Lost in moral space: On the infringing/violating distinction and its place in the theory of rights

Law and Philosophy

Volumn 23, Issue 4, 2004, Pages 325-346

  Oberdiek, John ^a  

^a and law in the military   (United States)

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EID: 4043114977     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/B:LAPH.0000015415.09583.a1     Document Type: Review

References (45)

1. Joel Feinberg, "Voluntary Euthanasia and the Inalienable Right to Life," Philosophy and Public Affairs 7 (Winter 1978), p. 102.
2. I b i d.
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5. Thomson maintains, "[s]uppose that someone has a right that such and such shall not be the case. I shall say that we infringe a right of his if and only if we bring about that it is the case. I shall say that we violate a right of his if and only if both we bring about that it is the case and we act wrongly in doing so." Judith Jarvis Thomson, "Some Ruminations on Rights", in William Parent (ed.), Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986), p. 51. See also Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), p. 122.
6. Thomson maintains, "[s]uppose that someone has a right that such and such shall not be the case. I shall say that we infringe a right of his if and only if we bring about that it is the case. I shall say that we violate a right of his if and only if both we bring about that it is the case and we act wrongly in doing so." Judith Jarvis Thomson, "Some Ruminations on Rights", in William Parent (ed.), Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986), p. 51. See also Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), p. 122.
7. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 57.
8. Thomson, "Rights and Compensation", in Rights, Restitution, and Risk, supra note 5, p. 70.
9. As Thomson points out, "complexity ought not be avoided where it is necessary, that is, where it can only be avoided at the cost of diminishing explanatory power." Thomson, "Afterword", in ibid., p. 255.
10. Moral residue is first discussed in depth in The Realm of Rights, supra note 5, p. 84. Thomson introduces the concept under the name "moral traces" in Rights, Restitution, and Risk.
11. Moral residue is first discussed in depth in The Realm of Rights, supra note 5, p. 84. Thomson introduces the concept under the name "moral traces" in Rights, Restitution, and Risk.
12. See Thomson, The Realm of Rights, supra note 5, p. 98.
13. Besides claiming that B owes A compensation if B damages any of A's property in justifiably crossing it - a claim that I address below - Thomson also believes B ought to ask A permission to cross the land if there's time. I don't address this latter consideration, but let me simply say that I see no moral grounds on which B must ask A for such permission because even if A withheld permission B would still be justified in crossing A's land. See ibid., p. 99.
14. Feinberg writes that "[w]e would not think it inappropriate to express our gratitude to the homeowner, after the fact, and our regrets for the damage we have inflicted on his property. More importantly, almost everyone would agree that you owe compensation to the homeowner for the depletion of his larder, the breaking of his window, and the destruction of his furniture." Feinberg, "Voluntary Euthanasia", supra note 1, p. 102 (emphasis in original).
15. Thomson, "Rights and Compensation", in Rights, Restitution, and Risk, supra note 5, p. 77.
16. Note that Thomson endorses "right only if compensation" but not the bi-conditional "right if and only if compensation." She claims that a bi-conditional would be out of place because there can be other grounds for compensation besides the infringement of a right. See ibid. Of course, strictly speaking, the syllogism I attribute to Thomson and Feinberg is invalid. But coupled with the assumption that there is no other explanation for the compensation, the conclusion follows.
17. Nozick, Anarchy, State, and Utopia, supra note 6, p. 34.
18. Nozick writes, "Libertarian prohibitions are usually formulated so as to forbid using violence on innocent persons. But innocent threats, I think, are another matter to which different principles must apply." Ibid., pp. 34-35.
19. See Thomson, The Realm of Rights, supra note 5, p. 370.
20. Value pluralism does not, of course, entail that there cannot be rational choice between competing values. Charles Larmore, for example, rhetorically asks, "Can we not in good conscience consider our own moral universalism as superior to earlier and very different tribal moralities, while acknowledging that thereby we have also lost the possibilities of good that they embodied?" Charles Larmore, "Pluralism and Reasonable Disagreement", in E. F. Paul, F. D. Miller, Jr. and J. Paul (eds.), Cultural Pluralism and Moral Knowledge (New York: Cambridge University Press, 1994), p. 69.
21. I am assuming here that compensation is the fullest response to moral residue, but it may not be, particularly where monetary remuneration would be crass - the case of reparations for African-American descendants of slaves might be an example.
22. Frances Kamm explains the possibility of negative residue by reference to the idea that it is a shame that people lack a greater status of inviolability. Kamm writes, "The negative residue can express the sense that 'it's a shame' people do not have a right to greater inviolability, and if they do not have a right to such greater degrees of inviolability, at least they have a right to be compensated for this sad truth." F. M. Kamm, Morality, Mortality, Volume II: Rights, Duties, and Status (New York: Oxford University Press, 1996), p. 270. Kamm's argument raises a number of interesting questions that I do not attempt to answer here. Let me simply note some mischief that her argument can lead to. On Kamm's view, one at least sometimes owes compensation to others in virtue of the "sad truth" that the other person lacks greater inviolability. Now, if the homeless beggar that I walk by every day is in some sense a locus of negative residue, but he nonetheless lacks a right to my money, is he owed compensation for that sad moral truth? That would make the prerogative I have to walk past him without giving him anything an empty formalism - one would owe him money because he doesn't have a claim to it. And even if one believes the beggar does have a right to some of my money, though not all of it, the problem persists, for we can ask whether the sad truth that he is not owed all of my money gives him a right to compensation. The worry is that one might get through negative residue exactly that which one could not get through a right.
23. Claire Finkelstein called to my attention that my position entails denying compensation to the poor cabin owner for damage caused by a wealthy backpacker. But, in this spirit, my position also entails denying compensation to the wealthy cabin owner for damage caused by the poor backpacker. And for those who believe such considerations bear on whether compensation is owed or not - I myself do not - mountain retreats tend to be owned by the wealthy, not the poor.
24. See Vincent v. Lake Erie Transp. Co, 124 N.W. 221 (Minn. 1910).
25. See, for example, City of Rapid City v. Boland, 271 N.W.2d 60 (S.D. 1978).
26. It is interesting to note in this regard that the Minnesota Supreme Court in Vincent v. Lake Erie explicitly likened its analysis of private necessity to that of public necessity: "And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made." 124 N.W. 221. This is no longer true in cases of public necessity.
27. Thomson's famous essay, "A Defense of Abortion," is premised on moral specificationism, for she there rejects any general right not to be killed in favor of a right not to be killed unjustly. See Thomson, "A Defense of Abortion", in Rights, Restitution, and Risk, supra note 5.
28. Thomson, "Self-Defense and Rights", in supra note 5, p. 37.
29. Ibid., p. 39.
30. On this view, rights may still figure in moral argument as intermediate premises, such that once a right's content in a particular case has been established, it can then be relied upon as a premise in an argument meant to establish some further conclusion. It remains the case, however, that one does not (ultimately) start with rights.
31. In actual moral argument, as opposed to the hypothetical construction and comparison of arguments that philosophers engage in, invoking a right may also signal that the person challenging the scope of the right bears the burden of showing that the right does not apply in the particular case at hand. In the Cabin Case, for example, the cabin owner might invoke the right to property to shift the burden to the backpacker, as if the cabin owner were saying to the backpacker, "It is normally impermissible for anyone to use my cabin without my express permission; what grounds do you have for believing that these are exceptional circumstances?"
32. On this point, see Thomas Nagel's well-known and trenchant criticism of Nozick's theory of rights in "Libertarianism without Foundations", The Yale Law Journal 85 (1975).
33. Besides Nozick, G. A. Cohen would dispute this, for he along with Nozick founds his account of social justice on the principle of "self-ownership, " which is a property-like right in oneself which extends to property rights proper. See G. A. Cohen, Self-Ownership, Freedom, and Equality (Cambridge, UK: Cambridge University Press, 1995). The liberal egalitarian theories that dominate the distributive justice debate eschew the notion of self-ownership.
34. As mentioned in footnote 28, rights can still be invoked as premises in further moral argument on this view. The claim here is rather that rights cannot stand alone, as ultimate premises, in moral argument.
35. No role is left for "infringement" as Thomson and Feinberg use it. As ordinarily used, of course, infringements are just violations; e.g., patent infringements.
36. My argument in what follows is indebted to Stephen Perry, who outlines it in the course of criticizing the libertarian conception of responsibility in tort law. See Stephen R. Perry, "Libertarianism, Entitlement, and Responsibility", Philosophy and Public Affairs 26 (Fall 1997), esp. pp. 384-390.
37. Ronald Coase, "The Problem of Social Cost", Journal of Law and Economics 3 (1960), pp. 1-44.
38. Perry cites Richard A. Epstein, "A Theory of Strict Liability", Journal of Legal Studies 2 (1973), pp. 151-204 as representative. See Perry, supra note 34, p. 352.
39. Perry cites Richard A. Epstein, "A Theory of Strict Liability", Journal of Legal Studies 2 (1973), pp. 151-204 as representative. See Perry, supra note 34, p. 352.
40. See Perry, ibid., pp. 381-384. For a fuller analysis, see Stephen R. Perry, "The Impossibility of General Strict Liability", Canadian Journal of Law and Jurisprudence 1 (1988), pp. 159-168.
41. See Perry, ibid., pp. 381-384. For a fuller analysis, see Stephen R. Perry, "The Impossibility of General Strict Liability", Canadian Journal of Law and Jurisprudence 1 (1988), pp. 159-168.
42. Perry, "Libertarianism, Entitlement, and Responsibility", ibid., p. 388.
43. Ibid. It should be noted that Perry's use of the term "infringe" is nontechnical, and is not a tacit admission that the infringing/violating distinction in the theory of rights is defensible. It will become clear in what follows that Perry could not hold that position.
44. See, for example, ibid., p. 375. Perry's usage of the "moral space" language also derives from Nozick. See Nozick, supra note 6.
45. See, for example, ibid., p. 375. Perry's usage of the "moral space" language also derives from Nozick. See Nozick, supra note 6.