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Source: (consider it)
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Thread: Conflict of Rights & Legal Equality
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Russ
Old salt
# 120
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Posted
On another thread, Soror Magna said:
quote:
You can't please everybody in a pluralist society. One maxim I've heard applied in some situations of conflicting rights* is to favour the person with the least power in the situation. So e.g. in a situation where nobody else is available, a patient's right to treatment supersedes the right of a medical worker to refuse to treat that patient because of their own beliefs.
My initial response was to think that you can't have conflicting rights. If person A has a right to do something then person B can't have a right to stop them. It's a contradiction in terms.
That arises, ISTM, because we tend to use the word "rights" a little too freely. To mean something that ordinarily would be OK and perfectly permissible. Human desires certainly conflict. Human customs can conflict. But rights ?
If there is such a thing as moral law, then it seems like it ought to be a self-consistent body of law that doesn't contradict itself.
And we use "rights" to mean both legal rights in a particular jurisdiction and more generally as moral law rights, rights that ought to be included in the law of all jurisdictions, an ideal which human law should aspire to replicate.
So that's one half of the question - is Soror Magna correct to say that rights conflict ?
The other half is the notion that our sympathies with the powerless can actually determine what is right. That if we're not sure whether it's OK for A to do something to B then we'll consult some index of relative power and conclude that it's OK for A to do it to B but not for B to do it to A.
That seems to me completely wrong. If there is such a thing as moral law, then it seems like it ought to be blind to the identity of the plaintiff and defendant.
I might even go so far as to say that equality under the law is the sort of equality that matters most.
Hope I'm not just being pedantic here. I don't want to pick on SM if she just didn't say quite what she meant.
But what I think I see is a real wrong conception of what right and wrong are all about. A real willingness to chuck away the idea of moral law altogether in favour of doing whatever we think benefits those with whom we sympathize.
The heresy, if you like, that it's OK for the good guys to do stuff that would be bad if the bad guys did it.
Am I wrong ?
Is there a shorthand name for that ?
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Wish everyone well; the enemy is not people, the enemy is wrong ideas
Posts: 3169 | From: rural Ireland | Registered: May 2001
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Firenze
Ordinary decent pagan
# 619
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Posted
Can there be a Right without a corresponding Duty on the part of some person or entity to provide/ensure that Right?
I find asking that question a good way of sorting the contractual from the aspirational.
Posts: 17302 | From: Edinburgh | Registered: Jun 2001
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Soror Magna
Shipmate
# 9881
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Posted
quote:
Originally posted by Russ:
... Hope I'm not just being pedantic here. I don't want to pick on SM if she just didn't say quite what she meant.
...
Oh, please. I wrote, "One maxim I've heard applied in some situations". Let me reassure you: interpreting that as me advocating a universal rule doesn't make you seem pedantic.
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"You come with me to room 1013 over at the hospital, I'll show you America. Terminal, crazy and mean." -- Tony Kushner, "Angels in America"
Posts: 5430 | From: Caprica City | Registered: Jul 2005
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Curiosity killed ...
Ship's Mug
# 11770
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Posted
The UN Universal Declaration of Human Rights finishes with two clauses discussing conflicting rights:
quote:
Article 29
- Everyone has duties to the community in which alone the free and full development of his personality is possible.
- In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
- These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
This suggests that there can be some conflicts between rights and legal equality, but that rights and freedoms should be protected.
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Mugs - Keep the Ship afloat
Posts: 13794 | From: outiside the outer ring road | Registered: Aug 2006
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quetzalcoatl
Shipmate
# 16740
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Posted
I would have thought that historically, there has been a tendency to rectify oppression. Thus, for example, women were treated as non-persons until the various Married Women's Property Acts in the 19th century (UK); non-white people began to be treated equally; ditto gays and lesbians; and children were also treated more sensitively.
I don't think from this you can infer some universal law; it has all happened in particular cultures at particular times. And it could be reversed.
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I can't talk to you today; I talked to two people yesterday.
Posts: 9878 | From: UK | Registered: Oct 2011
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mr cheesy
Shipmate
# 3330
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Posted
quote:
Originally posted by Russ:
My initial response was to think that you can't have conflicting rights. If person A has a right to do something then person B can't have a right to stop them. It's a contradiction in terms.
Well, this is not a great way to start a thought because it is obviously wrong; an individual's right can very easily be in conflict with another person's rights. The whole edifice of human rights is based on trying to resolve the conflicts between human rights, not to assert that those conflicts do not exist.
[ 03. January 2016, 16:21: Message edited by: mr cheesy ]
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arse
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Bibaculus
Shipmate
# 18528
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Posted
Clearly rights can conflict. I am trying to recall what I was taught in seminary about this, but my brain is slow. The best I can do is that lying is objectively wrong. One has the right to truth. But if person A has a gun, and is intent on killing person B, and asks person C where person B is, and person C knows the answer, does person A have a right to the truth? Clearly not. Because person C has a right to life, and person A loses his right to the truth because of his intention.
The 'person with the least power' rule is appealing, but I am sure it would produce anomalies.
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A jumped up pantry boy who never knew his place
Posts: 257 | From: In bed. Mostly. When I can get away with it. | Registered: Dec 2015
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lilBuddha
Shipmate
# 14333
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Posted
Lying is not objectively wrong. It is very subjective as your example demonstrates.
Understand, I hate lying.
Lying, like everything, is about the effect it has on others.
Same with any right. The majority of the time, IME, it isn't a real problem to discern the right of a situation. What makes it difficult is people do not wish to surrender their advantage/control and will twist the "righst" argument into convoluted knots to avoid doing so.
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I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
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Bibaculus
Shipmate
# 18528
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Posted
quote:
Originally posted by lilBuddha:
Lying is not objectively wrong. It is very subjective as your example demonstrates.
Understand, I hate lying.
Lying, like everything, is about the effect it has on others.
Same with any right. The majority of the time, IME, it isn't a real problem to discern the right of a situation. What makes it difficult is people do not wish to surrender their advantage/control and will twist the "righst" argument into convoluted knots to avoid doing so.
Not a problem to discern the right of a situation when rights clash? Really?
Just take the recent examples of bakers who didn't want to bake cakes for gay couples. Clearly we have the right of gay people to be treated equally, and the right of business people to serve who they will. As far as I can see, it would take the wisdom of Soloman to judge between the two.
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A jumped up pantry boy who never knew his place
Posts: 257 | From: In bed. Mostly. When I can get away with it. | Registered: Dec 2015
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lilBuddha
Shipmate
# 14333
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Posted
Your statement implies clouded vision. I shall not breach the guidelines of Purgatory by discussing that in detail here. There is a thread in Dead Horses which explores this. But basically it is the "right" to persecute v. the right to not face persecution. Not difficult to sort out.
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I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
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Boogie
Boogie on down!
# 13538
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Posted
How about the case Aishah Azmi, a Muslim language support teacher, who was helping children at a Dewsbury school to learn English as an additional language. She wore a hijab, which covered her face. The school required her to remove it, and produced evidence that language support is more effective when a teacher's face is visible.
In the UK she has the right to wear her hijab. But the children also have the right to good language education - which requires that they can see as well as hear her speaking, especially the children with hearing difficulties.
How do we resolve such conflicting rights? In France they make it simple - they don't allow the right for people to cover their faces in public.
I got this example from here where you will find others too.
Personally I don't think there is such a thing as 'moral law'. Our morals change and grow as society changes and grows.
At one time denying women the vote was obvious and clear - what woman was capable of such a decision? (western) Society has since changed and improved in this respect, as in many others.
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Garden. Room. Walk
Posts: 13030 | From: Boogie Wonderland | Registered: Mar 2008
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Bibaculus
Shipmate
# 18528
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Posted
quote:
Originally posted by lilBuddha:
Your statement implies clouded vision. I shall not breach the guidelines of Purgatory by discussing that in detail here. There is a thread in Dead Horses which explores this. But basically it is the "right" to persecute v. the right to not face persecution. Not difficult to sort out.
Maybe my vision is clouded. But things certainly don't appear as clear to me as they seem to be to you.
Let us take another case. I have personally been asked to leave a bar because I was kissing someone, and that person happened to be the same sex as me (I have no desire to kiss members of the opposite sex).
Now, had this happened in a public place (the street, for example) or in my own home, then any attempt to treat me and the person I was kissing differently than a straight couple kissing would clearly have been wrong.
But it was on private property to which the public are admitted to do business with the owner.
Was the landlord wrong? He was in all sorts of ways. He was prejudiced and homophobic. But the bar was his property. I had no 'right' to be there. He may have thought seeing men kissing would drive customers away, and in that he may have been right or wrong. But it was his bar, not mine. He had a right to decide who he served and who he didn't.
Naturally I would prefer to be able to kiss who I want anywhere I want to. But do I have an absolute right to do so?
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A jumped up pantry boy who never knew his place
Posts: 257 | From: In bed. Mostly. When I can get away with it. | Registered: Dec 2015
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Boogie
Boogie on down!
# 13538
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Posted
quote:
Originally posted by Bibaculus:
Was the landlord wrong? He was in all sorts of ways. He was prejudiced and homophobic. But the bar was his property. I had no 'right' to be there. He may have thought seeing men kissing would drive customers away, and in that he may have been right or wrong. But it was his bar, not mine. He had a right to decide who he served and who he didn't.
Yes he was wrong. You were not at a private party, you were in a bar. If he wants to sell a product to the public he can't pick and choose which people come in and use his service.
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Garden. Room. Walk
Posts: 13030 | From: Boogie Wonderland | Registered: Mar 2008
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Bibaculus
Shipmate
# 18528
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Posted
quote:
Originally posted by Boogie:
quote:
Originally posted by Bibaculus:
Was the landlord wrong? He was in all sorts of ways. He was prejudiced and homophobic. But the bar was his property. I had no 'right' to be there. He may have thought seeing men kissing would drive customers away, and in that he may have been right or wrong. But it was his bar, not mine. He had a right to decide who he served and who he didn't.
Yes he was wrong. You were not at a private party, you were in a bar. If he wants to sell a product to the public he can't pick and choose which people come in and use his service.
Maybe this is a bad example...
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A jumped up pantry boy who never knew his place
Posts: 257 | From: In bed. Mostly. When I can get away with it. | Registered: Dec 2015
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mr cheesy
Shipmate
# 3330
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Posted
quote:
Originally posted by Boogie:
Yes he was wrong. You were not at a private party, you were in a bar. If he wants to sell a product to the public he can't pick and choose which people come in and use his service.
I'm pretty sure that's not correct: as publicans (in England if not elsewhere) are legally liable for serving the unlicensed people, they also have the power to refuse service to anyone they choose for whatever reason they like.
I used to know of a publican who was widely known to refuse to serve red-heads and people wearing the wrong kind of clothing - and obviously we all know that clubs can set dress codes and so on.
In that respect, I believe publicans are a different category from other kinds of service providers.
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arse
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Gee D
Shipmate
# 13815
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Posted
quote:
Originally posted by Firenze:
Can there be a Right without a corresponding Duty on the part of some person or entity to provide/ensure that Right?
I find asking that question a good way of sorting the contractual from the aspirational.
Are you referring to Hohfeld here, with his opposites and correlatives? His suggested analyses used frequently underpin both submissions and decisions (at least here) in both administrative law as well as unexpected by-ways as trusts. Equally applicable I'd have thought in the obligations of company directors. Think for example of comments in the Hell thread on oil companies and climate change; some posters seemed to think it wrong that company directors were out to make money for their shareholders.
As to Bibaculus's example and Boogie's response: using Hohfeld, it's easy to conclude that a publican has an obligation to sell his product to anyone who walks into his hotel, subject to any legal obligations such as the age of the customer. He cannot refuse to sell to sober, gay adults. Does that mean that he has no power to require people to leave for engaging in behaviour of which he disapproves ? Boogies response does not deal with this at all.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Dafyd
Shipmate
# 5549
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Posted
quote:
Originally posted by Firenze:
Can there be a Right without a corresponding Duty on the part of some person or entity to provide/ensure that Right?
I think it depends upon your definitions. If you restrict rights to rights established by some positive law, then you don't have any effective right if the body that enforces the law, whether official police or the community in general, doesn't enforce your right.
On the other hand, suppose your company gives you the right to park in a space in the company carpark. It's not quite correct to say it has a duty to ensure that right, since it can withdraw the right if it so chooses.
If you believe in natural rights, you might say that people have a right to food and shelter for instance. That doesn't mean there's anyone specific, beyond humanity in general, that has the duty to provide it. Rather the duty would fall upon whoever is best placed to provide them.
I don't think that talk of natural rights is the best way to talk about that though.
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we remain, thanks to original sin, much in love with talking about, rather than with, one another. Rowan Williams
Posts: 10567 | From: Edinburgh | Registered: Feb 2004
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Dafyd
Shipmate
# 5549
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Posted
quote:
Originally posted by lilBuddha:
Lying is not objectively wrong. It is very subjective as your example demonstrates.
I don't think 'objective' and 'subjective' mean what they seem to mean in your post.
Objectively wrong does not mean always wrong regardless of the circumstances. It means wrong regardless of what we think of it. Subjectively wrong does not mean wrong under only some circumstances. It means only wrong because someone thinks it's wrong.
Someone might think lying is always subjectively wrong; someone might think that lying is objectively wrong with a host of objective exceptions.
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we remain, thanks to original sin, much in love with talking about, rather than with, one another. Rowan Williams
Posts: 10567 | From: Edinburgh | Registered: Feb 2004
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Eliab
Shipmate
# 9153
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Posted
quote:
Originally posted by Russ:
And we use "rights" to mean both legal rights in a particular jurisdiction and more generally as moral law rights, rights that ought to be included in the law of all jurisdictions, an ideal which human law should aspire to replicate.
I think that's a key distinction. It might be true that 'natural' or 'moral' rights never conflict - clearly there are innumerable different views about what those rights are and whether they exist at all, and those views are in conflict, but it is potentially true that there is an objective right answer and all the rest are at least a bit wrong. Legal rights obvious can and do conflict.
If we're talking about how to organise a (non-theocratic) society, then it's legal rights that we're talking about. That's because even if we are all agreed in principle (which we are not) that there is a discoverable and true answer to any moral question, we certainly are not agreed about what it is or how to find it, and we have no generally accepted tribunal with authority to decide on such questions.
of course the legal rights we recognise will inevitably reflect certain conceptions of natural law. It is not mere pragmatism that inspires a right not to be subjected to racial discrimination - there is also a widespread consensus that race is a bad reason to mistreat someone - that whatever 'natural' rights one gets because one is a human being, they are not qualified because of race. We generally think that racist societies (and, increasingly, sexist and homophobic ones) have been objectively wrong. So there is a 'natural' conception of equality built in to our idea of legal rights, but the actual content of the rights that people should be equally enjoyed doesn't purport to be the best or only one. That is dictated more by what works in practice, and what most of us can be persuaded to accept.
On conflicts between rights in the legal sphere, I think the 'side with the least powerful' point is probably one of a number of considerations useful in finding the least harmful compromise (because a less powerful party is, in general, going to suffer more from an infringement of their legal rights), but I agree with all your objections to adopting it as a universal moral rule.
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"Perhaps there is poetic beauty in the abstract ideas of justice or fairness, but I doubt if many lawyers are moved by it"
Richard Dawkins
Posts: 4619 | From: Hampton, Middlesex, UK | Registered: Mar 2005
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Dafyd
Shipmate
# 5549
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Posted
quote:
Originally posted by Russ:
My initial response was to think that you can't have conflicting rights. If person A has a right to do something then person B can't have a right to stop them. It's a contradiction in terms.
That arises, ISTM, because we tend to use the word "rights" a little too freely. To mean something that ordinarily would be OK and perfectly permissible. Human desires certainly conflict. Human customs can conflict. But rights ?[/QB]
I don't think people do mean by saying there is a right to do something that it is something that would ordinarily be permissible. What they mean is something that is always permissible, or at least, always permissible without a particularly good reason.
quote:
If there is such a thing as moral law, then it seems like it ought to be a self-consistent body of law that doesn't contradict itself.
Yes, but. The moral law is still self-consistent if it has a way of resolving or at least handling potential conflicts. That if it contains two general principles that are occasionally at odds it has a way of determining which one overrides the other, or otherwise how a compromise is to be effected.
quote:
The other half is the notion that our sympathies with the powerless can actually determine what is right. That if we're not sure whether it's OK for A to do something to B then we'll consult some index of relative power and conclude that it's OK for A to do it to B but not for B to do it to A.
That seems to me completely wrong. If there is such a thing as moral law, then it seems like it ought to be blind to the identity of the plaintiff and defendant.
This isn't the same as the principle that it's ok for the good guys to do something even though it's wrong for the bad guys to do it. Whether one party or another has the power in a particular situation is generally speaking independent of which side we sympathise with, or of any moral desert accruing. The principle that, say, a prisoner's rights override a prison warden's rights in certain particular cases where there's an irresolvable clash is independent of moral standing or whom we sympathise with.
Rights of the kind we are talking about are granted in order to defend something that is under threat. Obviously, the person with the lesser power in any situation is more threatened. Therefore, there's no conflict with the general purpose of rights in saying that the person with the least power has stronger rights. That's what these kinds of rights are for.
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we remain, thanks to original sin, much in love with talking about, rather than with, one another. Rowan Williams
Posts: 10567 | From: Edinburgh | Registered: Feb 2004
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lilBuddha
Shipmate
# 14333
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Posted
quote:
Originally posted by mr cheesy:
Here is a discussion on a publican's newspaper site of this.
Yeah, not quite:
quote:
What is correct is that the right of refusal does not permit the licence holder to act illegally: a licence holder could not refuse service because of the customers’ race, creed, or sexual orientation for example. There have been a handful of cases in recent years concerning hoteliers refusing to let a room to a gay couple. One case from 2011, involving the Chymorvah Hotel, near Penzance, resulted in damages of £3600 to the couple who had been turned away. A more recent example comes from a decision in October 2012 when the operator of the Swiss Bed and Breakfast in Berkshire refused entry to a couple after she learned they were gay men. In that case damages of £3600 were also awarded and the matter attracted considerable media interest. In 2007 an Oxford pub paid £4500 in compensation to a man after refusing to serve him because he was a traveller.
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I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
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Boogie
Boogie on down!
# 13538
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Posted
Yes, Guide Dog owners are sometimes refused too - it is against the law to refuse them and publians face hefty fines if they do so (disability discrimination).
Posts: 13030 | From: Boogie Wonderland | Registered: Mar 2008
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Marvin the Martian
Interplanetary
# 4360
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Posted
quote:
Originally posted by Bibaculus:
...the right of business people to serve who they will.
This is explicitly not a right. Business people (regardless of the business) cannot refuse to serve someone because that someone is a member of a protected minority.
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Hail Gallaxhar
Posts: 30100 | From: Adrift on a sea of surreality | Registered: Apr 2003
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Bibaculus
Shipmate
# 18528
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Posted
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by Bibaculus:
...the right of business people to serve who they will.
This is explicitly not a right. Business people (regardless of the business) cannot refuse to serve someone because that someone is a member of a protected minority.
And where is that explicated? Who made the absence of such a right explicit?
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A jumped up pantry boy who never knew his place
Posts: 257 | From: In bed. Mostly. When I can get away with it. | Registered: Dec 2015
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Pomona
Shipmate
# 17175
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Posted
quote:
Originally posted by Boogie:
How about the case Aishah Azmi, a Muslim language support teacher, who was helping children at a Dewsbury school to learn English as an additional language. She wore a hijab, which covered her face. The school required her to remove it, and produced evidence that language support is more effective when a teacher's face is visible.
In the UK she has the right to wear her hijab. But the children also have the right to good language education - which requires that they can see as well as hear her speaking, especially the children with hearing difficulties.
How do we resolve such conflicting rights? In France they make it simple - they don't allow the right for people to cover their faces in public.
I got this example from here where you will find others too.
Personally I don't think there is such a thing as 'moral law'. Our morals change and grow as society changes and grows.
At one time denying women the vote was obvious and clear - what woman was capable of such a decision? (western) Society has since changed and improved in this respect, as in many others.
If it covered her face it wasn't a hijab, since the hijab is just the headscarf. I'm thinking it was a niqab, which covers the mouth but the eyes are visible?
difference between different Islamic headcoverings
France didn't just ban face-covering headcoverings, they banned all headscarves and religious dress in schools. This is because France is a deeply Islamophobic country - there's very little difference between a nun in full habit, wimple and veil, and a woman in a niqab, yet one is OK and one is not? Why? France then is acting as if it has a right to infringe religious liberty on the basis of prejudice against Muslims, despite being a secular state.
[URL fixed. -Gwai]
[ 04. January 2016, 13:32: Message edited by: Gwai ]
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Consider the work of God: Who is able to straighten what he has bent? [Ecclesiastes 7:13]
Posts: 5319 | From: UK | Registered: Jun 2012
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Pomona
Shipmate
# 17175
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Posted
Added a space to the URL without thinking, can a kindly host/admin fix please? Thanks!
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Consider the work of God: Who is able to straighten what he has bent? [Ecclesiastes 7:13]
Posts: 5319 | From: UK | Registered: Jun 2012
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Dave W.
Shipmate
# 8765
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Posted
quote:
Originally posted by Bibaculus:
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by Bibaculus:
...the right of business people to serve who they will.
This is explicitly not a right. Business people (regardless of the business) cannot refuse to serve someone because that someone is a member of a protected minority.
And where is that explicated? Who made the absence of such a right explicit?
In the US, one place would be Title II of the Civil Rights Act of 1964.
Posts: 2059 | From: the hub of the solar system | Registered: Nov 2004
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Pomona
Shipmate
# 17175
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Posted
quote:
Originally posted by Bibaculus:
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by Bibaculus:
...the right of business people to serve who they will.
This is explicitly not a right. Business people (regardless of the business) cannot refuse to serve someone because that someone is a member of a protected minority.
And where is that explicated? Who made the absence of such a right explicit?
UK Equality Law.
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Consider the work of God: Who is able to straighten what he has bent? [Ecclesiastes 7:13]
Posts: 5319 | From: UK | Registered: Jun 2012
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Russ
Old salt
# 120
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Posted
quote:
Originally posted by Eliab:
Legal rights obvious can and do conflict.
Indeed. As, for example, when Shylock turns up in court with a right to a pound of Antonio's flesh but no right to spill a drop of his blood...
I've not heard anyone argue that the judge should have found for Shylock because he's a member of a low-status ethnic minority.
quote:
So there is a 'natural' conception of equality built in to our idea of legal rights, but the actual content of the rights that people should be equally enjoyed doesn't purport to be the best or only one. That is dictated more by what works in practice, and what most of us can be persuaded to accept.
But when and if we talk about what the verdict on Shylock should have been we're making a moral point, rather than applauding Portia's political pragmatism in coming up with an answer that most can be persuaded to accept.
You can of course talk descriptively about law as an extension of politics and this may or may not be an accurate description of how things work in practice.
But as soon as you talk about what should or should not be, what is just or unjust, right or wrong, then you're in the realm of judging human law and legal process by its conformity or otherwise with moral law (or natural law or natural justice, whichever terminology you prefer).
Is it, perhaps, a particular temptation for lawyers to confuse one with the other ? To give moral weight to legal judgments ?Or are young lawyers carefully schooled against this ?
Posts: 3169 | From: rural Ireland | Registered: May 2001
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
Rights can conflict for the simple reason that writing a complete description of each and every right in advance, with sufficient detail to avoid every possible conflict, is impossible.
Rights are a starting point. Rights are statements about the default position, about what you are entitled to unless there is a sufficiently good reason to overturn it. Rights are about setting expectations and saying that any departure from that expectation will be closely scrutinised.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Russ:
That if we're not sure whether it's OK for A to do something to B then we'll consult some index of relative power and conclude that it's OK for A to do it to B but not for B to do it to A.
That seems to me completely wrong. If there is such a thing as moral law, then it seems like it ought to be blind to the identity of the plaintiff and defendant.
I might even go so far as to say that equality under the law is the sort of equality that matters most.
This is eye-for-an-eye childishness.
Do you think you ought to be able to tax the government?
Do you think you ought to be able to sentence a judge to prison?
Do you only go to doctors who agree that you can perform surgery on them, despite your lack of formal qualifications?
And after having done all these things, are you going to be seeking a lawyer who has the same right to represent you in court that you have to represent them in court?
People are not interchangeable and equivalent. We are not a undifferentiated mass of 7 billion identical units.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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lilBuddha
Shipmate
# 14333
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Posted
quote:
Originally posted by Russ:
I've not heard anyone argue that the judge should have found for Shylock because he's a member of a low-status ethnic minority.
Because it would be stupid. The judge should have found for Shylock because he was in the right.
ETA: Which is what the judge did. Until Portia used trickier and antisemitism screw him over.
[ 04. January 2016, 23:43: Message edited by: lilBuddha ]
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I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
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Russ
Old salt
# 120
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Posted
quote:
Originally posted by orfeo:
Rights are a starting point. Rights are statements about the default position, about what you are entitled to unless there is a sufficiently good reason to overturn it. Rights are about setting expectations and saying that any departure from that expectation will be closely scrutinised.
So what word do you use for the end point ? When you've weighed up the conflicting expectations, taken account of relevant circumstances, and concluded that in this type of situation there is a genuine moral entitlement to whatever (and I'm trying to address the general case here) what do you call that moral entitlement if it's not a right ?
Is this just an issue of terminology ? Or are we arguing about something deeper ?
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Wish everyone well; the enemy is not people, the enemy is wrong ideas
Posts: 3169 | From: rural Ireland | Registered: May 2001
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Timothy the Obscure
Mostly Friendly
# 292
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Posted
I think this is the kind of conundrum we run into when we assume rights are the foundation of morality, rather than one of its manifestations. If you assume that rights are inherent attributes of persons (which has been the standard Western view since Locke, at least), then conflicts between them are inevitable. I would argue that rights are not inherent in individuals, but are features of relationships, and are corollaries of the fundamental moral principles of equity and reciprocity (i.e., the Golden Rule/categorical imperative/what have you). It isn't that I "possess" the right to life--it's that I can't claim that right while denying it to another person with whom I have a relationship governed by equity and reciprocity (as, I believe, all relationships between fully competent human beings are--children, for example, are a little different).
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When you think of the long and gloomy history of man, you will find more hideous crimes have been committed in the name of obedience than have ever been committed in the name of rebellion.
- C. P. Snow
Posts: 6114 | From: PDX | Registered: May 2001
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Gee D
Shipmate
# 13815
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Posted
quote:
Originally posted by Russ:
quote:
Originally posted by orfeo:
Rights are a starting point. Rights are statements about the default position, about what you are entitled to unless there is a sufficiently good reason to overturn it. Rights are about setting expectations and saying that any departure from that expectation will be closely scrutinised.
So what word do you use for the end point ? When you've weighed up the conflicting expectations, taken account of relevant circumstances, and concluded that in this type of situation there is a genuine moral entitlement to whatever (and I'm trying to address the general case here) what do you call that moral entitlement if it's not a right ?
Is this just an issue of terminology ? Or are we arguing about something deeper ?
I think you're failing to appreciate various meanings of "rights" and the consequences of each meaning. A right pure and simple has an opposite of no right - you either have a right or you lack one. But rights that one person may have go with duties for others to honour that right, and so forth. Hohfeld was writing 100 years or so ago, so some of his language is odd, but it translates into modern situations well.
An easy example, using the land ownership thread. In Oz, Canada, NZ and the UK (not sure about the US) I do not own land; rather, I own a collection of rights in relation to that land. I can grow fruit, I can store water, I can exclude others from entry onto it. You, by contrast, have the duty to respect my ability to carry through those rights. In short, you cannot have a right without someone having a duty to respect that right. You can look at trusts in the same way. As a trustee, I have the rights and powers given to me by the trust instrument. If you are a beneficiary under that trust you must honour those rights, and you have a liability to respect my exercise of those powers. In addition, as a beneficiary, you have the right to ensure that I do not exceed my rights and powers and I have a duty to account to you in accordance with the trust.
These might sound arcane to you and to move away from approach you may have expected in your OP. However, similar analyses can be applied to most fields of human interaction. The examples I gave are in the area of private law. In public law, I have a right to vote in elections for my local, State and Federal legislatures and you have both a duty to permit me to exercise that right and no right to prevent my exercise of that right. At the same time, I have a duty to vote and no privilege to refrain from voting.
The other area where you need to think is to define what you mean by "moral". In one sense, law is intensely moral in each society. In the ultimate, this applies as much in a dictatorship or autocracy as a democracy. A simple example of this is to look at the development of trusts in the face of legislation designed to preserve the power of the feudal overlord. Think of the Pilgrimage of Grace. This approach is, I suspect, very different to what you refer to as a moral entitlement and shows just why you need to think and define.
[deleted duplicate content]
[ 07. January 2016, 11:03: Message edited by: Eutychus ]
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Gee D
Shipmate
# 13815
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Posted
Sorry Hosts, I did use preview, but it's late at night after a busy day. Is it possible to correct my post please? By the time I found the blunder, it was too late to edit.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Eutychus
From the edge
# 3081
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Posted
Your wish is my command... on this occasion.
Eutychus
Purgatory host
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Gee D
Shipmate
# 13815
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Posted
Many thanks.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Tortuf
Ship's fisherman
# 3784
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Posted
Like most things in life, I do not believe there is a single, universal test for rights that clash. Nor, as has been previously pointed out, is there a universal definition of what a right might be. We can probably agree on a lot of rights, but as soon as we leave a small core of rights, disagreement will erupt.
He is at least a tool for evaluating when claimed rights clash:
Is the person claiming the right because the right helps them live their own life safely and at the level of comfort and security we would all claim for ourselves? Then it sounds like a right. Place that assertion into the context of the situation at hand and examine what assertion of that right does to other people.
If the other people are bearing a slight inconvenience, it seems reasonable to enforce the right. If the inconvenience turns into suffering, a way to balance and accommodate the interests would seem to be the first thing to do. If the clashing assertions cannot be accommodated, it may be wise to examine what compromises will affect which claimant and what the adverse affects of the compromise might be.
It is also important to examine what the surrounding people claim as a right. For instance, people allergic to dogs might be provided a place where they can still be in the area when someone comes in with a guide dog.
On the other hand, if the right asserted is that the world has to be the way the claimant wants it to be in order to be happy, their "right" can be properly ignored. By way of example, people objecting to integration, same sex marriage, and breast feeding are really wanting others to meet the standards of the person asserting the "right." It has nothing to do with any suffering on the part of the person asserting the right except that they are unhappy in a world where other people act differently than the way they "should." In this case the suffering person can learn that the world does not need to be the way they want it to be. They need to spend some time changing how they perceive their place in the world. This is not to be callus about their feelings. It is because the world is going to be the way it is, no matter whether it meets our standards for it or not. We might as well learn how to deal with that fact.
Think of the serenity prayer.
Posts: 6963 | From: The Venice of the South | Registered: Dec 2002
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Eliab
Shipmate
# 9153
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Posted
quote:
Originally posted by Russ:
But as soon as you talk about what should or should not be, what is just or unjust, right or wrong, then you're in the realm of judging human law and legal process by its conformity or otherwise with moral law (or natural law or natural justice, whichever terminology you prefer).
Is it, perhaps, a particular temptation for lawyers to confuse one with the other ? To give moral weight to legal judgments ?Or are young lawyers carefully schooled against this ?
This is sort of how in works in practice. Other lawyers on this thread are at liberty to disagree with me.
The Duchy of Praktikos, one of the member states of the Federation of Lexia, has recently passed a minimum wage law. Every worker is absolutely entitled - has the right - to be paid at least 8 Writs (the unit of currency) per hour worked, even if they agree to receive less.
In most cases applying the law is simple. Add up the total number of Writs paid and hours worked, divide one by the other, and see if the total is less than 8. If it is, the worker has a claim for more. Most legal matters are like that.
It is irrelevant, in processing those claims, WHY Praktikos has passed this law. In fact, there are several views on the point: The paternalist 'natural law' view (the state has the right to prevent exploitation, even of one who consents), the socialist view (the rich are in possession of the goods of the poor, and redistribution of wealth is a proper function of the state), the small-government view (minimum wage laws at least keep people off benefits, which distort the market more), and the federalist view (what particular social provisions we have don't matter as much as ensuring consistency across all the Lexian states). You can believe any or none of those, and you still have to pay (and are entitled to be paid) at least 8 Writs an hour. It's the law, not the rationale for it, that creates that right.
But then we get the hard cases. What about people paid on commission? Or who receive tips? Or volunteer for charities? Or have long periods of unpaid travel between work sites? Or are doing work experience? A good law might specify what happens in some of those cases, but even the best-drafted laws leave some things undefined.
THAT'S when the principle behind the law matters. If the tenor of employment law in Praktikos is in general one of encouraging freedom of contract, the question might be whether these special arrangements are ones that people should be free to enter into. If instead it's about preventing exploitation, the question is whether they are exploitative. And so on. Arguing for a particular position on one of these not-explicitly-defined cases is very much a matter of searching the law for principles and extending and applying them consistently.
It is therefore possible that a similarly worded law could be interpreted (and correctly interpreted) differently in different circumstances. In Praktikos, for example, tips to restaurant staff are genuine gratuities, meant to reward service above and beyond what the worker is paid for. In neighbouring Principalia (which has similar laws), the culture is that tipping is part of the cost of the meal, and seen as the usual way in which staff are remunerated. Hence it might well be good law to exclude tips from minimum wage calculations in Praktikos, but to include them in Principalia. There's no one 'natural law' answer to that question. That does not mean that ethics are irrelevant to the law - lawyers in both Duchies can and do make ethical arguments every day. But what they don't do is argue from or to a scheme of pure natural law - the ethical arguments that are appropriate and effective in a particular case, vary widely depending on the legal, factual and cultural context.
'Conflicts of rights' in the legal sense are argued, in the courts, at several removes from pure natural moral law. You can certainly find (if you look hard enough) instances of explicit appeals to the natural justice that transcends all human law, but usually, it's a bit more complicated than that.
[ 09. January 2016, 18:48: Message edited by: Eliab ]
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"Perhaps there is poetic beauty in the abstract ideas of justice or fairness, but I doubt if many lawyers are moved by it"
Richard Dawkins
Posts: 4619 | From: Hampton, Middlesex, UK | Registered: Mar 2005
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lilBuddha
Shipmate
# 14333
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Posted
That is a clear and practical response Eliab.
But it is a poor example. What you outlined is right v. right. Both parties in either dutchy have a real, objective effect based on the law.
In many cases where "moral" law is invoked, there is an imbalance of effect. Where one party is denied rights based on the other party feeling that right is icky.
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I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
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Eliab
Shipmate
# 9153
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Posted
quote:
Originally posted by lilBuddha:
In many cases where "moral" law is invoked, there is an imbalance of effect. Where one party is denied rights based on the other party feeling that right is icky.
Arguments that we should deny rights for that sort of reason aren't usually very effective, unless there's already a distinction which the law recognises.
For example, if you have laws which enforce racial segregation in (say) housing or education, it makes sense to have a law which discourages inter-racial marriage. The law considers that the races are different, and it is being consistent when it treats them differently in various areas of life. But as soon as it becomes a principle in one area that race is a legally irrelevant characteristic, it becomes harder to justify unequal treatment in others. Same sex marriage has a similar history - it's obvious to ban it while 'sodomy' is illegal, easy to ban it when homosexuality is considered immoral and barely tolerated, but nonsense to ban it while outlawing discrimination against gays in all other areas.
The US experience, where there is a Supreme Court with power to strike out legislation inconsistent with the highest principles of law, probably illustrates the process better than the UK experience, where the courts have to find a way to apply even the most ill-considered laws, but I think both jurisdictions show that effective legal argument is contextual: it's not about a straight appeal to 'what should be', but about starting from what the law considers (rightly or wrongly) to be true, and applying those principles.
To put it another way, Atticus Finch was a shit lawyer. He did Tom Robinson no favours, by arguing, in the context of legal and social discrimination, that "negroes" were morally equal to whites. Obviously that's true, but it was never going to work, and it wasn't his job to expound on the natural moral law, but knock out this particular unjust prosecution. He should have found a credible white defence witness to oppose the unreliable white prosecution witnesses and given a racist jury a compelling reason to acquit his client.
That's the difference between legal and moral arguments.
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"Perhaps there is poetic beauty in the abstract ideas of justice or fairness, but I doubt if many lawyers are moved by it"
Richard Dawkins
Posts: 4619 | From: Hampton, Middlesex, UK | Registered: Mar 2005
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Soror Magna
Shipmate
# 9881
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Posted
Great posts, Eliab.
quote:
Originally posted by Eliab:
... But then we get the hard cases. ...
A hard case that might be of interest to Russ would be the small remote village of Flakonia. In Flakonia, nearly everyone is a member of the Nocashie sect, which refuses to touch money and will only barter or trade services. Not only is it going to be hard to figure out if Nocashie workers are getting at least the equivalent of 8 Writs/hour in goods/services, there is still the fundamental issue of whether paying the equivalent of 8 Writs in goods/services satisfies the law. And what of the few non-Nocashie citizens in the town? They'd really rather get paid in real money, and that's what the law of the country says. Does the law require Nocashian employers to pay their non-Nocashian employees in Writs, thus violating their sacred principles? What if they try to sidestep the problem by discriminating and only employing other Nocashians?
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"You come with me to room 1013 over at the hospital, I'll show you America. Terminal, crazy and mean." -- Tony Kushner, "Angels in America"
Posts: 5430 | From: Caprica City | Registered: Jul 2005
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itsarumdo
Shipmate
# 18174
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Posted
Unfortunately the example doesn't hold together because if non-Nocashians are running the country, tax and other government things are inevitably cash-based. So how do Nocashians interact with the greater community?
Also, where would the Nocashians get money from in the first place to pay anyone in it?
Himba refused to enter a cash economy in N Namibia - but that was about not selling themselves - they still use cash occasionally because it allows them to trade flexibly.
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"Iti sapis potanda tinone" Lycophron
Posts: 994 | From: Planet Zog | Registered: Jul 2014
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Alex Cockell
Ship’s penguin
# 7487
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Posted
quote:
Originally posted by Pomona:
quote:
Originally posted by Boogie:
How about the case Aishah Azmi, a Muslim language support teacher, who was helping children at a Dewsbury school to learn English as an additional language. She wore a hijab, which covered her face. The school required her to remove it, and produced evidence that language support is more effective when a teacher's face is visible.
In the UK she has the right to wear her hijab. But the children also have the right to good language education - which requires that they can see as well as hear her speaking, especially the children with hearing difficulties.
How do we resolve such conflicting rights? In France they make it simple - they don't allow the right for people to cover their faces in public.
I got this example from here where you will find others too.
Personally I don't think there is such a thing as 'moral law'. Our morals change and grow as society changes and grows.
At one time denying women the vote was obvious and clear - what woman was capable of such a decision? (western) Society has since changed and improved in this respect, as in many others.
If it covered her face it wasn't a hijab, since the hijab is just the headscarf. I'm thinking it was a niqab, which covers the mouth but the eyes are visible?
difference between different Islamic headcoverings
France didn't just ban face-covering headcoverings, they banned all headscarves and religious dress in schools. This is because France is a deeply Islamophobic country - there's very little difference between a nun in full habit, wimple and veil, and a woman in a niqab, yet one is OK and one is not? Why? France then is acting as if it has a right to infringe religious liberty on the basis of prejudice against Muslims, despite being a secular state.
[URL fixed. -Gwai]
I seem to recall France also frowning on Christian work in schools. So aren't they equal-opportunity secular?
Posts: 2146 | From: Reading, Berkshire UK | Registered: Jun 2004
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Alex Cockell:
quote:
Originally posted by Pomona:
France then is acting as if it has a right to infringe religious liberty on the basis of prejudice against Muslims, despite being a secular state.
I seem to recall France also frowning on Christian work in schools. So aren't they equal-opportunity secular?
In theory, yes.
The law in France prohibits "ostentatory signs" of religious affiliation in state schools and such like.
This is unevenly interpreted. Every now and then there's some fuss about Muslim girls being banned from schools because of head coverings, and more rarely students get told off for wearing crucifixes. No religious meetings of any kind get held in state school premises.
In one way, the example of nuns does prove the unfairness: a Muslim chaplain in a women's prison I know of did not last long because she refused to uncover her head, whereas the nuns who have been a historic presence in the prison have never had any trouble. But nuns are not normally to be found in state schools; Muslims fall foul of the "ostentatory signs" ban more easily.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Russ
Old salt
# 120
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Posted
quote:
Originally posted by Tortuf:
people allergic to dogs might be provided a place where they can still be in the area when someone comes in with a guide dog.
That sounds a sensible and practical way of reconciling conflicting interests.
But what if no such practical solution is available ?
Suppose that the great singer Charles Aznovoice is doing a farewell world tour, which includes a single performance in your country, in an intimate cafe-theatre where anyone present who has a dog allergy would have their affliction triggered by the presence of a dog in any part of the venue.
The manager of the venue knows that there is at least one person in the town who wishes to attend but cannot reasonably do so without their Guide Dog, and another allergic person in the town who wishes to attend but cannot reasonably do so if there is any dog present.
The aspirations of the two would-be attendees conflict irreconcilably.
How should the manager decide whether or not to admit dogs to this performance ? And how does that answer relate to the concept of "rights" ?
Clearly he can consult the law of the land. Which may conceivably give the visually-impaired person a legal right to attend with their dog under some form of antidiscrimination law.
The law could also possibly give the allergic person a legal right to live a normal existence without being assaulted by the small particles of dog which every dog gives off and which happen to trigger an allergic reaction in this particular individual.
The law could do neither. Or, being a product of imperfect human nature, could conceivably do both. Legal rights can conflict.
quote:
Originally posted by Tortuf:
If the other people are bearing a slight inconvenience, it seems reasonable to enforce the right. If the inconvenience turns into suffering, a way to balance and accommodate the interests would seem to be the first thing to do. If the clashing assertions cannot be accommodated, it may be wise to examine what compromises will affect which claimant and what the adverse affects of the compromise might be.
That sounds like a utilitarian argument - the greatest good of the greatest number. Weighing up the level of negative impact (minor inconvenience ? significant suffering ?) in each case and choosing the course of action which minimises the sum of such impacts.
That sounds a reasonably good way to make the decision. A well-intentioned person could take that view. But note that (at least in its classical form) such utilitarianism denies the validity of all rights. Having a right to private property means that the utilitarian cannot take your property away to give to someone who they consider to need it more. Having a right to life means that the utilitarian cannot decide that it is better for one man to die...
Utilitarian adjudication between conflicting aspirations doesn't recognise either aspiration as a right. Because the utilitarian will reverse his/her decision if enough people of the other sort are involved.
quote:
Originally posted by Tortuf:
The other area where you need to think is to define what you mean by "moral".
Morality is about doing the right thing. Doing what you should do.
A good definition is hard, words can be used in both a moral sense and a non-moral sense.
Most people recognise the possibility that on occasion it may be morally right to disobey the law of the land (and take the consequences). So what is legally right may occasionally not be morally right (and vice versa).
A well-written and effective law could be a "good" law in a sense other than morally good. English has the prudential sense of "should" - if you want to succeed in achieving X then you should do Y.
Some religious thinkers in the Christian tradition have portrayed morality as God's law. Atheists can believe in a code of "natural justice" which is similar in content.
If you say that those who have a Guide Dog have a "moral right" to be accompanied by that dog then you're saying that everyone else "should" - has a moral duty to - permit that. Rights and duties being related as Geo D has explained.
There are legal rights, and moral rights, and aspirations.
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Wish everyone well; the enemy is not people, the enemy is wrong ideas
Posts: 3169 | From: rural Ireland | Registered: May 2001
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