Conflicts of rights: Typology, methodology, and nonconsequentialism

This chapter examines the ways in which rights may conflict. Positive rights protecting lesser interests may be combined with weightier rights, on one side, or positive rights protecting lesser interests may be alone against positive rights protecting weightier interests, on the other side. There are at least three problems with these tests. First, the Effort Test and the Choice Test may give conflicting answers. Second, the Effort Test and the Goal Test may give conflicting answers. The third problem is that the use of these tests to measure the stringency of rights depends on an assumption of transitivity. When an attacker who threatens to cut off someone’s leg is killed by his potential victim in self-defense, it is sometimes said that there is a conflict between the right of the attacker not to be killed and the right of a person not to be harmed.