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(Summary) Jeremy Waldron- Rights in Conflict (1989)

Do rights come into conflict? If so, how should we resolve them?

Three points

  1. If rights are understood along the lines of Joseph Raz’s interest theory, they will come into conflict.
  2. Rights generate a multiplicity of duties, not singular
  3. The complexions created by (2)

Competing Conception of Rights

  • Obviously, the conception of rights have implications we have for thinking if they conflict or not.
  • Consider Nozickian side-restraints, which simply require one constraining their own actions in a negative manner, and agent relative independent of others’ actions. Thus it avoids rights conflicts, but the scope of moral considerations are limited.
  • On the other hand, we have Raz’s view: that you have a right if and only if some aspect of your wellbeing is sufficiently important to hold another to a duty.
  • Raz’s conception operates unlike the Utilitarian’s, who would justify things on the importance of interests of everyone affected by the duty. Rather, his conception justifies the importance of A’s right only based on its interest to A.
  • It is also discriminatory; only some things are worthy of that level of interest that they ought to be considered rights, and it is the job of political philosophy to provide a rationale for such distinctions.
  • The interest theory would likely mean conflict in rights- since interests themselves clash irl

“Ought implies Can”

P1: What ought to be the case can be the case.

P2: Rights entail “ought”.

C: What is a right must be able to be realised; conflicts of rights cannot arise.

Waldron’s response here is simple. Namely, that the rights do entail that we ought to do X, yet this is considered only in in isolation. The source of conflict, however, comes from the us operating under constraints, facing the aggregation of all rights claims.

Trade offs

  • One reason we like rights because it avoids the problems of “trading off” one person for another, as we find in utilitarianism. Yet, the issues seems to reemerge if we consider rights as things we can weigh.
  • Two things to note
  • 1) we cannot avoid the reality where rights will have to be traded off, and facing that, one needs to know how
  • 2) the reason we are uncomfortable with Utilitarianism is not because of the trading off per se. But rather, that it says that some things with great intrinsic value can be traded off for other things with less intrinsic value, insofar there’s enough of the latter. That is, the value of a life and 100000 people’s satisfaction are comparably under metric.

Duties

  • The trade off of rights need not involve the sacrificing of one right against another, but the mere suspension of particular duty associated with one right.
  • This is especially so in interest theory. If significant interest enough to be a right, it is likely to have many duties associated with it.
  • e.g. the right to free speech correlates with duty of govt not to crack down, but also of govt to offer venues, to not let people be silenced etc. The right to not be tortured would involve ameliorating the tortured, preventing it etc as well as “not torturing”.
  • This is because, according the interest theory, the basis for a right (and thus duty) is an interest which needs a multiplicity of duties to preserve.
  • The distinction between positive and negative rights blur with interest theory, for it seems that one would need to both refrain from certain acts and do others to ensure the interests
  • The implication for multiplicity of duties is that the trade off of rights is less drastic than it seems prima facie.
  • That is to say, that where duty arising from right A comes into conflict with duty for right B and we choose A over B, the right of B can still be respected via enacting of all other correlative duties.

Ordering of Rights

  • Can we have a “lexical ordering” of rights, where we rank/prioritise some rights over others?
  • Whereas we are happy de-prioritise utility in favour of rights, possibly doing so indefinitely, can we do the same for rights?
  • Perhaps we could distinguish between rights which when infringed, lead to immediate palpable harms and those that don’t, and to consider the latter as having just fractions of the importance of the former.
  • But it’s unclear that that is useful. Not all duties generated from a right related to harming of the interest (e.g. duty of retribution to right violators). Nor is it possible to to have “fractions” of lexical priority. On the contrary, it opens the door for all things in like manner.

Conflicting Rights

  • Intra-right conflicts– same right, but different instances. Inter-right: between rights
  • Inter-right conflicts:  involving the trade off of different rights, such as allocating scarce resources in medical care. Some maximising approach seems appropriate.
  • Having multiple correlative duties both mitigates and complicates the issue. It mitigates, because you can suspend one duty without the right. It complicates, because we can’t balance different duties coming from the same right.
  • Perhaps we can concede that some duties may be stronger. For example, that person might be more ill than another. But Waldron thinks that once we have a view of different duties coming from the same right as being different in importance, we begin to lose the sense of rights- as the source of duties- as ought to be having precedent over other things in morality.
  • The multiplicity of duties makes rights prioritisation problematic too. Sure, we can agree that right to torture is more important than free speech. Does it follow that all the other correlative duties from the right to torture matter more than duties to free speech, even the marginal cases?
  • Alternative- quantification. But then that undermines the importance of certain rights, which we consider ones that shouldn’t be traded off for lesser interests.

Lexical priority and internal connections

  • To consider the internal relations between a pair of moral claims, rather than “externally”.
  • E.g. Dworkin’s argument for rights- that utilitarianism would factor in “external preferences” which corrupt the basis for decision making, thus rights.
  • E.g. Mill’s argument for the relationship between free speech and its purpose, namely to stir up discussion.
  • Thus there is potentially an order of duties. In Mill’s conception, the punishment of suppressors of free speech has more of an external relation to the right to freedom compared to suppressing free speech itself. Or in Dworkin’s account, whether or not a certain duty is likely to be corrupted by external preferences matters.
  • So consider group X trying censor group Y. It seems, to begin with, that there is a clash of rights to free speech. perhaps we could work out how many are in each group, what the chances of censorship are etc and come up with a strategy in minimising fewest rights.
  • Or perhaps we should realise that our duties to group X are weaker to ours to group Y, because the claim the X is trying to make (censorship) goes against the reason why there is a right to free speech to begin with. That is, the internal relationship between their rights claim and the right itself
  • But perhaps even that’s unsatisfactory. Most of the time the quantitative measurement seems to fit best, but at times we want to have lexical ordering too.

Thoughts

I do not think that the “internal connections” observation does much to alleviate the problem of inter-rights conflicts, and he is correct is stating that by and large, we can establish qualitative priorities in some instances but not others.

To be clear, I think the distinction of internal and external connections successfully addresses the concern that Waldron raised- namely, the absurdity that we would have to prioritise all duties associated with the right to torture, even the most minute one, over duties for free speech.

The reason I say that is because “internal connections” do not serve as a meaningful reference point for rights stemming from different interests. That is to say, whilst it is likely that we can settle the score over what is a more important duty, to no suppress free speech or to punish suppressors, via referencing the reason for the right to begin with, this is obviously impossible if we are talking about different rights (with different interests).

So consider the classic Free Speech vs Trauma debate. It seems, intuitively, no reason to believe why the basis for the right to free speech (e.g. defending against moral complacency, as Mill say) has any priority over the basis for right to feeling safe (e.g. defence of agency). Thus to consider balancing duties stemming from either rights ultimately is futile absent considerations for what interests are more legitimate concerns than others.

It does, however, raise a further question. That is- to what extent would we value “indirect” duties with external connections vis-a-vis duties with internal connections? Can we weigh them? But that would tempt (or even lead) us into weighing up everything under some non-existent unified metric.

Given the uncertainties here, I think it’s only fair that Waldron left the questioned unanswered (fully).

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