The Ethics of Human Rights (92): Rights & the Primacy of the Right Over the Good

There’s a longstanding dispute in moral philosophy about the relationship between the right and the good. One can think about ethical matters in two ways: certain actions or types of character are required or recommended

  • either because they achieve some good (defined as a benefit, a valuable goal or an interest)
  • or because they are the right thing to do or the right way to be.

Examples of the good are wellbeing and happiness. An example of the right is promise keeping. What isn’t good may be bad, “suboptimal” or “Pareto inefficient”; and what isn’t right may be wrong or “improper”.

There’s a sense in which the right is obligatory whereas the good is merely desirable. But there may be degrees to this, and an area of overlap. Motivation as well is closer to the right than to the good. One can imagine the good being done without a single person being motivated to do it. In order to do the right thing, however, it’s almost inevitable that one must be motivated to do it. Doing the right thing accidentally or for the wrong reason isn’t a moral act. On the other hand, selfishly increasing your profit and thereby adding to net social wellbeing – through some form of invisible hand or trickle down mechanism – can be morally good.

A focus on the good is more outcome oriented and results in proposals of means deemed necessary in order to achieve valuable goals. A focus of the right is about rules and laws and produces duties and virtues. You can recognize the split between consequentialism and deontology here. This split is present within virtue ethics as well (a goodness virtue would be beneficence, while a rightness virtue would be obedience to the correct rules).

Although the notion of “right” encompasses more than only “rights”, it’s true that rights in general and human rights in particular can be said to be part of the right (other parts are the duty to tell the truth, the duty to show respect etc.). Human rights are not, at first sight, about the good; on the contrary, they trump some considerations of the good. This has been called the primacy of the right. The right constrains the pursuit of the good.

For instance, a utilitarian calculus of the highest good for the highest number of people – whatever the merits of such a calculus in general – should stop being acceptable when it requires a violation of the rights of some. In the classic example: you simply can’t kill one healthy person in order to harvest her organs for the good of 5 terminally ill patients in need of a transplant, even though doing so would achieve the highest good for the highest number of people.

Another way in which rights trump the good: rights are designed in such a way that they create a society in which people are allowed to form and pursue different conceptions of the good life without discrimination or persecution. One can reasonably assume that people have and always will have different conceptions of the good and that they should have the right to freely develop and pursue these conceptions without negative repercussions. Because rights are prior to the good in this sense – they make the creation and pursuit of visions of the good possible – they are also predominant. If the good were to be able to trump the right, we would undermine the good because one conception of the good would then be allowed to override or even destroy other conceptions. That is the inevitable result of allowing rights to be overridden. Only in a world in which we have access to the truth about the good would this be acceptable. But we don’t live in such a world. Hence we need limits on theories of the good (such as the limits on those forms of utilitarianism that allow forced organ transplants; you can come up with more realistic examples yourself).

This is the standard view of the relationship between the right/rights and the good. Even most utilitarians accept this now. I’m not arguing that this view is wrong, merely that it’s incomplete. In one important sense, the good comes before the right. We have rights because we have values that need those rights for their realization. Rights are intended to maximize the good. Of course it’s a minimal kind of good that we’re dealing with here. And because it’s minimal it can be universal. Rights promote values such as peace, prosperity, thinking etc., which – discounting for a negligible degree of dissent – are universally acceptable. Disagreements arise about the specific ways in which rights do or don’t promote these values, about the possibility that some other means are better suited for the goal, or about conflicts between goals and between means. The goals themselves are unquestioned, and one can make a good case that human rights are, in general at least, the best means we have to achieve those goals.

It’s very hard to justify human rights without recourse to prior values. Rights aren’t good in themselves. This priority of the good comes to the fore in discussions about the extent of rights or conflicts between rights. Such conflicts need to be decided on the basis of which conflicting right does most good to the values that are served by rights.

Does my point of view imply that there is a harmony or – as Rawls would say – “congruence” of the right and the good? That they are the same thing or part of a coherent whole? I don’t think so. There will still be things that are right but not good, and vice versa.

More posts in this series are here.

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