Conflicts of Rights and Action‐Guidingness

• Published date: 01 June 2023
• Author: Cristián Rettig,Giulio Fornaroli
• Date: 01 June 2023
• DOI: http://doi.org/10.1111/raju.12374

© 2023 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 36 No. 2 June (136–152)

Conflicts of Rights

and Action- Guidingness

CRISTIÁN RETTIG and GIULIO FORNAROLI*

Abstract. In this paper, we raise two points. First, any rights- based theory should provide a

method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is

that these theories must provide guidance on what should be done. Second, this method must

contain two key recommendations: (1) We should try to find a deliberative mechanism through

which none of the rights is simply eliminated from the scene; (2) these rights may be balanced

against each other to define which right should prevail, but without considering non- rights-

interests as if they were rights in the process. These recommendations instantiate two crucial

principles that underlie our common intuitions on rights, namely, the principle that rights de-

serve equal respect and the principle that rights should be taken seriously.

1. Introduction

Consider standard conflicts of rights such as the right to socioeconomic goods versus

the right to property, a patient’s right to health versus a doctor’s right to religious

freedom, and the right to public protest versus the right to freedom of movement of

citizens. If we assume Rawls’s intuitive idea that we need an “explicit method”1 to

address conflicts of first- order principles (Rawls1999, 30), it is not difficult to note

that there is an important gap in the philosophical literature: At least those rights-

based theories that assume the pro- tanto conception of rights or, in other words,

accept that rights- based obligations can be sometimes infringed when they conflict

with other rights, should provide a decision- making procedure to address these con-

flicts among normative requirements. Yet most such theories merely focus on

1 From our interpretation, any method formulates a well- ordered set of recommendations that

guide (but do not replace) reasoning. We shall return to this later.

*An early draft of this paper was presented at the seminar entitled Razón Práctica y Normatividad,

held in 2022 at Universidad Adolfo Ibañez. We thank all participants for their extremely valu-

able feedback. Special thanks to both anonymous reviewers for their very useful comments.

This article is an outcome of a national grant of the Chilean ANID, Project Fondecyt 11230361,

and it is a result of a grant of the Polish National Science Centre under the programme

POLONEZ BIS 2 No. UMO- 2022/45/P/HS1/04224.

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Ratio Juris, Vol. 36, No. 2 © 2023 University of Bologna and John Wiley & Sons Ltd.

Conflicts of Rights and Action- Guidingness

traditional questions about the nature, function, and justification of rights without

offering much guidance about what happens when rights conflict.2

In this paper, we contribute to reverting this tendency by making two related

points. First, we argue that if the so- called pro- tanto approach to rights is true

(Frederick2014; Simmons 1979; Smet2017; Thomson 1990; Zimmerman1996), any

rights- based theory should provide a (nonalgorithmic) method to guide reasoning in

addressing conflicts of rights. The reason, we argue, is that such theories must pro-

vide practical guidance within their normative scope and, therefore, they cannot ab-

stain from providing, in Rawls’s terms, “substantial assistance” on how to address

these conflicts. Second, we argue that this method should (at least) offer two recom-

mendations: (i) It should recommend finding a deliberative mechanism through

which none of the rights is simply “eliminated from the scene,” and (ii) it should also

recommend balancing rights against each other to specify (if possible)3 which right

should prevail over the other in certain circumstances, but without considering, as

some authors do (Beatty2004; Klatt2021; Möller2012), non- rights- interests as if they

were rights in the process. As will be shown, these recommendations instantiate the

intuitive principles that rights deserve equal respect, and that rights should be taken

seriously.

This paper proceeds as follows. In Section 2, we argue that rights- based theories

should provide orientation on what to do. In Section 3, we hold that any rights- based

theory must provide a nonalgorithmic method that guides reasoning in addressing

conflicts of rights. In Section 4, we elaborate on the key methodological recommen-

dations summarised above, and address possible concerns about how balancing

should proceed. Finally, we conclude by emphasising the substantive implication of

our account.

2. Rights- Based Theories Should Be Action- Guiding

As is widely accepted, a theory, principle, or set of principles is action- guiding only if

it provides orientation on what to do (Albertzart2014; O’Neill1996; Raz1999). For in-

stance, consider one of the examples offered by Bernard Williams (1973). George (Ph.D.

2 For evidence of how current rights- based theories are often silent on methods for addressing

rights conflicts consider, for example, that Beitz(2009, 117) assumes that human rights provide

“pro tanto” reasons for action and believes that an account of human rights should be “action-

guiding” (ibid., 119), but his account is silent on how to address conflicts of rights. For an anal-

ysis of this gap, see Rettig2021. Griffin (2008, 68) holds that there are “right- right conflicts,”

noting that any rights- based theory should say something substantive about rights in conflict

(ibid., 57), but his account does not provide any clear method by which to address them.

Kamm(2007) provides a detailed taxonomy of conflicts of rights, but she does not provide any

explicit method for addressing these conflicts. The same goes for Gilbert(2018), as well as for

Cruft(2019, 124), who accepts that rights- correlated duties are “justifiably infringeable” but

does not offer practical guidance in deciding when such duties can be legitimately infringed. It

should be noted that in this paper we are talking about normative (i.e., substantive) theories of

rights. Certainly, a theory of rights can be only conceptual, as with Hohfeld’s(1919) theory, but

this article is focused on substantive theories that specify the rights individuals have, as well as

with the justification and function of these rights.

3 Following Raz(1999, 26), we do not assume that all possible conflicts of pro- tanto reasons can

be solved. Furthermore, as will be clarified later, we do not assume that balancing should pro-

ceed by considering values as if they were fully commensurable.