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Paternalism and Rights1

Published online by Cambridge University Press:  01 January 2020

Samantha Brennan
Samantha Brennan*
Affiliation:
The University of Western Ontario, London, ON, Canada, N6A 3K7
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Extract

When, if ever, are we justified in infringing a rights claim on the basis of benefit to the right bearer? If we assume that the rights of individuals can be overridden on the basis of what is at stake for others- that is, that rights have thresholds - we can ask how these thresholds are affected when the person who will benefit from the right being overridden is the right bearer herself.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 24 , Issue 3 , September 1994 , pp. 419 - 439
Copyright
Copyright © The Authors 1994

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References

1 Thanks are due to the Social Sciences and Humanities Research Council of Canada for their financial support during the time in which this paper was written, and to Shelly Kagan for his extensive comments on earlier versions of this work when it took the form of the fifth chapter of my doctoral dissertation at the University of Illinois at Chicago, ‘Thresholds for Rights.’

2 I will help myself to some of Judith Thomson’s terminology. In The Realm of Rights she refers to any failure to accord a rights claim as an infringement of that right, and refers to unjustified infringements as violations. This distinction is introduced in the course of her rejection of the claim that all rights are absolute or that every infringement is also a violation. See Judith Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press 1990), 122. To these two terms I add my own ‘overriding,’ which is a justified infringement when the justification is on the basis of what is at stake for those will benefit from the rights infringement.

3 For example, I think that the threshold of a right has at least two components in addition to the total requirement. In my dissertation ‘Thresholds for Rights’ I argue that there is an existential constraint (which says that among those who will benefit from the infringement there must be at least one person who has [roughly] as much at stake as the right bearer, and a universal constraint (which says that for all beneficiaries of the infringement if what they have at stake is to count towards meeting the total, it must exceed a certain minimum amount-proportional to what the right bearer has at stake).

4 For an account of the variety of foundations for rights see Sumner’s, L.W. The Moral Foundation of Rights (Oxford: Clarendon Press 1987)Google Scholar. Many of these foundations can also be seen as supports for rights with thresholds.

5 Judith, Thomson The Realm of Rights (Cambridge, MA: Harvard University Press 1990), 168-9Google Scholar

6 I phrase this in terms of B’s ‘proceeding’ since I do not mean to take a stand on whether some action, when performed by B, would count as an infringement of B’ s right. At the very least it seems to me that there are many cases where it would not count as an infringement of his right.

7 Shelly Kagan calls the feature of common sense morality which allows people to give up utility for themselves for the sake of others when there is a net loss in overall utility an ‘option of generosity.’ See Shelly, Kagan The Limits of Morality (Oxford: Clarendon Press 1989), 246-9Google Scholar.

8 For example, Michael Slote calls such features of common sense morality ‘self/ other asymmetries’ (’Morality and Self-Other Asymmetry,’ The Journal of Philosophy 81 [1984]179-92).

9 Michael, Slote Beyond Optimizing: A Study of Rational Choice (Cambridge, MA: Harvard University Press 1989)Google Scholar

10 I am not endorsing the strong claim that we are in complete control of all of our rights. Such a position would entail the denial of there being any inalienable rights, and this is a controversy I do not wish to engage with here. I am only endorsing the weaker claim that we are in control of most of our rights and that this group includes the right not to be harmed, the right I most commonly talk about in my examples.

11 For another discussion of Thomson’s views in The Realm of Rights as they concern paternalism see Eric Mack’s review essay ‘Sighting Rights,’ Ethics 103 (1993) 779-91.