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.

Sunday, November 7, 2010

Contra Consquentialismum: Collision, Not Conflict . . . and No Calculation

THERE ARE SOME ABSOLUTE NORMS that no man may violate without incurring moral guilt. These norms or laws which are exceptionless or absolute are the basis of rights that are similarly exceptionless or absolute. These rights may not be infringed by another without incurring moral guilt. This is the traditionalist view, and the consequentialist and traditionalist part ways on this very important matter. However, be that as it may, though some rights may be absolute, in the sense that they cannot be violated without fault, they are not for all that without limit. Rights are not limitless, infinite, but have natural limits, both intrinsic and extrinsic. We will explore these natural limits in this posting.

Authentic rights are limited in two important ways. First, our own good, and our pursuit of that good, is limited. We are limited beings, limited in both time and place, and it follows that rights which exist "solely as a concomitant to a person's pursuit of the [finite] good" are likewise bound. [1] Moreover, we are not alone, and there are others of our kind who individually and in common also pursue their good. So our rights are limited by the rights of others and rights associated with the common good. Given these natural limit on rights, we must approach the issue of rights with caution:

We must therefore be careful not to place undue emphasis on the rights of individuals or of society as a whole. In particular, two extremes are to be avoided: on the one hand libertarianism, which attributes to the individual exaggerated rights as against the just claims of society to preserve the common good; and on the other totalitarianism, which attributes to the state an unlimited power to intervene in the lives of its members, recognizing not prior individual rights that the state is bound to respect.

Oderberg, 77. Second, rights may be limited by other rights. Even if one avoids the extremes of liberterianism and totalitarianism, however, one still confronts the problem of the interplay of rights. Invariably, rights collide.[2] One person claims a right to do something, but another claims the right to prevent him from doing that something. One person claims a right to some thing, while another claims that that thing is his and he has a right to it. We confront this rights argument every day. In analyzing the collision or clash of rights, it is important to distinguish the fact that rights of one person may be infringed, but they may also be violated.[3] The distinction between infringement and violation is significant.

Because right is founded on law, "[a] collision of rights, then, is really a collision of laws, and since rights cannot genuinely conflict, neither can the moral laws that confer them." Oderberg, 78. When rights (or law) collide or clash, how are we to determine which right (or law) prevails? Which right or law may be infringed in resolving the conflict or clash?

Certain fundamental principles may be applied to the effort to answer this question in any given collision or clash. It should be remembered that though many cases are clear cut and uncontroversial, there are many circumstances where the answer is not so clear. There are many "difficult cases and gray areas," and the tools of moral analysis sometimes blunt, and moral science by nature inexact;[4] for all that, we ought not be pessimistic in finding answers.[5] With a little bit of work and reflection, most problems are solvable. "[I]n the vast majority of cases, a consideration of circumstances, competing rights, motives and so on will enable a resolution." Oderberg, 79. It may be, however, that even diligent inquiry puts us in a condition of indetermination. What then?
[I]n general, if a determination of which right prevails is impossible despite diligent investigation, a person does no wrong whatever right he respects, be it his own or another's. Since it is really the collision of laws that is at issue, . . . the same goes for any collision of obligation: a person does no wrong no matter what obligation he fulfills, if diligent inquiry cannot determine what obligation prevails.
Oderberg, 80.[6]

Some of the principles (though by no means all) that help in the analysis of which right or law prevails in a situation where there is a collision, clash, or apparent conflict are listed by Oderberg:
  • The moral law takes precedent over pure positive law.[7]
  • Where there is an apparent conflict between to laws (or rights) of the same category (e.g., both moral, or both merely positive) the more important, urgent, or necessary law (or right) prevails.
  • There are some general goods[7] that are equally fundamental. Though persons may emphasize one good more than another, a person "cannot legitimately abrogate one good in favor of another." By abrogation is meant "wholly ignore, destroy, or directly attack at its core." This abrogation is true for one's own life and for others.
  • The "Principle of Totality," that is the good of the whole takes precedence over the good of any one of its parts.
Infringement, it may be noted, is not the end of the matter, as "infringement carries with it the need either to seek permission to infringe, or to apologize or compensate afterward." Oderberg, 85.

The theory advanced by Oderberg is thus patently different from the consequentialist theory, and this is nowhere more apparent than in the handling of rights (or law) and the apparent conflict or collision among them.

On the theory outlined here, rights are always and everywhere inviolable. They may be infringed in certain circumstances, but those circumstances are limited and well-defined (whatever the difficulties of practical application, which must never be confused with theory): in cases of apparent conflict, the higher law prevails, and this only because the higher law protects a good that is closer to the core of a person's dignity as a human being.

Oderberg, 84.

Importantly, infringement is never justified "in consequentialist terms," that is, by the application of any sort of maximization calculus. "There are things it would be wrong to do even if they maximized, and things it would be right to do even if they did not maximize" whatever it is that the consequentialist holds is the value that ought to be maximized.

There are, in fine, such things as exceptionless, absolute rules in the traditional way of seeing things. There are limits over which man cannot trespass without each and every time without exception incurring moral fault. It is vital that we know which these rules are.
[1]Recall here that the law of grace is not at issue. Man has a supernatural destiny which, at best, is hinted at by the natural law whose end relates to the natural end of man, and therefore binds all men, regardless of creed, and even men of no creed. Following the natural law is essential for salvation, but while following the natural law is necessary for salvation, following it alone (if even possible without grace, itself a dubious proposition) is not sufficient for salvation.
[2]Oderberg distinguishes between the "collision" or "clash" of rights (their apparent "conflict") versus the real "conflict" of rights. A real conflict of rights is impossible because it would assume that the moral system is inherently contradictory, and therefore not an objective system.
[3]Oderberg distinguishes between infringement and violation of right. A person infringes another's right if he interferes with the pursuit of the right's object. A person violates another's rights only if such infringement is in some manner wrongful. Defined in such a manner, infringement on another's rights, therefore, results in no moral wrong. Indeed infringement may be morally permissible or even morally required. (E.g., the right to life of another may be infringed in legitimate self-defense.) On the other hand, violation of another's rights is blameworthy. (E.g., the right to life of another is violated if one take's the other's life so as to inherit money.) See Oderberg, 78.
[4]See Contra Consquentialismum: Skeptical of Skepticism for the distinction between inexactness and knowability.
[5]An exception to solvability is the problem arising out of in vitro fertilization where multiple embryos are conceived in vitro and then preserved by cryopreservation (freezing). These embryos are then not used and remain in frozen state. There is no way to handle these humans beings in frozen animation morally. They can neither be implanted in another person, nor can they be disposed of. See the note in the posting Contra Consequentialismum: Happiness and Basic Goods.
[6]Oderberg is a probabilist.
[7]Some positive laws are based upon moral laws (e.g., criminal laws prohibiting murder). These positive laws carry the dignity of the moral law behind them. To be precise, the positive law must yield to the moral law, unless "the positive law . . . is not also a specific injunction of the moral law." If a positive law that carries the weight of moral law behind is to yield in any particular instance, it is not because of positive law that it does so, but because a superior moral law requires it. In the collision or clash, it would yield as an inferior moral law. Oderberg, 81.
[8]The general goods identified by Oderberg include: "living healthily, working, enjoying recreation, appreciating beauty (including the beauty of nature), learning, having friends, aspiring to a spiritual life, that is, one going beyond the merely worldly." Oderberg, 83.

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