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A Theory of Rights

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 The Mechanics of Claims and Permissible Killing in War

Alec D. Walen

Chapter 3

A Theory of Rights

This chapter covers the theory of rights that sits at the core of this book. I start with an account of

the purpose of rights, the three principles that ground what I call the space of rights, and the basic

functional structure of rights, which I call the mechanics of claims. Next, I give a more formal

account of what I mean by the mechanics of claims. I then contrast it with the infringement

model. Finally, I introduce, explain, and defend the restricting claims principle, which, in turn,

can be used to defend a key principle in deontology: the means principle, that is, the principle

that it is particularly hard to justify using another as a means if doing so imposes some cost on

him, unless he has waived or forfeited his right not to be so used.

1. The Purpose and Basic Structure of Rights

Rights constitute a substantial part of the normative space in which justice sets the limits of what

we may do. On the patient side, rights are the coin in which justice is measured when it is the

impact of an agent’s choice on particular people that determines whether her choice is

permissible. In that sense, rights fundamentally exist to ensure that individuals enjoy the respect

they are due. They mark out a sense in which the individual has a status that is morally

inviolable.1 On the agent side, rights mark out the bounds of the permissible. An agent has a right

1
See Rawls, 1971, p. 3: “Each person possesses an inviolability founded on justice that even the
welfare of society as a whole cannot override.” See also Nagel, 1995, p. 89, identifying our
distinctive moral status with “a certain kind of inviolability, which we identify with the
possession of rights.”

1
to act if and only if her action does not violate the rights of others and is otherwise consistent

with the demands of justice.2

In what follows I spell out these ideas more fully, arguing for a Kantian conception of the

space of rights—I define what I mean by that at the end of the next section—and articulating the

three principles on which it rests. As I noted in the Preface, the model of rights I offer here is not

meant to be an analysis of what it means to have rights. I offer it as a model of rights that helps

us understand what is substantively morally true.

1.1. The Basic Function of Rights

The basic function of rights is to provide a normative space in which we can each pursue our

own ends while treating each other as free but responsible, equal fellow agents whose welfare

morally matters.3 The theory I offer develops this substantive conception of what rights do. The

theory is grounded in three deeply attractive moral principles that I articulate with some care in

section 1.2.

Before articulating the grounding principles, I want to contrast this basic idea with the

currently dominant theories of rights, the will and interest theories. The will theory emphasizes

the importance of powers that give rights-holders the ability to exercise their will; the interest

theory emphasizes the importance of promoting the welfare or interests of the right-holder. Each

runs into well-known problem cases or counterexamples. But those problem cases are not my

2
This sentence reflects my fundamentally liberal belief that agents are at liberty unless there is a
sufficient reason to restrict their liberty. I intend a capacious notion of justice here, one that
allows for duties to obey reasonably just laws that are passed for the general welfare. See § 1.3.1
for more detail.
3
This is a distinctly Kantian conception of the function of rights, drawing in particular from his
doctrine of right: “Any action is right if it can coexist with everyone else’s freedom in
accordance with a universal law.” Kant, (1797) 1991, p. 56. I depart from Kant most
fundamentally insofar as I incorporate welfare into the space of rights.

2
concern here.4 My concern is to say that these theories present overly narrow bases for ascribing

rights. The bases are narrow not just in the sense that they exclude each other but more

fundamentally in the sense that they don’t conceive of rights as constituting a space in which to

articulate the limits of permissible action generally; they see rights as more or less directly

reflecting and highlighting a subset of ethical concerns of particular relevance to the right-holder.

The dominance and the misguided narrowness of the will and interest theories explain

two related problems with the current state of rights theorizing. First, too much of normative

significance is left out of determining who has what rights. Saying that A has a right to X does

not come close to determining what may be done in the final analysis. The common view is that

after recognizing that something about a person gives her a right, one has to deal with possible

conflicting rights and conflicts between rights and consequentialist considerations. And this latter

conflict will have to be resolved on grounds that are not specified inside the space of rights. The

incompleteness of the normative picture that results from recognizing that a person has a right

leads, naturally, to the infringement model, according to which it is often morally permissible to

act against a person’s right. I will articulate, mostly in Chapter 4, a host of reasons not to accept

that model of rights.

To date, the dominant way to avoid the infringement model is to embrace

specificationism, the view that the better thing to say, when some would want to say that it is

permissible to infringe a right, is that the right contains an exception that makes that act

4
See Leif Wenar, 2013, for a general discussion of the will and interest theories and the
problems they face and for a creative alternative that he calls the kind-desire theory. In the end,
however, I think the question of who we say is a rights-holder has been given much more
attention than it deserves; when disputed, it is not really of great moment who is the right-holder,
and the question has led to the focus on the will and interest theories, which, as I argue in the
text, has been distorting for rights theory as a whole.

3
permissible.5 For example, while property rights normally give owners a right to exclude others

from their property, in emergency situations it may be acceptable for others to use an owner’s

property without her permission. Rather than treat such cases as infringing on the owner’s right

to exclude, we could simply say that the right to exclude does not cover such cases. Many object

that specificationism cannot make sense of the moral residue owed the owner in a case like that;

I return to that problem in Chapter 4, section 1. The problem I want to raise now is that

specificationism does not help bring more normative considerations into the space of rights.

Rather, it too assumes that one often has to look outside of those narrow considerations that

ground a right to understand why a right might have to be specified and limited in a particular

way to accurately track our judgments of permissible action.6

The second problem with contemporary rights theory is the related view that rights can be

eliminated from our normative discourse without any substantive loss, that the loss would be

only in terms of rhetorical convenience and the hope of agreeing on certain mid-level principles

without having to agree on the deeper foundations.7 This is a mistake.

5
See Shafer-Landau, 1995; Oberdiek, 2004. I say a bit more about specificationism in Chapter 4,
§ 1.
6
Liberto, 2014, argues in favor of a partial or “restricted” version of specificationism. On her
view:
if the justification for an exception is the same as the justification for rights within
the broader ethical theory, then the exception is specified in the right; however, if
the justification for the exception is different from the justification for rights, then
the exception is not specified by the right, and acting in accordance with this
exception constitutes an infringement of the right. (p. 177)
This suggestion helpfully flags the fact that, on the standard theories of rights, one often, but not
always, has to look outside of the narrow justification for a particular right to appreciate its
contours in practice. But that does not help with the problem that too much normative work is
being done outside of the space of rights.
7
This is exactly the view taken by Raz, 1986, p. 181. See also Oberdiek, 2008, p. 133
(emphasizing that “rights are not themselves normative bedrock, rather, practical reasons are”).

4
 Rights are not theoretically eliminable “intermediate conclusions” in the overall

landscape of normative argument.8 Rights are the conclusions of a specific form of normative

reasoning, one that reflects the principles underlying the space of rights. This is a normative

“space,” one that I model on what Wilfred Sellars called “the space of reasons”: “in

characterizing an episode or a state as that of knowing, we are not giving an empirical description

of that episode or state; we are placing it in the logical space of reasons, of justifying and being

able to justify what one says.”9 The space of rights is a subspace in the space of reasons; to move

in it, one has to engage in a specific form of normative reasoning, using a particular structure and

operating with a particular set of intermediate principles that describe how normative

considerations are to be weighed in that structure. If one thinks that rights are just rhetorical

conveniences, mere intermediate conclusions, one will overlook the way the space of rights

shapes our normative discourse, and the distinctive features of rights discourse will seem more

mysterious and more ad hoc than they should.10

The idea of a space of rights has another significance as well, beyond being a special

subspace in the space of reasons. The metaphor of a space is crucial. It is frequently thought that

rights have a distinctive bilateral form: “A has a right that B do X” implies that and is implied by

“B owes A a duty to do X.” This corresponds to what Thomas Nagel called justification “to a

subject”11: B is obliged to do X because she cannot justify not doing X to A, who has a right over

8
Again, see Raz, 1986, p. 181.
9
Sellars, 1997, p. 76.
10
One feature of rights discourse that I do not discuss in this book, but that I hope to explore in
future work, is the categorical nature of the duties that arise out of it. If one thinks merely in
terms of practical reasoning, it is a bit mysterious why duties to respect rights should be accepted
in the categorical way in which they present themselves. If one thinks about agents operating in a
space of rights, a space that has the function of determining what is and is not permissible, a
space that an agent cannot dip into at will—one either operates in it or does not—then the
categorical nature of duties to respect rights becomes fairly straightforward.
11
Nagel, 1979b, pp. 66–68.

5
her. A similar structure underlies T. M. Scanlon’s version of contractualism.12 The alternative,

according to followers of these sorts of models of rights and deontology more broadly, is

justification that appeals to some version of impersonal value. The notion of a space of rights is

meant to call attention to the idea that this is a false dichotomy. Though A having a right against

B is a bilateral relationship, it occurs in a larger space in which the facts that establish that A has

this right refer to all the parties who have a claim on B. Instead of operating in a one-

dimensional line connecting A and B, the space of rights operates in many dimensions. But it

also does not merely appeal to impersonal value. It has its own distinctive structure and rules and

is grounded in the claims of individuals, not in impersonal value. This justificatory structure too

is lost if we fail to mark the distinctiveness of a space of rights.

1.2. The Three Principles That Ground the Space of Rights

The space of rights rests on three principles. These principles should be understood not as

values—though the third does concern the integration of value into the space of rights—but as

axioms, analogous to those in geometry.

1. Autonomy principle: we all have our own lives to lead; the space of rights must

give us substantial freedom to do so, while also holding us accountable for our

choices.

2. Equality principle: we are all fundamentally equal as members or “citizens” of the

space of rights.

3. Welfare principle: our welfare matters, and that value affects the rights we have.

I take these or similar principles to be familiar. The autonomy principle (modified by dropping

the accountability clause) by itself grounds ethical egoism. Combine the autonomy principle as

written with the equality principle and one gets the basis for libertarianism. Combine the equality

12
Scanlon, 1998, p. 229. I say more about Scanlon’s model in § 1.2.3.

6
principle (modified by substituting “the moral community” for “the space of rights”) and the

welfare principle (modified by substituting “what may be done” for “the rights we have”) and

one gets utilitarianism. Combining all three principles, however, grounds and explains the space

of rights and much of its content.

In what follows, I explain the content of each principle and how each helps give rise to a

structured space of rights.13 In subsequent sections, I articulate more carefully how to operate in

that space of rights.

1.2.1. The Autonomy Principle

The autonomy principle, as I wrote in “Transcending the Means Principle,” is a broadly Kantian

principle; but it does not exactly reflect “Kant’s idea of autonomy.”14 It departs from Kant

because “the emphasis is not on using one’s own reason [to legislate a universal law].”15 But it

picks up on the Kantian idea that each person is to be treated as an end in herself in the sense that

she can rightfully be especially concerned with her own ends and her own welfare.16 It also picks

up on the Kantian idea of agents as capable of regulating their pursuit of their own ends by

reflecting on the demands of morality. These demands require them to recognize themselves as

just one among a larger community of people who are all equally free to pursue their own ends,

all of whom deserve respect and all of whom can be held responsible for their choices.

13
This is a broadly constructivist project, in line with the way Rawls describes constructivism,
1993, pp. 93–95. In embracing constructivism about rights, I mean in no way to reject normative
realism as regards other aspects of morality. My claim is only that the space of rights is
particularly well accounted for by appealing to the implications of working with this particular
set of fundamental principles.
14
Walen, 2014, p. 436.
15
Ibid. Kleingeld, 2018, argues that the later Kant, in the Metaphysics of Morals, dropped his
appeal to the principle of autonomy because his politics had changed: he came to view
legislating as involving real consent and thus dropped the idea that the moral law reflects real
legislative activity.
16
I take it that Kant’s thought that morality was the condition for being “worthy of happiness”
reflects a basic idea that each can rightfully be primarily concerned with her own happiness.
Kant, (1785) 1993, p. 393.

7
 This will prove to be the most significant of the three principles, so I will say much more

about it soon. But I want, first, to be clear how to distinguish the different meanings of autonomy

so that the meaning picked up by the autonomy principle is not confused with other meanings.

Autonomy can be considered a capacity, a value, and a status. The autonomy principle is

fundamentally concerned with the last of these three, status, though the capacity is relevant to

having the status and has a value.

Autonomous capacity is the ability to make decisions. In a weak sense, it is possessed by

any self-directing organism that has its own subjective point of view—thus a computer is not

autonomous, but a normal chicken, fish, or dog is. In a stronger sense, it is a capacity to make

decisions in such a way that the agent is morally responsible for her decisions—in this sense a

dog or a child is not autonomous, but most adults are. As a value, the weaker notion of autonomy

can ground claims that the welfare of the being in question has a distinctive moral value, a kind

of value not possessed by a tree or a river. But the value of autonomy is more importantly

connected to the strong sense because there is a special value in helping a person achieve and

maintain her autonomy—a point with both first-person and third-person significance. As a status,

autonomy can be understood as the normative claim that an autonomous agent, in the strong

sense, should be treated as such, which means that she is not only held responsible for her

choices but accorded the fundamental right to make choices primarily for her own ends.

As already noted, the autonomy principle articulates autonomy in the status sense. It says,

in essence, that the space of rights must recognize that autonomous people, in the strong sense,

have the status of beings who may rightfully pursue their own ends, as long as they do so within

the bounds set by the space of rights.

1.2.2. The Equality Principle

8
For the equality principle, the idea that we are fundamentally equal is key. Of course, we do not

all share the exact same rights. But in virtue of achieving a threshold level of autonomous

capacity (in the strong sense), all those who have crossed that threshold have fundamentally

equal status as “citizens” in the space of rights. Insofar as people have the same sorts of claims

for the same sorts of interests, one person’s claims count as strongly as another’s. Claims have

weight in determining who ultimately has a right to what in ways that reflect not just the interest

protected but the nature of the claim—a point I explore in sections 2 and 4 in this chapter. The

important point to make at this juncture is that insofar as different people have the same interests

and those interests are carried by the same sorts of claims, those claims will count the same.

Again, it is important to be clear that equality in this sense is a principle, not a value. It is

not a state to be achieved, possibly by leveling down. It is a principle affecting how people’s

interests register in the space of rights and how their claims get balanced against one another.

They register and get balanced in a way that reflects the fundamental equality of people as moral

agents, as citizens in the space of rights.

Animals present an obvious worry for this notion of fundamental equality. I accept that

animals have rights, but they are not fundamentally equal to most humans. The reason is that

fundamental equality in the space of rights is for citizens in the space of rights, and citizens are

people who can navigate the space of rights as autonomous agents, in the strong sense. Citizens

possess not only claims but also the capacity to recognize and respect their duties. They can also

justly be held responsible if they act wrongfully. And they can exercise Hohfeldian powers,17

thereby changing their rights by such acts as promising and trading. Small children are not yet

citizens in the space of rights, but we treat them as having claims not to be harmed and to be

17
See Hohfeld, 1913, where he introduced his analysis of rights into four pairs (two first-order
and two second-order); powers are second-order rights.

9
aided on a par with full citizens because we expect them to become full citizens.18 Former

citizens who have lost their ability to act as moral agents have claims on us via the citizens they

once were as well as via the sentient, or at least living, beings they still are. But nonhuman

animals are trickier. I suggest we treat them as beings with claims not to be harmed and claims to

be helped, with immunities that protect against others stripping them of certain claims, but

without liberties, duties, or powers. They are not even second-class citizens; they are something

more like guests in the space of rights. I do not mean to denigrate their claims on us, but it is a

secondary issue, which I put to the side to focus on the claims of normal moral agents. It is they

who are fundamentally equal in the space of rights.

1.2.3. The Welfare Principle

I turn now to the welfare principle, which, unlike the other two principles, fundamentally

expresses a value. There are five important points to make about this principle. First, the welfare

principle straightforwardly explains why claims add up. Each person’s welfare matters, and it

matters as a good thing, such that the more people do better, the better. This should not be taken

to mean that we should create more people so that there is more value in the world; its

implications along that dimension are surely complex, contested, and beyond the scope of this

book.19 For my purposes, it need mean only that insofar as people do exist, their having better

lives is morally valuable.20

18
I take no stand on when those claims attach: whether at birth or conception or somewhere in
between. There is too much to say on that topic to say anything quickly.
19
On the ethics of creating people, see Parfit, 1986; Temkin, 2012.
20
I do accept an important limit on how claims add up, the limit known as “limited aggregation.”
The idea is that if patient-claims are of vastly different strengths, then no number of weaker
claims outweighs a stronger claim. For example, an agent should save a life rather than prevent
any number of people from having a headache. I discuss this idea in some depth in Walen,
unpublished manuscript.

10
 This utilitarian idea might seem to be the sort of thing that should be alien to a

deontologist. But I think the thought that deontologists should disavow the aggregation of claims

should be rejected as a confusion.21 It would take me too far afield to explore that claim in depth,

but I will address one reason for rejecting the thought that the numbers should be taken to add

up: the contractualist view that, as T. M. Scanlon puts it, “the justifiability of a moral principle

depends only on various individuals’ reasons for objecting to that principle or alternatives to

it.”22 According to Scanlon, the implication of this view is that the numbers can count only

insofar as having more on one side than another can break a tie. For example, if A could go left

and save three people or go right and save five people, she has reason to go to the right because

three on the right offset three on the left, and each of the two remaining people on the right

makes a difference.23 But there are two problems with this approach to the relevance of numbers:

an intuitive problem and a misguided theoretical assumption.

The intuitive problem is that Scanlon’s tiebreaking model fails to capture the way

numbers intuitively matter. It may account for why one should rescue a group of n + 1 people

rather than a group of n people, all else equal. But it cannot explain the common intuition on the

following chestnut of deontological ethics24:

Trolley Switch: Brenda, a bystander at a switch, can throw the switch and thereby

turn a trolley that is hurtling down a hill, out of control, away from five innocent

21
The original objection to letting the numbers count was posed by Taurek, 1977. I believe
Parfit’s (1978) response to Taurek is decisive. I will say a bit more about Taurek’s view in
Chapter 3, § 2.2.
22
Scanlon, 1998, p. 229, emphasis in the original.
23
Ibid., p. 232.
24
To be fair, Scanlon’s discussion of tiebreaking was in the context of save–save cases, not kill–
save cases. But his insistence on the individualist restriction seems quite general.

11
 people and towards one innocent person on a sidetrack (the “sidetrack man”),

thereby killing the sidetrack man and saving the five.25

To see why Scanlon’s tiebreaking model runs into trouble, consider a variation in which

Brenda’s choice is to save two by turning the trolley onto and killing one. Many think it is not so

clear that she may proceed. Most people intuitively judge that killing is more than a little harder

to justify than allowing to die; thus, it seems to many to take more than a two-to-one advantage

to justify killing. That is why the case was originally designed to have five on one track and one

on the other. Let us stipulate, for the sake of argument, that the “magic” ratio for justifiably

turning the trolley is three to one. Scanlon cannot account for this with his tiebreaking move.

First, there is no tie; the claims to be saved are weaker than the claim not to be killed. Second,

there is no way to avoid the problem by saying that one claim not to be killed is stronger than

one claim to be saved but that adding one more claim to be saved shifts the balance. By

hypothesis, it takes two extra claims to be saved to shift the balance. Thus, we have to allow

claims to be counted or to add up.26

The deeper problem with Scanlon’s objection to letting the numbers count is that it is

based on a misguided theoretical assumption. He assumes that if we allow the numbers to count,

then we cannot keep our grip on the idea that morality has to be justified to individuals. This is a

mistake. Respect for our individuality is provided by the autonomy principle. It guarantees that

each person is given adequate respect as an individual. As we will see shortly, the autonomy

principle grounds differences in types of claims. These differences limit the way the numbers can

matter. Paradigmatically, patients have strong claims not to be used as a means without their

25
Foot, 1978, first formulated a trolley case. But Foot left a driver in control and saw it as a
choice between killing one or killing five. It was Thomson, 1976, who first put the responsibility
on the shoulders of a bystander at a switch, thereby raising the problem of justifying the killing
of one to save five.
26
For a related argument, see Saunders, 2009, p. 283; Woodward, 2014, pp. 634–37.

12
consent. Given that we can rely on the autonomy principle to ensure respect for the individual,

we can also allow the welfare principle to ground the common-sense thought that it is morally

proper to let the numbers count, as long as we take into consideration the kinds of claims that are

being counted.27

In stating my second objection to Scanlon I have already raised the second important

point about the welfare principle: insofar as it makes sense to attach welfare interests to the

claims of particular individuals, the way the welfare interests count reflects the nature of the

claims of the persons whose welfare is at stake. If a patient has waived or forfeited a claim not to

be harmed, then his welfare in that regard will count for much less than if he had not done so. In

particular, the claims of people who have forfeited their right not to be harmed do not seem to

aggregate; it is permissible to kill any number of culpable aggressors to save an innocent victim.

There is a sense, however, in which a patient’s claim to have his welfare count is inalienable: it

still counts for necessity and proportionality. It is impermissible to kill a person who poses a

threat to some innocent victim if it is possible to stop the threat without killing him and at very

little extra cost to the agent, the victim, or bystanders.28 Nevertheless, if a patient has forfeited

his claim to have his welfare count, then his welfare will register in the balance of claims via a

much weaker claim.

Importantly, there are also a variety of other ways, to be made clear in sections 2 and 4 of

this chapter and in Chapter 6, in which the way one’s welfare weighs in determining who has a

27
Some, going back to Anscombe, 1967, also worry that there is something paradoxical in
saying that some number of people could have a right only because they together cross some
threshold number. See also Scanlon, 1998, p. 230. But my point is that this is a mistaken
prejudice. Rejecting it does not require accepting any funny notion of groups having interests
above and beyond those of the individuals who comprise them. It requires only that claims,
which inhere in individuals, can aggregate in the balance that determines who has what rights.
28
See Chapter 1, § 2, in particular the comparative proportionality principle (principle 5) in
permissible eliminative killing.

13
right to what depends on the kind of claim that picks it up. For example, if it is picked up by a

claim not to be harmed, it will register more strongly, all else equal, than if it is picked up by a

claim to be aided.

It is important to be clear that this second point is not that people’s interests count more if

they are protected by rights. That is a common but deeply confused thought. One way it is

confused is that it is simply false. As Scanlon writes, it seems wrong to say that “murder is a

much worse thing to have happen” than an accidental killing.29 Another way it is confused is that

it wrongly suggests that the importance of not violating rights is to be cashed out in value terms.

To the contrary, it is a basic fact about rights that they are to be respected. This is not to say that

nothing can be said about why rights must be respected. My conception of the space of rights is

that it provides people an important normative space within which to live. The mistake is to

reduce the importance of rights to something like consequentialist value.

The third important point to make about the welfare principle is that all welfare that can

register through competing claims on agents does register that way. It is a mistake to treat rights

as limited to a certain subset of welfare claims, such as claims not to be harmed and claims based

on things like promises, leaving other welfare interests to somehow register in the overall moral

balance but not through the filter of the space of rights.30 This just leads to confusion. Rather, all

welfare claims that matter to what an agent is permitted to do register, as far as possible, as

claims in the space of rights.31

29
Scanlon, 1998, p. 83. I come back to this issue in Chapter 9, § 2.2 (discussing an argument of
Helen Frowe’s).
30
See Thomson, 1990, p. 162.
31
I am agnostic about whether the welfare interests of people who do not yet exist, but who do
come to exist, can register in the space of rights. Some, for example, Woodward, 1986, extend
claims to such people. I am unsure whether we should treat nonexisting people as having rights,
rather than merely having morally relevant interests that could limit what an agent is permitted to
do.

14
 Fourth, the welfare interests of a patient that matter for a particular claim are not the full

set of his interests affected by an agent accommodating or “contravening” his claim; they are the

fairly narrow interests tied directly to that claim.32 For example, if A threatens to cause harm H

to V, we should say that the strength of V’s claim not to suffer H is a reflection just of his

interest tied directly to his not suffering H. If his not suffering H would also cause him to enjoy

some benefit B, that is picked up by a separate claim to enjoy B. The reason for this restriction is

that it is necessary to respect V’s autonomous capacity to decide whether to make such trade-offs

or not. That is, it is up to V to decide if he would like to accept H as the price of enjoying B; it is

not up to A to force that package deal on him.

One might challenge this point by introducing an example like this: A patient arrives in a

hospital unconscious, without a healthcare directive and without the company of anyone with

power of attorney. He needs an operation; otherwise, he will soon die. A surgeon, we may

assume, is permitted to cut into him, thereby harming him in contravention of his claim not to be

cut but responding to his more significant claim to have his life saved. But I don’t take this to

present a real counterexample. We think the surgeon may cut into the patient because, absent

information about what he would want, she has to guess what he would want, and being saved is

more likely to be the correct guess. In other words, this is a case of imputed consent. The default

assumption in this case in no way undermines the thought that the surgeon may not operate on

someone who positively refuses his consent.

Fifth and finally, the word benefit has two importantly distinct meanings. One meaning is

simply a direction of effect. To save someone from harm is to benefit that person. In that sense,

benefits are as central to my project as harms. But there is another meaning with respect to which

the reasons to benefit a person are substantially weaker than the reasons to save him from harm,

32
As far as I know, Woodward, 1986, pp. 809–11, was the first person to make this point.

15
and this is so even when an agent might reasonably choose to suffer the harm to gain the

benefit.33 This second meaning of the term involves some sort of baseline state of well-being:

falling below that baseline is suffering a harm; rising above it is enjoying a benefit. It is hard to

draw this line in a principled way, and I will not try to do so. All the cases I focus on, however,

will fall clearly on the side of harms caused or harms averted.34

1.3. The Further Relevance of the Fundamental Principles

1.3.1. Rights as Grounding only a Subset of Possible Wrongs

Having introduced three fundamental principles, I want now to make three more points about

what I aim to do by invoking these principles. The first is a negative point, about what I am not

saying; the next two are positive points about the significance of the autonomy principle.

The negative point is this: the three principles and the space of rights they ground do not

offer a complete framework for making sense of what is and is not “wrong” to do. This is so for

two reasons. First, the notion of moral wrongness is broader than the space delimited by the

space of rights. For example, it may be at least pro tanto wrong for an agent not to develop her

talents, to take pleasure in the pain of others, and to be ungrateful for the good things others have

done for her. One might be tempted to object that the last two wrongs are involuntary and thus

fundamentally not the sort of thing that she can do at all. But they each contain a voluntary

dimension: she can choose, for example, to indulge or avoid the pleasure she would experience

in perceiving the pain of others (not only by not inflicting or by helping to end their pain but by

directing her attention), and she can choose likewise to cultivate at least the awareness of why

she has reason to be grateful to others. This allows us to say that she might act wrongly in all of

33
For a useful discussion of this point and the preceding point about two meanings of benefit, see
Shiffrin, 2012.
34
This point was first raised in Chapter 1, § 2.

16
these cases. Nevertheless, I think agents have the right to commit these sorts of wrongs. This sort

of right to do wrong is not merely a claim-right not to be forced to avoid these sorts of wrongs.35

It is also a right with first-person significance: an agent need not address herself with the

command that she must not do these things.36 She should strive not to do these things, but these

sorts of moral failures are wrong in a way that is not connected with the imperative to respect the

rights of others.

The second reason these principles and the space of rights they ground do not offer a

complete basis for making sense of what is and is not “wrong” to do is that even within the space

of rights not all instances in which an agent has no right to do something reflect the limitations

imposed on her by the rights of others. I have said something about this, but I want to say a bit

more before putting this sort of exception to the side.

The key idea is that there may be duties of justice that cannot be explicated by reference

to particular claimants who have a right that the agent perform her duty. I offer three examples to

illustrate the point. First are duties of fairness, such as the duty not to freeride on the sacrifices of

others. Often, in such cases, none of one’s fellow citizens can claim the relevant standing to say

that the duty is owed to her.37 Moreover, often, there is no clearly identifiable group of others

who are, collectively, the rights-holders. Take, for example, cheating on one’s taxes. Is this duty

owed only to others who do not cheat on their taxes? What about those who have cheated a little

but not much or often? It seems better to say that one simply has no right to be a tax cheat. If we

want to say that the corresponding duty is owed to someone or something, it is best to say that it

35
This is the interpretation of the right to do wrong in Waldron, 1993; I believe it is too narrow.
36
For a similar view, see Harman, 2016.
37
Standing to demand respect of one’s rights may not be essential to having patient rights in all
cases, but there is good reason to think that they generally go hand in hand. See Gilbert, 2018.
For an exception, see the discussion of voluntary “punishment” in Chapter 4, § 1.2.

17
is owed to an abstraction: one’s fellow citizens. But it may be clearer to say simply that one has a

duty of justice to pay one’s fair share.

Second, the duty to do retributive justice might also be a duty owed to no one in

particular. It is not owed to the criminal: pardoning or choosing not to prosecute criminals does

not violate their rights.38 Nor is it owed in particular to the victims; even if they would choose to

pardon the offender, a retributivist would think there is nevertheless some reason for the

prosecution to go forward. Again, if this duty to punish the guilty exists, it seems to be owed to

the abstraction of one’s fellow citizens. Third, something similar can be said about many duties

of office holders more broadly. The president’s duty to faithfully execute the law is owed to her

fellow citizens but to no one in particular.

In addition to these three kinds of duties of justice, agent-rights may be limited by duties

to respect that which has agent-neutral value out of proportion to the value particular agents

happen to attach to it. Consider, for example, the preservation of certain species of animals,

awesome natural formations, or historical artifacts. The duty to protect or preserve such things

may call for devoting resources to that end rather than to satisfying the claims of particular

individuals, and it arguably does so to a degree not reflected in the claims of particular

individuals who may happen not to care as much as they morally should care about particular

goods of that nature.

For the sake of completeness, it is worth mentioning another way in which the limits on

agent-rights reflect something other than the claims of others: moral rights may be grounded, in

particular societies, in legal decisions to give certain people, or perhaps all people, legal rights

38
There may be something to the Hegelian notion that wrongdoers have a right to be punished,
but I interpret Hegel’s point to be that they have a right to be treated as responsible beings, for
whom punishment is a fitting response, where the contrast is being treated as merely a dangerous
animal. See Morris, 1968.

18
not because doing so reflects or delimits prior moral rights, but because it promotes certain other

values. Consider, for example, the particular contours of free-speech rights. They may reflect, to

some degree, the individual interests of speakers and listeners; in that way the legal rights would

reflect the moral claims that correspond to those interests. But to a substantial degree they reflect

a range of other considerations as well, such as the extent to which it is believed that granting

them will promote the search for truth (an agent-neutral value). When the law creates legal rights

that do not simply track or specify prior moral rights, it creates a framework of practices and

expectations in which the legal right–holder acquires a moral expectation that she will be free to

enjoy her legal rights. Thus, the law gives birth to moral claims both for liberty and for

noninterference. Something similar can be said of the moral rights of patients that are at least

partly grounded in legitimate expectations established by social and legal convention, such as

property rights. Indeed, as property rights are central to the space of rights, this is a profound

way in which legal rights impact the contours of moral rights.

Nonetheless, despite all of these ways in which the content of rights reflects something

other than the moral claims of individuals, many rights, governing both individuals and the state,

do reflect first and foremost the balance of the conflicting moral claims of individuals, as

grounded in the three principles. Going forward, I will focus almost exclusively on those cases,

ones in which it is the balance of moral claims on an agent, and the agent’s own moral claims,

that determines who has a right to what.39

1.3.2. The Autonomy Principle and the Topology of Rights

39
For the reader well versed in Hohfeldian terminology, it may seem jarring to use the term
claim as the generic; Hohfeld used it to designate one species of right, that of a patient,
corresponding to a duty in an agent. But I think that claim serves as the best generic term in
common parlance, so I beg the reader’s indulgence in my using it to cover the pro tanto rights of
both patients and agents.

19
The first positive point about the significance of the autonomy principle is that it explains the

topological structure of the space of rights. What I mean is that rights are built around the claims

of patients on an agent. This is quite unlike consequentialism, in which the topology is much

simpler: good things and bad things simply add up on different sides of a single agent-neutral

balance—like positive and negative charges in an electrical field.40 In the space of rights,

balancing is also in play; but it is claims, not values, that weigh in the balance, and the balances

always operate on individual agents. Two agents, confronting the same set of patients, may have

different claims on them because of the different ways they relate to the various patients. Rather

than a single balance, the topology of rights is one of multiple nodes, with the claims of all

patients coming in separate lines to each agent.

This relational topology—where rights arise from the balancing of patient-claims on

agents—is essential for making sense of many aspects of rights. I will focus, however, on one

particular feature to show that it must be accepted: the need to respect a fundamental distinction

between two kinds of patient-claims, positive claims for aid and negative claims not to be

harmed.41 This distinction has to be marked if we are to make sense of the autonomy principle

for people not only as agents but also as patients. That is because, to have one’s own life, one

needs not only to be free to make one’s own choices but also to live with them and with the way

that luck inevitably filters into them. This does not mean that the space of rights should treat

40
This is not necessarily true. Consequentialism can be agent-relative in a variety of ways. See
Sen, 1988. But consequentialism has traditionally been a fundamentally agent-neutral moral
theory. There are moral theorists who use the label differently. For example, Dreier, 2011, uses
the idea of good consequences to denote a property that is morally worth aiming at. Whatever is
the right thing to do would be, in that way of framing “good consequences,” at least adequately
good. This, however, is a revisionist conception of consequentialism. I refer to the original use of
consequentialism, according to which the notion of value is capacious; but value has to be
measured from an agent-neutral point of view. (For a compelling argument that Dreier’s
revisionist consequentialism is implausible, see Lazar, 2017.)
41
The argument in the next two paragraphs recapitulates a set of arguments I first made in
Walen, 1995, pp. 188–93. I return to the significance of luck in the next section.

20
people’s bad luck as something that others have no duty to address; the welfare principle is

inconsistent with that. It does mean, however, that claims to be helped to overcome harms

already inflicted or already heading one patient’s way have to be weaker, all else equal, than

competing claims not to be harmed. And to make sense of that notion, rights have to be

relational.

To see why that is, consider this case:

Murderer: Martin, a would-be murderer, is threatening to kill two people by

running them over. Ronda can save them, but only by ramming Martin’s car with

her car. However, if she does that, she will drive his car into a bystander, Bill,

killing him.

Now consider the claims in this case. The two whom Martin is threatening to kill have negative

claims not to be killed. Bill, whom Ronda would kill if she rammed Martin’s car, also has a

negative claim not to be killed. If claims simply added up like agent-neutral goods, then clearly

she should ram Martin’s car so that fewer negative claims are contravened. But that analysis

misses an important feature of the case. The two have negative claims on Martin, that he not kill

them. Their claims on Ronda, however, are positive claims that she aid them by saving them

from Martin. Meanwhile, Bill has a negative claim on her that she not kill him by driving

Martin’s car into him. If negative claims are significantly stronger than positive claims, then

Ronda may not kill Bill, not even if that means that she cannot save the other two. We can make

sense of that only by supposing that what matters are their claims on her, not their claims in

some free-floating claim space that allows them to be added up from an agent-neutral point of

view.42

42
Accepting this relational structure of rights is thus key to avoiding the “paradox of
deontology.” See Scheffler, 1982, chapter 4. This is the supposed paradox of thinking that it is

21
 As noted, other features of the space of rights—including my explanation for why

patients generally have a right not to be used as a means for the welfare of others43—also

presuppose this relational topology for rights. Indeed, a lot of what I will say about rights

presupposes it. But this argument from the inability to distinguish negative from positive claims

without it suffices to establish it. And it is the autonomy principle that fundamentally requires

this topology. Without the autonomy principle, we should be consequentialists. To accommodate

it, we need to fundamentally reconfigure the moral space into the space of rights, with its agent-

relative topology.

1.3.3. The Autonomy Principle and Owned Luck

In describing why the autonomy principle requires an agent-relative topology, I mentioned that

people have to own their luck. This means, among other things, that when an agent contemplates

acting, it matters whether the patients she confronts are already threatened or harmed and in need

of help or are not yet threatened or harmed. If a patient brought a threat or harm upon himself

through action that was negligent or worse (reckless, knowing, or intentional), then it should be

no surprise that he would have a weaker claim than one who did no such thing. That is a

straightforward application of the idea that autonomy and responsibility for one’s choices go

hand in hand. But I want to emphasize here that my point is more radical: even if it is just dumb

luck that caused one person, and not another, to have suffered a harm, to be under threat, or even

to be a threat, that is something that rights accord significance by distinguishing the strength of

impermissible to violate some right, R, when doing so is the only way to prevent more violations
of R from occurring. This supposed paradox arises only if one thinks of rights as important
because of their consequentialist value. If one sees rights as normatively relevant on their own
terms and as having the relational topology described in the text, the “paradox” easily dissolves.
43
See § 4.

22
positive and negative claims and, as I will argue in Chapter 6, the claims of threats and

nonthreats. This too is an implication of the autonomy principle: people have to own their luck.

I will make the case for thinking that people have to own their own luck first by way of

considering an example and then by examining a theoretical argument.44 The most obvious sort

of case concerns ownership of one’s body and the connection between that and luck. Some

people, through no fault of their own, contract diseases, often fatal ones, that could be cured if

and only if they receive new organs from others. Sometimes an organ can be made available at

relatively minor cost to the donor: we all have two kidneys, and some, people who are

particularly taken with altruism, think that they should donate their second kidney to those in

need. But what about hearts? We each have only one. Should all hearts be part of a common pool

so that if someone comes to need a heart, through no fault of his own, he gets to insist that a

heart lottery be run, the result of which will determine who has to lose a heart?

There are two good reasons to reject the heart lottery. First, it is presumably very costly.

And what we get in the end is not an extra life being saved; we only get a new distribution of

who has a good heart and who has to die. Second, there is good reason to say that the heart

lottery was run by nature, and the person who lost that lottery has no cause to call for a new

lottery. In the traditional literature on running lotteries, there is always some indivisible good to

allocate or some indivisible evil to avoid, and there is no default position; a choice has to be

made.45 But in this case, there is a clear default position: leave everyone with their original heart.

But when we add age and longevity into the picture, we can see that if we are committed

to cancelling the effects of dumb luck, there is a reason to run a heart lottery. Everyone has an

44
A whole book could easily be written on this topic, so my treatment will necessarily ignore
many details. But I think the main point can be made clearly and convincingly in a short space.
For a good overview of the issues that arise in the context of luck and justice, see Lippert-
Rasmussen, 2018.
45
See Broome, 1984.

23
interest in having a reasonably full life, one that includes getting the chance to grow up and to

have a family of her own, a career, or whatever other basic life projects she wants to pursue. But

some people, through no fault of their own, will be born with defective hearts that will prevent

them from ever reaching adulthood, much less old age. We could address that with a life–heart

lottery. Here is an example: we could set up a system in which anyone whose heart fails, through

no fault of her own, below the age of 20 has a claim for a heart from someone 50 or older and

anyone whose heart fails, through no fault of her own, between the ages of 20 and 50 has a claim

on a heart from someone 30 years her senior. Everyone in the 50 and older set would have to

register his heart in the heart pool. Anyone whose number comes up would have to turn himself

in to have his heart removed and transplanted to a younger person who has not yet had the

chance to lead a full life.

If we really want to give all people a fair chance to lead a full life, we should seek to set

up such organ–life lotteries, not only for the heart but for every vital organ of the body. Of

course, the costs might be too high, and setting up such a system might create perverse

incentives. But if we object to giving brute luck a substantial role in making some better off than

others, then we have at least a strong reason to seek to set up such lotteries.

I take this to be a reductio of the idea that we should be seeking to negate the role of

brute luck in causing some people to fare better and other worse. Part of what it is to have one’s

own life is to have one’s own body. If an agent has not voluntarily agreed to join a life–heart risk

pool, others may not treat her, or her body, as a mere resource for equalizing luck. Each person

has to accept that the luck of the draw, in terms of how well her body works, is first and foremost

her problem or her good fortune.

To be clear, I acknowledge that there is a reason of fairness to run lotteries when deciding

how to allocate indivisible goods among people who are in the same pool, with roughly equal

24
claims on those goods. But lotteries should only be run among people whose claims are roughly

equal.46 Those who seek to be saved and those who seek not to be tools by which to save others

do not have roughly equal claims.

I am also not rejecting the importance of human welfare. The welfare principle calls for

making sacrifices for the sake of others. But those sacrifices have to be small enough to leave

each person the basic freedom to live her own life. A person’s ill health is, again, first and

foremost her problem. Others might have to pitch in through taxes to help support medical care

for the needy, but the duty to donate one’s heart if one’s number comes up does not count as a

small sacrifice consistent with being free to live one’s own life.

One might be tempted to turn my reductio around on me and to say that my intuitive

rejection of the heart–life lottery reflects nothing more than status quo bias: it just seems too

unusual given that we don’t yet have such lotteries. Just as it was a mistake when people used to

think that we have to put up with some people being slaves, so, one might say, it is a mistake to

think that we have to accept the brute luck of having healthy or sickly bodies.

This resistance comes from the following theoretical commitment: we can be held

responsible for how things turn out when we take “deliberate and calculated gambles,” but we

should not be held responsible for how things turn out when good or bad things just happen by

brute luck, in ways that reflect no prior choice to run a risk, as when “hit by a falling meteorite”

out of the blue.47 I will argue, however, that while there is something to this distinction between

choice luck and brute luck, I think it is hopelessly misguided to try to seek to eliminate the

effects of brute luck on our lives.

46
See Broome, 1984, p. 628.
47
Dworkin, 2000, p. 73. What I call “choice luck,” Dworkin called “option luck.”

25
 First, even being hit by a meteor is something we can take more or less care to avoid, for

example, by trying to stay deep underground, as opposed to walking out in the open or sitting

under flimsy roofs. Second, and more fundamentally, brute and choice luck are thoroughly

intermixed into our lives and cannot meaningfully be disentangled. It is not merely the case that

two people can get different results when making equally risky choices (result luck). In addition,

people bring different skills, resources, and dispositions to the choices they confront, which to a

substantial degree reflects the luck of their genetic endowment and the environment in which

they were raised (constitutive luck). And people come across different options in life: some will

get the chance to do horrible things and will do them, and others will never even face the

temptation but would have succumbed if they had; some will get the chance to do great things

and will do them, and others will never encounter similar options but would have done as well if

they had; some will face nothing but a collection of costly choices, while others will have many

happy, low-cost options (circumstantial luck).48 As Thomas Nagel wrote, the portion of an

agent’s life that reflects her choice, unaffected by these sorts of luck, “seems to shrink . . . to an

extensionless point.”49

One response to the pervasive presence of brute luck in our lives is to give up the idea of

being responsible for what one does and what one achieves. But I think that’s a panicky

overreaction. The better thing to say is that we are thrown into the world and then start to weave

a self together, dealing with the hand we are dealt and making choices that lead to the next hand.

If we achieve the status of normally functioning adults, we become fully responsible for our

choices. But to do so we must own the luck that filtered into them. It is a fool’s errand to try to

tease out the effects of brute luck; there would be nothing left; it is baked into our lives like flour

48
These are three of the four kinds of moral luck mentioned by Nagel, 1979a.
49
Ibid., p. 35.

26
in a cake. To have one’s own life, as the autonomy principle supposes we do, is to own both sorts

of luck—choice luck and brute luck—as they have been woven together.

This is not to say that we have no reason to distinguish brute luck from choice luck. To

hold people responsible, we have to allow them to make choices by which they can forfeit claims

that they might otherwise have. The calculated gamble to buy stocks includes the assumption of

risk that one will lose money as the flip side of the claim to enjoy new wealth if the stocks one

has bought perform well. It makes sense to tell stock investors that they put their money at risk in

a way that bank depositors do not. Likewise, as already noted, those who act negligently or

worse become liable to paying costs (e.g., through tort suits) that others who cause similar harms

do not. And the criminal law, though normally requiring at least recklessness, also normally

punishes people who cause harms more seriously than those who do not.50 These are all ways

that the autonomy principle supports distinguishing choice luck from brute luck. But that should

not be taken to mean that we have reason to seek to do the impossible: to root out and negate the

influence of brute luck on our lives.

What I have said should also not be taken to imply that we have no reason to restrict the

impact of brute luck on the lives of agents. Distributive justice, I believe, requires us to seek to

design institutions so that brute luck has no more impact on how one can benefit from the fruits

of social cooperation than necessary to allow for the kind of incentive structure that allows free

people to choose satisfying, productive lives.51 This rules out discrimination in many realms of

public activity, such as employment and housing, based on race, sex, sexual orientation, and

other similar difficult-to-change characteristics. It also rules out a system that allows an

50
Alexander and Ferzan, 2009, argue that one should only be responsible in criminal law for the
risks one takes, not the outcomes. I criticize their view in Walen, 2010.
51
I take this to be essentially a restatement of one of Rawls’s arguments for the difference
principle. See Rawls, 1971, pp. 72–73.

27
unlimited market-based reward for talents. In addition, as I already noted with regard to health

problems, the welfare principle implies that when people suffer harms due to brute luck, they

have reasonably strong claims for aid. The fundamental limit on these claims is only that they

should not be so demanding that others have too little normative space to lead their own lives.

My point then is not to deny that brute luck can be distinguished from choice luck or that

the negative effects of brute luck should be mitigated. My point is only that it is pointless,

foolish, and even morally inappropriate to try to strip out the effects of brute luck on our lives.

We are too much the product of the brute luck that is woven into our lives. And thus, while we

have claims to limit the impact of brute luck in certain ways, we also must own it as ours.

I close this section with two final thoughts. First, I have to acknowledge the difficult

problem of determining when luck “vests.” It seems intuitively that a threat headed to A is A’s

problem, even if it could be redirected onto B. But it also seems intuitively that if A and B are in

need of rescue and a resource like a rescue boat is headed to A but the boat captain then

discovers that B is also in need, it would be perfectly reasonable for her to flip a coin. There may

come a point when A has a claim on the boat—for example, when A has been given reason to

rely on its coming to him. But until then, the mere fact that the boat would have gone to A if the

captain had done nothing does not give A a stronger claim on it than B. It is hard to say just

when luck vests and why, and trying to do so would take me too far afield.52 But I think it is

generally clear enough for the cases I consider.

Second, there is a lesson in all of this for what it is permissible to do to threats. The

fundamental assumption in the self-defense literature that looks to forfeiture to explain why

threats can be killed is that the right not to be killed is too robust to be affected by the mere bad

52
I will say a bit more about rescue cases in Chapter 8, when discussing competition.

28
luck of being a threat.53 I hope it is now clear why that assumption is in principle unsound.

Working out the concrete implications of owning luck for the right to defend against threats is

something I come back to in Chapters 6 and 7.

2. Formalizing the Mechanics of Claims

Having laid the foundational principles for the space of rights, I turn now to explaining how I

think it operates. I invoke the mechanics of claims to explain how rights emerge as outputs based

primarily on claims as inputs.54 This occurs in two stages. In the first stage, rights emerge from

first weighing the competing basic patient-claims55 on an agent and then taking into account any

agent-claims the agent might have to act contrary to the balance of patient-claims on her.56 In the

second stage, special patient-claims must be taken into account. I discuss these stages in turn.

To ward off confusion, let me start with this clarification: agent-claims are not claims on

anyone; they are claims to be free to act or refrain from acting. In that way, they are

fundamentally unlike patient-claims. If an agent has a right to X, that does not, by itself, imply

that anyone has any duties to her. It means simply that no one has a right that she not X and that

there are no other considerations that make it the case that she may not X.

2.1. Balancing Agent-Claims and Basic Patient-Claims

Basic patient-claims are patient-claims that presuppose no special relationship between the

patient and the agent on whom the claim registers. All patients who have an interest in what an

53
See Chapter 1, § 1.
54
As noted in § 1, claims are not the only inputs, but they will be the only inputs in most of the
cases I discuss.
55
In Walen and Wasserman, 2012, we used the label impartial patient-claims rather than basic
patient-claims. I now think that was a poor choice as these claims function, in some ways, to
ground justified partiality.
56
As will be seen shortly, some of the agent’s claims register in the balance as basic patient-
claims, but the agent also has agent-claims.

29
agent does have basic patient-claims on that agent. Even those who have waived or forfeited the

normal claims associated with an interest normally have some weaker residual claim. As noted,

even culpable aggressors have a claim not to be killed if doing so is unnecessary to stop their

aggression, that is, if their aggression can be safely stopped with the use of less harmful means

and no substantial cost to anyone else.57

The weight or strength (I use those terms interchangeably) of basic patient-claims reflects

the magnitude of the interests in play, whether the claim is for help or not to be harmed, and

other ways the patient potentially relates, causally, to the agent and to other patients whom the

agent might affect by her choice. They do not, however, reflect the history of the relationship

between the agent and the patient, insofar as that history can give rise to special patient-claims.

They do not, for example, concern the claims of promisees on promisors or the claims of family

on family, friend on friend, or victim on tortfeasor. Those are all special patient-claims, which

have to be addressed at stage 2.

In what follows in this section, I do four things. First, I present an overview of the main

features of the mechanics of claims and the stage 1 balancing it assumes. Then, I focus on how

an agent’s interests enter the balance, explaining that they sometimes enter as negative agent-

claims and sometimes as positive patient-claims. Next, I argue that there is some scope for

positive agent-claims. Finally, I end by arguing against those who endorse “agent-centered

prerogatives” by arguing that, when it comes to causing significant harms, agents enjoy no

substantial positive agent-claims.

2.1.1. Overview of Balancing Claims, Organized in Terms of Partiality and

Impartiality

57
See § 1.2.3.

30
The three main features of the mechanics of claims, at stage 1, can be stated as follows:

• If one or more patients, P1, have basic patient-claims that A do X, one or more

patients, P2, have basic patient-claims that A not do X, and P1’s claims are

stronger than P2’s, then A must do X unless A has an agent-claim not to have to

do X that is strong enough to free her from the duty of responding to the balance

of basic patient-claims.

• If P1’s claims ground a duty for A to do X, then, unless and until P1 waives or

forfeits those claims or some new situation arises in which P1’s claims become

weaker or competing claims come to outweigh P1’s claims, P1 has a right that A

do X, and A owes a corresponding duty to P1.

• If A’s agent-claim gives her the liberty not to do X, then she has a pro tanto right

not to do X. But if the balance of basic patient-claims calls on her to do X, then

she would also have a pro tanto right to do X.58

I propose to unpack these bullet points by focusing on the way the mechanics of claims handles

impartiality and partiality. Basic patient-claims embody the norm of impartiality insofar as they

reflect the equality principle: we are all fundamentally equal in the space of rights. Thus, if an

agent confronts two sets of competing basic patient-claims, the normative force on her reflects

the impartial balance of those claims. It doesn’t matter who has basic patient-claims.

Basic claims embody partiality insofar as they reflect the autonomy principle: each

person has her own life to lead. The normative idea that enables the mechanics of claims to make

proper room for partiality in the balance of basic claims is property. Property demarcates what

each person can rely on as hers as she seeks to pursue her own life plan. These tools for living

58
The pro tanto rights A has at stage 1 may be restricted by a special patient-claim at stage 2.

31
are, first, our bodies, our time, and our energy, which constitute our first property, and, second,

the rest of what we lay claim to, which constitutes our second property.59 I assume, throughout,

that property owners have an immunity to being dispossessed of their property by private

individuals unless they forfeit it, transfer it, or give others rights to use it or others have what I

will call “empowering claims” that give them temporary and limited-use rights.60 Obviously, this

assumption presupposes a more or less just property regime. If the regime is not sufficiently just,

then second property, and arguably even bits of first property, can be appropriated more

liberally.61 Additionally, most legal orders will tax property and will occasionally take property

for public use—though in the latter instance owners should be fairly compensated.62

Property has an important function in the mechanics of claims for both agents and

patients. For agents, it registers in two types of claims: claims not to have to use their property

for ends other than their own and claims to be free to dispose of their property as they wish. For

patients, it is slightly more complicated, but for now we can say that it also registers in two types

of claims63: claims not to have their property used without their consent and claims on agents—

special claims—that are property-like claims over an agent’s liberty. I discuss primarily agent-

claims here in section 2.1. In section 2.2, I discuss the second role of property in patient-claims:

special claims. And in section 4.1, I discuss the first sort of patient-claim in more depth.

2.1.2. Agents’ Negative Agent-Claims and Positive Patient-Claims

Turning, then, to the claims of agents, it is important to be clear that agents are never merely

agents. Agents have agent-claims insofar as they are acting, but they also have patient-claims

59
I take the notion of first and second property from Thomson, 1990, p. 226.
60
I describe empowering claims in § 4.4.
61
On the possibility of appropriating first property in an unjust regime, see Stanczyk, 2012.
62
For an enlightening overview of the relationship between property claims and liability claims,
see Calabresi and Melamed, 1972.
63
The complication is that, as I will argue in Chapter 7, patients also sometimes have property-
like claims that reflect their claims as agents.

32
that register how they will be affected by what they do. There is no double counting here; this

division reflects a division of conceptual labor. I argue in this section that agents have very

strong negative claims, claims not to have to sacrifice themselves. I argue in section 2.1.4 that

they lack substantial positive agent-claims, claims to be free to do things to favor themselves at a

cost to others. This denial of substantial positive agent-claims is not overly burdensome,

however, especially considering that their interest in benefiting from their acts is captured by

their patient-claim to that benefit.

An illustration will help. Recall Trolley Switch: Brenda confronts the choice of whether

to turn a trolley from five on one track onto one on a sidetrack. She is confronted with six basic

patient-claims, and she also gets to consider her own agent-claim. The patient-claims break down

into two groups: the five have positive claims to be saved; the one has a negative claim not to be

killed. Brenda has a negative agent-claim not to have to turn the trolley if she does not want to

and logically could have—though, as just noted, I will argue that this is not the case—a positive

agent-claim to be free to turn it if she wants to.

Now suppose Brenda is also one of the five toward whom the trolley is headed. For the

purpose of counting patient-claims, she gets to count her life as one of the five. Her claim to be

saved weighs, along with the other four, against the claim of the one not to be killed. If there is

some minimal number of lives that must be saved before the positive patient-claims outweigh the

negative one—say it is five—then her patient-claim would tip the balance of patient-claims.

What about Brenda’s agent-claims? Assume for now that she has no meaningful positive

agent-claims. She would then be permitted to turn the trolley if and only if the patient-claims in

favor of turning it outweigh the patient-claim against turning it. We are supposing that that is the

case, so she may turn the trolley and save herself along with the four others.

33
 What about her negative agent-claims? They protect her freedom not to have to serve as a

tool of the balance of patient-claims. As that is a fundamental function of the autonomy

principle, an agent has to have a strong claim not to have to use her property—in this case, her

body, energy, and time—for ends other than her own. Small sacrifices can be required to prevent

large harms to others, but if the sacrifices are large, the agent may choose not to sacrifice herself

for the sake of others. Importantly, the measure of the sacrifice the agent has a claim not to make

has to take into account whether such situations repeat; repeated small duties erode an agent’s

ability to lead her own life, and thus an agent has a stronger claim against small duties if they

repeat than if they arise only once or rarely.

To illustrate the significance of negative agent-claims using a trolley switch case, we

cannot continue to imagine that Brenda is one of the five who will be hit; in that case, her

permission not to turn it onto the one might reflect her Hohfeldian power to waive her patient-

claim to be saved. To avoid that complication, we should return to the original Trolley Switch, in

which Brenda is a bystander confronting five positive patient-claims to be saved and one

negative patient-claim not to be killed. We can continue to assume that the balance of patient-

claims favors the five. The question is, How does her negative agent-claim fit into the balance?

Suppose that her primary interest is in not being a killer. That could reasonably be taken

to be a fairly significant interest: even if killing is morally permissible, it is, for most people, a

traumatic thing to have to do. Given this significant interest and that the balance of patient-

claims is not completely one-sided,64 her strong negative agent-claim would plausibly give her a

right not to turn the trolley. By contrast, if her concern were simply that she did not want to

expend the energy to turn the trolley, she might be required to turn it.

64
I think it would make a difference if the sidetrack man had wrongfully set the trolley on the
other five and thereby forfeited his claim not to be killed. It is then more plausible that Brenda
would have a duty to turn the trolley onto him, despite the trauma that this might cause her.

34
 What if she would be better off making the choice to turn the trolley? The autonomy

principle, which grounds a basic commitment to anti-paternalism, implies that that would not

undermine her right not to turn it. It is her life, and she gets to decide what to make of it, even if

her decisions are not optimal. This gives us reason to respect her choice as one that she has a

right to make, even if it is not the one that she should make.

Note that an interesting complexity is revealed in this case, one concerning how we

should weigh the agent’s interest. The strength of her claim depends on both the magnitude of

her interest and the nature of her claim. Her interest is a compound of her autonomy interest, to

choose according to her own lights, and an objective assessment of what would be good for her.

Anti-paternalism implies that unless the welfare assessment is very great—putting the claims of

others aside for the moment—an agent should be allowed to choose by her own lights. But the

net weight of her interest would be slighter if the two component parts pull in opposite directions

than if they pull in the same direction. Thus, if they pull in opposite directions, it will be easier

for the balance of patient-claims to outweigh her negative agent-claim, and thus easier to

establish that she has a duty to act.

It might be tempting to say that an agent’s objective welfare must count as a patient-

claim for her, regardless of whether her agent-claims are negative or positive. But that split—

leaving her autonomy interest to register as a negative agent-claim, while registering her

objective welfare as a patient-claim—is implausible. If an agent’s interests could be separated

into an autonomy interest and an objective welfare interest, then it would be hard to make sense

of how serious the autonomy interest is. But surely an agent’s autonomy interest is more

important if she is making a choice about a matter that impacts her welfare significantly than if

she’s making a choice about a trivial matter. Thus, the welfare interest and the autonomy interest

must be linked.

35
 This has an important implication for how to count interests for an agent: when

considering if an agent has a right to act, she gets to count her interest in performing the act as a

patient-claim to benefit from the act; but when considering whether she has a right not to

perform an act, she does not get to count her interest in not performing it as grounding a patient-

claim that weighs in favor of not performing it. Rather, both components of her interest in not

performing it are fully picked up in her much stronger negative agent-claim not to have to

sacrifice herself for the sake of the balance of patient-claims. Thus, for example, in a variation on

Trolley Switch in which the agent is the person on the sidetrack (i.e., she would have to turn it

onto herself to save the five) her interest in not being hit counts as giving weight to her negative

agent-claim not to have to turn the trolley. But if she is with four others on the track toward

which the trolley is headed, her interest in not being hit counts as one of the patient-claims that

push for her to turn it.

Taking stock, the general picture is that agents function as nodes on which patient-claims

compete. To a first approximation (I introduce a small qualification immediately below), insofar

as an agent wants to perform an act that some patients have a claim that she not perform, she can

justify doing so only if the balance of patient-claims (including her own) pulls in the direction of

her doing so. Insofar as she wants to avoid acting in the service of the balance of patient-claims,

however, she has a strong claim to be free to avoid so acting and would have a right to avoid so

acting unless her interests are greatly outweighed by the balance of patient-claims.65

2.1.3. Some Scope for Positive Agent-Claims

I have been assuming that positive agent-claims carry essentially no weight, that agents are free

to act only insofar as they have positive patient-claims that support their doing so. But one could

65
Strictly speaking, this is just a pro tanto right, one which could be undermined at stage 2 by a
special patient-claim on her liberty.

36
object that this picture gives agents too little freedom to use their property—again, understood to

include their bodies, their time, and their energy—as they would like in order to lead lives they

would like to lead. To see why, take, for example, A, who wants to paint her house yellow but

who lives next to B, who hates yellow houses. Putting aside zoning ordinances that might restrict

A in certain ways, A should be free to do that sort of thing. The mere fact that B would find A’s

choice disagreeable is not a sufficient reason to give B veto power. Yes, if B would suffer a

serious harm if A painted her house yellow—for example, B would have convulsions or B’s

house would lose 20 percent of its sale value—then B might have a moral veto. But A ought to

be presumptively free to paint her house the color she wants to paint it; it’s her house. Yet it may

seem that my picture would not give A that freedom. After all, if we weigh B’s negative patient-

claim not to suffer aesthetic distress caused by the yellow color against A’s positive patient-

claim to the aesthetic enjoyment she would get from having a yellow house, and if we keep in

mind that negative patient-claims are generally stronger than positive patient-claims, all else

equal,66 then B’s claim would seem to win.

To handle that case, we need to recognize a basic freedom to use one’s property in ways

that cause only minor annoyance or offense to others. One might try to make this case, as John

Stuart Mill did, in utilitarian terms, appealing to the overall welfare. But Mill’s argument was

distinctly focused on limiting the policing of acts (vices) that cause only minor harm.67 I want to

argue directly for the moral right to act, where any right of non-interference is derivative of the

right to act. Nevertheless, I think we can do that in fundamentally similar welfarist terms. If we

take into account the importance for individuals of being presumptively free to use their property

as they wish, as long as they do not cause significant harm to others, we find—I believe and

66
See § 1.3.2.
67
See Mill, (1859) 1975, chapter 4.

37
assume—that we have a better system for human flourishing than if we allow the offense and

annoyance of others to morally restrict the freedom of agents.

Of course, the contours of this freedom can and must be specified and adjusted in various

ways to further promote the general welfare. A more determinate framework will normally be

provided by a mix of cultural and legal norms, such as zoning laws, that set legitimate

expectations both for what agents should be free to do and for what they should refrain from

doing in any particular cultural and legal setting. This is not to say that whatever the local culture

and law say is what morality should require. Both may be defective in various ways. For

example, they may wrongly permit or require discrimination against certain kinds of people, in

violation of the equality principle. In addition, it is often quite proper for the law to grant more

legal rights than should morally be exercised. Consider, for example, free-speech rights. The law

might have good reason to leave them broader than morality should allow. The reason is that the

law has to concern itself with institutional matters that are not relevant to first-order morality,

such as who would censor speech and what tests should be used. In the domain of free speech,

then, we seem to have good reason to allow custom and moral judgment to mark the limits of the

permissible exercise of freedom without support from the law.68 But the general point remains:

law, custom, and morality should allow people a basic freedom to use their property as they see

fit, without having to worry about every minor harm and annoyance they might cause. There is

something deeply right in the basic liberal conceit that what consenting adults do with their own

lives and property is and ought to be primarily their business. To that extent and only to that

extent—as I now argue—do agents enjoy positive agent-claims. From here on, I will make no

further reference to these minor positive agent-claims; their existence can be presumed as part of

68
In saying this, I take no position on just how much speech can be properly regulated by the
state, only that the state probably should not seek to censor all morally impermissible speech.

38
the background, a background that will have no relevance when what is at stake are significant

harms that an agent might cause.

2.1.4. The Argument Against Agent-Centered Prerogatives

Negative agent-claims are claims not to have to do things for the sake of others who have

positive claims for aid; positive agent-claims are claims to be free to do things despite their

negative impact on others who have negative patient-claims not to be harmed. The idea of agent-

centered prerogatives, as the term is standardly used, fails to mark that distinction. Such

prerogatives simply allow agents to give preference to their own ends over the competing ends of

others.69 They are like excuses in that, unlike standard justifications, they do not extend from the

agent to third parties. But they are more affirming than excuses. An agent may not plan to take

advantage of an excuse70; she may plan to act on an agent-centered prerogative. Many people

think that we enjoy agent-centered prerogatives. They are mistaken.71

Negative agent-claims must be strong because they are essential for giving agents the

moral freedom to live their own lives, as opposed to being morally required to dedicate their

lives to serving the balance of basic patient-claims on them. I, along with David Wasserman,

have argued elsewhere that there are three reasons why agents do not also need, and should not

be taken to have, positive agent-claims to complement their strong negative agent-claims.72 First,

69
The idea was first popularized by Scheffler, 1982. It has since been influentially taken up in
the self-defense literature by many people, perhaps most notably by Quong, 2009.
70
She may not, for example, arrange to be coerced so that she can claim the benefit of duress.
Nor may she choose not to know something relevant and claim ignorance: that’s willful
blindness. She may, however, sometimes plan to act and plan to get the benefit of an excuse if
the act is sufficiently important and the excuse too hard to avoid. She may know, for example,
that she suffers seizures and yet choose to engage socially. If she then has a seizure and falls on
those near her, she will be excused for doing so.
71
Tadros, 2011, chapter 9, makes essentially the same argument.
72
Walen and Wasserman, 2012, pp. 555–56.

39
such positive claims are not necessary for agents to avoid having to treat themselves as tools for

the greater welfare; that task is achieved by negative agent-claims.

Second, an agent’s interest in being free to do what she wants to do is fairly taken into

account by her patient-claims to deny others the use of her property, the freedom to use it herself

as long as she causes no significant harm in doing so, and her positive patient-claims to enjoy the

benefits of her own acts. Once these three factors are taken into account, the autonomy principle

is satisfied; she has the freedom to lead her own life and needs no additional positive agent-claim

to be free to pursue her ends even to the detriment of others.

I can make the third point no better now than before, so I quote our earlier text at some

length:

[G]iving [her] positive agent-claims significant weight would allow [her] to

choose to harm others for the benefit of [herself] or those [she] care[s] about in

ways that seem unjust. Consider, again, the case in which [an agent] could turn

the trolley from [herself] onto another. [Her] patient-claim is the positive claim to

be saved from the trolley; the [sidetrack] man’s patient-claim is the negative claim

not to be hit by the trolley. If we assume that negative patient-claims outweigh

otherwise similar positive patient-claims, then the balance of patient-claims would

(in the absence of other considerations) prohibit [her] from turning the trolley. If

[her] positive agent-claim had substantial weight, it might tip that balance. But

that seems unjust. [She] may not, we believe, turn the trolley from [herself] onto

another. To capture the sense that it would be unjust for [her] to do so, we would

say that [her] positive agent-claim does not have the capacity to tip the balance

here. Indeed, we think it never has the capacity to tip the balance between lives or

other weighty interests. Even to let a claim to do what one likes break a tie

40
 between negative claims not to be killed would fail to respect the gravity of the

latter claims, and the importance of impartiality when it comes to respecting

patient-claims. In sum, if [her] agent-claim is positive, then [she is] required to

defer to the balance of patient-claims.73

One might object that this rejection of positive agent-claims cannot handle the following

example.74 Suppose that a trolley is hurtling down the hill toward 10 people and Brenda could

turn it onto one of two tracks: either onto the left track, where it will kill her son, or onto the

right track, where it will kill a stranger. The balance of patient-claims calls on her to turn the

trolley away from the 10. It also calls on her to be impartial between turning it onto her son and

the stranger. If she has no positive agent-claim to choose her son over the stranger, then she must

do something to treat them fairly, such as flip a coin.75 But imposing on her son a 50 percent risk

of being killed so that she can save 10 seems inconsistent with the special duty she owes her son.

If the case were one in which she had to choose whether to turn the trolley from 10 onto her son,

his special claim on her would remove from her the liberty she would otherwise have to save the

10; she would owe him the duty of not turning the trolley onto him—a point I explore more in

the next section. It is no different if she would be imposing on him a 50 percent chance of dying;

that is much more than she may rightfully impose on him for the sake of strangers. But then it

seems that she must either allow the 10 to die or invoke a positive agent-claim to favor her son

and turn onto the stranger. Given the importance of saving the 10, the normative pressure here is

to acknowledge a positive agent-claim to favor her son.

73
Ibid.
74
Steinhoff, forthcoming, raises this example against Tadros’s 2011 position rejecting an agent-
centered prerogative.
75
This is one of two positions that Wasserman and I considered plausible. See Walen and
Wasserman, 2012, pp. 562–63.

41
 Indeed, we could make this pressure even stronger by changing the case such that there

are two strangers on the other track. If she wants to save the 10, then she must sacrifice her son

as his basic patient-claim not to be killed is weaker than that of the two strangers on the other

track. She would have a right, based on a negative agent-claim, not to have to sacrifice her son

for the sake of the 10 strangers. But that means that 10 must die rather than the two onto which

she could turn the trolley. That, however, seems wrong. It might seem, then, that the only

solution is to say that she must be free to exercise a positive agent-claim to favor her son over

two strangers.

The problem with this argument is that it presupposes that the three-way choice has to be

broken down as follows: first, decide whether to save the 10, then decide which of the others to

kill. But there is another way to approach the three-way choice that makes at least as much sense,

avoids the problems, and retains the idea that agents enjoy no positive agent-claims to act

contrary to significant patient-claims. Start with the thought that Brenda has a strong negative

agent-claim that grounds a right not to sacrifice herself or her son for the sake of others. She can

then take that option off the table. Having done so, she should then look at the remaining

options: either allow 10 to die or turn the trolley onto one or two strangers. Assuming that the

balance of basic patient-claims favors five or more positive claims over one negative claim, all

else equal, she may turn the trolley. At no point must she invoke a positive agent-claim to justify

doing so.76

Given that this enables us to simultaneously satisfy the autonomy principle’s protection

of her freedom not to have to sacrifice or risk sacrificing her son and the welfare principle’s

concern for the lives of the 10 and that it also protects patients from the overly broad privileges

76
This is the other position that Wasserman and I considered plausible. Ibid., p. 563. I now
conclude that it must be the better position.

42
that would result from according agents positive agent-claims, this seems the better approach. It

does lose the appeal of the thought that if Brenda decides to save the 10, then her son and the

others are in some sense in the same boat and should be treated equally—an appeal that draws on

the equality principle. But as the objectors would reject that equality in the next move, by giving

her a positive agent-claim that would allow her to turn the trolley onto the others to save her son,

respect for the equality principle provides no real reason to accept the framing which is the basis

for the objection. The simpler solution, and the one that coheres with the overall commitments

that frame the mechanics of claims, is to accept the framing of the situation according to which

she gets to first withdraw the option of sacrificing her son and then consider the other options.77

In sum, agent-claims are negative when they are claims not to have to make a sacrifice

for the benefit of others. Agents get to give substantial priority to their negative agent-claims. If

they protect relatively trivial interests, the balance of patient-claims can tip the overall balance

and impose on an agent a duty that contravenes her agent-claim. But if her agent-claim protects

an important interest of hers and she owes no one a special duty that effectively negates her

agent-claim with respect to that claimant, then she must be free not to serve the welfare of the

patients whose interests ground the positive patient-claims that compete with her negative agent-

claim. If, however, her interest is in doing something that runs contrary to the balance of patient-

77
Kimberly Ferzan asked me what I would say about a double-switch case in which Brenda
could save 10 by turning the trolley onto her son but then could save her son by turning the
trolley onto two others. Each stage seems impermissible, but the outcome seems permissible. I
am inclined to say that she may make the double switch. It is part of a single plan to save 10 at
the cost of two, and at no stage along the way is anyone unjustly harmed. Yes, her son is briefly
threatened, but if she knows that she can throw the second switch, that does not violate his right
not to be endangered by her. And the two are not really killed to save one; they are killed to save
10. It would be different if, say, she turned the trolley from 10 onto someone and then discovered
that she had turned it onto her son. She may not save her son from her own mistake by killing
two. (Note, this is a case in which the permissibility of the act is indeterminate; it depends on the
action. This is an exception to the general rule I articulated in Chapter 1, pp. 9-10: that the
permissibility of acts should be established first.)

43
claims, when that balance is tipped in favor of negative claims not to be significantly harmed,

then she must yield. She has no right to favor herself in such a case. In such a case, her property

interest in denying others the use of her body, time, energy, or second property does not come

into play. There is no general right to be partial to oneself, and there are no general agent-

centered prerogatives.

2.2. Including Special Patient-Claims

Special patient-claims on agents reflect the prior history particular patients have with particular

agents. For example, the claims of promisees on promisors, children on their parents, and tort

victims on tortfeasors are all special patient-claims. They enable a patient to make a stronger

claim on an agent than others can make. However, they do not—I believe—enable patients to

empower agents to do things that they could not rightfully do given the balance of basic patient-

claims on them. For example, Brenda is not permitted to turn a trolley from one onto two or

more people, and this, I believe, is true even if the one is her own child. The claim a child has on

his parent does not give the parent permission to kill two others for the sake of the child. Special

patient-claims function only as a property-like claim on the liberty of an agent, a claim to limit

the freedom an agent would otherwise have, given the balance of basic patient-claims on her and

her own agent claims.

Consider a parent confronted with a number of children all stuck in a burning building.

She has a special duty to try to save her own child first, even if she could save more children if

she tried to save other children first. This is for two reasons. First, she has a right not to have to

save the greater number of children if doing so would cost her the life of her own child. Having a

right not to devote herself to saving the others, she retains the property right over her time and

energy to save her own child. Second, her child can then demand of her that she save him, a

44
demand grounded in the child’s special patient-claim on her liberty.78 Her child’s claim

essentially overrides the second-order property right, the Hohfeldian power, that the parent

normally would have to waive her right to use her time and energy for the rescue of her own

child. But this ability to override an agent’s power to waive her own rights does not grant the

child, the holder of the special claim, an ability to augment the parent’s first-order liberty. If the

parent does not have the liberty to save her child on the basis of the balance of the basic patient-

claims and her agent-claim not to serve the balance of basic patient-claims, then the child’s

special claim fails to attach to any power the agent might have had. A special claim cannot

override the power of an agent if the agent lacks that power in the first place.

My claim that a parent may not save her child if the cost of doing so is that she kill two

others as a side effect may not go down easily. I confess: it gets worse. If special patient-claims

cannot empower an agent to do what she could not do in their absence, then a parent may not

turn a trolley from her child onto only one other person as the balance of basic patient-claims

would not allow a bystander to turn a trolley from one person onto another. I readily admit this is

difficult to swallow. But there are two things that one might say about this case. First, one might

suggest that we are misled into thinking that a parent may turn the trolley from her child onto

another because we are misled into thinking that turning a threat from one onto another is

morally more innocuous than it is. I argue in Chapter 6, section 2, that there is no moral

difference between (a) turning a trolley from A onto B and (b) blowing up a trolley to save A,

thereby killing B with shrapnel from the explosion. But it is not so intuitively difficult to accept

78
According to this account, contra Taurek, 1977, one cannot choose to save one stranger over,
say, three others, simply because one likes something about him. The loss to the agent of not
saving the one has to be great enough, judged in some objective way, to give the agent the right
not to save the others despite the fact that they have, collectively, a stronger set of basic patient-
claims. This comment presupposes that Kieran Setiya’s view of love based on nothing more than
another’s humanity is mistaken. See Setiya, 2014.

45
that a parent may not set off a bomb to save her child if she will thereby kill a stranger. If that is

not so hard to accept and if turning a trolley from A onto B is morally on a par with blowing up

the trolley to save A, thereby killing B with shrapnel from the explosion, then we should perhaps

simply accept that a parent has no right to turn a trolley from her child onto a stranger.

Second, the function of rights is to enable a real harmonization of the different lives and

moral interests involved. In some cases, it seems that that harmonization breaks down. A parent

killing a stranger as a side effect of saving her child seems to be one such case: the importance of

intimate relationships may cause a breakdown in the harmonization of lives that the space of

rights aims to provide. The demands of love and loyalty, in this kind of case, tear at the idea that

rights provide a coherent space in which all can live together in mutual respect; these demands

may thus be irreconcilable with the demands of rights. An agent has no right to kill for the sake

of her child, but she also has a special duty to her child such that she wrongs him if she does not

save him in a situation like this. I return to the idea of the breakdown of the harmonization that

the space of rights aims to provide in Chapter 4, section 3, when I discuss threshold deontology,

and again in Chapter 8.

As for this possibility of a breakdown in the possible harmonization of different lives in a

system of rights, there is one point in particular that I want to emphasize here: I think it is a

virtue of my view of rights that it does not easily devolve into the right of mutual aggression. I

admit that morality cannot rule out mutual aggression in the case of a parent who has a duty to

save her child even though it would kill others, while others, or third parties acting on their

behalf, have a right, or even a duty, to use force to try to stop the parent from doing so. Many

theorists accept that situations like that—in which people have a right, if not a duty, to try to kill

one another—arise easily enough in the context of self-defense. I believe this view is deeply

mistaken. It arises from a view of rights as some sort of given, as if it is some sort of

46
fundamental moral truth that one has a right to engage in self-defense. But that is a bad way to

look at rights; rights are more contextual than that. Moreover, conflicting interests and

competing claims are the condition of life in a shared space, but conflicting rights, outside of the

limited space of justified competition (a topic I discuss in Chapter 8), should be seen as

exceptional cases of a breakdown in the normative order that the space of rights aims to

establish. Under normal conditions, they should hardly ever arise.

In sum, in my view, rights are grounded in the three principles—the autonomy principle,

the equality principle, and the welfare principle—and the object of a space of rights is to

harmonize those principles into a normative space in which all can live together respectfully. It

may not be possible to achieve complete harmonization, but breakdowns should be rare. And as

long as a breakdown has not occurred, special claims should be seen as operating only to limit

the freedom an agent otherwise would have had.

3. Points of Contrast with the Infringement Model

The mechanics of claims is offered as an alternative to the infringement model.79 While the

mechanics of claims treats rights as conclusions about what may be done, the infringement

model treats rights as inputs into further moral deliberation about what may be done. Sometimes

the conclusion is that a right must be respected; sometimes the conclusion is that it need not be

respected. Failure to respect a right that must be respected constitutes a rights violation; failure to

respect a right when such failure is permissible constitutes a rights infringement. The stringency

of a right, along with other considerations, such as a consequentialist assessment of the good that

might be done by not respecting it, determine whether the right may permissibly be infringed or

79
I am not the only theorist who is critical of the infringement model. For example, Tadros,
2011, p. 200, writes that he is “skeptical of the significance of the idea that rights are infringed.”
But the argument that follows is the most detailed criticism of which I am aware.

47
must instead be respected. If an agent infringes the rights of another, she permissibly (or

rightfully) wrongs him; and such wronging normally grounds a right to compensation.80 But

people can waive or forfeit their rights. If they do, then an act that would otherwise be a rights

violation or rights infringement is simply permissible, as long as nothing else makes it

impermissible.

The way the infringement model allows rights to be overridden by other, stronger

considerations fits our common usage of rights language.81 Additionally, it captures something

important that the mechanics of claims cannot capture: the rhetorical force of saying “people

have a right to do X.” For example, if people are suffering from polluted air, it is rhetorically

more powerful to insist that people have a right to clean air, even if that right is not absolute,

than to insist that people have a claim to clean air. But this sort of political rhetoric is distorting

when speaking morally about what particular acts may or may not be performed. Therefore, I

argue in the next chapter, and in passing throughout the book, that the infringement model is

inferior to the mechanics of claims for the purpose not of rhetoric but of moral reasoning.

Before making that argument, I want to highlight two more points of contrast between the

mechanics of claims and the infringement model. First, claims, like rights, can be waived or

forfeited; but they cannot be infringed. They can only be weighed against one another. If a claim

80
It is noteworthy that while philosophers who use the infringement model seem to assume that
if A infringes B’s right not to be harmed, then A owes B compensation, the law is not so clear.
Tort law in the United States allows B to recover from A if A is a private actor acting to preserve
herself or her property from a greater harm than she inflicts on B, but English law does not.
Moreover, courts in the United States are divided about whether compensation is owed if a
public actor invokes public necessity to justify infringing B’s rights. And it is not clear whether a
private actor inflicting harm for the sake of others should count as a public actor or a private one.
See Simons, 2018. I am not suggesting that tort law is doing a better job of tracking when
compensation is owed than moral philosophers. I am suggesting, however, that the intuitions of
moral philosophers about when compensation is owed should be taken with a grain of salt. See
also Tadros, 2016a, p. 110n2 (doubting “that the relationship between liability and compensation
is simple”).
81
See the Preface, note 7, for more on common usage of the term.

48
is outweighed, no right corresponds to it. An agent does not “wrong” a patient if she

“contravenes” a patient-claim that fails to ground a right. This can seem counterintuitive in two

ways. First, there are cases in which an agent rightfully harms another and the horror of what is

done to the other makes it seem that the agent must have wronged the other. But I will argue in

the next chapter that this is just a confusion. Second, it might seem to imply that the mechanics

of claims cannot pick up an important insight captured by the infringement model, namely that

compensation is owed when rights are, as the infringement model would put it, infringed. But the

fact that a claim is contravened is not necessarily the end of the story; it is consistent with finding

that related claims ground secondary rights, such as the right to compensation. As I argue in the

next chapter, we do not need the idea of infringing a right and wronging the right-holder to

account for claims for compensation; indeed, the infringement model oversimplifies when

compensation is owed, and we can account for claims for compensation better without it.

The second point of contrast between the mechanics of claims and the infringement

model concerns the range of interests that are taken to register in the space of rights. As already

noted, the mechanics of claims assigns claims to all welfare interests that could sensibly be

registered that way. This contrasts with the infringement model, according to which welfare

interests frequently register not in terms of rights but in terms of consequentialist considerations

that somehow weigh against rights. The idea of “lesser-evil justifications” brings this contrast

into high relief. The infringement model uses those as a sort of complement to rights; the

mechanics of claims eschews such talk. One result of weaving all interests that can sensibly be

registered by claims into the mechanics of claims is that the interests that are picked up by

different kinds of claims count differently from how they would if simply counted as items with

consequentialist value.

49
 To be fair, many people who use the infringement model use a sophisticated conception

of consequentialist value. Seth Lazar, for example, in discussing “the necessity constraint” on

self-defense, says that “it should not weigh [all relevant harms] equally”; an “Attacker’s interests

[should] be discounted relative to [a] Defender’s [and] should also be discounted relative to [a]

Bystander’s interests.”82 In other words, “The necessity constraint should enjoin avoiding all

unnecessary morally weighted harm, whoever the victim.”83 I recognize that this notion of

morally weighted harm is an improvement over a more simpleminded consequentialism that

looks at harms without any context. But even this sophisticated consequentialism will not catch

all of the morally relevant nuances picked up by the mechanics of claims. It won’t, for example,

pick up the relational nature of rights claims or the particular way that different kinds of claims

register in their particular role in the mechanics of claims.

Before proceeding, I want to state that the two points of contrast are deeply related. The

notion that infringing a right gives rise to a claim for compensation puts pressure on a theory of

rights to carve out interests that are not protected by rights: those interests the nonsatisfaction of

which gives rise to no claim for compensation. To appreciate how this comes up, consider again

a variation on Trolley Switch. Imagine a version in which the trolley is headed toward one person

and that to save that person the agent at the switch would have to turn it onto another track where

there are five people. She may not kill five to save one. But it would be quite counterintuitive to

suggest, in such a case, that the agent or the five owe the one (or his heirs) compensation for not

saving him. To avoid implying that implausible implication, the infringement model holds that

he has no right to be saved at all.84 All he has is an interest that would be picked up by

82
Lazar, 2012, p. 6. I do not mean to suggest that Lazar is a consequentialist. But he, like every
person who uses the infringement model, is partially wedded to consequentialism.
83
Ibid., pp. 6–7, emphasis added.
84
See Thomson, 1990, pp. 160–63.

50
consequentialist considerations. The implication for the original Trolley Switch, where the trolley

is headed to five and may be turned onto one, is that the five too lack a right to be saved; their

interest, too, registers only as a good with consequentialist value.

Again, I will argue in the next chapter that this is not the right way to handle claims for

compensation. My point here is simply that this is not the only way to handle the thought that

those who are rightfully not rescued are owed no compensation. One could say, as I do say, that

something else determines when compensation is owed and that all interests that can sensibly be

picked up by claims are picked up and represented by claims.

4. The Mechanics of Claims and the Restricting Claims Principle

A theory should be judged not only by its internal coherence but by its fruit, that is, the benefits

it provides in terms of being able to make sense of important moral principles. One principle the

mechanics of claims enables us to make sense of is the means principle: the principle that it is

particularly hard to justify using another as a means if doing so imposes some cost on him,

unless he has waived or forfeited his right not to be so used. Other benefits will become clear in

later chapters.

The means principle sits at the heart of deontological ethics. But it has been notoriously

hard to defend. Some have tried to cash it out in terms of how problematic it is for an agent to

intend to use another as a means, but this explanation runs into numerous problems, the most

basic of which is that it seems implausible to put so much weight in deontology on the intentions

of agents, rather than more directly on the claims of patients.85 Others have tried to cash it out in

85
This point is the central theme of Chapter 5. I also make this point in Walen, 2014, pp. 428–
29. The point is made compellingly and with great detail, distinguishing a variety of intention-
based views, in Ramakrishnan, 2016, §§ 1.A, C, D, & F.

51
terms of the causal role of being a means to an end.86 But they have been unable to explain why

T. M. Scanlon was wrong to write that “being a means in this sense—being causally necessary—

has no intrinsic moral significance.”87

The mechanics of claims enables us to frame another principle, the restricting claims

principle,88 that can answer Scanlon’s challenge. And the value of reviewing here how it does so

is that it provides a vehicle for substantially developing the mechanics of claims, which is

valuable both in itself and for the way it lays the groundwork for the discussions later in the book

of the right to eliminatively kill threats and the right not to sacrifice oneself to stop threats.

4.1. Introduction to the Restricting Claims Principle

The principle is easy to state, though unpacking how it works and why it provides a ground for

the means principle will take the rest of the chapter.

Restricting Claims Principle: restricting claims are substantially weaker, all else

equal, than non-restricting claims in the balance of patient-claims.

This principle accounts for the means principle by first flipping it on its head, asking why

patient-claims not to be harmed as a side effect of pursuing some goal or simply being allowed to

86
Frances Kamm is the most influential philosopher to take this line. See Kamm, 2007 and 2015.
I discuss her view and explain why I think it fails, in Chapter 6, § 2.
87
Scanlon, 2008, p. 118.
88
I first developed what I now call the restricting claims principle in Walen, 1995; I returned to
it and gave it its current name in Walen, 2014. Both versions were essentially identical to the
“moral obstacles” principle in Øverland, 2014. But I soon realized that Øverland and I were
wrong to rely, as we did, on counterfactuals; and I came up with a new, property-based
foundation for the theory in Walen, 2016. That version closely tracks the “means principle”
offered in Alexander, 2016. I say, on the basis of an extended email exchange, that it also
functions exactly like Ramakrishnan’s “utility” principle, with one basic exception: his principle
does not apply to second property. We do have a deep disagreement, however: Ramakrishnan
thinks that the relevant principle “probably needs to be accepted as a primitive moral
proposition.” See Ramakrishnan, 2016, p. 136. The account that I offer here is new, a fourth
generation of the account, one that develops more clearly the role of empowering claims and
helps further explain why the principle is not a “primitive moral proposition” but one that
follows naturally from the mechanics of claims and the three fundamental principles of rights.

52
suffer are substantially weaker than claims not to be used as a means and thereby harmed.89 It

also explains why claims not to be used as a means should count as strong relative to competing

claims. But its foundational insight is that claims not to be harmed as a side effect should be seen

as having a strength in the same ballpark as claims to be saved, all else equal. And it explains

why they are both relatively weak by explaining why both are restricting claims. In that way,

they contrast with claims not to be harmed or allowed to suffer harm as a means to some end.

Those are non-restricting claims, and they are much stronger, all else equal.

To be clear, by saying that claims have a strength “in the same ballpark” I do not mean

“equal to.” Negative restricting claims are still stronger than positive restricting claims, all else

equal. The point is that the difference in their strengths is small enough that a few positive

restricting claims (most people’s intuitions are that the number is somewhere between two and

five) can outweigh a single negative restricting claim, all else equal.

Now the first obvious question is, Why call certain claims “restricting”? The answer is

that some patient-claims have a normative force that “pushes” to restrict an agent relative to her

baseline freedom. By pushing to restrict an agent relative to her baseline freedom, these claims

push to make other patients worse off than if the agent retained her baseline freedom. A

restricting claim need not successfully restrict. The point is that restricting claims have a

normative force that pushes to make other patients, with competing restricting claims, worse off.

The most intuitively accessible way to make sense of the idea of restricting claims is to

set a patient’s baseline freedom with reference to what she could do if the patients with the

restricting claims were not present. Consider Trolley Switch again. If the sidetrack man were not

89
From this point forward, the patient-claims I discuss are almost exclusively basic patient-
claims, so I leave the word basic implicit unless the context calls for distinguishing basic from
special patient-claims. I also often drop the word patient when the context makes it plain that I
am discussing patient-claims.

53
present, Brenda could justifiably turn the trolley away from the five onto the empty track.

Indeed, unless doing so would impose some large cost on her, she would have a duty to do so.

His presence with a claim not to be killed pushes to make the five substantially worse off. If his

claim had to be respected as a right, they would be transformed from people who have a right to

be saved into people who may not be saved—a clear hit to their normative standing. Conversely,

their claims push to impose a similar normative cost on him. If they were not present, Brenda

would obviously have no right to turn the trolley onto him. If their claims had to be respected as

rights, they would transform him from a person who had a right not to be killed to a person that

Brenda had a duty to kill (not as her aim but as the expected side effect of saving the five). Both

sets of claims push to restrict Brenda relative to her baseline freedom, either to save the five or

not to kill the sidetrack man.

The contrast case involves using another as a means:

Massive Man: Bertha, a bystander at a switch, can throw the switch and thereby

cause a massive man to topple into the path of a trolley that is hurtling down a hill

out of control, thereby killing him and saving five people whom the trolley would

otherwise kill.

Using a counterfactual test, it is clear why the massive man’s claim is not restricting. If he were

not present, Bertha could do nothing to save the five. If his claim not to be used as a means of

saving them has to be respected as a right, it would not make the five any worse off than if he

were not present. Thus, his claim does not push to make them worse off than they would be if the

agent had her baseline freedom. And that explains why his claim is much stronger than the claim

of the sidetrack man.90

90
The explanation is defective insofar as the account of the agent’s baseline freedom is
misguided; but it points in the right general direction, as will be made clear shortly.

54
 The explanation works this way: just as agents should not be free to act in ways that

impose excessive costs (negative externalities) on others, so patients should not have claims that

impose excessive costs on others. It is a matter of basic fairness that the strength of restricting

claims should be limited so that they do not impose excessive costs on others with competing

claims. Even if negative restricting claims should still be stronger than positive ones, all else

equal, we must recognize that negative restricting claims do not simply push to restrict an agent

from harming the claimant. They also push to make others with competing positive claims worse

off. This competition, via the agent, puts them in the same ballpark, in terms of strength.

The notion of establishing that claims are rivals in the same ballpark might suggest that

the restricting claims principle increases the strength of positive restricting claims just as much

as it reduces the strength of negative restricting claims. But there is nothing about the way

restricting claims compete that suggests strengthening. Rather, the effect is to weaken the

strength of negative restricting claims, relative to what one might expect if one focused merely

on the fact that these are claims not to be harmed. These claims not to be harmed are weaker than

they might otherwise appear to be because they are not to be weighed in isolation against the

agent; their strength has to reflect as well the “externality” they impose on other patients with

conflicting restricting claims.

In contrast with the patient-claims in Trolley Switch, the massive man’s claim imposes no

“externality” on others. It does not push to make the five worse off relative to the agent’s

baseline freedom. As a result, the massive man’s claim should be at full strength. That explains

why his claim should be stronger than the sidetrack man’s claim.

This provides an account of the key thought in the restricting claims principle, namely

that restricting claims should be weaker than non-restricting claims, because the former and only

the former push to impose something like a negative externality on others. But the account of

55
what makes a claim restricting or not fails. As I pointed out in Chapter 2, when discussing the

counterfactual analysis of what it means to perform an eliminative killing, counterfactual

accounts are susceptible to counterexamples.91 The same is true in this context. We can imagine

a variation on Trolley Switch in which, but for the presence of the sidetrack man, the trolley

would, if turned, hit 10. Yet the sidetrack man would still be killed, if Brenda turns the trolley, as

a side effect of turning it away from the five. It is impermissible to turn a trolley from five onto

10, yet his claim still should be understood as a claim not to be killed as a side effect.92

Conversely, we can imagine cases in which, but for the presence of the massive man, Bertha

would be able and permitted to topple something else in the path of the trolley, yet the massive

man’s claim still should be understood as a claim not to be used as a means.93 These

counterexamples simply demonstrate the familiar truth—familiar from cases of causal

overdetermination—that causal roles cannot be well understood with a counterfactual account.

And what the restricting claims principle tracks is really causal role.

More important than these counterexamples, the counterfactual account of an agent’s

baseline freedom skirts the deeper questions about how we should understand an agent’s baseline

freedom. This is fundamentally a moral notion. To truly make sense of the restricting claims

principle, we need a moral account of why an agent should not be taken to have a baseline

freedom to use another for good ends, a baseline freedom that the other’s claim not to be used

pushes to restrict. That is what I offer in the next section.

4.2. The Property Baseline for the Restricting Claims Principle

Restricting claims should be understood as claims not to be harmed, or to be helped, when the

claimant’s relevant interest is not based on ownership of the means the agent would use to

91
See my discussion of Bayonet and Sniper in Chapter 2, § 4.
92
I discuss such a case, Sidetrack Man Protecting Others, in Walen, 2016, pp. 222–23.
93
I discuss such a case, Massive Man Displacing a Moose in ibid., pp. 224–25.

56
achieve whatever good is proposed to justify her act. The question is, Why use the absence of

competing property claims regarding the means the agent would use to achieve her goal as a

baseline for agent freedom? Indeed, given that the essence of patient-claims is to have some

normative force on agents, one might wonder how a claim could be anything other than

restricting.

The answer to both questions is that some claims function to establish an agent’s baseline

freedom, while other claims come into play to restrict an agent relative to her baseline freedom.

As I now understand the restricting claims principle, the distinction between restricting and non-

restricting claims reflects the fact that there are two ways we see ourselves in relationship to

others. First, there is the agent–agent way of dividing up the world into that which is available to

each agent for her own use, that which is reserved for others, and that which is available for all

(or none). This is, obviously, a division along property lines. Then there is the way we, as

patients, confront agents who seek to use their property to promote their ends. We have an

interest in limiting their freedom so that it does not inflict undue harm and so that they act in

ways that benefit us. I call these, respectively, the agent–agent division and the agent–patient

frontier.

The agent–agent division is important because the essence of agency is the ability to

choose how to act. For an agent to be free to act, she needs to have the means by which to act.

The means she is presumptively free to use include her body, her time, her energy, and any

extensions of her body that she needs to act effectively (i.e., her second property). These

comprise her toolkit, so to speak. What is reserved for others in the agent–agent division is not in

her toolkit. A fellow agent with a claim to deny her the use of some part of the world contributes

to defining the limits of her toolkit and, with that, the limits of her baseline freedom. Such a

claim is not “restricting” because its moral effect is not to restrict an agent relative to her

57
baseline freedom; it occurs at a morally prior stage, that of setting her baseline freedom. In past

writing, I have called such claims “non-restricting”94; I now think it is more illuminating to call

them “property claims.” And it is obvious enough why property claims, at least concerning first

property, concern not being used as a means. It should also be clear why second property has the

same functional role of establishing the limits on an agent’s freedom and should thus have a

similar normative significance.

In contrast to property claims, restricting claims operate in the space of patient–patient

conflict and reach across the agent–patient frontier to push to restrict an agent relative to her

baseline freedom. These contrasts enable us to answer a basic question for the restricting claims

principle: why should property claims be stronger than restricting claims that protect the same

sort of interest? The answer has two aspects, both of which have already been suggested. The

first aspect relates to the difference made by patient–patient competition, as opposed to setting

the baseline freedom of agents; the second refers to the different principles the two kinds of

claims express.

Turning to the first aspect, compare the claim of the sidetrack man with the claim of the

massive man. The sidetrack man’s claim not to be killed and the claims of the five to be rescued

compete to restrict Brenda with regard to her baseline freedom. The massive man’s claim does

not compete with the claims of the five in the same way. His property claim over his body does

not compete to restrict Bertha relative to her baseline freedom; rather, it serves to limit her

baseline freedom before the claims of the five can even come into play. Thus, his claim not to be

killed does not impose anything like a negative externality on the five. Because property claims

do not impose anything like negative externalities, they are freed from the sort of leveling that

limits the strength of negative restricting claims.

94
See Walen, 2014 and 2016.

58
 Before continuing, it is important to emphasize that property claims are not limited to

claims over the body. Consider this case:

Drug Owner: To save the lives of five people, Dr. Aspire needs to give them a

certain drug. But all the readily available supply of that drug is owned by one

person, Bryson. Moreover, Bryson is not simply hoarding the drugs; he bought

what he owns because he needs all of it to live.95

It seems to me clearly impermissible for Dr. Aspire to take Bryson’s drugs, and it seems to me

that the impermissibility of doing so has the same basis as the impermissibility of toppling the

massive man in front of the trolley: both have property claims that protect their interest in their

lives.

The second reason the massive man’s and drug owner’s claims are stronger than

restricting claims protecting the same interest is that property claims are essential to respecting

the autonomy principle from the patient side of the balance, while restricting claims are essential

to respecting the welfare principle from the patient side of the balance. Fleshing out this aspect

of the answer requires establishing two points: first, that the different kinds of patient-claims

respond to different principles and, second, that the autonomy principle has some priority over

the welfare principle.

Property claims are essential to respecting the autonomy principle because they provide

agents the means with which to lead autonomous lives. As expressed in their patient form, they

protect against other agents using the owner’s property in any way that interferes with the

owner’s interest in having an exclusive right to use it. The claim to deny other agents use rights

serves the same fundamental autonomy interest as negative agent-claims. Just as negative agent-

claims protect agents from having to serve as a tool for the balance of restricting patient-claims

95
This case comes from Walen, 2014, p. 453.

59
(if that balance calls on the agent to act), so property claims function to protect a patient’s tools

(including her body) so that they serve the interests of the patients who own them. Property

claims function, therefore, as the patient analogue of negative agent-claims. This is what the

agent-agent divide represents.

By contrast, restricting claims are fundamentally concerned with protecting the welfare of

patients when agents seek to exercise their baseline freedom to act. Of course, patients who die

lose their autonomy. But in this context, once the agent-agent divide has set an agent’s baseline

freedom, autonomy is relevant only secondarily, as a contributor to welfare and as a basis for

holding patients responsible for their own choices (waiver and forfeiture) and their own luck

(positive versus negative claims). What matters fundamentally is welfare.

The second part of the argument is that the autonomy principle has to have a limited

priority over the welfare principle. It needs such a priority to function at all. The space of rights

must ensure that welfare does not matter to such an extent that it turns agents into tools for the

promotion of the greater welfare. Different people have different sensibilities about how much

priority to give the autonomy principle. Libertarians will give it infinite priority; utilitarians

incorporate it into welfare and thus give it no priority. I think the truth is in the middle: a

reasonable balance gives substantial priority to the autonomy principle, all else equal, but holds

that negative agent-claims and property claims are outweighed when the interests they protect

are relatively minor and the competing welfare claims are much greater. The key is this: the

autonomy principle must have enough priority over the welfare principle for it to be true that

agents have a meaningful normative space in which to lead their own lives for their own ends.

In sum, the restricting claims principle is a natural outgrowth of the autonomy principle.

The autonomy principle provides that the space of rights must give people the normative space in

which to lead their own lives. To do that, it must let them own property and have priority over its

60
use. That is the basis for the agent–agent division, which sets the baseline freedom for each

agent. When claims are restricting, they register after that divide has already been taken into

account. It is only restricting claims that compete as ballpark rivals—holding interests to be on a

par and assuming that no one has waived or forfeited a claim—for it is only restricting claims

that push to restrict agents relative to their baseline freedom.

4.3. Objections and Replies

I now address two cases that might be offered as raising problems for the restricting claims

principle. Both call for refining what it means to have a restricting or a property claim.

The first case challenges the notion that non-property claims should be seen as a

relatively weak restricting claims.

Rescue Ahead: Renee is on a train rushing down the line to save five people who

are in imminent danger of death. In the distance ahead, she sees someone trapped

on the track (the “trapped-ahead man”). She sees no reason to think that he has

recklessly caused himself to be trapped on the tracks (and we should assume that

he was in no way at fault for being trapped there). Unless she stops the train, the

trapped-ahead man will be killed. If she stops the train, however, the rescue

mission will be aborted and the five will die.96

The common intuition in this case is that Renee cannot justify allowing the trapped-ahead man to

be run over for the sake of saving the five. But it seems that the trapped-ahead man has only a

restricting claim. He certainly does not own the track on which he is trapped; he seems, rather, to

have a claim like that of the sidetrack man, a claim not to be killed as a side effect of the agent

96
My argument with regard to this case is now settling into a position in between the one I
originally took in Walen, 2014, pp. 456–57, when I held that the trapped-ahead man’s claim was
non-restricting, and the one I took in Walen, 2016, pp. 244–47, when I held that his claim was
restricting.

61
pursuing her goal of saving the five. In truth, however, I think that what this case shows is that

property claims have to be interpreted broadly to encompass property-like claims as well as

claims that are, strictly speaking, property claims.

The case for saying that the trapped-ahead man has a property-like claim is that his

temporal priority on the track gives him a prior claim to deny others the right to use it unless and

until he can be freed from it. It is not a true property claim as he cannot do what one can

normally do with property: he has no claim to use the stretch of track on which he is stuck for his

own purposes, nor may he sell it, nor may he refuse to vacate it if freed from it. But he does have

a claim vis-à-vis Renee, namely that she may not count it as in her toolkit for getting where she

wants to go. His claim on it is temporally prior to hers and thus is morally prior to hers. This

reflects a deep presumption in our thoughts about property, that when it comes to unowned

objects, first use provides a presumptive property-like claim. Of course, the tracks are owned by

someone or some organization. But as between the trapped-ahead man and Renee, it functions

like an unowned resource on which the trapped-ahead man has a temporally prior claim.97

There are limits to this sort of property-like claim. If the trapped-ahead man were in some

way to blame for his being trapped, he might forfeit his property-like claim. And even if not to

blame, he would need to have sufficiently clear temporal priority for his property-like claim to

vest. To see that, consider this case:

Collision Course: The conditions are the same as in Rescue Ahead, except the

trapped ahead man is replaced by someone (the “collision-course man”) who is

97
One might wonder why Renee does not have a prior claim to use of the track, assuming that
she has a ticket to ride the train that is on it and that the trapped-ahead man paid no such fee. The
answer is that his blameless claim to need to withdraw it from use is a much stronger basis for
claiming a property-like right than a ticket. I return to how claims work when someone owns
property in § 4.4.

62
 strapped onto a flimsy cart that is rolling down a sidetrack so that it will arrive at

the spot where the sidetrack joins with the main track a second before the train

with Renee would come to the same spot.98

Can it be that Renee should try to speed up just to make sure that she gets to the intersection

first? Assume that if she did so, the collision-course man would be killed in more or less the

same way; the difference would be only that he would run into the train rather than having the

train run into him. If it were clear that he would hit the train if Renee did not apply the brakes,

the case would be intuitively quite different from Rescue Ahead. There would be much less

normative pressure for her to stop the train. But it also seems implausible to say that she should

speed up to ensure that he hits her, rather than that she hits him. Imagine that speeding up would

introduce a 10 percent chance of derailing, injuring Renee and others on the train as well as

preventing the rescue of the five. It seems a bad trade-off to introduce any such risk just to

ensure that the train beats the cart to the merger spot. I acknowledge that right-of-way notions

have some moral weight, but they also seem beside the point in this case. The reason this is so, I

suggest, is that if the collision-course man had just a bare moment of temporal priority, that is

insufficient to cause us to judge that his claim to priority over use of the track has vested.

This is just one more example of the sort difficult decision points that inevitably must be

faced to operate in the space of rights. (The first one concerned when luck vests.)99 But the fact

that these decisions have to be made does not, I think, undermine the importance or applicability

of the basic concepts.

I turn now to the second problem case for the restricting claims principle. This case raises

a similarly obscure issue concerning the directness of the link between a property claim and the

98
I first discussed this case in Walen, 2016, pp. 245–46.
99
See § 1.3.3.

63
interest it protects. I do not know how to spell out exactly what constitutes a sufficiently direct

connection, but I can illustrate the issue with two cases in which it fails. Consider first:

Trolley Switch Tool: In order to throw the switch and turn the trolley away from

the five, Brenda needs to use a tool. She sees one lying nearby that she knows

belongs to the sidetrack man. If she doesn’t use his tool, she can’t save the five,

but if she uses it, she will kill him.100

The case seems, intuitively, more like Trolley Switch than Massive Man, but here Brenda uses

the property of the owner and thereby brings about his death. I used to think that this case

showed something special about second property, but consider this case:

Massive Man Tool: In order to throw the switch, Bertha needs to push a massive

man who is standing next to her into a switch. This will have three effects. First, it

will turn the trolley away from the five. Second, it will cause the massive man a

little pain. Third, it will dislodge a rock above the switch, which will then fall on

and kill the massive man.

This case, too, seems intuitively more like Trolley Switch than Massive Man. But now Bertha is

using the massive man himself, not some second property of his, as a means of saving the five.

In both cases, I think that what explains the permissibility of acting is that the harm that is

directly connected to the use of another’s property (his tool or his body) is relatively minor. The

harm that follows to that same person is a side effect of the use. The owner’s claim not to suffer

the serious harm of death is a separate, restricting claim. Again, I do not know how to spell out

exactly what makes the connection sufficiently direct, but it seems to be connected with whether

it makes sense to think of the use as separable from the ultimate harm, such that one could

imagine the use having a small effect on the owner and the ultimate harm befalling someone

100
I first discussed this in Walen, 2014, p. 455.

64
else, someone with nothing like an ownership claim in the object used. There will doubtless be

hard, borderline cases. But the clear cases seem clear enough.

4.4. Refining the Restricting Claims Principle with Empowering Claims

What I said in section 4.2 suffices, I think, to explain why claims not to be used as a means are

substantially stronger than claims not to be harmed as a side effect, as well as claims to enjoy a

benefit, all else equal. But the account is still in a fundamental way incomplete. The agent–

patient frontier is not limited to restricting claims seeking to push agents relative to their baseline

freedom and agents pushing back primarily with negative agent-claims. There is another

important way in which patient interests cross the frontier: they ground claims that push to

empower agents to count as part of their toolkit what would normally be the exclusive property

of others. I call these “empowering claims.”101 It is the conflict between property claims and

empowering claims that fully sets the baseline freedom of an agent.

It will help to explain the role of empowering claims, and to bring the whole picture into

focus, if we think about cases in which the agent has to use someone else’s property as a means

to save five. Consider, again, Brenda from Trolley Switch. I have been describing this case as

though it is obvious that Brenda may throw the switch. But presumably the switch belongs to a

trolley company and is the kind of thing that bystanders may not normally treat as theirs to use.

Nevertheless, if using it is the only way to save lives, then the interests of those whose lives

would be saved empower Brenda with a temporary right to throw the switch on their behalf.

More precisely, their empowering claims outweigh the trolley company’s property claim to

exclude Brenda from throwing the switch and put the switch, for this one purpose, in her toolkit.

The empowering claims successfully empower Brenda only because the trolley company’s

101
I introduced empowering claims in Walen, 2016, pp. 229–31. This section substantially
develops the idea.

65
interest in excluding bystanders from throwing its switches is quite weak—it serves no interest

other than the bare interest in having exclusive use of its property; there is no other harm directly

connected to the trolley company’s ownership interests that would be implicated by Brenda’s use

of the switch. Compare that to the interest the five have in being saved. It is clear that any

reasonable balance between property rights and empowering claims should favor the five.

These same empowering claims would fail, however, to empower Bertha to topple the

massive man onto the path of the trolley in order to save the five. If anything is going to be out of

one agent’s toolkit, it is another agent’s body, unless the other agent offers his consent or has

somehow forfeited his claim to control at least some set of uses of his body or his property claim

directly protects only an insignificant interest and is outweighed by empowering claims that

serve a very strong interest. We can assume that he has not consented to be used and has not

forfeited his right not to be used. This leaves only the weighing question, and it clearly favors the

massive man. The interest of the five is great, but his interest in denying them the use of his body

is also great and directly connected to the denial. As it is a property claim, it is substantially

stronger than their empowering claims.

To better understand why the massive man’s property claim over his body should

outweigh the empowering claims of the five, it helps to notice a deep symmetry in the theory:

restricting claims push on agents in their agent mode, by pushing to restrict their freedom;

empowering claims push on agents in their patient mode, by pushing to strip away the property

claim to exclude others from using their property. As already noted, property claims are the

patient analogue of negative agent-claims. They are both essential to giving people the freedom

that is grounded in the autonomy principle. Both have limited priority over patient-claims that

reflect the welfare principle. Given these symmetries, empowering claims should register as

66
having a strength on a par with restricting claims, all else equal, just as property claims should

register as having a strength on a par with negative agent-claims, all else equal.

One might object that empowering claims should not be as weak as restricting claims, all

else equal, because only one of the two factors that limit the strength of restricting claims applies

to empowering claims. They both express a concern with welfare, and they both bring that

concern to bear against a concern with autonomy. But only restricting claims also reflect the

importance of competition between restricting claims. Insofar as different groups, with

conflicting interests, have claims to empower agents to do different things, that in itself is no

conflict. The agents in question might simply be empowered more than they otherwise would be.

I think this objection overlooks the way in which competition matters for restricting

claims: it brings negative restricting claims down so that they do not excessively overpower

positive restricting claims. There is no reason to assume that the competition also affects the

strength of positive restricting claims. Their strength should simply reflect the normative force

they exert against negative agent-claims. Empowering claims operate in an analogous way, to

reflect the interests of patients against the patient-analog of negative agent-claims, i.e., property

claims. As such, it makes sense to treat empowering claims as having a strength akin to positive

restricting claims that serve the same interests.

We are now in a position to state more clearly the structures that constitute the restricting

claims principle. The most important thing to note is that the principle operates in two steps. In

step 1, an agent’s baseline freedom is set by the agent–agent division, which sets her property

claims, and by the influence of all relevant empowering claims. If some tool is in another’s

toolkit, and the empowering claims in favor of an agent having use of it fail to overcome the

other’s competing property claims, that is the end of the story; there is no role for restricting

claims; she may not use the property in question. If, however, her baseline freedom includes the

67
use of some tool, whether because it is her property or because empowering claims give her a

very limited right to use it, we then come to step 2.

In step 2, restricting claims push to restrict an agent’s freedom in different ways. The

balance of those restricting claims pushes the agent either to do something or to refrain from

doing something. Insofar as it pushes her to do something, she can rely on her strong negative

agent-claim not to have to serve the balance of restricting patient-claims, and she will be obliged

to do so only if having such an obligation does not substantially impinge on her ability to lead

her own life. Insofar as the balance of patient-claims (including her own) pushes her not to do

something, she may not do it except insofar as she is using her property in a way that causes no

serious harm to others. It is at the second step that we set her freedom for stage 2, which takes

into account special patient-claims.

It is important to be clear that empowering claims can succeed at step 1, but the

corresponding restricting claims can fail at step 2. Recall the flipped version of Trolley Switch, in

which the trolley is headed toward one person and he could be saved only by Brenda turning it

onto another track where it would kill five. The empowering claim of the one would, at step 1,

suffice to give Brenda the right, as against the trolley company’s claim that she keep her hands

off its equipment, to throw the switch. But the restricting claims of the five would outweigh the

restricting claim of the one with regard to that freedom. Thus, Brenda would be confronted with

a balance of restricting claims that would prohibit her from turning the trolley in the final

analysis.

Having now fully described how the restricting claims principle works, I present in

flowchart form the full structure for analyzing whether an agent, A, has a right to perform act X,

where X can be an act like turning a trolley or an omission like not turning the trolley.

68
 Stage 1: Weigh the
basic claims

Step 1: Does A have the

means to X in her
toolkit? (If she has a
negative-agent claim to
X, then she does.)

If no, do empowering
If yes, does the balance
claims temporarily put
of patient-claims weigh
the means in her
against A Xing?
toolkit?

If no, then go to If yes, then does A have If yes, then go to the

a negative or positive “yes” box in the If no, then A may not X.
Stage 2 agent-claim? previous row

If negative, then A may If positive, A may not X

X unless her agent claim unless the harms to
is weak and the balance others are insubstantial.
of patient-claims If they are, go to Stage
pushes strongly to X. 2

If the balance of
If A's negative agent-
patient-claims
claim dominates, then
dominates, then A must
go to Stage 2
X

Stage 2: Does anyone

have a special claim
that removes A's liberty
to X

69
4.5. Two Final Clarifications Regarding the Restricting Claims Principle

I want, now, to make two final clarificatory points about the restricting claims principle. The first

clarifies the importance of focusing on justifications, and it does so in the context of risk. I have

earlier emphasized that what matters, first and foremost, in the mechanics of claims is whether a

justification for an act works. When considering what is justifiable in the sense relevant for

rights, we need to appeal to the non-esoteric facts.102 This leaves room for the possibility that the

best anyone can say is that various acts come with various risks—any appeal to the facts of what

will happen if various things are done would be too esoteric to affect the right to act. To see this,

consider the following hybrid of the Massive Man and Trolley Switch cases:

Trolley Switch with Risk of Looping: Brenda can turn the trolley from the five

onto the sidetrack man, and the odds are that the latter’s death will not be a means

to saving the five. But there is a switch that randomly flips over many settings,

one of which leads the tracks behind the sidetrack man to loop back to where the

five are. If the switch happens to direct the trolley onto the loop, then what stops

the trolley from hitting the five will be the sidetrack man’s body.

I have argued before, contrary to the standard intuition, that it is impermissible to turn a trolley

onto a sidetrack man in a looping variation of Trolley Switch in which the trolley would be

prevented from looping around and hitting the five only by hitting the man on the sidetrack.103

The reason is that Brenda is not simply turning the trolley away from the five; she could not

justify doing so, given that it will kill the sidetrack man, were it not for the fact that she could

save them by using him to stop it. But then his property claim blocks that justification.104

102
See Chapter 2, § 2.3.
103
See Walen, 2016, pp. 242–44.
104
One might wonder, on this basis, what the restricting claims principle would say about a case
in which Brenda could turn the trolley from five onto the sidetrack man but the sidetrack man

70
 This hybrid case, however, is different. To see the difference, suppose that the odds are

80 percent that the tracks will not loop and that the trolley would simply turn away from the five

and onto the one, killing him as a side effect. How should we handle the remaining 20 percent

probability that the sidetrack man will be used as a means of saving the five? If we took it as an

evil with a value, then we might think that it outweighs the claims of the five. But that is to

mistakenly treat wrongdoing as a special evil. Rather, we should treat that possibility as one in

which the claims of the five are blocked. As a result, we should treat the case as one in which

there is an 80 percent chance that the five’s claims go through and a 20 percent chance that they

fail. This is like a case in which the likelihood of Brenda successfully saving the five is 80

percent and the chance that she will kill the one is 100 percent. If we suppose that an 80 percent

probability of saving the five is sufficient to justify imposing on the sidetrack man a 100 percent

certainty that he will die, then it is permissible for her to turn the trolley; and if he ends up

serving as a means, that’s a merely foreseen accident, not part of the justification of the act.

If we now suppose that the odds of saving the five in a non-looping case are only 50

percent and that one cannot justify Brenda imposing a 100 percent chance of death on someone

to achieve a 50 percent chance of saving five, then the case comes out differently. The point is:

what matters is not whether he is in fact used as a means but whether that fact appears in the

justification for the act. That justificatory path is blocked, but other justificatory paths that

remain open can still carry weight, discounted by the odds of their working.

protects 10 behind him. She could not justifiably turn the trolley from five onto 10, so it might
seem that she uses him as a means of justifiably turning the trolley away from the five. But I
think the cases are meaningfully different. The justification for turning the trolley away from the
five is that it will save them; the sidetrack man is not a means to doing that. His presence does
then save the 10, but she does not use him to achieve that end. All she does is rely on the fact that
only one person will die. She may not act to ensure that he stays put, but I am assuming that his
staying put is a given. See ibid., pp. 225–26.

71
 Second, the ideas of restricting and empowering claims are crucial for thinking about

how to take the general welfare into account without stepping outside of the space of rights. The

best model here is the state as the agent charged with pursuing the general good. We should think

of the state’s power to tax and take property for the general good as grounded in the empowering

claims of the people whose interests it serves. I do not want to overstate this point. I reject a

Lockean notion of natural property rights that the state disrupts whenever it taxes. Much of the

property regime is set by the state in the first place and should be set to achieve distributive

justice, which is not reducible to the sorts of deontological considerations picked up by the

restricting claims principle. But the state’s power, with regard to legally vested property, to tax it

and to take it with compensation should be understood to rest on the empowering claims of those

whose interests are served. On the flip side of the ledger, restricting and property claims both

come into play to explain the restrictions on state action that the state must observe—as

highlighted in Chapter 2, section 3. This way of thinking about the general welfare reinforces a

point I made in the first section of this chapter, to the effect that while the content of the space of

rights must reflect certain considerations other than the claims of individuals, we should

nonetheless accept that all welfare that can register through competing claims on agents does

register that way.

72
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