Conflicts of rights: Typology, Methodology, and Nonconsequentialism

Legal Theory

Volumn 7, Issue 3, 2001, Pages 239-255

  Kamm, F M ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 85001793846     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201073025     Document Type: Article

References (13)

1. When an attacker who threatens to cut off someone's leg is killed by his potential victim in self-defense, it is sometimes said that there is a conflict between the right of the attacker not to be killed and the right of a person not to be harmed. However, this is a pseudo-conflict of rights, since the attacker's right not to be killed is in some way weakened by his being a threat, at least for the purpose of eliminating the threat he presents. Considered alone and not weakened, how would we rank the rights involved in this case? How does the right not to have one's leg be cut off compare with the right not to be killed? If I heard of two people, one of whom was threatened with violation of the first right and one who was threatened with violation of the second, I would think it right to help the second. This is some indication that I believe the second right is stronger. But this need not determine how we resolve all problems involving such rights, since in some cases the right may be weakened. For example, we may help the person attacked in the case I described rather than the attacker. Henceforth, I shall try to consider conflicts among unweakened rights. In this article, I draw on past work of mine in which I go into much greater detail about how conflicts to get scarce resources should be resolved and when it is permissible to harm some to save others. These more detailed discussions can be found in 1 MORALITY, MORTALITY, DEATH AND WHOM TO SAVE FROM IT and 2 MORALITY, MORTALITY, RIGHTS, DUTIES, AND STATUS (Oxford University Press 1993 and 1996); and in Toward the Essence of Nonconsequentialism, in FACT AND VALUE: ESSAYS ON ETHICS AND METAPHYSICS FOR JUDITH JARVIS THOMSON (A. Byrne et al., eds., M.I.T. Press 2001).
2. See J. Waldron, Rights in Conflict, reprinted in his LIBERAL RIGHTS (Cambridge University Press 1993).
3. Judith Thomson distinguished between…. infringing a right (permissable) and violating a right (impermissable). I shall also distinguish between permissibly transgressing a right (infringing) and impermissibly transgressing a right (violating). So “transgressing” is neutral as between the permissible and the impermissible. For Thomson's view see her Ruminations on Rights, reprinted in the collection of her essays, RIGHTS, RESTITUTION AND RISK: ESSAYS IN MORAL THEORY (W. A. Parent ed., Harvard University Press 1986).
4. Waldron, Judith Thomson distinguished between…. infringing a right (permissable) and violating a right (impermissable). note 2.
5. In his introduction to THEORIES OF RIGHTS (Oxford University Press 1985).
6. As in Stephen Darwall, Agent-Centered Restrictions from the Inside Out, PHIL. STUD. (1982); and ELIZABETH ANDERSON, ETHICS AND ECONOMICS (Cambridge University Press 1993).
7. Waldron, As in Stephen Darwall note 2.
8. On others, see ch. 12 of my 2 MORALITY, MORTALITY.
9. It might also be said that whether a right exists at all is not solely a function of the strength of the interest, but the manner in which the interest is affected. I take this and what is said in the text to be considerations weighing against an interest theory of rights. For more on this, see my chapter “Rights” in THE OXFORD HANDBOOK OF JURISPRUDENCE (eds. Jules Coleman and Scott Shapiro).
10. Samuel Scheffler noted this. See Scheffler's THE REJECTION OF CONSEQUENTIALISM (Oxford 1982), p. 109.
11. Some (e.g., Stephen Holmes and Cass Sunstein in THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES (Norton 2000) argue that justifying (what I call) pure positive welfare rights at the social level is nomore (or less) difficult than justifying positive rights to police protection to prevent violations of one's negative rights. It is true that both are positive rights, but I have suggested that arguments for derived positives could be separate from arguments for pure positives.
12. Waldron, It is true that both are positive rights, but I have suggested that arguments for derived positives could be separate from arguments for pure positives. note 2.
13. Dworkin himself makes use of a nonconsequentialist distinction in his defense of a right to request physician-assisted suicide. He considers the objection that such a right (and associated right of a doctor to act on it) may lead to more violations of the right not to be killed against one's will through mistaken exercise of the right. While he grants that a sufficient number of such foreseen mistakes might weigh against the right, he insists that the government's intending to deny someone's right to assisted suicide must be contrasted with its foreseeing (but not intending) those mistakes. See his introduction to “The Philosopher's Brief on Assisted Suicide,” New York Review of Books, March 27, 1997.