Cooler Heads

Rights, writes philosopher Ronald Dworkin, are “political trump cards held by individuals.” Thus, the Ace of Utility is beaten by the 3 of Rights, which, in turn, is beaten by the 4. But how should one decide which rights appear on which cards, much less which claims should count as rights to begin with? Rights, unlike most-wanted Iraqis, do not exist within a convenient hierarchy.

In fact, rights do not “exist” at all. Nothing tells me that it would be wrong to kill you for money if no one would find out…except for my intuitions about suffering, the value of continued existence, and reciprocity. In other words, nothing a priori establishes that no benefit whatsoever can justify the intentional taking of your (hopefully) innocent life; rather, intuition favors killing under certain conditions, such as self-defense. Note that self-defense is not an issue of conflicting rights; I have no positive legal right to life. Self-defense, then, creates an exception to the right to life, similar to clear and present danger and the right to free speech. The intuitive utility of victims’ lives and safety trump the rights in question, without being members of the trump suit themselves – it’s as if the Ace of Utility beats a Rights card under certain circumstances. But if utility can sometimes justify the infringement of rights, rights are not really trump cards. Rather, there’s really only one suit – rights operate as useful shorthand for general utility. For instance, life is generally intuitively worth respecting, and we don’t want courts or philosopher kings ruling on claims such as “I stole his liver because he was just a bum and this AIDS researcher needed it!” We use rights to limit such case-by-case decisions to extremes such as “national security,” in order to reduce the dangers of subjectivity.

But what if we had a utility machine – a machine that could perfectly predict the future and assign util values to every possible discrete action (I'm not sure where these values would come from, but I don't think that's relevant here)? Shouldn’t the language of rights go out the window? Thanks to the machine, all cases would be as clear-cut as national security and free speech.

Of course, one can object to my formulation – why not say that the Supreme Court’s ruling created a positive right to be free from clear and present danger caused by speech? Two responses. One, it seems pointless to invoke the language of rights in such a way. Analogously, one could say that Peter Singer is a rights theorist because he implicitly argues that most animals have a right to have their utility considered, but why? Two, even if I accept a positive-rights formulation, the question of what to do when rights conflict remains.

Superficially, some rights trump others simply because they are “natural” or “inherent in human dignity.” But such standards seem to be nothing more than wordplay – phrases used to highlight the intuitive precedence of certain rights. Life isn’t more valuable than free speech because it is God-given or otherwise inalienable; death is simply a worse fate than silence. Once again, if some sort of intuitive utilitarianism is the measuring stick of rights, legal functionality seems to be the only reason to invoke them.

Is there nothing else to be said for rights? Just how utilitarian are our intuitions, anyway? I’ve found that the following three examples raise some interesting difficulties with the “utility machine is law” conclusion that seems to be a logical extension of the current legal treatment of rights. First, is the utility of rape morally relevant? If the utility machine determines that a rapist derived more utility from his act than his victim lost, is the rape justified? Moreover, how should the law under the utility machine treat degrees of disutility from similar acts? Should the thief who really craved a candy bar be punished less than the one who filched for the hell of it? Second, it seems that the law of the utility machine would create an untenable positive obligation on the part of every individual to increase overall utility as much as he can. Perhaps the machine would somehow only demand one’s “best effort” to maximize overall utility, but, needless to say, we’d all still be criminals. Don’t some people deserve at least some of their wealth because they earned it, even if their wealth would be more valuable in the hands of others? Shouldn’t social safety nets be reasonably limited – by negative rights – to providing for basic needs and basically equal opportunities? Third, is it justified, much less obligatory, to punish an innocent bum in order to provide closure for the victim’s family, avert deadly and destructive riots, create a climate of safety, and deter crime? Does desert/retribution matter naught?

In light of these examples, my moral intuitions (surprise, surprise) seem incoherent. I believe rights ought to be infringed for the sake of extreme utility but not lesser utility, and yes, I can’t draw the line between “extreme” and “lesser.”