Towards a More Particularist View of Rights’ Stringency

For all their various disagreements, one point upon which rights theorists often agree is that it is simply part of the nature of rights that they tend to override, outweigh or exclude competing considerations in moral reasoning, that they have ‘peremptory force’ (Raz in The Morality of Freedom, Oxford University Press, Oxford, 1986, p. 192), making ‘powerful demands’ that can only be overridden in ‘exceptional circumstances’ (Miller, in Cruft, Liao, Renzo (eds), Philosophical Foundations of Human Rights, Oxford University Press, Oxford, 2016, p. 240). In this article I challenge this thought. My aim here is not to prove that the traditional view of rights’ stringency is necessarily false, nor even that we have no good reason to believe it is true. Rather, my aim is only to show that we have good reason to think that the foundation of the traditional position is less stable than we might have otherwise supposed and that an alternative conception of rights—one which takes the stringency of any given right as particular to the kind of right it is—is both viable and attractive. In short, to begin to move us towards a more ‘particularist’ conception of rights’ standing in moral reasoning and judgement.