Saturday, February 11, 2006

Robbie George on Waldron on "The right to do wrong"

What an interesting idea, Bob: that rights are shock absorbers, neutralizing some small-level immoralities to preserve an individual decision space: autonomy as trumping small naughtinesses.

This has been an ongoing conversation for at least 800 years. Thomas Aquinas himself noted in Summa Theologiae, I-II, q. 96 on "The Power of the Law" that the law ought not to forbid every vice, but only those that the ruler has a marginal capacity to do good by outlawing, especially those that are injurious to others. But Aquinas does not admit that there is a right to do wrong.

More recently, Jeremy Waldon's essay A Right to Do Wrong in the book Ethics (1981) has argued this point. Consider the two following propositions:

1. P has a moral right to do A
2. P's doing A is morally wrong.

These are not obviously incoherent. It might seem that (1) and (2) entail, respectively,

3. It is morally wrong for someone to interfere with P's doing A
4. It is morally permissible for someone to interfere with P's doing A.

Waldron of course accepts that (1) --> (3), but he must deny (2) --> (4), because (3) and (4) are contraries. He is certainly right. There are lots of reasons why (4) might not follow: as Robert George argues in his book Making Men Moral, the attempt to prevent the immorality might backfire, or it might stop the preventer from fulfilling some more pressing moral obligation, or it might corrupt the preventer, and so on.

But Waldron has by no means established that there is a moral right to do moral wrong, merely that we can't interfere. Consider an outbreak of looting. If the looting can only be stopped by a shoot-to-kill policy, it might be morally impermissible to stop the looting. But this certainly doesn't mean the looters had a moral right to loot. A right to mere freedom from interference does not establish a moral right to do the act. It would, as George argues, "be necessary to show that the compelling reason for non-interference is precisely the right of the wrongdoer to do the wrong."

I would suggest that your invocation of Hohfeld's analysis of rights solidifies this idea. The first two types of rights are claim rights and liberty rights (what Hohfeld called privileges).
  • P has a claim right that X perform act A -iff- X has a duty to P to perform A.
  • X has a liberty relative to P to perform A -iff- P has no-claim-right that X not perform A.
Notice the complicated negative structure. A claim right of mine can never be a right of me to do something. It's a right of mine that somebody else do (or not do) something. A liberty of mine is a right of me to do something. I am at liberty when I have no duty. So: even though (1) is compatible with (2), well, (2) is also compatible with "P has no right to do A."

I'll think more about this, especially in regard to shock absorbers. There's a lot more in Waldron's paper about "humanly important choices" that's much like your friend's paper. Sigh! Too much to read. And yet I knew if I wasn't in law school (and so time didn't seem so scarce, and so precious) I wouldn't read any more than I do now.

Thanks, though, for the great post.

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