PRO-TANTO VERSUS ABSOLUTE RIGHTS 1 Danny Frederick Webpage: http://independent.academia.edu/DannyFrederick Email: dannyfrederick77@gmail.com This is the pre-peer reviewed version of the article published in final form in Philosophical Forum 45 (4): 375-94 (2014) here: http://onlinelibrary.wiley.com/doi/10.1111/phil.12044/full Abstract Judith Jarvis Thomson and others contend that rights are pro-tanto rather than absolute, that is, that rights may permissibly be infringed in some circumstances. Alan Gewirth maintains that there are some rights that are absolute because infringing them would amount to unspeakable evil. However, there seem to be possible circumstances in which it would be permissible to infringe even those rights. Specificationists, such as Gerald Gaus, Russ Shafer-Landau, Hillel Steiner and Kit Wellman, argue that all rights are absolute because they have implicit exceptions, the exceptions being either right-voiding or right-compatible. Specificationists have charged pro-tantoism with preventing rights from being action-guiding, and pro-tantoists have levelled the same charge against specificationism. I show that both charges are mistaken. Pro-tantoists claim that specificationists cannot account for the moral remainder that we recognise in some circumstances and which can be explained by reference to a permissible right-infringement. Specificationists retort that the moral remainder can be explained by invoking compensation-rights. I show that the pro-tantoist claim is true and that the specificationist retort is false on two counts: explanation in terms of compensation-rights is not applicable to all cases; and it fails to account for the moral dynamic in the cases to which it is applicable. The contention that rights are pro-tanto does not conflict with the substance of the contention that rights are trumps, despite claims of specificationists to the contrary. Keywords absolute right; ad hoc; amends; ceteris-paribus right; compensation-right; moral dynamic; moral remainder; pro-tanto right; specificationism. 1. Introduction I use “right” in the sense of a claim-right 1 which implies a duty (I leave open the question of whether a duty implies a claim). If “” stands in for a description of a type of action or omission, then, for any persons, x and y, if x has a right against y that y does not , then y has a duty to x not to . My topics are moral rights and duties and moral permissibility and impermissibility. An action is impermissible if and only if it is morally wrong. Following a common terminology, 2 we can say that a right is absolute if and only if it is impermissible to infringe it in any possible circumstances; which is to say that it is always the case that morality requires the fulfilment of its implied duty. Thus, an absolute right implies an absolute duty which always overrides any competing moral consideration. In contrast, a right is pro-tanto if and only if there are exceptional circumstances in which it is permissible to infringe it, even though it is impermissible to infringe it under normal circumstances. Since to infringe a right is to default on its implied duty, such exceptional circumstances are ones in which the duty not to infringe the right conflicts with, without overriding, another moral 1 See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions, ed. Walter Wheeler Cook (New Haven: Yale University Press, 1919) 36-38; Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA.: Harvard University Press, 1990) 37-43. 2 Alan Gewirth, “Are There Any Absolute Rights?” Philosophical Quarterly 31 (122) (1981): 1-16, at 2; George Rainbolt, The Concept of Rights (Dordrecht: Springer, 2006) 161; Russ Shafer-Landau, “Specifying Absolute Rights,” Arizona Law Review 37 (1995): 209-24, at 209-11; Thomson, The Realm of Rights, op. cit., 81.