5 December 2006
Human Rights & Wrongs: Exceptionless Moral Principles
By: Prof. Cristóbal Orrego— 2006-2007
Prof. Cristóbal Orrego is Professor of Legal Philosophy, University of the Andes, Chile Seminar on Tuesday 5 December 2006
Thank you very much for inviting me to address this seminar of the Thomas More Institute. Thomas More is, among many other things, the Patron of my law school in Chile which makes me especially pleased to accept your invitation.
I shall describe the problem we have with reasoning in terms of ‘human rights’ and in speaking of ‘human rights’, and I shall then try to outline the classical approach to this difficult question. Connected with it is the problem of adjudication between competing human rights – the fact that it is often not easy to find a clear-cut argument in favour of one or other human right when they seem to collide and to be contradictory. But, in order to facilitate understanding of the issues, I shall first tackle four ‘sub-problems’, or controversies, in the history of legal philosophy relating to the very concepts of ‘rights’ and ‘human rights’.
The first of these is the controversy on the history of the concept of human rights. Some, following the scholarly work of the French legal philosopher Michel Villey, believe that the very concept of ‘rights’ as subjective powers of the individual to require something from others is modern – having its origins in William of Ockham – and that it has no correspondence in classical works, whether in Roman law, Aquinas or Aristotle. Other scholars, for example John Finnis, argue that, even if the words ‘rights’ or ‘human rights’ were not used, the concept of ‘human rights’ – that is, something equivalent to what we now call ‘human rights’ – was indeed present before.
This controversy is very significant, because those who think the idea of ‘human rights’ to be completely new tend to identify ‘rights’ in opposition to ‘natural law’. If, therefore, they have grown up in a tradition for which natural law is important, they will tend to think this new idea to be undermining the very concept of a ‘law of reason’ or of natural law. There are, in fact, some ‘modern’ writers who conceive of ‘rights’ as opposed to the law – for example, Thomas Hobbes. Those, on the other hand, who share Finnis’s view will think of ‘human rights’ as just another way of conveying the content of classical ‘natural law’.
The second controversy concerns the very meaning of ‘human rights’. This is more difficult to resolve, because some have tried to convey by means of the expression ‘human rights’ all the ancient content of ‘natural law’. This comes out very clearly in the Catholic Church’s teaching on social issues. The first Pope, however, actually to use the expression ‘human rights’ was John Paul II. Previous Popes had spoken of ‘the essential rights of the human person’, ‘fundamental rights’, and so on – and of course there were Popes in the age of the French Revolution who simply condemned the very idea of the ‘rights of man’, as it was loaded with a baggage of revolutionary ideology. If we are faced with so very broad a scope of possible meanings – from the revolutionary rights of the French Revolution right up to John Paul II and all those today who defend the content of human rights as somehow in harmony with classical natural law theory – it is clear that the use of this concept to solve practical issues is fraught with difficulty. When a concept, word or expression has too many variant meanings, it is clearly difficult to make use of it to reach agreement.
Let me offer an example of this. You are probably aware that Jacques Maritain proposed an argument about the different foundations of human rights in the context of the drafting of the ‘Declaration of Human Rights’ in 1948. In a nutshell, his argument was that even if there was no agreement about what the foundations of human dignity are, and on the underlying reasons why basic human rights should be respected, a practical agreement might be reached from differing points of departure, commitments and ethical/metaphysical views. This ‘practical agreement’ was to produce the ‘Declaration of Human Rights’. Many at that time thought this approach correct – although there was disagreement on many fundamental matters, practical aspects were also important and agreement should be sought on them. What they did not expect was that disagreements about fundamentals were to affect the way human rights would be operated in practice.
In 1991 John Paul II published his Centesimus Annus and in that encyclical, among many other subject-matters, he lamented the striking fact that the century which had seen the writing of so many declarations on human rights had presented also the greatest violations of those same human rights. Some might see a paradox here, but I believe it a very common dynamic in legal issues – the issues on which we see most legislation are precisely those which are working least well. Since we tend to have faith in the power of law, we create more and more rules in pursuit of a solution to the problems.
The third controversy relates to the usefulness of ‘rights-talk’ to guide moral, political and legal reasoning. Some think it very useful because in our culture, which is a culture of rights and of demands made by individuals against other individuals or against the state, to frame a problem in terms of ‘rights’ implies giving it real importance. For instance, if I say that children ought to be born within marriage, I am imposing a duty on adults, a duty which may be the object of argument. But if I say children have a right to have a father and a mother united in a long-term commitment, the issue changes: now I am speaking about protecting children, not just about the duties of adult people as to how they should organise their lives. Similar examples may be adduced in relation to other personal rights.
But, while rights-talk is a means to put significant moral force on one side, so also the other side of the argument may be framed in terms of rights. For example, one might claim that having sexual relations outside marriage does not automatically imply an intention to violate the rights of possible children, and that this corresponds to a right to sexual autonomy. When using this rights-talk we tend to create a ‘clash’ of rights, one against another, in the attempt to drive home our political and legal reasoning.
The fourth controversy, linked to the previous one, is on how to adjudicate between competing claims based on differing human rights. There are several ways of approaching this. One is that of ‘balancing and weighing’: it implies considering various rights and putting them on the scales in order to reach the conclusion that, in the specific situation at issue, one right is more pressing than any competing rivals. So, for instance, we may allow the burning of American flags because the right to freedom of expression ‘weighs more’ than the interests of a state, not framed in terms of human rights, to protect its own honour. The core of this strategy lies in finding reasons for considering some rights ‘weightier’ than others.
This contrasts with an approach based on what might be termed a ‘hierarchy of rights’. The latter would hold, for instance, that the right to life can be considered in general as more important than the right to property. However, such an approach cannot avoid some kind of ‘balancing’, too. If we consider the case of the use of drugs against AIDS, we see that if we favour systematically the right to life and pay no attention to the property rights of those who invent the drugs – stating that ‘life matters more than property’ – then the companies in question will cease to do the research needed for production of the drugs. A balance must always be sought. Similar issues arise when balancing the right to life and the right to sexual integrity, in relation to the possibility that a woman who is being raped might kill the aggressor.
A second category of approaches has ‘deontological’ approaches triumphing over ‘consequentialist’ ones: i.e., a right should always outweigh any calculus of consequences of action, and therefore a right may not be breached in virtue of any potentially positive consequences of such a breach.
I have presented a variety of approaches, and I shall devote the rest of this paper to explaining why approaches that seem to reason in terms of opposed rights are not compatible with clear reasoning about what to do. This leads us to the classical approach, according to which practical reasoning is not (directly) about rights, nor about duties, but about actions to be done or avoided. We reason about what to do taking into account our duties, the rights of other people and our own rights.
Rights can be the objects of actions, but we must reason in terms of what kinds of actions we do. The rational guide of action towards the good (the common good) is the law, but the law – both positive and moral – refers both to ends (human goods) to be achieved and to types of action related to those ends, in order to command or to forbid or to permit types of actions according to whether they are considered rationally necessary, or directly contrary to or compatible with those ends/goods.
From the point of view of this classical position, it is mistaken to reason directly in terms of ‘rights’, because the abstract enunciation of the ‘right’ does not tell us which action we must do. For example, if we just oppose ‘liberty’ against ‘life’, we do not know when we can risk our life in order – in the case of a soldier – to defend the liberty of a country. The mere opposition of rights does not tell us what kinds of actions are reasonable in different circumstances.
For what, then, are rights useful? I shall approach this issue in three ways.
First, a right – in the classical view – is that-what-is-due-to-another because he has a title to that object (i.e., that it belongs to him for an ascertainable reason). ‘My life’, for example, could be called a right in this sense, as it belongs to me. The right may be the appropriate matter of an action, and, in this sense, the knowledge of rights in general and in every concrete situation is a precondition for some acts of justice. We should not be able to reason morally on how to deal with a person who may seem aggressive without knowing if he is attacking us or simply approaching in a hurry to warn us of some impending danger. We must know that this person has a right not to be killed by our actions. A similar rationale applies to marriage. I may know in general that it is against the marital rights of a person that I commit adultery with his or her spouse; but, if I do not know whether or not the person in question is married, I cannot know whether or not I am committing adultery .
Secondly, the exact determination of that object depends on the rational foundation of the right, i.e., on the natural law or the law of reason or the directive force of practical reason (in conjunction sometimes with more concrete entitlements), in such a way that the reason itself needs to identify specific types of actions that are due or forbidden or permitted. This is the very core of my presentation today. We need to identify types of action. Whether a specific action I am doing can be qualified, for instance, as ‘stealing’ depends on the description of the action and on the property rights of other persons over the specific object. In the case of ‘murder’, I can grasp whether or not someone is committing ‘murder’ by considering the general definition of ‘murder’ and how that action relates to the ‘law of reason’ forbidding certain types of killing but not others.
My third point is that rights-talk may be useful (and in our culture it is almost indispensable), but not for detailed and precise reasoning. Rather, rights-talk may be useful in formulating the abstract the rules of the natural law and the objects of justice , as well as the conclusions of some practical reasoning about justice. Human rights are not useful for conducting practical reasoning in hard cases because they do not focus on the relevant types of action but rather on the types of goods (human goods) protected under the respective type of right. We can, therefore, express natural law in terms of rights in a very abstract way, and we can express conclusions in terms of specific obligations or prohibitions in specific situations, but in the process of moving from the general enunciation of human rights to conclusions we need to reason in terms of ‘kinds of actions’. Everyone who has had to deal with difficult questions about human rights has been confronted with the definition of ‘types of actions’ that are against a given type of human right.
At this stage, the question arises as to whether there is any ‘absolute’ human right. In this respect, a distinction must be drawn.
If by ‘absolute’ we mean a right that in its abstract or universal formulation (as it appears in written constitutions and human rights charters or declarations or treaties) admits of no type of action against it, triumphing in an unlimited manner over any possible contrary action by the state or by other persons, then there is no ‘absolute’ human right whatsoever. This is because the formulations in declarations of human rights are abstract and, unless they refer to specific types of action, they themselves contemplate limits. For example, although ‘freedom of expression’ is protected as a right, it is not an absolute right in this sense as it may be limited by considerations of public order and by the various requirements of living together in a just and democratic society. Neither is the ‘right to life’ absolute, because, if it were so, it would always be illegal for policemen or soldiers to kill. Rights to privacy and to freedom of religion or conscience admit limitations in this sense because the formulation of the right is too generic and ‘open’.
If, however, we style ‘absolute’ a right the formulation of which refers to a specific kind of human action, then there are ‘absolute human rights’. In this case, we should not state that ‘everybody has a right to life’, but rather ‘everybody has the right not to be intentionally and directly killed’, which would exclude killing in self-defense, killing in the case of war, and capital punishment. This answer depends neither on the theory of rights nor on any specific type of right but on whether or not the philosophy of action (or ethics) can identify specific types of actions that are always evil, wrong, unjustifiable, forbidden by right reason (or natural law). We must, therefore, reflect on whether or not we can describe in the abstract actions that may be evaluated in such a manner, namely, the so-called ‘intrinsically evil’ types of actions – for example, ‘murder’, ‘perjury’, ‘theft’, ‘kidnapping’.
This problem confronts theorists of various kinds. The most extended position in ethics in general today is what is now called ‘teleological ethics’ – which includes two different approaches, ‘proportionalist’ and ‘consequentialist’. It argues that no type of action can be described in the abstract and considered always wrong: we must always consider the concrete situation and whether the action produces more good or evil. Some proportionalists say that the names of these actions (‘murder’, ‘adultery’, ‘lie’, ‘perjury’, ‘theft’) are analytical names which just mean ‘unjustified actions’, and that the very idea of ‘unjustified action’ is built into the concept. We can know whether an action is, e.g., murder only after knowing that it is not justified in the concrete situation. The abstract prohibition of murder does not offer any rational guide to our practical deliberation about what to do. According to this reasoning, we might decide to kill without apparent justification and state that ‘history will vindicate us’ – that future events will prove our act to be right and justified, whereas it would be impossible to say before the action takes place that it is right.
The classical position would criticise this argument by arguing that concepts such as ‘murder’ and ‘theft’ are names of intentional act-descriptions, which can be understood before knowing whether or not they are good or bad or ‘intrinsically evil’. This is why there has been a discussion in history about this very concept of ‘intrinsically evil’ as applied to actions such as ‘adultery’ and the ‘killing of innocents’. Elisabeth Anscombe offered an anecdote about Australian aborigines who were told about the absolute prohibition of murder: one of the elders asked the reason for this, claiming that to kill is ‘the business of man’. She notes that he understood perfectly the concept of ‘murder’, but could not share the conviction that it is always wrong. According to the classical position, we can know that a proposed action is murder because, whatever the situation or the context, the act-description of what we envisage as a possible object of intention (or of election) falls under the generic type of ‘murder’ as defined irrespective of additional circumstances or further ends. So this type of definition of action does afford in advance a partial guide to practical reasoning about what to do (or more precisely, about what not to do). In these cases at least, those ‘human rights’ that have as objects these precise kinds of actions can be offered as reasons to omit actions against them in every possible concrete situation, and so they do work as shields against injustice.
In the consequentialist/proportionalist way of reasoning, we cannot appeal to human rights as shields against injustice. A classical argument would enable us, for example, to refuse to commit an action on the basis of the belief that it is against natural or rational law or human rights principles. Consequentialists or proportionalists, on the other hand, may question or reflect on the validity of calculations of the impact of that action, but would have no pre-fixed guidance for their acts – a specific course of action would be against human rights only if calculations were made wrongly.
Finally, if we think of those types of actions and agree that they are always morally wrong or illicit or evil, then the formulation of ‘absolute’ human rights has little to do with the abstract formulations of present-day human rights-talk. I do think, however, that in the absence of a better alternative, and insofar as the language we use about human rights does not deteriorate further, we must continue to use this language to convey some elements necessary for practical reasoning, to state the ‘general’ type of human right under which the specifically defined type of ‘absolute’ right falls, and to state the concrete conclusions of our practical reasoning about what is ‘absolutely’ due to others in action.
The preceding reflections refer primarily to ‘moral’ or ‘natural’ rights, but they can be applied to ‘legal’ rights insofar as they are defined by legal sources in a manner compatible with this classical theory of action.
Matthew O’Brien: I should like to develop just two points in the light of your paper. Although they disagree somewhat with your position, they may also be seen as developments of suggestions you made.
First of all, in regard of your reservations about the state of contemporary rights-talk, it might be helpful to broaden the critique and query more generally the unthinking adoption of legal concepts into ethics that has proceeded throughout the tradition of political liberalism and of contemporary moral theories. ‘Rights’, historically and in everyday use, remains a legal term, and we know what it means in law. When it made its way into ethics, it was accompanied by an emphasis upon concepts like ‘legislation’, ‘ownership’ and ‘sovereignty’. Kant wrote of ‘legislating the moral law for oneself’. Libertarians talk about ‘self-ownership’. In liberal political theory, we have the idea of the ‘sovereignty of the individual’. These concepts have a home within law or politics, where we know what they mean. I suspect, however, that when they are translated into ethics immediately and without clarification of their precise meaning, what is really going on is the transposition of words well-endowed with psychological and rhetorical force into an alien context where they may lack defined meaning. It is like taking the currency that is used in one country into another – it is no longer ‘money’ there, even though it may look like it.
I would further highlight the distinction between ‘modern’ views of what rights are and the ‘classical’ conception. If I had to define it, it seems to me that in contemporary rights-talk a right is a circumscribed sphere of activity in which the individual has complete autonomy to decide what he wants to do, whereas in its classical sense, as Prof. Orrego has emphasised, a ‘right’ is a quasi-general specification of what the common good demands should be given to an individual. Behind this distinction there is the debate in political theory about whether it is the ‘right’ or the ‘good’ that has justificatory priority. Contemporary liberalism suggests we can produce a scheme of rights quite apart from a rich conception of what a human being and a human community are. In the light of some of the problems Prof. Orrego has highlighted, it is fairly clear that any specifications of rights, since in practice they need prudential application, always require a background theory of what the common good is. The aspiration to provide a conception of ‘rights’ apart from a rich conception of human well-being is, therefore, not a promising one.
The second general point I should like to make relates to the latter part of the paper, and to ‘action theory’ or action as the real location for resolving questions that arise about human rights. This seems to me to be right, but the difficulty is that ‘action theory’ or the ‘philosophy of action’ is perhaps one of the most difficult and confusing areas of philosophy. How can a right function as a real marker for deliberating what we are to do? A philosophical investigation into the nature of action shows that there are innumerable action-descriptions which can characterise one and the same action. A ‘right’ is usually just an action-description: for instance, article 13 of the United Nations ‘Declaration of Human Rights’ states that ‘everyone has a right to leave any country, including his own, and to return to his country’. This is a general description of an action. The difficulty is that, at that level of generality, the description could apply to an infinite number of horrific actions which we would not think are protected by some special right – for example, a murderer evading justice by escaping from his country. One might try to state the right more precisely, but then the problem would be that we should no longer have a general description qualified for inclusion in, for example, a constitution. A right is helpful given a background of shared moral, cultural or legal systems, but in the absence of that I do not think that it is very helpful for guiding action.
An historical instance of this issue in practice is the debate in the United States prior to the ratification of the Constitution about whether a constitutional bill of rights should be adopted. The political theorist Hadley Arkes has an excellent discussion of this issue in a chapter of his book called Beyond the Constitution. As Arkes points out, a well-intentioned bill of rights can have pernicious consequences on a political culture. Having certain rights privileged above others by being enumerated in a constitutional document encourages political or legal disagreements to centre around which opponent can do a better job of rhetorically re-describing his position in terms of a right somewhere in the protected list, rather than focusing debate on what counts, namely the promotion of that balanced integration of the various moral and political considerations which make up the common good. In the United States there are interminable debates about whether nude dancing can be somehow understood in terms of ‘speech’, because if it could, then according to reigning jurisprudence it could be brought under a constitutionally protected class of behaviour, the ‘freedom of speech’. Constitutional law thus becomes political lexicography, where we debate which actions can be re-described so as to fall under other actions, but nobody asks the question of whether the disputed practice contributes to the wellbeing of society or the individuals involved.
Prof. Cristóbal Orrego: Thank you. I shall confine myself here to stating that this has significantly complemented, supplemented and also ameliorated what I have said in my paper.
Russell Wilcox: Prof. Orrego made a brief comment at the outset suggesting that it is precisely when society starts to break down that enumerated rights tend to proliferate. Since the medieval synthesis started to crumble, there has been a gradual shift away from an emphasis upon a non-individualistic, metaphysically based natural law, and from a ‘rich’ conception of the good, towards an emphasis upon positive law embodying the unrestricted will of sovereign legislative authorities. Is it fair to say that some modern-day manifestations of this positivist shift display a tendency, particularly after the horrors of World II, to cloak themselves by hijacking the terminology of the natural law, as a way of capturing some of the moral weight that its normative concepts once had, in order to achieve specific strategic objectives which are far removed from the traditional, natural law concepts of the common good?
Matthew O’Brien: I think would I agree that this might be true, although I think it is difficult to discern the extent to which rights-talk actually originated in an Augustinian-Thomistic context and therefore to determine whether the phenomenon counts as a ‘hijacking’.
Russell Wilcox: Of course, but there is, in any case, a prudential issue to be considered. If what I suggest is correct, should we nonetheless argue in favour of rights, though on a more ‘traditional’ basis? In other words, faced with a situation in which everybody talks of rights, do we simply accept the terms of the discourse and try to mould it from within, or do we rather try to redefine the discourse by explicitly drawing it back to some natural law or virtue-type basis? Is rights discourse in fact ‘so broken’ that trying to engage in rights-talk, even on the basis of a more robust theory of the human good and of human action, actually serves to undermine the very project that we might wish to establish?
Prof. Cristóbal Orrego: Let us simplify the picture by allowing that there was a common view in the Middle Ages. I am by no means sure about this, but we could at least argue that there was no such division as we have before us today. Starting from such a context, you suggest that those who talk of human rights today with a content distinct from the classical one have ‘hijacked’ the idea. I tend to see things in the opposite way. The real expert in hijacking concepts and giving them new meanings is the Catholic Church. For example, the month of May is now devoted to the Blessed Virgin Mary, but in the past it was a month devoted to fertility rites. This is mentioned by Cardinal Newman in one of his writings. The Church did something similar with the concept of ‘human rights’. It was first articulated in political thinking to express the liberty of man against something oppressing that liberty, the oppressor of that liberty being conceived at that time as the Catholic Church. Two hundred years later, the Church ‘hijacked’ the concept of human rights and began to use it in order to defend classical concepts, as may be seen in Pope John XXIII’s Pacem in Terris and in the writings of Paul VI and John Paul II.
Russell Wilcox: We might also argue that, since the Church had to deal with pagan culture as well as heretical strands of thinking emerging from within, it sought to regain ground by using some of the strategies that had proved effective in its opponents’ hands. We might, in fact, see here a form of dialectic movement.
Prof. Cristóbal Orrego: Yes, I do think ‘dialectic’ would be better than ‘hijacking’. I would add also that the Church is not a ‘philosophical machine’ but a pastoral institution. It must, therefore, speak the language spoken by people. If everybody is speaking of ‘rights’ in a good sense, meaning, for example, that we must not kill children, discriminate against persons on the grounds of race or social origin, etc., the Church may start to speak about a ‘right to non-discrimination’ and a ‘right to life’. I see no scandal in this.
Let me tell here an anecdote which is, in my opinion, very illuminating. There was a congress held at the Vatican in 1996 to commemorate the first anniversary of the publication of Evangelium Vitae. In that congress there was a presentation by Mary Ann Glendon on ‘sexual and reproductive rights’, in which she showed how these new ‘rights’ run counter to ‘classical’ human rights, to the Declaration of 1948, and against the right to life and family rights. I put it to her, ‘You are now in the Vatican exposing sexual and reproductive rights and condemning them in an absolute way. Catholic intellectuals in the age of the French Revolution did the same against the rights of man, but one hundred years later the condemnation was softened, and in two hundred years the position changed, if not in its content, at least in its language. Should we then condemn so strongly this language of sexual and reproductive rights when perhaps in fifty years a Pope might speak in their defence interpreting them as a part of family rights and as part of the ‘right to life’ – because, after all, ‘reproductive’ does imply that mankind is in the business of reproducing itself and not in that of killing itself?
Russell Wilcox: Because he has been forced to.
Prof. Cristóbal Orrego: Because, in fact, language might so evolve that many people would be speaking of sexual and reproductive rights. The only thing the Church could then do would be to fill this language with its own content. Prof. Glendon’s answer, by the way, was not that I was wrong. Rather, she simply said that we do not know how the language is going to evolve. Perhaps what I suggested is going to happen. We simply do not know. What we do know is that today this language has this meaning.
Jana Tutkova: It seems to me that this is exactly the challenge we face today: namely, to ‘un-twist’ the language. By referring to ‘reproductive rights’ we mean, as things stand, ‘un-reproductive rights’, because such is, for example, the so -called right to abort the foetus or the right to contracept in order to disable conception and embryo implantation. In the same way, so-called sexual rights are in fact asexual when non-sexual reproduction is being promoted. The asexual ideal of the ‘androgyne’ – a person stripped of biological sexuality – is part of gay-rights and feminist propaganda. I agree with Russell Wilcox that when, in the third generation of human rights, we speak of a ‘human right’ to abortion – something actually inhuman – , a hijack has taken place.
I should like to challenge Matthew O’Brien on a related matter. The notion of the ‘common good’ seems to me exactly what needs a new content. Its content has been hijacked if we consider, for instance, the manner in which it was used in Slovakia (from where I come) and in the whole Communist world. There, in the name of the ‘common good’, we had to give up the right of private property. Today, we might think of China where the United Nations promotes for the ‘common good of the planet’, with a view to stabilising populations, abortion and one-child policies. The very idea of a ‘common good’ seems not to offer a clear answer to the question of where we are to find a solid basis for the concept of human rights. John Paul II provided an answer by saying that the ‘common good’ for society is to be derived from human dignity. Could we base the whole concept of human rights on that?
Andrew Hegarty: Do you refer to ‘human dignity’ in opposition to the ‘common good’?
Jana Tutkova: I am posing a question: how can we define the ‘common good’? Is it a matter of respecting human dignity, or should we adopt some practical or consequentialist meaning to achieve a particular common good?
Matthew O’Brien: The experience of Central and Eastern Europe shows that the pragmatic choice of which language to adopt is going to depend on specific, relative circumstances. In the United States, for instance, introducing the concept of ‘common good’ would be helpful because of the overwhelming emphasis on the individual that is already in place. The general lesson may be that there is no idiom that is incorruptible. This is why it is important to guard the use of language, as George Orwell argued in the early twentieth century when he saw in these dynamics a potential staging ground for totalitarianism. The larger point that I was making about the common good is that, even if for pragmatic reasons you wish to avoid that language, there is still, philosophically speaking, something shared within the community that is over and above the aggregate sum of the members of that community. It is this ‘thing’ that serves as a regulative standard in determining how to treat individuals. You can call it something other than ‘common good’, but, philosophically speaking, this is what makes certain courses of political action correct and others not.
Prof. Cristóbal Orrego: I should like to add that even the concept of ‘human dignity’ has already been corrupted. In debates on euthanasia, for example, one of the main arguments adduced in favour of it is ‘the dignity of the human person’. We must fight, therefore, both for the ‘substance’ and for the language. There is, of course, the risk that some expressions may have been so corrupted that we cannot use them anymore. We can find an example in Aquinas. In writing about the end of law he uses in many passages the concept of ‘common good’, but he also mentions often ‘general utility’. After Jeremy Bentham, however, this expression cannot be used any more because it might be read as endorsing utilitarianism – something completely contrary to the usage of Aquinas. We do not know what is going to happen to the language. I am, I fear, rather pessimistic about this. The language is very corrupt, and the struggle will be very hard.
Gabriel Olearnik: It seems to me that the use of ‘common good’ or of individual ‘rights’ is context specific. In certain circumstances, you cannot talk of individual rights – for example, in the environmental sphere. But, as has been suggested, we can bring in some common good arguments and use them productively in rights arguments which otherwise lack that dimension. In this country, to bring in a local example, we have seen a prisoner in gaol who wanted to have pornography brought into his cell. Those who favoured his being allowed to do so used arguments drawing on either the concept of freedom of expression or the right to a family life. If, however, the matter is argued on the basis of the common good, it is difficult to see what possible common good is in play. The whole issue implodes.
Matthew O’Brien: One thing that occurred to me during the paper is that issues of honesty can also arise here. If a concept has a fairly stable meaning in contemporary discourse, we cannot just take it to mean what we want it to mean by fiat.
Prof. Cristóbal Orrego: In the Constitution of Chile there is included the ‘right to live in a healthy environment’. This just goes to show that almost anything can be stated in terms of rights. In Chile now people fight contaminations in terms of individual rights simply because the author of the constitution framed this issue in these terms.
Gabriel Olearnik: In English we speak of a ‘Henry VIII clause’ – an enabling clause that permits the production of any type of legislation on the top of it. Because rights-talk tends to be framed not in terms of specific objects but in very general terms, over time, as things go into courts, these concepts lose all the meaning they originally had. They spill out of the sphere in which they were originally framed and expand into areas in which they have almost no meaning.
Andrew Hegarty: Turning the conversation somewhat, I wonder whether your experiences in Chile, in Germany and here in Britain would lead you to the conclusion that language is more corrupted in one place or another, or that approaches to legal philosophy are ‘healthier’, or less susceptible to corruption, in some places than in others.
Prof. Cristóbal Orrego: In Britain Parliament is still sovereign in the sense that it could override any right.
Andrew Hegarty: It could do that, I suppose, only by tearing up its treaty obligations.
Prof. Cristóbal Orrego: In Germany the Constitutional Court can simply disallow specific acts of the government or of the parliament. The same happens in Chile today, where the Constitutional Court has stopped legislation which it sees as contrary to some right enshrined in the constitution. I see this difference; but in terms of language I see very little difference. People speak about human rights in the same way in Germany, in Britain, and in Chile. Perhaps in Chile there is rather more awareness that ‘sexual and reproductive rights’ imply abortion, and we have just stopped a project for abortion in our parliament. Chile is certainly much more ‘pro-life’ than Germany, or even Britain, where speaking about abortion tends to be somehow taboo.
Russell Wilcox: The situation in Britain is worse than that in Germany.
Prof. Cristóbal Orrego: I am not so sure. I have seen more ‘pro-life’ people speaking openly in Britain than in Germany.
Jana Tutkova: Some of them were in fact arrested.
Prof. Cristóbal Orrego: Well, that means that they were more valuable people. No one gets arrested in Germany.
Jana Tutkova: Perhaps that is because in Germany freedoms are more respected.
Neil Pickering: You spoke of the deontological challenge to consequentialism. Would you say that the root of the consequentialist/proportionalist challenge to deontology is the inversion of freedom and truth?
Prof. Cristóbal Orrego: I think many consequentialists do not in fact oppose freedom and truth. They think, rather, that the true way of knowing whether an act is good or bad, and also whether or not our freedom should be guided by these conclusions, is precisely the calculus of consequences – or, in the case of the crudest form of consequentialism, which is utilitarianism, the calculus of pleasures and pains. I do not think that Bentham, for example, looked upon freedom as opposed to truth.
Matthew O’Brien: I would say both ‘yes’ and ‘no’. What consequentialists, utilitarians and some deontologists like Kant have said is that truth does not apply to the content of one’s preferences, emotions, etc., but it does apply to the scientific and natural world. There is room here for a certain kind of moral truth but only in a limited way: truth applies to the rules of instrumental rationality – whether that is understood as a maximising principle or the categorical imperative, for instance – but not to the actual plans and projects that people want to pursue. The resulting moral theory usually endorses the sort of freedom to do whatever one wants to the extent that it does not impede others’ wants. So such theorists do think it is objectively true that, for example, utilitarianism is correct. There are also people who step back from that sort of claim and aim rather at grounding morality in a ‘neutral’ agreement on shared rules of conduct. Although all these views are sceptical about real human goods that constitute happiness for man, it is somehow inaccurate to say that for them all truth is subject to freedom.
Prof. Cristóbal Orrego: There is, however, a way in which consequentialism leads to the negation of universal truth; not to the negation of truth in ethics generally, but to the negation of universal truth in human action. This is by definition: we cannot discern good from evil in universals because we cannot make calculations without knowing the foreseeable consequences which can be analysed in concrete situations only. In that sense, consequentialism and proportionalism do lead to a separation of the freedom of the agent in the concrete situation from universal truth, simply because there are no universal truths about actions. Pope Paul VI in Humanae Vitae said that this position leads, sooner or later, to relativism. When he said that many theologians were surprised and claimed that they were not relativists. But today all of them are relativists, according to this meaning of ‘relativism’.
Russell Wilcox: To understand the bases of contemporary rights-talk, we need to look at its metaphysical foundations. Do you think that modern human rights discourse increasingly implies a form of morality which is functionally fitted to the complete ‘marketisation’ of life? This links in to the Marxian notion of ‘commodification’, where spheres of life previously beyond the ken of market are given an economic value and are thereby increasingly brought within the scope of its control. Do you think this sort of materialistic logic underlies the modern discourse about human rights?
Matthew O’Brien: I would agree if you were to reverse the order of explanation. People simply live their lives, which are subject to the market in every realm, and then they come up with a materialistic world view. It works the other way, too, but just for philosophers and a few others. In general I think that the cultural change comes first.
What is interesting is that there seems to be a widespread recognition that there is something wrong with the contemporary discourse, and this recognition is not just among those who share specific religious beliefs. For example, in the United States the language introduced by John Paul II about the ‘culture of life’ was immediately adopted in contemporary politics. It was a minor victory, since it implied that people could not express what was going wrong with the terms they hitherto had available. The concept of ‘culture of life’ did in fact change the terms of the debate.