The Ethics of Human Rights (45): Is There A Right To Do Wrong?

Absolutely, there is. People have a right to vote for incompetent politicians; to express hatred; to organize hate groups; to insult and mock people; to burn books etc. All of these things are wrong in most plausible conceptions of morality, and yet they are part and parcel of human rights, and should be, to the extent that they don’t cause rights violations. Does this make human rights wrong? Objectionable? No it doesn’t, at least not necessarily. Human rights are objectionable if they have bad consequences, but only bad consequences in the sense of rights violations. Hence human rights are objectionable if they produce violations of other rights or the rights of others.

Some of the examples I just gave of the use of human rights may result in bad consequences. Hate speech can harm people’s rights. However, it’s often extremely difficult to measure the consequences of rights. For example, bad consequences can produce good consequences: e.g. allowing people to produce hate speech can convince a lot of people of the unattractiveness or disadvantages of certain ideologies.

Still, no matter what the consequences of the human rights are, we’ll still be stuck with differences between human rights and morality because some of the consequences of some rights will be clearly immoral. The two will probably never completely overlap. Some of the uses of human rights will produce outcomes that are a net negative from a moral point of view, even in the long run. So how should we react to people exercising their rights in an immoral way and in a way that produces immoral outcomes? It’s difficult, at first sight, to contemplate the use of morality to tell them to stop, since they are exercising their rights. However, rights are seldom absolute and can be limited if necessary. It depends on the nature of the immoral outcomes of the use of human rights. When we’re talking about an outcome that is immoral because it offends or hurts the feelings of people, the justification to do something about it is a lot less strong than when we’re talking about an outcome that is immoral because it violates the rights of people. In the latter case we should act and try to find a balance between the rights of different people, namely those people exercising their rights in an immoral way and those suffering the consequences of this exercise. In the former case, our actions should probably be limited to persuasion, education etc.

Another argument in favor of a right to do wrong does not focus on consequences. Rights entitle us to make our own choices, and making your own choices is a moral good in itself. If this moral good leads to immoral choices and these choices are immoral because of the negative consequences for other people, then it’s not necessarily those consequences that are most important. If we force people to do the right thing, we’re taking away their right to make their own choices, and we’d also be acting immorally. Hence, there’s a conflict between two moral maxims, and it’s not obvious that the maxim that says we should limit negative consequences for others is always the most important of the two. It depends on the harm done by those consequences, and the degree of choice limitation that would result from trying to avoid those consequences.

No matter what we do, there will always be cases of rights that result in wrongs, just as there are moral wrongs without corresponding rights (keeping promises is moral but not a right; the same is true for telling the truth, helping friends, being faithful to your spouse etc.). Of course, many actions are both morally wrong and a violation of rights, or both morally right and respectful of rights, so we shouldn’t make too much of an issue of the right to do wrong. But still, it is an issue and it’s good to know that it’s an issue.

Does the existence of a right to do wrong imply that rights are divorced from morality? Well, it makes it a bit harder to argue that rights are merely a subset of morality. But it doesn’t mean that we should go to the other extreme and say that rights are an exclusively legal matter separated from moral concerns. That extreme would land us squarely in the territory of legal positivism, or the theory that states that we only have those rights that are recognized in law. And that’s not a pleasant territory since it makes it impossible to challenge deficiencies in the rights recognized by the law. In order to challenge those deficiencies, you need a notion of moral rights, rights that are not yet (fully) recognized by the law (there wouldn’t have been a Martin Luther King in the land of legal positivism for example). But in order to have moral rights, rights have to belong to morality, and it seems that a right to do wrong makes this belonging problematic. However, we can anchor rights in morality by arguing that morality is more than the teaching of what we should or shouldn’t do. We just stipulate that rights talk belongs to morality, and conflicts between elements of morality – in this case rights and wrongs – are nothing unusual.

More posts in this series are here.


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