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.
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