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.

Wednesday, November 3, 2010

Contra Consequentialismum: Moral Duties, Justice, and Law

RIGHT IS ONE SIDE OF THE MORAL COIN. The other side is duty. In our last blog posting on moral right, we observed that 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. As Oderberg states it:

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.

And yet duty is not exactly the mirror image of right. "[T]here is more to duty than rights." Oderberg, 60. What has happened since "The fundamental principle governing the relationship of human law (or simply "law") and morality is as follows: it is morality that determines what is and what is not a just law, hence law always follows morality."
--David S. Oderberg
the Enlightenment is that the scope of rights has become hyper-inflated, over-exaggerated, and therefore rights thinking has become unbalanced. "If you believe that the whole of morality is founded upon rights, you will naturally conclude that there can be no duty that does not correspond to some right." Oderberg, 60. This "correspondence theory" of rights and duty, where rights and duty correspond and perfectly match up, is just plain wrong. And it's easy to show why.

Good is the most fundamental aspect of morality. But no one is duty-bound, no one is obligated in conscience, to perform every possible good act. To impose such an Atlas-like burden on an individual would cripple him, would be to give him an impossible, Herculean task. Even Blessed Mother Theresa of Calcutta, who heroically did good to the poor, failed, and failed miserably, if this was the moral imperative. There was some good that she left undone, unattended, by the mere fact that she chose to do some good.

Additionally, duty is not coextensive with right. For example, all men have a duty to be generous to others in need, to provide alms to the poor out of their surplus. However, unless there is another source of duty (e.g., familial or contractual), our general duty to be generous with our surplus does not extend to the poor a moral right to our surplus. So if one walks by a beggar on the street with extra change in one's pocket, one may have violated a duty to be generous, but one has not violated the beggar's rights or been unjust to him.*

Rights and justice are intimately tied together; this is because justice is a virtue, a virtue "by which a person is inclined to accord another his rights." Oderberg, 61.** There is also a link between moral rights and the virtue of justice, on the one hand, and moral law on the other.
In its broadest sense, a law is a binding rational principle governing behavior, whether it be the behavior of molecules or of people. The moral law is that subset of principles which direct human beings toard their ultimate end of happiness. Rights and duties, then, originate in the moral law and governing human beings in their pursuit of happiness in all its particulars. . . . The fundamental principle governing the relationship of human law (or simply "law") and morality is as follows: it is morality that determines what is and what is not a just law, hence law always follows morality.
Oderberg, 62.***
*The obligations of charity, or even natural sacrificial love, may exceed those of strict justice and natural duty. But this is a whole other area altogether, and is outside the natural law. When charity is involved we move from a jurisdiction sub lege to a jurisdiction sub gratia, from law to grace.
**Justice is a virtue, but, by analogy the term is used to refer to a state of affairs (e.g., just society) or a condition (e.g., just war, just wage). The State is subject to the demands of justice, in which case the state is regarded as a "moral person" akin to an individual. Justice is traditionally divided into three kinds: commutative justice, distributive justice, and what Oderberg calls civic justice. Oderberg defines them thus:
Commutative justice concerns relations between individuals, and is the virtue which inclines them to accord one another their rights. Distributive justice concerns the relationship of the state to the individual, in particular its obligations to respect the individual's rights. Civic justice is the converse of this, being concerned with the individual's obligations to the state--specifically, to contribute to the common good.
Oderberg, 61.
***From this principle it follows:
It is the duty of the legislator to frame laws that reflect morality and therefore provide the citizen with the state-authorized powers to do what morality already allows him to do, the state-authorized duties to do what morality already obliges him to do in conscience, and the state-authorized sanctions against those who would already be morally at fault for interfering with another person's pursuit of the good. . . .[A]lthough the legislator may, as a matter of fact, enact an unjust law, his duty, the requirement of morality, is that the law he enacts conform to it.
Oderberg, 62.

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