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.
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
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)
For Thomson, claims are moral
molecules, they imply more than a single, qualified
"ought". The "two-fold
moral residue", even when the "ought" does not apply.
What are the other elements
of a claim, besides the OTBE ought?
What is the point of the
example of Vincent v. Lake Erie Transp. Co.?
ARE MORAL CLAIMS ALWAYS MORALLY ENFORCEABLE?
In addition to the
"moral residue" 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]
ARE ALL MORAL OUGHTS
DERIVABLE FROM 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.
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).
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 to Punish, in Addition
to Deterrence. If y is at fault for not making p true, OTBE it is permissible
to proportionally punishment from 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. (Talbott’s addition:
Even if there is no fault, it is often appropriate to feel bad. Compare Thomson’s discussion of remorse,
guilt, and regret on pp. 96-97).)
A SUMMARY OF WHAT CLAIMS
INVOLVE
C(x,y)p à (1) Qualified Ought (+ appropriateness of remorse and guilt even when
that ought does not apply).
+ (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 Punishment
+ (8) Qualified appropriateness of guilt and remorse in
certain cases when the agent is at fault (Talbott’s
addition: and feeling bad even in some
cases in which the agent is not at fault).
(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
What is first property?
Can there be trespass without harm?
III. 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 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