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Rights and Risk

Published online by Cambridge University Press:  01 January 2020

Dennis McKerlie
Dennis McKerlie*
Affiliation:
The University of Calgary, Calgary, AB. T2N 1N4
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Extract

Robert Nozick has suggested that risky actions are a problem for a moral view based on rights. We ordinarily think that some actions are too dangerous to be permissible, taking into account both the harm risked and the degree of the risk. Other actions, although they run some risk of serious harm, are thought permissible. The problem is to draw this distinction in a principled way by looking to rights.

I think that Nozick's argument about risk can be answered but a different argument has convinced me that the rights view cannot handle risk in a satisfactory way. The inability is a function of the basic nature of the view.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 16 , Issue 2 , June 1986 , pp. 239 - 251
Copyright
Copyright © The Authors 1986

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References

1 Nozick, Robert Anarchy, State, and Utopia (New York, N.Y.: Basic Books 1974)Google Scholar; see especially 73-8. References to Nozick's book will be incorporated in the text and given simply by page number.

2 It might be suggested that the right that forbids it is not your right not to have your arm broken but rather your right not to be subjected to a certain degree of risk of having your arm broken. There is no awkwardness about saying that the risky action itself violates this right. I will not discuss this suggestion. It seems clear that it cannot help the rights view to assess risk. If the rights view has difficulty in deciding how risky an action must be to be prohibited by the right not to have an arm broken it will have the same difficulty in deciding which risky actions are prohibited by the right not to be subjected to a risk of having an arm broken.

3 Two similar examples: ‘repeated non-offenses’ (suggested by David Lewis in discussion) – someone performs a series of risky acts, each below the specified level, with a high combined risk directed at one person; ‘conspiracies’ - different people perform risky acts, each below the specified level, with a high combined risk directed at one person. However it is easier to argue that in these examples rights are infringed. The feature of the rights view that they exploit – roughly, that what we test against rights are particular actions performed by particular people – is less fundamental than the idea that the rights view tests actions against the claims of individuals.

4 The farmers could transfer the ownership of their farms to a single person or a corporation whose rights would forbid the action. But even without a change in ownership I think that the second method of disposing of the chemical waste is objectionable.

5 It might be suggested that the example really supports a different conclusion. If we would not give this much importance to the distribution of the risk across different lives perhaps this shows that we are after all reluctant to count risk as a factor in determining whether rights are violated. However there seemed to be strong objections to the views that deny that risk matters (part I). Without a satisfactory theory that dispenses with risk we cannot confidently answer the example in this way.

6 My paper has benefited from the comments of Donald G. Brown and the referee of this journal. I am especially indebted to Thomas Hurka.