Almost all nonconsequentialists hold that people have rights against that may not be infringed simply because the consequences are better. For example, here is Peter Vallentyne:
“[I]ndividuals have certain rights that may not be infringed simply because the consequences are better. Unlike prudential rationality, morality involves many distinct centers of will (choice) or interests, and these cannot simply be lumped together and traded off against each other.
The basic problem with standard versions of core consequentialism is that they fail to recognize adequately the normative separateness of persons. Psychological autonomous beings (as well, perhaps, as other beings with moral standing) are not merely means for the promotion of value. They must be respected and honored, and this means that at least sometimes certain things may not be done to them, even though this promotes value overall. An innocent person may not be killed against her will, for example, in order to make a million happy people significantly happier. This would be sacrificing her for the benefit of others.” (Vallentyne in Norcross)
1. Justifications for rights
Rights are often defended with claims about the separateness of persons:
There is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up. (Intentionally?) To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. (Nozick in Norcross)
One can find similar defences of the separateness of persons by Rawls, Nagel, Gauthier and other nonconsequentialist luminaries.
Vallentyne appeals to the apparently distinct idea that individuals “must be respected and honoured” as an argument for rights. Some also defend it by appealing to the Kantian idea that to sacrifice one for many treats people as a means, and fails to recognise their status as an end in themselves.
As a result, nonconsequentialists, along with most people, think that it is impermissible for a doctor to kill one person and harvest their organs to save five other people. They think that we may never punish the innocent even if doing so is for the greater good. The reason is that the one person has a right not to be killed or punished, even if doing so produces better consequences overall.
2. An absolute prohibition?
One natural initial interpretation of claims about rights is that they imply an absolute prohibition on violation of the right regardless of the consequences. So, we may never kill one person even to save one million people from dying or from being tortured for years.
Problems
There are several problems with rights absolutism.
Counterintuitive
This is extremely counterintuitive. This is why, with the exception of John Taurek and a handful of others, few nonconsequentialists actually endorse the absolutist position.
Risk
Secondly, as Michael Huemer argues here, absolutist theories run into problems when they have to deal with risk. Ok, we may never punish the innocent for the greater good. But can we punish someone with a 0.0001% chance of being innocent for the greater good? If not, then we need to say goodbye to the criminal justice system. We know for a fact that the criminal justice system punishes lots of innocent people every year. I am not pointing to corruption or bureaucratic ineptitude. The point is just that an infallible legal system is practically impossible. So, even a legal system in some advanced social democracy like Sweden is going to punish lots and lots of innocent people every year: we can never be 100% certain that those we imprison are guilty.
Similarly, by driving, you impose a nonzero risk of death on others by causing a car accident. Does this mean that driving is never permissible?
Near certain harms
In fact, as Will MacAskill argues, by driving, you, with almost 100% certainty, cause some people to die by causally affecting traffic flow – you pulling into the road will through some distant causal chain change the identity of who is killed in a car crash. Does this mean that driving is never permissible? To reiterate, this isn’t about imposing a small risk of harm, it is about knowingly and with near-certainty changing the identity of who is killed through a positive action that you take. If you say that this doesn’t matter because the net harms are the same, then welcome to the consequentialist club.
3. Moderate nonconsequentialism
One solution to the first two problems is to give up on absolutism. Huemer proposes that the existence of a right has the effect of raising the standards for justifying a harm. That is, it’s harder to justify a rights-violating harm than an ordinary, non-rights-violating harm. E.g., you might need to have expected benefits many times greater than the harm. Huemer writes:
“This view has a coherent response to risk. The requirements for justification are simply discounted by the probability. So, suppose that, to justify killing an innocent person, it would be necessary to have (expected) benefits equal to saving 1,000 lives. (I don’t know what the correct ratio should be.) Then, to justify imposing a 1% risk of killing an innocent person, it would be necessary to have expected benefits equal to saving 10 lives (= (1%)(1,000)).” [my emphasis]
This avoids problems with risk and also offers a way out of the counter-intuitiveness of saying that we may never sacrifice one person even if we can thereby prevent billions from being tortured.
Problems
Inconsistent with justification for rights
The first problem with this is that it is inconsistent with the justifications for rights offered above. To say that one can be sacrificed for the many is to fail to recognise “the normative separateness of persons”, to act as though “people’s interests can be traded off against each other”. Ok, but why can people’s interests be traded off for 1,001 lives? The separateness of persons sounds like a claim to the effect that we can never make interpersonal trade-offs. If it isn’t this, I don’t know what it means. If it means that the standards for inflicting harm on others is raised to 1,000 lives, then the separateness of persons is merely an elaborate and rhetorical way of redescribing the intuition that people have non-absolute rights. Arguments from the separateness of persons entail absolutism, not moderate deontology.
Similarly, where does this leave the argument that respecting and honouring an individual means that we cannot sacrifice them for the greater good? If the idea of respect does some work in the argument, why does respect stop at 1,000 lives? What if I respond as a typical consequentialist and say that respecting and honouring an individual means giving their interests equal weight to others. One counts for one, so more count for more. So, we can sacrifice one for many. What would count as an argument against this from ‘respect’? Would it be to just restate that respect requires that the standard for inflicting harm is raised to 1,000 lives. If so, again, the appeal to rights just seems to be an elaborate rhetorical way to redescribe the intuition that people have non-absolute rights.
What about the idea that people should be treated as an end and not as a means? On the most natural interpretation of this claim, it means that we must never impose costs on people for the greater good. Why does sacrificing someone for 1,001 people not treat them as a means? If the answer is that their interests were considered but they were outweighed, then why can’t we use that argument when deciding whether to sacrifice 1 person for 2 people? Again, the appeal to the idea that people are an end just seems to be an elaborate rhetorical redescription of the intuition that people have non-absolute rights.
(There is a theme emerging here, which I will return to in a later post).
What is the threshold?
The second problem is related to the first. In the quote above, Huemer says “I don’t know what the correct threshold should be”. Can this question be resolved, then, by further inquiry? What would such an argument look like? Consequentialists have a coherent and compelling account of these cases. We consider each person’s interests equally. Sacrificing 1 for 2 produces more of what we ultimately care about, so we should save 2. Saving 1,000 is even better!
What could be the nonconsequentialist argument for the threshold being 6 lives, 50 lives, 948 lives, 1 million lives or 1 billion lives? This is not a case of vagueness where there are clear cases at some ends of the scale and then a fuzzy boundary. It is not like the question – how many hairs do we have to remove before someone becomes bald? There are clearly answers at either end of the spectrum here: remove 10,000 hairs, someone is clearly bald, remove 5 clearly not. The rights threshold isn’t like this. I genuinely do not know what arguments you could use in favour of a 1,000 person threshold vs a 1 billion people threshold. We’re not uncertain about a fuzzy boundary case, rather there seem to be no criteria telling us how to decide between any possible answer.
As we have seen above, the tools in the nonconsequentialist toolkit don’t seem like they will be much help. The reason for this is that the heart of the nonconsequentialist project is to ignore how good certain actions are. Rights are not grounded in how good they would be for anyone’s life – they’re prohibitions that are independent of their service of welfare. I say “We will be able to produce more welfare if we use our healthcare resources to improve the health of other people rather than keep this 90 year old alive for another week.” The nonconsequentialist retort is “the 90 year old has a right to health”. Where does this leave us? He has a right to treatment that doesn’t seem to be grounded in anything, especially not something that can be compared and prioritised.
Return to the threshold. Maybe one answer is simply intuition. Maybe people have the intuition that the threshold is 1,000 and that is good enough.
Several things may be said here. Firstly, nonconsequentialists themselves implicitly deny that this kind of argument is good enough. That is why they try to build theories that justify where the threshold should be, just as they try to justify why people have rights in the first place. In truth, I would prefer the entirely intuition-led approach because it is more honest and transparent.
Secondly, this is the kind of thing about which there would be massive disagreement among nonconsequentialists. I would wager that some people will answer 100, some 1,000, some civilisation collapse, and some will endorse no threshold (Taurek). Since no arguments can be brought to bear, how do we decide who is right? Do we vote? Moreover, if we are apprehending an independent moral reality, why would there be such disagreement among smart people that cannot be resolved by further argument?
The better explanation is that this is an ad hoc modification erected to save a theory that cannot, in the end, be saved. I would expect that if people really believed that persons are separate, need to be respected, not treated as a means, and so on, there would be much more people who end up in Taurek’s position of denying any trade-offs. I would expect moral philosophy to be divided between utilitarians and Taurekians who refuse to leave the house lest they risk a car accident. The world is not like this, so I don’t think people actually believe these claims.
Not a response to near-certain harms
Moderate non-consequentialism is not a response to the near-certain harms objection.
Summing up
Rights were initially defended with what seemed to be arguments with premises and a conclusion: separateness of persons therefore rights; people as an end therefore rights; respect therefore rights. The implications of these arguments are so unpalatable that almost no nonconsequentialists actually accept them. In the end, they endorse something more moderate which is inconsistent with the arguments that they initially appealed to. Moreover, on closer examination the arguments seemed merely to be elaborate rhetorical redescriptions of the intuition that people have rights. Until better arguments are forthcoming, this looks like a good reason to believe that people do not have rights that trump the common good.