What's wrong with infringements (Insofar as infringements are not wrong): A reply

Law and Philosophy

Volumn 27, Issue 3, 2008, Pages 293-307

  Oberdiek, John ^a  

^a and law in the military   (United States)

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EID: 41249084240     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-007-9019-1     Document Type: Article

References (39)

1. John Oberdiek, 'Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights', Law and Philosophy, 23 (2004): pp.325-46. Hereafter, 'Lost in Moral Space'.
2. Ibid., p. 328. I introduce three reasons that Thomson adduces in favor of the drawing the infringing/violating distinction, but go on to consider only two of the reasons why Thomson draws it, for I maintain (pp. 328-330) that one of the reasons - rejecting absolute rights - depends on the other two reasons.
3. Ibid., pp. 330-31. Employing her earlier parlance of 'moral traces' for 'moral residue', Thomson maintains that 'certain acts leave 'moral traces', at it were, and that to understand why they do, we must suppose that the acts are infringements of rights.'
4. Judith Jarvis Thomson, 'Afterward', in William Parent (ed.), Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986), p. 253.
5. Thomson, 'Rights and Compensation', in ibid., p. 70.
6. As I noted in 'Lost in Moral Space', p. 338 n. 25,
7. Thomson refers to her rejection of her argument from 'A Defense of Abortion' in advancing her explanatory power argument. As she wrote in 'Self-Defense and Rights', in ibid., p. 37, I used to think it just a mistake to suppose that anyone has a right not to be killed. It is so obvious that there are cases in which it is permissible, and therefore no violation of anyone's rights, to kill a person that it seems right to say that the most we can plausibly be thought to have is a right to not be wrongly or unjustly killed. But if so, then it is hard to see how appeal to rights which we do or do not have can explain why it is or is not permissible for a person to kill.
8. I criticize the moral residue argument in 'Lost in Moral Space', pp. 330-37, the explanatory power argument at pp. 338-43, and the moral space conception of rights at pp. 343-46.
9. Andrew Botterell, 'A Defence of Infringement', Law and Philosophy (2007) doi: 10.1007/s10982-007-9018-2.
10. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 57. Quoted in 'Lost in Moral Space' at p. 326.
11. Stephen Perry, 'Libertarianism, Entitlement, and Responsibility', Philosophy and Public Affairs 26 (Fall 1997), p. 338. Quoted in 'Lost in Moral Space', p. 344.
12. 'Lost in Moral Space', p. 345.
13. 'A Defence of Infringement'.
14. 'A Defence of Infringement', n. 42.
15. Botterell is aware that on his reading there is a problem here, but he suggests that the problem is mine. He writes, '[p]erhaps this merely shows that Thomson is confused about her own theoretical commitments; then again, it may also indicate that attributing such a view to Thomson and to the moral space conception of rights is problematic'.
16. 'A Defence of Infringement'.
17. 'A Defence of Infringement'.
18. Continuing in his defense of the moral space conception, Botterell further maintains that my 'position is that proponents of a moral space conception of rights cannot help themselves to an account of causation that includes normative elements.' In response, he states, 'But I don't see why they ought to accept this. For if rights of the form 'X has a right against all those who owe him a duty that S not obtain that S not obtain' are general rights, then the content of those rights need not be cashed out in normatively neutral terms.' ('A Defence of Infringement'.) Setting aside Botterell's reference to the dubiously general right he hypothesizes, what I claim is not that proponents of the moral space conception must be committed to a normatively neutral account of causation, but that their account of rights is not normative enough.
19. Joel Feinberg, 'Voluntary Euthanasia and the Inalienable Right to Life', Philosophy and Public Affairs 7 (Winter 1978), p. 102.
20. 'A Defence of Infringement'.
21. 'A Defence of Infringement'. When Botterell first introduces the three propositions, he claims that the three propositions are inconsistent, but he then states that they merely 'appear to be inconsistent'.
22. 'A Defence of Infringement'.
23. 'A Defence of Infringement'.
24. 'A Defence of Infringement'. Botterell here follows Peter Westen, 'Comment on Montague's "Rights and Duties of Compensation'", Philosophy and Public Affairs, 14/4 (1985): p. 386.
25. 'A Defence of Infringement'.
26. 'A Defence of Infringement'.
27. 'A Defence of Infringement'.
28. See, for example, Joshua Dressier, 'Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits', 62 Southern California Law Review 1331 (1989).
29. It is perhaps telling that Botterell follows Westen's general argumentative strategy in distinguishing between civil and criminal wrongs, for in a recent article, Westen and James Mangiafico have argued that duress is indeed a justification. See Peter Westen and James Mangiafico, 'The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters', 6 Buffalo Criminal Law Review 833 (2003).
30. 71 A. 188 (Vt. 1908).
31. 124 N.W. 221 (Minn. 1910).
32. 'A Defence of Infringement'.
33. 'A Defence of Infringement'. On this score, it is worth taking seriously Ernest Weinrib's cautionary remark that '[o]ne must keep in mind that Vincent is a two to one decision of the Minnesota Supreme Court and that it has been rejected by at least one other common law court', namely, in the Canadian case of Munn v. M/V Sir John Crosbie, [1967] 1 Ex. C.R. 94. Ernest Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995), p. 197 n. 62.
34. 'A Defence of Infringement'.
35. 'A Defence of Infringement'.
36. 'A Defence of Infringement'.
37. 'A Defence of Infringement'.
38. 'A Defence of Infringement'. Emphasis in the original.
39. 'A Defence of Infringement'.