The Mechanics of Claims and Permissible Killing in War
- Date: Nov 27, 2019
- Time: 18:00
- Speaker: Prof. Dr. Alec D. Walen (Rutgers School of Arts and Sciences, Professor für Recht, Philosophie und Strafrechtspflege)
- Location: Max Planck Institute for Foreign and International Criminal Law
- Host: MPI for Foreign and International Criminal Law & University of Freiburg
According to the standard view of rights, rights are not absolute. Sometimes, to save some, it is permissible to do things that would normally violate rights but that, under the circumstances, merely infringe them. The function of rights, on this standard view, is at most to raise a kind of moral barrier to their neglect. Moreover, even if an agent has sufficient moral reason to get over that barrier, she will presumably have wronged the right-holder. The only way, according to the standard theory, to do what would normally wrong a right holder, without actually wronging the person, is if she has waived or forfeited her right. I will argue that much of this standard picture is wrong. I argue for a different model—the mechanics of claims—according to which rights are the output of a balance of claims, an output which describes what is ultimately permissible. Rights infringement is, on this view, a misleading, morally distorting idea. Rather, we need to focus on how different kinds of claims interact, and what makes claims stronger or weaker. Forfeiture is only part of that picture, a part that is over-emphasized in the standard view. As for the state, I will argue that through its law-making and regulatory power, it has an important role in fixing certain kinds of substantive rights. It sets, within limits, what count as legitimate expectations. Nonetheless, the state’s power is substantially limited by substantive rights. Although the state has certain unique powers, it remains an agent confronting other agents in a space of rights. It is within this framework that I argue we should think carefully about when defensive force may permissibly be used.