It is a familiar problem in both constitutional law and moral philosophy that social benefit sometimes conflicts with individual rights or common intuitions about moral duty. Competing schools of philosophers have battled over that conflict for generations. One frequent analytic tool is the hypothetical case designed to pose the conflict as sharply as possible. Judith Jarvis Thomson's recent article is in that tradition. My brief response to Professor Thomson proceeds at two levels. At one level, the response is directed at Thomson: I think there are better solutions to the moral problems in her hypothetical cases. At a more general level, my response is directed to both sides in the long debate over rights and utilities. Thomson's cases highlight fundamental disagreements about the nature of rights and the relationship between rights and utilities. I think that we cannot solve these problems until we combine the analysis of rights and utilities into a single moral calculus more inclusive than anything Bentham envisioned.
Douglas Laycock, The Ultimate Unity of Rights and Utilities, 64 Texas Law Review, 407–414 (1985).
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