Research project Towards a Risk-sensitive Account of Moral Rights

Purpose and Aim
Theories of moral rights need to accommodate facts about risk. Risks are abundant in everyday life. People are exposed to risks of harm and people take risks of being harmed. For example, people drive cars even though they thereby expose others to risks of harm. Do people have rights against being exposed to such harm? Also, people sometimes take risks of becoming victims of wrongful harm. For example, they leave their bikes unlocked risking it being stolen. Do they have strong rights against harm even when they voluntarily expose themselves to risks of this harm? These questions are of philosophical as well as practical relevance. In order to give meaningful moral guidance on the permissibility of actions, rights theories need to account for situations of risks of harm.

The aim of this research project is to offer a risk-sensitive account of moral rights that explains whether, how and why the strength of rights is sensitive to risks of harm. My research provides answers to the following questions:

Question 1: Do we have rights against risks of harm?

Question 2: How do we determine the stringency of rights against risks of harm?

Question 3: If we voluntarily expose ourselves to risks of harm, is the stringency of our rights against that harm weakened?

These questions have received comparatively little attention within moral philosophy. Among the scholars who addressed questions about rights and risks, many are skeptical that Question 1 can be answered in the affirmative and so there have been few attempts to answer Question 2 and Question 3.

In order to answer those questions, I aim to develop a risk-sensitive account of moral rights. My working hypothesis is that we can develop such an account by defending the following assumptions: First, the stringency of rights is sensitive to an individual’s valuation of the good protected by the right. I argue that we should care about individual’s subjective valuation of the good that is protected by the right. Second, risk-attitudes are informative about individuals’ valuations of the good protected by the right. Therefore, the stringency of rights changes depending on an agent’s attitude to risk. Using attitudes towards risk as a proxy for the individual’s valuation of the good protected by the right can help us to determine and compare the stringency of rights against risks of harm.

In my research I argue that this yields a risk-sensitive account of rights that improves on its contenders of which there are few to start with.

State of the Art
Ethics of risk is a comparatively new research area within moral philosophy (Hayenhjelm/Wolff, 2011: 29). Robert Nozick was the first to discuss the role of risk in moral rights theories. Nozick argues that “actions that risk crossing another’s boundary pose serious problems for a naturalrights position” (Nozick, 1974: 75). The challenges derive from the fact that rights in his view are absolute and cannot permissibly be infringed but also from the fact that he takes rights against risk to be just as strong as the right against the harm that is risked. Rights correspond to other agent’s duties to abstain from or perform certain acts. Since most actions carry a risk of harm to another, we would be under a duty not to perform a wide range of actions. Rights against risks of harm would inevitably lead to paralysis. Neither of the two solutions he discusses – allowing risk imposition and compensate for eventual rights violations or banning all risky actions - is entirely satisfactory. His skepticism is shared by other rights theorists. Judith Jarvis Thomson argues that in order to avoid the problem of paralysis we would have to set a threshold between risks that would violate rights and risks that would not violate rights. Such a threshold would be vague and accepting rights against risk would lead to a problematic proliferation of rights (Thomson, 1990: 243-246). Peter Railton also takes the argument of paralysis to be speaking against a right against risks (Railton, 2003: 206-207). Dennis McKerlie concludes that “the rights view cannot handle risk in a satisfactory way” (McKerlie, 1986: 239).

Since rights theories are concerned with individuals and their claims, they would recommend to spread the risk thinly so that no one individual in particular is under a risk substantial enough to give rise to a right against the risk imposition (McKerlie, 1986: 248). This problem could only be solved by assigning rights to groups which is at odds with the individualism of moral rights theories (McKerlie, 1986: 249).

Although the topic of risk has seen a surge in interest recently, the currently dominant approach to the ethics of risk within moral philosophy sidesteps questions of rights. Most of the recent work has dealt with the topic of risk from within a (Scanlonian) contractarian framework. The permissibility of risk imposition depends on whether the affected agents could reasonably reject the risk imposition (see for example: Frick, 2015; Kumar, 2015) Even those who do not
explicitly follow Scanlon’s contractarianism, focus on the permissibility of risk imposition without explaining whether the affected agents have rights against the risks (Tenenbaum, 2017) or how strong those rights are (notable exception is Lazar, 2017). Such approaches are useful since they can provide guidance on permissible and impermissible actions. However, we cannot do away with rights entirely. For example, we need to know whether an agent has rights against risks of harms or certain harm, in order to determine whether the agent may self-defend against a threatened rights infringement or can claim compensation. Both the right to selfdefence and the right to compensation are grounded in an initial right not to have one’s rights violated. Dealing with risk only in terms of permissibility would neglect those important issues. We cannot read rights off the permissibility of an action, since an action might be permissible even though an agent has a right that this action not be performed or it could be permissible because the agent does not have a right against the action.

But such pessimism about the possibility of a risk-sensitive account of moral rights is unwarranted. Michael Zimmerman and David McCarthy defend a risk-sensitive account of rights that takes the right against a risk of harm to derive from the harm that could eventuate. The strength of the right is a function of the magnitude of harm discounted by the probability of the harm occurring. Zimmerman considers Thomson’s arguments unpersuasive. He defends the claim that we have claims that others do not impose risks of harm on us. Another proponent of such a view is McCarthy who not only accepts that agents have rights against risks of harm but also explains how we can determine the stringency of rights against harm. He defends the view that the stringency of rights is determined by the disvalue of harm discounted by the probability that this harm will occur (McCarthy, 1997: 210-211). This avoids the problem of paralysis since less stringent rights can be permissibly infringed when they conflict with substantially more important goals or more stringent rights. This account has received little attention. Undeservedly so, as I want to show with my own research. While my own proposal for a risk-sensitive account of rights differs from theirs – in ways I’ll explain below – it shares their optimism about the possibility of defending rights against risk and offers a way to determine the stringency of such rights.

Recently, alternative approaches to rights against risks have emerged. These approaches treat the right against risk as independent of any eventual harm. They suggest that risk constitutes a harm in itself. Claire Finkelstein argues that exposing others to risks wrongs agents because it diminishes their welfare (Finkelstein, 2003). John Oberdiek argues that agents have rights against risks because being exposed narrows their option set and thereby their autonomy (Oberdiek, 2009). While these accounts answer Question 1, it is not clear how such an account answers Question 2 – how we determine the stringency of rights against risks. Once we turn to this question, we are faced again with the two options we encountered previously. One might think that the right against risk is just as strong as our ordinary rights to autonomy or wellbeing not taking into account different degrees of risk. This would again lead to paralysis. To avoid this, one could suggest that rights against risk come in different degrees, for example, following Zimmerman’s and McCarthy’s proposal. Thus, Oberdiek and Finkelstein’s proposal might ground the right against risk in a different good, but when it comes to explaining the sensitivity of rights to degrees of risk their accounts are unlikely to differ much from accounts that make rights against risk of harm derivative of rights against the eventual harm.

Since Zimmerman’s and McCarthy’s proposal are the most promising accounts so far, I will take them as my starting point. I agree with them that the stringency of rights is sensitive to risk. However, I explain that their proposal has problems and offer an alternative explanation. The problem with their account, so I will argue, is that it does not take seriously the idea that rights protect fundamental interests of the rights-bearers. The proposal does not consider
people’s interests in not being exposed to risk, that is, it does not take into account people’s actual attitudes towards risk. A person’s attitude towards risk might differ widely from the objective standard that Zimmerman and McCarthy propose for determining the stringency of rights. I will therefore develop an alternative risk-sensitive account of rights that avoids the problems but provides answers to the three guiding questions.

Another issue that has been widely neglected in the context of risk and rights is the question of whether agents who take a higher risk of suffering harm have a weaker right against that harm than agents who avoided the higher risk. The focus has almost exclusively been on the exposure to risk, whereas the assumption of risk is often mentioned, if at all, only in passing. Examples here are Judith Jarvis Thomson (1986), Adil Haque (2017), Kai Draper (2016) and Seth Lazar (2015). Lazar, Haque and Draper all defend the idea that risk-takers have less stringent rights against harm than non-risk-takers. Thomson argues that this cannot be explained by the fact that risk-taking means consenting (Thomson, 1986: 189-190) which leaves it open that there are other explanations. But in all cases the discussions are brief and treated as a side issue.

Significance and Scientific Novelty
Within moral philosophy deontological theories premised on people’s rights continue to be among the main contenders when it comes to explaining what actions are permissible, required or prohibited. Beyond philosophy, moral rights, often in the guise of human rights, play an important role in the justification of institutions, laws and policies and rights are appealed to when these institutions, laws and policies are unjust. This central place would be challenged if moral rights theories are unable to handle rights against risks of harm. Risks of harm are omnipresent in everyday life but traditionally moral rights theorists have engaged only with rights against harms that are certain to occur. Thus, the plausibility of moral rights theories hinges on their ability to handle situations of risk and uncertainty.

In terms of novelty, my project contributes to the ethics of risk within moral philosophy which is itself a relatively new research area. In fact, Madeleine Hayenhjelm and Jonathan Wolff note as late as 2011 that “the topic of risk in moral philosophy did not take hold to any great extent as a topic in its own right” (Hayenhjelm/Wolff, 2011: 29). This has changed over the last decade with a substantial amount of work being done on the ethics of risk imposition. The topic has, however, been largely approached from a (Scanlonian) contractarian perspective (see Ashford, 2003; Kumar, 2015; Frick, 2015) thereby sidestepping questions about rights and risks. With my proposal I want to bring rights back into the debate and expand on the view attempts to integrate risk into moral rights theory.

The research project contributes to a nascent research field. My account is novel insofar as it builds on interest-based theories of rights. Existing risk-sensitive accounts of rights have not explicitly built their accounts on any particular theory of moral rights. However, it seems crucial that if we want to determine whether we have rights against risk and what the stringency of those rights is, we should explicitly draw on the theories of moral rights that explain such facts
about rights. The interest theory of rights is one of the most well-defended theory of moral rights. It takes the function of rights to be the protection of fundamental human interests. I argue that taking fundamental human interests seriously calls for an individualist approach: The strength of a right is not generic but varies from individual to individual depending on the strength of their interest in the good protected by the right. I also argue that taking interests seriously means that we should consider people’s actual choices under risk rather than the choices they should make under risk. These choice or attitudes track the strength of the agent’s interest in the good protected by the right.

My research contributes to the interest theory of rights according to which rights protect important human interests. I explore whether this theory allows for variations in the strength of rights across individuals. Hitherto, it is commonly assumed that the strength of a right is determined by the generic strength of the interest rather than the strength of the individual right holder’s interest. Further, I want to explore whether we can incorporate descriptive theories of decision making into a risk-sensitive account of rights. This is a departure from the more common approach that uses expected utility theory which explains how people should choose given certain preferences but not how they actually decide under risk. Another novelty is the research treatment of the assumption of risk alongside the exposure to risk.

Preliminary and Previous Results
During my doctoral studies and postdoctoral assignment, I specialized in the ethics of war and self-defence as well as moral rights theory. Part of my doctoral research has dealt with rights and the assumption of risk. In my article “Provocateurs and their Rights to Self-defence” (Hecht, 2019a) I argue against Kimberley Ferzan who argues that provocateurs whose provocation leads to a violent response lack rights to self-defence because they foreseeably risked
becoming victim of that harm. I argue that risk-taking is not the right explanation for loss of the provocateur’s defensive rights. In a review of Seth Lazar’s book Sparing Civilians I focus on Lazar’s claim that harming risk-takers is less wrongful than harming those who tried to avoid the harm. I raise doubts about the explanation Lazar provides in support of his claim (Hecht, 2017). In an article of my PhD thesis (Hecht, 2019b) I discuss the claim that taking a risk of suffering a wrongful harm weakens the stringency of the risk-taker’s rights against harm. Several other scholars in addition to Lazar defend this claim. I argue that accepting the truth of this claim has problematic implications and that the explanations provided so far do not support the claim.

In my previous work, I have thus identified two main problems which I want to address in further research. First, despite widespread intuitions and attempts to explain how risk-taking affects the stringency of the risk-taker’s rights against harm, we do not yet have a plausible explanation for the risk-sensitivity of rights in the context of risk-taking. Second, a risk-sensitive account of moral rights will have problematic implications and if we want to defend such an
account we have to deal with those implications. My future research will take up both these issues. I will explore whether we can give a plausible risk-sensitive account of rights and how we can deal with challenges. Further, my proposed research project will expand beyond the problem of risk-taking and focus to a large part on the problem of risk imposition. Given my previous work, I am ideally suited to carry out this project.

Project Description
The aim of my project is to develop a risk-sensitive account of moral rights. In doing so, the research will explain how the stringency of rights is sensitive to risk of harm. I take risk to refer both to cases with known probabilities for different outcomes and cases where the outcomes but not their probabilities are known, which is sometimes referred to as choice under uncertainty (Hayenhjelm/Wolff, 2011: 30). The stringency of a right indicates “(1) how much good overall that could otherwise be produced is needed to override [a right], and (2) how much personal good an agent must sacrifice to fulfill the duties associated with the right” (Kamm, 2006: 249). What I am interested in is whether risk changes the amount of good that needs to be produced to override a right and whether it changes the amount of good one has to sacrifice in order to fulfill the duties associated with the right.

I develop a risk-sensitive account of rights by defending the following assumptions: First, the stringency of rights is sensitive to an individual’s valuation of the good protected by the right. I argue that if we take the interest theory of rights seriously, we should care about individual’s subjective valuation (strength of the interest) of the good that is protected by the right (to be argued for in paper 1). Once we accept this we will see that the few existing proposals of risksensitive rights are wrong to make the stringency of rights against risk sensitive to the objective expected disvalue of harm. What matters is how the individual values the good protected by the right (to be argued in paper 2).

Second, risk-attitudes are informative about individuals’ valuations of the good protected by the right (to be argued for in paper 3). Therefore, the stringency of rights changes depending on an agent’s attitude to risk. Using attitudes towards risk as a proxy for the individual’s valuation of the good protected by the right can help us to determine and compare the stringency of rights against risks of harm (paper 4). This has implications for both the risk-takers who assume risks of harm and those who are exposed to risks. We can determine the strength of their right against the risk of harm by appeal to their attitudes towards risk which in turn tracks their valuation of the good protected by the right (paper 5).

The account will then answer Question 1-3 from the introduction in the following way (paper 5): 1) People do have rights against risks of harm if they value the good protected by the right. 2) The stringency of the right against risks of harm is determined by the agent’s valuation of the good protected by the right which in turn is tracked by the agent’s attitude to risk. 3) Those who assume risks of harm value the good protected by the right less and therefore have less
stringent rights against harm than non-risk-takers. I critically discuss potential problems with this answer to question 3 (in paper 6). In order to explore whether this is indeed a defensible account of the risk-sensitivity of rights, the  esearch can be broken down into several separate research questions each of which is of interest in its own right. The articles are outlined below.

Paper 1: Is the Stringency of Rights Sensitive to the Strength of the Right-Holder’s
Subjective Interest?
This is the first main step in the development of a risk-sensitive account of rights. I explore the proposal that the stringency of rights is sensitive to subjective valuation of the good protected by the right. In other words, they are sensitive to the strength of an agent’s interest in the good. On the interest theory of rights, one of the dominant theories of rights, rights protect important interests of agents (Raz, 1987). The stringency of rights is taken to be grounded in generic features of persons and rights protect their interests as individuals with certain characteristics. Thus, the stringency of rights is immune to variations across individuals (Raz, 1984: 208; Kamm, 2006: 247). Thomson proposes but does not defend the view that the stringency of a right varies with the degree to which an agent values the good protected by the right (Thomson, 1977: 55). I explore whether a defence of Thomson’s view is possible and offer a refinement of the view. For example, I will consider whether we can allow unreasonable, irrational or immoral valuations of certain goods to affect the stringency of rights or whether excluding such valuations collapses the view into an objective notion. One objection to such a view is that the result would be an impracticable account of rights for we cannot know about the strength of agents’ interests. Another objection is that even trivial goods could be protected by strong rights if the agent has a strong interest in those trivial goods. I will address these objections.
Paper 2: Is it right to focus on Expected Disvalue of Risk?
This is a critique of existing risk-sensitive accounts of rights, in particular of the approach taken by Zimmerman and McCarthy who take the stringency of rights to be a function of the magnitude of harm discounted by the probability of that harm occurring (McCarthy, 1997: 210). I show that if we want to take seriously individuals’ interests – as argued in paper 1 – we cannot rely on such an account. Making the stringency of rights against risk a function of the expected disvalue does not adequately take into account individuals’ actual interests. For example, it does not accommodate risk-aversion. An agent might be averse to a risky option even though it has higher expected objective value for the agent. We should therefore reject theories that make the stringency of rights sensitive to expected value. This also speaks against many proposals for dealing with the permissibility of risk-imposition which are developed within a
Scanlonian contractarian framework (Frick, 2015). Scholars take the expected disvalue of harm as a basis for discussing whether an agent can reasonably reject a principle that allows a risky action. Taking seriously the complaint of agents against the imposition of risk would mean that we do not assess the strength of the complaint merely by expected disvalue but also allows for risk aversion. I discuss whether we should allow for a more subjective evaluation
of the expected outcome which suitably reflects individuals’ interest.
Paper 3: Do choices under Risk track an agent’s valuation of goods?
Can we infer from an agent’s choice under risk how she subjectively values goods that are at stake in the outcomes? This is the second main step in the development of a risk-sensitive account of rights. It is widely argued that one cannot draw straightforward inferences from riskattitudes to agent’s preferences (e.g. Kahnemann/Tversky, 1979). I will explore whether a recent proposal by Stefansson and Bradley (2019) could allow to draw some inferences from an agent’s choice under risk to how she values the goods at stake in the different possible outcomes. Stefansson and Bradley argue that risk-attitudes are themselves desires about how the agent wants the world to be. But rather than reflecting desires about the goods at stake, attitudes towards risk reflect desires about the distribution of chances of those goods. A riskseeking agent is someone who accepts a higher variability of outcomes. I consider whether we can infer from preferences for certain chance distributions how important it is for an agent to have the good protected by the right. On the one hand, risk-seeking behaviour seems to reflect lower valuation of the good at stake because the agent is willing to accept an outcome in which they end up without the good - think of someone who is risking to get mugged in a dodgy neighbourhood. On the other hand, one could think that a risk-seeking agent values the good more because she takes risks in order to maximize the good - think of protesters in an oppressive regime who risk their freedom in order to gain more freedom.
Paper 4: How can we measure and compare the strength of individuals’ interests
protected by rights?
To answer this question, I draw on a proposal made by Robert Nozick. Nozick argues that when consent is impossible to obtain it can at times be permissible to infringe an agent’s rights provided compensation is paid. The appropriate amount of compensation is determined by the agent’s indifference curve. Thus, we have to determine for which amount of compensation the agent would be accepting the crossing of her boundaries (Nozick, 1976: 63). I explore whether we can employ a similar idea in order to determine the stringency of an agent’s rights against risk or the permissibility of risk imposition. At what point would an agent be indifferent between the risky option together with compensation and the safe option? The amount of compensation demanded is informative about the strength of the interest the agent has in the good and in turn the strength of the right the agent has. In contrast to Nozick, I am not claiming that compensation makes the infringement permissible rather I take an agent’s indifference point as an indicator of the strength of the agent’s interest in having the right protected.
Paper 5: A Risk-sensitive account of moral rights
In this paper, I draw together the conclusions, present a risk-sensitive account of moral rights and address objections. My account suggests that if the stringency of rights is sensitive to an individual’s valuation of the good protected by the right (argued for in paper 1) and if riskattitudes are informative about individuals’ valuations (argued for in paper 3), then the stringency of rights changes depending on an agent’s attitudes to risk. My account will have the following implications for risk-taking and imposition of risk: In the context of risk-taking, we find that a risk-taker has less stringent rights to the good she puts at risk than someone who avoided the risk. In the context of imposition of risk, we find that an agent’s indifference point helps us determine how strong her interests against being exposed to a risk are. This in turn helps us determine the stringency of her rights against the imposition of risk. Having presented the account, I will address what in the course of my research will turn out to be the strongest objections to the account. For example, it might be objected that an account that systematically disadvantages risk-seeking agents is unfair. Another objection is that it wrongly focuses on how agents actually do decide in risky situations but what we should focus on is how they should decide in risky situations. I will also compare the account with the alternative accounts of risk-sensitive rights.
Paper 6: Problems with the risk-sensitivity of rights in the context of risk-taking
Admittedly, the account has some problematic implications especially when it comes to the assumption of risk. For example, someone who takes a risk of suffering a wrong will have less stringent rights than someone who avoided the higher risk. In practice this means that it is easier to justify harming the risk-taker. Many will object to this result for it seems to hold victims responsible for the harm that befalls them. I argue that this is not a reason to reject the risk-sensitive account of rights that I presented. If the account correctly describes the nature of rights it should not be dismissed because it has problematic consequences in some instances. Instead I suggest that sometimes we should not, all-things-considered, treat risk-takers differently from non-risk-takers. The reason for this is that we should try to resist wrongdoers as best as we can. On occasion this might mean we should treat risk-takers and non-risktakers alike, for example by taking on just as much costs to save the risk-taker as we take on in order to save the non-risk-taker.

Methodology
My research is within normative ethics whose aim it is to determine what ought to be done. I will employ conceptual analysis and reflective equilibrium as the two main methods in my research. Conceptual analysis serves to define a particular object or property by determining the sufficient and necessary conditions. In order to ensure the appropriate use and characterization of concepts, I can rely on several, commonly accepted desiderata such as the concept’s alignment with intuitions, whether it stands in the right relationship to other concepts, whether it plays the right normative, evaluative and descriptive role and whether the necessary and sufficient conditions are neither too many nor too few to make the concept useful (List/Valentini, 2016: 532-534)

I will also employ the method of the reflective equilibrium which is commonly used in political and moral philosophy. The reflective equilibrium aims at a coherentist justification of the principles that we endorse. It seeks to bring our beliefs and principles into an equilibrium. We start out with some beliefs about a certain domain – these can be elicited with the help of thought experiments or beliefs about the actual world. Now the principle is again tested against beliefs we hold. It might turn out that the principle is too broad or too narrow to capture all our beliefs about certain cases. We have to refine the principle or give up certain beliefs. By moving back and forth between principles and beliefs we will eventually arrive at an equilibrium. Once we reached the equilibrium we have a solid justification of the principles and theories we should endorse (List/Valentini, 2016: 541-542).

Results
I aim to write six drafts of research articles and submit them to high-ranking, peer-reviewed journals. Suitable journals for the articles are the Journal of Moral Philosophy, the Journal of Political Philosophy, the Australasian Journal of Philosophy, the Canadian Journal of Philosophy, the Journal of Ethics, Ethical Theory and Moral Practice and the Journal of Applied Philosophy. I also plan to submit my work to relevant conferences and workshops such as the conference of the Society for Applied Philosophy, the Braga Meetings, the meetings of the Aristotelian Society and the British Society for Ethical Theory. I will use the articles as a basis for a book project on the risk-sensitivity of rights.

Project managers

Lisa Hecht

Postdoc

Department of Philosophy

lisa.hecht@philosophy.su.se

See profile page for Lisa Hecht