Philosophers are accustomed to thinking of moral rights and consequentialist analyses as fundamentally incompatible. They frequently debate cases--both hypothetical and real--in which rights and consequences are in conflict. For example, suppose an innocent child knows the whereabouts of a terrorist who has planted a nuclear bomb in a city. Would it be permissible to violate the child's moral right to be free from torture, if this was the only way to save millions of innocent lives? If this is permissible, then do not moral rights yield to concerns about consequences? Or suppose that a community incorrectly believes that an innocent person is guilty of a heinous crime. If the beneficial consequences exceed the harmful consequences, would it be permissible to punish or even kill this innocent person? If not, then do not consequential concerns yield to moral rights?
In this foreword, the author explores the possibility that it is useful to analyze problems pertaining to law from both a moral rights and a consequentialist perspective; that each of these competing modes of analysis complements the other, notwithstanding the fact that one mode will sometimes conflict with the other; that the mode of analysis associated with traditional "natural rights" theories contains both a moral rights and a consequentialist component; and that, just as both chickens and eggs are vital components of a process of biological evolution, moral rights and consequentialist analyses are vital components of a process of legal evolution−−a process that includes both elements of change and elements of stability.
Scholarly Commons Citation
Barnett, Randy E., "Of Chickens and Eggs−−The Compatibility of Moral Rights and Consequentialist Analyses" (1989). Georgetown Law Faculty Publications and Other Works. Paper 1267.