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1370 GEORGIA LAW REVTEW [Vol. 13:1245 rate responsibility, which I took as connoting ethical considerations that take us beyond the theory of rights. Here I looked into some of what it means to be a responsible member of a civilized society, especially as this involves understanding the forces that are at work in the world-always, but especially today.
THE RIGHT TO LIFE* George P. Fletcher** In the theory of rights we repeatedly encounter the problem of reconciling someone's having a right with his properly suffering damage to the interest protected by the right. In the case of right to life, we have to assess numerous (cases in which individuals are killed or allowed to die, and we wish nonetheless to affirm their right to life. These cases include killing an aggressor in self-defense, accidental homicide, terminating life-sustaining therapy, and capital punishment. Two fashionable ways of reconciliing acceptable killing with the right to life will no longer do. One approach is to claim that the right to life is merely a prima facie right; iit is subject to being overridden by competing considerations.' Even when stripped of confusing associations with principles of proof, the notion of a prima facie right cannot withstand criticism. If someone's right to life prevails over the wishes of those who wish to kill him or her, we hardly would say that the right is merely prima facie. And if the victim's right of defense permits the killing of an aggressor, we are hard pressed to say that the aggressor's right to life is somehow overridden and thus "lost" in the collision with a higher value. It seems that the right remains the same, whether overridden or not.2 Another fashionable argument builds on a theory of forfeiturea3 Aggressors and criminals supposedly forfeit their right to life; that they have no right to life explains why murderers are properly subject to the death penalty and why some aggressors are subject to being killed in response to their aggression. This argument has already encountered considerable scepti~ism,~ and yet it is so tempting a solution that it continually rea~sserts it~elf.~ One item on our agenda is to develop a more thorough refutation of this theory. * 0 1979 by George P. Fletcher. ** Professor of Law, University of California, Los Angeles. I wish to thank my colleagues Richard U7asserstrom and Herbert Morris for reading an earlier draft of this paper and for expressing scepticism about at least some of the arguments that warrant it. ' The doctrine originates in W. Ross, THE RIGHT AND THE GOOD 55-56 (1930). See A. MELDEN, RIGHTS AND PERSONS 12-15 (19'77). E.g., J. LOCKE, THE SECOND TREATISE OF GOVERNMENT § 23 (1690); 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 133 (1765). See Bedau, The Right to Life, 1968 THE MONIST 550. Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 7 PHIL. & PUB. AFF. 93, 111-12 (1978).
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THE BASIS AND CONTENT OF HUMAN RIGH
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THREE TYPES OF RIGHTS* Lawrence C.
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