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2. Some Needed Nuances
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2. SOME NEEDED NUANCES The difficulty of defining rights is further aggravated by the appendage of numerous adjectives to the noun “rights,” resulting in a broad range of “classes” of rights. Thus even a good definition of rights still does not tell the whole story. Rights often appear together with modifiers that alter their meaning, sometimes substantially. Human rights are not the same as civil rights, and positive rights are not the same as negative rights. In fact, the term positive rights means one thing when contrasted with negative rights and another thing altogether when contrasted with natural rights. Other adjectives—inviolable, objective, subjective, legal, inalienable , absolute, active, passive, strong, weak, and moral—often accompany “rights,” and each of these qualifiers adds a particular nuance that differentiates it from the others. These adjectives address aspects such as the genesis of rights (e.g., some proceed from contract or civil decree, others from nature), their sphere of influence, or their degree of moral binding power. It is essential to examine these adjectives closely, since in some cases they radically change the meaning of rights and therefore their foundation. Moreover, people frequently have one of these adjectives in mind when they speak of “rights” tout court, a practice that easily leads to misunderstandings. If by “rights” one person understands natural rights, and another understands legal or civil rights, confusion is sure to follow. To come to an adequate understanding of rights, therefore, it is important to offer some distinctions of different classes of rights. Eight sets of adjectives comprise the basic spectrum of rights taxonomy. . Though a good definition identifies right as a “moral capacity,” in the sense that rights describe a normative relationship between one person and another in relation to certain goods, rights can be further divided into moral and legal.1 In fact, such a distinction is critical. Western society increasingly tends to conflate the moral and legal realms, generally absorbing the moral into the legal. Such an identification is unsound. When morality becomes legality, moral virtue is reduced to being “lawabiding .” Lawfulness, however, embraces only an external conformity to a legal code, while morality encompasses the whole sphere of free human action and extends to deeds, words, thoughts, and even omissions.2 Moreover, many cultural mores and manners skirt legal codification but make social relations human and ethical. A reduction of the ethical question of “what one ought to do” to legal obligation necessarily results in a minimalist ethics that lacks the elasticity and “humanity” proper to interpersonal relations and demands more of civil law than the law is capable of providing.3 There are, in fact, many moral duties that lie outside the purview of the law but oblige in conscience nonetheless.4 John Courtney Murray summarizes this point in We Hold These Truths: . Here “legal” refers specifically to civil law, as distinct from moral law, and thus such legal rights are subject to enforcement by public authority. . The precedence of morality over legality is brought out forcefully in a comment made by Orthodox rabbi David Kaye, a U.S. Air Force chaplain, in an address delivered at the annual Canterbury Medal Award dinner in . Kaye remarked that during the Holocaust, “no Jew was killed illegally, only immorally” (reported in the National Catholic Register, March –April , ). . The present inquiry into the foundations of rights deals with the broader and more fundamental area of moral rights, not simply legal rights. Hence the ability or inability of a rightsholder to take remedial legal action in the event of another’s failure to comply with his duty falls outside the compass of this investigation. The subject at hand is the foundation of moral entitlement and conversely of natural moral duty. This will sometimes coincide with legal rights and duties, but often it won’t. Throughout this inquiry, references to “rights,” as such, will always be understood as moral rights. . Therefore Thomas Aquinas asserts that human laws should not attempt to repress all vices. “Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human [3.12.36.147] Project MUSE...
