The interplay of legal and moral rights

Abstract

The observation that people have rights is unremarkable enough. Neither is it a matter of controversy that the rights people do have are often different in kind. For one, we typically distinguish between those which are legal and those which are moral in character. We do not simply talk of rights in the generic, we must be precise as to whether it is a legal or moral right which is the focus of concern. To my knowledge few attempts have been made to bridge this divide. Instead, a good deal of the philosopher's ink and the lawyer's oratorical skills have helped to further enshrine the differences by way of introducing subclassifications under the respective categories. Indeed, it will no longer do to acknowledge a right's legal or moral standing, we must further specify what kind of legal or moral right it is we have in mind. In the legal sphere we have the criminal and civil laws with their accompanying rights, to which may be added positive, negative and constitutional rights. Hohfeld's by now familiar distinctions further break down these legal relations into claims, liberties, powers and immunities. 1 In the moral arena we are confronted by a veritable plethora of natural and traditional rights, human rights, welfare and subsistence rights, conventional, ideal and conscientious rights, etc. At times it seems that the only limit to this proliferation is that of human ingenuity in devising yet more elaborate and refined distinctions. I am not particularly concerned with questioning the validity of these divisions - though certainly on the moral side of things a case can be made that much of the fine-tuning has resulted in considerable duplication. Nor do I wish to deny that they have brought a greater degree of analytical exactitude to the subject area. However, this penchant for subdividing has, I believe, done much to obfuscate the equally important similarities which cut across the various fights classifications. This paper is an attempt, if a modest one, to bring these similarities into sharper focus. In particular, I seek to make explicit the connections between legal rights and the general moral background within which they are operative. Before turning to this examination let us briefly review the basic character and differ