However, one can have a right without having a duty to exercise it. Perhaps some citizens have a duty not to vote, as argued by Sheehy and Brennan , but the right not to vote that I defend does not require this. In fact, as explained below, it is also consistent with a duty—though not an enforced one—to vote.
Thus, unlike Conant, I am not arguing for disenfranchising certain citizens, as for instance Brennan does. The right not to vote that I defend merely gives citizens certain discretion over whether they vote.
Faced with such attacks, advocates of compulsory voting have at least two responses. The first, more conciliatory, response is to argue that while there may be such a right, compulsory voting regimes do not—or at least need not—violate it. My main focus, in this paper, is to rebut this second response but, in order to motivate this, it is necessary to make a few brief remarks about the first. This is the topic of the next section.
Citizens may be required to attend the polls but, once there, they are free to abstain or to spoil their ballot, so they are not literally forced to vote. Thus, if the putative right not to vote is understood as a right not to cast a valid vote, it is arguably respected. First, some compulsory turnout laws, including Australian law, do require citizens to cast valid votes Pringle Though this law may not be enforced, or even enforceable where there is a secret ballot, 4 such laws still have a symbolic effect Gusfield , pp.
A law prohibiting a certain religion would be an objectionable violation of religious freedom, even if not enforced. Similarly, a law that requires citizens to vote can hardly be said to respect their right not to, simply because it is not enforced.
To be sure, the advocate of compulsion need not defend compulsory voting laws as actually implemented in Australia. This, however, runs into a second problem. While voting may be beneficial to democracy, it is harder to show how merely attending the polls and not voting produces democratic benefits Saunders , p. Perhaps this challenge can be met. Space precludes a fuller examination of these arguments here, but I hope to have shown that compulsory turnout is not necessarily easier to justify than compulsory voting.
Though compulsory turnout demands less of citizens, the benefits of this are less obvious and probably smaller , so it is still far from clear that the benefit is sufficient to justify the demand. Consequently, there appears to be a dilemma. Either compulsory turnout increases voting, in which case it is effective but potentially abridges the right not to vote, or it does not, in which case it is harder to justify.
If there is a right not to vote, then compulsory voting is at least prima facie objectionable. Thus, my focus in what remains is on countering objections to the existence of such a right Lardy ; Hill a.
However, I do not pretend to establish the existence of a right not to vote beyond any reasonable doubt. I am sympathetic to the thought that the justification of rights must be holistic so that, to justify any particular right, one would have to show how it coheres with all other rights possessed by everyone.
Clarifying Rights Hohfeldian Relations Before we can address whether or not there is a right not to vote, we need a more precise definition of what this would mean. Following Hill a , p. The other relations that Hohfeld identifies can all be defined in terms of their correlatives and opposites. Note that Hohfeldian relations always hold between two agents Jones , pp. This is consistent with the fact that we often have privilege-rights against all other agents; it is simply that these have to be understood as a number of analytically distinct rights.
Thus, if we say simply that Beta has a privilege-right to scratch her nose, without specifying some other agent, we ordinarily mean that she has such a right with respect to Alpha, Gamma, Delta, and all other agents. Aside from claims and privileges, the other basic Hohfeldian relations are powers and immunities. These are second-order relations Kramer , p. Agents typically have powers over some of their own first-order relations. However, agents do not have powers over all of their first-order relations.
Having made the promise, Alpha cannot release himself from his duty; only Beta can do this. An immunity is the converse of a power. According to Hohfeld , pp. Jones , pp. For purposes of this paper, I will adopt the latter terminology and talk of privileges, etc. This is consistent not only with ordinary usage but also with the terms of the debate that I am joining.
Indeed, I think that Lisa Hill is guilty of misrepresenting Hohfeldian relations in a way that confuses the nature of the right not to vote. Hill on Hohfeld Hill a also appeals to Hohfeld to clarify the right not to vote.
This example suggests that any ability, such as the ability to drive, is a power, but this is not so. As we saw, powers are abilities to do something very specific, viz. Being granted a licence releases one from this duty, bestowing upon one a privilege. Note that even if an individual had the authority to issue a licence to herself, there would still be a distinction between her right to issue the licence which is a power and her subsequent right to drive which would be a privilege.
As noted above, various Hohfeldian relations may be considered rights, thus we may distinguish claim-rights, privilege-rights, etc. But, while privileges, powers, and immunities are commonly considered to be rights pace Hohfeld , duties are not. Whatever the reason, to consider a Hohfeldian duty to be a right would be a departure from ordinary usage.
Perhaps it would be useful to have some phrase to refer to such protected duties and, in fact, this is how Hill a , p. Though Hill clearly defines what she means by the term, and I do not wish to suggest that she is guilty of any conceptual confusion here, this term is best avoided lest it mislead. The Right to Vote Though my purpose here is to defend a right not to vote, it will be helpful to precede this with some brief remarks on the right to vote.
This is important because, as we will see later, some suggest that the right not to vote follows in some way from the right to vote. Hill a , p. However, this mischaracterises the position of her opponents. Thus, if voting were simply a privilege, it would mean merely that citizens violate no duty by voting. First, not everyone thinks that all citizens have a privilege to vote in the first place.
Assuming that this duty is owed to their fellow citizens, who therefore have correlative claims, then these citizens have no privilege to vote. If they have no privilege to vote, then their right to vote cannot be simply a privilege. Second, and more important, even those who think that there is a privilege to vote do not ordinarily think that this exhausts the right to vote.
We ordinarily think that people have a claim to non-interference, and perhaps even to assistance, when it comes to voting. There is no reason why someone who defends a right not to vote should be any less committed to these Hohfeldian claim-rights than anyone else.
This discussion helpfully illuminates the fact that the rights commonly spoken of often involve a number of distinct Hohfeldian relations. For example, my property right over my car includes a claim that others not drive it without my permission, a privilege to drive it myself subject to the laws of the road , a power to permit others to drive it or to transfer ownership by selling it, and immunities against many others unilaterally altering these relations.
The right to vote, it seems, takes such a form Beckman , p. As noted above, it is not simply a privilege, though it is commonly supposed that most citizens have a privilege to vote. Citizens ordinarily have certain claims connected with voting, such as a claim that their government gives them reasonable opportunities to vote and claims that others not interfere with their exercise of the vote. Further, through the vote citizens can exercise Hohfeldian powers Beckman , p. Thus, the right to vote comprises several Hohfeldian relations.
The Right Not to Vote Let us turn now to the right not to vote. First, it may refer to a privilege-right; thus, one violates no duty by not voting. Second, it may refer to a claim-right, because others have some duty, such as a duty not to force one to vote. One might think that citizens have a right not to vote in both of these senses, but neither entails the other. First, one may think that citizens have a privilege-right not to vote but not think that this privilege is protected by any claims against interference.
If one has a duty to vote, then one has no privilege with respect to the agents to whom one owes the duty not to vote. Conversely, if one does not owe someone a duty to vote, then one has a privilege not to vote. However, it is not clear that it is a privilege-right that is being invoked by opponents of compulsion. Thus, I am not sure what it would be to violate a privilege.
Indeed, Thomson , p. Hence, a privilege-right not to vote does not seem able to ground an objection to compulsory voting. If one is liable to such interference, because someone else has this power, then this may be entirely permissible. To suggest otherwise would conflate privileges with another Hohfeldian relation, namely immunities Hohfeld , p.
While one may have both a privilege and an immunity, the immunity is not itself part of the privilege, for it is possible to have a privilege without an immunity, in which case it may simply be revoked without being violated. Thus, while I am certainly inclined to think that most people have a privilege-right not to vote, it is not clear whether compulsory voting laws violate this.
So, for the sake of argument, I will concede that there is a duty to vote. This duty is compatible with there being a right not to vote in another sense. This right, if it exists, is clearly violated by compulsory voting laws at least, when they are enforced. Thus, it seems that whether or not those who object to compulsory voting laws actually invoke a claim-right not to be forced to vote, it would be more dialectically effective to invoke such a right, rather than a mere privilege not to vote.
Hill a does not, so far as I can see, consider whether there may be a right not to vote in this latter sense. At least, the arguments that she offers against the right not to vote seem to target the idea of a privilege or to support a duty to vote, but do not show that there is no claim against being forced to vote.
Even if we grant that there is a duty to vote, all that follows is that non-voters are acting wrongly. It does not follow that coercion becomes permissible to make them comply, for they may still be owed a duty of non-interference, correlating to their claim not to be made to vote.
Is There a Right Not to Vote? Having given a clearer account of what I mean by a right not to vote, it still has to be determined whether or not such a right exists. How might this claim be established? I will consider two possibilities. The first sub-section considers conceptual arguments. Let us call these conceptual arguments.
Such arguments are criticised by Lardy and Hill a. While I do not agree with every detail of their critiques, I agree that such arguments should be rejected. The second sub-section considers substantive arguments for the right not to vote.
These, I suggest, are more promising. While perhaps they cannot be conclusive, without a complete account of all rights possessed by all persons, I think it plausible that there is a prima facie right against being coerced and that the arguments offered against the right not to vote do not clearly succeed in defeating this.
Given the frequency with which this assertion is made, it must be conceded that it has some prima facie plausibility. Unsurprisingly, there is something wrong with this argument. It is true that many, if not all, rights can be waived by their possessors. For instance, if I lend you money, I can waive my right to be repaid, thus releasing you from your duty.
But the resultant situation, in which I no longer have a right to repayment, would not ordinarily be described by saying I have a right not to be repaid; it is simply one in which I have no right to be repaid. A right not to be free from physical assault, presumably, amounts to a claim-right to be assaulted. The cause of confusion seems to lie, in part, in failing to distinguish different things that people may do with their rights, such as not exercising them, waiving them, and inverting them.
I may attend a meeting and not say anything, without any implication that I have waived my speech right, even temporarily; I simply chose not to exercise it. Similarly, those who do not wish to vote on a given occasion need not wish to surrender their right to vote. Perhaps some would not object to being stripped of the right, but others might sincerely value the right even though they do not wish to exercise it on a given occasion. Thus, non-voters are not necessarily seeking to waive or alienate—even temporarily—their right to vote.
See general information about how to correct material in RePEc. For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: ZBW - Leibniz Information Centre for Economics. If you have authored this item and are not yet registered with RePEc, we encourage you to do it here.
This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about. If CitEc recognized a reference but did not link an item in RePEc to it, you can help with this form. If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item.I suggest that there is a serious justificatory burden on those studying essay coercion than on those who demonstrate it cf. See and information about how to prevalent material in RePEc. Whatever Republicans will oppose mandatory voting for the morning they now push voter IDs: to win. Reliably, citizens can live up to do liberties, so long as they are republican they need not actually vote.
Moreover, it may not always be obvious how one should vote in order to support justice and democracy. Given the frequency with which this assertion is made, it must be conceded that it has some prima facie plausibility. Hence, a privilege-right not to vote does not seem able to ground an objection to compulsory voting. There are familiar objections to such fair play arguments, particularly when scaled up from small cooperative groups to something like the nation-state Smith , pp. Hence, I argue that the right not to vote—if it is to do what those who invoke it want it to do—should be understood as a claim not to be forced to vote. Faced with such attacks, advocates of compulsory voting have at least two responses.
My aim in this paper is to clarify and defend a right not to vote against these critics. Therefore, whether there is a right not to vote is of crucial importance. Mandatory voting would make elections truly valid. Clarifying Rights Hohfeldian Relations Before we can address whether or not there is a right not to vote, we need a more precise definition of what this would mean. As noted above, it results in me having no right to be repaid, not a right not to be repaid whatever that would be. This duty is compatible with there being a right not to vote in another sense.
Perhaps this challenge can be met.
The other relations that Hohfeld identifies can all be defined in terms of their correlatives and opposites.
Yet jury duty, the draft, going to school, and taxpaying all have been compulsory without being called communist OK, three out of four. See general information about how to correct material in RePEc. But the most basic is also the most appropriate: making voting mandatory. We ordinarily think that people have a claim to non-interference, and perhaps even to assistance, when it comes to voting.
MORE: Undecided? Thomson , pp. Nonetheless, a compelling justification is required in order to overcome the presumption in favour of liberty. Many reforms could increase turnout, from same-day registration to voting on weekends. Though some advocates of compulsory voting have claimed that legal compulsion is consistent with a right not to vote, I argue that this is unconvincing. These are second-order relations Kramer , p.
Though Hill clearly defines what she means by the term, and I do not wish to suggest that she is guilty of any conceptual confusion here, this term is best avoided lest it mislead. Thus, one either has both a right and a duty to vote, or neither.
The Right to Vote Though my purpose here is to defend a right not to vote, it will be helpful to precede this with some brief remarks on the right to vote.