CONFLICTS OF RIGHTS:

Abstract

In this article, I shall first try to examine the ways in which rights may conflict (or at least seem to conflict). This will be a sketchy survey at best, but I believe it may be helpful. I shall also consider how the resolution of the conflicts is not solely a function of the weight of the interest (as ordinarily understood) involved and consider what this suggests about the correct theory of rights. Finally, I will discuss how we might measure the relative strength of rights.When an attacker who threatens to cut off someone’s leg is killed by his potential victim in self-defense, it is sometimes said that there is a conflict between the right of the attacker not to be killed and the right of a person not to be harmed. However, this is a pseudo-conflict of rights, since the attacker’s right not to be killed is in some way weakened by his being a threat, at least for the purpose of eliminating the threat he presents. Considered alone and not weakened, how would we rank the rights involved in this case? How does the right not to have one’s leg be cut off compare with the right not to be killed? If I heard of two people, one of whom was threatened with violation of the first right and one who was threatened with violation of the second, I would think it right to help the second. This is some indication that I believe the second right is stronger. But this need not determine how we resolve all problems involving such rights, since in some cases the right may be weakened. For example, we may help the person attacked in the case I described rather than the attacker. Henceforth, I shall try to consider conflicts among unweakened rights. In this article, I draw on past work of mine in which I go into much greater detail about how conflicts to get scarce resources should be resolved and when it is permissible to harm some to save others. These more detailed discussions can be found in 1 MORALITY, MORTALITY, DEATHAND WHOMTO SAVEFROM IT and 2 MORALITY, MORTALITY, RIGHTS, DUTIES, AND STATUS (Oxford University Press 1993 and 1996); and in Toward the Essence of Nonconsequentialism, inFACT AND VALUE: ESSAYS ON ETHICS AND METAPHYSICS FOR JUDITH JARVIS THOMSON (A. Byrne et al., eds., M.I.T. Press 2001).