standing to be a necessary
condition for the possession of all rights - not just legal or other conventional rights but
moral ones as well. For influential versions of rights externalism, see L. W. Sumner, The
Moral Foundation of Rights (Oxford: Clarendon Press, 1987), and Rex Martin, A System
of Rights (Oxford: Clarendon Press, 1993).

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is that our affording it social standing (however this is explicated) directly
determines whether it is a rightholder.2
Let me elaborate briefly on how the social standing requirement might be
explicated.3 Some philosophers have conceptualized moral rights possession
in terms of a subject having a claim validated by moral principles.4
According to this view the mere moral justification of a claim is taken to be
sufficient for converting a mere claim into a moral right. In contrast, some
rights externalists, who have been inspired by the legal positivist tradition,
have proposed that additional conditions must be met to turn a morally valid
claim into a full-fledged moral right. According to an influential version of
rights externalism these additional conditions have to do with the social
recognition and maintenance (enforcement) of the claim by certain social
authorities.5 And the point here is not that one cannot have a social practice,
such as making morally valid claims, in the absence of the social recognition
and maintenance of certain conventions. Rather the point is that the
combination of the morally valid claim plus what it takes to satisfy the claim
in practice, namely social recognition and maintenance of the claim by certain
social authorities, must necessarily be considered in determining whether a
subject possesses a moral right. When such social recognition and
maintenance is in place - then and only then - we can claim that a subject has
been afforded the social standing requisite for possessing a right.
While a case can be made that externalism is now the received view in the

philosophy of language and the philosophy of mind - largely due to the

influence of Hilary Putnam's "Twin Earth" thought experiments and Tyler
Burge's clever examples6 - externalism is not the received view in the
philosophy of rights. Most rights theorists espouse some version of rights
internalism, which is the thesis that a subject's status as a rightholder (at
least as a nonconventional rightholder) is directly determined by facts about

Compare this contrast with one that Daniel Dennett makes regarding personhood in
"Conditions of Personhood," in A. O. Rorty, ed., The Identities of Persons (Berkeley:
University of California Press, 1976), p. 177.
Drawing on elements of H. L. A. Hart's conception of law and Martin's conception of
rights, I explicate the social standing requirement using the notion of institutional respect.
See Derrick Darby, "Two Conceptions of Rights Possession," Social Theory and Practice
27 (2001): 387-417.
Joel Feinberg, "The Nature and Value of Rights," The Journal of Value Inquiry 4 (1970):
243-260.

5 Martin, A System of Rights, p. 83. It should be noted that Martin uses the terms "mainte-
nance," "promotion," and "enforcement" interchangeably. In addition, one central dif-
ference between Martin's version of externalism and Sumner's version is that Martin
assigns governmental authorities a crucial role in developing his version of the position
whereas Sumner leaves his analysis more open-ended.
Hilary Putnam, "The Meaning of 'Meaning'," in Mind, Language, and Reality: Philoso-
phical Papers Vol. 2 (Cambridge: Cambridge University Press, 1975). Tyler Burge,
"Individualism and the Mental," Midwest Studies in Philosophy, IV (1979): 73-121.

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how a subject is constituted. A proponent of pure internal ism would contend:
"If I have rights, it is because of something about me, not something that
resides in the messy world outside."7 Yet I believe that rights externalism has
been given short shrift. One reason for this is that a certain objection to this
view is widely taken to be a compelling reason for rejecting it. The objection
goes, roughly, as follows. Both in theory and in practice, we commonly
appeal to the fact that subjects possess certain nonconventional rights
(independently of whether these rights have been socially recognized) to
criticize immoral social practices, arrangements, and institutions. But if being
a rightholder is directly determined by whether subjects have been afforded a
certain sort of social standing or social recognition,8 then we cannot appeal to
the fact that subjects possess certain nonconventional rights for critical
purposes in some instances, namely in those instances where the relevant
social recognition has not been extended. I shall refer to this as the critical
power objection. In sum, this objection states that grounding rights
externally will yield outcomes where rightholder status loses its critical
power.

Although the critical power objection is taken by some internalists to

justify grounding rights internally rather than externally (because an
"internalist construal of rights makes them appear more solidly established,
and less tentative, than would an externalist conception"9), I will argue that it
does not. I shall refer to the thesis that grounding rights internally renders
rightholder status more secure than grounding it externally as the security
thesis. Hence the general argument of this paper can be summed up as
follows. Rights internalists take the critical power objection to be a
compelling reason for rejecting rights externalism. If the critical power
objection is to leave rights internalism unscathed, however, the security
thesis must be true. But the security thesis is false, or so I shall argue.

Loren Lomasky, Persons, Rights and the Moral Community, (Oxford: Oxford University
Press 1987), p. 153. Lomasky is not a proponent of pure internalism. He defends what he
calls a "multivalent" account of rights, one having both an internalist and an externalist
dimension. His reliance on the property of project pursuit to ground rights possession
makes him an internalist; however, his insistence that a subject's standing in a certain
social relationship with a project pursuer can allow it to "piggyback" into the community
of rightholders registers that there is an important social dimension to rights possession as
well. Influential proponents of purer versions of rights internalism are: A. I. Melden,
Rights and Persons (Berkeley: University of California Press, 1980); Joel Feinberg,
Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980),
especially "The Rights of Animals and Unborn Generations"; Carl Wellman, Real Rights
(Oxford: Oxford University Press, 1995).
In what follows when I use the term "social recognition," it should be understood in this
more general sense of social standing, though readers should bear in mind that in specific
versions of rights externalism this term can be deployed more narrowly, as I indicated
earlier. So, for instance, when I speak of a subject being afforded social recognition this
can be interpreted, more generally, as being afforded social standing.
Persons, Rights and the Moral Community, p. 153.

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 I

Suppose that set fi represents the set of rightholders at time t as would be

determined by applying the internalism standard. Hence for any subject X and
property p, X is a member of fi at t if and only if X has p. Further suppose
that set /x represents the set of rightholders at time t as would be determined
by applying the externalism standard. Hence for any subject X, X is a
member of /x at t if and only if X is afforded social standing or social
recognition. Now recall that according to the security thesis grounding rights
internally renders them more secure than grounding them externally. This
thesis is based on the following presumptions: (i) There will be a time t at
which sets fi and /x are not identical; (ii) This will in some way favor
internalism over externalism. In what follows I shall undermine the security
thesis by arguing that (ii) is untenable. But first let us consider (i) which I
will ultimately concede for the sake of argument.
Sets fi and \i will be identical at t if and only if they have the same
members../? and /x will have the same members at / if for any X and py if

(1) X has p then X is in fi, and

(2) X has p then X is socially recognized and is in /x

or

(3) -i(X has p) then -«(X is in fi), and

(4) -i(X has p) then -i(X is socially recognized and is in jx)

The security thesis could not get off the ground if there was no time at which
fi and fi were not identical. Were this to be the case there would be no basis
for claiming that internalism renders rights more secure than externalism,
since there would be no object X that is a member of fi but not a member of
Ii. Perhaps there is reason to think that the sets will always be identical. If
the fact that X has p is the only relevant consideration that bears on whether
X is afforded social recognition and, moreover, all of the subjects that have p
are in fact afforded social recognition, then there will not be a time t at which
the sets are not identical. It might be objected, however, that there may be
some subjects that have p but have yet to be discovered. And these yet-to-be-
discovered subjects will be \nfi but not in /x, since we clearly cannot socially
recognize subjects that we have not yet discovered. To meet this concern the
preceding point can be restated as follows: perhaps there is reason to think
that./? and /x will always be identical, assuming that the domain of discourse
includes all and only those objects that are known to us.
Suppose, however, that there is an X that has /?, and that is known to us,
but has not been afforded social recognition. In this case,^ and fi will not be

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identical. Once we concede that there can be a time t at which fi and /x are not
identical, the important question becomes: How might we account for this
possibility? One way to account for it is to consider the different roles that
internalism and externalism assign to properties. Internalism assigns
properties a constitutive role whereas externalism assigns them a practical
role. On an internalist conception of rights possession, there is a direct
connection between X having p and X being a member of fi: if X has p then
X is a member of fi, and if X does not have p then X is not a member of fi.
In contrast, on an externalist conception of rights possession, there is an
indirect connection between X having p and X being a member of /x: if X has
p then X either will or will not be a member of /x depending upon whether X
having p is taken to be the only relevant consideration for affording X social
recognition; if X does not have/? then X either will or will not be a member
of /x depending upon whether X not having p is taken to be the only relevant
consideration for not affording X social recognition.
But what if the fact that X has p is not the only relevant consideration that
bears on whether X is afforded social recognition? There appears to be no
prima facie reason for thinking that it must be the only relevant
consideration. If it is not, as I shall assume, then we have a plausible way to
account for how there can be a time t at which fi and /x are not identical. We
can suppose that other considerations beside whether X has p are relevant to
whether to X is actually afforded social recognition and, hence, membership
in /x. Thus if fi and /x are not identical this may be because these other
considerations carried the day, and resulted either in X not being afforded
social recognition even though X had p, or in X being afforded social
recognition even though X did not have p. Consequently, as (i) requires, there
could be some object X that is a member of fi but not a member of /x. This
will happen if X is not afforded social recognition despite the fact that X has
P-

Let us now reconsider the range of possibilities that open up once we

complicate matters by lifting the assumption that X having p is the only
consideration relevant to whether to afford X social recognition.10

(1) X hasp then X is in./?

(a) X is socially recognized

and is in /x

(2)' X has p and other considerations then

For purposes of this discussion it does not matter what the other considerations are. They
can be but are not limited to moral, practical, economic, political, and theological consid-
erations.

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 (b) X is not socially recog-
nized and is not in /x

or

(3) i(X has p) then -.(X is in fi)

(a) X is socially recognized

and is in /z

(4)' -«(X has p) and other considerations then

(b) X is not socially recog-

nized and is not in /x

Given this revised scheme we can now clearly see the force of the critical
power objection and the security thesis. Presumption (i) tells us that there
will be a time t at which fi and /i are not identical. This has been conceded.
Presumption (ii) tells us that at t when fi and (i are not identical this will
favor internalism over externalism. The critical power objection tells us that
grounding rights externally will yield outcomes where rightholder status loses
its critical power. The revised scheme shows us that if (1) and (2)'(b) were to
obtain, then this would be an outcome where grounding rights externally
results in a loss of critical power, and this outcome would favor internalism
since grounding rights internally would not result in a loss of critical power.
There would be a time t at which some object X was in fi but not in \i even
though X has p, which would allegedly prove that grounding rights internally
renders rightholder status more secure than grounding it externally.
Suppose that (1) and (2)'(b) did obtain and that there is some object X at t
that is \nfi but not in fi. Does it follow from this that every other possible
outcome favors internalism over externalism? Does it follow from this that
because this one particular outcome favors internalism over externalism, that
internalism is, overall, a more attractive theory of rights possession than
right externalism? If so, why? From what has been said it should be clear that
presumption (ii) and the case against externalism depends on a certain
interpretation of the favoring relation. In what follows I shall consider the
two most plausible interpretations of this relation to undermine the force of
(ii) and the case against externalism.

II

The most straightforward general interpretation of the favoring relation is

this. When considering two distinct sets that are individuated by applying two
distinct theories, T{ and T2, outcomes favor Tt over T2 just in case some
object X is a member of the set that is individuated by applying T{ but not a

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member of the set that is individuated by applying T2. Therefore, with respect
to the theories of rights possession under discussion - internalism and
externalism - we can say the following:

• Set outcomes favor internalism just in case X is in fi but not in /x.

• Set outcomes favor externalism just in case X is in fi but not in fi.

Given this interpretation of the favoring relation, it clearly does not follow
that all of the possible outcomes reflected in the revised scheme favor
internalism over externalism. (1) and (2)'(b) favors internalism. (3) and (4)'(a)
favors externalism. (1) and (2)'(a), and (3) and (4)'(b) favor neither theory.
Hence, the foregoing interpretation of the favoring relation does vindicate
presumption (ii): there is an outcome that favors internalism over
externalism, since there will be an X that is in fi but not in fi. However this
does not give us a convincing reason to prefer internalism to externalism,
since there will also be an outcome that favors externalism over internalism.
The revised scheme shows that the same number of outcomes favor each
conception of rights possession. Thus presumption (ii) gives us no basis for
preferring internalism instead of externalism and, therefore, the security thesis
lacks force under the foregoing interpretation of the favoring relation.
But it might be objected that the favoring relation should not be
understood quantitatively but qualitatively. A defender of internalism might
contend that internalism is a more attractive conception precisely because the
particular outcome that does favors it, (1) and (2)'(b), has "special
significance." From this they may conclude that rights internalism is,
overall, a more attractive conception of rights possession than rights
externalism. A plausible way to account for the so-called special significance
of the outcome that favors internalism is in normative terms. If we do this,
the following general interpretation of the favoring relation seems
appropriate: When considering two distinct sets that are individuated by
applying two distinct theories, T, and T2, outcomes favor T, over T2 just in
case some object X is a member of the set that is individuated by applying T,
but not a member of the set that is individuated by applying T2 and,
moreover, just in case X ought to be a member of the set designated by T2.
Hence the foregoing case for rights internalism (which assumes a qualitative
interpretation of the favoring relation) comes to this: Outcome (1) and (2)'(b)
favors rights internalism because X is in fi but not in \i and X ought to be in
V-

Yet more has to be said to understand why rights internalists take this
outcome to have special significance. I suspect that their point can be made
more apparent by considering substitution instances for the variables X and p.
Let us therefore consider the following cases for the ordered pair <X, p>.

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 Case 1 : <great ape, sentienco

Case 2: <fetus, humanity>

Case 3: <sequoia trees, being alive>

Case 4: <Vulcans, rationality>

Case 5: Microsoft Corporation, agency >

Case 6: <art works, interest-bearer>

Case 7: <Dred Scott, humanity>

These cases supply the content we need to fully appreciate why rights
internalists take outcome (1) and (2)'(b) to have special significance. There are
at least two interpretations of their point - a wide and a narrow one. The wide
interpretation is that outcome (1) and (2)'(b) favors rights internalism because
all of the subjects in cases 1-7 will be in^ but not in fx even though they
ought to be in /x. Thus this outcome is taken to have special significance
precisely because it does not have the consequence of excluding subjects from
the set of rightholders that ought to be included. But this is clearly not
enough to justify preferring internalism to externalism. Externalists can
easily respond that outcome (3) and (4)'(a) favors rights externalism because
all of the subjects in cases 1-7 will be in fi but not in J3 even though they
ought to be in^. Thus this outcome also has special significance precisely
because it does not have the consequence of excluding subjects from the set of
rightholders that ought to be included.
Internalists may contend that the problem here is that we cannot assume
that all of the subjects in cases 1-7 are members of the set of rightholders.11
But then one wonders whether it is safe to make this assumption for any of
these cases. Internalists may contend that the only uncontroversial case is
case 7. Accordingly, they might respond as follows: "If anyone or anything
could possess [rights], and only those who deny the existence of any and all
[rights] reject this possibility, it would be an adult human being possessed of
the normal human capacities of thought and action."12 Assuming, therefore,
that Dred Scott is a normal adult human being, if anything is a member of
the set of rightholders then he certainly is. Thus outcome (1) and (2)'(b) has

1 * Of course to substantiate this claim they would have to show either that X does not have
p, or they would have to distinguish between any property p and the relevant right-
endowing property p' and argue that X does not have p\ But the latter strategy would be
wasted effort. It would merely require substituting 'p' for all occurrences of 'p". Fur-
thermore, I have been assuming throughout that 'p' designates the relevant right-endow-
ing property whatever rights internalists take this to be.
1Z Wellman, Real Rights, p. 107.

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special significance precisely because it shows that internalism does not have
the consequence of excluding Dred Scott, or any other normal adult human
being, from the set of rightholders, and moreover it shows that externalism
can have this consequence. Hence the real problem with rights externalism is
that it is vulnerable to what I shall call the repugnant implication: it
excludes from the set of rightholders the one kind of subject that ought never
to be excluded, namely, human beings.
This reply constitutes a retreat to a narrow interpretation of why outcome
(1) and (2)'(b) has special significance. The narrow interpretation is
essentially that outcome (1) and (2)'(b) favors internalism because it yields an
acceptable outcome for case 7 (and other similar cases) whereas externalism
does not. This outcome is taken to have special significance precisely because
it shows that externalism, unlike internalism, is vulnerable to the repugnant
implication of excluding human beings from the set of rightholders.
Unfortunately, for externalists, this narrow interpretation cannot be turned
against internalists. Suppose externalists respond by claiming that outcome
(3) and (4)'(a) favors externalism because it too yields an acceptable outcome
for case 7, namely it assures that Dred is not excluded from the set of
rightholders despite the fact that Dred lacks humanity. Not only is this
response puzzling, more importantly, it is grist for the mill of internalists.
They will simply respond that this outcome is not a problem for them, since
it does not result in excluding a human being from the set of rightholders. To
be sure, Dred does get excluded on this outcome, but if Dred does not have p,
where humanity is substituted for 4p\ then the repugnant implication does
not obtain. Therefore, in this case, applying internalism does not exclude
human beings - the one subject that ought never to be excluded from the set
of rightholders.

Ill

This narrow interpretation of why outcome (1) and (2)'(b) favors internalism
instead of externalism makes the dependency of the critical power objection
on the security thesis most apparent. The critical power objection assumes
that we can appeal to the fact that human beings are rightholders merely on
account of their humanity to criticize as immoral certain practices and
institutions that violate human beings (e.g., chattel slavery). The security
thesis assumes, in essence, that externalism (and not internalism) admits of
the repugnant implication that human beings can fail to be rightholders. But
if this is the case, then, embracing an externalist conception of rights
possession will leave us without critical power in certain cases. So, for
example, if we consider outcome (1) and (2)'(b), case 7, and we assume that
Dred is a slave in rural Idaho, it follows that Dred's enslavement cannot be

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criticized as immoral on account of slavery violating his rights, if we
embrace externalism. Yet it can be so criticized if we embrace internalism.13
One plausible response to the narrow interpretation of why outcome (1)
and (2)'(b) favors internalism instead of externalism is to contend that one or
more of the other cases (1-6) will show that internalism also admits of a
repugnant implication when we consider outcome (3) and (4)'(a). For
example, a defender of rights for animals may try to argue that internalism is
vulnerable to the repugnant implication if we consider the ordered pair in case
1. But an even stronger move is to propose the following case, case 8, and
argue for this point from this case.

Case 8: <great ape, humanity >

Thus the point is to argue that the real problem with internalism is that it
too is vulnerable to a repugnant implication of excluding from the set of
rightholders another kind of subject that ought never to be excluded, namely,
great apes. So if excluding a subject that ought never to be excluded from the
set of rightholders counts against externalism, it counts against internalism
as well since it also has this same general implication. Obviously, anti-
abortionists, environmentalists, Star Trek fans, Bill Gates, and art lovers can
utilize this same response strategy. Consider one more example.

Case 9: <human fetus, moral agency >

Taking outcome (3) and (4)'(a), and substituting for <X, p> the values in case
9, opponents of abortion can contend that the real problem with internalism
is that it is vulnerable to the repugnant implication of excluding from the set
of rightholders another kind of subject that ought never to be excluded,
namely, human fetuses. Therefore, if excluding a subject that ought never to
be excluded from the set of rightholders counts against externalism, it also
counts against internalism since it has the same general implication.
Although this response is plausible and is perhaps the most common
response, it is not fruitful. The matter at hand comes down to a dispute about

1 Of course it does not follow from this that Dred's enslavement cannot be criticized as
immoral on other grounds (although less careful proponents of this objection might
assume that it does). We could, for example, argue that enslaving Dred is not virtuous, or
that it does not result in the greatest amount of happiness for the greatest number, or that
slavery is immoral because a social order permitting slavery would not be chosen by
rational contractors under suitably idealized conditions, or even that it is immoral because
it is a violation of divine law. Indeed one wonders whether the critical power objection
can be disarmed simply by pointing out that there are other moral options for criticizing
slavery, and by noting that we need not be troubled by embracing a conception of rights
possession that rules out right-based criticisms unless we wrongly believe otherwise, or
unless we believe that right-based criticisms are the best available option, which remains
to be seen.

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which kinds of subjects ought never to be excluded from the set of
rightholders. In other words, it comes down to what counts as a repugnant
implication. While there is no reason to think that all exclusions will be
repugnant (excluding my computer keyboard will probably not be repugnant)
there is no reason to think that only the exclusion of human beings from the
set of rightholders would be repugnant. As far as I can tell, there simply is no
clear winner in this dispute. Furthermore, not only is there nothing close to a
consensus about this in practice, either in the general public or in
philosophy, there is some reason to think that consensus about this in
principle is unattainable. If, as I have argued elsewhere, the selection of p is
in part guided by practical concerns, and practical concerns will vary widely,
then there will be wide variation in the selection of p, and ultimately about
which things ought never to be excluded from the set of rightholders.14 In
addition to not being fruitful, however, this response strategy is not
sufficiently damaging to internalists. Even if they concede that internalism
has the implication of excluding subjects from the set of rightholders that
some of us care about (apes, fetuses, sequoia trees, Microsoft, and so on),
they can smugly add that "internalism unlike externalism does not exclude
subjects from the set of rightholders that all of us care about and most of us
take to be the most important subject, namely human beings."
Therefore, a more damaging response to the narrow interpretation of why
outcome (1) and (2)f(b) favors internalism instead of externalism is to concede
that externalism does admit of the implication of excluding human beings
from the set of rightholders, to concede that this is repugnant, and to show
that internalism admits of the very same repugnant implication. In other
words, it must be shown that internalism is also vulnerable to the repugnant
implication of excluding from the set of rightholders the one kind of subject
that ought never to be excluded, namely human beings. If this can be shown,
then the security thesis (and ultimately the critical power objection) is a
plague on both houses. I will now show that internalism has this specific
repugnant implication.

IV

Consider the following case.

Case 10: <Dred, white race>

Taking outcome (3) and (4)'(a) and substituting for <X, p> the values in case
10, it is clear that internalism can also have the repugnant implication of
excluding human beings from the set of rightholders. Consequently, an
externalist can claim that outcome (3) and (4)'(a) favors externalism. Given

Darby, "Two Conceptions of Rights Possession," §3.

630 DERRICK DARBY

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the values in case 10, Dred - an enslaved human being in rural Idaho - is in jLt
but not in^ even though he ought to be in J3. Hence even on the narrow
interpretation of the favoring relation a unique case for internalism has not
been made. If internalists contend that the real problem with externalism is
that it is vulnerable to the repugnant implication of excluding from the set of
rightholders a subject that ought never to be excluded, namely human beings,
then it too suffers from this problem.
It might be objected that 'race' is not a legitimate substitution value for
7?'; the fact that X is a member of a certain race (if there are any races at all)
cannot be a basis for inferring that it does or does not have rights. But there
is no principled reason why race cannot be taken to be a right-endowing
property. Moreover, a cursory review of the history of race relations in the
United States clearly shows that race has been viewed as a right-endowing
property in practice.15 And there is considerable work in contemporary social
and political theory that explores the general connection between race and
rights in contemporary politics and social policy debates.16 These
considerations notwithstanding, internalists may still insist that 'race' is not
a legitimate substitution value for 7?'; even though some people have and
continue to do so, we should not ground rights in race. Hence, if we reject
case 10 as an illegitimate substitution instance, then it has not been shown
that internalism admits of the repugnant implication.
Suppose that we ignore case 10 for the moment, and consider the
following cases that substitute a "legitimate" value for '/?':

Case 11: <comatose Dred, agency>

Case 12: <Dred the fetus, agency>

Case 13: <Dred the infant, agency >

Case 14: <insane Dred, agency>

Taking outcome (3) and (4)f(a) and substituting for <X, p> the values in cases
11-14, it is clear that internalism can admit of the repugnant implication.
Given the values in these cases - Dred a comatose human (11), Dred a human
fetus (12), Dred a human infant (13), Dred a lunatic (14) - a human being is
in /x but not in^ even though he ought to be in fi. Thus these cases suffice
to show that even on the narrow interpretation of the favoring relation a

For a recent historiography on the connection between race and rights in U. S. history,
see Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U. S. History (New
Haven: Yale University Press, 1997).
Michael Omi and Howard Winant, Racial Formation in the United States (New York:
Routledge, 1994), and George Lipsitz, The Possessive Investment in Whiteness (Philadel-
phia: Temple University Press, 1998).

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unique case for internalism has not been made. If internalists contend that the
real problem with externalism is that it is vulnerable to the repugnant
implication of excluding from the set of rightholders a subject that ought
never to be excluded, namely human beings, then it too suffers from this
problem.
Internalists might object that the result of applying outcome (3) and (4)'(a)
to these cases is a reductio ad absurdum of substituting 'agency' for 'p'. It
shows that 'agency' cannot be the relevant right-endowing property. But
clearly this same result will obtain for any value of 'p' except humanity. We
can substitute 'project pursuer', 'thinking intelligent being that can consider
itself the same self at different times and places', 'claim-maker', 'sentient
creature', or any other property for 'p'. The internalist may, in response,
embrace 'humanity' as the only legitimate substitution value for 'p'. But
then the internalist is forced to claim that not only is 'race' not a legitimate
substitution value for 'p', neither is 'agency', 'project pursuit', 'rationality',
'being a claim maker', nor any other of the numerous properties that have
been proposed in the philosophical literature, even though some philosophers
continue to propose and defend these properties. The only legitimate
substitution value for 'p' is humanity. Hence, if we reject case 10 as well as
cases 11-14 on the grounds that they contain illegitimate substitution
instances, then it has not been shown that internalism admits of the
repugnant implication.
I suspect that externalists could live with this result, since it would be
just as problematic, and perhaps even more devastating, for internalists who
do not embrace humanity as the relevant right-endowing property. It would
force these internalists to close down operations or to become defenders of the
humanity standard. If they opt for the latter, here are some concerns they will
have to deal with, (a) If, as was argued in response to case 10, membership in
a race cannot be a legitimate property, then why think that membership in a
certain biological species can be? There appears to be an inconsistency here,
(b) If membership in a biological species can be a legitimate property, why
think that membership in the homo sapien species is the only kind of species
membership that can be a substitution value for 'p'? (c) While many
internalists may begin their quest for the relevant right-endowing property by
starting with the humanity criterion, they inevitably end up with more
specific properties in their attempt to say what is most essential to being
human. And these properties then get identified as the substitution instance
for 'p'. How can proponents of the humanity criterion avoid answering the
question "What makes humans different from other animals?" and, thereby,
ending up with a property more specific than humanity, (d) Historically, even
'humanity' has been a contested concept. Whether humanity was understood
as a biological concept or in terms of more specific properties like

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'rationality' the humanity of some individuals, for example, blacks and
women, was not always assumed. So reconsider case 7, <Dred Scott,
humanity >, and outcome (3). This has the consequence of denying that Dred
Scott is a rightholder. A typical eighteenth-century proslavery response was
to embrace this implication and deny that it was a problem on the grounds
that Dred was a member of a different and inferior species, (e) The final
problem is that the internalist who proposes that 'humanity' is the only
legitimate substitution instance for 4p' owes us a compelling argument for
this point. In the absence of this argument internalism (which is seemingly
compatible with other substitution instances) clearly admits of the repugnant
implication.
Instead of embracing the humanity standard, in their effort to avoid the
repugnant implication that results when applying cases 11-14 to outcome (3)
and (4)'(a), an internalist may, in desperation, propose an even narrower
interpretation of the repugnant implication tailored to accommodate their
preferred substitution instance for '/?'. They may propose that the repugnant
implication is not to exclude a human being from the set of rightholders, but
to exclude a human being with agency from the set of rightholders. Then they
can argue that applying cases 11-14 to outcome (3) and (4)'(a) does not
undermine internalism since no human with agency is excluded from the
realm of rightholders. But there are at least two problems with this strategy.
The first problem is that it does not help with case 10. If we suppose that
Dred is a human with agency who happens not to be white, then applying
case 10 to outcome (3) yields the repugnant implication of excluding a
human with agency from the set of rightholders. The second problem is that
this interpretation of what counts as a repugnant implication is now too
narrow to let stand without contesting. While many may not challenge the
general claim that no human being ought to be excluded from the set or
rightholders, they will certainly challenge a more specific claim. At the very
least, some internalists will concede that no human being with agency ought
to be excluded from the set of rightholders, but they will quickly add that no
human being with sentience, rationality, intelligence, or some other p, ought
to be excluded either. Hence, for internalists who substitute 'sentience' for
lp\ applying cases 13 and 14 to outcome (3) will certainly count as a
repugnant implication.

Suppose that set,/? represents the set of rightholders at time t as would be

determined by applying the internalism standard, and that set /x represents the
set of rightholders at time t as would be determined by applying the
externalism standard. The security thesis presumes: (i) there will be a time t
at which sets fi and fi are not identical, and (ii) that this will in some way

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favor internalism over externalism. For the sake of the argument I granted (i)
but argued that (ii) is untenable. The case for (ii) depends on a certain
interpretation of the favoring relation. I considered two of the most plausible
candidates. Both failed to establish that set outcomes favor internalism over

externalism. The first interpretation failed because the same number of

outcomes favor the sets. The second one failed because both are equally
vulnerable to the repugnant implication. Perhaps there is another
interpretation of the favoring relation that I have not considered which proves
the point. But pending a show of proof the security thesis, as it stands now,
is clearly untenable. This is very good news for rights externalism insofar as
the critical power objection is taken by many of its internalist critics to be
the most serious objection to this conception of rights possession. I have
argued that if the critical power objection sails at all, then it will take down
both conceptions in its wake.17

17 I owe very special thanks to Kevin Scharp for penetrating criticisms and helpful sugges-
tions. 1 am also grateful to Robert Gooding-Williams, Tom McCarthy, an anonymous
referee for this journal, and to audiences at Colgate University and Howard University
for feedback on an earlier version of this paper.

634 DERRICK DARBY

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