Specifying rights out of necessity

Oxford Journal of Legal Studies

Volumn 28, Issue 1, 2008, Pages 127-146

  Oberdiek, John ^a  

^a and law in the military   (United States)

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EID: 41249085380     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqm028     Document Type: Article

References (47)

1. See especially Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990).
2. See John Oberdiek 'Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights' (2004) 23 Law & Phil 325-346.
3. For further negative arguments, see Russ Shafer-Landau 'Specifying Absolute Rights' (1995) 37 Ariz L R 209-225.
4. Casting the position this way is emblematic of so-called moral specificationism, versus factual specificationism. See Thomson 'Self-Defense and Rights' in William Parent (ed.) Rights, Restitution and Risk (Cambridge, MA: Harvard University Press, 1986) 37-39. I do not believe this distinction warrants significant discussion, as any plausible conception of moral specificationism will swallow factual specificationism, thereby overriding the distinction.
5. See Thomas Nagel 'Libertarianism Without Foundations' (1975) 85 Yale L J 136-149.
6. For a general discussion of interest and will theories of rights, see Matthew H. Kramer, N. E. Simmonds and Hillel Steiner, A Debate Over Rights (New York: Oxford University Press, 1998).
7. See Thomas Nagel 'Personal Rights and Public Space' in Concealment and Exposure (New York: Oxford University Press, 2002) 36-40.
8. See also F. M. Kamm 'Inviolability' in Peter A. French, Theodore E. Uehling, Jr and Howard K. Wettstein (eds), Midwest Studies in Philosophy, VOLUME XX (South Bend, IN: University of Notre Dame Press, 1996)
9. and Kamm, Morality, Mortality: Rights, Duties and Status, Pt. III (New York: Oxford University Press, 1996).
10. Joseph Raz, The Morality of Freedom 188 (New York: Oxford University Press, 1986).
11. Philip Pettit distinguishes two forms of valuation, promoting and honouring, in 'Consequentialism' in Peter Singer (ed) A Companion to Ethics 230 (Cambridge, MA: Blackwell Publishers, 1991).
12. Others have recognized yet further kinds of valuation. See Gerald Gaus, Value and Justification 111 (New York: Cambridge University Press, 1990),
13. Elizabeth Anderson, Value in Ethics and Economics (Cambridge, MA: Harvard University Press, 1993) Ch. 1
14. and T.M. Scanlon, What we Owe to Each Other (Cambridge, MA: Harvard University Press, 1998) 79-94.
15. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) 28
16. and F. M. Kamm, above n 6, 263.
17. Nagel, above n 6, 40.
18. Ibid.
19. Nagel is responding to the instrumentalist conception of rights that Raz advances in Joseph Raz, 'Rights and Individual Well-Being' in Ethics in the Public Domain (New York: Oxford University Press, 1994).
20. Ibid.
21. Nagel, above n 6, 39.
22. Raz, above n 11, 33.
23. It should be noted that Raz does not contradict this by holding that '[h]is right does not merely reflect his interest, it adds to it an additional, independent reason.' Raz, ibid at 31. For Raz goes on to explain that it is not merely the right holder's interest that counts, but those that derive from the common good as well.
24. Joel Feinberg 'Voluntary Euthanasia and the Inalienable Fight to Life' (1978) 7 Phil & Pub Aff 93-123, 102.
25. Compare the following statement in Raz's Postscript to Practical Reason and Norms (Princeton, NJ: Princeton University Press, 2nd edn, 1990), 187: Rules, not reasons, have exceptions. Rules belong to the lower level of any two-level way of understanding practical reasoning. Usually each rule is based on a number of reasons, and they reflect a judgement that those reasons defeat, within the scope of the rule, various, though not necessarily all, conflicting reasons. Rules are, metaphorically speaking, expressions of compromises, of judgements about the outcome of conflicts.
26. Unless otherwise noted, 'property rights' will be taken to mean moral property rights.
27. This is a specific application of Liam Murphy's claim that moral theories whose demands are insulated from the actual state of the world are implausible. See Liam B. Murphy, Moral Demands in Nonideal Theory (New York: Oxford University Press, 2000) 66-67.
28. Kamm, above n 6, 269.
29. Ibid.
30. James Griffin writes, 'an account of general moral rights should be able to pass a redundancy test. The word 'rights' should not just provide another way of talking about what we can already talk about perfectly adequately. 'Rights' should mark off a special domain within morality, and there should be sufficient motivation to mark it off.' James Griffin 'Group Rights' in Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge (eds) Rights, Culture and the Law (New York: Oxford University Press, 2003) 178-179. It is worth noting that Griffin does not have the technical sense of general rights that I am discussing in mind in referring to 'general moral rights'.
31. Judith Jarvis Thomson, 'Rights and Compensation' in William Parent (ed.) Rights, Restitution and Risk, 70.
32. An implication of this, and a further cost of adopting the general theory of rights, is that if rights are merely pro tanto reasons, then they cannot be mandatory norms and thus they cannot bear any resemblance to Razian exclusionary reasons, which themselves offer an attractive characterization of rights (and mandatory norms generally). Exclusionary reasons, by their nature, are not mere pro tanto reasons - as negative second-order reasons, exclusionary reasons are formally reasons not to act on pro tanto reasons. They are not weighed alongside, much less a species of, pro tanto reasons. Specified rights, on the other hand, are compatible with a Razian framework incorporating exclusionary reasons. A specified right represents the outcome of the interaction of the many antecedent pro tanto reasons that bear on one's action. (Compare on this point Raz's statement about rules as 'judgements about the outcome of conflicts' above n 17, 187). Where present, a specified right carries the day in practical reasoning - it determines how one ought or ought not to act. It has, therefore, an exclusionary force that a simple pro tanto reason lacks. Whether the specified right itself is reason-giving, or whether, in 'buck-passing' fashion, it instead represents the outcome of the interaction of antecedent reasons, which themselves are reason-giving, is a further question both of Raz exegesis and of specificationism that I do not reach. See T. M. Scanlon, above n 8, 95-100 for the initial discussion of the concept of 'buck-passing', introduced there as a component of an account of value.
33. Thomson casts the infringing/violating distinction thus: 'Suppose 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, 51.
34. See Oberdiek, above n 2.
35. See also John Oberdiek 'What's Wrong with Infringements (Insofar as Infringements are Not Wrong): A Reply' Law and Philosophy (forthcoming 2008).
36. As Frank Jackson puts it, 'the passage to action is the very business of ethics.' Frank Jackson 'Decision-Theoretic Consequentialism and the Nearest and Dearest Objection' (1991) 101 Ethics 461-482, 467.
37. See John Gardner 'What is Tort Law For?' (unpublished manuscript). This point is made in more general terms in Joseph Raz 'Personal Practical Conflicts, in Peter Bohmann and Monika Betzler (eds), Practical Conflicts (New York: Cambridge University Press, 2004).
38. Feinberg and Thomson each make an argument with this form. See Feinberg, above n 16, 102 and Thomson, above n 23, 77.
39. Thomson, ibid.
40. See Oberdiek, above n 2, 330-337.
41. I owe Ekow Yankah for prompting me to discuss this possibility.
42. Those who endorse compensation are too numerous to name. One who joins me in dissent, arguing that a person who justifiably takes the property of another under circumstances of necessity owes no compensation, is Philip Montague 'Rights and Duties of Compensation' 13 Phil & Pub Aff 79-88 (1984).
43. 124 NW 221 (Minn. 1910). It is well worth noting that Canadian law would appear to differ from American law on this point. In Munn v Sir John Crosbie, [1967] 1 Ex C R 94, defendant ship, the Sir John Crosbie, was moored at the plaintiff's wharf while unloading coal. A severe storm arose, throwing the ship against the wharf, which suffered significant damage. The court held that the captain of the ship had not been negligent in staying fast to the wharf when the storm arose, and that compensation was not therefore owed for damage to the wharf. The Munn court even goes so far as to quote approvingly from the dissent in Vincent.
44. Stephen D. Sugarman 'Vincent v Lake Erie Transportation Co: Liability for Harm Caused by Necessity' in Robert L. Rabin and Stephen D. Sugarman (eds), Torts Stories (New York: Foundation Press, 2003) 284.
45. See Liam B. Murphy and Thomas Nagel, The Myth of Ownership (New York: Oxford University Press, 2002) 31-37.
46. In this regard, it is interesting to note that in espousing the theory of general rights, Thomson (among others) occupies the same overarching position what - I elsewhere call the moral space conception of rights - that underwrites Nozick's libertarianism. See Oberdiek, above n 2, 326-327.
47. See also Nozick, above n 9.