Abstract
In this paper I examine the prospects for a rights-based approach to the morality of pure risk-imposition. In particular, I discuss a practical challenge to proponents of the thesis that we have a right against being imposed a risk of harm. According to an influential criticism, a right against risk-imposition will rule out all ordinary activities. The paper examines two strategies that rights theorists may follow in response to this “Paralysis Problem”. The first strategy introduces a threshold for when a risk-imposition is a rights violation. The second strategy drops the claim that rights are absolute and maintains that all rights infringements generate compensation duties. It is argued that both strategies face significant practical problems of their own and that the Paralysis Problem seems fatal for a right against risk-imposition in the absence of an adequate account of the morally relevant threshold risk.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Railton (1985).
Thus B might be or become aware of a pure risk-imposition. Pure risk-impositions of which the risk-imposed individual never becomes aware may be called “super-pure risk-impositions.” However, I focus on pure risk-impositions.
I am indebted to an anonymous referee for emphasizing this point.
Nozick’s reply to this problem is to suggest two features of Russian roulette that explains why it is prohibited despite imposing a below threshold risk: 1) Russian roulette is not a socially valuable activity, not productive. 2) Russian roulette is not an ordinary and important feature of people’s lives (1974, ch. 4).
This line of argument can be found in Railton (1985).
See Scanlon (2008) for important discussion of the relevance of intentions for the moral assessment of an action.
Importantly, if we interpret risk-imposition along the lines of Oberdiek (2012), then there will be a rights violation ex ante in this case. Thanks to an anonymous referee for pointing this out.
There are of course limits to compensation for risk-impositions. If you die, I cannot compensate you. I will leave this problem aside and merely note that this shows that compensation is not clearly a way of avoiding tough restrictions on risky activities.
Notably proponents of the Threshold Risk Thesis also introduce a consideration that is not traditionally accepted with respect to property rights. It is not as if what I steal must be above some threshold value in order for my theft to be a rights infringement. Stealing a hairpin is as impermissible as stealing a car.
It is not at all clear to me that strictly non-consequentialist rights theorists should accept this case as one in which stealing is ”clearly permissible.” However, I will not take issue with McCarthy’s argument against absolutism in this paper.
It is notable that the Trade-off Idea is not limited to the claim that the good produced by the rights infringement sufficiently outweighs the burden. In so far as the Trade-off Idea is the one presented by Thomson (1990, ch. 6), it involves a distribution requirement according to which the good is not an aggregate of minor goods to many distinct individuals. The sufficiently large good must be obtained by a single individual: the sufficiently large good outweigh the burden of the bearer of the right only if there is at least one person whose benefit is sufficiently greater than the burden.
In relation to the notion of a sliding threshold I think it is worth noting that Kagan (1989, pp. 87–91) thinks that appeal to a sliding threshold is the only solution to the paralysis problem open to the rights theorist. Furthermore Kagan points out that a sliding threshold may be determined in a number of ways. E.g. in contrast with McCarthy, Kagan suggests that ”an act with twice the risk of inflicting a given harm as a second act need not have exactly twice as high a threshold (…),” and that the idea of a sliding threshold does not imply that acts with identical expected harms (size of harm × probability of inflicting that harm) must have identical thresholds. That is, an act with a high risk of inflicting a small harm need not have a low threshold, even though the expected harm is the same as for some other act with a small risk of inflicting a great harm which does have a low threshold.
Other things are not equal if the risk-imposer is ignorant. In that case it is not clear that a duty to compensate arises. So the focus here will be on cases in which the risk-imposer knows about the risk being imposed.
Of course, there is no guarantee that agents always comply with such a rule, but that is a different matter. Note also, that the sort of case I will discuss here is not the sort of case where the risk imposed would be hypothetically consented to by the person on which the risk is imposed. That would amount to an agent accepting a risk-plus-compensation package or to taking a risk.
Metaphorically speaking this difference between the two rules may be said to be like the difference between paying directly for participating in a lottery and only wanting to pay for a lottery ticket if one wins.
See also Perry (2009) for further discussion of the relationship between McCarthy’s view and negligence law. Perry takes McCarthy’s account to be in tension with existing practices.
This is not to say that there might not be other solutions to the Compensation Problem consistent with the Risk Thesis. All I have shown is that McCarthy’s own proposal brings back the Paralysis Problem.
References
Finkelstein CO (2003) Is risk a harm? Univ Pennsylvania Law Rev 151:963–1001
Fried C (1970) Anatomy of value. Harvard University Press
Fried C (1978) Right and wrong. Harvard University Press
Hanfield T, Pisciotta T (2005) Is the risk–liability theory compatible with negligence law? Leg Theory 11:387–404
Hansson SO (2013) The ethics of risk: ethical analysis in an uncertain world. Palgrave McMillan, Basingstoke
Hayenhjelm M, Wolff J (2011) The moral problem of risk imposition. Eur J Philos 20(S1):E26–E51
Kagan S (1989) The limits of morality. Oxford University Press, Oxford
McCarthy D (1996) Liability and risk. Philos Pub Aff 25:238–262
McCarthy D (1997) Rights, explanation, and risks. Ethics 107:205–225
McKerlie D (1986) Rights and risk. Can J Philos 16:239–251
Nozick R (1974) Anarchy, state, and Utopia. Basic, New York
Oberdiek J (2012) The moral significance of risking. Leg Theory 1:1–18
Perry S (2009) The role of duty of care in a rights-based theory of negligence law In: Robertson A, Tan HW (eds) The Goals of Private Law. Hart Publishing, pp. 79–112.
Railton P (1985) Locke, stock, and peril: natural property rights, pollution, and risk. In: Gibson M (ed) To breathe freely. Totowa, N.J, Rowman & Allanheld, pp. 89–123
Scanlon T (2008) Moral dimensions: permissibility, meaning. Belknap Press of Harvard University Press, Blame
Schroeder CH (1986) Rights against risks. Columbia Law Rev 86:495–562
Teuber A (1990) Justifying risk. Daedalus 4:235–254
Thomson JJ (1985) Imposing risks In: Gibson M (ed) To Breathe Freely. Rowman & Allanheld, Totowa, N.J., pp. 124–140
Thomson JJ (1986) Restitution, and risk. In: Rigths TJJ (ed) Some Questions About Government Regulation of Behavior. Cambridge, Mass., Harvard University Press, pp. 154–172
Thomson JJ (1990) The realm of rights. Harvard University Press, Cambridge, Mass.
Zimmerman MJ (2006) Risk, rights, and restitution. Philos Stud 128:285–311
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Holm, S. A Right against Risk-Imposition and the Problem of Paralysis. Ethic Theory Moral Prac 19, 917–930 (2016). https://doi.org/10.1007/s10677-016-9697-6
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10677-016-9697-6