Abstract
How should we think about apparent conflicts of moral rights? I defend a non-balancing and holistic specification model: non-balancing because moral rights have absolute deontic stringency regardless of any balance of independent values; holistic because the content of moral rights is limited only by that of other moral rights. Holistic Specification, as I call the model, offers a principled, non-consequentialist explanation of exceptions to moral rights. Moreover, Holistic Specification explains why moral rights matter to practical thought while rendering remedial duties less mysterious.
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Notes
Many philosophers operate with the notion of a conflict of rights without carefully defining it. A classic definition, when offered, is that articulated by Jeremy Waldron: a conflict of rights tracks the incompatibility of the generated duties (Waldron, 1989, 505). See also Preda (2015, 679). But as Rainbolt argues, for instance, some conflicts are better understood in terms of the incompatibility of a duty with a permission—rather than with other duties (2006, 158). My working definition is deliberately meant to be more capacious.
For a similar setup of a conflict case, see Shafer-Landau (1995).
For current purposes, I shall treat the terms ‘duty’ and ‘obligation’ as synonymous.
In the literature, the term ‘prima facie’ is often taken to be equivalent to ‘pro tanto’, perhaps in deference to W. D. Ross’s influential use of this term (1930, 1–20). But this is ambiguous. As some have noticed, there are two fundamental senses of ‘prima facie’ in Ross’s use: one is epistemic (‘x appears obligatory but isn’t’), the other is metaphysical (‘x has a certain moral force that may be cancelled out by the force of competing reasons’). As far as I can tell, this distinction makes no difference for the issues I shall consider here. For discussion of this aspect of reasons, see Brink (1994, 218) and Reisner (2013). For discussion of Ross’s view, see Hurka (2014, 70–78).
“This rights citation is not explanatory in the more robust sense that Thomson desires, however, since the right merely marks, rather than explains, the relevant moral reasons” (Wellman, 1995, 282).
Finkelstein restates the problem forcefully: “the strategies available to her [to Specification] to eliminate conflicts all determine the existence of a right in terms of the relative strength of the underlying claims. And once the relative strengths of the underlying claims have been settled, there is no longer any need for the assignment of rights. For any question of permissibility can be answered by examining the claims on which the assignment of rights is based. For this reason, on the view that would eliminate conflicts, rights cannot themselves contribute to judgments of moral permissibility.” (2001, 288).
Frederick (2014) argues that this problem is in fact fatal to Specification.
It is not controversial that Prima Facie models make the Balancing assumption, since they build Balancing into the concept of a moral right. Here is some textual evidence that prominent defenders of Specification make this assumption as well. Wellman says that moral rights are “conclusions established by a balance of the relevant reasons.” (1995, 282) Shafer-Landau frankly acknowledges that “the problem of specifying the content of a right is the very same problem as that of balancing prima facie rights, or knowing when a right is permissibly infringed. In each case, conflicting moral considerations generate a moral conclusion either about what a full-fledged right contains, or about the circumstances under which a full-fledged right can be permissibly infringed.” (1995, 215). And Oberdiek says “Specificationism instead maintains that a right should be designated only after the final interaction of all of the reasons bearing upon the justifiability of a given action” (2008, 135).
Griffin (2008) argues that the basis of human rights is a thin notion of the value of normative agency.
The most articulate defense of the normative constraint theory I know is Rainbolt (2006). The classic debate in theories of rights is that between interest (Kramer, 2002; Raz, 1984) and choice (Steiner, 1994, 2013), along with a hybrid interest-choice theory (Sreenivasan, 2010) and Wenar's kind-desire theory (2013). A virtue of the normative constraint theory is that it is more basic than either the interest or choice theories, as Rainbolt himself argues, for it can be filled in by either theory. Here I adapt Rainbolt’s account to accommodate the relational normativity constitutive of rights (cf. Rainbolt, 2006, 28).
The locus classicus of this point is Feinberg’s Nowheresville (1970).
A fuller account would show how to construct moral normative powers, such as the power to promise or consent, out of this spare formulation. For our purposes, I believe the current formulation suffices.
Scanlon also marks the important distinction between balancing values and adjusting rights (2004). But this distinction is not embedded into a general theory of the connection between rights and obligation. Scanlon doesn’t contrast Specification to Prima Facie nor does he distinguish the crucial theses concerning stringency and content. Yet, I suspect that Scanlon’s view is sympathetic to the model I am articulating here.
How exactly does Holistic Specification apply to apparent conflicts involving exclusively non-moral rights? I cannot fully address this question, but a very rough and preliminary answer is that Holistic Specification can be naturally extended to non-moral domains. An example of how to do so for rights under private law might be the “formalistic” theory defended by Ernest Weinrib (1995), according to which private legal rights get specified holistically. I’m grateful to an anonymous referee for raising this important question.
There is a good question here about how Holistic Specification can handle cases where moral rights appear to conflict with consequentialist considerations (e.g., torture one to save five) and in particular with cases that appear to require a consequentialism of rights where we ought to minimize the violations of rights (e.g., switch a trolley to kill one instead of five). Since my aim here is not to argue against consequentialism, I cannot adequately address these questions here. My hunch is that Holistic Specification puts pressure towards anti-consequentialism, for instance, prohibiting the torture of one even if doing so might permit saving indefinite many more. Whether such a position is entailed by Holistic Specification and, if so, whether it’s plausible are good questions for further research on the model. I’m grateful to an anonymous referee for pressing me to address this important point.
For an insightful elaboration of this line of thought, see Shiffrin (2011).
Jeremy Waldron expresses what I take to be a similar insight: “We ban their speeches, therefore, not because we think we can necessarily safeguard more rights by doing so, but because in their content and tendency the Nazis’s speeches are incompatible with the very idea of the right they are asserting. What looked like a brute confrontation between two rival interests, independently understood, turns out to be resolved by considering the internal relation that obtains between our understanding of the respective rights claims.” (1989, 518).
Raz (1986, ch. 7).
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Acknowledgements
I’m grateful to audiences at Monash University, University of Oslo, University of Stirling, and my students in the rights seminar at UAlbany for their feedback. I'm especially grateful for helpful comments on previous drafts from Linda Barclay, Sam Black, Rowan Cruft, Chris Essert, Suzy Killmister, Reidar Maliks, Øyvind Rabbås, Arthur Ripstein, Oliver Sensen, John Tasioulas, Owen Ware, Jacob Weinrib, and Moran Yahav.
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Zylberman, A. Moral rights without balancing. Philos Stud 179, 549–569 (2022). https://doi.org/10.1007/s11098-021-01670-9
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DOI: https://doi.org/10.1007/s11098-021-01670-9