In The View from Nowhere, Thomas Nagel explains rights and obligations in terms of a distinction between agent-neutral values (values we have a reason to promote from an objective perspective, such as the prevention of pain) and agent-relative values (values each person might have a reason to promote, but which we have very little reason to promote from a neutral perspective, such as a particular person climbing Kilimanjaro). Unless I seriously misread him (a distinct possibility, I must admit), Nagel seems to argue that, just as we might have agent-relative reasons to pursue our own goals that others might not have a reason to help us with, we might also have real agent-relative reasons for avoiding doing harm ourselves, even if doing harm ourselves could prevent someone else from being harmed by another person. Perspective matters. "A fully agent-neutral morality is not a plausible human goal," says Nagel.
In "Personal Rights and Public Space," however (Philosophy and Public Affairs 24:2, pp. 83-107), he seems to argue in favor of inviolable rights - rights that may not be violated, even to prevent major harm, including greater violation of those same rights by other - for a very different reason. Nagel says, on universal human rights such as freedom from torture and political persecution:
First, it means that these are forms of treatment to which no one should be subjected - that every person, everywhere, is wronged if maltreated in these ways. Second, that the wrongness is not a function of the balance of costs and benefits in this case - that while in some cases a right may justifiably be overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case. Rights are universal protections of every individual against being justifiably used or sacrificed in certain ways for purposes worthy or unworthy.
Nagel posits a few rights in particular in this essay - the right to be free from torture, and the right to freedom of speech and thought, including sexual fantasy, are discussed. But where do these rights come from? And what is their justification as rights that should be free from utilitarian calculation (at least below a certain threshold, perhaps that of moral catastrophe)? Why these, and not other rights?
Even though Nagel favors the view of rights as intrinsic, rather than instrumental (valuable only to the extent that they promote happiness and other goods), oddly, extremely oddly, I think Nagel is offering what might be considered a consequentialist justification for a set of deontological rights.
Nagel certainly does not see himself as making a consequentialist argument. Quite the opposite:
I shall try to defend the distinct (but perhaps complementary) position that rights are a nonderivative and fundamental element of morality. They embody a form of recognition of each individual's value which supplements and differs in kind from the form that leads us to value the overall increase of human happiness and the eradication of misery - and this form of recognition of human value is no less important than the other. The trouble with this answer is that it has proven extremely difficult to account for such a basic, individualized value so that it becomes morally intelligible. The theory that rights are justified instrumentally, by contrast, is perfectly clear and based on uncontroversial values.
To make the argument for inviolable rights in what he considers a "morally intelligible" way, he first defines a status of inviolability (possession of rights that may not be violated, even to prevent a greater violation of rights) as a non-consequentialist value:
Being inviolable is not a condition, like being happy, or free-just as being violable is not a condition, like being unhappy or oppressed. To be inviolable does not mean that one will not be violated. It is a moral status: It means that one may not be violated in certain ways - such treatment is inadmissible, and if it occurs, the person has been wronged. So someone's having or lacking this status is not equivalent to anything's happening or not happening to him. If he has it, he does not lose it when his rights are violated - rather, such treatment counts as a violation of his rights precisely because he has it. [Emphasis Nagel's.]
In Nagel's sense, inviolability is a non-consequentialist value because it doesn't correspond to subjective states of the actual violation of a right, but rather the moral status of having the right to be free from the violation, and, consequently, of being wronged in the case that the right is violated. Inviolability is valuable above and beyond the value of not having one's rights actually violated. But is this really escaping consequentialism? Being inviolable is not the same as being happy. But what, then, is the value of inviolability? People are certainly happier when their rights are inviolable, in the sense that people would prefer to live in a free state with a fairly high murder rate than live in a police state with a murder rate of zero, but in which those suspected of having murderous desires were occasionally summarily shot in order to prevent murders. In this sense, the right not to be murdered - inviolability - must be said to be responsible for real utility gains, since it is preferred (and, I would say, rationally preferred) to a situation where rights are more likely to be violated, but where their violation is a wrong. Indeed, Nagel's "non-consequentialist" explanation of the value of inviolability sounds profoundly consequentialist:
It is true that a right may sometimes forbid us to do something that would minimize its violation - as when we are forbidden to kill one innocent person even to prevent two other innocents from being killed. But the alternative possibility differs from this one not only in the numbers of innocents killed. If there is no such right, and it is permissible to kill the one to save the two, that implies a profound difference in the status of everyone - not only of the one who is killed. For in the absence of such a right, no one is inviolable: Anyone may be killed if that would serve to minimize the number of killings. This difference of status holds true of everyone whether or not the situation will ever arise for him. [Emphasis mine.]
I suppose my main disagreement with Nagel is that, as I see it, inviolability is a condition "like being happy" - it is one that has subjective value, and a situation that includes inviolability may be preferred to a situation that is materially better for the agent, but in which his rights are violable. In my view, it is strange to think that only subjective affect and material consequences should count toward utility. Nagel himself lists "being free" as a possible consequentialist value, as opposed to, say, the appearance of freedom. If being free is a consequentialist value, why not inviolability? This is especially true since inviolability, like freedom from pain, seems to be one of what Nagel would define as an agent-neutral value - one we have an objective reason for promoting.
This is not an instrumental argument. I am not arguing that people should have rights because rights may be exercised to make people happy, or that agents may be unhappy if morally required to violate the rights of others. I am arguing that the very status of inviolability makes people "happy," to put it a bit reductively. I think Nagel wants us to look at the world and figure out which rights are really important - meaning, in which cases does inviolability make people feel valuable, special, and happy? Even if rights are violated in the actual world, there is a certain solace in inviolability - sympathy of the community, for instance, and the basic knowledge that the harm to one was a wrong. The possibility for moral outrage in the face of a violation of rights is a basic good.
To put it in a bit more consequential and certainly oversimplified terms, in our current world, we are all vulnerable to succumbing to organ failure. A certain percentage of us will die from lack of organ donors. More people might be saved if we, as a society, held a lottery and culled a certain number of randomly-chosen individuals, transplanting each person's organs into the bodies of several waiting recipients. More people would be saved, fewer people would actually suffer the harm of dying - materially, society would be better off. But most people would consider this a worse world. This might be because the right not to be murdered - a morally inviolable right - gives us substantial utility, even though we are more likely to die of organ failure in our current world. The right not to be (painlessly) murdered is worth a substantially greater risk of (miserable, prolonged) death. (This example compares a little murder to more natural death; see my earlier example for a comparison of more murder to less murder minus inviolability.)
While my formulation is admittedly a bit flippant, and might be looked upon skeptically especially since it purports to put a consequentialist argument in the mouth of Thomas Nagel, it does have certain advantages. For one, it gives us a place to start when figuring out what our inviolable rights should be: rights occur where the "value of inviolability" is substantially greater than the expected utility gains that might come from the occasional utilitarian violation of the right. (Even Nagel is willing to allow for violation of "inviolable" rights to prevent moral catastrophe; we need only look at things below a certain catastrophic threshold.)
I would go so far as to define an inviolable right - and perhaps the skeleton of an entire moral system - this way: An inviolable right should be recognized, that cannot be violated even to prevent greater harm, including a greater violation of the same right by others, when the value of the right's being inviolable is greater than the potential utility gains that could be made from its occasional violation.
Unfortunately for my simple little system, in a pluralistic world, few people would agree on the value of the inviolability of all but a few basic rights. Perhaps this is why Nagel limits himself to discussing such basic rights as the freedom from torture. A new question presents itself: how do we measure the value of inviolability? Certainly, it can't be the average importance accorded to the right among actual members of a particular society. So is it, after all, a sort of first-order utilitarian calculation? Perhaps we need to think of inviolability from the perspective of a potential member of society, as in Rawls' original position. In our current political system, I feel that the inviolability of the right to die is systematically undervalued, because cognitive bias prevents people from understanding the suffering of the suicidal, and because the competence of the suicidal is too easily dismissed with reference to broadly defined mental illness. But, as Benatar points out, the value of the inviolability of not being born may be undervalued even in a perfect Rawlsian original position - because the decision makers, in order to make decisions, exist, and it is difficult for an existent person to understand the value of nonexistence and the terrible violation imposed on one by being brought into existence.
(I changed the title based on a conversation with Jim - thanks!)