A Dialogue
Haag, Ernest van den
Ernest van den Haag A DIALOGUE An imaginary conversation on legal rights and moral wrongs with Ronald Dworkin, an actual professor of jurisprudence at Oxford. Q: Do you believe that as human...
...Q: Rights tell people to do (or not to do) something: A right imposes a duty on someone to do what it requires or to refrain from what is contrary to it...
...RD: Moral rights are inherent in our nature as rational human beings...
...According to you, a court cannot decide whether these people have the rights they claim...
...But when she doesn't, how do you know that nature does not want us to do what we can do, and why should we obey, even if we somehow knew that she did not want us to do something...
...Claimants may ask courts or legislatures to legislate...
...They do not follow your reason, they follow theirs...
...or with granting rights...
...If courts refuse to recognize them or decide in ways contrary to them, do these moral rights supersede the law...
...Q: On the contrary...
...RD: Hard to believe, but possible...
...Yes, even morally wrong...
...Q: Of course these exist...
...Thus egalitarian norms prevail in some societies but not in slave or caste or aristocratic ones...
...RD: Since our own nature is the source of our moral rights they can be recognized by our reason...
...In this case the court by its decision might have created the legal principle...
...It does make a difference here...
...Of course, that authority could be morally wrong and grant the legal right to do immoral things, or withhold rights it should grant...
...The court created it...
...Q: Actually, the court used a legal principle teased out from the common law though not mentioned in the law of wills...
...Hence, the court cannot punish people for practicing what they feel is their moral right: killing Jews or policemen or industrialists or whites...
...The court resorted to the common law principle that the law should not help or permit anyone to profit from his own crime...
...Some such norms-e.g., norms needed for the control of individual intrasocial violence-are indispensable to any form of social organization...
...Rights must rest on the consent of the obligated, or be imposed by some authority the obligated authorized to grant rights...
...Q: He doesn't think so...
...RD: I certainly want them to become law...
...And why do you believe in nature's authority to grant rights...
...Q: Now, that person says he likes many of the "moral rights" you say nature granted...
...For claims are what we want to become law, and what we want the court to rule in favor of...
...Q: There is an important difference...
...RD: By the light of reason...
...The court could have applied the existing law and left the inheritance to the murderer...
...Fisticuffs...
...Rights-to use natural abilities and possibilities-are granted by law...
...rights she gave you...
...Q: I understand...
...Now, I'm not going to . argue with the government of Uganda or of the USSR about nature...
...Feudal norms differ from egalitarian norms, Christian norms from those of antiquity...
...But it would be wrong to say that the legal principle existed before...
...RD: I would try to persuade him...
...But not in the context of proof, in the context of what the law is...
...It becomes law only after having been legislated by legislatures or courts...
...They don't have the rights they should have-that's why I'm protesting...
...they are part of us as human beings...
...Q: They would remain morally wrong...
...But none of this shows that a moral principle (or right) is, or automatically becomes, law...
...Do you feel the Soviet Union treats its dissidents right...
...So, for that matter, are our consciences...
...RD: Then we don't differ, do we...
...RD: You say they don't have human rights-moral rights their government violates...
...we ask: What ought the law to be...
...It is just as irrelevant as a wrong court decision is to its legality, or validity, or to our duty to obey it...
...RD: Yes, the moral rights nature gave them and us as human brings...
...If the positive law does so insufficiently or wrongly we can draw on its moral sources...
...Q: The law would not be needed if norms or moral rights were sufficient or could replace it...
...RD: The law can be morally wrong and yet you say I have no legal right to disobey it...
...We did not entrust nature with making laws, with regulating conduct that after all she herself makes possible...
...and, finally, that if they do, people are legally entitled to act contrary to the court's ruling and in accordance with their "moral rights," and that courts should not punish them...
...Q: That's because I find it so hard to take you seriously...
...And one may want to do whatever is possible to make them conform to one's moral views-persuasion in a democracy, revolution in a dictatorship...
...They are enacted and enforced...
...Are you entitled somehow to disregard his views, and the moral rights he claims...
...This is done frequently in common law, particularly in non-criminal matters-less frequently in Roman law countries...
...You and I disagree on the law-on the source of rights and the authority that decides on them...
...and they would remain wrong if a court upheld them...
...Yet you say that you know that what you claim is more than a claim and not subject to binding decision by courts...
...Thus in some societies children can be killed by their parents...
...You think moral rights superior to law are ours by nature...
...They do not depend on legal recognition or enforcement...
...But you in effect would license these people...
...Q: Of course not...
...Sure, it won't make much difference in the Soviet Union: They are not getting rights, moral, natural, or legal...
...But there is no agreement on moral rights -on their existence, on their nature, and on what they can and cannot do for, or against, Christians, heretics, pornogra-phers, homosexuals, Communists, Maoists, Americans, Irishmen, blacks, women, Ugandans, whites, Cambodians, males, Chinese, or South Africans...
...You say you have rights from a source within you and me, granted by, or inherent in, our common humanity...
...RD: If they have the same moral right...
...For whether or not the moral law is objective, it is not demonstrable...
...Indeed if it violates a claimed moral right, the court's decision may even be legally invalid...
...RD: Aren't you saying on the one hand that the creation of laws or legal rights is arbitrary and that there is no moral necessity on which they rest and from which they can be inferred...
...Q: How then would you distinguish your moral rights from claims-moral demands, beliefs, sentiments, or attitudes that you and, perhaps, I would like to see become law...
...RD: Well, people who think that they have a moral right to kill Jews are wrong...
...and on the other that courts and legislators do recognize such moral necessities-as in the Riggs case- and act accordingly...
...RD: How can moral principles not play a role when the law is applied...
...Anyway, social survival conditions are not what you refer to as moral rights...
...Even the Soviet Union, while at first repudiating "the bourgeois juridical world view" in favor of decisions based on "socialist reality" or morality- ultimately bureaucratic terror-finally re-instituted "socialist legality," i.e., decisions based on legal rules (which made the decisions predictable on principle) rather than on moral rights of the collectivity or of individuals...
...Anything else would deny nullum crimen sine lege and open the door to "laws" consisting of people's moral convictions-as interpreted by themselves or by courts...
...They may be, if you please, objective, inherent, ordained by nature and by God...
...What about wrong, or bad, laws...
...Of course, if you based moral rights,on religious authority, things would be different...
...and in still others, none of these...
...He advises judges to disregard these claims whenever they are inconsistent with the law, and he advises citizens that they have the legal duty to obey the courts, even when the courts overrule claimed "moral rights...
...What do you do about moral rights you recognize but that others, including courts, do not...
...moral ideas surely play a role...
...after all, the court or the law did not grant them either...
...RD: Yes...
...Q: Suppose they say they do...
...RD: Even the highest court can be wrong...
...Q: Yes, but you also insist that these moral rights exist independent of enactment into law, that judges should enforce them even when their enactment has been rejected...
...Needless to say there is a wide gap there between the principle of socialist legality and its implementation...
...What specifically would you do...
...But who decides...
...We should help these people in any way we can...
...People have moral claims, some justifiable, others not...
...IV RD: Here we have been protesting to the Soviet Union about human rights-but you say human beings as such have no rights...
...Aren't you suggesting that your moral rights somehow should be recognized as superior to positive law whenever they are inconsistent with it...
...As I see it, nature gives us abilities and possibilities...
...And since courts according to you are not entitled to overrule your moral rights or his, how is the decision between you and Nozick to be made...
...You are saying that they are indispensable...
...If we ask: What is the law...
...If your moral rights are more than claims, what is their relation to legal rights...
...RD: Yes...
...but we are discussing an area where nature does not use her power...
...The law of wills did not authorize the court's action...
...Nor do we...
...that courts should not act in ways contrary to them, even if the law tells them to...
...But you dis-claimed this, didn't you...
...Q: I don't...
...But I cannot see wherein this need involves an intent by nature such as the legislator has...
...The court used a moral principle to defeat the letter of the law which would have led to an immoral decision...
...In each society, the norms that have prevailed through cumulative tradition become law...
...Q: I say neither the first nor the second...
...You think moral rights are more than what we ordinarily call claims...
...I think that their government should give them the legal rights they claim-and that I want to help them claim...
...It is my moral conviction that they ought to...
...Q: No, we cannot...
...and when they are not they are not needed...
...We don't necessarily disagree on the rights people should have by law-or have by nature, as you think...
...In others, old people...
...according to you, they are not, nor need we obey, if we decide we have a "moral right" not to...
...Can it go counter to them...
...But I'm going to tell them that I-not nature but I and most Americans-think it is wrong not to grant their people the legal right to leave, or to utter dissident views or to have legal protection from torture and wanton killing...
...Q: No, our constitution legally granted these rights to us...
...Q: Yes, in some cases...
...Nature may be superior in power to any legislation, and may prevent us from doing what we want...
...Wherefore we find these norms to be universally accepted by all societies that do continue...
...They say that nature told them, just as you do...
...RD: It has no right to...
...But they have only those rights that a rights-granting authority grants...
...according to me only those the law grants them...
...Q: I don't...
...But how would you prove that we have a specific moral right when he (and the courts) say we don't...
...How do you know that nature gave us moral rights if she didn't talk to you or write...
...Q: Are we born with lists hung around our necks, specifying our moral rights...
...But let me point out that you disagree with others on the specific moral rights nature gave us-even if they believe, as you do, that nature endows us with moral rights...
...RD: Take Riggs v. Palmer (New York, 1889): The court deprived an heir of an inheritance, willed to him by his grandfather, whom he had murdered...
...Courts are needed to decide between conflicting moral claims to determine which amounts to a legal right...
...RD: But how can the law not enact moral principles...
...Which is why positive law is needed...
...But traditions differ, and so, therefore, do moral norms and laws...
...I guess we shall not agree...
...Q: To say that they are legislated by nature rather than by governments is at best a metaphor...
...Nature is not...
...RD: I may disobey...
...Q: Do you believe that as human beings we have moral rights, which are prior to and independent of legal rights and duties...
...Q: So you are endowed with reason that leads to the recognition of moral rights inherent in human beings...
...It is their word against yours...
...RD: I must rely on reason and nature...
...And no court can take my moral rights from me...
...God could be a law-giver...
...Moral rights are antecedent to any legal rights which should endeavor to embody them but do not always do so...
...the innocent defendant wrongly found guilty has no right, moral or legal, to disobey whether the wrong finding was based on a bad law, fraudulent testimony, misinterpretation, or disregard of moral rights the law does not grant him...
...A right, desirable or not, is a social transaction, a fact, not something that comes into existence because you and I think it should, no matter whether or not we attribute our thought to nature...
...There well may be moral norms or necessities...
...Morality may claim them to be wrongs, but that does not make them legally invalid...
...He regards them as your moral claims or as his own...
...He would support enacting some into law...
...RD: You are still jesting...
...Q: A good guess...
...And about alternative or contrary moral rights someone else may claim...
...On legitimate (though illegal) civil disobedience, see my Political Violence and Civil Disobedience (Harper Torch Books, New York, 1972...
...Q: Legally, yes...
...You do, and I do not, say that we have a right to disobey the law...
...RD: In your opinion those who disobey a morally wrong legal order are always wrong-morally and legally...
...You do not believe that people who reject the court's rejection and act contrary to it should be punished if they claim a moral right for their actions...
...Claiming a moral right does not allow anyone to violate the law, however wrong he claims it is...
...Still, let me assume for the sake of argument that there is a moral principle, but no legal principle, to prevent a murderer from benefitting from his victim's legacy...
...Or, the court could have refused to create a new principle...
...Who did...
...Your list of natural rights is not only different, it is incompatible with that of Robert Nozick (Anarcby, State, and Utopia) who, as you do, believes that nature is the source of his rights...
...Q: Suppose you meet a person just like you: spectacles, slightly corpulent, speaks convoluted English, writes it ponderously, teaches jurisprudence at a respectable university, publishes articles and collects them in books, has academic degrees, and is widely recognized...
...In extreme cases we might want to disobey-but we never have a legal right to do so...
...Q: Precisely...
...I think the law and the courts do...
...But this is irrelevant to the legality of the law (as distinguished from its morality) and to the illegality of conduct contrary to the law, however much based on "moral rights...
...in still others, slaves...
...Q: They don't...
...I think rights can only be granted by law...
...RD: And when persuasion does not succeed in a democracy, would you approve of disobedience...
...Some norms, as mentioned, are essential to all social organization...
...specific legal rights are granted because the legislators have accepted more or less widely shared moral ideas or norms...
...RD: That's unreasonable...
...moral ideas or alleged moral rights can neither replace nor supersede the law whenever they are inconsistent with it...
...Q: Courts can be wrong...
...RD: Still, don't you find that the law can be overruled by moral considerations...
...or fetuses...
...That we shouldn't protest what happened in Uganda, Cambodia, the USSR...
...And if they claim rights, these claims become rights only when granted by such an authority...
...The law and its interpreters often are wrong...
...They say that they have a moral right, even a duty, to kill Jews...
...Yet even universal norms such as ''thou shalt not kill'' will be enforced in different ways specific to each social organization...
...RD: Yes, I did...
...RD: Moral rights are prior indefeasible rights...
...What is the role remaining to the courts and laws...
...You would recognize "moral rights" even if the courts reject them...
...But suppose you exhaust your appeals and the ruling is not changed...
...III RD: What you call norms are not too different from what I regard as moral rights...
...Q: How do we get these moral rights...
...Indeed, your moral rights often hinder social survival...
...If we could always agree on what is morally right we would hardly ever need the law...
...I say that we can act unlawfully (and perhaps should be punished) if for moral reasons (or for immoral ones) we so desire...
...They are among the first to be enacted into law, and are universally attributed to nature...
...RD: It doesn't follow that they do...
...Q: You met this lady and she told you...
...But our unlawful acts are not authorized by moral rights and do not become lawful by a decree of nature...
...We don't agree on whether anybody granted moral rights to you, on who did, and on what they are...
...Q: Does anyone who does not recognize the moral rights you proclaim...
...Socrates discussed this matter.* RD: Since you deny that moral rights exist, and that nature endows us with anything moral, are the legal rights that you recognize just arbitrary decrees of legislators...
...morally often but not always...
...I don't recognize these rights or the right-granting capacity you attribute to nature or reason...
...Your denial seems wrong to me...
...According to me, the courts are authorized to find us guilty and punish us according to law...
...Wherein do they differ from moral laws...
...RD: You are jesting...
...You think nature does-and that you can decide what nature has decided...
...Why did you believe her...
...Unless claims have been granted by a court or legislature, they are not rights (moral or otherwise), but remain claims...
...Therefore they are found in all societies that have continued for any length of time...
...Q: And if you do, other people, who say they are as rational as you are, can too...
...have a different nature or a different reason...
...What would you do with such a person...
...You want the government to grant them the selfsame rights...
...And that the courts overrule it in some cases...
...Some norms are essential, or possible, only in some types of social organization but not elsewhere...
...Why are they not part of law...
...Now, in the context of lawmaking, in the context of our discovery of what we want the law to be, all our notions of morality may play a role...
...How do you know which Ernest van den Haag is professor of social philosophy at New York University, and lecturer in psychology and sociology at the New School for Social Research...
...But wherein does your " moral right" differ from a rejected claim...
...Legal institutions needed for this decision cannot be superseded by claimed " moral rights...
...People, according to you, have the natural rights they decide they have...
...But unless that is done he does not regard these "moral rights" as rights at all...
...II RD: Are you sure the law is always right...
...Legally established rights can be shown to exist...
...Q: Not quite...
...Q: Not at all...
...The principle also could have been teased out of Roman law...
...It is meant to supersede our moral convictions and, yes, our consciences...
...according to you, they are not, nor need we obey, if we decide we have a "moral right" not to.ording to law...
...Do they have no moral bases whatever...
...I do not deny nature's power...
...They do not have these legal rights...
...And we all are in duty bound to obey the law-according to me, but not according to you...
...Q: The law rarely will for, as I just mentioned, it needs to enact the prevailing moral view...
...Q: You certainly can try...
...Could they be entirely different from what they are...
...Q: On the contrary...
...Where does the authority you attribute to her come from...
...If the spirit of the law, its principles, could be used directly, the body of the law would not be needed...
...Societies that do not enforce such norms cannot continue...
...They are not laws unless legislated by governments although I agree that there is a need generated by the nature of society to enact these norms into law...
...fortunately we already have these legal rights...
...But they are not legal norms, rights, or necessities until and unless the legislators-not nature or God-makes them that, by enacting them into law...
...Reason (or our moral nature which it reveals) is also the source of these moral rights...
...RD: It seems we argue about Words: I want to defend their moral rights which their government violates...
...We disagree on who decides though...
...I'll try...
...We do something we have no legal right to do-and the fact that we think it moral does not, as you think, make it legal or superlegal-however high our motive...
...Since rights impose duties on the members of society they must be granted by a socially recognized rights-granting authority...
...These are the "legalities" of totalitarian states and of dictatorships- not of democracies...
...RD: But if these things are objective then why do you quibble about their being legal...
...Suppose, then, a court rules against you...
...In which case, the legislature could, if it wanted to-and it probably would have wanted to-create a law which in future cases would have caused the courts to decide differently...
...Still, legal rights-even monstrous ones which I oppose-are the only rights I know...
...RD: Nature gave them to us...
...I know of no test to decide these matters-other than the positive law itself...
...RD: So you agree these people have rights, inalienable human rights, violated by their governments...
...Laws merely specify the moral law and the moral rights it grants us...
...You deny this role of law...
...How do you recognize rights when nature did not give us a list...
...Else we would have the bellum omnium contra omnes or, long before, some dictatorship which would enforce what you want to prevent the courts from enforcing: social rules permitting the continuation of society...
...That is why they are prior and superior to anything legislated by any government...
...No less human or rational than you...
...Yet they everywhere tend to be attributed to nature...
...and, fortunately, our courts would reject their claimed moral right...
...Two natures...
...Doesn't the whole idea of law and courts rest on the belief-all too correct-that moral rights claimed by individuals or groups often are inconsistent with one another...
...I don't think anyone has moral rights apart from legal ones...
...How and by whom are they to be enforced...
Vol. 12 • June 1979 • No. 6
