Conflicts and Rights

Conflicts and RightsAuthor(s): Daniel ShapiroSource: Philosophical Studies: An International Journal for Philosophy in the AnalyticTradition, Vol. 55, No. 3 (Mar., 1989), pp. 263-278Published by: SpringerStable URL: http://www.jstor.org/stable/4320020 .

Accessed: 25/06/2014 02:20

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Springer is collaborating with JSTOR to digitize, preserve and extend access to Philosophical Studies: AnInternational Journal for Philosophy in the Analytic Tradition.

http://www.jstor.org

This content downloaded from 91.229.229.162 on Wed, 25 Jun 2014 02:20:48 AMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=springer

http://www.jstor.org/stable/4320020?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


DANIEL SHAPIRO

CONFLICTS AND RIGHTS

(Received 8 December, 1987)

Moral rights are uniquely qualified to settle peacefully a kind of moral conflict that is ubiquitous in pluralistic societies. In this paper I shall defend this rather strong claim, and also show that given this important function of rights, (plus some other facts about rights) the amount of conflicts within a system of rights must be sharply limited and perhaps nonexistent. Section I concerns a defense of this claim, and in sections II through IV I discuss what follows from this claim (plus some other considerations) regarding conflicts within a system of rights.

The argument I will present rests on two features of moral rights that are fairly well discussed and understood. First, rights typically trump nonrights principles; when rights conflict with other considerations, rights typically defeat them or take precedence. Second, having a right to do something does not imply that doing it is right or ought to be done; one can have a right to do the wrong thing.1 To have a right to do X does not give the rightholder a reason for doing X; rather it (typically) provides others with reasons not to interfere in certain ways with the rightholder's performance of X.2

Of course, not all rights are rights to do something, and so the notion of a right to do wrong will not make sense for all rights. Philip Montague has set out an important distinction between exercisable and nonexercisable rights 3 that is relevant here. Exercisable rights are, essentially, rights to take certain actions and it is only with such rights that it makes sense to speak of rights being exercised. For example, it makes sense to speak of exercising rights to freedoms such as the right to freedom of religion or assembly; it doesn't make sense to speak of exercising the right not to be tortured or assaulted (instead, one simply

Philosophical Studies 55 (1989) 263-278. C 1989 by Kluwer Academic Publishers.



264 DANIEL SHAPIRO

has or enjoys these rights.) Nonexercisable rights are, essentially, rights to be treated/not to be treated in certain ways by others, and it makes no sense to speak of exercising these rights since these aren't, essentially, rights to do anything.4 But for exercisable rights, it makes sense to speak of a right to do wrong.5

Though these features of moral rights are well understood, their conjunction is not. To see the significance of the combination of these two features, consider the following type of conflict, which I shall call interpersonal moral conflict. Suppose A wants to do X, B wants to do Y, and X and Y are mutually obstructive. Second, suppose A claims that there is some justified normative principle which shows that he ought to do X, and B makes the same sort of claim with regard to the justifiability of her doing Y. Finally, suppose A and B cannot agree on a principle which specifies which of these actions ought to be performed when there is a conflict between them. Is there some principle A and B could agree to which could peacefully settle this conflict?

Notice that this conflict occurs not just in virtue of A and B adhering to different principles of rightness or different views about what ought to be done in this situation, but because they claim the freedom to act in virtue of following such principles. In other words, A and B say, in effect, "Actions of this sort in these circumstances ought to be performed; I want to perform this action; therefore I should have the freedom to act." Once one understands that this conflicts occurs because of a link between freedom to act and 'ought' or 'right', it becomes clear that A and B could still disagree on which of their principles is morally superior or correct and yet peacefully settle their conflict by agreeing to a different principle which does not assign the freedom to act in virtue of whether the actions one wishes to perform, ought, all things considered, to be performed. A principle of rights is just such a principle since if one of the parties involved in the dispute has a right to act this does not imply that she is acting rightly or doing what she ought to do; yet if she has the right and the other party does not have a right to act, then only the party with the right should have the freedom to act. Thus an appeal to principles of rights provides a method, that both parties could endorse, by which this conflict could be peacefully settled.

This argument6 gains strength when we realize that it's hard to



CONFLICTS AND RIGHTS 265

imagine any other type of principle which A and B could both endorse. For any such principle will have to assign either the freedom to act in virtue of the moral rightness of their actions or in virtue of something else. But if A and B could agree which of the principles they are acting upon is morally superior or ought to be performed, there wouldn't be a conflict. So it seems the only way A and B can peacefully resolve the conflict is to move to a principle of a different type, one which doesn't assign the freedom to act in virtue of moral rightness. And this principle which doesn't assign the freedom to act in virtue of moral rightness would have to be a principle of rights, for if it wasn't, it is unclear how it would settle the conflict in the sense of justifying the claim that one of the parties had the freedom to act. It is because rights (typically) trump nonrights principles that the possession of a right by either party tells us who has the freedom to act; and it is because rights are silent on the question of the relative merits of the nonrights principles both parties are acting upon that both parties can agree to settle their disputes by appealing to rights. No other normative principle combines the strong moral weight of rights - the fact that they typically trump other normative principles - with the relative agnosticism on questions of moral rightness - the fact that there can be a right to do wrong'. Since it is just these two features of rights that make them qualified to settle the type of dispute under consideration, it follows that rights are uniquely qualified to settle these disputes.

If the features of rights which make them uniquely qualified to settle interpersonal moral conflicts were trivial features or not central, then this would weaken my argument. I doubt anyone would raise a worry about the trumping aspect of rights - virtually everyone acknowledges that the weight of rights vis 'a vis other considerations is a very important feature of rights. Yet there does seem to be a serious worry about the right-to-do-wrong feature. As I noted earlier, for some rights the notion of a right to do wrong makes no sense. If nonexercisable rather than exercisable rights are what is primary in a theory of rights, then there is little interest in an argument limited to exercisable rights. But any plausible system of rights will involve both kind of rights. Protecting or violating exercisable rights almost always involves protecting or violating nonexercisable rights, and frequently the reverse is true as well. If a certain sphere of freedom to do something is to be



266 DANIEL SHAPIRO

protected, there must be protection from certain actions which would make it difficult to exercise one's rights. (For example, the right to freedom of expression involves the duty not to be assaulted while expressing one's ideas, and it's hard to defend the right to free expression without defending the right not to be assaulted per se.) And if there are rights against or to certain forms of treatment, then it seems that one will also have these rights while one is exercising other rights. (For example, one has the right not to be assaulted per se, and one has the right not to be assaulted while exercising one's rights.) Thus any argument about the way exercisable rights uniquely defuse interpersonal moral conflicts can be said to apply to any plausible rights system, given the interrelationships between exercisable and nonexercisable rights.

Three other major objections to my argument are likely. First, on a certain way of construing the semantics of 'ought', it appears that the argument I have given cannot succeed. If A claims that he ought, all things considered, to do X, and one construes "ought, all things considered, to do" as providing decisive reasons for action, then even if A acknowledges principles of rights, the conflict will remain. For suppose A acknowledges that B has a right to do Y while he does not have a right to do X which interferes with B's doing Y. Then A will be committed to the claim that he is obligated to refrain from interfering with B's freedom to do Y. However, since A thinks that he has decisive reasons for performing X -the 'ought' claim he uses commits him to this - and doing X requires interfering with B's freedom to do Y, then what X has most reason to do is to intefere with B's right to do Y. The type of 'ought' claim that A makes with regard to the justifiability of his doing X necessarily defeats any claim he acknowledges concerning his rights-based obligation to refrain from interfering with B's doing Y. Thus even if A acknowledges that only B, rather than himself, has a right to act, his 'ought' claim will commit him to intefering with B's right and the deadlock will remain. And of course the same argument could be run through if it were B that claimed that she ought, all things considered, to do Y while at the same time acknowledging that A had a right to do X.

If this is how one defines 'ought, all things considered, to do' - and no analysis of 'ought' is uncontroversial - then the objection stands. But the objection does not defeat my argument. If either one of the




parties construes 'ought' in this way, then rights cannot peacefully defuse this conflict - but there is no principle both parties could agree on which would peacefully defuse this conflict, so long as one or both parties stick to this interpretation of 'ought'. For adhering to an interpretation of 'ought' whereby it means that one has decisive reasons for action entails that one cannot possibly acknowledge that one shouldn't have the freedom to do what one believes one 'ought' to do. On any other construal of 'ought', whereby 'ought' does not mean that one has decisive reasons for action,8 then the argument I gave previously goes through - rights and only rights can peacefully defuse this conflict by enabling the parties to separate questions concerning what ought to be done or what it is right to do from questions about freedom of action. What the objection shows is that the claim that rights are uniquely qualified to settle interpersonal moral conflicts should be interpreted so that it means: if there is a way to peacefully defuse interpersonal moral conflicts, then rights and only rights can do so.

A second objection arises in the following way. I have argued that rights are uniquely qualified to peacefully defuse interpersonal moral conflicts. However, even if the parties appeal to principles of rights, defusing the conflict requires that the parties also agree which of them has a right to act. For if the parties do not agree who has the right to act, then they will not agree who should have the freedom to act and so the deadlock will remain. But presumably in order for the disputing parties to agree on questions concerning the content of rights, they will have to invoke some shared nonrights principles. However, if they can come to this sort of agreement concerning nonrights principles, one wonders why there should be an interpersonal moral conflict in the first place. Thus my argument that rights can peacefully defuse interpersonal moral conflicts appears to be incoherent. For rights to defuse these conflicts requires agreement on the content of rights, which in turn requires the kind of shared nonrights principles that is incompatible with the existence of an interpersonal moral conflict.

This objection goes awry in that it assumes that the nonrights principles which ground principles of rights must be the same sort of principles that produce what I have called interpersonal moral conflicts. But there is no reason why this must be so. Agreement about the content of rights concerns, roughly, agreement about the allocation of



268 DANIEL SHAPIRO

spheres of freedom,9 while the type of disagreement involved in interpersonal moral conflict involves disagreement about what ends such freedom should serve. Admittedly, this is not a hard and fast distinction; one's views about the allocation of freedom may depend on one's views about the value of freedom, and one's views on the value of freedom may have some relation to one's views concerning what ends freedom should serve.10 But if the parties involved in interpersonal moral conflicts adhere to principles of rights, they will recognize that the value of freedom allocated by rights isn't reducible to the fact that such freedom is a necessary condition for doing the right thing or following one particular conception of the good life. Since the spheres of freedom which are protected by rights are valuable for a variety of purposes, people need not be in fundamental agreement about the good and the right in order to agree on the value of freedom. Thus even if one's views about the freedom allocated by rights do depend upon one's views about the value of this freedom, this does not show that agreement about the content of rights requires fundamental agreement on nonrights principles in a way that precludes interpersonal moral conflicts. Agreement concerning the value of freedom is quite compatible with (many) important disagreements about principles of good and the right - disagreements which generate interpersonal moral conflicts.

Another objection is that the argument is only of theoretical interest. Why should we care that rights are uniquely qualified to resolve these hypothetical disputes? The answer is that interpersonal moral conflicts are disputes between those who disagree about views of the good and principles of right action, and these conflicts are common in an open and pluralistic society.'1 The example is unrealistic in that in such societies disagreements about freedom of action are already partly constituted by reliance on principles of moral rights; thus it is unlikely that the parties would first deadlock on the question of freedom of action and then turn to principles of rights to resolve the conflict. What the example illustrates is that, without such principles, open and pluralistic societies would be far less peaceful than they are now. (Since it is doubtful that a society would remain open if there were frequent disputes which were settled by violence or force, one could also say that the argument illustrates why open and pluralistic societies require




principles of rights.) It is hard to see how this could be viewed as only of theoretical interest.

II

When rights appear to conflict there are three ways of describing this situation. (1) When we adequately describe the scope of the rights, we see in fact that there is only one right and therefore no conflict. If all apparent conflicts of rights can be described in this way, then rights are nonconflicting and never overridden or outweighed by other rights. (2) Both parties have rights, but one of them overrides or outweighs the other. In recognition of the fact that the person with the less weighty right is prevented from exercising or enjoying his rights, we compensate him, offer an apology etc. On this view, rights are overrideable and at least sometimes conflicting.'2 (3) Both parties have these rights and neither right can be overridden. Such a conflict would be a rights dilemma.

Most rights theorists would probably maintain that there is a very strong presumption against the view that rights never (or almost never) genuinely conflict and/or that it seems obvious that overridings and rights dilemmas can occur, and perhaps fairly frequently. I shall argue against both such claims.

James Nickel has provided three arguments which I think accurately explain why most philosophers think the burden of proof is upon the view that rights conflicts are minimal or nonexistent.13 He argues as follows. First, we cannot anticipate all conflicts of rights with each other and we are often uncertain what to do in those cases we can imagine. Second, a right containing qualifications and exceptions sufficient to rule out possible conflicts would be too complicated to teach to humans. Third, to relieve a conflict by redescribing the right will sometimes have the incorrect implication that the overridden right did not really apply in this case and hence that we need feel no regret about our treatment of the person whose (apparent) right was overridden. That is, handling the conflict by redescribing the rights may incorrectly deny the possibility of moral tragedy.

In short, Nickel argues that those who think that rights are nonconflicting are committed to implausible epistemic views and false



270 DANIEL SHAPIRO

optimism. But this is just false. To say that rights are nonconflicting does not imply that it will be easy to know who has the right in cases of alleged conflict. It is quite consistent with this view, as well as with a realistic attitude towards human fallibility, that it can be quite difficult to know who has the right. And this in turn suggests that our notions of the boundaries of the right can change, and that we may not be able to anticipate how we will resolve all alleged conflicts of rights. As for the question of false optimism, the advocate of the view that there are few genuine rights conflicts is not precluded from having an account of moral tragedy, for it can be quite tragic if someone organizes her life in a certain way only to find out that she was not entitled to act in the ways she has acted or planned to act.

So there seems to be no burden of proof upon the view that rights rarely or never conflict.14 I will now raise problems with the view that rights frequently conflict.

I first turn to the question of overridings. How are the weights of the allegedly conflicting rights to be determined? One possibility is that the weightier right belongs to the person acting rightly or more properly than the person with the overridden right. This view has serious problems. For if this occurs with even some degree of frequency, it would seem that an important function of rights, which was set out in section I, is vitiated. Rights are uniquely qualified to defuse interpersonal moral conflicts because they avoid assigning the freedom to act to the party who is acting rightly. The same argument also counts against resolving conflicts of rights by arbitrary or ad hoc solutions. For if the parties involved in an interpersonal moral conflict perceive that conflicts of rights are resolved by such methods, they are unlikely to agree to "move" to different principles.

Another possible way to determine the weight of rights, which is put forth by Judith Thomson and seems implicit in the literature on the economic analysis of rights is in terms of the importance or value each party places upon the right.15 Let us describe this as using subjective criteria to determine the weight of rights.

Subjective criteria have two problems. First, there is the significant problem of interpersonal comparisons of value. More importantly, using such criteria would mean that the extent of persons' rights is held hostage to others' desires. In order to see this, consider the following




example. Suppose it is thought that my right to freedom of expression conflicts with your right to privacy, in the sense that my publishing certain stories about you violates your alleged right to have certain facts about your life kept out of the public eye. If we use subjective criteria to determine under what conditions, if any, I can publish this story, then my ability to exercise my right depends on how much you value your privacy; similarly, your ability to have your privacy protected depends on how important or valuable publishing this story is to me (or perhaps how important being able to publish in general is to me.) But notice that this implies that our ability to make demands or claims for the object of our respective rights is out of our control, for it depends on others' preferences, desires, etc. But part of what it means to enjoy a right is that one is in a position, morally speaking, to make demands or claims for the object of the right without being under the control of others. Rights' characteristic use, as Joel Feinberg reminds us, is to be demanded, claimed, insisted upon etc."6 But it is very hard to see how one could be said to make a moral demand for a right if whether or not we can enjoy or exercise it depends upon others' preferences and desires. Feinberg's statement explains in part why we say that a right is the sort of thing that one is entitled to rather than something one receives by favor, gift, or bargain. So if subjective criteria are used to determine under what conditions those parties whose rights are in conflict can enjoy the object of their rights, then neither of the parties are really entitled to the right anymore. Thus subjective criteria are not, in general, suitable as a way of ascertaining the weight of rights.

Can the weight of conflicting rights be determined without either assigning the weightier right to the person acting rightly, using ad hoc or arbitrary methods, or by using subjective criteria? Perhaps - one possibility that I haven't discussed yet is that the party who gets the freedom to act should be the one whose rights protect those interests or values which are more important or valuable. This is different than using subjective criteria and need not involve any interpersonal comparisons of values, for to say that e.g., the right to freedom of the press protects more important values or interests than the right to privacy does not entail that that they are more important to the person who is exercising his right to publish freely. (He may not care about the values



272 DANIEL SHAPIRO

of a free flow of information, a diversity of opinion etc; all he may want to do is to start a scandal.) In this sense, the standard is objective, not subjective. Furthermore, to say that the values or interests underlying the right to freedom of expression rank higher than the interests underlying the right to privacy does not entail that the person who is exercising the right to freedom of expression ought in that instance to have been pursuing those underlying interests or values. Nor, finally, does this method seem ad hoc.

However, even this method of resolving conflicts has rather severe limits. First, the method cannot work where the rights which are allegedly in conflict are the same or of the same type. Where A and B's rights are the same, then they will protect or be justified in terms of the same values or interests, so if we assign different weight to their rights it's hard to see how such an assignment won't be based on who is acting rightly, or who values their rights more. Second, the way we classify rights will depend on our purposes; in some cases, anyway, the extent to which rights clearly protect different values or interests will be murky. Third, rights often protect a wide variety of different interests- in particular, there is the distinction between the interests of the rightholders and the interests of those who benefit from the existence of the right - and it is quite unclear how to combine these interests and compare them to the interests of the right with which it is in conflict. (For example, it's hard to see how to do this in the case discussed earlier about privacy and free expression.)17 Fourth, one way in which we could combine and compare these interests or values is in terms of utility, but since rights typically trump utility we can only occasionally have conflicts of rights which are settled by appeals to utility.'8

Thus if and only if we are sure how to compare the values or interests underlying rights that are clearly of different types, and we can do this without comparing these interests or values in terms of utility, would it be justified to claim that overridings occur with some degree of frequency. Where we are not sure how to do this, then overridings must be pretty rare, for to resolve such conflicts of rights we would have to resort to methods that either vitiate the conflict-resolving function of rights or radically weaken the sense in which rightholders have control over their rights.




III

The view that a rights dilemma need not be a rare event also runs into serious problems. We either can use nonrights principles to help break rights dilemmas or we cannot. It seems preferable to use nonrights principles, for why not try to break the dilemma? However, if we use nonrights principles to break rights dilemmas, then we won't be using these principles to tell us which right is weightier - for by hypothesis in a rights dilemma one right is not weightier than another - but to tell us what action ought to be performed (or what action is right.) Thus using nonrights principles to break rights dilemmas entails that the party who is acting rightly or doing what she ought gets the freedom to act which for reasons already elaborated in section I is objectionable. There is the further problem that rights are supposed peacefully to resolve deadlocks that result from people relying on nonrights principles. Here the opposite occurs - rights cause a deadlock which is only resolved by nonrights principles.'9

These considerations might lead us to avoiding using nonrights principles to resolve rights dilemmas. However, this leads to another set of problems. It is permissible to take actions to stop others from violating one's rights, and it is impermissible to infringe on another's rights, except when such a right is overridden by other rights or nonrights principles, which by hypothesis isn't the case here. So both parties are acting permissibly and impermissibly in rights dilemmas in the situation where one can't consult nonrights principles to break the dilemma. Defining 'permissible' in terms of 'it is not the case that one ought not to' and 'impermissible' in terms of 'it is the case that one ought not to' -which seems commonsensical - leads to the result that each party is not doing what he ought and it is not the case that each party is not doing what he ought. This is a contradiction: it can't be both true and false that each party is not doing what he ought.20

There are two ways of avoiding this contradiction, but neither is especially palatable. One might deny that each party is obligated not to infringe on another's rights; thus each party is acting permissibly in exercising/defending his own 'rights'. This would reduce these rights to mere Hobbesian liberties; thus they would no longer be genuine moral



274 DANIEL SHAPIRO

rights anymore, but instead principles for governing the state of war that is bound to occur, as each party does whatever is necessary to protect his 'rights.' Or one might acknowledge that it is impermissible to violate the other party's rights, but deny that it is permissible in this situation to stop others' from violating one's rights. This would mean that in a rights dilemma there is nothing one can do with one's rights that is permissible. Once one makes a step towards exercising one's rights, one is violating another's rights which is impermissible; and if the other party starts to violate your rights, you are also forbidden to do anything to protect your own rights. This second way of avoiding the contradiction scarcely seems like an improvement. If a set of rights leads with some degree of regularity to a situation where one can do nothing with one's right, one may legitimately wonder whether one has such a right.

Thus by process of elimination it has been shown that rights dilemmas are nonexistent or rare. Rights dilemmas can be handled by either (1) using nonrights principles to break the dilemma or (2) not using such principles. To opt for (1) means that using principles of rights leads to a deadlock which can only be resolved by nonrights principles which tell us who is acting rightly. For reasons set out in section I this is objectionable.

If we take (2), then if each party is acting permissibly in defending their rights and impermissibly in violating others' rights, a contradiction results. If we deny that each party is obligated not to violate others' rights, then we avoid the contradiction at the price of turning the rights into mere Hobbesian liberties. If we deny that it is permissible for each party to stop others from violating their rights, then we also avoid the contradiction, but at the price of having a set of rights with which we can do nothing.

IV

Though it is beyond the scope of the paper to discuss which systems of rights meet the requirements set out in the previous sections, the arguments establish, I claim, that any justified system of rights must have at most only occasional conflicts. One might wonder, however, if this claim is too strong. If there is a system of rights which we have independent reason to believe is justified, but which doesn't meet the




requirements set out in sections I through III, why shouldn't we just conclude that these requirements are too strict? In this final section, I show why we should be skeptical of this rhetorical question.

Such skepticism stems from the idea that a theory of rights should explain how rights can have independent weight in, or make a distinctive contribution to, moral reasoning. If nothing or little is lost by replacing rights in our (or any) moral framework, then it is at the very least unclear in what sense we should be concerned with a theory of rights. Now my argument that a system of rights has few, if any, conflicts, rests primarily on features of rights that are central to the concept and which are unique to rights - the combination of the trumping feature and right-to-do-wrong feature. This already should make us suspicious of a claim that there is some justified set of rights which has frequent conflicts, since, as I argued earlier, such conflicts will likely be resolved in terms of who is acting rightly - and what distinctive role would rights play if whether one gets to exercise them depends, frequently, on whether one is acting rightly? But we can go further and show that it is in virtue of the combination of the trumping feature and the right-to-do-wrong feature that rights cannot be reduced to other nonrights principles or concepts, and make a distinctive contribution to moral reasoning.

Rights make a distinctive contribution to moral reasoning if there are some actions which are evaluated differently when looked at from a rights point of view as opposed to a nonrights point of view. Suppose A is preventing B from doing something, something which B has a (exercisable) right to do. According to the rights point of view, A should not be allowed to act. According to the nonrights point of view, we cannot determine who should have the freedom to act until we have more information about the moral status of A and B's actions. Using a relatively crude moral typology, let us divide actions into those which are required, indifferent, or forbidden. There are nine possibilities to consider (the first member in the ordered pair refers to A's actions; the second, to B's actions):

1. {R, R} 2. {R, I} 3. {R, F} 4. {I, R}



276 DANIEL SHAPIRO

5. {L,I} 6. {L, F} 7. {F,R} 8. {F,I} 9. {F,F} Clearly in the second, third, and sixth case there is a pronounced

difference from the rights perspective, since A, not B, should be allowed to act from the nonrights perspective. In the first, fifth, and ninth case, there is also a difference, since there is no clear answer in the nonrights perspective, while again from the rights perspective B should be allowed to act. These differences between the perspective stem from the fact that rights typically trump nonrights principles, even if the person who is violating the right is doing something which from a nonrights point of view is more proper than the person who is acting within her rights.

Thus since my argument that a system of rights should be relatively conflict-free stems largely from a combination of features of rights which are (a) central to the concept, (b) unique to rights, and (c) explain how rights can make a distinctive contribution to moral reasoning, we have ample grounds for doubting that a successful argument can be made that there is some justified set of rights which has more than occasional conflicts. While it is possible that there are other features of rights which meet (a) through (c), and which do not imply that rights must be relatively conflict-free, this seems unlikely, and I'm not aware of any rights theorist who has offered such an argument.2'

NOTES

On this point, see Jeremy Waldron. 'A Right to Do Wrong,' Ethics 92 (October 1981), pp. 21-39. 2 That others have violated one's rights or acted as if one had no rights may give one a reason for taking certain actions towards those others, but that is a different point. On this issue, see Thomas Hill Jr., 'Servility and Self Respect' in Rights ed. David Lyons (Belmont, CA: Wadsworth Publishing Co, 1979), pp. 11 1-24. 3 See 'Two Concepts of Rights' Philosophy and Public Affairs 9 (Summer 1980), pp. 372-84. 4 Something further may need to be said in order to explain the distinction between nonexercisable and nonexercisable rights. First, when I speak of what these different types of rights are, 'essentially', I am referring to the fact that different Hohfeldian elements occupy what one might call the core of nonexercisable and exercisable rights.




By the core of a right, I mean those Hohfeldian elements which play a primary role in justification of a right. Nonexercisable rights lack liberties and/or powers at their core. This notion of a core of a right is influenced by, but not identical to, Carl Wellman's notion of the core of a right as a set out in A Theory of Rights: Persons Under Laws, Institutions and Morals (Totowa, NJ: Rowman and Allenheld, 1985), pp. 81-95. Second, the distinction between exercisable and nonexercisable rights is different from the distinction between negative and positive rights. There can be positive nonexercisable rights - the right to be aided in an emergency - and negative nonexercisable rights - the right not to be tortured. 5 In what follows I shall just refer to 'rights', even though my argument appears to apply only to exercisable rights. I shall later - see pp. 265-6 - explain why I think what is true of exercisable rights applies to rights, understood as a system. 6 This argument has been influenced by, but is different than, Hillel Steiner's argument in 'The Concept of Justice' Ratio 16 (1974), pp. 282-6. First, Steiner rests his argument on moral subjectivism, while I do not. Second, the conclusions I draw in sections II and III are different from Steiner, who argues in a different paper, that consistency rules out all conflicts of rights. See note 14. 7 Relative agnosticism, because although having a right to do X is compatible with it being wrong to do X, it would be hard to justify a right to do X if it was always wrong to do X or if there wasn't great value in having the freedom to do X. See Waldron op. cit. on this point. 8 On some views, this would be 'ought' without the 'all things considered' clause, or 'ought' where this means 'it ought to be done' rather than "I ought to do". ' A defense (and refinement) of the view that rights allocate spheres of freedom can be found in Wellman, op. cit.

These ends may be to promote other values than freedom. In the example above I focused on the link both parties make between 'ought' or

'right' and having the freedom to act, rather than on conceptions of the good, but of course people often disagree about what ought to be done or what is right because they disagree about conceptions of the good. 12 Some theorists employ the language of prima facie rights. Sometimes this is just alternative 2, but sometimes by this is meant a view which straddles alternatives 1 and 2. On this view, one's prima facie right to X is not one's actual right to X if it is outweighed by more important moral considerations, such as a stronger right to Y. When prima facie rights are outweighed, there is no trace left of the outweighed right and there is no requirement that one apologize, pay compensation etc., since one's actual rights weren't overridden. In this sense prima facie rights theory is like alternative 1; conflicts between prima facie rights aren't genuine conflicts, since there is no conflict between two actual rights. On the other hand, prima facie rights theory is like alternative 2 insofar as it employs the notion of a right being outweighed or overridden. This view of rights has the problem that a prima facie right gives one nothing to stand on; one doesn't really enjoy a prima facie right. Those who maintain that in an alleged conflict of rights, only one actual right really exists would do better to stick to alternative 1. To speak of a right being outweighed or overridden, where the weaker right totally disappears is at the very least confusing and unhelpful. 13 Are Human Rights Utopian?' Philosophy and Public Affairs 11 (Summer 1982), p. 257. 14 Some writers have gone further and argued that a consistent set of rights entails no conflict between rights. Hillel Steiner, for instance, argues that an exercise of a right is permissible and a violation of a right impermissible, so that if a certain act is both an exercise of and a violation of a right, the act is both impermissible and permissible, which is inconsistent. However, Steiner is just incorrect that an exercise of a right is permissible; there can be a right to do wrong. Perhaps by 'permissible' Steiner means



278 DANIEL SHAPIRO

that one is under no obligation to refrain from exercising one's right; since one is under an obligation to refrain from violating others' rights, then one is both obligated and not obligated to perform the same act. But there is no contradiction here; Steiner must show that the obligations are of equal weight, and as I shall point out in section III, even if they are of equal weight, there is not necessarily a contradiction here. Steiner's argument occurs in 'The Structure of a Set of Compossible Rights' Journal of Phi- losophy 74 (1977), pp. 767-75. '5 Thomson's suggestion can be found in 'Some Ruminations on Rights' in Reading Nozick ed. Jeffrey Paul (Totowa, NJ: Rowman and Littlefield, 1981), pp. 140-141. The view that governs the economic analysis of rights is that only efficiency considerations should determine who has the right in conflict situations. This viewpoint grew out of Ronald Coase's article, 'The Problem of Social Cost' Journal of Law and Economics 3 (1960), pp. 1-60. 16 'The Nature and Value of Rights' in Rights op. cit., pp. 85-91. 17 The problem being raised here is not a question about objectivity, but of making reasonably precise comparisons. 18 As pointed out by Theodore Benditt, Rights (Totowa, NJ: Rowman and Littlefield, 1979), p. 39. 11 One might object that one could use ad hoc or arbitrary measures - such as flipping a coin - to break the dilemma, and that this would be a way of relying on nonrights principles to determine freedom of action without such principles having any implica- tions about right action. (Even if on uses a toss of the coin to end rights dilemmas, no one is going to think this tells who is acting rightly.) The objection must be granted, but notice that this method does not resolve the second problem I raised - that rather than rights peacefully resolving conflicts that arise from relying on nonrights principles, the opposite occurs here. 2() The situation here is different from the controversy surrounding moral dilemmas and consistency, for a rights dilemma is not a moral dilemma, as these are commonly understood. A moral dilemma occurs when there are two actions one ought, all things considered, to perform, but one cannot do both. It has been shown by many writers that if one accepts two standard principles of deontic logic - 'ought' implies 'can' and the principle that if one ought to do A and one ought to do B, one ought to do both A and B - then one cannot consistently accept the view that there are moral dilemmas. See for example, Terrence McConnell, 'Moral Dilemmas and Consistency in Ethics' Canadian Journal of Philosophy 8 (1978), pp. 269-87. However, whether one must accept these standard principles of deontic logic is controversial. Geoffrey Sayre- McCord has convincingly argued that principles of deontic logic are not neutral between different moral theories; thus one cannot reject the possibility of moral dilemmas on the grounds that they conflict with two common principles of deontic logic. See 'Deontic Logic and the Priority of Moral Theory' Nouis 20 (Summer 1986), pp. 179-97. 21 Christopher Morris and Geoffrey Sayre McCord provided written comments on the most recent draft of this paper, for which I am most grateful. A similar version of this paper was read to the philosophy department at Bowling Green State University in October 1987. I would like to thank the participants for their comments. An earlier, much longer, and considerably different version of this paper was read to the philosophy departments of Cornell University and Rice University, in January and February 1984, respectively. I would also like to thank those participants for their comments.

Department of Philosophy, Bowling Green State University, Bowling Green, OH 43403, U.S.A.



Date post:	27-Jan-2017
Category:	Documents
Upload:	daniel-shapiro
View:	212 times
Download:	0 times

Conflicts and Rights

Documents