INTRODUCTION TO THE SYMPOSIUM ON CONFLICTS OF RIGHTS

Abstract

The literature on rights in both moral and legal philosophy is voluminous, so voluminous that there may seem to be little justification for one more symposium to swell its ranks. But the discussion of rights has been fairly tightly organized around several narrow topics of debate, among them whether rights should be explained in terms of interests or choices,The traditional debate is between the “Interest Theory” and the “Will Theory.” For a discussion of this, see A DEBATE OVER RIGHTS (Kramer et al. eds., Clarendon Press 1998). whether rights are strictly correlative with duties,See L.W. SUMNER, THE MORAL FOUNDATIONOF RIGHTS §2.2 (Clarendon Press 1987) for a discussion of this point. and the relation between rights and utility.See, e.g., RONALD DWORKIN, Rights as Trumps, in THEORIESOF RIGHTS 153–68 (Jeremy Waldron ed., Oxford University Press 1984). The inspiration for the present symposium is the sense that one topic of central importance has generally been given short shrift: the question of whether rights can conflict. There is, of course, a perfectly good explanation for why this topic has received so little attention; namely that contemporary rights theorists have generally assumed that rights cannot conflict.Notable exceptions include JUDITH JARVIS THOMSON, THE REALMOF RIGHTS (Harvard University Press 1990) (who allows that rights can conflict without specifically discussing the point); JEREMY WALDRON, Rights in Conflict, in LIBERAL RIGHTS: COLLECTED PAPERS 1981–1991 (Cambridge University Press 1993). But this assumption seems to be out of keeping with the way people commonly speak about rights as well as the way in which rights are usually understood in our constitutional tradition.