Respect for Rights and Liability to Defensive Harm

Abstract

This paper defends a novel framework for thinking about our rights against being harmed, paying special attention to the conditions under which they are enforceable through a liability mechanism. It contends that a central purpose of our rights is to specify what steps others are required to take, in their role as agents, to avoid harming us. To be geared towards this relational purpose, rights need to be equipped with a subjective component that lays out how an agent ought to deliberate and conduct herself in light of the epistemic constraints she faces. Based on these ideas, the paper develops a hybrid account of rights according to which the ex ante and ex post duties implied by our rights are entirely subjective. If an agent abides by the duties imposed on her by another person’s rights, she respects these rights. If she violates the duties, she disrespects the rights. The account developed is hybrid because it stipulates that a person’s rights protect her against objectively specified harm, even if the duties imposed on others are merely subjective. I argue that this is less paradoxical than it may seem. The paper then defends an account of liability to defensive harm that grounds an agent’s liability in her disrespect for others’ rights, and which fixes the extent of her liability by reference to what defenders reasonably perceive to be necessary and proportionate defensive harm in light of the agent’s disrespectful conduct.