Colin Bradley (New York University School of Law) has posted Accountability and Obligations Come Apart (Critical Notice: Nicolas Cornell, Wrongs and Rights Come Apart) in the Canadian Journal of Law and Jurisprudence on SSRN. Here is the abstract:
Nicolas Cornell’s Wrongs and Rights Come Apart advances two interlocking theses. The first is that the wrongs we do to others are not conceptually tied to their rights. We can wrong someone without violating her rights—or, indeed, without violating anyone’s rights—and we frequently do. The second thesis is that our remedial concerns are more closely linked to wrongs than to rights. A complete picture of our moral lives therefore requires appreciating the sharp distinction between an ex-ante deliberative perspective in which we attend to others’ rights and our corresponding obligations, and an ex-post remedial perspective in which we attend to the wrongs that we have done. If this is correct, then a lot of recent work in moral philosophy is on the wrong track. According to what I call the Obligation-Accountability Nexus (OAN), A has a moral obligation to X if and only if it is appropriate for some agent C to hold A accountable for failing to X. If Cornell is right, this thesis is false because sometimes A wrongs C without violating an obligation or violating a right, and it is nevertheless sometimes appropriate for C to hold A accountable when that happens. This Critical Notice reconstructs Cornell’s arguments against OAN. But it shows that these arguments do not have as wide a reach as Cornell supposes. Cornell takes his arguments to count against all “rights-based views” that limit the class of persons who are “properly aggrieved” by bad or wrongful actions. This overlooks that there is a coherent and attractive version of a rights-based view that strongly restricts the class of the properly aggrieved, but rejects OAN as a general account of obligation and accountability. This version of a juridical view agrees with Cornell’s central claim that wrongs and rights come apart and indeed offers an independently attractive explanation of why the general thesis tethering rights and wrongs together is false. But on this overlooked alternative, we ought to maintain a distinctive juridical domain wherein wrongs consist in the violation of rights and we are liable to a special form of accountability only when we commit wrongs by violating rights. Crucially, this juridical view specifies what being liable (sometimes) involves: it involves being subject to accountability practices that, in the absence of certain legitimating features, would violate one’s freedom as independence. Because this freedom-threatening way of holding one another accountable is (sometimes) valuable, it makes sense to carve out a distinctive juridical, rights-based domain.
Recommended.
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