When rights conflict

Legal Theory

Volumn 7, Issue 3, 2001, Pages 257-277

  Montague, Phillip ^a  

^a WESTERN WASHINGTON UNIVERSITY   (United States)

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EID: 85020013743     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201073037     Document Type: Article

References (20)

1. HILLEL STEINER, AN ESSAY ON RIGHTS 59 (Oxford: Blackwell 1997). Hohfeld's account is contained in WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS (Yale University Press 1919). Although Steiner is doubtless correct in what he says about how Hohfeld's account is regarded, I doubt that-at least with respect to its relation to moral rights-this account is in fact the beginning of wisdom. In any case, the view of moral rights that I present here is definitely not Hohfeldian in character. Steiner, however, does rely heavily on Hohfeld's account; and, in various ways, so do Sumner, Wellman, and Judith Thomson in their books on rights. L.W. SUMNER, THE MORAL FOUNDATION OF RIGHTS (The Clarendon Press 1987); CARL WELLMAN, A THEORY OF RIGHTS (Rowman and Allanheld 1987) and REAL RIGHTS (New York: Oxford University Press 1995); JUDITH JARVIS THOMSON, THE REALM OF RIGHTS (Harvard University Press 1990).
2. HOHFELD, Although Steiner is doubtless correct in what he says about how Hohfeld's account is regarded, I doubt that-at least with respect to its relation to moral rights-this account is in fact the beginning of wisdom. note 2, at 34. This remark suggests that Hohfeld's account applies to a rather restricted range of legal rights. In particular, it seems inapplicable to legal rights that concern what John Rawls calls “constitutional essentials and matters of basic justice.”
3. If X has a duty to do Y and a duty to refrain from doing Y, then X's duties intrapersonally conflict with each other. These conflicts generate contradictions if bothmembers of at least one of two (very plausible) pairs of propositions are true. The first pair is: IfXhas a duty to do Y, then Xis permitted to do Y; and ifXhas a duty to refrain from doing Y thenXis not permitted to do Y. And the second pair is: IfXhas a duty to do Y andXhas a duty to refrain fromdoing Y, thenXhas a duty both to do Y and to refrain from doing Y; and ifXhas a duty to do Y thenXis able to do Y. For an extremely interesting examination of interpersonal moral conflicts, see Heidi Hurd's discussion of what she calls the “correspondence thesis” in her book MORAL COMBAT (Cambridge University Press 1999).
4. Joel Feinberg, The Nature and Value of Rights, 4 J. VALUE INQUIRY 249 (1970), reprinted in Joel FEINBERG, RIGHTS, JUSTICE, AND THE BOUNDS OF LIBERTY 143-158 (Princeton University Press 1980).
5. FEINBERG, RIGHTS, JUSTICE, AND THE BOUNDS OF LIBERTY, The Nature and Value of Rights note 7, at xi.
6. According to Jeremy Waldron, conflicts of rights are conflicts of their corresponding duties. JEREMY WALDRON, Rights in Conflict, in LIBERAL RIGHTS (New York: Cambridge University Press 1993). On Waldron's view, then, your right to practice with your group would not conflict with my right quietly to enjoy my property, since our corresponding duties would not conflict. I see no reason to accept Waldron's narrow interpretation of conflicts of rights, however.
7. THOMSON, According to Jeremy Waldron, conflicts of rights are conflicts of their corresponding duties. note 2, at 52f. It seems to me that Thomson ignores an important distinction. Thus, suppose that I am permitted to look at my neighbor's house. Is this anything more than my having no duty to refrain from doing so? According to Thomson, others-including my neighbor, presumably-have duties not to interfere in certain ways with my looking at my neighbor's house. She is surely right about this. For example, others have duties not to prevent me from looking at my neighbor's house by killing me. But the fact that this is so does not imply the existence of duties of noninterference that are correlated with a particular permission on my part. Rather, the duty to refrain from killing me is implied by my right to life.
8. SUMNER, It seems to me that Thomson ignores an important distinction. note 2, at 48-49; WELLMAN, A THEORY OF RIGHTS, It seems to me that Thomson ignores an important distinction. note 2, at 63f.
9. WELLMAN, A THEORY OF RIGHTS, A THEORY OF RIGHTS note 2, at 64.
10. SUMNER, A THEORY OF RIGHTS note 2, at 49.
11. WELLMAN, REAL RIGHTS, A THEORY OF RIGHTS note 2 note 2, at 107.
12. SUMNER, REAL RIGHTS note 2, at 98.
13. SUMNER, REAL RIGHTS note 2 note 2, at 98, n. 4.
14. SUMNER, REAL RIGHTS note 2 note 2 note 2, at 100.
15. JOHN RAWLS, A THEORY OF JUSTICE 117 (Harvard University Press 1971).
16. According to Feinberg, rights are definable in terms of permissions that are the grounds of duties in others. According to some other writers, rights themselves are the grounds of duties in others. See, e.g., Joseph Raz, On the Nature of Rights, xciii MIND, 196 (1984). Feinberg's and Raz's positions turn out to be more similar than they might first appear if rights are indeed morally significant permissions.
17. Thomson, Self-Defense and Rights, in FINDLEY LECTURE, 1976, 7 (University of Kansas Press 1977).
18. SUZANNE UNIACKE, PERMISSIBLE KILLING 196 (Cambridge University Press 1994).
19. In this respect, my interpretation of the reason-for-believing relation differs from that presented by Judith Thomson (THOMSON, PERMISSIBLE KILLING note 2, at 14).
20. See RUDOLPH CARNAP, THE LOGICAL FOUNDATIONS OF PROBABILITY (University of Chicago Press 1950).