ELTRG Seminar: ‘Disvaluable Rights’ – Joaquín Casalia, University of Oxford

This is a seminar organised by the Edinburgh Legal Theory Research Group. The speaker Joaquín Casalia, from the University of Oxford, will be presenting his paper on ‘Disvaluable Rights’.

Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This is not a pre-read event, but the paper will still be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.

Author bio: Joaquín is completing an MPhil in Law at the University of Oxford, Balliol College. His current research is focused on explaining whether having a right can be disvaluable for its holder.

Abstract: Rights are a peculiar kind of normative tools. They are peculiar because they are generally conceived as always good for their holders. Take whichever of those two prominent theories that explain what rights are, say, the interest and will theory. For both of them, rights have an intrinsically valuable goal; they contribute to the value of its holder whilst fulfilling a function. This function may be the protection of the holder’s wellbeing – if you are an interest theorist – or the normative empowerment of the right-holder – if you are a will theorist. Notwithstanding their differences regarding what makes a right a right, the point is that no matter how the holder uses it, if someone has a right it non-instrumentally contribute to its holders’ value. As John Gardner asserts, when analysing how John Finnis understands rights, “it is common to all plausible accounts of rights (...) that a right is to something that the rightholder either does or should welcome.” In this paper, I argue that the opposite view is plausible: that a right can be an object that no reasonable person should welcome. My arguments suggests that the fact that you have a normatively protected option – a right – can be non-instrumentally disvaluable for you. I distinguish three ways in which this disvalue can obtain. First, having received a right may entail having a new option that unjustifiably distorts the value of your decision-making process, your well-being, and the meaning of your status quo (distorting rights.) Second, mere right-holding can disable one from participating in our most deemed relationships (disabling rights). Third, the mere fact of having a right can defeat the interest that the same right aims at achieving; thus, rights may self-defeat (self-defeating rights). I will offer an example for each of these ways of obtaining disvalue. Respectively, these are: the (legal) right to die, the (legal) right to lie in court, and the (moral) right to be loved. Thus, I aim to explain how can be the case that having a right can sometimes be non-instrumentally bad for its holder.

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