The literature on rights in both moral and legal philosophy is voluminous, so voluminous that there may seem to be little justification for one more symposium to swell its ranks. But the discussion of rights has been fairly tightly organized around several narrow topics of debate, among them whether rights should be explained in terms of interests or choices,The traditional debate is between the “Interest Theory” and the “Will Theory.” For a discussion of this, see A DEBATE OVER RIGHTS (Kramer et al. eds., Clarendon Press 1998). whether rights are strictly correlative with duties,See L.W. SUMNER, THE MORAL FOUNDATIONOF RIGHTS §2.2 (Clarendon Press 1987) for a discussion of this point. and the relation between rights and utility.See, e.g., RONALD DWORKIN, Rights as Trumps, in THEORIESOF RIGHTS 153–68 (Jeremy Waldron ed., Oxford University Press 1984). The inspiration for the present symposium is the sense that one topic of central importance has generally been given short shrift: the question of whether rights can conflict. There is, of course, a perfectly good explanation for why this topic has received so little attention; namely that contemporary rights theorists have generally assumed that rights cannot conflict.Notable exceptions include JUDITH JARVIS THOMSON, THE REALMOF RIGHTS (Harvard University Press 1990) (who allows that rights can conflict without specifically discussing the point); JEREMY WALDRON, Rights in Conflict, in LIBERAL RIGHTS: COLLECTED PAPERS 1981–1991 (Cambridge University Press 1993). But this assumption seems to be out of keeping with the way people commonly speak about rights as well as the way in which rights are usually understood in our constitutional tradition.

In this article, I shall first try to examine the ways in which rights may conflict (or at least seem to conflict). This will be a sketchy survey at best, but I believe it may be helpful. I shall also consider how the resolution of the conflicts is not solely a function of the weight of the interest (as ordinarily understood) involved and consider what this suggests about the correct theory of rights. Finally, I will discuss how we might measure the relative strength of rights.When an attacker who threatens to cut off someone’s leg is killed by his potential victim in self-defense, it is sometimes said that there is a conflict between the right of the attacker not to be killed and the right of a person not to be harmed. However, this is a pseudo-conflict of rights, since the attacker’s right not to be killed is in some way weakened by his being a threat, at least for the purpose of eliminating the threat he presents. Considered alone and not weakened, how would we rank the rights involved in this case? How does the right not to have one’s leg be cut off compare with the right not to be killed? If I heard of two people, one of whom was threatened with violation of the first right and one who was threatened with violation of the second, I would think it right to help the second. This is some indication that I believe the second right is stronger. But this need not determine how we resolve all problems involving such rights, since in some cases the right may be weakened. For example, we may help the person attacked in the case I described rather than the attacker. Henceforth, I shall try to consider conflicts among unweakened rights. In this article, I draw on past work of mine in which I go into much greater detail about how conflicts to get scarce resources should be resolved and when it is permissible to harm some to save others. These more detailed discussions can be found in 1 MORALITY, MORTALITY, DEATHAND WHOMTO SAVEFROM IT and 2 MORALITY, MORTALITY, RIGHTS, DUTIES, AND STATUS (Oxford University Press 1993 and 1996); and in Toward the Essence of Nonconsequentialism, inFACT AND VALUE: ESSAYS ON ETHICS AND METAPHYSICS FOR JUDITH JARVIS THOMSON (A. Byrne et al., eds., M.I.T. Press 2001).

You and I are neighbors, with our houses situated closely together. You lead a group of rock musicians who can practice only in the evenings in your backyard; while I, on the other hand, enjoy nothing more than quiet evenings spent on my porch accompanied by the sounds of frogs and crickets. Presumably, you have a right to pursue your musical career, and I have a right quietly to enjoy my property. If we do indeed have these rights, however, then they seem to conflict with each other, in that your exercising your right is incompatible with my exercising mine.

Can two individuals, each of whom needs a certain resource for his survival, have equal and conflicting rights to that resource? If so, is each entitled to try to exclude the other from its use? An old chestnut of moral and legal philosophy raises the problem. Following a shipwreck, two men converge simultaneously on a plank floating in the sea. There is no other plank available and no immediate hope of rescue. Unfortunately the plank can support only one; it sinks if two try to cling to it. Is it permissible for each to attempt to secure his own survival by pushing the other off the plank?

In recent years, American tort law has been the beneficiary of a growing effort by sophisticated legal theorists to advance a theory that both descriptively and normatively accounts for its doctrines on non-utilitarian grounds.See, e.g., the rich set of essays recently compiled by David Owen upon which I shall draw extensively in this piece. PHILOSOPHICAL FOUNDATIONSOF TORT LAW (David G. Owen ed., Clarendon Press, 1995) (hereinafter PHILOSOPHICAL FOUNDATIONS). Yet despite the formidable challenges that this literature has posed for the economic analyses that have dominated tort law theorizing in recent decades, central tort doctrines persist in defying efforts to describe and defend them as vehicles for redressing rights violations. In saying this, I do not mean to refer to such obvious things as the fact that the Hand Formula“[I]f the probability [of a foreseeable plaintiff’s injury] be called P; the injury, L; and the burden [of precautions necessary to avert L], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B [is less than ] PL.” United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). appears to allow rights violations in the name of utility or wealth maximization (although corrective justice theorists must admit that the fact that the Hand Formula dominates contemporary characterizations of negligence is a painful theoretical thorn in their sidesFor a denial of the prominence of economic analysis in doctrinal explanation, see Richard W. Wright, The Standards of Care in Negligence Law,in PHILOSOPHICAL FOUNDATIONS, 249–75, 250. For a deontological account of tort law’s use of the Hand Formula, see Heidi M. Hurd, The Deontology of Negligence, 76 B. U. L. REV. 249–72 (1996).). Rather, I have in mind the more subtle but more significant fact that myriad tort doctrines reflect the fundamental thesis that persons have obligations to (re-)structure their conduct so as to mitigate the harms caused by others’ foreseeable wrongdoing—obligations which, when violated, properly serve as a basis for declaring such persons negligent.

Austria was no more wrong in opposing our claims than we were in making them.

—Bismarck, on the Austro-Prussian War of 1866.ROBERT K. MASSIE, DREADNOUGHT 59 (Random House 1991).

Is it possible for good men to come to blows without anyone being to blame? And was World War I a real-life realization of that possibility? Those are the two questions this essay means to pursue.