A Right to Do Wrong? Two Conceptions of Moral Rights

Abstract

Beginning with the set of Hohfeldian elements, it is possible to design any number of molecular combinations that may come closer to approximating what we mean by a moral right than any of those elements in isolation. In the last chapter, we looked at the particular molecule favored by Choice Theory of legal rights, and considered the question whether that molecule was also distinctive of moral rights. Another common suggestion about moral rights (and moral, rather than legal, rights will be the focus of this chapter) is that a person X ’s moral right to φ is a precise bundle of Hohfeldian elements consisting of a moral claim-right against interference by Y with X ’s φing, a moral claim-right against interference by Y with X ’s not φing, coupled with X ’s moral permissions both to φ and not to φ – that is, with the absence of a moral duty either to φ or not to φ. This is to be taken as a proposed stipulation of what is to be understood by talk of a moral right. The force of such rights will be brought out (in part) by unpacking what is meant by interference. The scope of the right will be brought out by specifying the range of persons and entities Y who are duty-bound not to interfere. And the substance of the right will be the action, φing, that the right-holder has a moral option to do or omit. Further, we can pose the question of the alienability or prescriptability of a moral right as a question about what powers and liabilities exist with respect to the core bundle. The “Protected- Permission ”Conception We can call this the protected-permission conception of rights. “Permission” because a moral option – that is, a moral permission to φ and a moral permission not to φ – is at the core of the idea. “Protected” because others are duty-bound not to interfere with the right-holder’s exercise of the option. To the extent that the protected- permission conception of rights captures what is distinctive and useful about speaking of moral rights, it deserves to be thought of not as a mere stipulative definition but a reasoned reconstruction of what a moral right is.