D. Minimizing the trade-off
So the bargainers’ second motive will lead to their acceptance of some sort of defeasibility clause as well. However, it will have a different shape than the clause that arises solely from the bargainers’ first motive. This is so because many of the exceptions that would be permitted by the defeasibility clause as it emerges for the bargainers’ first motivation alone would require disrespecting the inviolable status of persons that the bargainers are motivated to respect. For example, the exception to the restriction on killing others required in the case of ‘Transplant’ might be permitted by the self-interest- maximizing motive. This is so because permitting such exceptions would increase the average overall welfare; any bargainers seeking only to maximize their welfare would surely be rational to agree to exceptions that will increase their chances of being better off. However, my bargainers are not interested only in maximizing their chances of being well off, and the bargainers’ personhood-respecting motive will require the modification of this defeasibility clause. As we saw in the discussion of inviolability above, to say that a person is inviolable is in part to say that he or she cannot be required to sacrifice his or her well-being simply because doing so would serve the greater overall good. Shaping the defeasibility clause so that it matches the bargainers’ second motivation, then, eliminates the possibility that it will sanction ‘Transplant’-style exceptions.
Even though the bargainers’ second motive does allow these types of exceptions, however, it will still press upon them the necessity of sanctioning some exceptions, and thus of adopting some sort of defeasibility clause. It is just that the exceptions allowed cannot compromise persons’ inviolable status. In order to make the trade-off Kamm discusses as slight as possible, the bargainers will be motivated to stipulate that, although rights-violations are not permitted even to minimize the occurrence of rights-violations, those who do violate others’ rights forfeit their own rights to the same degree. Thus, while harming persons disrespects the moral status they bear as persons, and as such is prohibited by the constraints the bargainers’ adopted due to their personhood-respecting- motive, someone who himself is harming or has harmed innocent people has forfeited at least some of his right against us that we not harm him. Therefore, by harming him in self-defense, or by harming him by meting out sanctions against him, we are not violating