Why more than what happens matters : robust rights and harmless wronging
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This thesis examines a range of cases in which it appears one’s rights against harm are violated by another’s behaviour, even though this behaviour has done one no harm. Call these cases of harmless wronging. These cases raise a serious problem for most theories of rights, though the problem is most pronounced on the Interest Theory of Rights. According to that theory, rights necessarily protect their holder’s wellbeing. At first glance, one might think that the person’s wellbeing cannot be said to be protected by the right in cases of harmless wronging because they are not harmed in such cases—so, the necessary condition set for the ascription of a right is not satisfied. I offer a novel, welfare-based explanation of why we have rights against harmless wrongs, the Safety Condition. This holds that for someone to hold a right against us that we not perform some action, we look to whether our performing that action could easily leave them sufficiently worse off to place us under a duty. In addition to extensional accuracy, one reason for this focus on modality—on what might have been—is that it removes an objectionable form of luck from rights. And, it matters that rights do not depend on luck in this objectionable way for this requires that we, as duty-bearers, are sensitive to others’ wellbeing: that we do not only not harm others, but that we could not easily have harmed them.
Thesis, PhD Doctor of Philosophy
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