MORAL DUTIES AND MORAL RIGHTS
From Moral Philosophy through the Ages (2nd edition), by James Fieser
Home: https://storage.googleapis.com/jfieser/300/Index.html
2001, updated 9/1/2024, CC BY-NC-ND 4.0
CONTENTS
Intuitionist Duty Theory
Pufendorf on Natural Law and Moral Duties
Duties to God, Oneself, and Others
Ross s Intuitionist Theory of Prima Facie Duties
Criticisms of Duty Theory
Kant s Criticism: We Have No Duties to God Because We Cannot Know God
Mill's Criticism: Duties to Oneself Reduce to Only Self-Respect and Self-Development
Sidgwick s Criticism: Commonsense Moral Intuitions are Imprecise
Rights Theory
A New Meaning of the Word "Right"
Locke's Theory of Natural Rights
Slavery and the Right to Life
The Right to Property
The Universal Declaration of Human Rights
Criticisms of Natural Rights
Burke s Criticism: Abstract Notions of Natural Rights Are Too Simplistic
Bentham s Criticism: Legal Rights are Grounded in Fact, Natural Rights are Not
Marx s Criticism: Natural Rights Emphasize Selfishness and Ignore Community
Lingering Issues with Duty and Rights Theory
Various Types of Duties and Types of Rights
Correlativity of Rights and Duties
References
Study Questions
INTRODUCTION
Homelessness is a problem in virtually every country world-wide and likely has been that way since the invention of cities around 10,000 years ago. The most common causes for homelessness are poverty, lack of affordable housing, unemployment, mental health issues, and substance use disorders. But a small minority of homeless people, about six percent, are that way by choice. They often cite a desire for freedom, a rejection of societal expectations, and some will admit that they are just plain lazy. During their days they explore the urban landscape, mingle with interesting people, and new adventures. With access to public facilities and community support, they find creative ways to sustain themselves and embrace their minimalist lifestyle. We on the outside, however, may feel that what they're doing is wrong. Aside from freeloading off governments and charitable groups, they are neglecting a fundamental obligation they have to do something productive in their lives. What that may be is up to them, but they need to pick something and go with it. Using more technical vocabulary, philosophers would express this contention by saying that you have a moral duty to develop your talents.
There was a time when the content of most ethics books consisted of elaborate discussions of all the moral duties that we have, including the duty to develop one's talents. Along with these would be duties to avoid harming others, to tell the truth, to keep agreements, to be charitable, and dozens of more specialized ones. We call this approach duty theory: morality is founded upon self-evident obligations that we have. But there is an interesting companion to duty theory called rights theory: morality is founded upon self-evident rights that we have. In many ways, the two are opposite sides of the same coin. For example, if I have a moral right not to be robbed, this means that you have a moral duty not to rob from me. If I have a moral right to speak freely, you then have a moral duty to not interfere with my speaking. Using our present example of voluntary homelessness, if I have a moral right to be homeless, then you have a moral duty to not interfere with my choice. This view is called the correlativity of rights and duties: the moral rights of one person entail the moral duties of another person.
Both duty theory and rights theory emerged from natural law theories of the seventeenth-century, which explains much of their similarities. In different ways, they both dominated moral discourse in subsequent centuries. In this chapter we will look at their origins and some philosophical problems associated with them. We being with duty theory.
The philosopher most responsible for the direction that duty theory took in the seventeenth-century was German-born Samuel von Pufendorf (1632 1694). His basic position is that moral duties are dictates of natural law. In a previous chapter we looked in detail at the natural law theories of Hugo Grotius, and Pufendorf himself, which have important similarities. Their main points, again, are these:
There is a single fundamental natural law which is we should be sociable.
All moral obligations are built upon this fundamental natural law to be sociable.
What we add here to natural theory is an account of the moral duties that we derive from natural law.
Pufendorf on Natural Law and Moral Duties
The basic connection between moral duties and natural law is not unique to Pufendorf, and goes back as far as ancient Greek Stoicism. A famous Stoic motto is that we are all "citizens of the cosmos", which means that all humans are part of the same universal and rational order of the natural world, regardless of our local origins. For the Stoics, this means that there is an inherent rightness or "natural law" embedded in the rational structure of the universe. By living in accordance with natural law, we fulfill our moral duties and thereby achieve happiness. More simply, through human reason we grasp the rational laws of nature, and follow the moral duties they recommend. Roman philosopher Cicero (106 43 BCE) describes this Stoic connection between natural law and moral duty here:
The duty that stems from [the virtue of] rightness first directs us toward living in harmony with Nature and faithfully following her laws. If we let Nature be our guide, we will never go wrong. We will seek what is naturally clear-sighted and sharp (Wisdom), what helps strengthen human relationships (Justice), and what is strong and brave (Fortitude). But the core of rightness lies in the aspect of virtue we're now discussing (Temperance). We should only approve of actions, whether of the body or the mind, when they agree with Nature s laws. [Cicero, On Moral Duties, 1.100]
For Cicero, then, when we follow nature's laws, we will exercise our moral duty through the virtues of rightness, wisdom, justice, fortitude and temperance.
While influenced by Stoicism, Pufendorf takes a radically different approach to natural law and the duties that flow from it. That is, all of our moral duties spring from our instinctive drive for survival. His account here was inspired by Thomas Hobbes's pessimistic view of the state of nature, where, before the creation of governments, the human life was "solitary, poor, nasty, brutish and short" (Leviathan, 13). According to Pufendorf, like other animals, we humans value our individual selves more than anything else. We learn every manner of self-preservation that we can, and we will set aside all other human inclinations when our survival is at stake. Pufendorf paints a gloomy picture of the isolated person who tries to survive on their own:
He has nothing left but herbs and roots to pluck and the wild fruits to gather; to quench his thirst at the next spring, river or ditch; to shelter himself from the injuries of weather by creeping into some cave or covering himself with any sort of moss or grass; to pass away his tedious life in idleness; to jump at every noise, and be afraid at the sight of any other animal. In a word, he will ultimately perish either by hunger or cold or some wild beast. [The Duty of Man and Citizen, 1.3]
To keep from starving to death or being eaten by wild animals, we must band together with other people, spend years of our lives learning time-honored survival skills, and rely on others for protection from dangers that even the best of us cannot handle alone. In view of the importance of mutual cooperation, Pufendorf proposes this as the fundamental law of nature: To the extent that we can, every person ought to preserve and promote society, that is, the welfare of mankind.
Pufendorf argues that we can have certainty of this fundamental principle of sociability in two ways. We might first try to rationally deduce it based on what we observe about human self-preservation, as Pufendorf does in the above. Alternatively, we all grasp this principle automatically through "the light of reason" alone as he calls it. Pufendorf himself does not give a precise definition of this light of reason, but his early editor does in a footnote to one of Pufendorf's books:
What Pufendorf calls "the light of reason", duty theorists after him have called "intuition", which we may define as this:
Intuition is such a prominent feature of duty theories after Pufendorf that, starting in the nineteenth-century, duty theory became known as simply "intuitionism".
Duties to God, Oneself, and Others
Pufendorf argues that our knowledge of the natural law of mutual cooperation involves three sets of duties: those to God, oneself, and others. We do not have a master list of all of these duties stamped into our minds, but we deduce them through a natural reasoning process. We'll look at each of these sets.
First, duties to God, for Pufendorf, are of two basic kinds: (1) the duty to know God and (2) the duty to obey God. Our duty to know God first means that we should know that he exists. During the Middle Ages, theologians offered a variety of proofs for God s existence, some based on the idea that God is the first cause of everything and others on the idea that God is the master designer of all the order that we see in the universe. Philosophers and theologians in Pufendorf's day refined these arguments, and Pufendorf himself offers five distinct proofs for God s existence. As for our duty to obey God, Pufendorf argues that this involves first honoring God with our internal thoughts and then expressing God s will in our external actions.
Duties to oneself are also of two basic kinds, based on the fact that we are composed of both a soul and a body. As far as our souls are concerned, we have a duty to develop our talents and learn a trade that will make us useful to human society. If we do not, then we will become a useless burden to the earth, cumbersome to ourselves, and troublesome to others. This, then, is Pufendorf's reason for why I should not voluntarily become homeless. As far as our bodies are concerned, we should first keep ourselves healthy through proper nourishment and exercise, and avoid gluttony, drunkenness, [and] the immoderate use of women. Not only do these excesses harm us, but they frequently disturb society. More important than staying healthy, though, is staying alive; that is, we should not kill ourselves. In some special situations, if it benefits society, we may engage in a demanding occupation that potentially will shorten our lives, such as hard labor or military service. However, as a rule, suicide is not permissible for reasons of infirmity, indignity, fear of pain, or bravery.
The final category of obligations is that of duties to others, and Pufendorf s discussion of these is longer and more detailed than the previous two categories. He first distinguishes between absolute and conditional duties to others. The absolute duties are common obligations that every person has, regardless of their situation. Our first absolute duty is that one do no wrong to another through physical harm or the destruction of another s property. Our second absolute duty is that every man respect and treat another as naturally equal to himself. In practical terms, this means that we treat people justly, such as fairly compensating those we hire for their labor, and that we treat people equally when distributing wealth. The third and final absolute duty is that every man ought to promote the good of another as far as conveniently he may. That is, we should actively try to benefit others, such as through acts of charity.
Our conditional duties to others arise from contracts that we make with others. Some of us are not inclined to perform good deeds simply from the goodness of our hearts. Instead, we will do good deeds only if we know exactly what we will receive in return. For this reason, we devise contracts with other people. The principal duty surrounding contracts is that every man keep his word, or fulfill his promises and make good his contracts. If we do not, then contracts are useless, and we lose out on the social benefits that we might otherwise obtain.
To summarize, these are the main points of Pufendorf s theory:
Through either intuition or deduction, we grasp the fundamental principal of natural law, which mandates that we should be sociable.
We fulfill this mandate of natural law through duties to God, self, and others.
Duties to God include the duty to know that God exists and the duty to conform our actions to his will.
Duties to oneself include duties of the soul (develop one s talents) and duties of the body (stay healthy, do not kill oneself).
Duties to others include absolute duties (do not harm, acknowledge equality, promote the good of others) and conditional duties (keep one s contracts).
Today we rarely find Pufendorf's name mentioned in textbooks on ethics. However, it would be difficult to exaggerate the influence that his theory of natural law and moral duties had on subsequent moral philosophers. Right until the early 1900s, almost every textbook on ethics had a substantial discussion of the duties we have to God, oneself and others, an approach that owes directly to him.
Ross s Intuitionist Theory of Prima Facie Duties
A major contemporary proponent of intuitionist duty theory was British philosopher William David Ross (1877 1971) in his book The Right and the Good (1930). Dissatisfied with the newer moral theories of his time, Ross proposed a list of intuitive duties that form the basis of our moral judgments. There are two key features of Ross s theory, the first of which is the list of duties itself. Unlike Pufendorf's duty theory who offer dozens of duties to God, oneself, and others, Ross pares the list down to seven types of duty:
Duties of fidelity: Keep promises, tell the truth.
Duties of reparation: Make good on previous harm done.
Duties of gratitude: Show thanks for services done to us by others.
Duties of justice: Distribute happiness in accord with a person s merit.
Duties of beneficence: Help improve the lives of others.
Duties of self-improvement: Develop virtue or intelligence.
Duties of non-injury: Avoid actively harming others.
Ross s list of duties differs from earlier lists in several important respects. First, duties to God do not appear on the list; in fact, Ross does not discuss religious issues at all in his book. Second, although Ross includes a duty to oneself (self-improvement) he does not list the survival duty to not kill oneself. It seems, for Ross, that we can kill ourselves if we so choose, but we cannot voluntarily become homeless. The remaining duties on Ross s list are standard duties similar to others that we find on earlier lists. Like earlier duty theorists, Ross, too, believes that these duties are self-evident intuitions, which we naturally develop as we mature. And, like his predecessors, Ross suggests that we discover these duties by looking at the moral convictions of thoughtful and well-educated people, and not by surveying the attitudes of ordinary people.
The second key feature of Ross s theory is his distinction between one s prima facie duty and one s actual duty. This distinction arises from the occurrence of moral dilemmas, that is, situations in which, if we follow one moral duty, then we necessarily violate a different moral duty. Suppose, for example, that I borrow your gun and promise to return it when you ask for it. The next day you have a fight with your boss and ask me to return your gun. Should I give you back your gun? I am clearly torn between two duties: (1) the duty of fidelity, which requires me to keep my promise and return it to you, and (2) my duty of non-injury, which requires that I not participate in harming your boss. Cicero believed that conflicts such as this weaken both duties and make them less perfect than they would otherwise be. Ross, too, feels that all moral duties are somewhat diminished by possible conflicts with competing duties. For Ross, all duties are tentatively binding on us; that is, they are prima facie duties. The Latin term prima facie literally means at first appearance and implies that this is how something appears immediately. Even though these duties are immediately clear, they are still open for consideration in the face of moral dilemmas. If there is no moral dilemma, then the duty becomes my actual duty. However, if there is a moral dilemma, then only the stronger of the competing duties emerges as my actual duty.
According to Ross, there is no clear formula for determining which duty in a moral dilemma emerges as my actual duty. He suggests that we are guided once again by our intuitions. In the case of the borrowed gun, it seems intuitively obvious that my actual duty is to prevent injury to my neighbor s boss and my duty to keep promises essentially disappears. However, Ross argues that intuitions about our actual duties are not self-evident and are subject to error. For Ross, then, there are two distinct intuitive components to his theory: (1) a self-evident intuition that we tentatively have the seven prima facie duties listed above, and (2) an error-prone intuition about our actual duty in moral dilemmas.
In spite of the wide popularity of Pufendorf's intuitionist duty theory, over time critics both within and outside of that tradition chiseled away at its central components. We will look at three here, the second two of which also apply to Ross's theory.
Kant s Criticism: We Have No Duties to God Because We Cannot Know God
Pufendorf groups duties to God together with the moral duties that we have to humans, that is, to oneself and to others. But this seems strange since, assuming that God exists, God is an entirely different kind of being from you and me. German philosopher Immanuel Kant (1724 1804) drew attention to this problem. Kant himself falls squarely within the intuitionist tradition of duty theory. From his earliest to his most mature writings on ethics, Kant argued that moral duties are divided between those to oneself and those to others. However, Kant was more suspicious about whether we have moral duties to God. He believed that we have any number of religious duties to God, but none that are genuinely moral. Kant s specific views on the subject appears to have evolved over the years. In an early set of lectures on ethics, he rejected the view that we have duties to higher spiritual beings such as angels or demons since we have no real knowledge of these beings. He writes, "Spirits may exist or they may not; all that is said of them may be true; but we know them not and can have no intercourse with them. This applies to good and to evil spirits alike" (Lectures on Ethics)." In time, Kant used this same line of reasoning to argue directly against our having any duties to God:
As far as reason alone can judge, a human being has duties only to human beings (himself and others), since his duty to any subject is moral constraint by that subject s will. Hence the constraining (binding) subject must, first, be a person; and this person must, secondly, be given as an object of experience, since the human being is to strive for the end of this person s will and this can happen only in a relation to each other of two beings that exist (for a mere thought-entity [i.e., God] cannot be the cause of any result in terms of ends). [The Metaphysics of Morals, 442]
Kant himself did believe in God, and he argues that we all need to act as though God exists and is watching us. His point here, though, is that God exists in a realm that transcends the ordinary world of experience around us, and we cannot acquire knowledge of God in that transcendent realm. In fact, Kant says, it is nonsensical to even talk about knowledge of God. Since we have no experiential knowledge of God, then, we do not know if we have duties to him, let alone what they might be.
A century before Kant, Hobbes made a similar point about God s inaccessibility, and by looking at Hobbes s statement, we may better understand Kant s criticism. Hobbes considers the kinds of beings with which humans can make agreements or contracts. He writes that we cannot make agreements with God because we do not know whether God accepts the agreements that we devise:
To make covenant with God is impossible, but by mediation of such as God speaketh to (either by revelation supernatural or by his lieutenants that govern under him and in his name); for otherwise we know not whether our covenants be accepted or not. [Leviathan, 14.23]
According to Hobbes, communication with humans is two-way: I can speak directly to you, and you can speak directly back to me. However, except in rare cases when God communicates through revelation, communication with God is one-way: I can speak to God, but God does not directly speak back to me. According to Hobbes, agreements require two-way communication, such as when I offer to sell you my car and you agree to purchase it. I may try to make an agreement with God, such as If God cures my cancer, then I promise to be a better person. But if I do not know whether God accepts my proposal, then we have not reached any genuine agreement. Kant similarly feels that we must have some access to God to determine whether we have duties toward him. For Kant, philosophy cannot give us such knowledge of God.
Religious mystics disagree with Kant and Hobbes about our ability to directly access God. For mystics, our life s goal should be to encounter God, realize our inherent connection with God, and thereby acquire immediate knowledge of God s nature. Similarly, rationalist theologians believe that we can rationally deduce knowledge of God s nature and thereby gain access to God. Hobbes holds open the possibility of accessing God through supernatural revelation, but this slight concession is not a realist option for either Hobbes or Kant.
So, whose intuition should we follow on this issue moral duties to God: Kant s or the religious mystic s? The heart of the issue concerns the extent to which we may dispute the existence and nature of the person to whom we might owe a moral duty. We cannot dispute the existence of other humans and the moral demands they place on us. Clearly, then, we all have duties toward other humans. However, many people do dispute God s existence. It is not clear, then, that we have duties to God. To resolve the issue of duties to God, we need to strike a compromise. People who doubt knowledge of God should follow Kant, and people who assert knowledge of God should follow the mystic and allow for duties to God to the degree that their knowledge of God requires. In formulating this compromise, we are not so much granting permission to the religious believer, but rather simply acknowledging what many believers are already doing. That is, many believers feel duty-bound to God s expectations and will follow those moral duties, regardless of Kant s objection. Unless we are prepared to challenge the believer s claim to know God, we should recognize that the believer may accept special moral duties that stem from this knowledge.
Mill's Criticism: Duties to Oneself Reduce to Only Self-Respect and Self-Development
A 21-year-old man died in a dirt bike accident. Riding in a wooded area, he launched his bike off an embankment and collided in midair with another biker. A friend of the deceased biker commented that he died exactly the way he wanted, doing what he loved. The friend s statement reflects a common attitude that society should not interfere in our private leisure activities, even if they put our lives at risk. Nineteenth-century British philosopher John Stuart Mill (1806 1873) defended this view of personal freedom in his book On Liberty (1859). In a famous passage, Mill argues that society may rightfully constrain us only when our actions harm others, but not when they just harm ourselves:
That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. . . . The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. [On Liberty, 1]
According to Mill, when our actions do not affect others, we have absolute independence over what we do to both our bodies and minds.
Mill s principle of liberty, as we now call it, has implications for the traditional view of duties to oneself: they are not socially obligatory:
What are called duties to ourselves are not socially obligatory, unless circumstances render them at the same time duties to others. The term duty to oneself, when it means anything more than prudence, means self-respect or self-development; and for none of these is any one accountable to his fellow-creatures, because for none of them is it for the good of mankind that he be held accountable to them. [On Liberty, 4]
Mill argues here that duties to ourselves are not socially binding on us unless they spill over into the arena of duties to others. For example, Mill would argue that the dirt biker did nothing socially wrong by harming himself, although he did do something socially wrong to the degree that he harmed the other biker in the collision. But if the biker himself is the sole victim, the matter is different. Technically, Mill does not deny that we have duties purely to ourselves; he only argues that society cannot force us to abide by these duties. The person who disregards duties to themselves may displease or disgust us, and even cause us to pity them. Think of a town drunk who wallows in his own filth but is harmless to other people. In spite of our negative reaction to people like this, Mill believed that we would not be justified in punishing them.
For the sake of argument, let s grant Mill s social point that we do not want society to interfere in this arena of our personal lives and enforce duties to oneself. Lurking beneath the surface of Mill s social point, though, is an interesting ethical point, namely, that duties to oneself are relatively insignificant. Traditional duty theorists believed that duties to oneself were as urgent and inflexible as duties to others. Pufendorf, in particular, believed that duties to oneself rest on both religion and societal necessity and that we cannot willfully dispense with duties to ourselves:
The duties a person owes to himself arise jointly from religion and from the necessity of society. Thus, no person is completely lord of himself, but, instead, there are many things relating to himself which are not to be disposed altogether according to his will. This is partly because of the obligation he lies under for being a religious worshiper of the Deity, and partly so that he may keep himself a useful and beneficial member of society. [The Duty of Man and Citizen, 1.3]
Mill agrees that duties to others are indeed significant and relatively inflexible, insofar as they are firmly grounded in the greater good of humankind. The case is different, though, with duties to oneself. Why, asks Mill, are not duties to oneself socially obligatory? The answer he gives is that they are simply matters of self-respect or self-development. And, for Mill, we define our personal notions of self-respect and self-development based on our individual conceptions of what is good, conceptions that are flexible. For example, the dirt biker may have been morally justified in his death-defying behavior if, based on his personal conception of goodness, he believed that his behavior was an expression of self-respect and self-development. Similarly, physician assisted suicide might also be morally permissible in view of that person s concept of self-respect. In short, insofar as duties to oneself hinge on self-respect, self-development, and individual good, they rest on matters of personal preference, and this is more flexible and less urgent than duties to others. Thus, duties to others are more like new year's resolutions than they are like the genuine moral obligations we have towards others.
What should we think about Mill's criticism of duties to oneself? Mill is probably right that moral duties to oneself have a less urgent and more flexible foundation than duties to others. However, we still might find a common theme that underlies our duties to ourselves and to others, and also any possible duties to God. Our duties to others are informed by our knowledge of what other people demand of us. Our duties to God, if there are any, are informed by the extent to which we know what God demands of us. Using parallel reasoning, our duties to ourselves should be informed by what demands we make on ourselves. Those who choose to make special demands on themselves, then, have special duties to themselves. Those who choose not to make demands do not have those duties. If the harmless town drunk claims that he has no duties to himself, then I must accept him at his word unless I am prepared to show that he in fact makes special demands on himself. However, this would be difficult for me to show since the information that I need exists mainly in the mind of the town drunk, which I do not have direct access to.
Sidgwick s Criticism: Commonsense Moral Intuitions are Imprecise
We noted that perhaps the most distinctive feature of duty theory is its view that we have intuitive knowledge of our duties. In Methods of Ethics (1874), English philosopher Henry Sidgwick (1838 1900) criticizes this aspect of duty theory, contending that we cannot base our moral obligations on commonsense intuitions. Specifically, Sidgwick explains, that there are two possible ways to discover our moral intuitions, and both of these have serious problems. According to the first way, simply survey the specific moral beliefs of ordinary people, which will supposedly reflect the underlying moral instincts within us. However, Sidgwick objects that the moral opinions of the ordinary person are loose, shifting, and mutually contradictory. For example, the average person would think it wrong to take items from a grocery store without paying. But that same person might have no problem with taking home pencils that are the property of her employer or failing to report miscellaneous income on her income tax return. Sidgwick is probably right in his negative assessment about the ordinary person s moral views. However, no duty theorist would recommend that we discover our moral intuitions in such a crass manner. Rather than asking an average real person How do you feel about stealing? duty theorists suggest that we should instead consider how a hypothetical "reasonable" or "impartial human" would answer this question. This leads us to the second way of discovering our commonsense moral intuitions as noted by Sidgwick.
According to the second way, we should look beyond the specific attitudes of the ordinary person to find clear and precise principles commanding universal acceptance. That is, we should search for universal moral principles that underlie common moral beliefs. But Sidgwick argues that, when we attempt to precisely define these principles, several problems emerge. Some principles that we arrive at may not be universally accepted. In other cases, moral notions seem to resist all efforts to obtain from it a definite rule. In still other cases, the duty becomes so complicated that it is no longer self-evident. A rule against suicide would be a good example. Once we say that it is wrong to kill oneself, we then need to consider cases in which a person is dying of a painful disease, or creates a life-threatening situation through reckless behavior, or is about to be captured and tortured by an enemy, or goes on a suicide mission in military combat. The moral rules on suicide become so complex that they are no longer intuitively obvious. Sidgwick concludes with a fairly pessimistic statement of commonsense moral intuitions:
In each case what at first seemed like an intuition turns out to be either the mere expression of a vague impulse, needing regulation and limitation which it cannot itself supply . . . or a current opinion, the reasonableness of which has still to be shown by a reference to some other principle. [Methods of Ethics, 3.11]
Most duty theorists such as Pufendorf believed that our moral intuitions are fixed and universal since God implants them in us that way. However, Sidgwick s judgment about the looseness and inconsistency of moral intuitions seems more realistic, and most moral philosophers today agree with Sidgwick s assessment. For the sake of argument, let s accept Sidgwick s dismal portrayal of moral intuitions, and let s assume further that we cannot systematically make them any more fixed and universal. As inconsistent as they may be, it may still be premature to reject outright our commonsense intuitions as a guide for moral conduct. Philosophers such as Sidgwick are convinced that true morality requires consistency and universality. In fact, the usual way of attacking any proposed moral theory is to expose inconsistencies or to show that the theory cannot be universally applied. Perhaps there is a moral theory out there that can live up to this standard. Or perhaps not. In either case, we cannot put our actions on hold while we search for that perfect theory. In the meantime, we know for a fact that we have commonsense moral intuitions, despite their looseness and flexibility. It seems reasonable and even inevitable to use these intuitions as the default guide for moral conduct until something better comes along. We might, for example, merely rely on commonsense intuitions as our guide but avoid generalizing our duties beyond our current circumstances.
The sister notion to moral duty is that of moral rights. It emerged from seventeenth-century natural law theory just as intuitionist duty theory did. But, whereas the general concept of a duty extends back to the ancient world, the modern notion of a "right" was fabricated in the seventeenth -century.
A New Meaning of the Word "Right"
Some etymology might help us understand this new meaning of the word "right". The English word "right" itself comes from the Old English "riht", going as far back as the twelfth century. Here it simply means "proper", as in "it is right to show your parent's respect". Compare, though, these two uses of "right" and how their grammatic use differs:
"It is right to show your parent's respect" (an adjective describing the pronoun "it").
"Your parents have a right to be respected" (a noun which is the direct object of the verb "have").
It is only the second of these that expresses the notion of a moral right, like the right itself is an item of property that we inherently possess. This is the shift that took place during the seventeenth-century.
English philosopher Jeremy Bentham (1748 1832) speculates about how this linguistic change took place with the word "right", and he blames English-speaking people specifically for not being careful in how they used the term. Suppose, Bentham says, that your own a coat. I then recognize that the coat is yours, and I say this:
1. You ought to possess your coat.
Here I am expressing my satisfaction at the idea of your owning the coat, and I also imply that you should have legal protection to things you own. Suppose that I then say this:
2. It is right for you to possess your coat.
Here I am saying exactly the same thing as in (1): I am pleased with your owning the coat, which should be legally protected. Suppose that I next say this:
3. You have a right to your coat.
The words here are very similar to those in statement 2, but there is a big difference. In statement 3, I am implying that you can knock someone down who tries to take your coat, but I don t imply this in statement 2. For Bentham, statement 2 is the language of peace, and statement 3 is the language of mischief. Once I ve asserted that you have a right to your coat, it is easy for me to start calling it a natural right if I think that you are naturally entitled to "knock down" someone "who by force should attempt to take it" (Pannomial Fragments). Given how close the wording is between statements 2 and 3, Bentham says, we quickly slide from one to the other and then add the word natural.
Who was the first person to make this shift in the use of the term "right"? It may have been Thomas Hobbes (1588 1679), who translated the Latin term ius naturale as "right of nature" in the following:
The right of nature, which writers commonly call ius naturale, is the liberty each man has to use his own power as he will himself, for the preservation of his own nature, that is to say, of his own life, and consequently of doing anything which, in his own judgment and reason, he shall conceive to be the aptest means thereunto. (Leviathan, 14)
Hobbes goes on to say that, in the state of nature prior to the formation of governments, "every man has a right to everything, even to one another's body". Also, to move from the state of nature requires we "lay down this right to all things", that is, "divest" ourselves of these. Here Hobbes seems to understand "right" in this new sense as an item of property that we inherently possess, but can divest out of necessity if we so choose.
While Hobbes may have introduced this new meaning of the word "right", its biggest shift came from English philosopher John Locke (1632 1704).
Locke's Theory of Natural Rights
In his Two Treatises of Government (1689), Locke argues that natural law dictates four principal natural rights: life, health, liberty, and possessions, as he expresses it here:
The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. . . (Two Treatises, 2.2.6)
For Locke, we get this law from our "infinitely wise maker", and this law is grounded in our roles as God s servants and creations.
With all this religious language, we might assume that Locke holds that God has imprinted these natural laws within human nature and that we know those laws intuitively. But that is not so, and in this way Locke parts company with the natural law theories of Grotius and Pufendorf. Instead, he argues, moral rules are neither innate nor self-evident since they stand in need of proof. He writes, "I think there cannot any one moral rule be proposed whereof a man may not justly demand a reason" (Essay, 1.2.4). The proof we give for moral principles, he argues, may even be as rigorous as the demonstrations we make in mathematics (Essay, 4.12.8), though he himself does not offer any such proofs. However, Locke argues, the knowledge we in fact gain of moral principles ultimately comes from whatever influences we are exposed to, particularly in our formative years. In the worst-case scenario, our influences may be "the superstition of a nurse, or the authority of an old woman" which, with "consent of neighbors, grow up to the dignity of principles in religion or morality" (1.2.22). We will absorb pretty much anything, in the same way that "white paper receives any characters" (Ibid.). But to do it right, he says, a child should first be exposed to the Bible, and later to the books on duty and natural law that we've already talked about here, namely, those by Cicero, Grotius and Pufendorf. (Some Thoughts Concerning Education, Sect. 186). An advantage to Locke's empirical approach to our knowledge of natural rights is that his theory avoids the pitfalls of self-evident intuitions that Sidgwick points out. In fact, Locke clearly warns how our so-called "self-evident" principles might really just be institutionalized superstition in disguise.
Locke continues that, not only do we have natural rights to life, health, liberty, and possessions, we also have the right to punish those who violate our rights to these. Without the right to punish offenders, our other rights would be useless. This right to punish is very sweeping and entitles us to kill offenders. By violating my rights, the offender declares war on me, and at that point I can t reason with him any more than I can reason with a wild animal that attacks me. Just as I am entitled to kill an attacking animal, I can also kill the human offender who threatens my right to life. I can even kill a thief, whether or not the thief shows an immediate intention of killing me.
Locke s reasoning on this point is interesting. A thief who steals from me, such as the mugger who pulls a knife on me, is using force to get me into their power. Locke states, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. That is, if the aggressor forcefully subordinates me to steal my money, I can only assume that he will also kill me. Not only can I kill the thief on the spot, but, because I am now in a state of war with the thief, I can hunt him down and kill him later. However, Locke notes that if there is a functioning government in place, then the state of war between the thief and me ends once the thief runs away. At that point, it is up to the laws to address the wrong. For this reason, Locke believed that the best way of minimizing wars with others is to form societies in which authorities take over the task of punishment.
Much of Locke's work focuses on the political and legal implications of natural rights, but here we will consider two issues that have a moral component: slavery and property ownership.
Earlier natural law philosophers believed that slavery was justified. Aquinas argued that slavery is natural because society benefits from enslaving some people. Appealing to Hebrew and Roman law, Grotius argued that to every man it is permitted to enslave himself to any one he pleases for private ownership. That is, I can voluntarily become a slave if it suits my purposes. Today, the notion of voluntary enslavement advanced by Grotius makes no sense, and it is difficult even to envision a scenario in which voluntary enslavement would be a real option. Hobbes, though, gives us one scenario. Suppose that our country is overrun by a despot who wants to control everything and who promises simply to kill those who don t comply. To save our lives, we agree to become his slaves for some period of time. While enslaved, we must obey the despot, and if we don t, then he can kill us for breaking the agreement. Hobbes believed that this kind of voluntary slavery is contractually binding.
Locke takes a middle ground on the subject, based on a specific definition of slavery. Strictly speaking, if I am your slave, then my entire existence is in your hands, and you can kill me as you see fit. This notion of slavery, for Locke, is not morally acceptable: I cannot voluntarily give you the right to kill me since I myself don t have the right to dispense with my own life. Locke believes that the right to life is inalienable in the sense that we cannot simply cast it aside or give it to someone else. It is as though our right to life is on loan to us from God, and we don t have the authority to rid ourselves of it. For this reason, I cannot kill myself, since in doing so I wrongly assume that I have the authority to dispense with my right to life. By the same reasoning, I cannot transfer my right to life to someone else in a voluntary slave contract.
However, even though I can t transfer my right to life to someone else, according to Locke, I can forfeit that right by harming someone. It is as though God loans me my right to life on the condition that I abide by the law of nature; if I violate that law by harming someone, then God revokes my right to life and gives it to my victim. In this case, I am not so much a slave as I am a justly condemned prisoner. My victim can then either kill me on the spot or delay killing me and force me to labor for them. Suppose that my victim delays killing me but makes my life so miserable through hard labor that I wish I were dead. Even at this point, I don t have the right to end my misery and kill myself since my victim still holds my right to life. The best that I can do is disobey my victim s orders and prompt them to kill me.
So, for Locke, although I cannot voluntarily enslave myself, I can essentially make myself a prisoner on death row by harming someone and thereby forfeiting my right to life. There is yet another twist to Locke s view on slavery. Locke describes a more moderate form of servitude called drudgery that does not give the master control over the servant s right to life. The servant in drudgery loses their liberties and possessions and their condition may be dreadful but the servant still retains the right to life. Locke believed that we can voluntarily submit ourselves to drudgery.
Although there is certainly an important technical distinction between slavery and drudgery, most of us would still identify such drudgery as slavery in the broader sense of the term. It is disappointing that an original philosopher like Locke did not condemn drudgery as he did the more severe form of slavery. But, with some modifications to Locke s theory, we can go that extra mile. Locke rejects the severe form of slavery because it violates our inalienable right to life. We might similarly reject drudgery on the grounds that it violates our inalienable right to liberty. That is, through drudgery, I lose my liberty to select my own occupation and to come and go as I please. A defender of drudgery might argue that not all components of my right to liberty are inalienable. For example, when I sign an employment contract, I transfer over to my employer a large part of my liberties during my working hours. However, in response we may say that there is always a core set of liberties that I retain. For example, my employer can t chain me to an office computer and force me to balance the books under penalty of torture. The problem with drudgery, then, is that it violates this core set of liberties.
Locke didn t take this route to argue against drudgery because he had a different conception of liberty, confined mainly to issues of governmental authority, not an individual person's sphere of autonomy. For Locke, the right to liberty involves the freedom from absolute and arbitrary power, and the freedom to act within the rules established by a consensually created government:
Freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature. (Two Treatises, 2 A.22)
The problem with Locke s account of liberty is that a consensually created government might agree to permit drudgery, in which case drudgery would not violate our liberty rights. To reject drudgery, then, we need to expand Locke s notion of liberty beyond the rules of a consensually created government. That is, we need a notion of liberty that meaningfully retains our personal autonomy, such as our ability to come and go in spite of what a government decides. Rights theorists after Locke have viewed the right to liberty in this expanded sense.
Locke discusses the right to property in more detail than any of our other principal rights. Although this may seem unusual at first, it makes sense when we consider the impact that property ownership has on us all. We labor much of our lives to acquire possessions, most of which we could survive without. More wars break out over land disputes than for any other reason. In giving advice to political rulers, Italian political philosopher Nicolo Machiavelli (1469 1527) emphasized the importance of respecting an individual s property. Machiavelli dramatically states that above all he [i.e., the ruler] must keep his hands off the property of others, because people more quickly forget the death of their father than the loss of their inheritance (The Prince, Ch. 17). Locke similarly believed that property is of the greatest importance to us.
Locke begins his discussion of the right to property by explaining how we first obtain property. In the original state of nature, everything in the world belonged in common to all humans. People then took some item from the common storehouse, altered and improved it through their labor, and thereby created something that was uniquely their own. For example, someone may have cut down a tree and carved it into a boat, which he then called his own. We first acquire property, then, by applying our labor to a commonly held object. In Locke s words, Whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property (Two Treatises, 2.27). According to Locke, this is an activity that people could freely engage in on a first-come-first-served basis, without needing to get prior consent from others. If prior mutual consent were required, people would have starved to death while waiting for permission from everyone. Locke considers the objection that this formula for acquiring property will incite people to be greedy and apply their labor to claim as many things as they can. The common storehouse of goods would then run out, and people would begin to fight over possessions. Locke counters that this worst-case scenario could never happen because God has provided such a bounty that the common storehouse of goods will never run out, regardless of our greed.
Locke s formula for acquiring property applies to land as well as to things like wooden boats. Locke writes that as much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common (Ibid., 2.32). Again, Locke argued that God has provided such an abundance of land that we all can take what we can use and there will always be more. It is as if each of us is drinking from an ever-flowing river that will never run dry. Today, with a world population ten times that of Locke s day, his view seems naive. All the land on the earth is spoken for, and the best that we can hope for is to buy or inherit a tiny piece of land from someone else. Locke recognized that most of the land in modern European communities was already claimed and cultivated. However, he argued that in other parts of the world there are still great tracts of ground to be found that the local inhabitants don t make use of (Ibid., 2.45).
It is easy to see how Locke s view of property rights could justify the conquering of foreign lands by early explorers. In Locke s day, an explorer who landed on American shores would have found none of the signs of land cultivation that were common in Europe. The local inhabitants lived off the land and used primitive agricultural techniques, but none claimed ownership of the vast woodlands. So, to the explorer, the land was still part of the common storehouse, ready to be claimed and cultivated. Locke argues further that society actually benefits by claiming land and maximizing its use:
I ask, whether in the wild woods and uncultivated waste of America, left to nature, without any improvement, tillage or husbandry, a thousand acres [would] yield the needy and wretched inhabitants as many conveniencies of life, as ten acres of equally fertile land do in Devonshire, where they are well cultivated? (Two Treatises, 2.37)
So, not only were they justified in claiming the uncultivated waste of America, but it was actually good for them to do this. Again, from a contemporary ecological perspective, Locke s view seems naive. We now know that the survival of life on earth depends on not cultivating large tracts of land. Also, we cringe at Locke s disrespect for indigenous cultural traditions that do not match European standards, particularly in areas of economics and property ownership.
Although there are serious problems with Locke s specific notion of land acquisition, his more general intuition about property acquisition rings true for other kinds of property. When we invest our time and labor into some project, we typically feel that we own the project. This sense of ownership is superbly reflected in U.S. copyright law, which states that we immediately own a literary or artistic work once we create it:
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
It is the job of governing bodies to work out the details of acquiring and transferring property. However, we find in Locke a convincing explanation of where I first get the right to call something mine.
To recap, here are the central points of Locke s theory:
In the state of nature, we have the rights to life, health, liberty, and possessions, and we may rightfully punish people who violate these rights.
We cannot voluntarily transfer our right to life to someone else, although we can forfeit this right by violating the rights of others.
Our right to acquire property, including land, arises when we apply our labor with something that is held in common.
The Universal Declaration of Human Rights
Occasionally, a great philosopher will write a book that has an impact beyond the world of philosophers and influences lives and events in the larger world. Locke is a case in point. Aside from shaping other moral and political philosophers of his time, Locke s view of natural rights directly impacted the views of political reformers and revolutionaries. Cases in point are the U.S. Declaration of Independence in 1776 and France's Declaration of the Rights of Man and of Citizens in 1789. In more recent times, though, we have the United Nation's Universal Declaration of Human Rights in 1948.
The Universal Declaration is a short document that lists several dozen human rights that apply to all humans worldwide. Eighteenth-century political documents grounded natural rights in God s authority and natural law. By contrast, the Universal Declaration completely avoids these appeals and takes a more practical approach by founding human rights on our shared desire for peace. According to the Universal Declaration, by recognizing human rights, we bring about freedom, justice and peace in the world. By disregarding human rights, we bring about barbarous acts which have outraged the conscience of mankind and oppressed citizens are compelled to rebel against tyranny.
The central theme of the Universal Declaration is that human rights are universal in the sense that everyone has the same rights, regardless of nationality or ethnicity:
Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
After establishing the universal nature of human rights, the Universal Declaration makes a statement similar to eighteenth-century declarations: Everyone has the right to life, liberty and the security of person.
Unlike eighteenth-century political documents that stop with a short general list of rights, however, the Universal Declaration spells out very particular rights. At the top of the list is a prohibition against slavery and servitude: slavery and the slave trade shall be prohibited in all their forms. Next is a prohibition against torture and cruel, inhuman or degrading treatment or punishment. Targeting tyrannical governments, the Universal Declaration lists various rights to fair criminal trials, political asylum, and tribunals concerning human rights violations. Moving to more domestic issues, we have rights to marry and to found a family and to own property. We also have liberty rights to freedom of thought, conscience and religion and the right to peaceful assembly and association. One of the boldest components of the Universal Declaration is its list of economic rights. These include the free choice of employment, equal pay for equal work, the right to periodic holidays with pay, and various forms of social welfare including special assistance for childcare.
A common criticism of the Universal Declaration is that the standard of rights is set so high that few countries in the world can actually meet them. In fact, some of the economic rights are not realities here in the United States. However, this argument is akin to saying that all standards of morality are invalid since few people have perfect moral conduct. The important question is whether the human rights listed are (in the words of the Universal Declaration itself) a common standard of achievement for all peoples and all nations. It is not clear what kind of person would answer no to this question.
Burke s Criticism: Abstract Notions of Natural Rights Are Too Simplistic
Shortly after the French Revolution, Irish philosopher and politician Edmund Burke (1729 1797) denounced the French uprising in his Reflections on the Revolution in France (1790). Although Burke supported the more moderate American Revolution, he believed that the French Revolution uprooted important social values involving religion, property, and the nobility. Part of Burke s attack focused on the revolutionaries notions of natural rights. For Burke, their conception of natural rights was simply metaphysical speculation with no consideration of the complex manner in which societies actually operate. Although bold statements about our natural rights stir our emotions, the assertion of an abstract right to food, for example, is useless in resolving the practical issue of feeding people. In this case, Burke says, we are better advised to listen to a farmer or a physician:
What is the use of discussing a man s abstract right to food or medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician rather than the professor of metaphysics.
The underlying problem, according to Burke, is that notions of natural rights are simple, neat, and tidy, whereas the nature of man is intricate; the objects of society are of the greatest possible complexity. Once we latch onto such simplistic concepts of natural rights, our complicated mass of human passions pulls those notions in any number of directions, and the original simplicity is entirely lost. So, in proportion as these notions of natural rights are metaphysically true because of their simplicity, they are morally and politically false for failing to apply to the real world. Burke didn t completely reject the notion of rights, but he believed that rights occupy a middle ground between purely abstract speculation and purely practical issues, such as starving people. Because rights are in a place of limbo, they are impossible to define. However, he says, we can still recognize them when we properly apply them to real-world issues. For Burke, our true understanding of rights is shaped through the art of compromise as we balance different social interests through a kind of rational computing principle.
In short, Burke has two observations about rights theory: (1) Discussions of natural rights in the eighteenth-century were very abstract, with little real-world application; and (2) we gain a true understanding of rights by balancing different social interests. Burke is correct in both of these observations. In the years since Burke, though, rights theory has developed to the point that it now adequately addresses Burke s two points. As to Burke s first point, the overly abstract nature of rights, there is a reason early rights theorists such as Locke listed only a few general rights. Most proponents of natural law argued that nature mandates only one very general law, such as Do that which is suitable for human ends or Be sociable or Don t harm others. It is then the job of politicians and legal experts to continue the deduction process until they arrive at very specific rules. Theorists such as Locke and documents such as the Declaration of Independence stopped with a short and general list of rights. However, since then, the legal machinery in each country carries out the deduction process and gives us precise guidelines for applying rights in very precise situations. For example, I have the right to stand in front of a courthouse and protest against a corrupt judge. Discussions of human rights today typically draw on the subtle distinctions made in such discussions of legal rights.
As to Burke s second point, the issue of balancing different social interests, rights theory today does this exceptionally well. When you assert any right, such as your right to smoke, that right is only one claim that must be weighed against competing claims, such as my right to be free from secondhand smoke. Although the smoker s and the nonsmoker s rights may be equally legitimate, it takes a lot of compromise and real-world application to determine when one right overrides the other. The smoker/nonsmoker case is a good illustration of how many conflicts between rights emerge.
Rights theorists distinguish between two classes of rights that inevitably come into conflict. The first class involves a freedom to various liberties, such as the freedom to smoke, to speak publicly, to print and circulate information, to engage in religious worship, or to travel around. The second class involves a freedom from various harms, such as the freedom from being exposed to secondhand smoke, from being physically attacked, from being publicly insulted, or from having property stolen. If I exercise my freedom to speak out against a corrupt judge, this might conflict with the judge s freedom from public insult. Again, the legal process in the United States continually works out compromises between conflicting legal rights. In this case, my right to speak out against a public official has priority over that official s right to protect their reputation. In the case of smoker s versus nonsmoker s rights, our freedom from being harmed has priority over someone else s freedom to smoke. As these issues play out in the theater of legal rights, we have more concrete ideas for how to resolve moral conflicts between human rights.
Bentham s Criticism: Legal Rights are Grounded in Fact, Natural Rights are Not
Burke held open the possibility that there are some sort of natural rights, although we cannot define them. However, Bentham rejected the notion of natural rights completely, calling it nonsense on stilts. The heart of Bentham s critique is his view that real laws will give us real legal rights, but imaginary natural laws will give us only imaginary natural rights. He picturesquely makes this point here:
Right . . . is the child of law; from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters gorgons and chimaeras dire. (Anarchical Fallacies, Conclusion)
Bentham believed that all rights, both legal and natural, are fictions that we create for the convenience of discussion. We talk about rights as though they are personal possessions, but this is only symbolic language since we clearly don t possess rights as we possess other things, such as cars or houses.
Although all rights are fictions, Bentham concedes that legal rights are at least grounded in some kind of fact. People in power, such as presidents, lawmakers, and judges, all seek to uphold the laws upon which our legal rights are based. The tangible facts involved here are the psychological dispositions of these government officials concerning their interest in upholding the laws. However, Bentham argues, there is no tangible reality to natural laws that might form a factual basis for natural rights. Defenders of natural rights say that these rights are of divine origin and are factual in that sense. In the words of the Declaration of Independence, humans are endowed by their Creator with certain unalienable Rights. But, Bentham argues, this explanation places the issue beyond the realm of fact, and we are simply left with the defender s private conviction. For Bentham, without a concrete factual foundation, the notion of natural rights is completely empty of meaning. Even if we grant in theory that a person has a natural right to something, his condition is not in any respect different from what it would be if he had it not (Ibid.).
Thus, for Bentham, Natural rights are not grounded in the kind of hard facts that legal rights are. How might we respond to Bentham? On the one hand, in the face of tragedies today like human trafficking, we want to assert a universal right not to be enslaved beyond what governments say. On the other hand, Bentham raises serious questions about the factual foundation of these alleged natural rights. It is unlikely that the dispute will be resolved anytime soon. In fact, scholars today still debate about whether there are any natural rights beyond the legal rights established by governments. However, we can offer one solution here that tries to preserve the meaningfulness of natural rights while at the same time acknowledging Bentham s skepticism about them.
Let s grant Bentham s point that natural rights aren t factually grounded in the authority of God or some other intangible realm as natural law theorists maintained. Nevertheless, we might be able to find a factual basis for natural rights that parallels legal rights, namely, a factual basis in some feature of human thinking. Perhaps this feature of human thinking is a culturally shaped intuition that is shared by everyone who lives in and appreciates humane societies. Or perhaps it is only an attitude shared by a smaller group of impartial and socially sensitive people. In either case, it is rooted in some fact of human psychology. And this is in the same ballpark as the psychological facts surrounding government officials who desire to uphold the laws upon which legal rights are based. We are, then, inventing natural rights just as we do legal rights. It's unclear how Locke would have reacted to this since he often dodged issues of objectivism. But many of his contemporaries would have been horrified at the thought that Locke, or the spirit of his times, invented natural rights. Today, though, this idea isn t nearly so horrifying. Irwin Stotzky states undoubtedly human rights are among the greatest inventions of our civilization (Stotzky, 1998). According to him, the importance of natural rights is in no way diminished by the fact that they are artificial creations.
Marx s Criticism: Natural Rights Emphasize Selfishness and Ignore Community
German political philosopher Karl Marx (1818 1883) had a long-standing dislike for social structures that allowed a ruling class of people to exploit an underclass. He spent his entire adult life in revolutionary politics, urging a revolution of the working class. In view of this, we might think that Marx would appreciate the theory of natural rights and its emphasis on equality. On the contrary, Marx believed that natural rights theory is seriously flawed, particularly as expressed in American and French political documents. For Marx, natural rights theories reinforce the selfish side of human nature and suppress our community-oriented side, which is our true identity. Marx makes this point by drawing a contrast between the egoistic man and the species-being. The egoistic man is what we are when we act in isolation of one another within the neutral territory of civil society, not knowing or caring who our neighbors are as long as they leave us alone. The species-being is what we are when we see ourselves connected with other members of our species in a kind of extended family.
Marx looks at each of the key natural rights as expressed in political documents and exposes their selfish orientation. For example, the right to liberty allows me to do what I want so long as I don t harm others. However, this separates me from other people rather than unites me with them. The right to property allows me to enjoy my own possessions and arbitrarily dispose of them without regard for other people. The right to equality allows me to be treated as a self-sufficient single person. The right to security simply preserves the status quo and guarantees that I will remain selfish. Marx concludes that none of the so-called rights of man goes beyond egoistic man, man as he is in civil society, namely an individual withdrawn behind his private interests and whims and separated from the community. By following natural rights theory, we won t see ourselves as community-oriented species-beings, and the only bond that will hold us together is our selfish need for protection, especially the protection of our private property.
Marx is correct that eighteenth-century discussions of rights were exceptionally self-oriented, and it is no secret why this was so. Writers on natural rights were launching revolutions against oppressive rulers and social classes. By revolting against their oppressors, they were essentially saying, Leave me alone! The problem with Marx s critique, though, is that he wrongly assumes that we are either self-oriented or community-oriented, that we cannot be both at the same time. Most of us have a mixture of selfish interests and community interests, and when oppressed by others, even the best of us occasionally shouts, Leave me alone! Eighteenth-century natural rights theorists successfully tapped into our self-oriented side while neglecting our community-oriented side. However, later rights theorists addressed that deficiency and in fact put forward a more community-oriented set of rights, which requires that we help others in need. We can best understand this community-oriented set of rights by distinguishing between negative rights to be let alone and positive rights to our welfare. Negative rights are our rights to not be mistreated, as brilliantly expressed by 18th-century rights theorists. By contrast, positive rights, also called welfare rights, are our rights to be helped by others. If I am injured, I can rightfully demand medical help. If I am starving, I can rightfully demand food. In these cases, I don t want people to leave me alone; instead, I want them to do something for me. To the extent that I demand welfare rights for myself, I am duty-bound to assist others when they demand welfare rights for themselves. So, with one eye we look toward ourselves to protect our negative rights to be let alone, and with the other eye we look toward others to help secure our welfare rights. Some conservative rights theorists today question the legitimacy of welfare rights and argue instead that our true rights are limited to negative rights to be let alone. But to the extent that we agree with Marx that traditional natural rights are too selfish, we will want to endorse the more community-oriented set of welfare rights.
LINGERING ISSUES WITH DUTY AND RIGHTS THEORY
In this chapter we looked at the traditional theories of intuitive moral duties and natural rights, and criticisms of both of them. Beyond their mere theoretical aspects, though, the roles of duties and rights take on new life as we attempt to apply them to an almost endless number of unique moral situations that arise in our lives. We need to distinguish some types of duties from other types, and some types of rights from other types. The distinctions then mount. This is not a criticism of either duty or rights theory. Rather, it exposes an ongoing problem of necessity. For the concepts of duties and rights to be useful barometers of moral obligation, we sometimes need to make picky distinctions. To do full justice to them all would require book-length treatments, but here we will present some of the more important ones.
Various Types of Duties and Types of Rights
Beginning with duty theory, first, there is a distinction between monistic vs. pluralistic duties. Monistic theories hold that there is only one fundamental duty, such as Kant's categorical imperative that you should "Act only on that maxim by which you can at the same time will that it should become a universal law." We will look at this in a later chapter." Pluralistic theories, by contrast, hold that there are several independent moral duties, such as Ross's duties of fidelity, justice, and beneficence. Second is a distinction between absolute vs. prima facie duties. Absolute duties are moral obligations that must be followed without exception, whereas prima facie duties, as we have seen with Ross, are duties that are binding unless they conflict with a stronger duty, in which case they can be overridden. Third is a distinction between specific vs. general duties. Specific duties apply to particular relationships or roles, such as a parent's duty to care for their specific child. General duties apply universally to all people, such as the duty not to harm others.
Fourth is a distinction between perfect vs. imperfect duties. Perfect duties are moral obligations that must always be followed without exception. They are strict and specific, like the duty not to lie or the duty to keep promises. Imperfect duties are moral obligations that allow for flexibility in how and when they are fulfilled. They are often more general, such as the duty to help others or to develop one's talents, which do not need to be done at every opportunity. A final distinction is between direct vs. indirect duties. Direct duties are obligations I have towards another person who has a claim against me, such as my duty to not injure you. Indirect duties, though, are moral obligations I have towards someone or thing because of a claim that a third person has against me. A common example is that I have an indirect duty to not injure your dog because the dog is your property, and I have a direct duty to you to not damage your property.
Turning now to rights theory, first there is a distinction between universal rights vs. institutional rights, each of which includes subtle variants. Universal rights are those that are fundamental to human nature. These would include the Lockean notion of "natural rights" associated with natural rights theory. These also include what philosophers call "moral rights", which humans possess regardless of societal or legal recognition. Universal rights also include "human rights", such as those articulated by the United Nations. Though inspired by the concept of natural rights, human rights are more institutionalized and require legal recognition. In contrast to universal rights, institutional rights are those created or recognized by social or governmental institutions and can in theory differ from one country or jurisdiction to another. The term "legal rights" as we have been using it here conveys this meaning. A similar concept is that of a "positive law" based on the theory of legal positivism, which holds that rights are created by human institutions and derive their authority from social facts, such as legislative enactment, rather than from moral or natural principles.
A second distinction is between negative vs. positive rights. Negative rights involve a justified constraint upon someone's actions which restricts them from injuring us in some way. These are sometimes called "non-interference rights" since we are essentially demanding people to not interfere with us. Positive rights, on the other hand, do the opposite and demand the involvement of other people in our lives, particularly to help us in time of need. The right to medical assistance or affordable housing are cases in point. A third distinction is between harm rights vs. liberty rights. These are both types of negative rights, where we demand that people leave us alone. Harm rights are demands to be free from overt actions such as assault and theft. Liberty rights, by contrast, involve me at liberty to do as I choose in public spaces without someone stopping me, such as my exercise of free speech or free movement in public places.
Fourth is a distinction between individual vs. collective rights. Individual rights are held by persons independently of others, like my right of free speech. Collective rights, though, are held by groups, such as the right to self-determination by native Americans. These rights aim to protect groups rather than individual members.
The quantity of distinctions within both duty and rights theory is a good sign rather than a bad one. These distinctions emerge from real-life controversies, when a simple list of duties and rights are insufficient to solve problems, such as the moral duties we have towards animals, or the rights that indigenous groups can demand towards us. These distinctions allow for more precise ethical reasoning, and enable moral theory to evolve address real-world dilemmas as they occur.
Correlativity of Rights and Duties
We opened this chapter mentioning the principle of the correlativity of rights and duties, where the rights of one person entail the duties of another person. For example, if I have a right to payment of $10 by Joe, then Joe has a duty to pay me $10. This means, in theory, everything we've said in this chapter about rights could be rephrased using the language of duties. For example, the claim that "I have a natural right to life, health, liberty and possessions" can be translated into the claim that "you have a naturally imposed duty to not interfere with my life, health, liberty or possessions." When the United Nations states that "Everyone has the [natural] right to freedom of thought, conscience and religion", this can be translated as "Everyone has a duty to not interfere with someone else's exercise of thought, conscience and religion". The question is this: if rights theory is redundant, why do we hold onto it, rather than just revert back to the language of duty theory? Afterall, the theory of moral duties has been around since the ancient world, whereas rights theory is a comparative newcomer. What new does rights theory bring to the table in our moral discourse?
One answer is this. The key difference between moral duties and moral rights is that duties involve what I owe others and rights involve what others owe me. The creation of rights theory, then allows me to focus on my self-interest, and think about what others owe me rather than what I owe others. That is, asserting my moral rights will come easy to me as a self-interested human, and I may not even think about the moral duties that I owe others. The downside of this emphasis, though, is that it will not necessarily make me a better person, for even criminals assert their moral rights. By contrast, if I also focus on my moral duties, then I will be forced to think about what I owe other people, and this will morally improve me. This is probably why Pufendorf and other early theorists emphasized the duty component of morality more than the rights component. By focusing on moral duties, we not only awaken within us a sense of what we owe others but also may awaken within us a sense of what we owe ourselves. With the issue of voluntary homelessness, for example, rather than focusing on my liberty right to do as I please, I may instead think about my duty to develop my talents.
REFERENCES
Bentham, Jeremy. Anarchical Fallacies, Conclusion, in The Works of Jeremy Bentham, edited by John Bowring (London, 1838 43), Vol. 2, p. 522 ff.
Bentham, Jeremy. Pannomial Fragments, Chapter 3, in The Works of Jeremy Bentham, edited by John Bowring (London, 1838 43), Vol. 3, p. 217h.
Burke, Edmund. Reflections on the French Revolution (1790). Various editions.
Cicero. On Moral Duties (De Officii). 1.100. Various editions.
Hobbes, Thomas. Leviathan (1651). Various editions.
Kant, Immanuel. Lectures on Ethics, Duties towards Inanimate Objects. (cf. 1780), translated by Louis Infield (London: Methuen, 1930).
Locke, John. An Essay Concerning Human Understanding 1689), 2.28.8. Various editions.
Locke, John. Two Treatises of Government (1689). Various editions.
Locke, John. Some Thoughts Concerning Education (1693). Various editions.
Machiavelli, Nicolo. The Prince (1532). Various editions.
Marx, Karl. On the Jewish Question (1843), in Karl Marx: Selected Writings, edited by David McLellan (Oxford: Oxford University Press, 1977).
Pufendorf, Samuel von. Dejure Naturae et Gentium (1762), translated as Of the Law of Nature and Nations (1729) notes by Jean Barbeyrac.
Pufendorf, Samuel von. The Whole Duty of Man according to the Law of Nature (London: Charles Harper, 1691), a seventeenth-century English translation of his book De officio hominis et civis juxta legem naturalem (1673).
Ross, William David. Chapter 2, What Makes Right Acts Right, in The Right and the Good (Oxford: Oxford University Press, 1930).
Sidgwick, Henry. The Methods of Ethics (1874); the quotation is from the seventh edition of 1904. Book 3, Chapter 11.
Stotzky, Irwin P. "Establishing Deliberative Democracy: Moving from Misery to Poverty with Dignity." University of Miami School of Law Institutional Repository (1998).
Tribune Democrat, Johnstown Pennsylvania, story of the young man on the dirt bike, July 1999.
United Nations. "Universal Declaration of Human Rights" (1948).
U.S. Copyright Office. "Circular 1: Copyright Basics" (1992).
STUDY QUESTIONS
1. According to Pufendorf, what is the connection between natural law and moral duties?
2. According to Pufendorf, what happens when we try to survive on our own?
3. What are our duties to God?
4. What are our absolute duties to others?
5. Explain the intuitionist aspect of moral duties.
6. What are Ross s seven prima facie duties?
7. According to Ross, what is the difference between a prima facie duty and an actual duty?
8. What is Kant's criticism of duty theory, and what is the response to this criticism given in the chapter?
9. What is Mill's criticism of duty theory, and what is the response to this criticism given in the chapter?
10. What is Sidgwick's criticism of duty theory, and what is the response to this criticism given in the chapter?
11. What is the new meaning to the word "right" that emerged in the seventeenth-century, and how did it differ from the original meaning?
12. For Locke, in the state of nature, why can I kill a thief even if he doesn t show any intention to kill me?
13. What is Locke's view on whether natural rights are intuitively self-evident?
14. What is Locke s strict notion of slavery and his notion of drudgery?
15. What is Locke's formula for acquiring property, and why does he believe that it also applies to acquiring land?
16. What are the main rights indicated in the United Nations' "Declaration of Human Rights"?
17. What is Burke's criticism of rights theory, and what is the response to this criticism given in the chapter?
18. What is Bentham's criticism of rights theory, and what is the response to this criticism given in the chapter?
19. What is Marx's criticism of rights theory, and what is the response to this criticism given in the chapter?
20. What is the correlativity of rights and duties, and what is the key difference between a statement of rights and a statement of duty?
[Short Essay]s
21. Short essay: pick any one of the following views in this chapter and criticize it in a minimum of 100 words. Pufendorf: moral intuition, duties to God, or oneself, or others; Ross: seven duties, prima facie duty vs. actual duty; one of the responses to Kant, Mill, or Sidgwick; Locke: slavery or property; one of the responses to Burke, Bentham or Marx.