Abstract
Non-consequentialist theories fail because they depend on moral rights and people do not have moral rights. If people have rights, then they are justified by interests or autonomy , but they are not so justified. For example, interest-promotion is neither necessary nor sufficient for a right. The same is true for autonomy-promotion. The absence of rights explains why consent does not matter, why people do not forfeit their rights, and why forfeiture is not governed by a principle of proportionality. The explanation is that rights are prior to consent and forfeiture so if the former do not exist, neither do the latter. Because forfeiture is prior to proportionality, there also is no proportionality. A theory of morality that cannot handle voluntary change in moral relations (consent and promise) or conflict is a failed theory. This is one of, if not the main task, of morality. Because of the failure of rights , non-consequentialism fails.
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Notes
- 1.
See Douglas Husak, Drugs and Rights, Douglas Husak, Overcriminalization: The Limits of the Criminal Law, and Douglas Husak, The Philosophy of the Criminal Law).
- 2.
See David Boonin, The Problem of Punishment.
- 3.
See Randy Barnett, “Restitution: A New Paradigm for Criminal Justice,” 279–301.
- 4.
See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.
- 5.
See Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent and Gene Healy, Go Directly to Jail: The Criminalization of Almost Everything.
- 6.
For the notion that a right is a claim, see, also, Joel Feinberg, “The Nature and Value of Rights,” 243–257. For the notion that a right is a side-constraint on the pursuit of the good, see Robert Nozick, Anarchy, State, and Utopia.
- 7.
For the notion that rights are justified because they protect interests, see Matthew Kramer, “Rights Without Trimmings,” pp. 7–112 and Matthew Kramer, “Some Doubts about Alternatives to the Interest Theory,” 245–63. For the notion that either the benefit or will theory of a right is true, see Matthew Kramer and Hillel Steiner, “Theories of Rights: Is There a Third Way?” 281–310.
- 8.
The “interest theory of rights” asserts that rights function to protect interests. As such they are constituted by a claim. See, e.g., David Lyons, Rights, Welfare, and Mill’s Moral Theory; Neil MacCormick, “Rights in Legislation,” pp. 189–209; Joseph Raz, The Morality of Freedom; and Matthew Kramer, “Rights Without Trimmings,” pp. 7–112.
In contrast, the autonomy-based theory of rights is called the “will theory of rights.” This theory asserts that rights function to protect choices. As such they always include a Hohfeldian power plus the other Hohfeldian elements over which the power ranges. See, e.g., H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory; Carl Wellman, A Theory of Rights; and Hillel Steiner, An Essay on Rights. I should mention that on my version of the will theory, rights are constituted by claims, although these claims are often accompanied by powers.
- 9.
On some accounts of addiction, addicted people sometimes do not enjoy the activity they are addicted to, but can have a desire to do it even if doing it does not bring them pleasure. This strengthens the case for some addictive activity (for example, smoking) not being in the user’s interest if liking an activity is more important to the user’s interest than wanting it. See Richard Holton and Kent Berridge, “Addiction between Compulsion and Choice,” pp. 239–268. Also, addictive activity might not be in an addict’s interest in part because it is akratic.
- 10.
I owe this objection to Robert Kelly.
- 11.
For a related point focusing on the relation between autonomy and paternalism, see Douglas Husak, “Paternalism and Autonomy,” 27–46.
- 12.
See Joel Feinberg, “The Child’s Right to an Open Future,” pp. 124–53. See also Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self, 325–326.
- 13.
One might object that normative force need not have an ordinal rather than cardinal value and, hence, need not be determinate. The problem is that a specific ordinal ranking is determinate just as a cardinal ranking and so this does not eliminate the concern.
- 14.
For the Egyptology objection, see Derek Parfit, Reasons and Persons.
- 15.
I owe this objection to Bob Kelly.
- 16.
See H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory and Hillel Steiner, An Essay on Rights. Some theories assert that rights are justified by fairness or equality. See, for example, John Rawls, A Theory of Justice.
- 17.
For a theory that makes rights, or at least right forfeiture, depend on a desert-like consideration, see Jeff McMahan’s theory that in order to forfeit a right, an attacker must be blameworthy for an attack or morally responsible for putting another at risk. See Jeff McMahan, Killing in War, 51–60; Jeff McMahan, “On the Moral Equality of Combatants,” 377–393; and Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” 386–405.
- 18.
For an example of such a theory, see Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection from Justice,” 567–585.
- 19.
Ross recognizes right-like relations (for example, reparation and gratitude) and natural rights. See. W. D. Ross, The Right and the Good, 26–27, 48–56. On his theory, rights do not depend on other types of duties. For example, they do not depend on duties of justice (these appear to be desert-related) or beneficence.
- 20.
This idea is set out in Judith Jarvis Thomson, The Realm of Rights, ch. 6, esp. p. 152.
- 21.
One way of filling out the Trump notion is that a right is an exclusionary reason that excludes the consideration of various other factors. See Joseph Raz, The Morality of Freedom. On another version, a reason undermines other moral factors. See Francis Kamm, Intricate Ethics. What is at issue here is the strength of the trumping, exclusionary, or undermining reason.
- 22.
For the notion that the stringency of people’s rights varies with their degree of autonomy, see Stephen Kershnar, “Intrinsic Moral Value and Racial Differences,” 205–224.
- 23.
There are various other explanations of the infringement. Among them are that imposing another to an increased risk is wrong when done from a certain motive or intention. This requires that motive (or intention) be a wrong-making feature. Alternatively, imposing an increased risk on another might be wrong because it harms the intended victim by setting back a dignitary interest. See Adriana Placani, “When the Risk of Harm Harms,” 77–100. The first account depends on a motive-base theory of the right that should be rejected. The second account is implausible because a mere risk does not set back an interest. For example, it does not set back an individual’s level of pleasure, frustrate a desire, or result in having fewer objective list goods or have them to a lesser degree. Even if it did setback an interest, this is not enough to show that it is wrong in that not every harm is wrong.
Alternatively, it might be wrong because the risk is wrong because it involves asymmetrical risk-taking, unjustly enriching risk-taking, substantial risk-taking, or risk-taking relative to special interests. The problem with this is that if the risk is of a wrong, then the wrong cannot depend on risk. If these are the wrong-making features, though, then the wrong depends on risk and, hence, the theory is circular. See Heidi Hurd, “The Deontology of Negligence,” 249–272.
- 24.
Perhaps this can be filled out via the notion of plural harm. See Neil Feit, “Plural Harm,” 361–388.
- 25.
See Nozick, Anarchy, State, and Utopia.
- 26.
For a discussion of dignity-based rights, see Jeremy Waldron, Dignity, Rank, and Rights and Dan Demetriou, “Our Dignity-Right to Guns,” see David Sussman, “What’s Wrong with Torture?” 1–33. For an objection to torture suggesting that there is a right not to be subject to an unfair fight, see Henry Shue, “Torture,” 124–143.
- 27.
See Nozick, ibid.
- 28.
For a criticism of the historical theories, see Jeremy Waldron, The Right to Private Property.
- 29.
I owe this objection to Bob Kelly.
- 30.
It also matters whether the total or average applies to actual or possible individuals. For an argument that possible individuals matter, see Caspar Hare, “Voices from Another World: Must We Respect the Interests of People Who Do Not, and Will Never, Exist?” 498–523.
- 31.
It gets even more complex if we consider animals. More and happier people might result in fewer and less happy animals.
- 32.
See Parfit, Reasons and Persons, and David Boonin, The Non-Identity Problem and the Ethics of Future People.
- 33.
See Hillel Steiner, “Directed Duties and Inalienable Rights,” 230–44.
- 34.
Others who assert that a criminal forfeits some of his moral rights include Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” 57–88; A. John Simmons, “Locke and the Right to Punish,” pp. 238–252, Judith Jarvis Thomson, The Realm of Rights, 365–366, Vinit Haksar, “Excuses and Voluntary Conduct,” 317–329, Murray Rothbard, The Ethics of Liberty, Alan Goldman, “The Paradox of Punishment,” 30–46; Roger Pilon, “Criminal Remedies: Restitution, Punishment, or Both?” 348–357. These theories differ with regard to whether right forfeiture is a fundamental feature of rights or explained by a more fundamental principle.
- 35.
For an assumption that the interest theory of rights subsumes the will theory because autonomy grounds a right only if the right-holder has an interest in it, see John Oberdiek, “Towards a Right Against Risking,” p. 371 n. 4.
- 36.
The assumption here is that welfarism is true. That is, something makes the world a better place only if it makes someone’s life go better. Even if one rejects welfarism, perhaps by asserting that virtue or desert affects the goodness of the world, this does not strengthen the case for the will theory.
- 37.
For classic statements of it, see R. B. Brandt, Ethical Theory, J. O. Urmson, “The Interpretation of the Moral Philosophy of J. S. Mill,” 144–152 and S. Toulmin, The Place of Reason in Ethics. For more recent accounts, see Brad Hooker, Ideal Code, Real World: A Rule-Consequentialist Theory of Morality and T. Mulgan, The Demands of Consequentialism.
- 38.
See J. J. C. Smart, “Extreme and Restricted Utilitarianism,” 344–354.
- 39.
The idea for this objection comes from Smart, “Extreme and Restricted Utilitarianism,” 344–354.
- 40.
See B. Eggleston, “Conflicts of Rules in Hooker’s Rule-Consequentialism,” 329–350.
- 41.
This idea and the two arguments that follow come from Brad Hooker, “Rule Consequentialism.”
- 42.
The idea for the next few paragraphs come from Douglas Portmore, “Parfit on Reasons and Rule Consequentialism,” 135–152.
- 43.
See, for example, T. M. Scanlon, What We Owe to Each Other and John Rawls, Political Liberalism.
- 44.
Rawls asserts that the setup of the original position aims to respect people as equal and respect people’s autonomy. It does so in part by having justice as fairness come as close as a society can to being a voluntary scheme. This suggests an underlying right, namely, the right of people to be treated as equal autonomous beings. See John Rawls, A Theory of Justice, ch. 3.
- 45.
For an argument for relationship-based duties, see Samuel Scheffler, “Relationships and Responsibilities,” 189–209. For an argument for role-based duties, see Michael Hardimon, “Role Obligations,” 333–363.
- 46.
A concrete relationship is one that holds between individuals (that is, concrete particulars).
- 47.
See Nozick, Anarchy, State, and Utopia, 171.
- 48.
The notion that desert is a part of the good rather than the right is the dominant view in the desert literature. See Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection from Justice,” 567–585; Shelly Kagan, “Equality and Desert,” and Owen McLeod, eds., What Do We Deserve? 298–314; Thomas Hurka, “The Common Structure of Virtue and Desert,” 6–31; Neil Feit and Stephen Kershnar, “Explaining the Geometry of Desert,” 273–298.
- 49.
See Stephen Kershnar, Desert and Virtue: A Theory of Intrinsic Value.
- 50.
I am thankful to Jim Delaney, Neil Feit, David Hershenov, Alice Hodge, Jake Monaghan, Travis Timmerman, Dale Tuggy, and especially Bob Kelly for their excellent comments and criticisms of this paper.
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Kershnar, S. (2018). Rights Fail and Why This Explains the Other Failures. In: Total Collapse: The Case Against Responsibility and Morality. Springer, Cham. https://doi.org/10.1007/978-3-319-76950-9_5
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