Abstract
The argument I defend in this paper challenges whether Waldron’s explanation of the conditions required for a moral right to satisfy its autonomy-promoting function is the best one available. It questions the suitability of Waldron’s preferred taxonomy of moral action, where acts are divided into: (1) those that are morally required; (2) those that are morally prohibited; and (3) those that are morally indifferent, advocating instead for a binary classification consisting of: (a) actions that admit of reasonable moral disagreement; and (b) actions that do not admit of reasonable moral disagreement. My claim is that the protective sphere moral rights set up in organizing the moral relations among persons is applicable only to the former category—namely, actions that admit of reasonable moral disagreement. Actions that do not admit of reasonable moral disagreement will either: (b’) not normally demand a right against interference in the first place (if the action is unquestionably permissible); or (b”) fail to admit of a right against interference at all (if the action is unquestionably impermissible). This competing explanation allows us to preserve the autonomy-promoting conception of moral rights Waldron endorses while avoiding a number of its suspect implications.
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Notes
Jeremy Waldron, “A Right to Do Wrong,” Ethics Vol. 92, No. 1 (1981), p. 38.
Ori Herstein, “Defending a Right to Do Wrong,” Law and Philosophy Vol. 31, No. 3 (2012), pp. 345–346. Of note is that a second more sophisticated approach to the conceptual soundness of a right to do wrong is laid out at David Enoch, “A Right to Violate One’s Duty,” Law and Philosophy, Vol. 21 No. 4 (2002), p. 358.
See Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal, Vol. 23, No. 1 (1913), p. 16.
Jeremy Waldron, “A Right to Do Wrong,” Ethics Vol. 92, No. 1 (1981), p. 35.
Notice that the agent’s interest in autonomy is not the only moral consideration that would be adversely affected by severing the link between moral rights and the notion of choice and alternatives—it would impair the institution of morality in other ways as well. Consider, for instance, the impact it would have over the assessments we make of the moral worth of actions. It seems a truism that many of the admirable qualities we attribute to moral personhood (e.g., bravery, truthfulness, fidelity) hold only to the extent that the agent has chosen to perform a morally worthy action despite having every opportunity to choose differently. Eliminating the opportunity for agents to choose differently would appear to invalidate the ascription of moral worth altogether, and this would have far-reaching consequences for how we understand moral agency itself.
Jeremy Waldron, “A Right to Do Wrong,” Ethics Vol. 92, No. 1 (1981), p. 34 (emphasis added).
A strict coherentist conception of autonomy could answer both questions affirmatively. See Harry Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988).
Jeremy Waldron, “A Right to Do Wrong,” Ethics Vol. 92, No. 1 (1981), p. 34.
Gerhard Øverland, “The Right to Do Wrong,” Law and Philosophy, Vol. 26, No. 4 (2007).
Ibid, p. 381.
Ibid, p. 389.
William A. Galston, “On the Alleged Right to Do Wrong: A Response to Waldron,” Ethics, Vol. 93, No. 2 (1983).
Waldron could of course allow that people will disagree over the moral quality of an action, but this will always be the result of one or more parties arriving at a faulty judgment about that quality.
Cécile Laborde, “Legal Toleration and Rights to Do Wrong,” Oxford Studies in Political Philosophy, Vol. 8 (David Sobel and Steven Wall, eds) (2021), pp. 162–163.
Renee Jorgensen Bolinger, “Revisting the Right to Do Wrong,” Australasian Journal of Philosophy, Vol. 95, No. 1 (2017).
See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).
Jeremy Waldron, “A Right to Do Wrong,” Ethics Vol. 92, No. 1 (1981), p. 38.
Ibid.
See Ori Herstein, “Defending a Right to Do Wrong,” Law and Philosophy Vol. 31, No. 3 (2012).
See Frederich Schauer, “Free Speech and the Argument from Democracy,” NOMOS: American Society for Political and Legal Philosophy, Vol. 25 (1983).
See Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979).
As John Mackie explains in the course of describing his error theory:
Moral judgments are universalizable. Anyone who says, meaning it, that a certain action (or person, or state of affairs, etc.) is morally right or wrong, good or bad, ought or ought not to be done (or imitated, pursued, etc.) is thereby committed to taking the same view about any other relevantly similar action (etc.). This principle, in some sense, is beyond dispute. (John Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin Books Ltd, 1977)).
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Callaghan, G.D. A Revision on Waldron’s Autonomy Defense of Moral Rights. J Value Inquiry (2022). https://doi.org/10.1007/s10790-022-09912-7
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DOI: https://doi.org/10.1007/s10790-022-09912-7