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.

The papers published in this issue were delivered at a Symposium on Vagueness and Law at Columbia University Law School on September 24 and 25, 1999. The purpose of the seminar was to provide an opportunity for philosophers of law, philosophers of language, and philosophers of logic to discuss problems about vagueness that are currently under debate in all three areas.

INTRODUCTION

It’s apples and oranges, we say. Chalk and cheese.Apples and oranges is the North American term, implying incommensurability. Chalk and cheese is the British term, implying both incommensurability and incompatibility. Or, somewhat more equivocally, six of one and half a dozen of the other.This may imply either the equality of the options before us (if emphasis is placed on the identity of six and half a dozen) or the incommensurability of options that are insignificant in our lives (if emphasis is placed on the difference between one option and the other). What do we mean?

Hate speech employs discriminatory epithets to insult and stigmatize others on the basis of their race, gender, sexual orientation, or other forms of group membership. The regulation of hate speech is deservedly controversial, in part because debates over hate speech seem to have teased apart libertarian and egalitarian strands within the liberal tradition. In the civil rights movements of the 1960s, libertarian concerns with freedom of movement and association and equal opportunity pointed in the same direction as egalitarian concerns with eradicating racial discrimination and the social and economic inequalities that this discrimination maintained. But debates over hate speech regulation seem to force one to give priority to equality or to liberty. On the one hand, egalitarian concerns may seem to require restricting freedom of expression. Hate speech is an expression of discriminatory attitudes that have a long, ugly, and sometimes violent history. As such, hate speech is deeply offensive to its victims and socially divisive. Though one might well be reluctant to restrict speech, it might seem that the correct response to hate speech, as with other forms of discrimination, is regulation. On the other hand, libertarian concerns may seem to constrain the pursuit of equality. Though one may abhor hate speech and its effects, the cure might seem at least as bad as the disease. Freedoms of expression are among our most fundamental liberties. Offensive ideas are part of the price one must pay to protect these constitutional rights.

It is a commonplace that coercion forms part of the nature of law: Law is inherently coercive. But how well founded is this claim, and what would it mean for coercion to be part of the “nature” of law? This article suggests that the claim is grounded in our current conception of law. The main focus of the article, however, is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the law’s efficacy; the other upon the law’s normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistaken—not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law’s normativity is inherently linked to coercion contains an important truth—not because coercion is necessary to account for normativity, but because the scope of law’s claim to authority encompasses the right to authorize the use of coercion.

Think of the color spectrum, spread out before you. You can identify the different colors with ease. But if you are asked to indicate the point at which one color ends and the next begins, you are at a loss. “There is no such point,” is a natural thought: One color just shades gradually into the next.

While legal scholars increasingly recognize that norms as well as law influence social behavior, the nature of these effects is not well understood. A key question concerns the content of norms. Specifically, do they reflect individual interest or do they enhance group welfare? In this paper I describe two general kinds of arguments that support these different views. I then develop predictions about the content of a particular type of norm—controller selection rules. These hypotheses are tested in an experimental setting in which individuals interact with each other over networked computers. The findings are consistent with group welfare explanations. That is, they suggest that norms constrain actions that create negative externalities, and that these norms are stronger in more cohesive groups. They also suggest, however, that such norms may not necessarily produce pro-social behavior.

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).

The fundamental tenet of the liberal conception of free speech is the principle of content neutrality, which Mill espoused in claiming that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”1. J.S. MILL, ON LIBERTY 36, n. 1 (John Gray and G.W. Smith eds., Routledge 1991) (1859). Note that content-neutrality as a principle of free speech is a different and less ambitious principle from neutrality among conceptions of the good. On this view, the immorality, the falsity, and even the harmfulness of an opinion are not good reasons to censor it. “However positive any one’s persuasion may be, not only of the falsity but of the pernicious consequences” of an opinion, Mill writes, its expression cannot legitimately be prohibited.2. Id. at 43. I am claiming that Mill does not consider harm prevention per se to be even a good (much less a sufficient) reason to censor an opinion or sentiment. This claim is admittedly in tension with some glosses of the so-called harm principle; but, as I have argued elsewhere, the role and content of Mill’s principle of liberty is often fundamentally misconstrued. See Daniel Jacobson, Mill on Liberty, Speech, and the Free Society, 29 PHIL. & PUB. AFF. 276 (2000). Nevertheless, in certain limited circumstances, particular acts of assertion or expression must “lose their immunity” from interference, as Mill puts it, so that we may proscribe incitement to riot, harassment, and the like. Just how to specify those circumstances consistently with content neutrality is a challenge for the liberal program. Of course, this principle and the liberal conception of free speech it embodies are controversial. It can be questioned whether the principle succeeds in protecting the class of speech and other expression that liberals aspire to protect. And even if it does cover the right class, the principle’s justification can be doubted. But I will not discuss these issues, on which there is already an immense literature, any further here.

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.

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law.

On November 27, 1905, the steamship Reynolds was moored to Vincent’s dock for the purposes of unloading its cargo, when a violent storm arose. The captain signalled for a tug to tow the ship from the dock after the cargo had been unloaded, but none could be obtained, because the waters had become too rough. It was too dangerous to cast off, and as the lines holding the ship to the dock became frayed, the crew replaced them. The Reynolds was repeatedly thrown against the dock, causing considerable damage to it. The ship’s owner, the Lake Erie Transportation Company, was held liable for the cost of the damage. Defendant’s appeal against an order denying a new trial was dismissed by a two to one majority of the Supreme Court of Minnesota in an opinion that has since enjoyed considerable and consistent attention.Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. Sup. Ct. 1910).

—S. Johnson and S. FishSTANLEY FISH, THERE’S NO SUCH THINGAS FREE SPEECH—AND It’SA GOOD THING, TOO 102 (1994).

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.

—F. FrankfurterUnited States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

There is a new reason for censorship. It has to do with the “mind-body problem” and, although philosophers are still working on this problem, preliminary results indicate that some of our most cherished First Amendment principles are at best “surprisingly naïve” and at worst “a metaphysical mistake.” Susan J. Brison, Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence, 4 LEGAL THEORY 39, 40, 61 (1998). Briefly put, the mind and the body are intimately, if somewhat mysteriously, connected. Hate speech, which causes mental distress, also causes physical distress. Hate speech thus deserves no special place in our pantheon of expressive liberties and should receive no greater constitutional protection than ordinary physical crimes such as assault.

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?

Islamic building codes require mosques to face Mecca. The further Islam spreads, the more apt are believers to fall into a quandary. X faces Y only when the front of X is closer to Y than any other side of X. So the front of the mosque should be oriented along a shortest path to Mecca. Which way is that? Does the path to Mecca tunnel through the earth? Or does the path follow the surface of the earth?

I. INTRODUCTION

Rawls’s fundamental conception of fairness, that “the arbitrariness of the world must be corrected for” (141/122),A Theory of Justice (1971) has been issued in a revised edition (1999a). The new edition involves no significant changes of substance in the topics I address. I cite to the relevant page in both editions, but to avoid cumbersomeness, I normally cite merely the page numbers separated by a forward slash. The footnoted parenthetical citation “(141/122)” thus refers to p. 141 of the 1971 edition and p. 122 of the revised 1999 edition. Where there is a textual difference, I generally give the version from the revised edition; but I cite language from the earlier version where it seems to me illuminating. runs deep in the liberal moral sensibility and permeates American jurisprudence.This is one interpretation of the underlying idea of due process. See Daniels v. Williams, 474 U.S. 327, 331 (1986) (approving “the traditional and common sense notion that the Due Process Clause [of the federal Constitution], like its forebear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government’” (internal citations omitted)). Even the very deferential “rational basis” standard under which the courts review Equal Protection challenges to social and economic regulation must avoid arbitrariness. A standard formulation is that similarly situated individuals must be treated similarly. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Reed v. Reed, 404 U.S. 71, 75–76 (1971); Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Likewise, the most common level of review by the courts of decision making by administrative agencies is that the agency action will be overturned if “arbitrary and capricious.” 5 U.S.C. § 706; see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971); see also Davis & Pierce (1994: 200ff.), discussing the meaning of this test. Rawls’s theory of justice is the most profound and elaborated statement that we have of the intuition that justice is freedom from arbitrariness, that social benefits and burdens ought not be distributed on the basis of random factors over which people have no control. The whole apparatus of Rawls’s theory is at bottom a way of representing this intuition with clarity and precision. But the theory runs athwart the institution of the family. As Rawls acknowledges in his treatment of equality of opportunity, the family introduces an irreducible contingency into the circumstances of our social life that any acceptable theory of justice must accommodate. But Rawls’s accommodation is unsatisfactory in a way that reveals a deep—indeed, a fatal—problem with the fundamental conception of fairness. Because the family is ineliminable, we must give up a conception of justice based on correcting for the arbitrariness of the world, and adjust our notion of equality of opportunity accordingly.

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.

There is much in the paper that I agree with, much that I do not understand and am probably not competent to understand, and some which I am puzzled by. I will concentrate on the last. Both regarding puzzles, and regarding points of agreement and incomprehension, I will be selective and touch on only a few.

When I was invited to participate in this symposium, I welcomed what I thought would be the opportunity to apply my views about the semantics and logic of vague language to the real-life problems of vagueness legal theorists worry about. I confess to having formed my ambition without a very clear sense of what jurisprudential problems might be illuminated by general theories of vagueness. To be sure, I was able to guess that a symposium on Vagueness and Law must have something to do with the dilemmas courts face when it is indeterminate how a legal dispute should be resolved. What I had not thought through was how philosophers like myself might help to illuminate those dilemmas by bringing to bear on them their own logico-semantical theories of vagueness. This was unfortunate because, having done a bit of homework, I have reached the conclusion that philosophical theories of vagueness, even if true, have nothing to offer jurisprudential concerns about vagueness. Once she is reminded of certain platitudes about vagueness, the legal theorist needs no further help from philosophers of language and logic. Let’s see why this is so.

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.