Читать книгу This Is Bioethics - Udo Schüklenk, Ruth F. Chadwick - Страница 11

1.23 You will find that in many an ethics debate arguments for or against a particular solution are framed in the language of rights. While the topic of rights is enormous and multidimensional, it is worth pausing at this point to reflect on the difference between legal and moral rights. Let’s think of examples. Abortion is an obvious one. Does the (legal) prohibition of abortion by giving (legal) protection to the fetus violate a woman’s (moral) right to control her body? Are our (moral) autonomy rights violated in societies where assisted dying remains criminalized? Almost certainly you will be able to add your own examples here.

1.24 Of course, rights exist in law when they are backed by legislation, contract or precedent. Both legal and moral rights may be described as negative or positive. The negative ones are rights not to be interfered with or prevented from doing something, such as expressing publicly an opinion that might offend others.

1.25 While such a negative right may require social resources to protect it, positive rights are generally more expensive in that they require resources. A positive legal right could be your entitlement to access welfare payments in case you become unemployed. Such a legal right only exists in societies where such a right has been established.

1.26 What do these kinds of positive and negative legal rights have in common? One commonality is that the state or some other clearly identifiable institution is going to back them up. The state will enrol you in its welfare program in case you register with the unemployment benefits program on your becoming unemployed. Similarly, in the free speech case: the state will not only not interfere with your offense causing sermon, it might even have to deploy police to protect your legal right to say what you wish to say. Enforcement then is a crucial feature of legal rights, so is their codification in law.

1.27 When we turn to moral rights, these are not backed up by law, but by argument. Of course, an argument that someone has a moral right to something may be used to argue for a legal right. A context in which the difference between negative and positive rights becomes very clear is in the context of reproduction. Think of the right not to be involuntarily sterilized (negative right) versus the right to assisted reproduction (positive). These can be regarded as moral rights which may also be backed up by law (but historically have not been in all times and places, as we have seen). Moral rights such as these can be the conclusions of moral argument. For example, an argument that there are moral reasons to give you a certain social good, such as access to assisted reproduction, could conclude by using the language of rights, i.e., say that because of x, y and z, you have a right to it. It could, for instance, be argued on consequentialist grounds that it is good for society as a whole if individuals who cannot reproduce without technological have rights to access such assistance. On the other hand, there are certain moral views that take rights as the starting points, rather than the conclusions of moral argument. On such a view, however, it is negative rights that are typically regarded as starting points and prior to positive ones. For example, if we take as a starting point that humans are by nature autonomous beings, and that interference with an individual’s freedom needs to be justified, this might be expressed in terms of individuals having rights, period. It is not that they are given rights in order to promote some social good.

1.28 You may also want to look out for arguments which purport to show that other species have rights, and the different ways in which such rights are supported.