From IVR encyclopedie
Rights conflict is common in both law and morality. Consider Vincent v. Lake Erie Transportation Co. (109 Minn. 456, 124 N.W. 221, 1910). A ship owned by the Lake Erie Transportation Co. was moored to a dock owned by Vincent when a terrible storm arose. If the ship had cast off, it would likely have sunk. It was not possible to seek the dock owner’s permission to remain moored. The captain decided to remain at the dock. As it weathered the storm, the ship did significant damage to the dock. At least at first glance, the ship owner had a right that the ship stay at the dock because to cast off would have meant a serious risk of sinking. At least at first glance, the dock owner had a right that the ship cast off because failure to cast off would lead to significant damage to the dock. It seems that the rights of the ship owner and the dock owner conflict.
In philosophy, perhaps the best known example of moral rights conflict is the trolley problem. It was first mentioned by Philippa Foot and made famous by Judith Jarvis Thomson (1986). Suppose that Edward is the driver of a trolley whose brakes have just failed. The track in front of the trolley forks. On the right-hand fork are five people and one person is on the left-hand fork. The banks are so steep that none of the six can get off the track in time. Edward can turn the trolley to the right (killing five) or he can turn it to the left (killing one). It seems that the right to life of the person on the left fork conflicts with the right to life of the five people on the right fork. Let us call this case “Trolley.”
The debate over rights conflict is a question about the structure of the conflict. The question at issue is: what is happening when rights conflict? To put the question another way, what conceptual apparatus do we need in order to adequately understand and resolve rights conflict? On this issue, philosophers tend to defend one of two positions, the prima facie view or the specification view. A distinct but related issue concerns how to resolve right conflicts. In Vincent and Trolley, what is the correct thing to do? Interestingly, on this later issue there does not appear to be any neat division of positions. A third issue concerns cases in which rights conflict with non-rights-based considerations. For example, the right to privacy might conflict with a society’s interest in security. Due to space limitations, this entry discusses only the structural issue.
The prima facie view holds that we can understand rights conflict if we distinguish three different sorts of rights: prima facie rights, actual rights, and absolute rights. A prima facie right is a right that implies a prima facie obligation. A prima facie obligation is an obligation that can be outweighed by other obligations. An actual right is a prima facie right that, in a particular situation, is not outweighed by any other obligations. An absolute right cannot be outweighed by other obligations. Whether there are any absolute rights is a matter of controversy. Joel Feinberg (1973, 221-251) provides a useful discussion of the different ways that a right can be absolute.
When there is a conflict between an absolute right and a prima facie right, the absolute right outweighs the prima facie right. When there is a conflict between prima facie rights, one must weigh the conflicting prima facie rights to determine which right is overridden. The notion of weighing a right is metaphorical. In nonmetaphorical terms, to weigh one right against another is to examine the arguments for and against actual rights. In Vincent, talk of weighing the ship captain’s prima facie right not to cast off against the dock owner’s prima facie right that the ship cast off is a metaphor for examining the arguments to determine whether the ship caption has an actual right not to cast off.
The specification view holds that most (all?) statements of rights contain unless clauses that specify the situation in which one has the right. These unless clauses are frequently unstated. On this view, the owner of the dock does not have a right that ships not remained moored to the dock without permission. Instead, the owner has a more limited right, perhaps the right that ships not remain moored to the dock without permission unless damaging the dock is the inevitable consequence of actions required to save a ship from sinking, or save a member of the crew’s life, or. . . . On this view, rights conflict never really occurs. It merely seems to occur because people do not know the full specification of the relevant rights. The specification view implies that all rights are absolute and that apparent rights conflict is resolved by considering arguments for and against the existence of particular unless clauses. (In the law, the necessity defense could be seen as an example of an unless clause.)
The specification view is often expressed with an analogy to spatial limits. Suppose that neighbors disagree about who owns a particular fence post. A careful survey of the property lines will reveal the precise spatial limits of each neighbor’s property and so resolve the conflict. Similarly, the specification view holds that the careful examination of the limits of rights resolves cases of rights conflict. The notion of the limits of a right is metaphorical. Rights do not literally have spacial limits. In Vincent, talk of the limits of the right of the dock owner is a metaphor for examining the arguments to determine whether the dock owner’s right contains an unless clause that covers the case of ships in peril.
When it comes to legal rights conflict, the specification view usually seems more natural. On the other hand, in cases of moral rights conflict, the prima facie view usually seems more natural. It seems that Carl has a legal right that Madeline not drive Carl’s pickup truck. Then it is revealed that Carl and Madeline are married. It seems odd to hold that Carl has a prima facie legal right that Madeline not drive his pickup without his permission but that this legal right is overridden by her legal right to use her husband’s property. The natural view is that Carl’s legal right that others not drive his truck has an unless clause that excludes his wife from the general prohibition. In Trolley, it seems odd to hold that the moral right to life of the person standing on the left fork contains an unless clause that covers this unusual case. On the other hand, this distinction between legal and moral rights might be overdrawn. In difficult legal cases (e.g., Vincent) the prima facie analysis seems more plausible that it does in banal legal situations.
Two objections are common to both the prima facie view and the specification view. First, it might seem that both views lack explanatory power. Both views tell us about the structure of rights conflict and nothing more. Both views take us to the point where rights must be weighed/limited and then tell us nothing. On the other hand, one might respond that a theory of the structure of rights conflict should not be expected to do more.
The second objection that has been raised against both views is that both imply that in many cases we do not know our rights. On the prima facie view, we do not know some of our actual rights because it may be that, although we do not know it, a right that we think is actual has been outweighed by another right. In Vincent, the dock owner may not know for many days that his property rights have been outweighed. On the specification view, it seems that we often fail to know our fully specified rights. Many people do not know the precise limits of their rights with regard to their taxes. The unless clauses of many rights are bound to be such that many people will not know their full extent. However, one might respond that this lack of knowledge about rights is a feature of our lives and not a problem for either view.
Some object to the specification view on the grounds that it is unable to account for the right to compensation for the violation of rights. In Vincent, the court held that while the ship captain had a right to remain moored at the dock during the storm, the dock owner had a right to compensation from the ship owner. Thomson (1986, 41) argues that only the ship captain’s violation of the dock owner’s rights can explain why the ship owner owes compensation to the dock owner. On the specification view, the ship captain did not violate on any of the dock owner’s rights because the full specification of those rights contains the unless clause noted above. On this ground, Thomson favors the prima facie view.
Defenders of the specification view argue rights violation is not an adequate explanation of the right to compensation. They argue that rights to compensation are frequently not grounded in claims about the violation of rights. For example, they might point out that employees have rights to compensation from employers but employees generally have not violated their employers’ rights. In response to this example, some argue that compensation for labor performed is not analogous to compensation for a loss. Defenders of the specification view also argue that the violation of rights does not always imply a right to compensation. In Trolley, if one assumes that the brake failure is not due to anyone’s negligence, it is not obvious that Edward or anyone else owes compensation to those killed or injured by the runaway trolley. Moreover, it seems that the unless clauses of a right could include the right to compensation in those cases where the violation of right does give rise to a right to compensation.
Most of the debate between the prima facie view and the specification view assumes that one view must be correct for all cases of rights conflict. At least two authors have taken other routes. George Rainbolt (2006) has argued that the prima facie view and the specification view are merely two different ways of saying the same thing. He holds that the two views never imply different answers about the resolution of a rights conflict. In Vincent and Trolley, it does not appear that adopting one view or the other has any implications about what the ship captain or Edward should do. He also notes that both the prima facie view and the specification view rely on the examination of arguments. On the prima facie view, one resolves rights conflict by examining the arguments for and against the view that each of the two conflict rights is an actual right. On the specification view, one resolves rights conflict by examining the arguments for and against various unless clauses.
Carl Wellman (1995) argues that some rights conflicts are resolved by the prima facie method, some are resolved by specification, and that in some cases rights conflict is resolved by noting that one of the right alleged to be in conflict does not exist at all. He provides examples of rights conflict that he thinks are resolved in each of these three ways.
Feinberg, Joel. 1980. Rights, Justice and the Bounds of Liberty. Princeton: Princeton University Press.
Montague, Phillip. 2001. “When Rights Conflict,” Legal Theory 7: 257-277.
Pietroski, Paul. 1993. “Prima Facie Obligations, Ceteris Paribus Laws in Moral Theory,” Ethics 103: 489-515.
Rainbolt, George. 2006. The Concept of Rights. Dordrecht: Springer.
Rowan, John. 1999. Conflicts of Rights. Boulder, CO: Westview Press.
Steiner, Hillel. 1994. An Essay on Rights. Oxford: Blackwell Publishers.
Thomson, Judith Jarvis. 1986. Rights, Restitution and Risk. Cambridge, MA: Harvard University Press.
Waldron, Jeremy. 1993. “Conflicts in Rights,” in his Liberal Rights. 203-224. Cambridge: Cambridge University Press.
Wellman, Carl. 1995. Real Rights. Oxford: Oxford University Press.
Wellman, Christopher Heath. 1995. “On Conflicts Between Rights,” Law and Philosophy 14: 271-295.