Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Tuesday, November 2, 2010

Contra Consequentialismum: Moral Rights

GOODNESS OR HAPPINESS IS NOT THE ENTIRETY of moral study. Moral thinking also encompasses the concepts of duty or obligation. The moment there is another person in the mix, there will be the issue of obligation or duty, as well as the correlative issue of right. Because they have been wrested out of their foundation in natural law and duty, rights, however, have become unmoored. They are like half a man, a thing that cannot be expected to live. Rights have therefore become the enfants terribles, the black sheep, of moral thought.

Rights without Duty and Law: Like Half a Man

As Oderberg explains:

Rights are perhaps the most misunderstood aspect of moral theory: there are those (mainly consequentialists . . . ) who frankly deny their existence while at the same time paying them regular lip service, even appealing to them when their own interests require it; others give them exaggerated prominence in ethics, sometimes basing their entire morality on them; yet others abuse the term "right," claiming to find rights where there are none, hurling it at their opponents on this or that issue, or elevating rights to such a status that the mere utterance of the word is supposed to silence all debate.

Oderberg, 53. The notion of right, however, is all about us, and central political documents, including those of our nation's founding, are all about right. The United Nations has been particularly prolific in promulgating documents regarding right: beginning with the Universal Declaration of Human Rights in 1948, an International Covenant on Civil and Political Rights in 1966, and another on Economic, Social and Cultural Rights in 1976.

What is the place of "rights" in moral theory? For Oderbeg, rights arise from the interplay between man's quest for happiness (understood as the quest for the good) and other men's similar quest. While morality directs and orders one man's quest for happiness, his quest for the good, does it also guarantee that quest for happiness for others? The answer is necessarily yes, since the opposite assumption--that morality does not guarantee the quest for happiness for others--results in absurdity and practical collapse.
Suppose that, as far as morality was concerned, every person could pursue the good in any way they chose, without regard for others. . . . [S]uppose that morality gave no "space" to an individual to pursue the good--he was constantly under the threat of, and regularly suffered, intrusions or interference by other individuals in their pursuit of the good. Would such a system of morality be incoherent or unworkable? It seems that it would be both.
Oderberg, 54. It is apparent that this lacuna or gap in moral theory would leave us without guidance on how to achieve happiness, that is, what would be the good, in regard to what may do to others, or in what we may do to defend ourselves from others. How do we achieve happiness vis-à-vis others without knowing what happiness with regards to others entails? Without an answer to such a question, we apparently have a moral vacuum in a huge area of our life.* More, morality is incoherent if it imposes a personal duty to seek the good without boundaries with respect to others, since it would also necessarily offer no protection to the person as against others (since others also would have no boundaries in their quest for good), and without moral protection against others, there would be no moral right to defend against others' interference to the quest for good. "[M]orality would be taking away with one hand what it gave with the other--and this would make morality incoherent." Oderberg, 57. Morality would be one big game of Indian giving.

It is apparent, then, that rights are a fundamental part of morality.

No more basic and transparent answer to the question of "where rights come from" can be given than to reply, "They come from morality itself; they are a conceptually indispensable part of the correct moral system."

Oderberg, MT, 57. If "rights" are an indispensable part of a moral system, then we ought to have a working definition of (moral) right, and Oderberg obliges:
A right, then (and by right I mean "moral right" unless otherwise stated), is best defined as a moral power of doing or having something. By "power" is meant a capacity or potentiality of doing or having something according to law. . . . A moral power, then is a power to do or to have something according to moral law, and which enables one to act licitly before its tribunal, before one's conscience, and before [the conscience of] all other people. . . . A right can be though of as a claim or title to certain things and actions against other people, namely those things necessary for the achievement of happiness.
Oderberg, 57, 58. Thus a moral right is not tied to power, physical ability, mental acumen, or others' recognition of it. Nor is moral right tied to human positive law; moral right is independent of legal authorization or protection.** "Might does not make right and man-made law does not make right." Oderberg, 58. Around moral right, the primary right, "cluster" other moral concomitant rights, the "most obvious" being the "right to defend oneself against any intrusion intended to deprive one of the primary right."*** Oderberg, 58. Other such rights would be the right to demand reparation from someone who has violated the principal right. The right to respect for the primary right which requires others to acknowledge such a primary right is likewise clustered around the primary right. The respect may show itself, for example, by the admission that such fundamental right exists, by the asking of permission to interfere with that right, or the giving of an apology if such right is breached without permission. Oderberg, 58-60. There is, however, an intrinsic limitation on the exercise of moral right: "all people are physically incapable of exercising all of their rights all of the time." Oderberg, 58 (emphasis added). Oderberg addresses this later, when he discusses the collision of rights.

It is apparent that our claim to right as against others in our pursuit of happiness, that is the pursuit of the good, brings with it its reciprocal: duty or obligation.

Every right imposes a duty on every other person to respect it. Without duties correlative to rights, morality would again be self-contradictory, for it would permit what it prohibited--interference by others with the legitimate pursuit of the good on the part of an individual. Duties correlative with rights are simply the logical mirror of those rights--they reflect those rights into the eyes of other people.

Oderberg, 60. We will address the relationship between duties and rights in our next blog posting. It is not quite as simplistic as those inebriated with "rights talk" might think.

*As Oderberg notes, Hobbes went even beyond this thought experiment which postulates that morality simply does not address one man's quest for the good versus another man's quest for the good, and thus gives a "mere permission to interfere [with another man's quest] rather than the conferral of a right to do so." Hobbes actually believed, not that morality was silent, but that morality positively gave one man in his quest for the good the right to interfere with others' quest for the good. In a Hobbesian state of nature, might made right. This destructive state of affairs is what compelled, in Hobbes's view, the social compact. Oderberg, 56-57.
**It is, as Oderberg notes, "of course desirable that a moral power [right] be accompanied by physical and legal power, in other words that a person be both physically capable [and physically protected] and legally empowered [and without legal recourse in the event of violation] . . . to do what he has a moral right to do." Oderberg, 58. However, "no legal system in history has ever been so comprehensive (or, more significantly, intrusive) as to protect everyone's rights all of the time, or so well-crafted as never to confer rights that morality itself does not confer (for example, the right to own slaves, or to exploit certain minorities because of their race or origin)." Oderberg, 58. There is, and forever will be, a discontinuity between moral right and legal right. That is why the positive law must always be reforming itself. Lex positiva semper reformanda. Ius positivum semper reformandum.
***The right to defend does not always entail the right to use physical force against an aggressor, and it goes beyond the use of physical force. The defense may include what Oderberg calls "physical, economic, or psychological 'ring-fencing' of what one has a right to do." Oderberg, 58-59. Thus one may warn (e.g., post "no trespassing signs), one may conceal or protect (e.g., put property in a safe), and so forth.

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