Friday, March 28, 2008

Rights and Duties

Every once and awhile, I come across Christians, and even lawyers who are Christians, who are comfortable with the idea of duties, but very uncomfortable with the idea of rights. There are also a number of interesting debates about exactly what a right is. I’m not sure there is a definitive answer to that question.

Some people believe that all rights have a reciprocal duty associated with them. A number of great legal scholars have maintained this, and a good friend of mine maintains this in conjunction with the theory that a right stems essentially from “belonging.” I suspect he may be right that belonging has something to do with rights, but I don’t think that’s really linked to the proper definition of a right. I’m skeptical about the idea that every right has a reciprocal duty. One reason is that when we think about the rights we’re familiar with, like the right to free speech, for example, the sort of duties we have to create are sort of backward, upside down kinds of duties. For example, in response to the right to free speech we could say the government has a duty not to interfere with someone else’s freedom of speech. But isn’t it kind of odd to say there is a duty not to do something? We don’t normally contend that people have an obligation to facilitate speech. Simply, the government should not stop proper free speech.

I think there is also some confusion involving rights that people maintain should be entitlements versus rights of the classic sort. For example, I would maintain that people do have a right to health care. But by that I mean that no one should interfere with someone else being able to procure or obtain health care. I also mean that in the ideal world, people would all be able to obtain good health care. I do not mean that the taxpayer has an obligation to pay for everyone else’s health care. Many people who think there’s a right to health care would maintain that the government (which really means all of us) has an obligation to pay for everyone’s health care. I do think that there is, instead, a sort of charitable moral obligation. Providers of health care have a moral obligation to help those who cannot afford health care, and, in fact, they generally do just that. Hospitals provide millions of people with free treatment every year when those people can’t afford to pay. But charity is something that has to be given from the heart willingly—it isn’t something that can be taken through the force of a legal coercive right. There is great difference between the fact that we ought to help the poor and saying that the poor can demand our help and make the government take money from us by force if we don’t help them. An entitlement of that sort in a sense makes giving meaningless.

Aristotle long ago argued that one of the reasons government should not eliminate private property was because eliminating private property deprives everyone of the opportunity to be virtuous. Virtue in large part deals with how we give our money and how we spend our money. If no one has any private property, there are no decisions about how to give or how to spend. Hence there is a whole area of virtue that remains undeveloped. By the same token, I don’t think it makes sense to recognize the existence of entitlement rights of the socialist sort because they too deprive people of the opportunity to be virtuous. We must maintain a distinction between moral duty and legal right in such cases. If we do decide, as a people, to provide money to the poor for food or health care, it should be seen as national charity given by all tax payers, and not something that can be demanded as an entitlement.

So if a right isn’t essentially always an entitlement and doesn’t involve a reciprocal duty in every case, what exactly is a right? My thought is that a right is a predisposition of justice. That is to say, based on God’s nature there is a certain order in which the universe is designed to function normatively. There are certain things that are good or evil, just or unjust, the way they’re supposed to be, or the way they’re not supposed to be. When things are in accord with this general order, we can say that they are just. There are then certain ways in which to describe a just order that indicate certain predispositions of the way things ought to be unless there are heavy countervailing factors. So for example, people ought to generally be free to practice whatever religious faith they believe in without anyone interfering with their freedom of conscience. They have a right to free exercise of religion. This right can occasionally be countervailed if, for example, an individual believes in practicing active human sacrifice. There is also a right to freedom of the press which can also be overridden temporarily during times of emergency and which is limited by the law of defamation. There is also a right in all cases of criminal and civil accusations to a full and fair hearing by an impartial tribunal, with proper rules of evidence, that allows for a good faith attempt at discovering the truth of what really happened, and that will base the ultimate disposition of the case on reality as it can best be determined. In countries like the United States, this right grows and blossoms in many particular customs associated with the way in which we provide this due process. But in certain situations, such as international combat with combatants who do not abide by or obey the principles of international law, a more minimal level of due process would be both practical and just. Hence rights are essentially shorthand descriptions of the general predisposition of justice—of the way things ought to be in a just order and just system. They do not necessarily create reciprocal duties but creation of duties or the existence of duties may be an appropriate way to maintain rights or to vindicate them.

So those are my basic ideas about rights. I’m curious about what you, the reader, think and if you are aware of anyone else who has said basically the same thing. Your comments are appreciated.


Will Barker said...

G'day Don,

Thanks for this interesting perspective on rights and duties, and for your blog in general. As a first year law student attending a secular university in Australia I'm not usually exposed to the Christian foundations of the law so your blog helps to integrate what I am studying at university with my love for Jesus and worldview based on the Bible.

Regarding rights and duties, I was always of the mindset that a duty was just the flip-side of a right, and vice versa. This is a view I picked up listening to John Synder of

Look forward to reading your blogs in the future.

Professor McConnell said...

Thanks Will.