Exam 1

Question 1

Hohfeld - Argument against the “culture of rights”

Answer 1

• goes against utilitarianism
• culture of rights often gets in the way of maximizing utility (ex: law that could prohibit many deaths, but infringes on the right of nondiscrimination of an individual)
• increased attention to rights comes at the expense of general welfare (right to press makes waging war harder for political leaders)
• culture of rights leads to an increasing tendency to characterize all interest/desires as rights

Question 2

Positive v Negative Rights (Hohfeld)

Answer 2

• shield not a sword
• negative rights: the right to be free from interference from the government/ society
• positive rights: associated with ability/opportunity to exercise this right, and the government not only not interfering but giving individuals the opportunity and tools needed to exercise this right

example:
negative right to freedom of speech: no interference from government to speak

positive right: government provides opportunities for individuals to speak their minds freely

Question 3

Hohfeld’s Analysis:
Claim, Privilege (or Liberty), Power, Immunity

Answer 3

Claim:
a right in the strictest sense
A gives car to B, B gives money to A
B’s duty to A is correlative of A’s claim

Privilege (Liberty):
- freedom of speech, you have the privilege to speak or not to speak
- liberties are connected with and supported by claims; the government has a duty to not interfere with speech, so a person has a claim in court to enforce the government’s duty

Power:
- the ability to change the legal status of another person
- A has power of Attorney with respect to B, so A can now. make commitments on behalf of B that’ll change their legal status/condition
- correlative to a power is a liability, A has power over B, so now B is then liable

Immunity:
- A has immunity from B when B has no power over A
- correlative of immunity is disability

Question 4

Normative theory:
What is it about the thing we should do, that makes it the thing we should do? What are the normative factors?

Answer 4

• one of them is the goodness / badness of the reasonably expected consequences of the action
• the consequentialist thinks the goodness / badness of the consequences of the act is the ONLY normative factor

problem with consequentialist:
- Riot case, there’s a person on trial and there’s a mob outside if he is acquitted (deemed not guilty)
- mob may lead to mass destruction even if the person is innocent
- consequentialist would say to convict the innocent person

Question 5

What are the non-consequentialist constraints on action?

Answer 5

Rights

Question 6

Pre-Legal Rights and Legal Rights

Answer 6

Pre-legal rights: rights that hypothetically exist outside of the government
- example: if we ruled a country and wanted to create a constitution would we include a right to free speech? We need to determine whether there was a pre legal moral right to free speech

Legal rights: rights that the gov./state grants people

Question 7

Hohfelds 4 types of rights and their correlatives

Answer 7

Claims: Duty

Liberties: Non-claim

Power: Liability

Immunity: Disability/non-power

Question 8

Why does Feinberg think rights are morally important?

Answer 8

• having rights makes claiming possible - it is the claiming that gives rights their moral significance
• human dignity: recognizable capacity to assert claims
• to think of a person as possessed of human dignity simple is to think of him as a potential maker of claims

Question 9

How is Feinberg’s claim rights distinguished from Hohfelds other 4 rights

Answer 9

• the conceptual linkage between personal rights and claiming them

Question 10

Feinberg: Claim-Rights

Answer 10

• Creditor’s right to be paid a debt by a debtor
• the creditor has a claim-right against the debtor, it’s because of this that the debtor has a duty to the creditor

Question 11

Feinberg: what is the relationship between a claim and a right?

Answer 11

• a right is a kind of claim
• a claim is an assertion of a right

Question 12

Feinburg: 3 kinds of claim rights

Answer 12

1. Making a claim to…
   - making a claim is “to petition or seek by virtue of supposed right; to demand as due”
   ex: an investor making a claim to his patent rights
2. Claiming that…
   - claiming that one has a right is just words used, it has no legal consequences
   - to claim that one has rights is to make an assertion that they should be/are recognized
   - propositional claiming (emphasis on making sure people listen)
3. Having a claim…
   - having a claim consists in being in a position to claim

Question 13

Feindburg: propositional claiming vs performative

Answer 13

propositional claiming:
- claiming that ….
- to claim that one has rights that should be recognized - no legal consequences

performative claiming:
- example: making a claim for compensation
- I worked for 5 hours at minimum wage, at the end of my shift I make a claim that I am owed that compensation

• having rights consists in being in a position to claim

Question 14

claims vs rights

Answer 14

• having a claim to X is not the same as having a right to X
• claims differ in degree of strength, rights do not
• you can claim for something to be yours or claim your entitled to something but the claim only goes as far as giving you the opportunity to be heard in court, if approved then you have a full claim-right to x

Question 15

What do Hohfeld and Feinberg both believe about rights?

Answer 15

Both Hohfeld and Feinberg see rights as a 2-party relationship

Question 16

Feinburg: Rights and Needs

Answer 16

• if A has a right to X then there’s someone B, such that A has a valid claim against, with the result that B has a duty to A with respect to X
• in regards to “human rights” (needs), if they are not being met, who has the duty of fulfilling your claim?

Question 17

Feinburg: suppose there are moral rights, what is their relation to legal rights?

Answer 17

Legal rights are valid claims within a system of legal rules

Moral rights are valid claims within a system of moral rules

Question 18

Dworkin: individual rights v collective goals

Answer 18

-arguments of principle are arguments intended to establish an individual right
principle

-arguments of policy are arguments intended to establish a collective goal
policy

Question 19

Dworkin: absolute v non-absolute rights

Answer 19

• absolute rights: right in which there is no reason for not securing that liberty for everyone
• non-absolute rights: rights in which one right might have to yield to another right

Question 20

Dworkin: government and it’s infringement of rights

Answer 20

• a gov must readily justify infringements on liberties and they usually do so through the general utility argument
  ex: free speech: the government has the right to prevent it. if it believes it’ll cause more harm than good
• not all legal rights represent moral rights against the government

Question 21

Dworkin’s Analysis - what would count for/against any given political decision = what are the normative factors?

Answer 21

Dworkin would answer that it would promote/undermine one of our political aims - either a collective goal (policy) or an individual right (principle)

• Dworkin believes ind. rights are the roots of constraints on collective goals
• consequentialists would focus on the collective goal and ignore individual rights

Question 22

What is the point of recognizing rights?
Act-consequentialists vs rule consequentialists

Answer 22

Act consequentialists: disregard this question and disregard these recognitions because there are no rights

Rule consequentialists: the point of recognizing rights has better consequentialists overall

Question 23

Dworkin: suppose there are moral rights, what is their relationship to legal rights?

Answer 23

Dworkin believes all fundamental legal rights are moral rights

However, some rights to Dworkin are not fundamental and therefore could be taken away

There is a process of discovery of moral rights that continually become acknowledged by the government as fundamental legal rights

Question 24

what are constitutional rights?

Answer 24

written laws considered fundamental to the government

• legal rights are derived from constitutional rights

Question 25

Thomson - infringement of rights vs violation

Answer 25

infringement: act rightly
violation: act wrongly

Ex: a child will die if he’s not given some drug soon, the only bit of that drug is locked in a box on your back porch and you’re out of town and unable to consent at the time.

In this, you have a right for it to not be broken into without consent

If we do, we thereby infringe upon your rights, however a child’s life was at stake, so while we infringed upon that right, we did NOT violate it

Question 26

Thomson: stringency of rights

Answer 26

Dworkin and Thomson both agree that some rights are not absolute - there are rights that can be infringed upon without being violated

• only absolute rights are infinitely stringent

Question 27

Thomson: what makes some rights more/less stringent?

Answer 27

Consent and Value

Question 28

Thomson: stringency of rights example

Answer 28

using the same example of the child who will die if not given the drug locked in your box, if you are out of town and refuse consent:

X: - if the box/drug are of little value: then we may act because it is indecent to not give consent

Y: if the box/drug are of immense value to you: then we cannot act

• if Y were true, your rights to the box/drugs are more stringent than if X were true - it is then impossible that we can reimburse you so we cannot act
• If X were true, we can reimburse you for the cost and we therefore can act

Question 29

Mill: The Harm Principle

Answer 29

the only purpose for which power can rightfully be exercised over anyone against his will si to prevent harm to others

• a person’s own good, physical or moral, is not a sufficient warrant for intervention, therefore his independence is absolute

Question 30

Mill: the three spheres of human liberty

Answer 30

1. liberty of individual conscience: (liberty of thoughts, feelings morals, etc)
2. liberty of tastes and pursuits: living the way we want to without impediment from others so long as what we do doesn’t harm them
3. freedom to unity: for any people that don’t involved harm to others

Question 31

Mill - burden of justification

Answer 31

classic liberalism: whenever the authorities interfere in your own life to stop you from doing something you want to do, they bear a burden of justification

• Mill believes this burden of justification is met when it would prevent harm to others
• Mill is a rule consequentialist

Question 32

Mill - Paternalism

Answer 32

• people are most interested in their own wellbeing, they’re the most knowledgable and should have rights to it - he himself is the final judge
• however, there are acts while only self-injurious, if done publicly are a violation of good manners and offensive to others and may rightly be prohibited (sex in public)

Question 33

The Millian Principle

Answer 33

• the government may not restrict acts of expression [so as to prevent harms that consist in, or arise from beliefs produced by acts of expression]

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