Law, Morality and Rights
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Explaining this requires several stages. How do reasons relate to actions at all, as incentives and in explanations?
What are values, how do they relate to human nature, and how do they enter practical reasoning? How does our moral freedom — our freedom to form our own moral commitments — relate to our responsibilities to e How does our moral freedom — our freedom to form our own moral commitments — relate to our responsibilities to each other? How is this final question transposed into law and legal commitments?
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This book explores these questions, vital to understanding the nature of law and morality. It presents an account of practical reason. Keywords: practical reason , ethics , philosophy of law , incentives , values , mutual trust , moral freedom , law and morality , Kant , Adam Smith. Forgot password?
Currently, UK law lists cocaine as a class A drug in which possession can result in seven years in prison, and its supply and production is punishable by life behind bars. Changes in the law in line with changes in public morality work in both directions. Where cocaine went from legal and accepted to illegal and unacceptable, homosexuality, for instance, followed the opposite trajectory.
Punishable by the death penalty until the 19th century, homosexual behaviour has been gradually decriminalised in the UK to reflect prevailing social attitudes, culminating in the legalisation of gay marriage in But simply legalising something—be it a product, service, or behaviour—due to a change in social attitudes is far from simple.
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Politicians tolerate it on the one hand for the same reason, and on the other hand because tolerating it generates political support and employment. So why not legalise it?
Legalising La Salada would involve lifting regulations on safe working practices clothing is produced in sweatshops that break numerous labour laws , lifting trademark laws clothing is illegally branded with logos such as Nike, Adidas, and Disney , and enforcing business taxes. The effects of this would raise the prices of clothing, thereby nullifying the positive effects of the market, and the very reason for it being socially acceptable.
Besides that, lifting trademark laws is simply impossible. In the case of the Paradise Papers and offshore tax havens, following public morality would mean making such arrangements illegal, as in the case of cocaine. However, like in the case of La Salada , changing the law around tax havens presents an enormous challenge that no state can hope to undertake alone. Offshore financial activity is a result of other states offering tax breaks to lure business into their jurisdictions—without an agreement on tax regimes involving many countries, preventing this is impossible.
Where tax breaks continue to be available, we can expect anyone who can to take advantage of their legal right to do so. Given the relative scarcity of resources and the demands placed upon those resources, we are inclined to say that adequately securing individuals' human rights extends to the establishment of decent social and governmental practice so as to ensure that all individuals have the opportunity of leading a minimally good life.
In the first instance, national governments are typically held to be primarily responsible for the adequate provision of their own citizens' human rights. Philosophers such as Brian Orend endorse this aspiration when he writes that the object of human rights is to secure 'minimal levels of decent and respectful treatment. The adequate protection and promotion of everyone's human rights does require, for example, the more affluent and powerful nation-states providing sufficient assistance to those countries currently incapable of adequately ensuring the protection of their own citizens' basic human rights.
While some may consider Orend's aspirations for human rights to be unduly cautious, even the briefest survey of the extent of human suffering and deprivation in many parts of the world today is sufficient to demonstrate just how far we are from realizing even this fairly minimal standard.
National and international institutions bear the primary responsibility of securing human rights and the test for successfully fulfilling this responsibility is the creation of opportunities for all individuals to lead a minimally good life. The realization of human rights requires establishing the conditions for all human beings to lead minimally good lives and thus should not be confused as an attempt to create a morally perfect society. The impression that many have of human rights as being unduly utopian testifies less to the inherent demands of human rights and more to the extent to which even fairly modest aspirations are so far from being realized in the world today.
The actual aspirations of human rights are, on the face of it, quite modest. However, this should not distract from a full appreciation of the possible force of human rights.
Human rights call for the creation of politically democratic societies in which all citizens have the means of leading a minimally good life. While the object of individual human rights may be modest, the force of that right is intended to be near absolute. That is to say, the demands of rights are meant to take precedence over other possible social goals. Ronald Dworkin has coined the term 'rights as trumps' to describe this property.
He writes that, 'rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole. Thus, for example, a minority's possession of rights against discriminatory treatment should trump any and all considerations of the possible benefits that the majority would derive from discriminating against the minority group. For Dworkin, rights as trumps expresses the fundamental ideal of equality upon which the contemporary doctrine of human rights rests.
Treating rights as trumps is a means for ensuring that all individuals are treated in an equal and like fashion in respect of the provision of fundamental human rights. Fully realizing the aspirations of human rights may not require the provision of 'state of the art' resources, but this should not detract from the force of human rights as taking priority over alternative social and political considerations. We have established that human rights originate as moral rights but that the successful passage of many human rights into international and national law enables one to think of human rights as, in many cases, both moral rights and legal rights.
Furthermore, human rights may be either claim rights or liberty rights, and have a negative or a positive complexion in respect of the obligations imposed by others in securing the right. Human rights may be divided into five different categories and the principal object of securing human rights is the creation of the conditions for all individuals to have the opportunity to lead a minimally good life.
Finally, human rights are widely considered to trump other social and political considerations in the allocation of public resources. Broadly speaking, philosophers generally agree on such issues as the formal properties of human rights, the object of human rights, and the force of human rights.
However, there is much less agreement upon the fundamental question on how human rights may be philosophically justified. It would be fair to say that philosophers have provided many different, at times even conflicting, answers to this question. Philosophers have sought to justify human rights by appeal to single ideals such as equality, autonomy, human dignity, fundamental human interests, the capacity for rational agency, and even democracy.
For the purposes of clarity and relative simplicity I will focus upon the two, presently most prominent, philosophical attempts to justify human rights: interests theory and will theory. Before I do that, it is necessary to address a prior question. Many people tend to take the validity of human rights for granted.
Certainly, for many non-philosophers human rights may all too obviously appear to rest upon self-evidently true and universally valid moral principles. In this respect, human rights may be perceived as empirical facts about the contemporary world.
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Human rights do exist and many people do act in accordance with the correlative duties and obligations respecting human rights entails. No supporter of human rights could possibly complain about such perceptions. If nothing else, the prevalence of such views is pragmatically valuable for the cause of human rights.
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However, moral philosophers do not enjoy such licence for epistemological complacency. Moral philosophers remain concerned by the question of the philosophical foundations of human rights. There is a good reason why we should all be concerned with such a question. The validity of human rights is closely tied to, and dependent upon, the legal codification of human rights. However, as was argued earlier, such an approach is not sufficient to justify human rights. Arguments in support of the validity of any moral doctrine can never be settled by simply pointing to the empirical existence of particular moral beliefs or concepts.
Morality is fundamentally concerned with what ought to be the case, and this cannot be settled by appeals to what is the case, or is perceived to be the case. From such a basis, it would have been very difficult to argue that apartheid South Africa, to take an earlier example, was a morally unjust regime.
One must not confuse the law with morality, per se. Nor consider the two to be simply co-extensional. Human rights originate as moral rights. Human rights claim validity everywhere and for everyone, irrespective of whether they have received comprehensive legal recognition, and even irrespective of whether everyone is agreement with the claims and principles of human rights. Thus, one cannot settle the question of the philosophical validity of human rights by appealing to purely empirical observations upon the world. As a moral doctrine, human rights have to be demonstrated to be valid as norms and not facts.
In order to achieve this, one has to turn to moral philosophy.
xn--c1adm4ar4d.xn--p1ai/modules/map16.php Advocates of the interests theory approach argue that the principal function of human rights is to protect and promote certain essential human interests.