All-Things-Considered Versus Pro Tanto View

In this final subsection, I speak a little of the relationship between rights and all-things-considered requirements. I rely on this discussion in a few places throughout, but it is principally here to provide a foundation for how rights relate to the rest of the normative domain.

While we are assuming Strong Correlativity, that much does not settle the nature of the correlative duty. Some people endorse the

All-Things-Considered View. If X has a claim-right against Y that Y Φ, Y is required to Φ.²⁴

“Required” should be thought of as an all-things-considered notion.²⁵ There might be good reason to endorse the All-Things-Considered View. As Judith Jarvis Thomson writes, ‘very often when we ought [or are required] to do a thing, we ought [or are re-quired] to do it precisely because someone has a claim[-right] against us that we do it’

(Thomson 1990, 79). If the All-Things-Considered View is not correct, our conception of

unjustified threateners have forfeited their rights against being harmed, and people harming others with a lesser evil justification, where those whom one harms have not forfeited their rights against being harmed.

In the case of self-defence, there is no moral remainder—no explanation, apology, or compensation owed.

In the case of lesser evil justifications, there is a moral remainder. Appealing to the pro tanto right not to be harmed (and correlative pro tanto duty not to harm) in the case of the lesser evil justification explains this moral remainder. We focus more on the moral remainder in the following subsection.

24 Among others, (Wellman 1995; Shafer-Landau 1995; Oberdiek 2004; Steiner 2013). The All-Things-Considered View is only conditional, rather than biconditional, because of the directionality of claim-rights, the possibility of undirected duties, and the possibility of other factors contributing to all-things-considered requirements. Suppose that Beth does not have a claim-right, against Ann, that Ann mow Beth’s lawn. If the All-Things-Considered View were biconditional, this would mean that Ann is not required to mow Beth’s lawn. But Ann may nonetheless be required to mow Beth’s lawn. For example, Ann may have prom-ised a third party that she will mow Beth’s lawn. Or, for whatever reason, Ann may be under an undirected duty to mow Beth’s lawn. Or, if other factors contribute to the all-things-considered requirement in addition to duties, Ann may be required to mow Beth’s lawn without even being under a duty to do so.

25 The notion that I am calling “requirement” is often called “ought”. However, as Snedegar among others has shown, “ought” is too weak. “Requirement” (or “must”, “have to”, and so on) is the stronger notion we are after. This can be seen from the felicity of “You ought to help that old lady cross the road, but you’re not required do” and the infelicity of “You are required to help that old lady, but it’s not the case that you ought to”. The first of these sentences show that “ought” does not entail “requirement”. The second sug-gests that “requirement” does entail “ought” (Snedegar 2016, 159–62).

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what we are required to do will be more complicated. We must answer the question of what a right’s content is, and then ‘the separate question of a right’s normative implica-tions’ (Oberdiek 2008, 128).²⁶

Some people deny the All-Things-Considered View. They endorse the

Pro Tanto View. If X has a claim-right against Y that Y Φ, Y has a pro tanto duty to Φ.²⁷

On this view, rights and their correlative duties are pro tanto considerations: they have

‘genuine weight, but nonetheless may be outweighed by other considerations’ (Kagan 1989, 17). Since rights do not entail requirements, a defender of the Pro Tanto View must say something about how rights interact with requirements. Following Thomson, let us say, if X has a claim-right against Y that Y Φ, and Y does not Φ, she infringes X’s right; if Y does not Φ and she is required to have Φ-ed, she violates X’s right to Φ (Thomson 1986a, 40; 1986b, 51–55; 1990, 122).

Why might one prefer the Pro Tanto View? Suppose that Ann owns some land. Her neighbour, Ben, falls ill and needs to get home to take some medicine. Time is tight and the quickest way for Ben to get home is to cut across Ann’s land.²⁸ It seems plausible both that:

(1) Ann has a claim-right against Ben that he stay off her land, and that

26 Only claim-rights easily translate into requirements. Ann’s having a liberty-right to Φ against Beth means neither that Ann is not required to Φ nor that she is required to Φ. Rather, it means only that she is not under a duty, owed to Beth, not to Φ. It is entirely open whether she is required to Φ. We face similar issues when translating rights into talk of reasons. Suppose that X has a (claim-)right against Y that Y Φ. It is plausible that Y thereby has a reason to Φ. However, what if Y has a liberty-right not to Φ against X. This does not mean that Y has reason not to Φ; she might have plenty of reason to Φ, and no reason not to Φ.

For example, suppose Ann has a liberty-right, against Beth, not to mow Beth’s lawn. Does this mean Ann has no reason to mow Beth’s lawn? No: she may have plenty of reasons.

27 Among others, (Thomson 1990; Feinberg 1980; Kamm 2007; Cruft 2019).

28 The case is taken with slight alternations from (Thomson 1990, 98).

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(2) Ben is not required to stay off Ann’s land.

Both of these things cannot be true if the All-Things-Considered View is true. The com-bination of the All-Things-Considered View and (1) implies the negation of (2).

Similarly, suppose we have a standard trolley case in which a trolley is headed towards some number of people, which it will kill if not stopped. Bystander can divert the trolley onto a side-track. Unfortunately, there is a person on the side-track (call this person The One). It seems plausible both that:

(3) The One has a claim-right that Bystander not kill her,

and yet that there is some number of people that makes it permissible for Bystander to divert the trolley. Suppose we have that number of people. This means

(4) Bystander is not required not to turn the trolley (i.e., it is permissible for By-stander to turn the trolley).

The combination of the All-Things-Considered View and (3) implies the negation of (4).

Now, to accommodate cases like this (cases in which it looks like X has a claim-right against Y that Y Φ, and yet it is false that Y is required to Φ), defenders of the All-Things-Considered View suggest that the content of X’s right specifies that the right does not obtain in those particular circumstances. Moral Specificationists think that X only has a claim-right that Y not unjustifiably or wrongfully Φ (Oberdiek 2004; 2008). For example, The One has a claim-right that Bystander not unjustifiably turn the trolley onto her. Factual Specificationists think that X only has a claim-right that Y Φ, unless: list of exemptive clauses (Shafer-Landau 1995). For example, Ann has a claim-right against Ben that he not cross her land, unless he needs to save his life, and so on.

While defenders of the All-Things-Considered View may be able to explain away this contradiction by endorsing Specificationism, one might wonder how they can deal with what is called the moral remainder. For example, if Ben causes some damage to Ann’s land while permissibly cutting across it, some think he is liable to pay compensation to Ann. Similarly, even if Bystander acts permissibly in turning the trolley, it is plausible that

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she still wrongs The One, owes her an apology, and so on. Yet, if there was no right violated in either case, as Specificationism admits, what might explain these features?

For this reason, let us assume the Pro Tanto View. As it happens, not too much turns on our choice—though I will draw on the moral remainder at times. The reason for this is two-fold. First, the Problem of Harmless Wronging applies to either view. Second, the debate between the All-Things-Considered and Pro Tanto Views is neutral on substantive first-order normative questions. A defender of the All-Things-Considered View says that a reason that countervails a putative right directly determines the content of the right (that it does not obtain in those particular circumstances). A defender of the Pro Tanto View says that this reason does not have any bearing on the right’s existence but does impact what the putative correlative duty-bearer is required to do.²⁹