203The Journal of Value Inquiry 38: 203–216, 2004.C© 2004 Kluwer Academic Publishers. Printed in the Netherlands.

Resolving Human Rights Conflicts: Evaluating Judith JarvisThomson’s High-Threshold Thesis

EUGENE RICEFort Hays State University, 600 Park Street, Hays, KS 67601, USA;e-mail: grice@fhsu.edu

1. Human Rights Conflicts

Many respected rights-inclusive moral theorists allow rights to be overriddenunder certain conditions. This is no doubt partly because they appreciate thetheoretical difficulties associated with an absolute characterization of rightsand also because they realize that, as a practical matter, even the most basicrights are sometimes involved in complex trade-offs in legal and politicalsettings. Despite these considerations, one of the most understudied theoreticalissues in human rights discourse concerns how we ought to handle cases whererights conflict. Roughly speaking, the moral factors that could conceivablycount toward overriding a right are other rights or various additional moralconsiderations like social goods, utility, or personal preferences. The currentdebate in the United States and elsewhere about infringing individual rightsin the name of national security is but a single example of a much largerphenomenon.

Philosophers who accept a prima facie model of rights assume differentpositions on which rights exist, which are overridable, and on the justifica-tions for such infringements. This is partly due to the fact that the primafacie conception of a right is embraced by thinkers operating from a numberof different normative approaches. Theoretical differences aside, however,accepting the possibility of justifiably infringing human rights raises a hostof complex issues. Unfortunately, most rights theorists are either unawareof the intricacy of the problems rights conflicts create for their systems, orare content to gesture in the direction of a resolution strategy based on anartificially limited set of test cases. Judith Jarvis Thomson is the exception tothis rule. She has constructed a thorough response to most of the obstaclespertaining to prima facie rights including a detailed conflict resolution strat-egy called the high-threshold thesis.1 Thomson’s most important conclusionregarding moral conflicts where human rights claims are involved is that we

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cannot aggregate benefits across beneficiaries in order to override a person’sright: “where claims are concerned, the numbers do not count. Let us call thisthe High-Threshold Thesis.”2 This is a sweeping and potentially problematicresolution strategy. Of course, in one sense, human rights should protect indi-viduals from the immoral designs of governments, powerful corporations andother citizens, even if the potential beneficiaries outnumber the right-holder.Indeed, this function of a human right is part of the essence of the conceptand explains why so many people find the idea attractive. However, in someconflict situations it is not clear that we can or should ignore the number ofpossible beneficiaries.

2. Thomson’s Methodology and Theory of Rights

Thomson’s approach throughout her work on human rights issues is a formof intuitionism. She starts by considering cases involving rights where thereis widespread agreement, as there is with respect to basic rights protectingindividuals from torture or murder. Thomson proceeds from judgments aboutsuch individual scenarios toward a theory of rights and eventually to the highthreshold thesis. Thomson explains her method: “I do not wish merely toproduce a list of moral judgments that we (I hope) will agree to be true. Iwill draw conclusions from the supposition that these judgements are true,conclusions in particular about people’s rights. They will serve as data for thetheory of rights to be presented.”3

As is common among deontologists, Thomson contrasts her own positionon rights with act utilitarianism. Thomson’s primary example concerns a casewhere we are asked to suppose that there is a surgeon who could save fivedying patients by cutting up one healthy individual to transplant his vitalorgans to the others. According to Thomson, the general value maximizingstrategy of an act utilitarian dictates that the surgeon must kill the healthyperson in order to harvest the organs, since the utility of saving five livesoutweighs the negative value of sacrificing one individual. Because this resultis clearly unacceptable, Thomson argues that we must look elsewhere for amoral system that meshes with our beliefs about the importance of protectingindividuals. Indeed, Thomson concludes that such scenarios show us thatthere is more at work in the moral sphere than value. There are also humanrights or, as she calls them, claims: “There is more to morality than value:there are also claims. And it is not because claim infringement has negativevalue that we ought not infringe claims. We ought not infringe claims—whenwe ought not infringe them—because of what a claim is.”4 This passageillustrates a couple of related points. First, human rights form a basic moralcategory for Thomson, one that is not reducible to, or based upon, value.Secondly, Thomson holds that when we honor a rights claim, we honor it

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because it is a human right and not because honoring it promotes or maximizesvalue, either for particular individuals or society. The substantive system ofrights that results from Thomson’s case-based considerations is agreeable toWesley Hohfeld’s classic division of rights into claims, privileges, powers,and immunities.5

Thomson agrees with many utilitarians in recognizing that most humanrights have an amount that would allow us justifiably to infringe that right.Thomson’s case for the existence of thresholds consists of examples like thefollowing: suppose that Anne can save the lives of four people by kickingBill in the shin. Ordinarily, Bill’s basic right to bodily integrity means thatAnne has a duty not to kick him. However, if she could save five people bykicking Bill in the shin, then she ought to do so. Thomson calls the prin-ciple at work in such cases the trade-off idea: “It is permissible to infringea claim if and only if infringing it would be sufficiently much better forthose for whom infringing it would be good than not infringing it wouldbe for the claim holder.”6 There is a certain amount of good for the benefi-ciary, which we may call the total requirement, that when reached justifiesinfringing the right. Cases like this thus provide Thomson with an intuitiveargument for thresholds. Nonetheless, such examples alone tell us very littleabout how we reach the total requirement. What exactly is the role of thenumber of possible beneficiaries in reaching the threshold of a right? Canconsiderations other than rights count in reaching the threshold? Thomsonbegins to answer these questions by introducing the harm principle, whichlinks the strength of the threshold of a right to the harm that violating itwould produce: “the more stringent the claim, the larger the required incre-ment of good” and “the worse the claim infringer would make things for theclaim holder by infringing the claim, the larger the required increment ofgood.”7

3. The Basic Conflict Resolution Strategy

The primary argument for Thomson’s resolution strategy is in the fifthchapter of The Realm of Rights and consists primarily in working througha series of detailed conflict cases involving basic human rights. Thomsonstarts by discussing an important qualification on the trade-off idea, that notjust any amount of good is enough to justify a trade-off, but only a sufficientlylarge amount. This condition is intended to outlaw the outrageous trade-offssanctioned by an advocate of unconstrained utilitarianism. However, she doesnot specify whether this amount is by a factor of ten or a hundred or a thousand.Thomson’s more vague view is found by comparing various cases involvingtrade-offs. In each scenario Thomson compares her intuitions about what sortsof trade-offs are acceptable with a utilitarian model. Thomson makes a key

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distinction here differentiating the phrase “good for a person” from considera-tions of “value.”8 Although this distinction is crucial, she does not dwell on it,claiming only that the good needed to override a right is not the same conceptas the notion of value employed by many consequentialists: “And we are notto be looking at the acts that will have taken place if the surgeon does or doesnot proceed—and asking what value those acts would have. That is irrelevantto us. We are to be asking only how good it is for those who would be affectedby the acts.”9 Unfortunately, Thomson does not explore this distinction in anydetail, preferring instead to rely on our intuitive agreement with a very smallnumber of examples: “I will not offer an analysis of this notion of ‘good fora person’: it is important for our purposes, and I will lean heavily on it, butI leave it to intuition. It is good for a person who is starving to get food, it isbad for a person that a piano fall on his or her head.”10

Despite Thomson’s claim to the contrary, it would appear that both con-cepts could refer to the consequential element of moral decisionmaking, asopposed to evaluating the nature of the act itself or the character of the agent.Perhaps the words “good for a person” are to be taken as an evaluation ofthe intrinsic nature of an act. This interpretation is partially supported by arevision Thomson gives to the trade-off idea when she says: “It is permissi-ble to infringe a claim if and only if infringing it would be sufficiently muchbetter for those for whom infringing it would be good than not infringing itwould be for the claim holder.”11 The revised trade-off idea may thus alsobe an attempt to reflect special concern for the treatment of the right holderas opposed to other individual beneficiaries. If so, it meshes with the tradi-tional emphasis on human rights as being protective of the actual personswho enjoy them. While this indeed may reflect a different emphasis than theimpartial, impersonal weighing of aggregate value promoted by advocates ofunconstrained utilitarianism, Thomson’s failure to provide a better foundationfor this distinction is disturbing, even to a philosopher inclined to join her inrejecting utility as the ultimate moral consideration. The difficulty in differ-entiating these concepts becomes even more acute in certain conflict casesand makes assessing the acceptable factors in fulfilling thresholds difficult.

Thomson nevertheless continues her analysis of rights conflicts arguingthat the strength of a right is tied to the concept of harm. While claimingthat we have an intuitive notion of the various weights of rights in general,Thomson states that no single amount consistently qualifies as a sufficientlylarge enough, even for a particular human right. Nevertheless, it is clear thatthe total amount of good required to justify overriding a right is comparative.The stronger a right in a given situation, the more is needed to justify infringingit. Two instantiations of the same right may thus have different strengths.

Despite these qualifications on the nature of the total amount required to jus-tify overriding a right, other possible scenarios complicate matters. Thomsonthus proposes her conflict resolution strategy: “In short, where claims are

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concerned, the sum of goods across people does not count. I do not mean thatgoods across people have no sum; I mean only that where claims are con-cerned, their sum across people does not matter. In still shorter form, whereclaims are concerned, the numbers do not count.”12 Thomson’s approach thushas two basic foundations. From the trade-off idea, we see that a great dealmore must be at stake for the people who benefit from a rights infringe-ment than for the person who possesses the right. The strategy then adds ananti-aggregationist element, necessitating that at least one single beneficiarymust have the total requirement at stake.

Accepting this conflict resolution strategy has two immediateconsequences, according to Thomson. First, it means that we cannotinfringe a right merely on the grounds that it would save another personfrom a comparable fate. Johnson cannot kill Williams to save Smith fromdeath, or kick Williams to prevent Smith from getting kicked, because thereis not a sufficiently large amount of good at stake to justify the harm tothe right holder. A second consequence is what Thomson calls a maximallystringent right. A maximally stringent claim is a human right that, because ofits degree of importance to persons, will never apply in actual situations whereit could be justifiably infringed. Some rights are thus so stringent that no singlebeneficiary could possibly have a sufficiently large enough amount of goodat stake to justify infringing that right. Thomson has given an explanation ofwhy some of our most basic human rights seem absolute: “If we accept theHigh-Threshold Thesis, then, the numbers do not count, and no matter howmany I would save by killing you, from no matter what horrors, that doesnot make it permissible for me to kill you.”13 Thomson goes on to exploremaximally stringent claims, and concludes that there are probably othersbesides a claim not to be killed, including the right not to be maimed or tor-tured. She believes that life is not a good sufficiently large enough to justifyblinding and cutting the legs off a person, for example. These considerationslead her to propose a range of maximally stringent claims that vary in weight.Therefore, on Thomson’s account, it is not contradictory to talk about onemaximally stringent right being more stringent than another. All such claimsare bad enough for the right holder that no other single person could haveenough at stake to infringe the right. This remains the case even though,among this class, some violations are worse than others.

Thomson also discusses scenarios where infringing someone’s rightactually helps the person. They are cases of negative stringency. For example,if David’s leg is caught under a fallen tree, and he is unconscious and willdie if Sarah does not cut his leg off, Thomson claims that Sarah may infringeDavid’s right to bodily integrity and cut his leg off.14 Based on the high thresh-old thesis and the harm principle, it is permissible to proceed to cut off David’sleg, because on the whole the infringement is good for him and the benefits ofthe infringement are distributed appropriately. Additionally, because it is to

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David’s overall benefit, Sarah need not secure consent beforehand as stronglyas if Sarah needed to cut off David’s leg to save Edward’s life. In that case,Sarah cannot proceed unless David has consented. Thomson concludes that,in general, the total requirement in such cases is substantially less than ininstances where the right bearer is not the same person as the beneficiary.Another way to express this general idea is to say that violation minimizationwithin a life avoids many of the objections encountered in cases involvingviolation minimization across persons. Despite this qualification, Thomson’shigh threshold thesis retains its strong anti-aggregationist component. Bydefining her strategy in such stark terms, she has no doubt accounted forsome of our deepest intuitions about the importance of protecting individuals.

4. Evaluating the Comprehensiveness of the Strategy

Thomson’s conception of human rights emphasizes a fundamentaldistinction between concerns of utility and rights claims. This separation ismeant to protect individuals and culminates in the distributive constraint of thestrategy against aggregating goods across multiple beneficiaries. While thehigh threshold thesis excludes the obscene types of trade-offs like that of thetransplant example, the conclusions it leads to in other cases are not asclear or are not as widely agreeable in terms of intuitions. Exactly howcomprehensive is the high threshold thesis? Does it satisfactorily resolve, oreven apply to the majority of possible conflict cases involving human rights?Certainly it is erroneous to assume that any single theory will adequatelycover every possible kind of conflict case involving human rights. Indeed,rights-inclusive theories often do not even start with the same set of rights andthe general inflation of rights language in the political and legal spheres meansthat some so-called rights conflicts probably do not involve human rights atall. Nonetheless, some progress in evaluating various models is possible, ifonly because a resolution strategy that adequately accounts for the commontypes of infringements for a basic set of human rights is certainly strongerthan an approach that resolves only a single type of conflict. In assessing thescope of a resolution strategy, it is helpful to ask what elements it allows tocount towards reaching the threshold of a right. Does it allow only rights tooverride other rights, or are other moral considerations also permitted? Al-though Thomson has dealt with a large number of different conflict scenarios,it is not entirely clear what can count toward reaching the total requirement.Thomson’s principal examples are conflicts involving the same right as held bydifferent individuals, or different rights of various strengths held by a varietyof individuals. So, it seems safe to say that the rights of a single beneficiarycan count toward the total amount needed to reach a threshold. This is es-pecially true since rights are often seen as the embodiment of what is good

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for a person. However, Thomson does not distinguish whether the rejectionof aggregation applies to rights, goods, values or some combination of these.She says only that there must be a sufficiently large amount of good at stakefor some single beneficiary. Many of Thomson’s examples make it clear thatshe wants to outlaw violations of rights that lead to minimal gains in utility forthe beneficiaries. However, she does not consider whether large amounts ofutility either for one person or for multiple beneficiaries could override a rightof a single individual, or even count along with other elements in reaching thetotal requirement. Although it is unlikely that our intuitions would condonecases where a person’s basic rights are overridden by the utility of a singlebeneficiary, perhaps lesser rights might be overridden by the utility of multiplebeneficiaries. A traditional example of this kind of infringement is when citiesuse the concept of eminent domain to override the rights of property owners inorder to build roads for their citizens. Similarly, we could imagine cases wherelarge amounts of utility would override a lesser right when the right holder isthe same individual as the beneficiary. A related question is whether utilityought to count toward reaching a threshold when combined with rights-basedconsiderations of a single beneficiary. Given her strong anti-utilitarian stancein general, Thomson probably considers all such mere utility out of play.

5. Assessing the Conclusions Drawn from the Strategyon Trolley-Type Cases

Even for philosophers in agreement with Thomson’s general take on theimportance of human rights, not all of her conclusions about specific casesenjoy the unanimity of the transplant scenario. Perhaps the most importantsingle case for exploring Thomson’s high-threshold thesis concerns a trolley:

An out-of-control trolley is hurtling down a track. Straight ahead of it on thetrack are five men who will be killed if the trolley reaches them. Bloggs is apasserby, who happens at the moment to be standing by the track next to theswitch; he can throw the switch, thereby turning the trolley onto a spur oftrack; that man will be killed if Bloggs turns the trolley. Most people wouldsay that it is permissible for Bloggs to turn the trolley. And wouldn’t theybe right to say this? If something—a trolley, an avalanche, an out of controlsatellite—will kill five if nothing is done and if also it can be deflected insuch a way as to make it kill only one, surely it is permissible to deflect it. . . But if it is permissible for Bloggs to turn the trolley then we have beenoverlooking something important. For how exactly is TROLLEY supposedto differ from TRANSPLANT?15

Since appeal to shared moral intuitions about the offensiveness ofaggregative resolutions to rights conflicts forms the foundation of Thomson’s

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strategy, the trolley scenario is key, because if it contradicts them- it places theentire approach in doubt. Indeed, such cases seem to maximize goods in justthe sort of way that is prohibited by the high threshold thesis. This examplethus poses at least two problems for Thomson. The first concerns the rejec-tion of all aggregation in her resolution strategy while the second difficultypertains to the viability of Thomson’s general methodology.

Thomson’s defense of her conflict resolution strategy against trolley-typecases has developed over the course of her career. In her earlier work, sheattempted to explain the relevant difference between transplant and trolleycases simply by appeal to differences in the rights involved. Thomson nowrejects such maneuvers, appealing instead to the notion of a prior state ofmutual advantage which nullifies the normal belief that we cannot kill oneperson to save five. Thomson’s first step in dealing with trolley cases is to testthe strength of the intuition by filling in various sets of details. For instance,Thomson asks us to consider our intuitions about what Bloggs should do ifthe group of five men were not innocent bystanders but thrill seekers. As thrillseekers, the men are sitting on the track taking bets on whether the drivercould stop in time. We may contrast their position with a man on the spur,who is an employee of the trolley company diligently working. If this were thecase, Bloggs should do nothing. Thomson concludes that, unlike transplantcases, Bloggs is going to have to be sensitive to the various ways in whichthe individuals got into their present positions. This then implies that it is notmerely maximizing value that allows Bloggs to turn the switch from the fiveindividuals to the one in the original situation, since if this were the case, itwould also hold for the revised version.

Thomson claims that a deeper difference between the two variations canalso be found. She argues that there is an underlying belief that in the originaltrolley example, the six men occupy their positions by chance. This assumptionallows Bloggs to turn the trolley justifiably. Thomson claims that if presentedwith the options early in the morning, each of the six workers would reasonablyagree to Bloggs turning the train onto the spur, because they would all gaina better chance of surviving the accident later in the day. If Bloggs does notturn the trolley, they all have a one in six chance of surviving the disaster.The time of the day is crucial; by noon the workmen are at their positionsand it is no longer true that they would all agree that Bloggs should turn thetrolley onto the spur unless, of course, the individual working alone on the spurhappened to be an altruistic fellow. However, the advantage accrued to eachworker occurs only if Bloggs really does turn the switch, and this is true eventhough later in the day it will not be to the advantage of all that Bloggs turn thetrolley. Thus, it remains as permissible for Bloggs to turn the trolley at 3:00p.m. when the disaster is just about to happen as it was earlier in the morning.

However, survival is not the only thing that is important to people,and is thus not the only consideration that needs to be factored into

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explaining the difference between the two cases. Especially in the replies to herobjectors, Thomson emphasizes that the mutual advantage criteriondictates further considerations, such as making sure that none of the peoplein the illustration hold specific views or beliefs “sufficiently objectionable tooutweigh . . . their getting the increased probability of survival they get if hewill turn the trolley.”16 After much discussion of different trolley scenarios,Thomson concludes that there is an asymmetry between trolley-type casesand transplant-type situations. Because health is affected by behavior and wegenerally know when we are healthy, there is never a previous time in thetransplant case that corresponds to the situation of the individuals in the earlymorning of trolley. If a surgeon asks six people whether or not they wouldagree to sacrifice one healthy person for their organs, they would not all agree.The healthy people would not agree for four reasons according to Thomson.First, the individuals could not give their approval because their chances ofsurvival go down, since it is the healthy people that are more likely to besacrificed. In addition, agreeing to such a program encourages what Thomsoncalls “moral hazard,” which shifts the risk of careless conduct onto peoplewho are healthy and careful.17 Thirdly, the healthy people who do not engagein risky behaviors are likely to feel resentment at being sacrificed for peoplewho engage in such acts. This is compounded by the fact that in transplantcases, it is not merely death but death by suddenly being sacrificed for partswhich, all things considered, is not a very pleasant way to die. Thomson con-tinues her defense of the asymmetry by responding to the objection that shehas provided crucial information in this case about the health of some of theindividuals that she has not provided in the trolley case:

There is no time at which none of the healthy among us knows whether ornot they are healthy. . . . Second, there is not a time after which health orneed of body parts will come on people entirely by chance—contrast thelottery for positions on the track. As I said, everything we know tells us thathow one lives their lives does affect one’s health and that care does increaseone’s own probability of being healthy. In short, there is no time at whichwe would all consent to Bloggs’ cutting up one to save five. By contrast,there is a time at which the workmen would all consent to Bloggs’ turningthe trolley, namely early morning.18

Thomson thus concludes that trolley-type cases form a narrow class ofexceptions to the general rule that we cannot kill one person to save five.If the number of beneficiaries does not count toward reaching the thresholdof the right of the worker on the spur, why is it acceptable to turn the trolley?The short answer for Thomson is that our intuitions are that it is accept-able. However, since this appears to contradict the ban on aggregation ofgood across multiple beneficiaries by the strategy, Thomson is forced to

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offer an additional explanation. She claims that prior to the event, it is to eachworker’s advantage to agree to a principle where one of them is sacrificed forfive. Thus, Thomson claims that our intuitions are that each individual wouldhave felt that the act of turning the trolley was agreeable, at least ex ante.

There have been many objections to Thomson’s position on trolley-typeexamples since the publication of The Realm of Rights. Thomson has re-sponded to some of the objections in later work, which may be classified intothree types of cases. The first, least important category encompasses situationsthat involve extremely strange sacrificial acts. Thomson persuasively arguesthat such examples end up being so preposterous that an intuitive assessmentis very difficult, and, in many cases, the results do not even contradict her posi-tion. However, there are instances where objectors raise more troubling typesof examples for Thomson’s trolley explanation. Two of them are worth consid-ering in depth. The first objection to Thomson’s explanation of trolley cases isthat her explanation would justify paternalistic actions whenever it is to a per-son’s advantage that we take such action. Bruce Russell, for example, claimsthat Thomson’s appeal to mutual advantage would mean that a doctor couldperform a radical mastectomy without a woman’s consent as long as it was tothe woman’s advantage.19 Such cases are especially troubling because mostpaternalism seems deeply at odds with the emphasis on human rights as cen-tral to protecting individual freedom. In her response, Thomson begins bynoting that consent to medical procedures in some common, real life cases isnot required, as when the patient is delirious or unconscious. However, if awoman has a deep and lasting objection to such surgery and is unconscious,this will outweigh the importance of the increased probability of survivalthat surgery would provide. In the cases where the individuals are conscious,Thomson thinks that it is clearly not to the patient’s overall advantage to oper-ate without obtaining consent, given the psychological pain of overriding herwishes and the fear of mastectomy. Thomson thus attempts to limit the sizeof the class of justifiable interventions by emphasizing the negative aspects ofviolating a person’s deeply held religious or emotional beliefs. Similarly, theimportance of making autonomous choices in the face of powerful, but ofteninconclusive, evidence plays an important role in the life of human beingsand would prevent some paternalistic intrusion. For example, in the case ofoperating on a deeply committed Christian Scientist, Thomson claims that itreally will be bad for the person, in the long term, if we violate his beliefsand his autonomy by using modern medical techniques. This is so even if,strictly in terms of physical health, it would be better to intervene. Thomsonhas argued that many of the critics who mean to contradict her position onmutual advantage, in general, do not pay enough attention to her conditionthat people involved do not have attitudes or beliefs that change the strength ofthe harms involved. In order to accept this response we have to admit a certaincomplexity to the human experience and the relevance of emotional or spiritual

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pain to the overall good of an individual. This must be done without mak-ing harm, and the rights based on harm, completely subjective. Nevertheless,Thomson’s response is reasonably consistent with the feelings people haveabout the limits of paternalistic intervention.

Another type of potentially damaging counterexample to Thomson’s ex-planation of trolley-type cases involves situations where the trolley cannot beturned, and the five people on the track do not die but are seriously injured. Insuch cases, critics challenge Thomson by inquiring what further actions wouldbe justifiable. For example, Russell argues that Thomson’s mutual advantageexplanation dictates that the uninjured survivor is drained of his blood to helpthe five people, since at an earlier time it would be to everyone’s advantage toagree to such an arrangement. In response, Thomson challenges the intuitionsof the critics about what ordinary individuals would agree to: “I don’t at allsee why they think this. Would the six workmen have agreed to one’s beingso treated to save the other five after the five are hit by the trolley? Not ifthey are like the rest of us.”20 Thomson again draws our attention to how thepotential victims would feel about such treatment. Thus, even if it is to every-one’s mutual advantage to agree to use Bloggs for blood, it is not somethingshe believes our intuitions would allow us to accept. It seems that this is, inpart, because there is something especially objectionable about being cut upor drained of blood after the accident in order to save five, instead of beinginstantly killed. Indeed, in many of her replies, Thomson invites her reader tofocus on what is acceptable to the individuals involved:

The literature on this problem has focused on the contrast between whatthe agents would be doing in proceeding in those cases: whether the agentwould be treating the one ‘as a means’ (rather than an end), whether theagent would be launching a new threat (as opposed to deflecting someexisting threat), whether the agent would be intending the one’s death (asopposed to merely foreseeing it), and so on. I invite focusing instead on thecontrast between what potential victims would feel about what the agentswould be doing. It is there that, I think, the solution to this problem mustlie, for none of those contrasts between what the agents would be doingwould matter morally if they didn’t matter to the potential victims.21

This response to the objection appears consistent in employing intuition asthe chief criterion. However, Thomson’s rejoinder is problematic because thefeelings of the people involved in trolley cases can be interpreted in differentways. It can be viewed from the perspective of what we intuitively believeabout what is a morally acceptable way to treat another person, or as whatwe believe individuals might reasonably do as a matter of their own personalsurvival. Someone may conclude that it is to his own ex ante advantage toagree that the single individual be used as a blood donor after the trolley

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hits the five. However, the same individual may also not believe that this is amorally acceptable way to treat a person. Emphasizing only that interpretationhowever undercuts the force of Thomson’s mutual advantage response to theoriginal trolley example. Thomson invokes the idea of mutual advantage as anexplanation for the intuitions in the trolley cases, only to have to drop it laterand revert to focusing on intuitions when confronted with situations whenthe mutual advantage principle yields counter-intuitive results. In addition tothis incongruity, it is not clear that using the ex ante perspective is consistentwith Thomson’s avowed methodology in the first place. Focusing on whatvictims would believe in the original example gives us two different answersdepending on the time of day. Given her intuitionist approach, Thomson cannoteasily offer reasons why we should focus only on intuitions from the ex anteperspective. This enduring disagreement in terms of intuitions thus means thehigh threshold thesis has a softer foundation than Thomson supposes.

6. Other Aggregative Cases and Thomson’s Normative Commitments

Even if Thomson’s treatment of trolley-type cases could be worked out, othercases may still suggest that the so-called numbers should indeed count insatisfactorily resolving some human rights conflicts. Indeed, SamanthaBrennan argues that many people would actually agree with her own intu-ition that if we could prevent a thousand persons being submitted to a lifetimeof torture by killing one individual, then we are morally justified in killing oneperson.22 Thomson sticks to her guns when confronted with such examples,maintaining that the right to life is maximally stringent and that we cannotjustifiably kill one individual even to save a billion people. Similar popularexamples involve instances where travelers or hostages slated to die can besaved, either by sacrificing one of the hostages, or by sacrificing some otherindividual. Finally, there are also scenarios involving rights other than the rightof bodily integrity which suggest that large amounts of aggregate utility couldalso qualify as a legitimate element in reaching a threshold. Certain instancesof eminent domain fit this description. Here, we are not weighing a numberof competing rights claims against each other, but comparing the amount ofaggregate utility for the beneficiaries against the right of a property owner. Ingeneral, it is clear that these scenarios count against the high threshold thesis.

It is worth noting that Samantha Brennan has attempted to allow anaggregative component while still accounting for Thomson’s basic positionon handling human rights conflicts by offering “universal” and “existential”constraints on trade-offs.23 Although Brennan claims that her explanation ofthe components involved in thresholds is deeper than Thomson’s model be-cause it relies on something other than brute intuition, this is questionable.She never explains exactly what the alternative is and does not identity herself

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with any specific normative approach. At most her explanations gain strengthby accounting for a broader array of moral intuitions about various cases, mostimportantly cases where the number of beneficiaries or amount of total valueachieved does seem to make a moral difference.

While there are various standard objections to intuitionism as a completemoral theory, two have direct relevance to the construction of a conflictresolution strategy. The first is a criticism already uncovered. Thomson claimsto stick to her intuitionist method even in cases where the approach impliesinconsistencies in her own program, as with the debates involving the trolleyexample. However, her uses of the ex ante perspective and the concept ofmutual advantage suggest that something other than pure intuition is at work.If these concepts are used ultimately to justify her preference for one set ofintuitions over another, she has deviated from her method. If they are mereexplanations for the existence of intuitions, we may wonder if the explana-tions are worthwhile, since they do not seem to work in other very similarcases. In the end, then, we are left with conflicting intuitions that do not ruleout aggregation, and indeed sometimes suggest that the number of people doin fact count. This leads to the larger question concerning the feasibility ofemploying the intuitionist method to develop a conflict resolution strategy.Perhaps if this application of the high threshold thesis has proven anything,it is that Thomson’s own methodology is problematic in this realm, becausethere is no widespread agreement in our intuitions about various types ofrights conflict cases.

7. Conclusion

Judith Jarvis Thomson has given the most detailed defense of the conceptof a prima facie right and a rights conflict resolution strategy for deonticphilosophy. Her general conclusions about rights are straightforward and dif-ficult to dismiss. Our intuitions do support the need for human rights, aswell as thresholds for such rights, albeit with significant restrictions on whatcounts toward the total requirement and how it is to be distributed amongbeneficiaries. Thomson’s anti-aggregationist model prevents obviously unac-ceptable types of trade-offs while allowing infringements in cases involvingclear disparities in the strength of rights. Nevertheless, her model leaves muchto be desired.

The scope of the high-threshold thesis is uncertain, especially sinceThomson makes no distinction between types of conflicts involving humanrights, other than to suggest that what is good for a person is separate from theconcept of value. This leaves the question of what exactly can count towardreaching the total required to override a right essentially unanswered. Withouta better understanding of what elements count, it is hard to know exactly what

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to conclude from the resolution strategy in many cases. This hampers the as-sessment of the plausibility of the strategy. Even for deontologists who thinkthat mere utility should have no role in resolving rights conflicts, there areother reasons to doubt that Thomson’s approach is the final word. Most impor-tant in this respect is Thomson’s strong anti-aggregation stance that excludesever considering the number of people involved. This position conflicts withthe intuition of many people about different cases and forces her question-able solution to trolley-type scenarios. Philosophers who object to Thomson’saccount should offer a better version, through this is easier said than done.24

Notes

1. Judith Jarvis Thomson, The Realm of Rights (Cambridge Mass.: Harvard University Press,1990), pp. 122–202.

2. Ibid., pp. 166–167.3. Ibid., p. 4. See also M.B.E. Smith, “The Best Intuitionistic Theory Yet! Thomson on

Rights,” Criminal Justice Ethics 11 (1992), p. 85.4. Judith Jarvis Thomson op. cit., p. 148.5. Wesley Newcomb Hohfeld, in Walter Wheeler Cook, ed., Fundamental Legal Conceptions

(New Haven, Conn.: Yale University Press, 1919), p. 38.6. Judith Jarvis Thomson, op. cit., p. 158.7. Ibid.8. Ibid., pp. 151–153.9. Ibid., p. 151.

10. Ibid., p. 152.11. Ibid., p.153.12. Ibid., pp. 166–167.13. Ibid., p. 168.14. Ibid., p. 198.15. Ibid., p. 176.16. Ibid., p. 181.17. Ibid., p. 184.18. Ibid., p. 185.19. Bruce Russell, “Exploring the Realm of Rights,” Philosophy and Phenomenological

Research 53 (1993), p. 169.20. Judith Jarvis Thomson, “Replies to Commentators,” Philosophy and Phenomenological

Research 53 (1993), p. 189. Also see Bernard Gert, “Transplants and Trolleys,” Philosophyand Phenomenological Research 53 (1993), p. 173.

21. Judith Jarvis Thomson, “Replies to Commentators,” p. 188.22. Samantha Brennan, “Thresholds for Rights,” Southern Journal of Philosophy Vol. 23

(1995), p. 159. See also, Samantha Brennan, “How is the Strength of a Right Determined?Assessing the Harm View,” American Philosophical Quarterly 32 (1995).

23. Samantha Brennan, “Thresholds,” p. 163.24. I would like to thank Professor Robert Ashmore for his continued assistance and Professor

Thomas Magnell for helpful comments on this paper.