a taste for desert landscapes

Most philosophy students and academics have become so habituated to thinking about morality in terms of rights that a “denial of moral rights” sounds to them like a rejection of morality itself. If you read what follows, please resist that thought.

To understand why I reject the idea of “human rights”, or any other variant of the concept of moral rights, whatever we call it, let us first be clear that I’m completely in favour of a wide variety of legal rights, robustly enforced by a sound legal system. For example, in the UK a pedestrian has a legal right to cross the road at a “zebra crossing”. That right exists by virtue of a legal rule which says that drivers stop (or ‘must stop’) for pedestrians. The rule is explicitly written down in black ink on page 64 of the Highway Code. This rule describes a particular kind of behaviour — namely, stopping for any pedestrian who starts to cross. As a bit of language, it consists of symbols that have to be interpreted. These symbols are quite often interpreted by courts of law (for example, a person wheeling a bike is a pedestrian, but what about someone cycling at walking speed?). The behaviour it describes (and by virtue of the context, thereby prescribes) is habitually observed by most drivers, and real legal sanctions are brought to bear against those that don’t. They get points on their licences. Some go to jail.

That big complicated legal apparatus is necessary just to create the simple little legal right that a pedestrian has to cross the road at a zebra crossing. Much more is required for more complicated legal rights — such as the right to utter one’s thoughts freely (assuming we are speaking of a legislation in which such a legal right exists, as it surely does in a few places like the USA).

My main point here is that rights are carved out by rules, in conjunction with all of the machinery required by rules to work properly, including the physical symbols the rules are encoded in, the interpretation required to assign those symbols a (workably determinate) “meaning”, and so on. Where there are no such rules, there are no rights.

We know where to look to find legal rules that create legal rights — they’re printed in black and white in the statute books. But where do we look for the rules that create moral rights? — Nowhere, because they simply don’t exist, nor does any of the other machinery needed to make rules work properly, i.e. the apparatus that make them genuine rules rather than something spelled out via some variation of Kant’s Ouija board.

People used to talk about “God’s Law” and “Natural Law”, but these were obviously part of a fantasy — a fantasy woven by the mistaken idea that morality and the law are “pretty much the same thing”. This is a backward idea. We might expect such confusion from primitive tribal societies who spend their lives imagining ghosts, and unquestioningly accepting the judgements of hereditary “chiefs” about everything. But we should expect much more from advanced Western civilization.

Nowadays, the fact that rights are carved out by rules is routinely overlooked. Why? — The word ‘rights’ is used as a substantive, as if it refers to abstract things, like prime numbers perhaps. Such a thing is thus habitually conceived of as “figure” rather than “ground”, if you follow my metaphor. The more people use the word ‘rights’ like that, and the lazier people get about asking what these abstract things are, the more firmly entrenched our new fantasy becomes. It is one of the many ways in which language bewitches our intelligence.

Even if there were some way of divining abstract moral rules out of thin academic air, a la Kant, and thereby of coming up with fairly determinate moral rights, there would still be countless further problems. Plato had a brush with one of them. (He didn’t have the concept of a moral right, so it was a “brush” rather than a direct hit.) When rights conflict, there has to be some way of deciding between them, in other words of deciding how one right should “trump” another right in this or that set of circumstances. To make that decision, something other than rights must be appealed to. With legal rights, this poses no real problem because we have law courts and a highly structured legislature. With moral rights, we have to refer to some other moral “court of appeal” than rights. But then this other court of appeal is the real place where moral questions are answered.

Plato used that argument to dispose of the divine commands theory, the idea that morality is a mattor of following God’s commands. And it also happens to drive a wooden stake through the heart of all such concepts as “moral rights” or “human rights”. These ideas refuse to die among the general public, of course, because most people are thick. But if philosophers can genuinely leave divine commands theory behind, isn’t it about time we did the same with the concept of “moral rights”?