Humanity and Moral Rights
ABSTRACT: The priority and absoluteness of rights is often gist for ethical debates. I consider these issues from the perspective of my ethical theory, which I call the "ethics of social consequences." The ethics of social consequences is one means of satisfying non-utilitarian consequentialism. It is characterized by the principles of positive social consequences, humanity, human dignity, legality, justice, responsibility, tolerance as well as moral obligation. I analyze Gewirths position regarding the absoluteness of rights as well as Nagels opinion that rights enjoy priority forever. However, I also concentrate on Williamss critique of utilitarianism. I contend that the priority of the protection and respect of individual rights in ordinary situations is acceptable. However, the individual must respect the rights and justified interests of other concerned people. Nevertheless, in extraordinary situations one must accept that consequences are more significant than rights.
The priority and absoluteness of rights are very often the subject matter of ethical debates. We can mention some articles which deal with it from different points of view (for example, the articles of T. Nagel, A. Gewirth, R. G. Frey, D. T. Meyers, L. E. Lomasky, P. Pettit, M. Philips, J. O. Nelson, F. Schauer, T. Machan and others).(1) I shall concentrate on these issues through my ethical theory entitled "ethics of social consequences" (ESC). "Ethics of social consequences" is one of the forms of satisficing non-utilitarian consequentialism. A core of that ethical theory is represented by the principles of positive social consequences, humanity, human dignity, legality, justice, responsibility, tolerance as well as moral obligation. Therefore, humanity and human dignity (besides the positive social consequences), there are also very significant aspects of that theory.(2)
This paper will argue that priority and absoluteness of rights (I mean especially the basic moral right to life of an innocent person) are restricted in extraordinary situations. First of all I shall deal with issues of humanity and human dignity, because it is the main theme of the 20th World Congress of Philosophy.
On the one hand, I consider humanity as a certain moral ideal that is established on the respect and pursuit of human dignity. This is achieved through moral principles and particular moral norms that define ways of pursuing humanity in the individual and social life of moral communities. I do not concern humanity as the unattainable and abstract moral ideal that is too far from the moral practice of agents. I mean that humanity as a moral ideal is the expression of actual demands and interests of individuals and humankind together. Human beings have hope for their rational being and surviving just through the fulfilling of humanity, its principles and respect for human dignity. There are also other issues (for example, environmental) that are external conditions for the preservation of human beings as well as life. On the other hand, I accept the principles of humanity as the moral guides for the attainment of a moral ideal. By the principle of humanity I mean the principles what are accepted on the level of common sense morality. For example, respect for older people as well as respect for all people who deserve it. Furthermore, this is fairness and justice in the relations to others, tolerance for them, mutually benefitting cooperation and so on. We can express these principles of humanity in philosophy and ethics, for instance as the Golden Rule (in its positive or negative form) or Kant's categorical imperative.
The performing of humanity as the moral ideal can be compared with Spinoza's idea of conducting towards the moral perfection. Like Spinoza's ideal of moral perfection, which is not fully attainable, there is also no possibility of performing the ideal of humanity thoroughly. However, it is important that the moral agent has to make a minimal effort to come through to the performing of that moral ideal. One can do it in own itself life as well as in its nearest social community. To be human, we do not have to be saints. Sometimes it is sufficient if we can aid our neighbours in their insignificant worries. Hence we can also assist the pursuing of humanity in our environment that would be followed by others. Dominance of the positive consequences over negative would be a motive which could lead us to the respect of human dignity, its witness, and therefore to the achieving of humanity and moral goodness.
Furthermore, I recognize the right of innocent persons for life is a basic human moral right. However, there is also a strong version of that right, i.e., right of an innocent person to have a dignified life. In accordance with it there is the extending of the former right on the next, social and economic rights because only through them can we fulfil the dignified life of the innocent person.
On the one hand, it is essential to point out that the basic charge of the state and its institutions is the protection of the innocent person's right to life. On the other hand, the state has to fulfil its claims for the dignified life. Performing both rights (in their protective and satisfied functions) does mean that the state has to establish all assumptions for the pursuing of these rights. Hence, the state will be able to establish legal, economic and social assumptions for the protection and performing of these rights. However, on the other hand, the state will be able to establish all the assumptions for acceptance and fulfilling these rights. They are means for the achieving of goodness in the individual and social life. Therefore, it is unavoidable to accept that the primary demand is the pursuing of humanity and human dignity in the life of individuals, social and moral communities in society. The kinds of collective good that are as much as opposite to undeniable interests and rights of innocent people cannot be the primary one (I mean, for example, the violation of minority rights in the former Yugoslavia).
Humanity and human dignity are the essence of moral goodness. They are the supreme values that are essential to fulfillment by the moral agent's actions. These values are expressed through the principle of positive social consequences (PSC). This is defined by the claim that PSC has to respond to the pursuing and attainment of humanity and human dignity.
The performing of humanity and human dignity in the moral agent's actions is thus the fulfillment of the innocent person's right for the dignified life. Ethical idea of moral goodness is expressed primarily through human dignity and the principles of humanity that are more reliable. Moral right includes the idea of the moral value that will be pursued. Human dignity and humanity are expressed through the principle of PSC which is also restricted by them. Moral rights more properly express human dignity. They are informal indication of moral values, while legal rights are institutional statement of some moral rights. We can point out that moral right is only a framework or form for the fulfilling of moral values because the ends are not moral rights but moral values of human life. Therefore, humanity and human dignity through moral rights are general expressions for the protection or performing of fundamental moral values of the individuals as well as humankind.
Are rights absolute? Alan Gewirth says "yes".(3) Thomas Nagel, in accordance with rights affirms that rights have a priority forever.(4) First of all, I shall deal with issues concerning priority of rights. According to Nagel, rights are universal protection of the individual against the abuse or sacrifice that benefits worthy or unworthy interests. He asserts that the idea of right expresses the position of individual in the moral system. Therefore, priority of rights means the important fact that the individual is understood not only as the object of protection and an endeavour in its benefit, but also as an inviolable and independent one. Hence, there begins a conflict between the individual and public interest. According to Nagel, the restricted individual sovereignty over a particular part of its personal life is inviolable and it is the most significant value of morality concerning human rights. On the other hand, he acknowledges that "The recognition of rights even if they make more difficult the achievement of good or the prevention of an evil, expresses that aspect of morality which sees persons not only as objects of benefit and protection but also as inviolable and independent subjects, whose status as members of moral community is not exhausted by the inclusion of their interests as part of the general good".(5)
We can say that his view constitutes sound ground for the being of moral communities in the present. Human society founded through respect to human rights is the assumption for the further development of that community as well as all human society. The extension of respect to the individual human rights does also mean the moral development of human society. However, it is implausible to understand the measure of individual sovereignty over itself life. We can dissent about this issue. I think that fundamental criterion for decision about rational proportion of the individual sovereignty over personal life is that the fulfilling of its rights must not violate or essentially restrict rights of other persons. We can explain it through the satisfaction of sexual needs, because the need to satisfy these needs by one person must not lead towards the restriction or violation of human rights of other people. There is inevitable to accept the difference between lawful and moral distinguishing of rights, as well as their violations. However, the lawful definition of rights is usually offered as the sole criterion for the judgement of the individual's actions. This is generally presented and identified namely in common sense morality.
Therefore, the relation between lawful and moral rights is a very meaningful issue of ethical debates. Nagel states that moral equality is the basis of all human rights. I agree with him. We can note in accordance with it that moral rights are the basis of all lawful rights. Nevertheless, it is necessary to point out that lawful rights are not identical with moral rights. Hence, more universally formulated moral rights are put through exact lawful regulations, which are guaranteed by social institutions (especially, by states). Law is an implement for the performing of moral rights of a community or society in this case. However, law guarantees these rights on the lower level than they are formulated as the moral rights of the individual in the community. We can ask what is more important, lawful definition of individual human rights or their moral aspects. If we see it from the demand point of view, it is plausible that moral rights have a priority because they are rights of a higher level. On the other hand, there is questionable whether the state and its institutions are able to keep a priority of these moral rights. Most probably no, because they very often are unable to protect internationally accepted human rights that are the general consensus of the national states included in international institutions like the United Nations. However, some national states are unable to keep all the lawful human rights of people (for example, some social and economic rights), and it does mean that they cannot perform the moral rights that are more demanding than lawful rights. On the other hand, in the countries where these lawful human rights are guaranteed by state and its institutions, there is room for the inclusion of further moral rights into lawful human rights. This is a part of the process of the extension of individual human rights as well as human dignity. It is available to point out that lawful rights put our understanding of human rights as lawful regulations through the universal law guaranteed by the United Nations as the Universal Declaration of Human Rights. The Universal Declaration of Human Rights is an outcome of political consent among leaders of UN members concerning issues of human rights. The Universal Declaration of Human Rights is a lawful and political ideal for all nations as well as humankind, and it is necessary to try to achieve it. However, there are also many problems with how to protect undoubted right of innocent people for the dignified lives if the economic and social resources of some countries are faraway from the available conditions for the performing of these rights.
I accept the idea that human society has been founded through the idea of social contract, and that its being is possible only due to that social contract performed on the international level, for example, like international cooperation in trade, health and environmental care and so on. The representatives of the social contract idea (for example Spinoza, Hobbes, Locke, Rousseau, Rawls and others) present the prior view that human society has been established and works (in the present) only when individuals give up a part of their freedom as well as rights. Therefore, they delegate mandates that benefit the social institution (state) for the sake of the protection and performing of their rights as well as justified interests in accordance with rights and interests of others. The essential principle for the performing of a social contract is a cooperative idea for the sake of the protection of human beings. It follows that one of the aims of humankind is a stable community as well as society, where the individual delegates a part of itself to rights and freedoms that benefit the social institution. That institution has the duty to protect and pursue its rights and justified interests in accordance with rights and justified interests of other concerned people. The prevention against the abuse of that institutional power is the performing of the fundamental requirement towards social institution, i.e., that social institutions must not violate or restrict basic human rights of innocent people, with the exception of the cases where it could prevent more harms. However, it is possible to do only with the agreement of the concerned people. A social institution must not violate or restrict the right to life of innocent people in any case, nor for the benefit of the prevention more harm. A social institution is not the owner of human lives of individuals who delegate a part of their freedom and rights to the social institution in a social contract. Every free, rational and innocent individual has the right to decide about life itself. The individual can sacrifice itself for the benefit of the prevention of danger that jeopardizes a community, society or all humankind. However, it is possible to do only as the individual decides freely, because it is not its duty. Hence I think that there is only one priority of right, i.e., the right of innocent people to life itself. However, it does not mean that a social institution has the possibility to violate or restrict the other rights of individuals. John Rawls affirms that a social institution could do it only for the sake of prevention more of harms to the individuals' rights.(6)
Therefore, it also concerns Gewirth's view about absoluteness of some rights. We can conclude that it is possible to consider only the absolute right of the innocent's life. Thus, right to life is impossible to accept as absolute right. I think that in the case of repeated murderers, ones who acted against humanity and human dignity of other people, there is possible to use the capital punishment for the sake of preservation of human society and its individuals. It does mean that it is unsuitable to promote the lawful right of some individuals, who extraordinarily violate the lawful and moral rights of other individuals. Therefore, the protection of rights of the concerned innocent people is one of the social and moral priorities of the state. This is in benefit of social and moral communities and their social institutions to protect rights and justified interests of people who are living in accordance with law and moral norms following the requirements of social contract. I again emphasize that the use of capital punishment is acceptable only in relation to the individuals who did repeated murders, dangerous crimes against human lives. Capital punishment is impossible to accept in any other cases. I think that that view is also acceptable from the principle of humanity. Hence, it does mean that there is more important (even more human) to protect rights and justified interests of innocent people than interests of people who violate the lawful and moral norms protecting the right to life of innocent people. We can add that those people do it through a deliberation, (I do not say that through rational deliberation, though it could be evaluated as the highly rational deliberation and action from the formal point of view) and they repeatedly do it as free beings. Capital punishment is not revenge of society towards them, like an eye for an eye, a tooth for a tooth, because the social institution does not perform capital punishment in the same way the murderer killed its victims. Therefore, it does mean that the pursuing of capital punishment is a lawful act and it is also acceptable from the moral point of view as a right action. Hence, I do not judge it as a moral action, which brings only positive consequences, but as a right action that brings predominance of positive consequences over negative.
In that context we could consider issues following from Bernard Williams' case presented in his critique of utilitarianism.(7) Jim, the chief of a botanical expedition, has to decide to shoot one of the twenty innocent native Indians or to leave the soldiers to shoot all of them. If we could try to use the mentioned criteria of humanity and absolute right to life of an innocent person, then Jim does not have a right to shoot one innocent person. On the other hand, if he rejects shooting one of them, he indirectly causes the shooting of twenty innocent people. Hence, he will not be directly morally responsible for the shooting of one person, but on the other hand, he will be indirectly responsible for the shooting of twenty innocent people. What should be done in that case? We can use Aristotle's view as the starting point for the solution. Aristotle holds that if the free individual deliberates about action and then also acts free, without constraints, this action is itself and the individual has full moral responsibility. However, if the individual acts under constraints (direct or indirect), he has no moral responsibility for that action.(8) In contrast to Aristotle, I would like to add that despite the involuntary situation of the individual when he has to choose a particular action, the rational moral agent has to consider the consequences following from that non-voluntary action. Therefore, I think that the moral agent must try to reduce the moral harms following from its action. Hence, we can remark that the moral agent generally is not morally responsible for the consequences following its involuntary action. On the other hand, he is responsible for the reduction (diminishing) of the negative consequences following that action. It does mean that the moral agent (Jim) is irresponsible for the death of innocent persons in that case. Direct moral responsibility is related to those soldiers and their commander Pedro, who decided about the shooting. However, Jim has responsibility, or even duty, to diminish the negative consequences of that action. Therefore, his duty is to try to save the lives of nineteen innocent native Indians through shooting one of them. If we are concerned about the absolute right to life of the innocent person, there is necessary to point out that from the moral point of view, Jim did not violate the right to life of an innocent person, because his decision has not been free. Pedro and his soldiers have direct moral responsibility for the violation of the right to life of an innocent person because they composed that inhuman situation for Jim's decision-making. We have to deliberate again about priority of rights or consequences in accordance with Williams' case. I conclude that in ordinary situations, i.e., in situation of free and voluntary consideration and the action of a moral agent, there are prior moral rights of the individual, which are in accordance with rights and justified interests of other concerned people included in the social contract community. The main reasons for priority of that right (within ordinary situations) are positive consequences following from the respect to the priority of right. It concerns all concerned people in the social contract community as well as almost all humankind (though only indirectly). By positive consequences I mean the performing of humanity and human dignity towards all people who deserve it. However, when decisions and actions of the moral agent are not free (in extraordinary situations), then there is priority of consequences over rights, i.e., priority of endeavour to diminish the negative consequences following non-voluntary violation of the right to life of an innocent person. We could say that priority of the right over consequences is immoral in that case. It is possible to compare that action with Pilatus' washing his hands of responsibility in the case of Jesus Christ's guilt.
We can conclude that from the satisficing non-utilitarian consequentialist (ESC) point of view, that the priority of the protection and respect of the individual's rights in the ordinary situations is acceptable. However, the individual also has to respect the rights and justified interests of other concerned people. On the other hand, it is necessary to point out that in extraordinary situations there is necessary to accept the idea of only a particular restricted priority of the right to life of an innocent person, i.e., hence consequences are more significant than rights.
(1) See Gewirth, A. "Are There Any Absolute Rights?" In: Philosophical Quarterly 1981(31), 122, pp. 1-16; Nagel, T. "Personal Rights and Public Space." In: Philosophy & Public Affairs 1995(24), 2, pp. 83-107; Frey, R.G. "Act-Utilitarianism, Consequentialism, and Moral Rights." In: R.G. Frey (ed.): Utility and Rights. Oxford, Basil Blackwell 1985, pp. 61-85; Schauer, F. "Can Rights be Abused?" In: Philosophical Quarterly 1981(31), 124, pp. 225-230; Meyers, D.T. "Human Rights in Pre-Affluent Societies." In: Philosophical Quarterly 1981(31), 123, pp. 139-144; Lomasky, L.E. "Gewirth's Generation of Rights." In: Philosophical Quarterly 1981(31), 124, pp. 248-253; Pettit, P. "The Consequentialist Can Recognise Rights." In: The Philosophical Quarterly 1988(38), 150, pp. 42-55; Philips, M. "The Inevitability of Punishing the Innocent." In: Philosophical Studies 1985(48), 3, pp. 389-391; Nelson, J.O. "Against Human Rights." In: Philosophy 1990(65), pp. 341-348; Machan, T.R. "Human Rights Reaffirmed." In: Philosophy 1994(69), 4, pp. 479-490.
(2) See Gluchman, V. Slovak Lutheran Social Ethics. Lewiston, The Edwin Mellen Press 1997, chapter I (English); Gluchman, V. Etika konzekvencializmu [Consequentialist Ethics]. Preov, Manacon 1995 (Slovak); Gluchman, V: Etika socilnych dsledkov a jej kontexty [Ethics of Social Consequences and Its Contexts]. Preov, PVT 1996 (Slovak).
(3) Gewirth, A. "Are There Any Absolute Rights?" In: Philosophical Quarterly 1981(31), 122, pp. 1-16.
(4) Nagel, T. "Personal Rights and Public Space." In: Philosophy & Public Affairs 1995(24), 2, pp. 83-107.
(5) Ibid, p. 86.
(6) Rawls, J. A Theory of Justice. Cambridge, Belknap Press 1971, pp. 212-213ff, 244ff.
(7) Williams, B. "A Critique of Utilitarianism." In: J.J.C. Smart-B.Williams: Utilitarianism: For and Against. Cambridge, University Press 1973, pp. 98-100.
(8) Aristotle. The Nicomachean Ethics. Ware, Wordsworth 1996, p. 54 (1109b30-1110a19).