Theory of Moral–Ideal Rights

Along with natural rights, moral entitlements were also stressed as the basis for legal recognition. Moral entitlement as the basis of rights came into the picture initially in the writings of Jean Jacques Rousseau, Immanuel Kant and Thomas Hill Green in eighteenth century and has appeared in the writings of Harold Joseph Laski and Ernest Barker in the twentieth century. Recently, Richard Dworkin has discussed rights as moral entitlement. For Dworkin, a right entails moral claims as right in one’s own capacity and also requires others to be duty bound to respect it.⁵⁵

Theory of moral or ideal rights is concerned not only with the source but also the content of rights. Theory of legal rights is concerned with source of rights, law enacted by the State. It is not concerned with what moral or ideal principles constitute rights. We may recall Laski’s poser, whether legal rights are what human beings require as rights. There may be possible gaps in what rights a person should have and what have been enacted as legal rights. Heywood explains, ‘moral rights are more commonly ‘ideal’ rights, which bestow upon a person a benefit that they need or deserve.’⁵⁶

It is this concern for content of right that is the main focus of moral or ideal rights. For example, a marriage act and civil courts may recognize certain conditions under which a marriage becomes null and void or entitles the claimant the right to seek divorce. However, it does not mention, for example, ‘rape within wedlock’ as either in the category of violence or condition for seeking divorce. Advocates of moral or ideal rights may argue that this moral right should be recognized legally.

In brief, the theory of moral or ideal rights has insisted on moral freedom of individual (Kant) or real will of the individual (Rousseau) or human or social consciousness and self-realization (Green) or development and perfection of human personality (Laski and Barker) or dignity of human being (UN Universal Declaration of Human Rights) as grounds for ensuring rights of the individual.

Immanuel Kant, a German idealist philosopher, made morality as one of the central themes of his thought. He argued that ‘to achieve perfection in yourself and happiness in others, “so act as to treat humanity, whether in thine own person or in that of another, in every case as an end, never only as means”.’⁵⁷ This compulsion, to treat oneself and others as ends and never only as means, is aimed at creating ‘ideal community of rational beings. However, how does one achieve the end of installing morality at the centre stage of human actions? Kant’s answer is, as Durant says, by ‘freedom of our wills. And how does one realize the freedom of wills? Kant would say that freedom is ‘the very essence of our inner selves’ and would entail a sense of duty. How does this happen? Kant invoked the idea of moral sense to prove his point. In his book, Practical Reason, Kant writes, ‘while I can will the lie, I can by no means will that lying should be a universal law.’⁵⁸ Kant uses the term ‘will’ in the sense of willing against the inner compulsion, or moral sense. While I will the lie, there is an inescapable feeling that something is wrong. Where does this feeling come from; how do we get the feeling of remorse, repentance, and self-denigration when even no one else knows about our lies? This feeling is moral sense, inner voice or ‘moral choice’. Does this not lead to the conclusion that I must not lie even in the absence of a law against lying? Should not I follow honesty for its own sake even if it is to my disadvantage, rather than when it is a best policy? While following honesty unconditionally is morality, following it conditionally, when it is a best policy, is prudence. When Kant talks of moral freedom, he means unconditional pursuit of morality.

If Kantian moral freedom is the basis of rational community, Kant necessarily requires development of moral freedom amongst the humans. However, this is a freedom that cannot be granted by the State, rather individuals themselves can only achieve it. The State, however, can provide external requirements for the development of this moral freedom. Rights must then be the conditions for moral freedom. Ideal rights are in fact associated with duties and obligations to treat own person and others as ends and never only as means. Thus, Kant links rights with moral end and moral freedom.

Jean Jacques Rousseau, French philosopher, advocated that one should be forced to be free. This means rights have to be seen in the context of social freedom reflected in General Will. Rousseau’s conception of General Will is based on the differentiation he makes between an individual’s ‘real will’ and ‘actual will’. He maintains that individuals in the state of nature are consciousness of common good and would subordinate their self-interest and this is reflection of ‘real will’, though self-interest, i.e., ‘actual will’ is also present. Actual will is reflected in impulsive, instinctive and un-reflected self-interest. Rousseau feels that it is the triumph of ‘real will’ over the ‘actual will’ that makes emergence of General Will, as overarching consciousness of social community, possible. Implication of Rousseau’s formulation of doctrine of General Will is that individual should always let their real will triumph. In this sense, the actual will is forced to be guided by the general or the real will, it has been forced to be free.

If this is to happen, they require moral and social conditions. In civil society, rights are conditions of moral and social development. For Rousseau rights are ideal rights that fulfil the condition of subjecting the actual will to the general will, at the same time retaining the former. Inherent in this is the fact that Rousseau considered human beings as an end and not an instrument of others. This is reflected in his renunciation of Aristotle’s defence of slavery as ‘men can only be slaves by nature if they have first been made slaves against nature.’⁵⁹ Rousseau’s claim for ideal rights is aimed at justifying that rights cannot be based on external criteria but what emerges from the will of the individual.

T. H. Green, the English idealist thinker, understands right as a power of acting for his own ends … secured to an individual by the community on the supposition that it contributes to the good of the community. He sees right as power, as capacity or empowerment to act for certain ends that individual seeks. This is the moral claim of an individual and this moral claim must be recognized and accepted. Self-realization and self-fulfilment of moral nature of human beings is the primary concern. Moral claims of men ought to be recognized as rights, if man is to fulfil his moral character. Green’s conception of rights, as explained by Barker, is reflected in the sequence: ‘human consciousness postulates liberty, liberty involves rights, and rights demand the State.’ Green makes ideal demands of moral development of human personality as the basis of state’s recognition of rights. Rights must provide external social and community based conditions for moral freedom of man. In Green’s scheme of things, consciousness of the community is the basis of rights and ‘the State alone is the source of rights’. In brief, Green says that individuals have moral claims based on requirement of self-consciousness and self-perfection; these claims should be recognized by the community as part of the common good; and these must be reflected in the recognition of the state as rights.

Harold Joseph Laski supports claims for the right on the basis of ‘fulfillment of the social purpose of human personality’. This is the basis for constructing ideal rights against which the performance of states in maintaining rights can be judged. In his A Grammar of Politics, Laski says, ‘Rights, in fact, are those conditions of social life without which no man can seek, in general, to be himself at his best.’⁶⁰ The criterion, ‘to be himself at his best’, constitutes a claim for moral or ideal social conditions and these can be ensured only when rights are provided for. Laski argues for the moral and ideal foundations of rights. Further, he grounds moral and ideal rights in the wider public and social character of rights. He says ‘I cannot have rights against the public welfare, which is intimately and inseparably associated with my own.’⁶¹ This means rights and duties are inseparable and are conditions of common welfare and enjoyment of rights.

Laski in his A Grammar of Politics has categorized rights into two categories: general and particular rights. In the category of particular rights he includes right to work, right to adequate wages, right to reasonable hours of work, right to participate in management, right to education, right to political power, right to freedom of speech and expression, right to freedom of association and public meetings, and limited right to property.

Ernest Barker, in his Principles of Social and Political Theory describes rights as secured and guaranteed conditions of development of the capacities of personality. However, rights to be distributed amongst the people require certain principles of distribution, which he calls the principle of distributive justice. According to Barker, there are three such principles—liberty, equality and fraternity—which are ‘principles of distributive justice.’ Rights based on principle of liberty are those rights which the state confers on the consideration that each person is a free moral agent and capable of exercising and enjoying rights. Right based on equality principle means right of equality as legal person; for example, right of equality in matters of justice, taxation, offices of public employment. However, for effective legal equality Barker suggests achievement of equality of personal capacity such as education, economic resources and social position. He invokes the principle of fraternity to argue for those rights, which provide common equipment—material and mental, and are necessary as common background and basis for individual lives. Barkes would like to include, right to education, right to public assistance, right to facilities such as library, roads, etc., in this category. He treats distributive justice as the primary social and political value grounded on the moral value of personality and the development of its capacities.

Thus, in organizing political society and in distributing values such as rights, liberty, equality and justice, Barker would like that criterion of ‘the moral personality acting and developing its capacities’ should be used as the ‘supreme value’. He admits that there could be two sources from which rights will be derived: (i) the source of individual personality as condition of its development, and (ii) the source of the State and its law as secured and guaranteed by the action of that law. The idea behind differentiating two sources of right by Barker is to show that rights derived from only one of the sources can at best be termed as ‘quasi-rights’.⁶² He would like that the recognition and distribution of rights follow the principle of distributive justice.

R. Dworkin in his book Taking Rights Seriously has also defended rights as moral entitlement. According to his view, ‘the status of a right therefore entails that a person is both entitled to stand on his own right and to require others to be duty bound to respect it.’⁶³ Thus, moral claim of the individual also entails moral obligation on the part of others. In fact, the idea that rights are possessed by human beings by virtue of their being human, leads Dworkin to argue that ‘the state owes duties to treat its citizens with equal concern and respect.’⁶⁴ Dworkin would like the state to provide rights that respect the personality of each and is based on their inherent dignity.