Rights, Law, and Morality; D. Rasmussen

Their function is not to secure directly the moral wellbeing 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 wellbeing 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 Dr. Douglas B. Rasmussen is Professor of Philosophy at St. John's University and coauthor of Liberty and Nature: An Aristotelian Defense of Liberal Order (Open Court, 1991). entirely independent from morality is a mistake. But it is also a mistake to reduce the moral con cepts that underlie law to those moral concepts which provide individuals guidance in the conduct of their lives. Yet, what is the fundamental differ ence between morality and law?

Moralityand Law There is a fundamental difference between the concerns of morality and law, and an examination of the character of human moral wellbeing 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 situationis the cardinal virtue. Determining what moral virtue and goods call for in terms of concrete actions in specific circum stances can vary from person to person, and certain virtues can have larger roles in the lives of some persons than in others. Determining the appropri ate 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 considera tions that are unique to the individual. One per son's moral wellbeing cannot be exchanged with another's. The good-for-me is not, and cannot be, the good-for-you. Human moral wellbeing is something objective, self-directed, and highly per sonal. It is not something abstract, collectively determined, or impersonal. 2. Law. Law, on the other hand, is neither con cerned with determining the appropriate course of conduct for an individual in a specificcircumstance nor with teaching him what he ought to do. Rather, law is concerned with the protection of the self directedness or autonomy of individuals when they live among others. An examination of the character of human moral wellbeing will reveal why. Before addressing the question of what people ought to think or how they ought to conduct them selves, an analysis of human moral wellbeing 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 wellbeing. Self-directedness or autonomy is a necessary condition for and an oper ating condition of the pursuit and achievement of human moral wellbeing. It is necessary for any person undertaking any right action. It pertains to the very essence of human moral wellbeing and is, therefore, right for any individual regardless of the circumstances. The protection of self-directedness or autonomy must, then, be provided if human moral wellbeing 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 indi viduals must be. protected if there is to be any pos sibility 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 wellbeing is grasped only in abstraction from the specific virtues and concrete goods that a particular human being's intelligence determines as needed for the circum stances in which he finds himself. Thus, the institu tion whose aim is to protect the possibility of self351 direction should not be concerned with what is good for some individuals relative to concrete sit uations. Protecting the self-directedness or autonomy of individuals is a concern only of community life, and thus the institution that is concerned with pro tecting self-direction should be concerned only with establishing and enforcing rules of communi ty life which prohibit forms of action that use peo ple for purposes to which they haven't consented.

It should not be concerned with teaching individu als how to attain their wellbeing. An analysis of human moral wellbeing, there fore, 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 institu tion is law. Its function is to protect the self-direct edness or autonomy of individuals. ConfusingLaw and Morality Consider the claim that people have a right 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 appropri ate for everyone. They ought to be created or achieved. Yet, this claim is not too helpful in pro viding guidance to the individual in a concrete sit uation. 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 prop er "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 deter mining the proper answer. Yet, if persons have a right to these goods and services, then it is the responsibility of the admin istrators 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 352 THE FREEMAN • SEPTEMBER 1990 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 situa tion. Such specific knowledge cannot be a part of the law, or the law will lose its very nature.

Destmctionof Moralityand 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 wellbeing requires destroys the moral worth of the provided goods and services. Even if the administrators of the law should, by luck, determine what is appro priate 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 neces sary not only for enjoying the values his wellbeing requires, but they are needed for the very exis tence of these values. The needed goods and ser vices 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 mere ly what is to be distributed and enjoyed. The goods of human wellbeing are not found lying about like manna from heaven. These values cannot be val ues 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 consid er 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 pur pose 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 "pos itive" rights are to be enforced. When the law is used as an instrument for using persons for pur poses 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 indi vidual 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. D 353 FreedoDl of Speecbl Freedom of Ownership by BillAnderson O ur citywas recently in a mild uproar over the banning of the controversial Broad way musical Oh! Calcutta! The production's promoter wanted to bring the musical to Chattanooga; the publicly appointed review board for the Tivoli Theater said Oh! Calcutta! would violate the city's obscenity laws, and thus nixed its appearance.