5 Violating vs Infringing a Right
HO Joel Feinberg on the Famous Cabin Example
Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” Philosophy & Public Affairs 7 (Winter, 1978), pp. 93-123
At this point, it will be useful to borrow Judith Thomson's distinction between infringing and violating a person's right: ". . . we violate his right if and only if we do not merely infringe it, but more, are [102] acting wrongly, unjustly, in doing so. Now the view that rights are 'absolute' in the sense I have in mind is the view that every infringing of a right is a violating of a right."16 We can readily provide examples of rights that are not absolute in Thomson's sense. Perhaps the most plausible of these are property rights. Suppose that you are on a back-packing trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else's private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor's food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.
It will be argued, on the other side, that you have not infringed anyone's actual rights that were fully operative in the circumstances but only prima facie rights, the overturned presumption of rights, or inconclusive claims. It will be said, perhaps, that the undeniable right of the homeowner, when fully specified, excludes emergency circumstances such as the ones that obtained, and thus he can have no grievance or counterclaim against you. It is, of course, possible to say these things, but only at the cost of rejecting the way most of us actually understand the rights in question. We would not think it inappropriate to express our gratitude to the homeowner, after the fact, and our regrets for the damage we have inflicted on his property. More importantly, almost everyone would agree that you owe compensation to the homeowner for the depletion of his larder, the breaking of his window, and the destruction of his furniture. One owes compensation here for the same reason one must repay a debt or return what one has borrowed. If the other had no right that was infringed in the first place, one could hardly have a duty to compensate him. Perhaps he would be an appropriate object of your sympathy or patronage or charity, but those are quite different from compensation. This is a case, then, of the infringement but not the violation of a property right.
[103] Not every case of justified killing infringes the victim's right to life. We may still have to resort
to resort to the presumptiveness strategy or the full specification strategy to explain why we do not infringe the victim's right to life in war killing, capital punishment, or self-defense. The other's right to life may not extend as far as these cases of justified killing and hence may not be involved at all Surely, we acknowledge no duty of compensation to the heirs of an aggressor whom we killed in self-defense. On the other hand, there are some rare cases, as Thomson points out, of justified killing of innocents whose rights to life are thereby infringed--"If you are an innocent threat to my life (you threaten it through no fault of your own), and I can save my life only by killing you, and therefore do kill you, I think I do owe compensation, for I take your life to save mine."" One of Thomson's examples of an innocent threat is an "innocent shield," a child tied to the front of a tank driven by a malevolent aggressor whose intent is clearly to destroy me. There is no place for me to hide, but I happen to have an antitank gun, so to save my own life I blow up the tank, killing both the wicked aggressor and the innocent child. Self-defense presumably justifies me, and I have no duty afterwards to compensate the aggressor, but the child's right has been infringed, and I would have a strong obligation to set things straight somehow with her parents. In her case, I have infringed a right to life without violating it, so her right to life was not "absolute" in Thomson's sense, but the example does not show that her right was not absolute in our original sense, for the right continued to exist even in the circumstance where it was justifiably infringed. The "absolute" element in the aggressor's general right to life, however, if there is such a thing at all, must be demonstrated by one of the first two methods.
We may now tentatively conclude that by "the right to life" we can mean a right not to be killed or allowed to die which can be claimed against all other private individuals and groups for their forbearance and performance, and against the state for its enforcement. As a claim-right it signifies not merely the absence of a duty to cooperate in one's own death, but also the correlative duties of others toward one. It is a moral right in the sense that it is a claim rendered valid subject to [104] reasons derived from moral principle, and therefore can exist prior to and independently of legal recognition. It is presumably a human right since it is thought to be possessed equally by all human beings simply in virtue of their being human. Put simply and unqualifiedly as the right not to be killed or allowed to die, it is generally thought not to be an absolute right, since there are circumstances in which some human beings--soldiers, convicted murderers, homicidal aggressors--seem to be without it. Many philosophers, however, have tried by one method or another to isolate something that subsists through all the circumstances in which a human being with a right to life might find himself. Some locate the invariant element in a standing presumption of a right (a "prima facie right") or a constant but rebuttable claim to life. Others interpret the right to life in the bare minimal formulation given here as a mere abbreviation for a complex statement full of conditions and exceptions that does define an absolute right. Still others point out that in difficult circumstances some very basic rights can be infringed without being violated, and while this shows that they are not "absolute" in one sense (Thomson's), it is a way of showing the persistence of the right in some situations that might otherwise be thought to be inconsistent with its absoluteness in our present sense of context-invariance.
10 Thomson, "Self-defense and Rights."
11 Ibid.
HO Joel Feinberg on the Famous Cabin Example
Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” Philosophy & Public Affairs 7 (Winter, 1978), pp. 93-123
At this point, it will be useful to borrow Judith Thomson's distinction between infringing and violating a person's right: ". . . we violate his right if and only if we do not merely infringe it, but more, are [102] acting wrongly, unjustly, in doing so. Now the view that rights are 'absolute' in the sense I have in mind is the view that every infringing of a right is a violating of a right."16 We can readily provide examples of rights that are not absolute in Thomson's sense. Perhaps the most plausible of these are property rights. Suppose that you are on a back-packing trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else's private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor's food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.
It will be argued, on the other side, that you have not infringed anyone's actual rights that were fully operative in the circumstances but only prima facie rights, the overturned presumption of rights, or inconclusive claims. It will be said, perhaps, that the undeniable right of the homeowner, when fully specified, excludes emergency circumstances such as the ones that obtained, and thus he can have no grievance or counterclaim against you. It is, of course, possible to say these things, but only at the cost of rejecting the way most of us actually understand the rights in question. We would not think it inappropriate to express our gratitude to the homeowner, after the fact, and our regrets for the damage we have inflicted on his property. More importantly, almost everyone would agree that you owe compensation to the homeowner for the depletion of his larder, the breaking of his window, and the destruction of his furniture. One owes compensation here for the same reason one must repay a debt or return what one has borrowed. If the other had no right that was infringed in the first place, one could hardly have a duty to compensate him. Perhaps he would be an appropriate object of your sympathy or patronage or charity, but those are quite different from compensation. This is a case, then, of the infringement but not the violation of a property right.
[103] Not every case of justified killing infringes the victim's right to life. We may still have to resort
to resort to the presumptiveness strategy or the full specification strategy to explain why we do not infringe the victim's right to life in war killing, capital punishment, or self-defense. The other's right to life may not extend as far as these cases of justified killing and hence may not be involved at all Surely, we acknowledge no duty of compensation to the heirs of an aggressor whom we killed in self-defense. On the other hand, there are some rare cases, as Thomson points out, of justified killing of innocents whose rights to life are thereby infringed--"If you are an innocent threat to my life (you threaten it through no fault of your own), and I can save my life only by killing you, and therefore do kill you, I think I do owe compensation, for I take your life to save mine."" One of Thomson's examples of an innocent threat is an "innocent shield," a child tied to the front of a tank driven by a malevolent aggressor whose intent is clearly to destroy me. There is no place for me to hide, but I happen to have an antitank gun, so to save my own life I blow up the tank, killing both the wicked aggressor and the innocent child. Self-defense presumably justifies me, and I have no duty afterwards to compensate the aggressor, but the child's right has been infringed, and I would have a strong obligation to set things straight somehow with her parents. In her case, I have infringed a right to life without violating it, so her right to life was not "absolute" in Thomson's sense, but the example does not show that her right was not absolute in our original sense, for the right continued to exist even in the circumstance where it was justifiably infringed. The "absolute" element in the aggressor's general right to life, however, if there is such a thing at all, must be demonstrated by one of the first two methods.
We may now tentatively conclude that by "the right to life" we can mean a right not to be killed or allowed to die which can be claimed against all other private individuals and groups for their forbearance and performance, and against the state for its enforcement. As a claim-right it signifies not merely the absence of a duty to cooperate in one's own death, but also the correlative duties of others toward one. It is a moral right in the sense that it is a claim rendered valid subject to [104] reasons derived from moral principle, and therefore can exist prior to and independently of legal recognition. It is presumably a human right since it is thought to be possessed equally by all human beings simply in virtue of their being human. Put simply and unqualifiedly as the right not to be killed or allowed to die, it is generally thought not to be an absolute right, since there are circumstances in which some human beings--soldiers, convicted murderers, homicidal aggressors--seem to be without it. Many philosophers, however, have tried by one method or another to isolate something that subsists through all the circumstances in which a human being with a right to life might find himself. Some locate the invariant element in a standing presumption of a right (a "prima facie right") or a constant but rebuttable claim to life. Others interpret the right to life in the bare minimal formulation given here as a mere abbreviation for a complex statement full of conditions and exceptions that does define an absolute right. Still others point out that in difficult circumstances some very basic rights can be infringed without being violated, and while this shows that they are not "absolute" in one sense (Thomson's), it is a way of showing the persistence of the right in some situations that might otherwise be thought to be inconsistent with its absoluteness in our present sense of context-invariance.
10 Thomson, "Self-defense and Rights."
11 Ibid.
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