Dispensing with Moral Rights

Dispensing with Moral RightsAuthor(s): Robert YoungSource: Political Theory, Vol. 6, No. 1 (Feb., 1978), pp. 63-74Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/190885 .

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DISPENSING WITH MORAL RIGHTS

ROBERT YOUNG La Trobe University

L N HIS PREFACE to Anarchy, State, and Utopia (New York, 1974) Robert Nozick asserts that:

Individuals have rights, and there are things no person or group may do to them [without violating their rights]. [p. ix]

He nowhere takes time out to defend his assertion, which is to be understood as having to do with moral rights rather than legal ones. In this regard, at least, he is swimming with the contemporary tide of thought in social and political matters because the use of such language is very much in vogue there.

This very ready acceptance given to "rights" talk is understandable in societies which display a widespread commitment to the liberal individualist values historically associated with their advocacy. But there are many who share with me certain misgivings about appeals to moral rights. Because much in these appeals seems to be idle or to suffer seriously from indeterminateness, and because at the same time such appeals have obvious strategic importance, it will be worthwhile to consider whether such rights are so indispensible for the achievement of an adequate conceptual framework for morality that such flaws must be overlooked. I begin by attempting to elaborate a defensible conception of moral rights. In the process I try to highlight the potential indeterminateness in talk about them. I then move on to examine arguments for the alleged indispensability of moral rights which are encountered

POLITICAL THEORY, Vol. 6, No. 1, February 1978 ? 1978 Sage Publications, Inc.

[63]



[64] POLITICAL THEORY / FEBRUARY 1978

in the literature. Finally, I draw attention to the way in which problems about the foundations of nonlegal rights are downplayed while this has not been so with the notion of objective moral truth.

I

There has undoubtedly been a far more thorough mapping of the concept of legal rights than has been the case for moral or human rights. Without wanting to beg any questions about the connections, if any, between these differing expressions of right, I shall assume the common view that they have a comparable form and adopt, therefore, a pro- cedure of moving from the better to the less well-charted regions in the hope of clarifying the latter regions.

To be in possession of a legal right is to be in a position to lay claim to something which is one's due. This connection between having a personal right to some x and being entitled to lay claim to it has long been accepted by legal analysts as the conceptual heart of the notion of legal rights. The connection has seemed so close to some that they have actually identified having a right with having a claim. It seems more accurate, though, to regard having a right as having a valid claim-a point effectively argued by Joel Feinberg.' He suggests that the most important difference between having a claim simpliciter and having a right is that claims, but not rights, may sensibly be said to turn out on investigation to be illegitimate or unfounded, albeit made reasonably. If and when a claim is established or validated the claimant is defeasibly entitled to (has a right to) whatever remedies and protections are provided for by the rules and procedures set up to govern all such similarly valid claims. One of the necessary ingredients for possessing a legal right, therefore, is being legitimately in a position to make a claim which the legal rules and procedures may be called upon to recognize. (I say, may because, for various reasons, not all rights are actually exercised.) As far as legal rights are concerned, there is a further aspect we must notice, namely that all such rights seem to merge entitlements to do, have, omit or be something with claims against others to act or refrain from acting in certain ways.

It does seem, by contrast, that on some occasions the only way to construe talk of moral rights is in terms of mere liberties. To render such talk this way is to make it sound rather innocuous. But it is surely prefer- abe to do this than, as with some writers, to confusingly collapse the



Young / MORAL RIGHTS [65]

distinction between mere liberties (sometimes called privileges, sometimes licences) and nonlegal rights.2

A different difficulty arises in relation to the nowadays common as- sertions of those moral (human) rights known as the welfare rights. These diverge in character from the legal model for, though they appear to make definite and quite specific claims, it is not plausible to treat these as claims against any determinate individual or group. And where this is the case, there will be no ground for laying a correlative duty at the feet of some other party as with legal rights. Now it might seem that such rights as are proclaimed in the 1948 U. N. Universal Declaration of Human Rights in articles 22-27, like "the right to work, to free choice of employment to protection against unemployment.. . to just and favourable remuneration. . . to rest and leisure ... to periodic holidays with pay... to food, clothing, housing and medical care... to education . . . to enjoy the arts and to share in scientific advancement and its benefits," impose a correlative duty on governments to provide things.

But, given the applicability of the hoary philosophical principle that "ought implies can," where a government, for example, cannot satisfactorily provide for these putative rights, it would be unreasonable to impose upon it the supposed duty. It might be responded that what this shows is that such rights will vary with particular socioeconomic conditions. However, that moral or human rights (when understood objectively as they must be to accurately represent the position we are investigating) could vary in this way as between societies is absurd. The proper construction to be placed on the assertion of such rights is that the same sort of claim is being made as is made by the profession of a right to liberty, namely a claim against everybody. Thus, if there is a right to an adequate standard of living in terms of food, clothing, and housing (as the U.N. Declaration has it), then where such a right cannot satisfactorily be exercised because its possessor is a citizen of an impoverished country, it is up to those who are more than adquately provided for to make it possible for the right to be exercised.

The discussion to date has indicated a couple of ways in which the status of moral rights tends to become less determinate than is the case with legal rights (though it should be noted that it has not revealed any reason for drawing a hard and fast line between them on the ground of widely differing attributes). There is a second way in which moral rights have a greater potentiality for indeterminateness. It is as follows. The laws that exist in a society are those that are valid in it.3 Thus, when a person has a legal right which calls forth a recognition of the validity of




his associated claim, it will normally be a relatively straightforward task to determine just which of the valid laws within the system provide the underpinning for the right. Obviously, this won't always be so, especially in countries which lack a written constitution and are heavily dependent on common law precedent and judgments. Similarly, the task of determining the distinct sanctions provided for in the event of someone's legal right(s) being violated or frustrated is normally going to be fairly mechanical.

Neither of these points hold true in as clear and definite a way in the case of moral and human rights. If we take moral rights as being those valid claims, the recognition of which is called for by "moral principles or the principles of an enlightened conscience,"4 it is immediately obvious that moral rights must certainly be given a less determinate status than can be accorded to legal rights. Again, this is not because of any significant difference between either the form or the content of the two styles of rights since it is typically the case that when a moral right has achieved widespread recognition in a community's moral con- sciousness there is established a corresponding legal right. It is normally also the stated goal of those who press for the acknowledgement of some moral right that it become legally protected. Once this is ac- complished, sanctions can be brought to bear against those who in- fringe or violate the moral right. There can be social sanctions of a kind even without the right being legalized, provided that the moral right is overwhelmingly recognized in a particular society, but reliance on such sanctions is risky because where resources or people's altruism are limited, the claim to have a certain right is likely to prove ineffective- and create more social strain.

The real reason for the indeterminacy is, of course, tied up with the underpinning offered by Feinberg and others in justification of the existence of moral rights. The ease with which a justification in terms of moral principles or the principles of an enlightened conscience is offered belies the complexity of the problems uncovered by such a re- mark. We can safely discount the reference to an enlightened conscience which presumably would have to be cashed out in terms of the moral principles referred to disjunctively. These, I take it, must be the objectively correct moral principles.

The notion that there are objectively correct moral principles is one which I espouse but, nevertheless, it is notoriously problematic. Anyone not committed to such objective moral truths, however, could only adopt a conventionalist understanding of moral rights, this is an




understanding of them as established by community consensus.5 If we need to have in our possession the correct moral principles before we give adequate recognition to the moral rights they underpin, then some additional reason over and above the need for moral principles will be required if the inclusion of moral rights in any conceptual framework for morality is to be warranted.

Believers in moral rights have in fact offered certain reasons of this additional kind and we must now give some attention to them.

11

In a world without moral (and hence human) rights, one would, it is said,6 have to depend on the kindness and goodwill of others, and this would deprive people of self-respect, of personal dignity, and of respect for others (and their rights). Bandman puts it this way in his paper:

Rights enable us to stand with dignity, if necessary to demand what is our due without having to grovel, plead or bet, or to express gratitude when we are given our due, and to express indignation when what is our due is not forthcoming. [p. 2361.

Wasserstrom, who suggests that rights fulfil certain functions that neither duties (even correlative duties) nor any other moral or legal concepts can fulfil, offers in answer to the questions "why ought anyone have a right to anything? or why not have a system in which there are no rights at all?" the following

Such a system would be a morally impoverished one. It would prevent persons from asserting those kinds of claims, it would preclude persons from having those types of expectations, and it would prohibit persons from making those kinds of judgments which a system of rights makes possible [ p. 6361.

I frankly fail to see why a world lacking moral rights would be a morally impoverished world. As I shall later suggest, there is some tactical advantage to be gained from appealing to one's rights. But this is not to say there is significantly greater moral richness in doing so than if one simply relied on forming judgments based on (correct) moral principles (e.g., of the necessity sometimes to incorporate wider considerations of justice as well as just the narrower ones of desert in the achievement of social justice). Given the potential for indeterminacy I have already outlined, and given that even adherents to irreducible rights acknowledge them to be less than absolute and exceptionless, no




gain or advantage is achieved over a straightforward appeal to the principles undergirding the supposed rights.

I think, in fact, we may press this matter further and say that often not only is such an appeal to rights otiose, but it is morally jarring (rather than dignified) to insist on one's due in the way spoken of by Bandman. It is frequently where there has been a breakdown in the caring or loving relationships that hold between people, that appeals to rights are made. When loving relationships break down, and the caring for another's interests which is morally proper goes by the board, people fall back on the auxiliary apparatus of rights. This means of pro- tecting what are conceived to be legitimate interests is, even if understandable, not morally desirable since it does nothing to mend the ruptured relations. Nor is my reaction an entirely isolated one. Writing from a totally disparate philosophical standpoint Meirlys Owens has pointed out how,' in The Needfor Roots (London, 1952), Simone Weil urged that the very notion of a right:

has a commercial flavour, essentially evocative of legal claims and arguments. Rights are always asserted in a tone of contention; and when this tone is adopted, it must rely upon force in the background or else it will be laughed at [p. 181.

But there is an important consideration which must be addressed before there is much likelihood of my argument carrying conviction. Wasserstrom contents that because it is possible to conceive of duties without conceiving of their correlative rights,8 people like white South- erners in the United States have been enabled to make mistakes that matter morally. And, he continues, the only way to avoid the white Southerner merely having to live with his own (ill-developed) conscience if he fails to do his duty, is to accord the Negro rights which he is then in a position dignifiedly to claim, and to claim in such a way as to lift the matter above the level of requests, privileges, and favours.

The first thing to notice is that, in terms of actually establishing the independence of the Negro's interests from those of the white and of giving to each equal consideration, a failure on the part of the white to do those things that he morally ought (in an objective sense), leaves matters in the same sorry state as a failure on the part of the white to accord the Negro rights. And in the absence of moves to give expression to the Negro's interests not in the rather problematic language of moral or human rights, but in the determinate and enforceable language of legal rights, the evidence is that we should expect oppressors neither to be-




have morally rightly nor to accord the oppressed equal rights. So any gain of the sort Wasserstrom is appealing to must stem solely from the difference in the manner of expression of the Negro's claim for just treatment. If that be so, then I can only say that there does not seem to be any greater moral dignity in expressing the claim in the language of rights than in the language of what (objectively) it would be right morally to do. Tactically the matter is perhaps quite different. It is one of the prevailing attitudes in contemporary Western society that talk of what it is objectively morally right to do is outre. By contrast, appeals to one's right are in vogue. Let it be noted, though, that Wasserstrom (and others who hold to similar positions) claim a moral not a merely tactical advantage for the inclusion of rights in our moral conceptual framework. A. I. Melden has advanced a second reason for the view that we lose something of moral significance if we eliminate rights talk in favour of making moral judgments on the basis of moral principles.9

He writes (somewhat opaquely):

the suggestion that invites us to consider rights only in the light of their success or failure in justifying acts casts into the shadow the very moral relations between persons the attention to which is served by our talk about the rights of persons, and without which the very justification of the fact that in special circumstances one right must yield or give away to another cannot possibly be given [p. 491].

What Melden says here is illuminated by his insistence elsewhere in the essay that a whole dimension of morality-the moral relations that exist between (responsible and reasonable) moral agents-is left out of account if we look upon rights talk merely as a convenient summary form of talk about what ought to be done. The basis for his claim seems to be that if we override someone's rights on morally justifiable grounds, then we still owe him something because of the moral relation in which he stands to us, namely, as one having a right against us. Pre- sumably Melden intends us to see an asymmetry here with the circum- stance in which we, on morally justifiable grounds, decide that we ought, for instance, to withhold some benefit from a person not entitled to it. Namely, that we would not owe what he terms "an explanation of that conduct of ours that threatens to impair or destroy our good moral relations" (p. 481). Now, of course, in a situation where the relation we have to the other party is impersonal and not face-to-face, we probably wouldn't have to offer an explanation. Even so, it would seem that if withholding the benefit would be likely to have a serious impact on the other party, and if the provision of an explanation of our con-




duct would not be unduly costly in terms of time or resources, then it would6 be morally deficient in us to fail to do so no matter how impersonal the relationship. For example, suppose a person hears on the "*grapevine" that a certain committee has decided to allocate the unused portion of some stores to him because it is thought he will benefit from them. In the meantime, a more pressing need arises, and the committee members alter their plan and give the stores to the more needy person. Surely here it would be morally deficient not to proffer an explanation to the person originally designated as the intended beneficiary. I cannot see that operating just with the moral "ought" has the effect of ex- cessively narrowing or constricting the field of morality itself, as Mel- den suggests must happen if rights talk is thought of as adding nothing to "ought talk."

A third reason commonly advanced for preserving the notion of the reality of nonlegal rights is the charge that, since, according to the alter- native conventionalist rendering I have been supporting, rights are established by community consensus, a practice like slavery which has always and everywhere been a violation of people's moral rights, must have only become such from the late eighteenth century onwards, which is morally absurd. Rights, in other words, exist independently of their recognition and, to this extent, are more like desires, which can be unrecognized, than like pains, which cannot. In the same vein, the anti- conventionalist would say of any community which just did not possess the concepts of moral and human rights, that whatever moral and human rights do exist, also exist within such a community, albeit unrecognized.

Even though I do not wish to object to this last sentiment, the mere possibility of such a society should appear as deeply disturbing to those strongly committed to a belief in the existence of nonlegal rights. Like- wise it ought to be deeply disturbing that out talent for moral episte- mology should apparently have developed so rapidly in recent human history thereby enabling us to detect so many previously unrecognized rights, while throughout the same period our progress in laying bare the correct moral principles which provide their foundation has been so tawdry. More importantly for present purposes, though, I do not believe that the charge can be sustained that a conventionalist rendering of the relevant phenomena cannot also accommodate our conviction that slavery was no more morally justified in ancient Athens, say, than it is today. One can simply point out that those considerations which make actions right were not properly weighed up or were not properly




understood to be such by those who did the enslaving. Thus, one can employ the relevant counterfactuals to explain and support the judg- ment that the practice of keeping slaves was morally wrong though it violated no one's moral rights since these had not been brought into existence by a sufficient consensus. Once again the advantage does not clearly lie with rights.

III

One of the initial attractions of theories of moral and human rights is that they appear to give secure and objective criteria beyond the whims of human will or the contingencies of particular historical and cul- tural situations, in virtue of which we can be sure of what we ought to do. I have tried to cast doubt on this idea by highlighting its potential for fuzziness. We should also note in passing the tendency for lists of nonlegal rights to expand somewhat bewilderingly and that, despite some overlap, there is not even any single agreed list of such rights. These points seem to be particularly pertinent to the subclass of moral rights known as human rights, and it is on these that I shall focus.

Human rights are said to be ones that are independent of merit. If there are any such rights this must be because, despite their many dif- ferentia, all humans are equal in some respect-deemed to be of su- preme moral importance. Even here it is acknowledged by proponents of such a claim that the valid claim a human right entitles us to make may be overridden by another right claim or by a different kind of moral consideration.

I preface my remarks about human rights with the comment that I am a committed egalitarian regarding the distribution of resources. I am one because appealing to people's deserts (as measured by merit, contribution, effort or the like) ought only to have a nonarbitrary bearing on the proper distribution of resources where it has been previously agreed among all the affected parties capable of determining such matters that this should be so. There isn't opportunity here to spell out the commitments that an egalitarian has.'0 Rather my concern is simply to dissociate myself from one ground on which objections to the theory of human rights are regularly launched.

The biggest problem for the theory of human rights is the problem of finding an adequate justification. The characteristics usually offered in support of the theory-the equality of all persons in regard to certain "natural" capacities no matter how fully or otherwise these are de-




veloped; the equality of all persons in regard to natural vulnerabilities such as the liability to pain or suffering; or the equality of all persons in regard to their possession of transcendental properties-seem either to be too weak to sustain the whole apparatus of human rights (e.g., they might justify a right against torture or enslavement, but not to certain forms of special treatment in accordance with highly specific abilities or needs), or to introduce new mysteries that only compound worries about the justifiability of rights talk. Most supporters of the theory have ended up holding positions like those advanced by, for example, Gregory Vlastos" or Bernard Williams.'2 According to Vlastos, we just do (in, for insfance, attempting to promote and achieve justice in our political and legal affairs) attach to each human being an equal worth which is quite independent of any individual's particular qualities. He urges that there is a striking similarity between loving another person and the way we ascribe rights to strangers whom we in no sense love. Every person, simply as one who wills and chooses-ir- respective of who he is or what he chooses-warrants our regarding him of her as of worth. Such worth (as in the case of the one loved) is independent of merit. The ascription of rights goes beyond the response of love, though, in being coextensive with the achievement of justice. Unfortunately, there is a breakdown in the model because loving relations and responses based on love are not directed at the achievement of justice. But, furthermore, we get no help with the question of the justifiability of rights because the whole tradition of ascribing rights is treated as a "going concern" and hence as not needing to be justified. For Williams, the case rests in the end on the claim that the equality of all persons consists simply in taking the "human point of view" which is supposed to enable us to see people free of labels telling us of their instrumental worth and to view the world from their point of view. The attitude of respect for another's humanity is considered ultimate and not demonstrably justifiable. So again we run into a philosophical cul-de-sac.

In all probability, it is because of the too-ready acceptance of human rights as suiting our particular liberal, individualist political heritage that the question of their justifiability rarely gets raised, let alone answered. The contrast with the widespread scepticism about the justifiability of moral principles (which underpin moral rights!) is startling and testifies to the fact that people often believe in rights on pragmatic rather than logical grounds. Even were agreement to be



Young / MORAL RIGHTS [731

reached on the correct moral principles, there is no guarantee that there would be unanimity about rights (e.g., for tertiary students). Where a claim to a particular benefit can be established by asserting a right to it and a sufficient number of persons in the moral community are con- vinced that this can safely be accorded them without interfering too obviously with existing rights, then the strategy to be followed is clear. If the right can subsequently be legally entrenched, so much the better. Arguing against the rights tradition is apt, therefore, to seem futile if only because of the tactical strength that presently attaches to claims couched in terms of nonlegal rights. But I hope that I have at least shown the potential for indeterminacy in such talk (which leads to a continuing expansion of people's rights) and the shakiness of the foundations on which the whole tradition rests. The upshot is, I think, that a philosophically weak basis for promoting proper moral responses has come to assume strength because of its tactical usefulness.

NOTES

1. Social Philosophy (Englewood Cliffs, NJ, 1973), Ch. 4. 2. H. J. McCloskey suggests, for instance, that there is a "right to marry"; see his

"Rights-Some Conceptual Issues," Australasian Journal of Philosoph) 54 (1976), pp. 99-115. Surely if the currency has any value, this is to debase it. For a neat discussion of the way legal authors have kept these categories separate see Feinberg, p. 56ff.

3. I do not intend an endorsement of legal positivism. Indeed my statement is phrased with an eye to skirting around disputes about the nature of laW.

4. Feinberg, p. 67. 5. Cf. the position urged by T. H. Green in Lectures on the Principles of Political

Obligation (London, 1917), section 208. 6. E.g., by Feinberg, pp. 58, 94; by Richard Wasserstrom in his "Rights, Human

Rights and Racial Discrimination," Journal of Philosophy 61 (1964), pp. 628-641; and by Bertram Bandman in "Do Children Have Natural Rights?" PhilosophY of Education: Proceedings of the 29th Meeting (1973), pp. 234-246.

7. "The Notion of Human Rights: A Reconsideration," American Philosophical Quarterly 6 (1969), pp. 240-246 (esp. p. 244).

8. Op. cit., p. 640f. 9. "The Play of Rights," The Monist 56 (1972), pp. 479-502. 10. It may be well though to point out that the egalitarian is not an advocate of

identical treatment for all, as is frequently mistakenly asserted. There are, in fact, various material principles of justice to which in differing circumstances appeal would have to be made in order to implement theformal principles of "like treatment for like cases"




and "different treatment for diffferent cases" to which the egalitarian gives his support (e.g., need; equality of benefit; equality of opportunity).

I 1. "Justice and Equality," in R. Brandt (ed.), Social Justice (Englewood Cliffs, NJ, 1962).

12. E.g., "The Idea of Equality," in B. Williams, Problems of the Self (Cambridge, 1973).

Robert Young is Senior Lecturer in Philosophy at La Trobe University, Mel- bourne, Australia. He is the author of Freedom, Responsibility and God (London and New York, 1975) and of various papers in philosophical andpolitical science journals, mainly in the fields of ethics, social philosophy, and metaphysics.



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Dispensing with Moral Rights

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