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Rights Against High-Level Risk Impositions

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In this article, I argue for a distinct and novel right-based account of risks and I call it the Sophisticated High-risk Thesis. I argue that there is a distinction between rights-infringing risk impositions and no-rights-infringing risk impositions. An action imposing a high risk of harm infringes rights, whereas an act imposing a low risk of harm does not. I also suggest three principles that govern the permissibility of highly risky actions. If a highly risky action meets the conditions specified by any of these three principles, it can be justified. These principles are the consent principle*, the prevent disaster principle* and the reciprocity principle**. I show that the Sophisticated High-risk Thesis is, in general, better than the alternative Risk Thesis defended by McCarthy.

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  1. The term High-risk Thesis was not my own invention. One version was first suggested by Thomson (1990, 245) and rejected by McCarthy (1997, 212–215).

  2. Frick also proposed a problem case, which is similar to Policy 2, where one million young children are exposed to a one in one million chance of death by receiving a vaccination. It is virtually certain that one child will die. And this child can have a reasonable rejection to the principle requiring the society to use that vaccination. See Frick (2015, 181–184). One anonymous reviewer suggests that cases similar to Policy 2 and Frick’s vaccination case should be considered as the cases of “expected benefit to many” instead of as the cases of risk imposition. My response is that the concept of risk should be considered as an ex ant concept describing our incomplete knowledge of the state of the world and laws of nature before event P occurs. It is certain that some people will end up being harmed from the ex post perspective. But from the ex ante perspective, each person in the given population is equally likely to be the unlucky one, provided that they belong to the same reference class.

  3. For the Right-based approach, see Thomson (1990), McCarthy (1997), Holm (2016).

  4. The third problem is called the problem of paralysis. For more detailed discussion of the paralysis problem, see Holm (2016).

  5. Here accepts the distinction between infringements and violations that is first introduced by Thomson. The distinction can be briefly illustrated like this: if an action infringes a right, it is opposed to a right but nevertheless permissible. If an action violates a right, it is opposed to a right, and it is wrong. Killing someone for self-defense, for example, does not violate someone’s right to life, but merely infringes the right. See Thomson (1986, 51).

  6. Robert Nozick acknowledges, “no natural-law theory has yet specified a precise line delimiting people’s natural rights in risky situations”, see Nozick (2013, 75). McKerlie argues that no adequate theory of rights can fully explain the relevant facts of risk impositions. See McKerlie (1986)

  7. It is easy to see from the presentation of McCarthy’s paper that he accepts the infringements/violation distinction. See McCarthy (1997).

  8. In present contexts, pro tanto rights against risks can be justifiably over-ridden when the benefits of the practice are significantly high or it meets other considerations, such as the magnitude of the risk.

  9. The issue of threshold setting will be considered and addressed in section 5.1. Briefly speaking, vagueness and arbitrariness are inevitably involved in setting the threshold for high-risk. Nevertheless, we may appeal to some conventional method in risk analysis to determine the magnitude of risk, such as Quantitative Risk Rating.

  10. Note that there is a slight difference between the consent principle and the other two. If a risky action with consent, it does not infringe any right, thus it is permissible. In contrast, the risky action infringes the right but is permissibility under the other two principles.

  11. See Frederick (2014, 378).

  12. For more information, see World Nuclear Association (2012).

  13. If we understand probability in terms of the objective frequency of the occurrence of a given event, then we need to face the problem of the reference class. For the details of this point, see Kumar (2015, 43–47); and Oberdiek (2017, 38–42).

  14. In general, there are three conditions for consent to be valid and responsible: i) it must be the act of an agent who is competent, ii) it must be voluntary (uncoerced) and (iii) the agents involved must be appropriately informed. See Kleinig (2009, 13–20).

  15. For a similar point, see Oberdiek (2017, 35–65). Oberdiek suggests an alternative account, which he calls the evidentialist version of subjective risk: beliefs of probability based on more or better evidence are more credible than that are not. Another similar view of probability is David Lewis’s Principal Principle: any rational agent conforms their credence of probability to the objective chance. See Lewis (1986).

  16. Kleinig has a similar argument. He argues that in the case of Elizabeth Wilson, the Texas grand jury’s decision that her agreement to have sex if Valdez wore a condom constituted consent to intercourse is incorrect. And the Unpleasant Way shares some similar properties with the case of Elizabeth Wilson. See Kleinig (2009, 13–20).

  17. Thanks to one of the anonymous referees for raising this point.

  18. To distinguish my principle from the prevent disaster principle proposed by Hooker in Ideal Code, Real World, I call my principle the prevent disaster principle*. Hooker’s prevent disaster principle is used to justify some intentional killing in very rare cases. See Hooker (2000, 134–136)

  19. Fletcher proposes a theory of nonreciprocity for liability. The theory, roughly speaking, claims that a person’s liability depends on whether he or she imposes a nonreciprocal risk of harm on others. See Fletcher (1972).

  20. Adam Slavny has a similar argument against Fletcher’s definition of nonreciprocity. But his argument focuses on the liability of nonreciprocal risk impositions. See Slavny (2014, 424–425).

  21. One of the attracts of the line-drawing theory is that it makes solving moral problems more analytical and quantitative. Ethical problems are on a spectrum. Some cases are clearly morally wrong, and some are clearly morally permissible, and some are in the middle. A line-drawing theory offers clearer guidance to evaluating cases that are not at the extreme of the spectrum.

  22. See Scanlon (2010), Thomson (1986) and Holm (2016).

  23. See a reply to Thomson’s argument, McMahan (2009) .

  24. Parfit shares the same intuition. See Parfit (1986: 75).

  25. For a similar view, see Otsuka (2015).

  26. There is a large literature on aggregation of risk from a contractualist approach. For a defense of the view that we should argue against ex ante aggregation, see Kumar (2015); Frick (2015). For a defense of the view that we should apply ex post, see Otsuka (2015).


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I am grateful to David McCarthy, Brad Hooker and Elinor Manson for extremely helpful comments on the early version of this article. I thank all the audiences who gave me inspiring feedbacks during my seminars at the University of Hong Kong and the University of Edinburg. I am also grateful to Felix Shing Hay Yeung and Shane Ryan for checking the late version of this article.

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Correspondence to Fei Song.

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Song, F. Rights Against High-Level Risk Impositions. Ethic Theory Moral Prac 22, 763–778 (2019).

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