Sufficient Weight, Harm, and Wellbeing

What does it mean, then, for someone’s wellbeing to be of sufficient weight to place some-one else under a duty? On the face of it, things would be easier if we had gsome-one for the Nonjustificatory version of the Interest Theory: we have an intuitive idea of what it is for someone’s wellbeing to be protected by a duty—we look to whether they would be harmed or benefited were the duty not to be respected. But, discovering whether someone’s

77 This is not to say that there is no reason to prefer the Nonjustificatory version. Consider again an example of what we can call a referred right, introduced in section 2 of chapter 2: a journalist’s right not to disclose her sources (Raz 1986, 178–80; 1994). The journalist’s right does not seem to be grounded in her own interests in not disclosing her sources, but in the public’s interest in having a free press. But, on the Justifi-catory version of the Interest Theory, rights must be grounded in their holder’s interests (in the wellbeing at stake for the holder). So, it looks like that version of the Interest Theory cannot explain how the journalist holds a right not to disclose her sources. However, since presumably the journalist’s interests are protected by others’ duties not to force her to disclose her sources (it makes carrying out her job easier for one thing), she can hold a right on the less demanding Nonjustificatory version. For potential replies on behalf of the Justificatory version, see (Raz 1994; May 2012). Addressing this problem for the Justificatory version would take us too far afield. But, for what it is worth, I am not even sure the costs of biting the bullet on referred rights is too great, especially when it comes to referred moral rights. Perhaps the duty is owed to the public at large.

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wellbeing is sufficiently weighty to place others under duties is quite similar to discovering whether someone’s wellbeing is protected by another’s duty. It depends, in the first place, on the extent to which the potential right-holder would be harmed or benefited were the potential duty-bearer not to act as the would-be duty dictates.⁷⁸ For example, Fabre says:

‘the degree to which an interest of X’s is important enough to warrant the imposition of a duty on Y is a function of the degree to which X would be harmed if Y desisted from acting as required by the duty’ (Fabre 2008, 227).⁷⁹

This means we need an account of harm and benefit. Let us begin by assuming the dom-inant

Counterfactual Account of Harm and Benefit. Y harms X iff (and because) Y makes X worse off than X would have been had Y not acted as she did. Y benefits X iff (and because) Y makes X better off than X would have been had Y not acted as she did.

The Counterfactual Account gets lots of cases right. For example, you harm me by cutting off my leg because you make me worse off than I would have been had you not cut my leg off. You benefit me by curing me of a cold because you make me better off than I would have been had you not cured me of the cold. What is more, the Counterfactual Account has great explanatory power: it is very plausible that you harm me by cutting my leg off because you make me worse off than I would have been had you not cut my leg off.

The Counterfactual Account has this significant explanatory power because it tracks the difference harm makes to the harmed person—inasmuch, it is a difference-making account

78 There is a distinction between benefiting from a duty’s existence and benefiting from the performance of the action required by that duty. For example, suppose that Threatener will punch Victim regardless of whether she is under a duty not to. In this case, Victim would not be benefited by the duty’s existence, since its existence makes no difference to whether Victim is punched either way; but, Victim would be benefited by the performance of the action required by the duty (i.e., not being punched). Cruft thinks the Interest Theory is formulated in the first way, and that this is problematic for the Interest Theory on these grounds (Cruft 2010). But we should formulate the Interest Theory in the second way, so there is no problem. This comes up again in chapter 8, section 4.2.

79 See also (Scanlon 1984, 146; Raz 1986, 165–92; Cruft 2010, 441–45; Tasioulas 2015, 50–56).

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(Bradley 2009, 50–51). We see some competing accounts of harm and benefit in the fol-lowing chapter (sections 3-4).

It is worth clarifying two features of the Counterfactual Account of Harm. First, it is re-stricted to one person harming another, since we are mostly concerned with one person harming another person. More generally, we can say, an event, e, harms someone, X, iff X is worse off than she would have been had e not occurred. On this more general under-standing, a tree falling from the wind can harm X just as much as a person’s cutting down a tree can harm X. We can also read X broadly enough to include anything we think capable of being harmed. For example, Mouse (my dog) can be harmed by an event if that event leaves her worse off than she would have been had the event not occurred.

Second, the Counterfactual Account it is morally neutral. This is a very plausible feature of an account of harm and benefit but strikes some people as odd.⁸⁰ Suppose we were to go for a morally loaded Counterfactual Account: Y harms X iff Y unjustifiably makes X worse off than X would have been had Y not acted as she did. Now suppose Threatener comes at Victim with a knife, culpably looking to kill them. The only way Victim can defend herself is by shooting Threatener in the leg. Victim acts justifiably in defending herself. This implies that, on the moralised Counterfactual Account, Victim does not harm Threatener. But that is very implausible. She harms Threatener. It is merely that the harm is justified.

So, we discover whether one’s wellbeing is sufficiently weighty to place others under duties by looking, in the first place, to how one would have fared were the duty not to be re-spected. Another thing we look to is the cost to the potential duty-bearer of acting as the would-be duty dictates. This plausibly differentiates rescues that one has rights to the per-formance of and those that one does not have rights to the perper-formance of. For example, if the only way that you can save a drowning child is by subjecting yourself to some suffi-ciently large harm, intuitively, the child has no right to be rescued. But, if the costs are

80 In conversation, Antony Duff objected on these grounds. Similarly, Feinberg thinks Y harms X only if Y violates X’s rights (Feinberg 1984, 36); in addition to the reasons raised in the text to avoid moralised ac-counts, Feinberg’s view would leave us in an awful circle since we are grounding rights in harm. For more on why not to go moralised, see (Tadros 2016a, 181–82).

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trivial, intuitively, the child does have a right to be rescued—it is not only wrong for you not to save the child, but you would wrong the child.⁸¹

There might be other things we look to in determining whether potential right-holders’

wellbeing is sufficiently weighty to place others under duties. Some of these things I con-sider in the following subsection as separate concon-siderations on rights; for example, whether the harm is intended or merely foreseen, whether it is a doing or an allowing, and so on. As I say below, we could build these other considerations into the theory here as partly constitutive of what it is for one’s wellbeing to be sufficiently weighty to place others under duties.

We are building up to an account of what determines whether one’s wellbeing is suffi-ciently weighty to place others under duties. A complete analysis would take a stand on what wellbeing consists of. We can distinguish three types of theory of wellbeing (Parfit 1984, 493–502). On Hedonistic Theories, wellbeing consists only of pleasure. On Desire The-ories, wellbeing consists only of the satisfaction of one’s desires. On Objective List TheThe-ories, wellbeing consists only of the advancement of certain aspects of our lives, regardless of our attitudes toward those aspects. Finally, on Hybrid Theories, wellbeing consists of some combination of these accounts (it could be disjunctive, for example, “pleasure or desire satisfaction”, or conjunctive, for example, “desire satisfaction one takes pleasure in”).⁸² We begin by being agnostic on this.

81 This discussion is in keeping with the discussion of liberty-rights on the Interest Theory below, section 3.4. For classic discussion of cost sensitive duties to rescue, see (Kagan 1989; Scheffler 1994). For explicit discussion of cost sensitive directed duties to rescue, correlative to rights, see (Quong 2015; Frowe 2019; n.d.)

82 Even within each type of theory, there is debate as to the details. For example, Hedonists tend to disagree as to what pleasure amounts to. Internalists about pleasure say that there is some quality common to all pleasurable experiences (Crisp 2006), whereas Externalists say there is some external feature common to all pleasurable experiences, for example, that they are desired (Sidgwick 1981, 127; Sumner 1996, 87–91;

Parfit 1984, 493). Hedonists also disagree about whether all pleasures are commensurable (Mill 1969; Crisp 2006). Desire Theorists tend to disagree over which desires count for one’s wellbeing. We turn to two choice-points in chapter 6, section 2. Objective List Theorists disagree about what items get to go on the list, as well as how the items on the list are linked. Monists think that one sort of thing unifies the list; for example, Perfectionists think that what is on the list is determined by the kind of thing that we are (Hurka 1993), whereas Pluralists think there is no such story to be told (Rice 2013). And Hybrid Theorists also disagree about which theories to combine, whether to make them conjunctive or disjunctive, and so on (Kagan 2009). The keen reader might also notice that I have only defined what is good for one, with no mention of what is bad for

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