Horacio Spector Value Pluralism and the Two Concepts of Rights

Philosophers and legal theorists still disagree about the correct analysis of ‘rights’, both moral and legal. The ‘Will Theory’ and the ‘Interest Theory’—the two main views—can each account for various features of rights, but neither of them is totally satisfactory. The controversy has now been running for decades and seems irresolvable. I will contend in this paper that the discussion of ‘value pluralism’ in the Berlinian tradition can illuminate the debate over the concept of rights. Philosophers and legal theorists still disagree about the correct analysis of ‘rights’, both moral and legal. The ‘Will Theory’ and the ‘Interest Theory’—the two main views—can each account for various features of rights, but neither of them is totally satisfactory. The controversy has now been running for decades and seems irresolvable.1 I will contend in this paper that the discussion of ‘value pluralism’ in the Berlinian tradition can illuminate the debate over the concept of rights. Value pluralism says that there is a plurality of conflicting and incommensurable universal values (Crowder 2002, 45). Values are said to be incommensurable “when they raise radically distinct considerations such that there seems, prima facie, to be no reason to rank one ahead of another in all or most cases” (Crowder 2002, 53). This is the conception of incommensurability Isaiah Berlin embraced. Because it does not include a time variable, I call it ‘synchronic value pluralism’. It centrally claims that there is no general procedure to rank abstract values in such a way so as to allow the resolution of practical conflicts in particular cases. There is a second conception of value pluralism that I call ‘diachronic value pluralism’. This conception maintains the theses of rivalry and * I am grateful to Larry Alexander, Dick Arneson, Daniel Weinstock and, especially my commentator, Professor Christopher Wonnell, for their helpful comments during the ‘Isaiah Berlin, Value Pluralism, and the Law’ conference held at the University of San Diego School of Law on February 20–21, 2009. I have also benefited from comments made by Marcelo Ferrante, Jeff McMahan, Guido Pincione, Dave Schmidtz, and Fernando Teson. A prior version of this article is published in the San Diego Law Review 46(4), 2009. 1 For a state of the question, see Kramer, Simmonds & Steiner 1998.