THOMSON'S BOTTOM-UP METHODOLOGY FOR UNDERSTANDING MORAL RIGHTS

 

Thomson distinguishes four basic kinds of rights:  claims, privileges, powers, and immunities.  These rights are complicated wholes, built up out of simpler elements—that is, they are complex constraints on behavior, built up out of simpler constraints on behavior. 

        The two basic elements are simple oughts and simple permissions.  Thomson thinks of them as the basic kinds of (moral) behavioral constraints.  These are the moral atoms out of which Thomson builds up rights as moral molecules.  Thomson relies on our ability to make judgments involving the moral atoms in particular cases and will build her theory of rights on those judgments.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The most important kind of rights, and the kind that we will focus on, are claim rights.  Let me say something about the other three kinds:

 

        (1) Privileges.  To have a privilege of doing A = not being under an obligation not to do A (privilege = moral permission). 

 

        (2) Powers.  To have a power is to be able to alter rights (e.g., the legal ability to transfer my property to my heirs with a will is the legal power to give them a right to it). 

 

        (3) Immunities.  An immunity is the lack of a power.  You have a legal immunity against me, because I cannot alter your property rights (without your consent).  Immunities are the least important category for our purposes. 

 

Finally, a cluster right is a combination of two or more of the four basic kinds of rights.

 

 

 

 

 

 

 

 

 

 

 

 

THOMSON'S NATURAL RIGHTS

 

 

        Natural rights are rights that would hold even in a State of Nature with no government.  This makes it clear that we are investigating moral rights, not legal rights.  Later we will consider how natural rights can be modified by governments.  Consider natural claim-rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 3:  ARE NATURAL CLAIMS ABSOLUTE?

 

Thomson asks the question this way:  Is the following true:

 

(T1) C(x,y)p [x has a claim against y that p] à y ought not let it fail to be the case that p?

 

Another way to say the same thing:

C(x,y)p à y ought to make p true (i.e., All claims imply a simple (unqualified) ought)

 

Thomson's more complicated idea:

C(x,y)p à OTBE y ought to make p true (i.e., All claims imply a qualified ought)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CLAIM INFRINGEMENTS AND

CLAIM VIOLATIONS

 

 

y INFRINGES x's claim that p just in case C(x,y)p and y lets it fail to be the case that p [or y fails to make p true].

 

y VIOLATES x's claim that p just in case

C(x,y)p and y infringes x's claim and y ought not to have infringed x's claim (i.e., y is AT FAULT for infringing x's claim). 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For Thomson, claims are moral molecules, they imply more than a single, qualified "ought".  We begin to appreciate claims as moral molecules when we recognize the "two-fold moral residue" that remains, even when the "ought" does not apply.

 

[Note that for Thomson, remorse and guilt require fault.  However, following Williams, Thomson also includes an element of agent regret without fault (240).]

 

Thomson’s account will add other elements besides the “moral residue” that she begins with.  What are the other elements of a claim, besides the OTBE ought, that she identifies in Chapter 3?

 

What is the point of the example of Vincent v. Lake Erie Transp. Co.?

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 4: ARE MORAL CLAIMS ALWAYS MORALLY ENFORCEABLE?

 

In addition to the atoms discussed in Chapter 3, claims carry permissions of enforceability.  How about this:

 

(T4) C(x,y)p à it is permissible for x to prevent y from letting it fail to be the case that p [where it is assumed that x uses the minimum amount of force necessary] (that is, it is always permissible for a claim-holder to enforce a claim)?

 

(T4) holds that all claims imply a simple permission of enforcement.

 

Again, Thomson's idea is more complicated:

 

C(x,y)p à OTBE, it is permissible for x to prevent y from letting it fail to be the case that p [where it is assumed that x uses the minimum amount of force necessary]

 

Self-defense and other-defense are examples of the enforceability element of claims.

 

 

 

 

 

 

 

 

 

DO ALL MORAL OUGHTS GENERATE MORAL CLAIMS?

 

Is the following true: 

 

(T2) y ought to make p true à ExC(x,y)p (that is, all simple oughts imply claims)

 

Again, Thomson's idea is more complicated.  Some moral oughts derive from claims and some do not.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WHAT ARE CLAIMS?

 

C(x,y)p à (1) Qualified Ought:  OTBE, y ought to make p true.

        + (2) Qualified Ought for Notice: If y will not make p true, OTBE y ought to give x notice of that fact.

        + (3) Qualified Ought for Release: If y will not make p true, OTBE y ought to seek a release from x.

        + (4) Qualified Permission for Enforcement:  (a) Self-enforcement:  If x reasonably believes that y will not make p true, OTBE x may use the force necessary to compel y to make p true.  (b) Other-enforcement:  If another person z reasonably believes that y will not make p true and x alone is unable to make p true, OTBE z (perhaps in combination with others) may use the force necessary to compel y to make p true.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

        + (5) Claim for Compensation: If y does not make p true, OTBE C(x,y)comp [where comp = y compensates x for x's reasonable loss resulting from y's failure to make p true].

        + (6) Qualified Permission to Deter:  If y is at fault for not making p true, OTBE it is permissible for x to proportionally deter y (and perhaps others) from rights violations in the future.

        + (7) Talbott's Addition:  Qualified Permission for Retributive Punishment, in Addition to Deterrence. If y is at fault for not making p true, OTBE it is permissible to proportionally punish y, even if the punishment serves no deterrent function.

        + (8) Remorse and Guilt:  OTBE, if one is at fault for failing to perform on a claim or for failing to obtain a release or for failing to provide compensation, guilt and remorse are appropriate. 

        +(9) Agent Regret, Even Without Fault:  OTBE, even if there is no fault, if one fails to perform on a claim, it is appropriate to feel regret (240-241). 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A SUMMARY OF THE ELEMENTS OF CLAIMS

 

C(x,y)p à (1) Qualified Ought.

        + (2) Qualified Ought for Notice

        + (3) Qualified Ought for Release

        + (4) Qualified Permission for Enforcement: (a) Self-enforcement and (b) Other enforcement.

        + (5) Claim for Compensation

        + (6) Qualified Permission for Deterrence

+ (7) Talbott's Addition:  Qualified Permission for Retributive Punishment

        + (8) Qualified appropriateness of guilt and remorse in certain cases when the agent is at fault.

        +(9) Qualified appropriateness regret, even without fault.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WHAT ARE THE NATURAL CLAIMS?

 

Thomson's Limits Thesis:  X has a claim against Y that Y not do alpha if and only if either:

        (i) X's claim is a pure social claim, or

        (ii) Y's doing alpha either

               (a) itself would be Y's committing trespass on X, or causing X harm [of the three relevant kinds] or non-belief-mediated distress, or

               (b) is a means by which Y would be committing trespass on X, or causing X harm [of the three relevant kinds] or non-belief-mediated distress.

 

The natural claims are all those listed in section (ii).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THOMSON'S THREE NATURAL CLAIMS

 

 

I.  Chap. 8:  Claim Against Trespass

        What is first property?

        Can there be trespass without harm?

 

II.  Chap. 10:  Claims Against Being Caused Distress

 

        What kind of distress is there a natural claim against? 

        What kind of distress is there no natural claim against?  Why not?  The subjective element.

 

        The Distress Thesis should be called the NBM Distress Thesis.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III.  Chap. 9:  Claims Against Certain Kinds of Harm

        The Harm Thesis

        Why not a claim against harms caused by the fault of another?  Thomson's objective ought.

        Which kinds of harm are included?

        Which kinds of harm are excluded?

 

        Is there a claim against the risk of harm?

The Risk Thesis

The High Risk Thesis

        Simple ought-not vs. a claim

 

        Is there a claim against the threat of harm (i.e., coercion)?

        Is there a claim against attempted harm-causing?

        Is there a claim to be saved?

In all these cases, Thomson finds a simple-ought, but no claim.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ceasing to Have Rights

 

Word Giving

 

Consent

 

Forfeiture:  Self- and other-defense and deterrence. 

(What about punishment?)

Forfeiture without Fault

 

 

Government Power

What is the source of social claims?

        (a)The Libertarian Thesis

        (b) Hypothetical Consent

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Additional Topics

 

 

The Tradeoff Idea

 

Inalienability