By Tom Regan
Philosophers distinguish between legal rights and moral rights. Legal rights are liberties or protections individuals have because some law says they do. For example, Americans eighteen years of age or older have a legal right to vote. For obvious reasons, legal rights do not come into being on their own; they have to be created through law, whether (here are two ways) by the whims of a despot or by the will of a democratically elected assembly. So one defining characteristic of legal rights is that they are made by human beings; as such, humans can unmake them too.
This leads to another defining characteristic: legal rights often vary from nation to nation, and within the same nation at different times. For example, the legal rights Americans have to religious freedom and to a trial by a jury of one’s peers are not universal among all nations. And the right to vote possessed by blacks and women in America today is the same right that was systematically denied to them throughout much of our nation’s history.
Two of the defining characteristics of moral rights (others will be discussed below) contradict what has just been said about legal rights. First, humans do not make moral rights, nor can we unmake them. Second, moral rights are not limited to the citizens of a particular nation, at a particular time. Moral rights (for example, our rights to life, liberty, and bodily integrity) are universal and timeless.
Belief in moral rights is pervasive throughout representative democracies today. The framers of America’s Declaration of Independence certainly believed in them; they maintained that the sole reason for having a government in the first place is to protect citizens in the possession of their rights, rights that, because they are independent of, and more basic than, legal rights, have the status of moral rights.
As an advocate of moral rights, I take my stand with America’s founders. The young men who were sent to fight in Vietnam had moral rights, including the rights to life, liberty, and bodily integrity. So did the Vietnamese children who were killed and maimed in the conflict. And each had these rights whether the US government, or any government for that matter, recognized them.
But what does it mean to say, “They had rights”? Suppose we answer by saying, “Well, the rights they had were moral rights, which are universal and timeless.” This is true, no doubt, but it does not take us very far. What else can we say about moral rights to help us understand what they are and why they matter? There are six additional defining characteristics that help provide an answer.
1. RIGHTS AND DUTIES: TWO SIDES OF THE SAME COIN
The first thing to notice is the relationship between moral duties, on the one hand, and moral rights, on the other. Some of our duties are so important, they carry rights with them. The duties owed are one side of the coin; the rights possessed are the other side. Let me explain.
When we say something is a moral duty, we are saying that it is something we should do, something it would be wrong for us not to do. Of course, we might not to do it. Limited creatures that we are, there are many things we should do that we fail to do. Still, everyone understands the idea of having a duty (to tell the truth, for example, or to keep one’s word). When we ask how to understand our most important duties, part of the answer is simple. Some of our duties are so important they give rise to rights.
2. MORAL STATUS: “NO TRESPASSING”
Another defining characteristic of moral rights concerns moral status. Possession of moral rights confers a distinctive moral status on those who have them. To possess these rights is to have a kind of protective moral shield, something we might picture as an invisible “No Trespassing” sign.
What does this invisible sign prohibit? Two things, in general. First, others are not morally free to harm us; to say this is to say that others are not free to take our life or injure our body as they please. Second, others are not morally free to interfere with our free choice; to say this is to say that others are not free to limit our free choice as they please. In both cases, the “No Trespassing” sign is meant to protect our most important goods (our life, our body, our liberty) by morally limiting the freedom of others.
Does this mean that it must always be wrong to take someone’s life, injure them, or restrict their liberty? No. When people exceed their rights by violating ours, we act within our rights if we respond in ways that can harm or limit the freedom of the violators. For example, suppose a mugger attacks you; then you certainly act within your rights if you use physical force sufficient to defend yourself, even if this harms your assailant.
Thankfully, in the world as we find it, such cases are the exception, not the rule. Most people most of the time act in ways that respect the rights of other human beings. But even if the world happened to be different in this respect, the central point would be the same: what we are morally free to do when someone violates our rights does not translate into a more general freedom to violate their rights.
3. MORAL WEIGHT: “TRUMP”
Every serious advocate of human rights not only believes that individual moral rights are important; more, we believe that our rights are the most important moral consideration we can think of. To use an analogy from the card game Bridge, individual rights are “trump.” Here is what this means.
Bridge is played by four people using an ordinary deck of playing cards, fifty-two cards in all, thirteen of each suit: clubs, diamonds, hearts, spades. There are thirteen plays (“tricks”) in each hand, with the most powerful card winning each trick. Ordinarily, the winning card is the highest card of the same suit. The ace of clubs beats every other club, the ace of diamonds beats every other diamond, and so on. However, through an elaborate ritual of bidding, players can decide that a given suit is the trump suit for a particular hand. Once this is decided, the cards in the trump suit acquire added power.
For example, suppose hearts are trump. And suppose the first three cards played are the queen of spades, the king of spades, and the ace of spades. You are the next player. You have no spades. However, you do have the two of hearts. Because hearts are trump in this hand, your lowly two of hearts beats the queen of spades, beats the king of spades, even beats the ace of spades. This is how powerful trump is in the game of Bridge.
The analogy between trump in Bridge and individual rights in morality should be reasonably clear. There are many different considerations that are relevant to moral decision-making. How will we be affected personally as a result of making one decision or another? What about our family, friends, neighbors, fellow Americans? It is not hard to write a long list. When we say, “rights are trump,” what we mean is that our duty to respect the rights of individuals is the most important consideration in “the game of morality,” so to speak. We mean that desirable outcomes, for ourselves or for our friends, for example, never justify violating someone’s rights. We mean the good that others derive from violating someone’s rights never justifies violating them.
4. MORAL RIGHTS AND MORAL EQUALITY
The next characteristic of moral rights concerns their equality. Moral rights are the same for all who have them, which is why no human being can justifiably be denied rights for arbitrary, prejudicial, or morally irrelevant reasons. Race is such a reason; to determine which humans have rights on the basis of race encapsulates a particularly virulent strain of prejudice. What race we are tells us nothing about what rights we have.
The same is no less true of other differences between us. We trace our family lineage to different places, some to Ireland, some to Lithuania, others to Africa. Some people are Christians, some Jews, some Moslem. Others are agnostics or atheists. A few are very wealthy, many more, very poor. And so it goes. Our differences are many and real. There is no denying that.
Still, no one who believes in human rights thinks that these differences mark fundamental moral differences. If we mean anything by the idea of human rights, we mean that humans who have moral rights have them equally. And we have them equally regardless of our many differences, whether these concern our race, gender, intelligence, religious belief, comparative wealth, or date or place of birth, for example.
5. INVOKING RIGHTS: DEMANDS, NOT REQUESTS
A fifth characteristic of rights concerns their meaning when we invoke them. This is best understood by contrasting claims of rights with requests for charity or generosity. With regard to the latter: sometimes we ask for things we do not deserve. I want a fancy sports car. You have more than enough money to buy one for me. I confront you, saying, “Would you mind buying me a Ferrari?”
One thing about my bizarre request is abundantly clear. I am not in a position to demand that you buy me a Ferrari! Receiving a car from you — any car — is not something to which I am entitled, not something I am owed or due. Were you to present me with the car of my dreams, it would be just that: a present. Your gift would distinguish you as uncommonly generous, not uncommonly fair.
When we invoke our rights, by contrast, we are not asking for anyone’s generosity. We are not saying, “Please, would you give me something I do not deserve?” We are not asking for any favors. On the contrary, when we invoke our rights we are demanding fair treatment, demanding that we receive what is our due. Of course, there is no guarantee that we will receive it. Law-abiding citizens have the right to demand their physical safety when they take a walk through the park, but (tragically) this is a right muggers fail to honor. Nevertheless, everyone understands that we are not asking for something we do not deserve when we take our walk, with the expectation that no one will attack us.
6. RIGHTS VIOLATIONS AND THE DUTY OF ASSISTANCE
It sometimes happens that those whose rights are violated do not understand the injustice that is done to them. What sometimes happens to children as well as to those who suffer from serious mental disabilities, whatever their age, are obvious examples of how this can happen. Because of their vulnerability, these humans are easy prey for those seeking some benefit, whether personal or public. When used as means to such ends, not only are the rights of these humans violated; in addition, those of us who understand the wrong that has been done have a duty to intervene on the victims’ behalf, to stand-up and speak-out in their defense. Moreover, the duty here is itself a demand of justice, not a plea for generosity. These victims are owed assistance from us; help is something they are due, not something it would be “awfully nice” of us to render. Arguably, the less able humans are to defend their rights, the greater is our duty to do this for them.
Everyone understands that there is a limit to what we can do in the name of defending the victims of injustice. We simply cannot do everything for every victim. For all of us, however, this limit is not zero. That we cannot do everything in defense of those who cannot defend themselves does not mean that we should content ourselves with doing nothing.