Harm and the Right Not to be Harmed
Cara Kent Gillis
We all agree that harm is bad, but what does this mean?1 On the face of
it, it seems to mean that harm should be avoided; but there is a more
complicated story to tell then mere avoidance. I want to give a complete account
of harm by focusing on two different sides of this story: The first side explains
what harm is, which types of harm are more significant than others, and what it
means to experience harm. The main argument that will emerge from this aspect
is that subjectively experienced harm carries the most amount of significance.
The second side addresses how the significance of certain types of harm is so
great that it essentially generates a moral right not to be harmed, with all the
correlative duty components. There are several arguments that emerge from this
second side. One is that a being’s status as harmable2 generates a general
claim right that the being not be harmed. Another is that, given the special
nature of harm, this general claim right is charged against all relevant individuals
without the need for contracting to justify the right. The final argument focuses
on the nature of the duties that are necessarily correlative in order to make sense
of the right not to be harmed. Because the nature of the right not to be harmed is
not as straightforward as the nature of, for example, the right to sustenance, the
correlative duties may be exceedingly complex; however, while in some ways
this may place more of a burden on the duty-bearer in the harm case, it in no way
detracts from the significance of the duty.
Introduction
Imagine three things, a painting, a dog, and an adult human being, each being slashed
with a knife. What, if anything, captures the wrongness of that action? One intuition is that
slashing the three objects is wrong, albeit to varying degrees, because it harms them. Many
may find this contentious: can we really say that the painting has been harmed? Is it not more
appropriate to say that is has been damaged? Although it seems wrong to damage the
painting, it seems worse to slash the dog, and many may say even worse yet to slash the
human. One account that captures these intuitions is that the wrongness of the harm is, in part,
1
One may argue that there is an unintentional ambiguity here; however, I see this ambiguity as a
illuminating two points of interest within the discourse of harm. The first point deals with the apparent fact
that there is a general universal consensus that, however it is construed, harm is bad. The second point
addresses the issue of what features are specific to harm such that harm is bad in itself.
2
I will use ‘harmable’ as a placeholder for ‘capable of experiencing harm in a morally significant way.’
determined by a being’s ability to experience it. Under such an account, the morally significant
aspect of harm is the subjective experience of it and it is questionable whether instances that
we refer to as objective harm are not more accurately classified as damage. In light of this, if
we think that the dog is in some way less conscious or less aware than the human is, such that
it, like the painting, cannot experience the harm, then it is less reprehensible to slash the dog
than the human.3 We also may have the intuition that because the human (and arguably the
dog) can experience the harm, she at least has a right not to be harmed. While the painting
obviously has no such right, the human clearly does, and the dog (depending on what it means
to have a conscious experience of harm) may as well. These intuitive judgments suggest that
the capacity to experience harm is morally significant in such a way that it generates a right. In
what follows, I want to examine the natures of harm and the right not to be harmed; I will argue
that beings that can experience harm have a moral status that grants them at least the right not
to be harmed.
The main point of my argument can expressed as follows:
x has the ability to experience harm x has moral status  x has rights-bearing status
This point is motivated by a central assumption: the best way to make sense of moral
status/significance/considerability is by making it a sufficient (although not exclusive) criterion
for rights-bearing status. If being morally significant amounts to anything at all, then it at least
amounts to the possession of rights (at minimum the possession of one right).4 One very
compelling way, although certainly not the only way, that a being (x) can have moral status is by
x’s possessing the capacity to experience harm (what I will eventually call ConsciousnessM: the
ability to have a relevantly conscious experience of harm). To ground the moral significance of
x’s ability to experience harm I will rely on the common intuition that harm is bad, and that the
3
Note that the dog and the human need not be exactly similar in their consciousness for their
experiences to be morally significant; rather, they need only be similar in their ability to have a conscious
experience of harm.
4 A weaker, but perhaps more acceptable formulation of my claim is that rights are merely one of many
ways, although potentially the best way to capture what is required by moral significance.
badness of harm in some way, which I hope to clarify, makes the experience of harm morally
significant.
Although the intuition that harm is bad is obvious, a complete account of the right not to
be harmed requires an explanation for the intuition. This explanation needs to take in to
consideration that the experience of harm, which seems to focus on the subjective aspect of
harm, is not the only account of why harm is bad. Objective harm, the harm a being can incur
without consciously experiencing it, is also bad. Although the distinction between the fact and
significance of objective and subjective harm needs to be explained, it should not cause tension
between my intuition that the experience of harm is morally significant and the common intuition
that objective harm is also morally significant (although perhaps not equally so). One potential
solution to this tension may be a re-characterization of objective harm as damage.
X’s status as morally considerable, in virtue of x’s ability to experience harm, generates
at least the general claim right that x has a right to not be harmed.5 My explanation of this aspect
of the argument will involve two separate discussions. The first will involve an argument for why
status-based approaches offer the best account of how and why beings have (or ought to have)
rights, especially when contrasted with the traditional alternative of an instrumentalist
justification.6 The second will involve a more detailed examination of the nature of rights,
particularly general claim rights in rem, and the correlativity between such rights and duties.7
5
Of course, although the primary focus of the argument seems to justify a right not to be subjectively
harmed, there are still independent reasons why beings ought not be objectively harmed. I will need to
consider how my theory can focus on the subjective aspect of harm without permitting or remaining
neutral on the issue of objective harm.
6
If it is the case that rights are natural, based on status, then a being the satisfies the requisite criteria for
such rights necessarily has them; however, as I hope to discuss, the possession of a right may not
amount to very much unless the right is recognized by others to the extent that they bear the correlative
duty.
7
Although I will develop this discussion much more in what follows, my current thought is that the best
way to make sense of this right is to argue that, apart from the general duty of non-interference that Hart
and others think emerges from general claim rights, any duty-bearer (y) has an obligation not to cause x
to experience any harm. Although this may limit the potential benefits of x’s right not to be harmed, the
correlative duty generated by this right is much more intuitive and bearable.
To summarize, I will consider the following claims:
1. Harm, especially subjective harm, is bad.
2. The experience of harm is morally significant.
3. x has the ability to experience harm x has moral status  x has rightsbearing status
4. A status-based justification for general claim rights in rem best capture what
is required by 3.
5. The claim right not to be harm has correlative duties without the need for
explicit contracting.
Claims 1, 2, and 4 and 5 will be dealt with in respective sections, while claim 3 will serve
as the unifying thesis for the entire project.
The Nature of Harm
To recap what I said in the introduction, my primary area of interest focuses on the moral
significance of the experience of harm and the right and obligations can be generated from this.
However, there are two further issues that I will also explore to provide a thorough
understanding of the nature of harm. The first issue is whether it is the fact that a being has the
ability to experience harm that is morally significant or the fact that the being is currently
experiencing some harm that it does not ‘want’ to be experiencing that is morally significant.
The second issue pertains to the objective and subjective natures of harm. A being is objectively
harmed when it is harmed in the physical sense.8 For example, much like a plant is harmed by
lack of water, so to is a human or animal. In the case of many at least minimally conscious
beings, objective harms often, but not always, lead to subjective harms: a harm that has “some
sort of impact upon the mental life of a subject.”9 Beings can be subjectively harmed causally
when something causes “a creature’s goals to be subjectively frustrated…or that in one way or
another cause a creature to suffer…” and beings can be subjectively harmed a-causally, by “the
mere fact that the things that [a being] desires don’t occur (as a matter of objective fact and
8
As I mentioned earlier, it may be the case that objective harm really amounts to instances of damage.
9
Carruthers, 2004a, 101.
independently of the animal’s beliefs)…”10 What is significant for our current purposes is that a
being can be harmed subjectively when its interests are frustrated or it experiences harm either
directly, as in the causal case, or indirectly, as in the a-causal case.11 Since the view I am
developing is one designed to strongly justify and potentially expand the sphere of moral
consideration and rights-bearing status, explaining a) the nature of the different types of harm,
and b) (in the section on Consciousness) how a being experiences the different types of harm
are both necessary.
On the face of it, the nature of harm seems quite simple and intuitive; this is misleading.
Although it may seem obvious that slashing the painting, the dog, and the human are acts of
harm, there are clearly different conceptions of harm at work. One way to further understand the
tension that may exist here is by considering another example. Imagine two individuals:
individual N is a normal human being and individual P is a paraplegic.12 Both are blind. On one
hand, it seems equally bad to slash the legs of N and P; however, on the other hand, there may
be the intuition that, although the slashing may be morally significant in both cases, it is worse in
N’s case because N can have some kind of significant experience of the harm. Upon initial
examination, it seems like this account tracks along the objective/subjective experience
distinction: both N and P have been objectively harmed in the sense that their legs have been
10
Carruthers, 2004a, 101.
11
This preliminary explanation of the nature of harm discussed for the purposes of this paper merely
scratches the surface of a very complex topic and glosses over many areas of debate. One such issue is
the potential problem of harmful desires and paternalism. A heroin addict may desire a shot of heroin, but
we may say that getting the shot is not in her interests. Therefore, although she perceives it to be
arguably both subjectively and objectively in her interest to satisfy her desire for a shot, we may, rightly
so, find that she is mistaken in her view about what is in her best interests. This issue of paternalism may
raise some problems for this account, and I hope to examine it further. Another issue seems natural to
mention now is this issue of causing harm in relation to rights. The rights claims that are generated in the
causal case of harm seem much stronger and more evident that the possibility of rights claims emerging
from a-causal cases. I will mention these issues more in the section on Rights, and in much greater detail
in the complete treatment of this topic.
I am relying on the colloquial understanding of “paraplegic”; the technical term for what I want to
capture is “lower body paraplegia with anesthesia” wherein the individual has no sensation in or function
of his lower extremities.
12
damaged, but N has experienced a much clearer case of subjective harm (especially if P is kept
ignorant of the slashing). This is not to say that slashing the legs of a paraplegic is morally
analogous to slashing a painting, but it may reflect the intuition that the experience of harm
(however that is qualified) is significant in determining what counts as harm and the moral
significance of harm.13
The example of N and P may be taken to indicate that the significance of harm is the
suffering that it causes; this is not necessarily the case. Breaking down this distinction begs the
question of what we consider suffering, which seems to lead to the answer that suffering is both
physical pain and/or psychological distress.14 The point I want to make here is to distinguish
pain from harm. To expand this distinction let us imagine a strict vegan, V, who is steadfastly
against the consumption of any animal product. V’s peer, a meat-eater, M, believes
(erroneously) that V’s diet is causing V to lack certain vital nutrients and is secretly lacing V’s
food with various animal products. V is not in any physical pain because of M’s actions;
however, it seems that, particularly in the case where V becomes aware of M’s action, V has
been harmed. This may be an instance of harm because V’s desire to not consume animal
products has been thwarted. While that raises other issues to be addressed in the upcoming
section on Consciousness, the current point to note is that although pain may be associated,
often intimately, with our conceptions of harm, it is not a necessary condition for harm.
I have now, at least preliminarily, distinguished harm from pain, but what about the
distinction between psychological suffering and harm? This is a much trickier point, especially
given my initial claim that the experience of harm (whether the harm be physical or mental) is
13
A problem that I foresee arising from this argument is that if the experience of harm generates a right
not to be harmed, and some being is completely incapable of experiencing harm, yet is an otherwise
rational autonomous agent, how could the being have any rights? Of course, this capacity is not the only
way in which a being may have rights. P could have rights, specifically a right not to have his legs
slashed, for a plurality of reasons.
14
For current purposes, I will rely on this very coarse and minimally justified parsing of suffering. I hope
to give a more sophisticated account in the full treatment of this topic.
significant in generating rights. Regardless, thoroughness requires that, at the very least,
psychological suffering and harm be conceptually distinguished. The most obvious way to track
the distinction is to once again appeal to the objective/subjective distinction. Psychological
suffering may be the product of objective or subjective harm, but one could equally experience
psychological suffering without any obvious instance of harm at all. In an attempt to flesh out
the intuitions behind this distinction, consider some examples. First, recall the example of the
blind paraplegic, P. Imagine I amputate P’s foot. While P has been objectively harmed, P may
not be subjectively harmed, given that P may not have a direct awareness of the amputation the
way P’s non-paraplegic counter-part might. This is not to say that P does not suffer
psychologically. If P finds out that P’s foot has been amputated, P may feel extreme
psychological suffering. In this case, it may be safe to say that psychological suffering is, in fact,
a form of subjective harm (even though P’s awareness and experience of the harm is achieved
by less traditional means); however, we must note that here the subjective harm is a result of the
psychological suffering.15 Moving on to a second example, consider a particularly sensitive 12
year-old, T, who stayed up late watching horror films. T has horrible nightmares that night and
awakes in a state of extreme terror, convinced zombies are in the room. In this case, it is
obvious that there has been no instance of objective harm, but it does seem that the
psychological suffering T experiences is a result of some subjective harm (in the sense that T is
under the mistaken impression that there is an objective threat of harm posed by zombies in the
room). In contrast to the case with P, T’s psychological suffering is a result of T’s subjective
experience of harm. Finally, consider a married couple where the scheming husband, H, stands
to gain a substantial fortune upon his wealthy wife’s, W, demise. To speed up this process, H is
secretly poisoning W with some poison that, until the moment of death, causes W no apparent
15
To clarify this point, it seems that the normal case would be for a subjective experience of some harm
to cause some amount of psychological suffering. However, in P’s case, P cannot have a first person
experience of the harm. P instead experiences psychological suffering for any number of reasons that
seem evident when one realizes one has lost a foot.
harm. In this case, W is being objectively, but not subjectively, harmed. Since there is no
awareness of the harm, W is not psychologically suffering.16 The point to take away from these
examples is that while psychological suffering seems to be closely associated with subjective
harm, and to a lesser degree with objective harm, psychological suffering is not identical with
either form of harm.
The Nature of Moral Significance
I am using harm as a backdoor to establishing a) moral significance and b) what such
significance requires. This approach is more effective then starting with moral significance
because even though it may be generally clear that we have a prima facie obligation not to
harm, moral significance generally construed often gives us no indication as to what particular
obligations it generates. Insofar as a being is capable of being harmed in the relevant way, we
generally agree that it is wrong for us to harm them for no greater purpose (some problematic
situations in utilitarianism aside). Our recognition that beings are ‘harmable’ is a necessary part
of determining how we will treat a being. Tom Regan offers an account of the significance of
certain properties in determining moral status and obligations when he notes:
If human beings do not experience pleasure or pain, for example, or do not
prefer some things over other, or cannot make decisions and act intentionally,
or are incapable of understanding what is involved in treating others with
respect, then there could not be anything for ethical theory to be a theory of.17
It is in virtue of certain properties, or attributes, that beings possess that we determine both the
structure and extent of our obligations to them. For my purposes, the property is that of being
16
Of course, this example brings up the relationship between harm and death. This is especially
significant given that I will be arguing that a being’s ability to experience harm grants the being a right to
avoid being caused to experience harm. Although I hope to expand of the nature of the relationship, for
now I offer a small point of clarification. I maintain that a right to avoid harm has the correlative duty that
others not cause a being to experience harm. If death is generally harmful (an assumption that I realize is
contentious and, in fact, not always the case), then some may be inclined to say that a being’s status as
harmable means that the being has a right to life. This is incorrect; at best, a being’s right not to be
caused to experience harm corresponds to a being’s right to avoid being killed.
17
Regan, 2004, 17-18.
‘harmable’ and the interest this property generates is an interest in not being harmed. In light of
this, we say a being, a moral patient, deserves moral consideration from moral agents when it
possesses the properties necessary in order for it to have morally relevant interests.18 The
relationship between moral agent and moral patient can be expressed more clearly as follows:
“For all A, X deserves moral consideration from A. Where A ranges over rational moral agents
and moral ‘consideration’ is construed broadly to include the most basic form of practical
respect (and so is not restricted to ‘possession of rights’ by X.)”19 Note that there is a marked
difference between a being’s possession of moral status and a being’s possession of moral
rights, a distinction that is a central issue for the current discussion and one that I will return to in
the following sections. To foreshadow the argument ahead: Beings that are ‘harmable’ are
moral patients and have a right to not be caused to experience harm. Before turning to address
the nature of such a right, consider what it means to have a morally significant experience of
harm.
Based on how I have classified the significant aspects of harm, it becomes evident that
the ability to experience harm is morally significant, although potentially morally significant in a
different way then the actual experience of harm itself. In light of this, I need to establish an
account of how it is that beings are capable of experiencing harm in a morally significant way.
There are two different ways that consciousness matters to moral status: first, it could
be the case that merely possessing consciousness is valuable, irrespective of what is
represented in conscious states; second, it could be the case that consciousness is desirable
because it enables beings to have experiences and interests that are significant. Which of
these two options offers a better account of how consciousness is most relevant to moral
“Let us consider the question to whom principles of morality apply from, so to speak, the other end –
from the standpoint not of the agent, but of the ‘patient.’ What, we may ask, is the condition of moral
relevance? What is the condition of having a claim to be considered, by rational agents to whom
principles apply?” (Warnock, 1971, 148).
18
19
Goodpaster, 1978, 309.
consideration is a difficult issue that I hope to address in the full account of this work; for the
purposes of this discussion, we can merely assume that consciousness is at least morally
significant because it enables a being to have interests, without excluding the potential that
consciousness is morally significant in itself. The task now turns to explaining what account of
consciousness is the best candidate for ConciousnessM.
While there may be compelling arguments for using phenomenal or higher-order
theories of consciousness as the paradigm account for ConciousnessM, I believe that the firstorder desire theory best reflects what ConciousnessM requires.20 Having desires is the
foundational element for having interests and, as such, can serve as the most elementary
account of consciousness relevant to the experience of harm.21 For example, a being has a
desire to drink; it therefore has an interest in satisfying that desire. If that desire is not satisfied,
or frustrated in some way, our intuition may be that the being has been harmed. Phenomenal
consciousness cannot be the criterion for ConsciousnessM because we can conceive of beings
that do not have subjective experiences, yet have interests. Higher-order thoughts cannot be
the criterion for ConsciousnessM because we can conceive of beings that have subjective
experiences, which may be unpleasant and harmful, yet cannot have thoughts about those
experiences. Again, although both of these views of consciousness may be independently
significant to moral consideration, neither of them can serve as the minimal criteria for
20
One thing at issue here is whether first-order desires are reflexive desires, i.e. desires of which the
desirer is aware, or non-reflexive desires. This is another distinction that I will not, at present, address in
any depth. For my purposes, I assume that both types of desires could be frustrated, therefore resulting
in harm, even though I recognize that a justification for this assumption would be beneficial. This also
raises another issue that, in a more complete account of this view ought to be developed, but will be
merely mentioned in the current discussion: the explanation of the relationship between intentionality and
desires, especially in the reflexive case. In the full treatment of this topic, I hope to do a complete
analysis of these issues.
21
This is not to say that having desires is necessarily sufficient for having interests; in fact, it may be
asked whether sentience may also serve as a foundation for having interests. On the face of it, there is a
certain plausibility to this view; however, the capacity to feel pain may not generate an interest in avoiding
pain unless the sentient being has a desire to not experience pain. Beings that are sentient may be able
to experience pain, but pain itself may not carry much moral weight unless the being has a desire to avoid
such sensations.
ConsciousnessM. The first-order desire account is a more basic account of consciousness that
explains how a being can have minimum basic interests.
It may seem puzzling how beings can have first-order desires without having thoughts
about those desires or a particular subjective feel associated with those desires; I appeal to two
examples from Carruthers for a solution. Consider first the case of a hungry animal. It seems
perfectly consistent that it can have desires without having higher-order thoughts about those
desires: “suppose that an animal has a strong desire to eat, and that this desire is not activated;
suppose, too, that the animal is aware that it is not now eating; then that seems sufficient for its
desire to be frustrated, despite the fact that the animal may be incapable of higher-order
belief.”22 The animal is aware of its desire, and the fact that its desire is unsatisfied, without
having any higher-order thoughts about any aspect of the desire or its fulfillment. Higher-order
thoughts are not necessary for desires and therefore are unnecessary for having interests.
Second, consider the case of ‘Phenumb,’ a being who has desires without phenomenological
experiences of those desires. The case of Phenumb is a more complex example, but yields
similar conclusions about the necessity of phenomenal consciousness:
[When Phenumb] achieves a goal he does not experience any warm glow of
success, or any feelings of satisfaction. And when he believes that he had failed
to achieve a goal, he does not experience any pangs of regret or feelings of
depression. Nevertheless, Phenumb has the full range of attitudes characteristic
of conscious desire-achievement and desire-frustration. So when Phenumb
achieves a goal he often comes to have the conscious belief that his desire has
been satisfied, and he knows that the desire itself has been extinguished;
moreover, he often believes (and asserts) that it was worthwhile for him to attempt
to achieve that goal and that the goal was a valuable one to have obtained.
Similarly, when Phenumb fails to achieve a goal he often comes to believe that
his desire has been frustrated, while he knows that the desire itself continues to
exist (now in the form of a wish) and he often believes (as asserts) that it would
have been worthwhile to achieve that goal, and that something valuable to him
has now failed to come about.23
22
Carruthers, 2000, 207.
23
Carruthers, 2000, 206-207.
Phenumb has goals without having a subjective, associated feeling regarding what it is like to
have goals, achieve goals, or fail to achieve goals. This seems to indicate that it is possible to
have first-order desires without any associated subjective feel, thus rendering phenomenal
consciousness unnecessary to desires and unnecessary to interests. Although phenomenal
consciousness and higher-order thoughts may be relevant to having desires, it is not the case
that either is necessary.
The ability to have first-order desires is the minimal level of consciousness necessary
for ConsciousnessM.24 Of course, there may be objections to this account. One could argue
that there are unconscious desires, possessed by plants and animals (including humans). If
this is true than plants are also within the sphere of morally considerable beings and, while
many people may recognize that at least some animals are morally considerable (i.e., the
family pet), few would intuitively extend that consideration to plants. The issue of unconscious
desires is one that will need to be considered for a complete, global, criteria for moral
significance; however, at present I am offering neither a global nor a complete account. There
are arguably many objects that are the appropriate objects of moral consideration, and there
are arguably many other theories that can assign moral significance on many criteria. My claim
is simply that insofar as beings have conscious desires, they are morally significant in a way
that generates rights.25
Another objection to my criteria of sufficiency for moral status is first-order desires may
cast the sphere of rights-bearing status too broadly. It might seem absurd to say that
honeybees have rights because they perceive or express their quest for honey. Many would be
categorically opposed to using this criterion for granting rights (as opposed to a more traditional
24
What I offer here is a nascent account of higher-order desires that has several problems with it. Again,
this issue will be further addressed in the complete treatment.
25
One major part of the argument that I have left out here is the connection between the frustration of
desires (and higher-order desires in general) and harm.
criteria, like rationality). I hope to defend my view against such objections by arguing that firstorder desires can serve as a minimum criterion for assigning to beings that possess this status
the very basic right to not be harmed.
The Nature of the Right Not to be Harmed
Moral status requires particular kinds of treatment if it is to amount to anything at all and,
as I shall argue, the best account of what this treatment requires is one that appeals to rights.
The Pragmatic Justification for Rights
On the face of it, merely identifying a being as morally considerable may be enough to
ensure appropriate treatment. If this is true, then it seems that an account of rights is not
strictly necessary; but at least two problems undermine this. The first is that while moral status
may require moral consideration, what that consideration amounts to may not require very
much, particularly in the case of treatment. The second problem is that while moral status
seems to require something in the way of consideration, it really does nothing to guarantee
consideration or treatment the way rights-claims do. In short, in order to secure the significance
of moral status, especially in the case of harmability, the status needs to be codified by rights.
To appreciate the claim that rights are the best way to capture moral significance more
fully, consider a more complete treatment of the two previously mentioned problems. The first
was that moral status might be practically vacuous. If all that moral status requires is that I give
some, or perhaps even equal, consideration to your interest in avoiding harm, then it is not
clear that I have any strong obligation to actually avoid or refrain from harming you. Although
this shortcoming may happen in any account of how we ought to act, it is particularly prevalent
in utilitarian approaches. An excellent example of this is evident in Peter Singer’s utilitarianbased account of how we ought to treat animals. Singer argues that beings have inherent
value (which is roughly analogous to my use of moral significance) in virtue of their ability to
experience pleasure and pain. Because sentience is inherently valuable, there is no moral
justification for refusing to consider the interests of beings that suffer.26 Any being that has the
ability to experience pleasure and pain, and therefore an interest in not suffering, ought to be
counted and weighed as much as any being with that same interest. In this sense, all animals
are to be considered equally. Though Singer argues because every sentient being ought to be
given due consideration, what counts as due consideration on his views need not necessarily
amount to much. Because utilitarianism is a maximizing doctrine, many trivial benefits to
different beings could outweigh one very significant harm to a single being. For example, the
pain and suffering of civets, whose musk is used by the perfume industry as a carrier to extend
fragrance, can (in principle) be offset by the arguably trivial pleasure many people feel knowing
that the scent of the perfume they put on in the morning will last until they re-apply it the next
day. Therefore, although we may consider the suffering of the civets, we are under no
obligation to treat them in any way that minimizes their suffering given that it is offset by utility
aggregation. Inherent value in Singer’s theory, and arguably other non-rights-based
approaches, need not count for very much in terms of treatment. 27
The second problem with mere moral considerability, that moral considerability may not
guarantee any type of treatment or consideration, can be best understood with an example
influenced by Lyons and Thomson.28 Imagine an orange farmer, O, who has the status of
owning an orange tree. O has this status in virtue of owning the land the tree is on, having
planted the tree, and having tended and cared for the tree until the present. Under normal
circumstances, most would agree that O’s status as the owner of the orange tree means that
26
Singer, Animal Liberation, 8.
Such aggregation does not violate the Benthamic principle of equal consideration. A being’s interests
can be given equal consideration, but ultimately very little weight.
27
From the “Mary” example in David Lyon’s “Utility as a Possible Ground of Rights” and from the
“Famous Violinist” example in Judith Jarvis Thomson’s “A Defense of Abortion.”
28
we ought not pick fruit from, or otherwise interfere with, the tree. However, if someone, S, was
starving and the only food source close enough to save S’s life was an orange from O’s tree,
many people would have the intuition that it is perfectly acceptable, if not required, to either
take an orange from the tree or for O to give S an orange. In a case where there was any kind
of interest competing with O’s ownership of the tree, it seems like it is permissible to infringe on
O’s status as owner. The case seems to be quite different if we say that O has a right to the
tree, and we view that right in the strong sense.29 Once we grant that O has a right to the tree,
it does not matter that S may be starving—we ought to respect O’s right. In light of this, while O
may be very unkind if O refuses S an orange, S would be acting unjustly taking an orange
without O’s permission. It seems like a rights-based account of status ensures particular
treatment more than mere moral considerability.
The Status-Based Approach and Its Benefits over Interest/Utilitarian Theories
The previous section has argued that we need a rights-based account in order for moral
status to have any significant force. One of the foundational assumptions in that argument was
that a status-based justification of rights was the best approach for justifying the right not to be
harmed. In the full treatment of this topic, I hope to give an argument for why the status-based
justification for rights, in particular the right not to be harmed, is the most desirable justification.
For now, I offer a brief presage of the argument. A status-based approach reflects the
significance of certain natural attributes. We often find such attributes so significant that we
think rights emerge from them. These rights are, ideally, inviolable (or serve as constraints)
against the claims and interests of others. So, for example, I have the right to bodily integrity
since I am a rational autonomous being who can control her physical self. Under interest
theories of rights, a being has a right if and only if that being has some interest that is sufficient
Although this needs to be developed, the intuition behind the “strong” rights claim is one that views
rights as inviolable side-constraints.
29
to generate a duty.30 Interest theories do not seem to generate rights that have the same
strength since such rights seem to be violable in cases where their violation would benefit either
some other, more pressing interest of the individual, or overall interests of the individual’s
community.
The discussion of the strengths and weakness of these contrasting justifications is much
more complex than what I have sketched above; however, the basic claim that I will return to is
that the status-based justification is more desirable since it yields rights that are more robust.31
To further strengthen my nascent argument regarding the benefit of the status approach for the
case of harm, consider the following two examples: The first will show that the status-based
approach yields more robust, less violable rights; and the second will show that paternalism,
which may be especially relevant in the harm case, is better avoided under the status-based
approach.
Example 1. Although interest theories of rights may justify rights that are strong when
the interest motivating them is strong, they may equally justify the violation of such rights when
there are stronger conflicting interests. Consider Thomson’s example of the famous violinist
with a slight shift in focus.32 In this example, I awake one morning to find that my kidneys have
been attached to the failing kidneys of a famous violinist without my consent. No one would
deny that, generally, everyone having the right to bodily integrity promotes interests; however,
the interest account may permit the violation of that right when a more pressing right, like the
right to life, requires it.33 The promotion of the violinist’s right to life, which is seen as a right
30
Raz, 166.
31
Much of the discussion here will be motivated by existing arguments about status v. interest theories of
rights justification. On the status-based side, I will consider discussions from Betham, 1796; Griffin, 1989,
Kamm, 2002; Quinn, 1993; Nagel, 2002; Nozick, 1974; Scanlon, 1977, Sen, 1982.
32
33
Thomson, “A Defense of Abortion.”
Of course, many may argue that there is no right to life but instead a right not to be unjustly killed. For
the sake of this example, I intentionally omit this debate.
that promotes stronger interests, may justify the violation of my arguably weaker interest in my
bodily integrity. This is intuitively unsatisfactory. Even when the example requires that I only
be attached to the violinist for one hour, it still seems problematic to say that the violinist’s right
to life exerts a duty on my that I forsake my right to bodily integrity and provide him with access
to my kidneys. A status-based theory of rights would arguably justify both the right to life and
the right to bodily integrity by appeal to the same criteria -- most likely status as a moral person.
Under this account, there could be no justifiable violation of one right by appeal to the stronger
interests of the other right since “The strength of the right is not a mark of the strength of the
interest it protects, but a mark of the fact that the right is a response to a characteristic of
persons that makes persons important.”34
Example 2. Interest theories of rights run the risk of justifying rights that are, or are
perceived to be, in the interest of a being without necessarily respecting fundamental features
of a being.35 Consider a 21 year old who is pulled over while driving drunk, D. The judge
decides that, since it is D’s first offense, D will not be punished even though she was found
guilty. The judge may offer the justification that D has a history of being an upstanding young
person and it is neither in her interest, not society’s, to punish her for a momentary
transgression. D’s right to be punished is overridden when the judge decides that the interests
of all relevant parties are best served by overriding that right.36 To see why this is problematic I
turn to Kant’s argument for punishment: that the right, and correlative duty, of punishment
emerges from the fact that the punished is the kind of person who deserves that right. Kant
argues, rightly so, that not punishing a rational being who has committed a crime fails to
34
Kamm, Rights, 487.
As Kamm notes: “ …some rights are a response to the good (worth, importance, dignity) of the persons
and/or his sovereignty over himself, rather than a response to what is good for the person.” (487).
36 This example is motivated by the arguments for the right and duty of punishment in Morris, Herbert,
1968, "Persons and Punishment," The Monist, 52, pp. 475-501 and in Immanuel Kant, The Philosophy of
Law, Part II trans. W. Hastie (1887). Note that the original right to punishment was justified, in this case
by an interest account.
35
respect the person as a rational end in herself. In D’s case, the judge’s decision to promote
overall interests arguably fails to respect D as they kind of being she is.
Ontology, Taxonomy, and Correlativity
I have been talking about rights without giving a clear account of what I think they really
are, how they are classified, and what they amount to. One of the things I hope to do in the
larger treatment of this topic is to give a more complete justification for using general claim
rights in rem as the kind of rights that best capture what the right not to be harmed requires.
This will involve a more detailed explanation, as well as an analysis of terminological
distinctions, of what general rights are and why they should be taken as the basic right-unit to
emerge from a being’s status as harmable. My initial intuition is that general claim rights most
easily emerge from a status-based or natural rights approach. General rights are a class of
rights put forth by HLA Hart that have characteristics very much distinct from the arguably more
robust ‘special right.’ Although I hope to offer an argument in favor of general rights, for now
consider Hart’s explanation of the differences between general rights and specific rights:
1) General rights do not arise out of any special relationship or transaction
between men. 2) They are not rights which are peculiar to those who have them
but are rights which all men capable of choice have in absence of those special
conditions which give rise to special rights. 3) General rights have as
correlatives obligations not to interfere to which everyone is subject and not
merely the parties to some special relationship or transaction, though of course
they will often be asserted when some particular persons threaten to interfere as
a moral objection to that interference.37
The primary benefits I see for viewing rights based on a being’s status as capable of
experiencing harm as general rights are a) the rights exist more or less naturally, without any
need for contracting, and b) they seem to capture features unique to the nature of harm, without
placing undue and unjustified burdens on duty-bearers. The further distinction of claim rights
into rights in rem and rights in personam offers a degree of finesse that a general account of
HLA Hart, “Are There Any Natural Rights?” in The Philosophical Review, vol. 64, No. 2 (Apr., 1955),
188.
37
claim rights may not adequately capture in the case of harm.38 I hope to show that since
general claim rights in rem can necessitate correlative duties without the need for explicit
contracting, they may offer the best rights framework for the case of harm. This would be very
beneficial because it seems patently absurd that, if I am the kind of being that can experience
harm if you kick me, that I need to contract with you in order for me to have the right that you
refrain from harming me in this way. Of course, this raises the objection of whether
uncontracted rights can really have any strictly correlative duties. It seems problematic to
assume that merely because I have a right emergent from some status other beings
necessarily have a duty to respect that right. Concluding this analysis of the nature of rights I
will offer a discussion of correlativity and the duties that correspond to a right to not be
harmed.39
Although at this point I will not delve into the textual analysis required by the above
section, I can offer some remarks regarding tensions I foresee with rights and duties functioning
within the concept of harm. Assume that I have successfully argued that beings with the
appropriate status have a right to not be harmed. Assume also that I have argued that, in order
to best make sense of what rights require, if one or more beings who can perform the
correlative duty exists, such beings will have that duty.40 On one side I want to argue that,
38
Although I will elaborate on this distinction further, for now an overview of the terms is in order.
General claim rights in rem, in relation to the issue of harm, would have the approximate form: x has a
right that she not be interfered with when she does not want interference. Such a right is not directed
against any particular person, but against all interference in general. General claim rights in personam
are in some ways more complex. There is argument that it is very difficult to have general claim rights in
personam since in personam rights usually require some form of contracting and are thus typically viewed
as special rights.
Of benefit to the discussion of duties may be an examination of Kant’s arguments regarding the nature
of duties towards animals presented in Lectures on Ethics. Kant claims that we, at best, have indirect
duties to animals, which are in effect direct duties to humans. This argument may be of interest because
it allows for duties (albeit indirect ones) that are not correlative to rights (since animals are not capable of
bearing rights).
39
40
Please forgive the awkwardness of this phraseology. The reason for it is that I want status-based rights
to be natural, and not contingent on the existence of an appropriate duty-bearer. What I mean by this is
that if a being possesses the appropriate criteria to bear a right, then the being has that right even if the
since the aspect of harm that is more significant for generating rights is the subjective aspect,
beings have duties to not cause me to experience any harm. At least two potential problems
that emerge from this. The first is that this way of stating the duty perhaps permits (or at least
does not fault) unintentional instances where the duty-bearer causes harm. The second, and
potentially more damning, problem is that focusing so much on the subjective nature of harm
may mean that instances where beings objectively, but not subjectively, harm me are not
violations of my right. While I believe that the first problem could be more easily fixed, the
second problem seems to have solutions that are more difficult. The most obvious solution to
the second problem is to change the right from ‘a right not to be caused to experience harm’ to
‘a right not to be harmed’; however, this strikes me as undesirable and leads to the other side of
my argument. It is obvious that objective harm is bad; this was especially evident in the
example of the poisoned wife. No one would say that W’s right to not be harmed has not been
violated merely because she had no subjective experience of the harm. At the same time
however, many would have the intuition, as in the original case of P and N, that instances
where objective harms lead to subjective harms are somehow worse than objective harm alone.
This tension leads to some problems in how exactly I can express the nature of both the right
and correlative duties that emerge from a being’s status as harmable. The duties that emerge
from the right to not be harmed (regardless of how, specifically, I end up qualifying the right)
may be exceedingly complex; however, this need not detract from the legitimacy of the right
itself.
Conclusion
being is the last being in existence (i.e., there is no correlative duty-bearer). However, the only way to
really make practical sense of what the right requires is to conceptualize it in terms of duties such that if
another being was present, and he or she has the satisfied the criteria necessary for duty-bearing status,
then he or she is obligated to uphold the correlative duty.
My goal in this discussion was to show that the nature of harm is both conceptually
complex and significant enough to serve as a foundation for a right. Some of the potential
outcomes of such a view of rights may involve a reclassification of what types of beings may
count as, at least in a minimal sense, rights-bearing agents. I hope to test a full account of the
theory presented here against problematic cases involving torture, animals, and human beings
who are developmentally different from the norm. It is my hope that testing a harm-based rights
view against such non-standard cases with illuminate and shortcomings with the view that may
not be obvious when it is tested against the “normal” human paradigm. Future plans aside, I
hope to have raised some interesting issues about the nature of harm and the nature of rights
that may emerge from viewing harm as morally significant.
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