Prof. dr. sc. Maja Zitinski
University of Dubrovnik
Cira Carica 4
20000 Dubrovnik
Hrvatska
Tel: 38520/445734, 38520/450115
GSM 38591/5508563
Fax: 38520/435590
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The 4th Annual International Scientific Conference
»The Lošinj Days of Bioethics«
Main topic: »Bioethics and the New Era«
Croatian Association of Philosophy - Section for Bioethics, Mali Lošinj, Croatia
June 13th – 15th, 2005
When Rights Conflict
Summary
The paper investigates why impartiality or rationality are ideals worth striving for. It deals not only with an inquiry into normative ethical search for valid moral principles, but also for the meaning of key meta-ethical concepts such as “autonomy” and “rights”.The portrait of the ideal moral judgment plays an important role in the examination of both: our own views and the views of others. Bioethical genuine quest for a correct method all moral agents ought morally to be guided while answering moral questions, refers to the conviction that coming as close as possible to fulfilling the ideal moral judgment is rational. Rights themselves are distinctive moral “commodities”, that is, to have a right to anything means to have a very strong moral and legal claim upon it. It is the strongest of all moral claims that all men can assert. Since human rights must be possessed by all human beings and only by human beings, it would be irrational to distinguish among persons, deny human equity and preserve rights only for the few. Rights entail objects and areas within which every human being is entitled to act without further permission or assent. Some philosophers point out to the important connection between the goals of normative ethics and the concept of an ideal moral judgment. The approach to moral questions must be free from fault and error and other objections raised against the considered method in placing a justified limit on how others may treat the person possessing the right.
Sažetak
Referat istražuje zašto su nepristranost i racionalnost ideali vrijedni stremljenja. Referat se ne bavi samo preispitivanjem normativne etičke potrage za valjanim moralnim principima, nego također preispituje i meta-etičke pojmove kao što su “autonomnost” i “prava”. Obrazac idealnoga moralnog suda ima važnu ulogu u testiranju obojega: našeg vlastitog motrišta i tuđih motrišta. Bioetički istinski zahtjev za ispravnom metodom koja treba biti vodiljom svim moralnim subjektima dok daju odgovore na moralna pitanja, odnosi se na uvjerenje o tome kako jest racionalno približiti se idealnom moralnom sudu što je više moguće.Prava su sama po sebi vrijedne i istaknute moralne “stvari”, prema tome imati na nešto pravo znači to vrlo snažno moralno i legalno potraživati. Budući da svi ljudi moraju imati ljudska prava, te da ljudska prava pripadaju jedino ljudima, bilo bi iracionalno razdvajati osobe negiranjem ljudske časnosti nekima, te pridržavanjem prava samo za neke. Prava uključuju predmete i područja u kojima je svako ljudsko biće ovlašteno djelovati bez dodatnoga dopuštenja ili odobrenja. Neki filozofi ističu važnost ciljeva normativne etike i njihovu povezanost s pojmom idealnoga moralnog suda. Pristup moralnim pitanjima mora biti slobodan (“očišćen”) od neispravnosti i od pogrešaka te od ostalih prigovora prema odabranoj metodi u nastojanju da se odredi opravdana granica o tome kako drugi smiju tretirati osobu koja posjeduje prava.
Introduction
According to the fact that bioethics is a branch of proactively oriented applied normative ethics, it places no restrictions on the exercise of any moral rights and protective provisions. Every individual is a moral agent, and therefore he or she must have moral rights. Everybody is capable to attain objective moral reasoning scope because the field of ethics concerns issues about all kinds of policies that are desirable in social life. Reflective morality is there to genuinely scrutinize the pattern of virtues and vices exerted in the behavior of the individual when it affects rights of others. That is, reflective morality is intimately concerned with evaluation of character, as well as goals. Although the field of ethics stems from the wisdom of many generations, virtue is on every occasion an individual accomplishment and it always presupposes freedom on the part of the agent.
If the autonomous act is to display the virtue of the person’s character it must be morally justified, or it must follow reasoning and acting on the basis of moral concern for all involved parties. Bioethics genuinely emerges out from philosophical analysis, drawing directly on moral theory – but, in order to provide guidelines for practical conduct, it deserves the effort required for a careful examination of the relationship between theoretical and applied ethics. The right action, if given on a background of earlier moral development, strengthens moral autonomy in return, that is, morality deals with the kinds of persons we should be and become!
Since many different reasons influence our character and behavior, moral reasons are exclusive because they derive from both, virtues and principles of conduct. In situations where two or more moral reasons come into conflict, the person is sometimes required to pick one type of morality over another, in order to pursue the right action. This paper also aims to present of how not toconfuse various reasons for moral reasons!
What are Rights?
As morality has significant influence on human actions, the political and ethical theory brings the issue of rights into a dominant focus. Morality consists ofboth: moral rules, and moral ideals. Hence, it is important to identify:
- What happens when moral rules are disobeyed?
- How about failing to pursue moral ideals?
Bernard Gert indicated that moral rules[1] refer to acts that must not be done, and moral ideals refer to acts that ought to be done in order to prevent harm! In spite of the fact that failing to follow moral ideals does not require moral justification, the prospective of moral equality for all men is a paradigm in the civic society. Therefore violating, denying, and overriding of this proportion lowers the ideal and brings moral reason in question!
Violating a moral rule always requires adequate justification because it involves doing something that would be morally wrong unless one has a moral reason for doing it.
Are rights a collection of logically independent propositions? How do we decide and how do we resolve conflicts between two legitimate, but mutually opposed rights when their applicability in circumstances of conflict must be determined such that both rights cannot simultaneously be complied with?
An important aspect of a considerate approach is its epistemological component. That is, if we do not develop several meanings of the central claim, the task of resolving the issue will remain vague.
In deontological and utilitarian theories principles and rules have been traditionally understood as principles and rules of obligation. This is probably the result of the history, since (as some authors claim[2]), until the seventeenth and eighteenth centuries, problems of political philosophy were rarely discussed in terms of rights, perhaps because duties to lord, king, state, church, and God had been the dominant focus of political and ethical theory. Although rights have diverse origins, rights were primarily thought as liberty rights, that is, rights were conceived as “rights against state intrusion or control”, or rights not to be interfered with. Thus, historically, the notion of natural (or human) rights emerged from a need to control the unlimited power of a state. Whether exercised by individuals upon others, or groups upon society, rights were viewed as powerful and justified claims that demand respect!
Some authors[3] hold that there are at least two senses in which rights of all kinds can be said to exist. There is first sense in which we inquire whether in a given society there is intellectual or conceptual acknowledgment of the fact that persons have rights at all. Secondly, we inquire to what extent in a society that acknowledges the existence of rights, is there a general respect for, protection of, and noninterference with the exercise of those rights. If the particular society finds acceptable to express hostility against powerless, it will not be clear whether persons who are alike, are fairly acknowledged of each person’s well-being and freedom (which are basic propositions of human rights).
As Richard Wasserstrom[4] stated, rights are constitutive of the domain of entitlements, that is, a human right is a right possessed by human beings, as well as only by human beings. Because it is the same right that all human beings possess, it must be possessed equally by all human beings.
Philosophers typically draw a distinction between positive and negative rights.
Positive rights pertain to human well-being, and include something valuable to be provided to honor them.
Negative rights are simply rights to not be interfered with. Hence, negative rights imply that people simply have a right to be left alone! Joel Feinberg[5] maintains, negative rights also require, not to be treated in cruel or inhuman ways, and not to be exploited or degraded even in “humane” ways.
Rights can be (a) special, and (b) general:
(a)Special rights are of many sorts. They all are contingent on acquired status or a position, and without that special status or position there would be no rights of that sort.
(b)General rights are universal. Some authors[6] maintain that these rights are fundamental, because we have them irrespective of merit, just because we are human! Therefore general rights refer to impartial treatment in matters of justice, freedom, equality of opportunity and any violation of them results in decreasing our human dignity and self-respect!
Yet, equal legal rights are not equal rights, since legal rights need not be universal! All countries do not have identical legislation. Obviously, the theory of natural rights has not been a single coherent doctrine. This is the reason why some authors[7] indicate that the lack of any ground for any doctrine of natural rights results in the vagueness of almost every formulation of a set of natural rights. The failure of persons to agree upon what one’s natural rights are, lead to the desirability of overriding and disregarding of these rights.
Martin[8] assumes rights and duties are correlated, but rights rather than duties are morally fundamental! The criteria that are necessary and sufficient conditions of right possession as stated by Tom Regan[9] include all and only free, rational beings who have moral rights. Hence duties arise because humans are moral agents, and therefore they must have moral rights! Yet, humans retain moral rights even in a coma because moral rights are universal. Among various moral rights, the most basic moral rights are human rights simply because we are human beings.
Human rights can never be equated with political rights since human rights exist even if they are not recognized. On the contrary, political rights exist only if governments recognize them.
The Roots of Bioethical Principles
If bioethics is to contribute to the solution of practical problems, specifically to the problem of conflicting rights, than we must seek to develop a theory of moral reasoning that will determine which arguments ought to be accepted. Or, as Martin[10] suggested, most valuable accomplishment of ethical choice is that it liberates us from ignorance and prejudice by fostering “the virtues of intellectual honesty, integrity, courage and truthful communication.”
The problem of conflicting rights in bioethics cannot be labeled as a technical problem, on which only the expert can have an opinion. Bioethics involves questions that affect human beings regardless of their expertise, and an expert is only a man among men. Therefore, bioethics has to bring under examination a number of fundamental human moral problems at once. And these are not narrowly defined issues of bioethics; - or, as Ramsey[11] advocated, of medical ethics alone.
Moral growth presupposes activities needed to promote values that do not only advertise what is good, but ordain what is right. Since the progress of the western world has been equated with various dimensions of modern support to the individual, personal autonomy is believed to be “the duty to maximize the individual’s right to make decisions”[12]. Accordingly, value judgments in bioethics make no sense in the absence of freedom, and Hobbs[13] is one among many professionals who assume ethics depends upon choosing, and choosing depends upon freedom, even though the freedom is limited, or finite. Therefore, reasons referring exclusively to the welfare, good, and happiness of other persons – have no morally adequate justification if they usurp the right of these persons to exert rights.
The issue of rights is important because it brings into focus such policies that can discriminate against people in occasion when two parties have no compatible goals. Conflict is always a form of communication and even in the case when rights of conflicting parties both capture a very valid prospective, each single prospective is simply partial! Therefore some other obligations are there to justify the course of action in which people are so directly involved. If but only one party’s rights were accepted as the exclusive authority, the misuse of a position of power is likely to occur, and no method for resolving difficult cases will be developed.
One party model is wrong not only from the prospective of an agent who usurps rights of the other and therefore becomes more and more corrupt! Harming persons who are discriminated against, wrongs them, which is morally unacceptable! That is, moral action involves two sides, the agent and the victim. Therefore, the quest for moral progress always refers to our personal responsibility of how we can make ourselves morally better and achieve our goals but not at the expense of others!
In the past, due to the one-way (authoritarian) communicating style, the moral agent was particularly ready simply to refrain from communication rather than to develop options that would benefit both sides. Totalitarian history contributed to such black and white approach, and developed extreme responses to conflict. Moral agents had been expected to confront aggressively on one hand, or withdraw and avoid conflict whenever possible, on the other hand. Both strategies displayed one-way communicating style that produces winners and losers who disregard the other party’s concerns. This means that unresponsive communication is morally wrong because it always leads to frustration.
Violating rights can be justified only if a morally adequate reason is provided. Consequently, the interfered person who has been put in the position of an object is being treated wrongly because no double standards for rational beings are allowed! If a person is pushed into the position of an object, in circumstances there is no way to fulfill his or her human responsibility to create his or her course of action! That is, moral reason is involved with practical questions, not with the ways things are, but with the way things ought to be. Conflicting rights highlight the problem of moral equality for all humans, because rights of each party as related to virtue and derived from intrinsic values, involve the same right all humans should be recognized to possess! If so, these sorts of rights must be possessed equally!
If there is a duty, or a social obligation of the civic society to protect fair equality of opportunity, than conflicting rights should be viewed under the scope of both, personal autonomy and moral autonomy. Since moral autonomy is universal and more specific than personal autonomy, applied ethics should be directed toward the development of moral expertise, and involve greater understanding of moral truth concerning practical issues. That is, as Ruth Macklin[14] points out, a knowledge of theoretical rules is crucial for being able to identify the source of disagreements and for arriving at a resolution of conflicts. Conflicts, no matter what the context, typically provide the rich insights of creative strategies of proposed solutions. If no perfect solution can be found, it is still possible to arrive at the least inadequate answer to the claim.
Since reflective morality implies investigation on the basis of a study of the moral reasoning and their logical properties and implications, it is obvious that moral reasons are neither created by laws, customs, or God, nor reducible to laws, customs, or religion reasons. In spite of the fact that the essence of man is imperfection, the reflective morality enables the man to attain possible objective moral reasoning scope! Yet, God is perfect, hence, God is not requested to obey rules, or comply principles, instead “God would recognize and appreciate moral reasons as warranting divine commands.”[15]
The contemporary ethicists who share Kant’s duty orientation in ethics, when referred to the meaning of categorical imperative still disagree with Kant in respect of its absolute value. It is particularly true in the case of conflicting duties. That is, in a crisis, some duties can be superseded with other duties! But who and how is to decide which duty has a priority in the contrast with absolute (prima facie) duties? Of course, it would be wrong to conceive of “prima facie” duties as of an absolute value! It is the case when the “prima facie” duty interferes with an agent’s right to protect his own life from harm.