University of Transnational Business Law

Legal and Moral Rights

by David Lyons

Theoretical work on moral as well as legal rights developed significantly during the twentieth century, thanks to Hohfeld’s study of legal relations. Hohfeld (1919) focused on the competing claims of parties within civil litigation, but his analysis has frequently been extended to moral relations. (See, e.g., Wellman 1985.) After a brief review of Hohfeld’s theory, this article considers parallels and contrasts between moral and legal rights.

Hohfeld observed that one is said to have a legal right under any one of four legal conditions. I have a right (1) if I am legally permitted to behave in a certain way (in which case I have a legal liberty); (2) in some cases, if some other person is legally required to behave in a certain way (in which case I have a legal claim right); (3) if I am legally empowered to effect a change in someone’s legal condition (in which case I have a legal power or capacity); (4) if some person lacks the legal power or capacity to change my legal condition (in which case I have a legal immunity).

Hohfeldian analysis assumes that the legal relations involving powers and immunities are not theoretically reducible to the legal relations involving liberties and restrictions. Whereas the latter concern what one may or may not do (what is or is not legally permitted), the former concern what one can or cannotdo (what legal changes one is capable of effecting). This does not mean that the two realms are independent. My failing to discharge a legal obligation to you, for example, creates for me a legal liability – a secondary obligation, which correlates with your new right to some compensating conduct on my part. As I have effected changes in our legal conditions, Hohfeld’s analysis would seem to imply that I have exercised a legal capacity. But (to characterize the situation in everyday terms) I lacked the legalright to breach my legal obligation to you. Generalizing, this means that the ability to effect a change in someone’s legal condition is not, by itself, a full-fledged right. To constitute a right, a legal capacity must be paired with a liberty to so behave (the right requires, in other words, the absence of the corresponding prohibition).

Theorists generally agree that rights in both law and morals typically consist of more than one Hohfeldian element. Thus (to use another example), a right of action is understood to comprise a pair of liberties (to act and to refrain from acting in a certain way), exercise of which is protected by restrictions on others’ interference with my permitted conduct. The protections consist of claim rights against others’ interference (and their correlative duties). To illustrate: We two are at liberty to compete, but there are limits to how we may behave in the process. I am permitted to practice harder and run faster, but I am not permitted to (e.g.) trip you or drug you in order to insure that I shall win. Similar considerations apply to our conduct when viewed from either a legal or a moral perspective.

Promising, which seems analogous to contract law, illustrates another application of Hohfeld’s distinctions to moral relations: (re 3 above) As a morally competent adult, I am capable of acquiring an obligation to do what I freely promise you that I shall do – just as you are capable of releasing me from a promissory obligation to you (we have those moral capacities); (re 4) save for special circumstances, others can neither make a morally binding commitment for me nor can any one but you release me from my commitment to you (others lack those moral capacities; which lacks correlate with our respective moralimmunities); (re 2) unless released by you, I am morally obligated to do what I have promised (which correlates with your moral claim right); (re 1) but, if released, I am morally at liberty to refrain from doing what I had promised.

Even so elementary an application of Hohfeld’s four categories reveals what moral theorists had not seen clearly before, namely, that moral relations do not consist merely of moral restrictions and permissions but also involve moral capacities and immunities.

So much for the more or less obvious parallels between legal and moral rights. We now turn to contrasts between them. In order to do so, we must clarify what kinds of rights are being compared. Legal rights are creatures of the law – the law of some legal system. What about the morality that generates moral rights? Here we must distinguish between “positive” and “critical” morality – between principles that are widely accepted within a social group and principles (whatever they may be) that are identified as being sound. (Hart 1963.) For present purposes, we are not comparing legal rights with the rights that are implied by the moral code of a social group (however flawed that code might be). Discussions of moral rights, including disagreements about them, almost always concern moral principles that are regarded by some discussants to enjoy an objective standing. When someone claims to have a moral right, she expresses her own moral conviction, to be sure, just as someone who makes a scientific assertion expresses her own judgment. But one who claims a moral right does not hold merely that the right is implied by principles that she or her society accept: she claims that the right exists.

This suggests a possible contrast between moral and legal rights. Few, if any, theorists have skeptical doubts about the existence of legal rights, not even the legal property rights of slave owners. It is not uncommon, however, for theorists to be skeptical about the very existence of moral rights. Why should that be?

One possible explanation begins with the point that the law of a legal system is grounded upon facts about the society whose system it is. The law is generated by such worldly things as written constitutions, legislative enactments, administrative regulations, executive orders, and judicial holdings. By contrast, insofar as we focus on “critical” morality and the relevant moral principles are thought to possess objective standing, they are not comparably grounded upon social facts.

The contrast that I have just suggested may be overdrawn; for skepticism about moral rights is understandable within some theoretical frameworks, but not all. Skepticism about moral rights is understandable when it reflects the broader philosophical idea that moral principles express arbitrary attitudes and cannot be sound. Skepticism about moral rights is likewise understandable when it reflect endorsement of a moral theory like utilitarianism, which is usually thought inhospitable to moral rights. For utilitarianism endorses the promotion of aggregate welfare over all else, whereas moral rights are understood to set limits on the pursuit of such values. (Dworkin 1977)

If one does not embrace either of those philosophical theories, general skepticism about moral rights is difficult to fathom. On the one hand, a moral right would seem to be implicated whenever it is possible for one person to wrong another; for it is unclear how one could be wronged unless one’s right had been violated. On the other hand, some moral requirements are understood to “correlate” with moral rights, in that they are two aspects of certain moral relations. Thus, my obligation to return what I borrowed from you correlates with your right to my returning what you loaned me. One cannot reasonably deny the existence of the right without rejecting the corresponding obligation. Except in special contexts, one-sided skepticism seems incoherent.

Sometimes skepticism is directed not at moral rights in general but at the more specific idea of human rights. As I understand the concept, human rights are moral rights that are possessed unconditionally by all human beings, unlike moral rights that depend on interpersonal transactions, such as your right that I perform as I promised you I would. Now, many believe that a subset of moral requirements apply to all human beings unconditionally. It seems plausible to hold, for example, that we owe other persons some minimal level of respect and consideration. Any treated otherwise is wronged, which (as I have suggested) seems to mean that her human right to a minimal level of respect and consideration is violated. We should accordingly expect anyone who rejects human rights to likewise reject moral requirements that are possessed unconditionally by all human beings.

Another sort of philosophical skepticism is sometimes directed at moral rights. Some theorists embrace a conception of law that regards law as determinate only when there cannot be reasonable doubt about it (e.g., about the existence of a legal rule or its implications). (Hart 1961, Chap. VII, Sec. 1.) The theory implies that a legal right exists only when competent, trained lawyers reasonably agree about it. One who embraces that theory may also hold that moral rights are inherently problematic. People are trained to identify legal rights for clients and some are authorized by law to validate some legal claims. Though some religious figures may claim moral authority, it makes perfectly good sense for one (e.g., one who does not identify with the particular church) to deny such authority, whereas anyone who denies the legal authority of legislators to create legal rights or of judges to pronounce upon legal rights within their respective jurisdictions would seem not to understand legal institutions.

This contrast, too, appears exaggerated. On the one hand, there can be widespread agreement about some putative moral rights, such as a right to life, and widely shared convictions about some of the right’s applications (such as the right not to be killed at someone’s else’s whim), as well as disagreement about some of its implications. (Is a right to life possessed by a fertilized human ovum? Does the right require that we take heroic efforts to maintain an existing life, regardless of the costs?)

On the other hand, trained, competent lawyers frequently disagree about legal rights. Those who disagree do not act as if the relevant law is indeterminate. On the contrary, lawyers and judges reason about the existence and contours of legal rights and they regard those with whom they disagree as endorsing mistaken legal judgments.

A more promising contrast is suggested by the notion that enforcement is essentially related to legal rights but not to moral rights. The point about moral rights is that enforcement is an independent moral issue. To be sure, violations of some moral rights or threats against them can provide grounds for moral criticism or even, in some cases, social pressure to respect them or to rectify violations. It is also widely assumed that legal enforcement is appropriate for some especially important moral (e.g., human) rights. But many moral rights do not rise to such a level of importance. The endorsement of a moral right does not commit one to a presumption (even a rebuttable presumption) favoring its enforcement. The modest consequences of everyday moral interactions, such as routine promises, for example, do not begin to generate grounds for enforcement.

The contrasting point about legal rights must be put carefully, to allow for the fact that they are not always enforced. I suggest the following formulation: The law’s failure to enforce a legal right constitutes an error from the perspective of the law itself.

Consider an extreme case involving ordinary law. Following the abolition of chattel slavery and a relatively brief effort after the Civil War to “reconstruct” social relations in the former slave states, the federal government abandoned its enforcement of African Americans’ newly acquired legal rights and accepted the re-establishment of racial subjugation, without slavery, in a system called “Jim Crow.” During the last decade of the nineteenth century and the first decade of the twentieth, African Americans were systematically excluded from the political system and subjected to the intensely discriminatory practices known as racial segregation. By that time, however, racial subordination required special measures. After the abolition of slavery, many ex-slaves had voted, many had acquired real property, and many had run successfully for elective office and had become active participants in political affairs. They did not freely accept the imposition of Jim Crow, which accordingly required coercion and lethal violence.

Lynching was one of the principal means employed to consolidate Jim Crow. It meant a cruel and painful death for those who resisted the restoration of white supremacy. Lynching reached its peak intensity of two or three murders per week during the decades when Jim Crow was being established. Once that system was consolidated, lynching declined in frequency. But the practice persisted, and its message was clearly understood, though it never fully extinguished resistance to the system of white supremacy.

Lynching is murder, but it was widely practiced under Jim Crow. In many cases it was performed publicly, with advance notice. It was rarely prosecuted, even when participants were known. When prosecutions were attempted, all-white juries refused to convict. Some officials publicly endorsed lynching as a means of keeping African Americans in their assigned place and some were known to participate in the practice. In these and other ways, African Americans were systematically denied the protections of American law – not because there was inadequate law, but because it was deliberately subverted, most significantly by officials.

The rights that were systematically violated under Jim Crow by murder, rape, and other atrocities were not legally problematic. When attempts were made to prosecute individuals for their involvement in lynchings, for example, courts did not dismiss the charges as legally groundless. Other systematic violations of law were more subtle. Even under Jim Crow, laws were not supposed to discriminate openly on racial grounds. Budgetary allocations guaranteed, however, that racially segregated facilities were grossly unequal and administrative practices (as well as open violence) insured that African Americans were largely excluded from juries, from voting, and from public office.

It follows that the legal rights of many persons may be violated systematically over a long period of time. Because we can refer to these as violations, however, it would seem to follow that they are condemned as failures by the law itself.

Now consider a case involving constitutional law. The fifteenth amendment to the U.S. Constitution says, “The right of citizens of the to vote shall not be denied or abridged by the or by any State on account of race, color, or previous condition of servitude.” The amendment also says that “Congress shall have power to enforce this article by appropriate legislation.” For many years, Congress accepted systematic violations of the rights conferred by Amendment XV without enacting enforcement legislation. In 1965, nearly a century after the amendment became law, Congress enacted an effective Voting Rights Act which – no less importantly -- the executive branch of the federal government was willing to enforce.

Given public knowledge of African Americans’ exclusion from the political system, it would seem that Congress’ prior failure to provide for the enforcement of voting rights (and more generally the federal government’s collective failure to seek their enforcement) can be criticized as a legal failing from the perspective of the law itself.

By contrast, we cannot assume that the failure to enforce moral rights is a moral (or legal) failing from a moral (or legal) point of view. The enforcement of legal rights appears to be called for by law but nothing analogous about enforcement seems called for by moral principle.
Bibliography

Dworkin, Ronald. (1977) “Taking Rights Seriously,” in Taking Rights Seriously. Cambridge, MA: HarvardUniversity Press, 1977. Rights “trump” aggregate utility.

Edmundson, William A. An Introduction to Rights. Cambridge: Cambridge University Press, 2004. Complications of applying Hohfeld’s theory.

Hart, H.L.A.. The Concept of Law. Oxford: Clarendon Press, 1961. The book that revived legal philosophy.

Hart, H.L.A. Law, Liberty and Morality. Stanford: Stanford University Press, 1963. On the enforcement of morality.

Hohfeld, Wesley Newcomb. Fundamental Legal Conceptions. New Haven: Yale University Press, 1919. A benchmark for subsequent analysis.

Martin, Rex. A System of Rights. Oxford: Clarendon Press, 1993. Moral rights require social recognition.

Sumner, L.W. The Moral Foundation of Rights. Oxford: Clarendon Press, 1987. Moral rights as justifiable conventional rights.

Wellman, Carl. A Theory of Rights. Totowa, NJ: Rowman & Allanheld, 1985. A comprehensive theory with attention to Hohfeld throughout.