Saturday, February 11, 2006

On the Right to Do Wrong

I thought I would jump on the bandwagon of Sean's little stream of consciousness here. We all know that multiple voices in one's head is better than just one, so here goes.

In an upcoming paper, Daniel Priel, a student in the Yale Philosophy Department, poses the fascinating question of whether there is such a thing as a right to do wrong. Priel argues that there isn't. Before launching into an exegisis of his position, let's orient ourselves.

Priel is really trying to grasp with how to understand the function of rights within moral philosophy. He begins by recounting the well-established observation that many rights can be understood as bundles of claims against other people, resulting in a relational rather than individualistic analysis. He then follows with the distinction between "claim rights", or rights held against other specific persons (generated, for instance, by entering into a contract), and "liberty rights", or rights that entail a claim against the world in the form of an injunction from interference (such as free speech). Note that while I've used legal examples here, at this point we're talking about moral rights, not legal rights.

Priel is intersted in the second kind of claim. Generally, we tend to have the intution that if a person is vested with a right to engage in a certain activity, even if we regard that activity to be have some degree of moral negative valence, it is nevertheless morally permissible to engage in that activity. Thus, it would seem that we are inclined to acknowledge a 'right to do wrong'. But how is this supposed to work? How can anything that is not itself a moral consideration alter the moral obligations that would otherwise be imposed?

The answer to this question, Priel suggests, is to be found in understanding rights as a supervening element underpinned by a universal value of autonomy that operate by creating preroagtives of varying magnitudes (depending on the interests involved) for a moral agent to disregard or 'neutralize' for the purposes of her practical reasoning the moral claims that would otherwise be pressed upon her, and in doing so preserve a general injunction against others from interfering with what would otherwise be immoral conduct. Thus, my right to free speech makes it morally permissible for me to make provacative and potentially upsetting statements because it allows me to disregard the harms I might inflict in doing so (assuming we're in some universe of consequentialist moral reasoning). As a third party, my recognition of this preroagtive on the part of another allows them justly enjoin me from interfering with their conduct. Thus, we can think of rights as 'shock absorbers' of a sort against the relatively minor moral considerations that might weigh against actions that individuals wish to engage in and which fall within what we regard to be protected bounds of their autonomous agency.

Remember, the problem is that autonomy itself is not a moral reason to do or not to do X (not from the perspective of a first-person moral agent, anyway). Priel's proposed analysis is meant to solve this problem; since the otherwise negative moral aspects are discounted in my practical reasoning, I am doing no wrong. If my liberty right is not powerful enough to absorb or discount the negative moral considerations that attach to my action, then the action is wrong in spite of the right and I have a moral obligation not to do it. Thus, Priel concludes, it is impossible to have a right to do wrong.

One problem I see with this analysis (among many) is that while rights on Priel's view are supposed to be conceptually independent from the particularities of a given substantive moral theory, it seems that a determination about the magnitude of one's right to engage in any particular action will necessarily depend on the normative value placed on the action to which the right pertains. How can I decide whether my right to free speech allows me to discount a given amount of harm that I know will result from my saying X? I have to discount however much the right allows me to discount, and see where I stand, which seems to me to be no different from saying that I weigh the right against the (otherwise) wrong it permits. Thus, in order to actually utilize the concept of rights in practical reasoning, one has to turn to the very move that Priel sought to render unnecessary in light of its conceptual pecularity - trying to pit autonomy itself as a value to be weighed against opposing moral values. Again, this kind of move might make sense in devising a legal regime or deciding from a third-person perspective when intervention might be morally justified, but it does not solve the problem from the perspective of first-person moral reasoning.

A fascinating idea, but alas, essence of liberty continues to elude me.

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