All Commentary
Saturday, September 1, 1990

Rights, Law, and Morality

Dr. Douglas B. Rasmussen is Professor of Philosophy at St. John’s University and co-author of Liberty and Nature: An Aristotelian Defense of Liberal Order (Open Court, 1991).

“Rights” are a moral concept, but they are different from other moral concepts. They have a unique function. Their function is not to secure directly the moral well-being of individuals. Rather, their function is to protect the self-directedness or autonomy of individual human beings and thereby secure the social condition under which individual human moral well-being can occur.

Rights provide guidance in the creation and interpretation of a legal system which protects individuals from being used by others for purposes to which they have not consented. Rights are used to determine what ought to be a law. They provide the normative basis of law but, unlike the moral virtues, they do not provide individuals with any guidance regarding what choices to make in the conduct of their daily lives. Regrettably, the unique function of the moral concept of “rights” is not recognized today, and there is much confusion regarding this concept. This confusion is especially manifested in the claim that people have “welfare” or “positive” rights—the claim, for example, that people have a right to a job, an education, a home, and medical care. There are no such rights. The concept of “welfare” or “positive” rights confuses the functions of law and morality and thus does damage to a proper understanding not only of rights, but of law and morality as well.

Law and morality are not entirely unconnected. Law must have a normative basis if it is ultimately to have authority, and so the attempt to make law entirely independent from morality is a mistake. But it is also a mistake to reduce the moral concepts that underlie law to those moral concepts which provide individuals guidance in the conduct of their lives. Yet, what is the fundamental difference between morality and law?

Morality and Law

There is a fundamental difference between the concerns of morality and law, and an examination of the character of human moral well-being will reveal the basis for this difference.

1. Morality. The moral life is concerned with choices that necessarily involve the particular and the contingent. Knowledge of the moral virtues and true human goods may tell all of us what, abstractly speaking, we ought to do; but in the real world of individual human conduct, where all actions and goods are concrete, moral virtues and goods involve the particular and the contingent. This is why prudence—the use of reason by the individual person to determine what ought to be done in the concrete situation—is the cardinal virtue.

Determining what moral virtue and goods call for in terms of concrete actions in specific circumstances can vary from person to person, and certain virtues can have larger roles in the lives of some persons than in others. Determining the appropriate response to the situation faced is, therefore, what moral living is all about. A successful moral life is by its very nature something that is highly personal.

This, of course, is not to say that any choice one makes is as good as the next, but it is to say that the choice must be one’s own and involve considerations that are unique to the individual. One person’s moral well-being cannot be exchanged with another’s. The good-for- me is not, and Cannot be, the good-for-you. Human moral well-being is something objective, self-directed, and highly personal. It is not something abstract, collectively determined, or impersonal.

2. Law. Law, on the other hand, is neither concerned with determining the appropriate course of conduct for an individual in a specific circumstance nor with teaching him what he ought to do. Rather, law is concerned with the protection of the serf-directedness or autonomy of individuals when they live among others. An examination of the character of human moral well-being will reveal why.

Before addressing the question of what people ought to think or how they ought to conduct themselves, an analysis of human moral well-being shows that people ought to act according to their own judgments. This is true, however, not because of the consequences but because of the character of human moral well-being. Self- directedness or autonomy is a necessary condition for and an operating condition of the pursuit and achievement of human moral well-being. It is necessary for any person undertaking any right action. It pertains to the very essence of human moral well-being and is, therefore, fight for any individual regardless of the circumstances. The protection of self-directedness or autonomy must, then, be provided if human moral well-being is to occur socially. This point, of course, is of no great importance for determining personal conduct. A normative ethicist could not get very far with this information, but it is crucial for understanding the nature of law.

Since the self-directedness or autonomy of individuals must be protected if there is to be any possibility of their choosing as they ought, there needs to be an institution which protects the possibility of individuals being self-directed, an institution which states and enforces what must be the case.

The appropriateness of self-directedness or autonomy for human moral well-being is grasped only in abstraction from the specific virtues and concrete goods that a particular human being’s intelligence determines as needed for the circumstances in which he finds himself. Thus, the institution whose aim is to protect the possibility of self-direction should not be concerned with what is good for some individuals relative to concrete situations.

Protecting the self-directedness or autonomy of individuals is a concern only of community life, and thus the institution that is concerned with protecting self-direction should be concerned only with establishing and enforcing rules of community life which prohibit forms of action that use people for purposes to which they haven’t consented. It should not be concerned with teaching individuals how to attain their well-being.

An analysis of human moral well-being, therefore, shows that there needs to be an institution which is concerned with what must be the case for any and all individuals when they live together, an institution concerned ,with the protection of only those things that are universally and necessarily good for any and all people no matter what their concrete condition or circumstance. This institution is law. Its function is to protect the self-direct-edness or autonomy of individuals.

Confusing Law and Morality

Consider the claim that people have a fight to a job, an education, a home, or medical care. These are goods or services which, when considered from an abstract perspective, are beneficial or appropriate for everyone. They ought to be created or achieved. Yet, this claim is not too helpful in pro-riding guidance to the individual in a concrete situation. None of these goods exist in the abstract. How are they to be created or achieved? What kind of job, education, home, and medical care does one need? To what extent and in what amount are these to be pursued? How is the achievement of one of these goods to be related to the achievement of other goods? What is the proper “balance” or “mix”? These questions can be answered only by a consideration of the unique needs and circumstances of the individual, and the insight of the individual himself is crucial to determining the proper answer.

Yet, if persons have a right to these goods and services, then it is the responsibility of the administrators of the law to determine the answers to the foregoing questions. They must determine the type, extent, amount, and combination of these goods and services individuals are to have and how they are to be balanced with other goods. They must determine how individuals are to conduct themselves with respect to using these goods and services. Law, however, by its very character isn’t suited for the task of determining what is good or appropriate for an individual in a concrete situation. Such specific knowledge cannot be a part of the law, or the law will lose its very nature.

Destruction of Morality and Law

Supposing that the law were to take on this function, what would be the effect on morality? What would be the moral worth of these goods and services? As every good parent knows, a child isn’t mature unless he does what he ought to do in light of his own understanding of his well-being and what that calls for in the way of day- by-day conduct and behavior. Human moral well-being is active, not passive. Having the law attempt to determine what an adult’s well-being requires destroys the moral worth of the provided goods and services. Even if the administrators of the law should, by luck, determine what is appropriate for an individual, the individual’s own judgment hasn’t been employed. Abstractly speaking, we may say that such goods and Ser vices are valuable, but in the real world of human conduct, they remain like works of art which have been provided to a man to enjoy at the price of him not using his senses.

An individual’s judgment and effort are necessary not only for enjoying the values his well-being requires, but they are needed for the very existence of these values. The needed goods and services are to be created or achieved by an individual if they are to be morally worthwhile. Values and; more specifically, goods and services don’t exist independent and apart from human cognition and effort. When we abstractly say that human wellbeing requires certain values, we are speaking of what is to be created or achieved by the cognition and effort of an individual human being, not merely what is to be distributed and enjoyed. The goods of human well-being are not found lying about like manna from heaven. These values cannot be values for an individual unless he has achieved them himself. The idea that the moral life is a life of self-actualization refers to the manner of actualization as well as the object.

This last point also is important when we consider what the claim that individuals have “welfare” or “positive” rights implies. If an individual has a right to these goods and services, then, as a matter of law, others must provide them. Other persons are to be used without their consent for the purpose of providing these “rights.” Self-directedness or autonomy—the very condition that all persons need to have legally protected in order for them to have the possibility of attaining their moral well-being—must be denied if these “welfare” or “positive” rights are to be enforced. When the law is used as an instrument for using persons for purposes to which they have not consented, when it is used to take the time and resources from persons without their consent, then, most truly, the rights of individuals are violated. The very reason for law is destroyed.

The claim that people have a right to a job, an education, a home, and medical care confuses law and morality. Trying to have the law provide what only the moral judgment and conduct of an individual can provide separates morality from the moral agent. It destroys morality and, as Frederic Bastiat noted, it perverts the law and makes it the destroyer of what it is to protect. Only by obtaining a clear understanding of the nature of law and morality, and by developing a proper concept of “rights,” will this situation change.