5.

1 Rights as Trumps
Though there are disputes over the function of rights and the history of rights language, most
agree that rights have special normative force. The reasons that rights provide are particularly
powerful or weighty reasons, which override reasons of other sorts. Dworkin's metaphor is of
rights as “trumps” (Dworkin 1984). Rights permit their holders to act in certain ways, or give
reasons to treat their holders in certain ways or permit their holders to act in certain ways,
even if some social aim would be served by doing otherwise. As Mill wrote of the trumping
power of the right to free expression: “If all mankind minus one were of one opinion,
mankind would be no more justified in silencing that one person than he, if he had the power,
would be in silencing mankind” (Mill 1859, 20).
How rights become imbued with this special normative force is a matter of ongoing scholarly
inquiry. As Sreenivasan (2010) notes, a Hohfeldian claim-right in itself only entails the
existence of a duty with a certain structure, and not a duty with a certain force. A has a claim
against B if and only if B has a duty to A: in this definition it is the “direction” of B's duty
(that it is owed to A) which correlates B's duty to A's right; nothing is said in the definition
about the duty's strength. Why “directed duties”—as above, those owed to an entity—have
greater normative priority remains an open question: the only broad consensus is that they
do. (See Thompson 2004 on “bipolar” judgments.)
Dworkin's metaphor suggests that rights trump non-right objectives, such as increasing
national wealth. What of the priority of one right with respect to another? We can keep to the
trumps metaphor while recognizing that some rights have a higher priority than others.
Within the trump suit, a jack still beats a seven or a three. Your right of way at a flashing
yellow light has priority over the right of way of the driver facing a flashing red; and the
right of way of an ambulance with sirens on trumps you both.
This metaphor of trumps leads naturally to the question of whether there is any right that has
priority to absolutely all other normative considerations: whether there is an “ace of rights.”
Gewirth (1981) asserts that there is at least one such absolute right: the right of all persons
not to be made the victim of a homicidal project. For such a right to be absolute it would
have to trump every other consideration whatsoever: other rights, economic efficiency,
saving lives, everything. Not all would agree with Gewirth that even this very powerful right
overrides every conceivable normative concern. Some would think it might be justifiable to
infringe even this right were this somehow necessary, for example, to prevent the deaths of a
great many people. If it is permissible to kill one in order to save a billion, then not even
Gewirth's right is absolute.

5.2 Conflicts of Rights?