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Chapter 8 is intended to give some account of rights based on an independent, and hence potentially explanatorily prior, account of non-consequentialism. Non-consequentialism is to be understood as Kamm defined it early in the book: the denial that right and wrong action is determined by the goodness and badness of states of affairs, where states of affairs need not be pure outcomes but may include acts which have value or disvalue. The chapter is very long, with arguments, examples and bare assertions of intuitively plausible claims densely interwoven. In places this makes it difficult to follow the precise dialectical role that is being played by the assembled components and to decide whether one is being offered a single argument that extends over several pages, or a number of distinct arguments all for the same conclusion. For these reasons, whilst I shall try to give some flavour of the direction of the chapter as a whole, it will be a severe abbreviation, with significant omissions, and the arguments I extract may only partially represent the considerations that Kamm assembles.

Kamm begins the chapter with some discussion of moral, human and legal rights, and some discussion of the concept of a right and Hohfeld’s classification of rights (claim rights, privileges, powers to alter rights and immunities from rights being altered). In section III Kamm begins a discussion of the relations of rights to duties and the question of explanatory priority, of the relations of the right-holder or subject of a right and the subject of correlative duties (concluding that someone may have a right without there being anyone with a correlative directed duty). She then moves on to discuss beneficiary, choice and interest theories of rights. The beneficiary theory (‘to have a right is to be the intended beneficiary of a duty’ p.. 242) is rejected on Hart’s ground that ‘I can have a right that you take care of my mother’ p..242. Hart’s choice theory (the mark of a right is that my choice to waive the right validly voids the correlative duty) is criticised because of the difficulties it has with inalienable rights, because someone else other than myself may have the power to release someone from the correlative duty to me, and because claiming rather than waiving is crucial to a right.

Kamm then moves on to discuss Raz’s variety of one of the main targets of the chapter: interest theories of rights. Raz has two slightly differing accounts, but we can take the main elements of the second, roughly

Interest Theory of Rights (ITR): there is a right iff someone’s interest is sufficient to ground a duty to promote that interest (cf. p. 244).

Kamm argues that rights and interests are independent in an important way, in the sense that your interests might impose a duty on me without you having a correlative right, and that you can have a right even when there is no interest sufficient to ground a duty. The argument for the second conjunct is by counterexample: ‘If I simply endow you with the right to some of my money, your interest in having the money or property in general played no role, let alone a sufficient role, in my now having a duty to give you my money.’ p. 245. That seems reasonably persuasive. Kamm also offers an argument that you can have rights that serve no interest of yours such as ‘a parent having a right to obedience from his child, or a priest having a right to respect from his followers’ p. 245.

I found the argument for the first conjunct less compelling. The argument is also by counterexample: it is possible that you are very sick, I have a duty to help you but that you do not have a right to my help. ‘The fact that I have a duty stemming from your interest does not give you, any more than anyone else, a moral entitlement to my fulfilling the duty’ p. 244. To claim the right, I must have a directed duty to you, and in that case if I didn’t help you then I would have wronged you. But, says Kamm, although not helping you would be to act wrongly, I may not have wronged you in such a case. I only wrong you if you had a right to my promoting your interest that grounded my duty. Since I didn’t wrong you, despite there being an interest sufficient to ground a duty to promote it, the right and interest come apart and the R to L direction of ITR fails. (In general, Kamm thinks both that it is possible to wrong someone without acting wrongly, i.e. to infringe someone’s right by doing what is right, and also, the case here, that it is possible to act wrongly against someone’s interest without wronging them.)

Kamm offers some argument to the effect that the stringency of rights can be independent of the interests protected, for example, that the stringency of the right to free speech is independent of its serving anyone’s interests, but rather, is grounded in ‘the only appropriate way to treat people with minds of their own and the capacity to use means to express it’. This takes her on to the basis of the positive account she offers (which account also explains why interest theories are generally in error):

some rights are a response to, or an expression of, the good of the person, his authority over himself, and his limited authority over others, rather than a response to what is good for the person p. 247

The thrust of this approach is that, even if some rights exist in order to protect the interests of persons, the ground of rights is not the interests of persons, but the worth of persons. The strength of rights is not from the strength of interests, but from the ‘morally crucial characteristics of persons’ and it is the latter that, in the case of rights that protect interests, is the necessary presupposition for there being a right to the protection of the interest that is the object of the right.

The rest of the chapter is devoted to working through various kinds of conflicts that rights are involved in. These include conflicts between rights and promoting interests, the greater good (maximally promoting interests), and personal interests, conflicts between rights (and the next chapter is entirely devoted to conflicts between rights) and determining their relative stringency, and conflicts of violations. Rather than attempt to cover all that ground I’m now going to pick from this a strand of thought (or at least, my interpretation of that strand) that plays a significant role throughout, and that is based in her thinking through and arguing for the difference that is made by seeing rights as responses to and expressive of the worth of persons. This strand of thought is the use Kamm makes of the notion of the inviolability of persons.

Kamm doesn’t put it quite like this, but considering the kinds of examples that Kamm raised against the interest theory, and the arguments she uses in later in the chapter, an underlying theme of the chapter seems to me to be something like this. The role that rights have in protecting interests skews our view of rights. Interest theories of rights amount to a covert submission to the very consequentialism that non-consequentialists reject. Thinking in such terms inclines us to think that rights and other considerations can be aggregated and traded or set off against one another in various ways just because interests can be. But that is the wrong way to think about rights and the wrong way to address the conflicts that arise. To get this right we need to consider the consequences of the inviolability of persons. Inviolability is necessary if we are properly to respect and express the worth of persons. The consequences of inviolability may seem at times counter-intuitive, but only to the extent that we continue to think of rights in terms of interests rather than in terms of the worth of persons.

inviolability is a status that every person has only if it is impermissible to transgress any given person’s rights. Every person who dies in an accident because it is impermissible to harm another person in order to save [him] also has high inviolability, but only because it is indeed impermissible to harm that other person. p. 254

In the previous chapter, of course, the moral status of persons was defined in terms of permissibility and impermissibility.

An interesting challenge to this theme is provided by cases in which we can minimize rights violations by violating rights. Kamm considers a case in which ‘unless agent 1 kills Joe, agent 2 will kill Jim and Susan’ p. 268. If in fact we ought to kill Joe (‘we’ rather than ‘agent 1’ for brevity) it would seem that the basis for so doing is a matter of setting off violations against one another and choosing to minimize them. But that would seem to contradict the claim that inviolability makes transgression of any person’s right impermissible. For if we ought to kill Joe then it is permissible to transgress his right.

On an interest theory of rights it looks as if we should kill Joe, since the stringency goes with the weight of interests. Waldron argues that if we think we must not kill Joe then we are accepting a duty based theory in which ‘we focus on the significance for an agent and see it as something he must not do’ p. 268. Kamm rejects this suggestion because a duty based account won’t always tell an agent not to kill when the rights say don’t kill, because the permissibility of destroying one art work to save five means that the requirement not to harm persons is not from inside the agent out, but the other way round, and because the duty based account uses a structure of argument that can just as well be used by a rights based account: ‘one instance of either a duty-type or right-type stands in the way of minimizing misconduct involving many instances of the same duty-type or right-type’ p. 269.
Kamm argues that ‘a rights based theory that focuses on the rightholders who are potential victims of rights transgression could require agent 1 not to kill Joe’ p. 269. (A) If it is permissible to kill Joe to save Jim and Susan, morality permits the killing of Joe. Hence his right not to be killed is weaker than if it were impermissible, and by the universalizability of moral status qua persons, so too is that of Jim and Susan and everyone else. Having weaker negative rights implies being less inviolable, which implies being a being of less worth. (B) Inviolability ‘is a status that tells us what it is impermissible to do to a person; it has nothing necessarily to do with what happens to a person’. If Jim and Susan are killed ‘because Joe is not killed, they are violated but they are no less inviolable than is Joe’.

It’s not absolutely clear how this argument is working. It seems to be compatible with part (A) to accept that the worth of persons is less than we might have thought (compare the discussion of moral status in chapter 7 and under Guy’s post on that chapter). On the other hand, the point of part (B) seems to be that although Jim and Susan die, no reduction in the worth of persons is implied. But what is that point directed at? It would only bear if we thought that basis for killing Joe was unless we did so we were not respecting the worth of Jim and Susan. In that case, Kamm’s point would be that not killing Joe is compatible with respecting everyone’s worth, whereas regarding killing Joe as permissible would require us to underestimate everyone’s worth. So respecting worth does not require minimizing deaths. And that, of course, is a respectable argument to a conclusion incompatible with consequentialism. However, the basis on which killing Joe is presented as desirable is that, whatever happens, somebody’s inviolable rights are going to be violated, and we have an opportunity minimize the violation (and in so doing, minimize the deaths). So even if the rights and their inviolability is rooted in the worth of persons, we might expect rather more direct argument on the question of minimizing violation, or some argument drawing out the implications of the conclusions about worth for that question.

I think a problem here is that there are two claims distinct for which Kamm may be taken to be arguing. In the argument as given, we are not being offered an explanation for why minimizing violations is contrary to a worth based theory of rights. Rather, the argument is mainly directed at showing that it is not incoherent, or irrational in some other way, for such a theory to rule out transgression altogether, rather than be committed to minimizing transgression, in these kinds of cases. This is compatible with the statement I quoted from p. 269, which Kamm makes at the beginning of the argument. However, shortly afterwards she says that she has offered a justification ‘for not minimizing rights violations’ p. 270, so is taking herself to have achieved something more substantial.

It seems to me that Kamm thinks this: That the worth of persons is such that the inviolability of their negative right not to be killed is so high that it is impermissible to transgress the right, even in order to reduce other transgressions, and furthermore, ‘it would be self-defeating for it to be permissible to maximize protection of the right by violating Joe for the sake of Jim and Susan, because the right specifically says not to do this’ p. 271. A final problem I have with this is that the self defeat point requires inviolability to be absolute, either had or not had, whereas talk of high inviolability implies it comes in degrees (and, similarly, so too does talk of weaker or stronger negative rights not to be killed), which once allowed in seems to allow of degrees of transgression rather than ruling transgression out. However, this is probably a misinterpretation, since what Kamm means by high inviolability may be only that the worth of a person may be such that their moral status entails that there are many things that are impermissible. In that way, the inviolability goes with the impermissibility and is absolute. Looking back at the previous chapter on moral status, this is probably the way we should understand high inviolability.


Comments

  1. 1. Posted by S. Matthew Liao | September 3, 2007 3:07 pm

    Nick, thanks a lot for the helpful summary/comments of Chapter 8! I had some questions regarding what Kamm has to say in this chapter:

    1. On p. 238, Kamm distinguishes between

    (1) All that is needed in order to come to have certain rights is that one be a human person; (2) All that is needed in order to come to have and continue to have certain rights is that one be a human person (my italics).

    According to her, most human rights do not satisfy (2). For example, she points out that the right to free movement, the right not to be killed, and the right to free speech may all be forfeited in virtue of one’s conduct.

    It seems that Kamm is failing to distinguish between a right’s being nonabsolute (and so is overrideable), and one’s not having a right. Human rights such as the right not to be killed may be overrideable. It does not follow that someone who has placed himself in a situation in which his right not to be killed is overrideable no longer has a human right not to be killed. For example, suppose it were morally permissible to put to death a murderer, X, via capital punishment. X’s right not to be killed in this case would be overrideable. It would not follow that X would now no longer have a right not to be killed. If that were the case, then it would be permissible for anyone to kill X, which is not so. This suggests that someone can retain a human right whilst the right becomes overrideable.

    2. As you have noted, Kamm makes several points against Raz’s Interest Theory of Rights. I think it is helpful to present how Raz actually defines his theory:

    Definition: ‘X has a right’ if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s)s to be under a duty.

    Capacity for possessing rights: An individual is capable of having rights if and only if either his well-being is of ultimate value or he is an ‘artificial person’ (e.g. a corporation) (Morality of Freedom, p. 166).

    [Note: The definition you have presented crucially leaves out the idea that X must be a rightholder. This could make Raz’s account more like Feinberg’s account, according to which, anything that can have interests can have moral status.]

    First comment: Kamm appears to not to distinguish between a conceptual account of rights and a substantive account of rights, when she criticizes the Interest Theory for not being able to account for the worth of persons. A conceptual account purports to explain why different kinds of rights such as claim-rights, liberty-rights, power-rights, and immunity-rights are all rights, while a substantive account of rights tells us what the actual content rights are, which may include protecting the worth of persons (see, e.g., James Griffin’s forthcoming book, On Human Rights). On a charitable interpretation, Raz’s Interest Theory is a conceptual account of rights. In particular, (and in contrast to a Choice Theory, which is also a conceptual account of rights), the Interest Theory seeks to explain claim-rights, liberty-rights, power-rights, and immunity-rights in terms of interests. But it does not purport to say what the actual contents of rights are. As such, this criticism of Kamm’s appears to miss its target.

    Second comment: To be sure, Kamm is correct that part of a substantive account of human right must include the worth of persons. But this seems to be compatible with there being a substantive account of rights, according to which it is in the interest of persons to have their moral worth respected and protected. Raz’s idea of ‘ultimate worth’ in his definition of rights suggests as much.

    As you have noted, Kamm argues that this is not so, because, according to her, when you are very sick,

    it is possible that I have a duty to help you . . . without you[r] having a right that I do so. For to claim that you have a right to be helped by me is to claim more than this: It is to claim that I have a directed duty to you (as subject), so that if I do not act I would not only be acting wrongly, I would also wrong you (p. 244).

    First, it is open to a defender to the Interest Theory just to bite the bullet and to say that if you don’t help someone who is very sick, and you could, you have wronged that person. Secondly, the condition of wronging someone seems in any case to be too strong as a condition for the existence of rights. For example, suppose you have a right that someone not break your front door. Suppose also that your house is on fire, and I think you are inside the house. I may decide to break your front door so that I can get you out of the house. In doing so, I may have violated a right of yours. But this would hardly mean that I have wronged you. Suppose instead that I did not wrong you. It would not follow that you did not have a right that someone not break your front door to begin with.

    Third comment: As you have noted, Kamm thinks that you can have a right even when there is no interest sufficient to ground a duty. For example, she says that if

    I simply endow you with the right to some of my money, your interest in having the money or property in general played no role, let alone a sufficient role, in my now having a duty to give you my money (p. 245).

    This is what Raz has to say regarding such a point:

    Though rights are based on the interests of the rightholders, an individual may have rights which it is against his interest to have. A person may have property which is more trouble than it is worth. It may be in a person’s interest to be imprisoned, even while he has a right to freedom. The explanation of this puzzle is that rights are vested in rightholders because they possess certain general characteristics: they are the beneficiaries of promises, nationals of a certain state, etc. Their rights serve their interests as persons with those characteristics, but they may be against their interests overall (Morality of Freedom, p. 180).

    In other words, when you endow me with the right to some of your money, I have the right, because I have the interest as a beneficiary of your promise. So Kamm has not yet produced a counterexample to the Interest Theory in this regard.

    3. On p. 259, Kamm says

    Hold constant the interests of the rightholder in, for example, life and personal sovereignty, as well as the interests involved in promoting the greater good. It is still true that there are some ways in which a person has a right not to be deliberately interfered with to achieved goods and other ways in which a person has no right not to be deliberately interfered with to achieve these same goods. The Trolley cases . . . illustrate this. It is permissible to save five people by redirecting the trolley onto a sidetrack, though we foresee that it will thereby hit and kill one person. We would not impermissibly transgress the one’s right not to be killed, if we were to redirect the trolley. However, it would not be permissible to push an innocent bystander into the trolley as a way of stopping the trolley—his right not to be killed would be impermissibly transgressed if we did this. One way of putting the point might be that the strength of a right not to be killed is not solely a function of the interest it most obviously protects (i.e., life for everyone in all of these cases), but also of the way in which the interest is affected. Another better way of putting the point, is that the Trolley cases imply that there is no right not to be killed in a certain manner (e.g., as a consequence of redirecting a threat so as to bring about a greater good)(p. 250).

    I think Kamm is wrong that the Trolley cases imply that there is no right not to be killed in a certain a manner (e.g., as a consequence of redirecting a threat so as to bring about a greater good). If that were true, then suppose the person on the sidetrack has a button that he can use to re-redirect the trolley back onto the main track, which would then kill the five. Following Kamm’s line of reasoning, he would not be permitted to do so, since he has no right not to be killed in a certain manner. But it seems that he would have the right and the prerogative to push the button. If so, this shows that he has a right not to be killed in a certain manner. A better explanation is that he retains this right, but the right is overrideable.

  2. 2. Posted by Nick Shackel | September 7, 2007 4:37 pm

    Matthew, I think you’ve raised a number of interesting points. I shall follow your numbering.

    1 & 3. I’m not so sure that she is failing to distinguish over-rideability from not having a right. It may be, rather, that she is rejecting the permissibility of overriding rights. What she says about the trolley case (which you criticise in 3) gives some support to that thought. Also, the characterisation of moral status in terms (perhaps) of the list of things that is impermissible to do to you, and what she says about inviolability, makes it sound like she thinks that if you have a right to something it is impermissible to transgress it. That would make all rights absolute, which poses problems when rights conflict.

    I agree that it seems there is a distinction to be made between an overridden right and a forfeited right, and if so, that a non-absolute right may be both retained and overridden. However, in the capital punishment case you raise we might think (Mill did think, if I remember aright) that the murderer, by his act, forfeits his right to life. The restraint on who may actually take his life may be grounded in other considerations, and recall that we used to outlaw murderers, which could have been explained in terms of their loss of rights. Perhaps contrast this to an innocent lethal threat, such as someone falling from a height on you and your only defence is the ray gun evaporation of them before they hit you. I think this might be a better case of retaining a right which is overridden. Their right to life may be overridden by yours, and your right of self defence, but clearly it hasn’t been forfeited.

    Similarly, your house on fire case sounds like one in which she is going to say that you don’t have a right not to have your door broken down if the house is on fire, and this is leading us to death of a principle by a thousand qualifications. Also in the trolley case: she seems to be committed to denying the right to life of the person on the side track (but this contradicts her discussion in the next chapter of Joe and Jim on the two side tracks). In both cases it sounds more reasonable to admit that the right continued and was violated.

    2. [Aside: I don’t think my definition leaves out the requirement to be a rightholder: that’s why I said ‘someone’, which for me is restricted to quantifying over persons.] I took it that in criticising the interest theory and grounding rights in the worth of persons rather than the good for persons she was making a metaphysical claim about rights (which has an implication for the conceptual relations of the concept of rights). I don’t think she’s criticising the interest theory for failing to account for the worth of persons, but for failing to account for all rights. Surely that is the point of the counter example of you having a right to money simply because I endowed you with that right and not because of your interest. In your third comment you say that it is because of your interest, but the interest was there before the endowment and the endowment created the right. She could equally well have created an example in which the endowment was not in your interest, and yet you would still have the right. So I think she can create counterexamples that have some force here. At least, that is how I think the argument is working. So it may be that it is in the interest of persons to have their moral worth respected, and that may be compatible with the interest theory, but as I understand her, her point is that there are rights left out by the interest theory, and that furthermore, the interest theory starts in the wrong place. It is the worth of persons which explains why their interests should be protected by rights.

    And I suppose this takes us to what I thought was at the root of her criticism of the interest theory (not clearly expressed, and perhaps I am reading too much into what she says). It seemed to me that an important feature of rights for deontology, which the interest theory perhaps can’t address, and which she is getting at when she is worrying about the issue of inviolability and minimising violations, is that they are not the kind of things to be traded or weighed against one another (a problem when they come into conflict, of course). The reason for this is persons may not be traded and weighed against one another, and rights are grounded in the worth of persons. If you ground rights in interests then you create a common currency for rights, namely, interests.

    I agree that the interest theorist can simply bite the bullet in the duty to help the sick case, so the question of that example may come down to a clash of intuitions about whether there is a difference that makes a difference between a duty to help, and a directed duty to help. I think it is consistent with the broad thrust of deontological normative ethics to think that relations between persons make moral differences, and so, for example, you have directed duties to help your children which you do not have to strangers, even if you have a general duty to help people in difficulty. If you buy that kind of line then I think her case is more appealing.

    A problem I have with the Raz quote from his p. 180 is that the ceteris paribus clause in his definition ends up doing too much work of the wrong kind. E.g. it just gets him out of having to say, implausibly, that they don’t have a right to the property which is more trouble than it is worth. So you can agree with him that ‘a person may have rights which it is against his interest to have’ but challenge him to account for that adequately under his own theory. Ceteris paribus won’t do.

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