What are the limits to the right to free speech?        

In the U.S., as in other countries, there exist certain groups or organizations who promote the superiority of particular ethnic, racial, and/or religious types over others, even to the point of flirting with the notion of violently forcing their views upon society. These groups will promote the idea that another class of people are evil and/or inferior and deserve to be punished, enslaved, and/or wiped out. Such groups are the Aryan Nations, the KKK, the American Nazi Party, The Black Muslims, etc., etc. For an interesting overview of just what groups exist and how many there are please check this out :www.splcenter.org/get-informed/hate-map 

    To what extent, if any, should these groups have the right to express what they want to say? Can you justify the right to free speech for these groups, and if so how would you justify it? Or do you think that these things should be censored, and if so to what extent? Entirely, partially?

Rights ethics: An Introduction

Everybody has some familiarity with the concept of rights. There is probably no ethical concept more well known to most people today. Most people understand that they have rights: the right to privacy , the right to free speech, the right to bear arms, etc. Certainly everyone has the right to life.

But what exactly is a right? The curious thing about rights is that they are thoroughly abstract entities. They are intangible. Contrast that with Utilitarianism for a moment. Utilitarianism is a theory based on something which is very concrete for all, that being the experience of pleasure and pain. As we have seen, this is one reason for its appeal as a theory. But utilitarianism has a major weakness, something which was also briefly touched upon already, that being that Utilitarian theory seems to have no adequate way to talk about rights. A utilitarain may make the argument that the rights of the innocent could be violated if the greater good calls for it. But, and this is not an argument, many have at least the sense or the intuition that there is something untouchable about the life of the innocent, no matter what ends may be acheived by the violation of their rights.

The Defintion of Rights

While the concept is assumed to have validity by many, the actual definition of a right is something that has no nice fixed formulation. Rights are defined as entitlements, claims, powers, or freedoms. It probably is safe to say that in general that right is a claim for some kind of freedom. This is of course a very vague definition, but it does lead us to something important, and that is the fact that the concept of rights is bound up with the idea of freedom. For example, if I have the right to privacy, that means I in some way should have the freedom to be left alone without the interference of others in how I live my life. If you have the right to property, that means that you should have to freedom to own something without having to worry about another party stealing or damaging that property. Whenever we are talking about rights we are also talking about freedom in some manner or other. There is further dimension to the concept of a right, being that a right functions as a kind of sign or marker. What a right marks is the need for the society, community, or the state in which a person lives to recognize and safeguard the freedoms claimed by that right.

The preliminary question: Does freedom exist?

Any talk of rights presupposes that rights actually refer to something real, that is, the freedom that rights are rooted in. But is this freedom real or something imaginary? On one level freedom can be very real for someone who thinks of themselves as free. But on the other hand, is that all freedom really is, something fictitious or imaginary ?

There is an ancient philosophical question concerning human freedom, known as the question of free will. Its not a question concerning whether or not human beings ever truly have political freedom. Its a question as to whether or not the power to actually choose anything freely really exists at all. Do we in fact have this power, or are we merely casued to do what we do, by forces or powers external to ourselves. For example, do I really choose to eat certain kinds of foods, or is it something like genetics that compels me to eat hamburgers and ice cream more than broccoli and apples? Does a murderer choose to kill, or is the murderer themselves at the mercy of forces beyond their control, like brain chemistry or environmental factors like the child abuse they have experienced as a child? Most if not all human beings believe in cause and effect- are we not caused to do what we do, like any other phenomenon in nature?

The view that no free will exists is known as Determinism. It is the view that we are caused or conditioned to do what we do and to be what we are – there are no choices in life. We are no more in control of our lives than then the snowflake in the wind or the rock hurtling through empty space toward the sun. What is interesting is how many different kinds of causes could be in control. Enviornment, Genetics, brain chemistry, instinct, the unconcious mind, etc. Which one is it? Then there are the metaphysical ones, as for example in the idea of God's Will, Karma, Fate, or even Astrology. "I can't help being stubborn, I'm a Taurus" or "My moon is in Scorpio in the second house, I just can't stop obsessing over how much money I have".

As I hinted above, however, there is a serious philosophical and ethical consequence if Determinism is true. That is the question of responsibility. As you know a person can only be responsible if they are capable of making a choice. If a person can't help it "because …. made me do it," then they are not, they cannot be held accountable for their actions. If a person is slipped a drug without their knowledge that transforms them into a homocidal manaic, and then goes on to kill or maim someone, we can't blame them the way we can blame somebody who in fact chooses to kill, knowing full well what they are choosing to do so. However, if no one is choosing anything, who could be blamed for anything negative or criminal that they do?

The view that there is such a thing as free will is known as voluntarism. There are certain extreme voluntaristic views that one finds in so-called "Prosperity phillosophies" These are popular philosophies for people who want wealth, health, fame, power, and success. They are based on the idea that if one simply chooses to think positively as if one had these things already, they will be attained. the troubling side to this "hard voluntarism" is that there is the implication that if a person is poor and unfortunate, that is the result of having somehow choosen to live that kind of life. what is to be noticed here is how much the element of control and self-determination is emphasized in voluntarism.

Voluntarism is easy to believe in but its much more difficult to prove than determinism. The reason for that is simple to see. Determinism is based on cause and effect. If you consider the modern forms of determinism, for example the notion that a person does what they do because they are conditioned by the environment, it becomes clear that there are aspects of this that can be demonstrated using science- we can form hypotheses, run experiments, crunch data etc. Free will on the other hand presents a problem in that there is nothing that you can prove about it from the point of view of science. The fact of the matter is that belief in free will is belief in something metaphysical.

B. Two basic kinds of freedom

We will assume that freedom of the will does in fact exist. Going from there, we have to look at some of the fundamental concepts of freedom found in ethical theory. The two most important ones are the concepts of negative freedom and positive freedom.

Negative Freedom

Negative freedom can be briefly defined as "freedom from…x." This is the idea that a person can be free in the sense that they are allowed to live and act in certain ways. Negative freedom then refers to the sate or condition of not being constrained by someone or something. Usually this is experienced by us as the legal/moral constraints that are imposed by one's society and/or one's government. So if a person has negative freedom it means that their government allows them not only to live, but it allows them to live however they choose up to a certain point. No society allows what could be called absolute negative freedom- that would be found only in a condition where a person was allowed to do whatever they wanted, including murdering, harming, stealing, etc. Every functioning society must therefore have some constraints to prevent indviduals from violating the rights and therefore the freedoms of others, meaning that negative freedom in any given society is always limited to some extent.

Positive Freedom

Positive Freedom can be defined freedom for or freedom to…x. This concept is a little more difficult to explain and understand. Positive freedon refers to the idea there is no point in being free unless there is something like a goal or a direction to that freedom. This goal or direction does not have to be sharply and clearly defined for a person. It could be as vague as the notion of "just wanting to live a happy life". Here's an analogy: You could think of freedom as a sailboat. You're not going anywhere unless you have sails to capture the wind. That is what negative freedom is like. You can't do anything unless you are given the time and space (the sails) to fulfill your desires (the wind). Yet what good is that if your boat has no rudder, no wheel, no maps to find your way? That is what positive freedom is like. It may seem as if this is saying that you are really not free unless your freedom is somehow constrained by the choice of direction in life, but the argument here is that lack of direction is just as much a constraint if not more so in that freedom with no direction to it could cancel out the good of having any freedom at all in the first place

Two more concepts of freedom

Formal Freedom

Formal freedom is the freedom given to an individual by law. Whatever the law allows you to do, or gives you permission for is what is called formal freedom. This is fairly straightforward, but a couple of point need to be mentioned. One is the fact that a law will sometimes frame the freedom in terms of rights, instead of in terms of freedom. The other point is that while it may be very important to have one's freedoms/rights recognized, it is also important to be able to act on those freedoms given to you by the law. What good is the freedom of speech if you don't have the education to say well what you want to say or if you don't have the staging to say whay you want to say? This takes us to the next concept of freedom.

Effective freedom

Effective freedom is having the means or the resources to act on whatever freedoms a person might have in a given society. the simplest way to explain this is to ask a question: All things being equal, who has more freedom, a person with $100.00 in the bank or a person with $100,000.00 in their account? Effective freedom is power. It is having the resources to actually be able to do things, to actually exercise one's freedom. Its one thing if the law allows you to do things or to own things, but its quite another to have whatever money, resources, connections, status, etc to really be able to exercise those freedoms. There are many factors that can go into effective freedom- its not just money. There are things like family legacies, connections, and even family names that can give a person more freedom than another. Its your class, your credit rating, and yes your race and your sex that can make a difference. Perhaps you can see what I'm building up to here. Effective freedom can be an awfully unfair, and yes, even an unjust matter. So we have passed laws to ensure the right to equal treatment regardless of certain factors that used to make a difference, such as race. Nevertheless it is effective freedom that can make the playing field very uneven.

Three Basic Rights

Right to life

The right ot life could be called the root right for all rights. It would be understandable to think of the right to life as merely being the right to be alive, and it does mean that. However this is a rather restricted definition of it. the right ot life is the basis for all other possible rights. In the broader sense, the right to life is the right to live in all possible senses of what it means to live freely. For example, to live freely includes the freedom to have control over one's affairs, one's own property, one's mind and body. So then there is the right to property. we shall be examining the right ot life in all of its possilbe meanings in a litter bit.

Right to Possession

If a person is going to live freely then they will require certain things in order to preserve and maintain that life. In other words they will have to possess certain things in order to live. Hence there is the right to possession.

Right to expression

Human beings need to express themselves, for whatever reasons. they need to communicate, to speak, to create, to tell, to relate. We can therefore say that in order to live freely, human beings have to have the right to expression.

The Minimum vs. the Maximum right to live.

As was mentioned above, the right to life is actually a broad and complicated concept. It can be conceived as an incremental concept going from a minimum meaning to a maximum meaning. The minimum meaning would be the mere right to be biologically alive, with no other qualifications. The maximum meaning would be a condition in which we are refering to someone with all the possible rights a person could have in a free sociiety. If a person has the maxixmum right to life in a free society, than all other individuals in that society will have the maximum right to life, since the maximum right to life would include the right to equal treatment under the law. Ultimately, the maximum right to life would mean that the rights-holder would have the right to do with their own life as they see fit. It would mean the right to live in whatever way one chooses to live. This presents, however, a threshold of ethical problems that perhaps are best dealt with by not allowing them to come into being in the first place.

Consider these possiblities:

A. If the maximum right to life is allowed, that would therefrore legally allow people to commit suicide for any reason whatsoever. Right now the laws in most countries that permit suicide are highly conditional, meaning that there have to be special circumstances. In the United States there are only two states that allow a person to commit suicide legally, those being Oregon and South Dakota. However the only way this is allowed is if a person is suffering from a terminal disease with no hope of recovery and if the prognosis is painful and fatal. A board of physicians have to review the request to die and give their decision. Having the maximum right to life would mean that a person could kill themselves legally for any reason at all and with no one's permission.

B. The maximum right to life would allow anyone to ingest any drug whatsoever. Here the issue is whether or not unfettered drug use would work for society. Its one thing to imagine an individual using any drug and possibly destroying their own life – if its their choice so be it. The question is raised however as to whether or not such a freedom would adversely affect society as a whole. Consider addiction. Its a phenomenon that frequently affects not just the addict, but anybody whose life is connected to the addict. No person exists in complete isolation, everyone is involved in some set of social connections in some way or other. Consider a drug that is legal- that being alcohol. Is it true that all alcoholics live in a way that affects no one else besides themselves?

C. Prostitution would be permitted. If a person wants to use their sexuality to provide income, then they should be allowed to do so if that is their choice. We are confronted here with the same issues that we saw above with drug use: Would the unfetterd sale of sexuality work for the health of society as a whole? There are many pros and cons to this, yet there is a concern about certain aspects of sexual psychopathology which parallels the concerns about the use of certain drugs. Extreme sexual sadism, Pedophilia, Necrophilia – the list goes on – can we allow these things too?

D. At the bottom of all of these possibilities is the question of consent. If a person is consenting to do any of these things, then they are exercising their freedom. Should we allow people to do whatever they have consented to do? Consider this disturbing case from Germany in 2003. Warning, this is not for the feint of heart or stomach, and I'm not kidding.news.bbc.co.uk/2/hi/3286721.stm

Paternalism

Because the maximum right to life presents so many potential problems for any socity that wnats to institiute it, most free sociieties limit individual freedom and put some form of paternalism into practice. Paternalism is the view that people are actually not capable of rationally managing their own freedom resulting in choices and/or actions that are contrary to the person's own best interest. For example, in a free socity with the maximim right to life, a person could choose to shoot heroin. Yet it is accepted wisdom that heroin is not a drug which will benefit a person in the long term, actually quite the opposite.

Classifications of rights

There are several ways to understand how rights both function and create controversy. These classifications present us with different aspects of rights insofar as they are moral concepts in a complicated world of confusion, disagreement, compromise and ongoing revision of who has what kinds of rights.

1. legal/moral

A legal right is any right given to you by the law, in whatever form the law exists

A moral right is any right that exists independently of the law

Its a familiar truth that if something is legal, it doesn't necessarily make it moral. In the ideal world, which of course does not exist, all moral rights would be legal rights. A moral right could also be called the real right. This is of itself controversial, because it is the notion that a right is something that somehow exists independently of the legal conventions that define it. Yet we all know that there are plenty of cases where people had rights in some sense, regardless of the fact that their government did not recognize them. Take as a very concrete case the example of the American civil war. A lot of lives had to be lost in order the establish the reality of a slave's right not to be a slave. What was the fighting for if those rights were not real in some sense or other?

So then there are three possibilities here: 1). A right could be legal but not moral – the law says a right is real when it is not , 2). It could be moral but not legal – the law does not recognize a real right, and 3). the right is both legal and moral – which is best case when the right is real and the law recognizes it.

Controversy: What are the moral rights?

But this also opens up a particularly important issue: What are those real rights and how do we recognize them as real? In order to see what this is about, think of an example of a right which is not moral but legal. Or think of a right which is moral but not legal. If abortion comes to mind, then you're hovering right over the very thing. The point here is not that abortion is wrong, rather its that there is so much disagreement over who or what has the real right in the abortion controversy. Is it the fetus' right to life or a women's right to choose that is is the real right? A pro-life advocate would see the right to choose a legal but not moral right and the fetus' right to life as a moral but not legal right. A pro-choice advocate would probably argue that the right to choose was the real right, while the right to life of the fetus was not as real, if not simply unreal.

2. general/specific

A general right is any right which is not exercised.

A specific right is any right which is exercised

The general right, which can also be called the abstract right, is a right which is not being used, so to speak by the owner. Its like the tool or implement hanging on the wall. It still belongs to you, you're just not using it. But once you begin to use it, there are certain things you can do with and certain things you can't do with it. What is meant by this is the moral limits on what you can do with a right. Many people are familiar with argument concerning yelling "Fire!" in a crowded theater when there is no fire. Just because a person has the right to free speech does not entitle them to say whatever it might please them to say, particularly if it results in needless damage and loss to life, limb, and property. The specific right refers to the appropriate exercise of a right within certain morally defined boundaries.

controversy: What are the limits of a rights exercise?

There are many rights that entitle people to certain freedoms that are difficult to define. Appropriateness is a concept that is sometimes difficult to mix with freedom. To say it another way, its not always clear when going too far really is going too far. Take for example the right to free speech, exercised as the right to artistic expression. When does an artist go too far?

The following examples are graphic and probably offensive in some way. Please be warned.

Consider this: en.wikipedia.org/wiki/Piss_Christ

and this: www.npr.org/templates/story/story.php

and this, which may look harmless but could be the worst one of all:en.wikipedia.org/wiki/Myra_(painting)

One way to decide on issues like this is to make a distinction between harm and offense. Something is offensive if it is just that and only that. It disgusts, repulses, shocks, perhaps insults– but does it actually damage or injure? Harm is just what it means – does the exercise of the right ( in this case the exercise of free speech) actually damage or injure anyone? In the case of the first work above, the Piss Christ, we could probably class it as offensive. The third case is a real problem because "Myra" is a portrait of a convicted English child serial killer and you can believe the victims' families were very upset when this painting was exhibited in England. I didn't say that this was a nice neat distinction.

3. Positive/Negative

A negative right obligates the rights-regarder to allow the rights-holder some freedom

A positive right obligates the rights regarder to benefit the rights-holder

This classification is based on certain logic governing practically all rights, a logic has to do with the fact that nearly all rights have a corresponding duty or obligation. A right by definition must have its necessary obligation. For example, if you have the right to be alive, then others will have the moral obligation not to kill you. If I have the right to privacy, then others will have the obligation not to invade that privacy or to interfere in my own affairs. From this relation between right and obligation there arises the two concepts of rights-holder and rights-regarder. The rights holder is obviously the person with the right. The rights-regarder is the person with the obligation towards the person with the right.

A negative right defines the negative freedom of a person. If I have a negative right then I am allowed to be free to some extent or other, and others must recognize that right. A negative right is the right not to be harmed or interfered with. It obligates the rights-regarder not to harm or interfere with the life of the rights-holder in the manner stipulated by the right. Negative rights are the rights that protect the basic freedoms of a person.

A positive right is the right to receive some benefit or good in order to improve the quality of life. The classic example of this is what is called a welfare right, and this would include things like social security and Medicare. It creates the obligation for the rights-regarder to transfer, either directly(charity) or indirectly (taxes), some resources to the rights-holder. A positive right obligates others to somehow share or donate their own resources to make the life of others somehow easier or better. Ideally this means the resources are given to address inequalities created by circumstance or conditions that are somehow beyond the control of the beneficiary. Usually at the heart of this is the issue of helplessness- if the rights-holder is physically and mentally well do they deserve this treatment? Many people say no. Take for example someone who is incapable of using their legs. It would be a cold truth to say that they could get along just fine without wheelchair ramps or special doors. But as a society we do agree that its better if life is made easier for people like this. Or consider a more obvious example of how this plays out in real life. Who is more likely to receive money on the subway train when they ask for it, the person who is clearly disabled or the person who can walk through the train?

Controversy: How much and in what ways are we obligated to benefit others?

This rights-classification is interesting because it raises the moral issue of self-interest and the welfare of others. Is it morally questionable to live one's own life, not interfere with the lives others, but yet doing nothing for the welfare or the needs of others? What if we were given the choice to prevent our tax money from going to any welfare program, including social security, unemployment, and Medicare? What kind of society would we then be choosing? Should positive rights be more than merely (controversial) moral rights, or should they be legal as well?Is it fair to legally force people to be charitable?

4. Indefeasible/defeasible

An indefeasible right is any right which should not be violated

A defeasible right is any right that can be violated, if the reason is good enough

One of the primary moral notions embedded in the concept of rights is the idea that a right is something that just should not be violated, no matter what the reason. In a different kind of world, where things are not morally complicated, it would be possible to speak of all rights as being simply indefeasible. however, things are complicated in this world, and this will sometimes require that a right be violated for any number of reasons. A right is referred to as indefeasible if there is no justification in any way for that right to be minimized, compromised or violated.Here "justification" means of course not just any reason, but a reason that could in some way seen as a morally legitimate reason.

A right is defeasible if the right can be justifiably violated if the reason is good enough. "Good enough" refers to the idea that there is some extenuating moral reason for violating the fight.

Controversy: When can a right be violated?

The whole issue here hinges on the idea of justification. There are different types of justification that come into play concerning the defeasability of a right. One of the most familiar justifications involves the implementation of punishment. Any punishment involves the minimization or even the elimination of certain rights.

Then there is another kind of justification that could be referred to as either utilitarian or rights-prioritizing. This involves the violation of a right for the sake of a greater good or because not to violate the right would result in the violation of a more important right. We can agree that in general people have the right to the truth. But what if a seriously injured or ill person has a family member die at the same time they are hospitalized? Many in the medical community agree that a patients right to be told the bad news may be violated or suspended, if it seems clear that such a truth could affect their own health or recovery of health adversely. In this case the right to the truth is subject to being judged as less important that the patient's own right to life. If a person has just had a heart attack, and then their house burns down, would the news do them that much good? Here's another example which may be familiar to some of you. All therapists are bound by a code of confidentiality not to speak of their clients problems in way which would reveal the client's identity. But what if a therapist has a client who speaks repeatedly of their desire and their plan to kill someone, clearly indicating that this person means to do it? Who has the more important right, the client and their right to confidentiality, or the intended victim and their right to life? Its probably best if the police are notified rather than….

It is hard to argue that there is any right that is free of any of the conditions which might make the right defeasible, given the the proper time and place. Many have tried to argue that torture, for example, constitutes the violation of a right, the indefeasible right not to be tortured. Yet many have counter-argued that given the right circumstances, that right could be justifiably violated. Maybe a better example might be something like the right not to be sexually violated or molested. It would take a Hollywood scriptwriter to imagine a situation where a person could be justifiably raped.

5. Inalienable/alienable

An inalienable right is any right which the rights-holder should not forfeit

An alienable right is any right that can be forfeited with no implication of moral wrong-doing

This concept may be difficult to understand at first, but it involves the fact that some rights may not be desirable for the rights-holder to keep. Either the right involves some kind of labor, or some amount of inconvenience, or even some degree of suffering for the rights-holder. However it may at least be morally questionable to give up the right. Its probably best to first explain by example. Think of someone who wants to kill themselves, because they are suffering from some kind of psychological pain. Someone could conceivably argue that to commit suicide is to violate the inalienable right to life. The idea here is not merely that it would be wrong to kill yourself because its the act of self-murder, its wrong because you may not have properly evaluated the difference between what you want by killing yourself and what is ultimately best for yourself. You might think that suicide is best, but are you really in a position to objectively judge? Another example- the right to vote. For many it may just be inconvenient to vote, but again its is in your own best interest to vote, otherwise don't complain if some horrible idiot gets into the White House. Its a question of what a person perceives as their best interest versus what is truly in their best interest. Its morally questionable to give up the inalienable right because, one might say, you are in effect giving up yourself in some way or other – your life, your power, your freedom, etc.

An alienable right is a right that can be given away or forfeited with no serious moral implication. Example of this are certainly property rights. If you want to sell your car because you don't need it but need the money, what's the objection? If you want to be charitable with your cash and you can afford to be, there's no question of wrong.

Controversy

There are a few issues with this, but many of them come down to how exactly to draw the line on the distinction between the inalienable and the alienable. Consider for example your own body. Is your body you or is it your property? If your body is you, then you're looking an inalienable right to one's own body. If its your property, then there may be something of an alienable right about it. Here's a couple of odd question to shed some light on what's at stake here: Would you accept $50,000 in exchange for one of your little toes? How about a million dollars for your left eye? How true is it to say that everyone has their price?

The Basis of Rights

Meta-ethics is the study of any kind of foundational issue in ethics. This topic is a meta-ethical topic. It concerns the question: Why do rights have any meaning at all, why do they mean anything at all to us? Why should we respect rights in the first place? Why should we act as if rights are real? The following arguments are all attempts to answer these questions found in the history of ethical theory.

1. The argument that rights are God-given

This is the oldest argument for the reality and legitimacy of rights. Its based upon the idea that since human life is sacred because it is created by God, to speak of human rights is to speak of the marks of this divine gift of life. In other words, a right marks the moral spot where certain acts would transgress the law of God by insulting, injuring, or destroying God's gift of life to us. For example a murderer does wrong by violating the right to life, meaning that a murderer seeks to destroy the divine gift of life belonging to the person they kill. Another example of this kind of rights-thinking is found among some people in the anti-abortion movement, who argue that abortion is an affront to God because abortion destroys the God-given right to life of the unborn innocents. For more on the abortion problem see argument #3 below. The major weakness of this argument is of course the fact that it is based on religion. Upon which religion shall we base our rights? The anti-abortion argument cited above may be based on certain conservative Christian views. However in other religions, abortion is permissible up to a certain point in the pregnancy, in order to save the life of the mother, etc. These are articles of faith, not stpulations of rights based on reason.

2. The argument for natural rights

This particular view originated in the 17th century and was popular up until the 20th century. In the beginning of its its history it maintained that human beings had rights because God created them that way. So in this respect it seemed to be just a continuation of the argument that rights were God-given. However, the argument diverged from the simple theistic view by virtue of claiming that the rights were actual natural entities existing in the individual, in same way that we speak of a person's potential or their talents as somehow existing within them. However it then became a matter of some controversy as to the nature of the "nature" from which these rights originated. Thomas Hobbes argued that natural rights came from the natural state, which to him meant a pre-civilized condition in which there was no society to keep human nature's natural selfishness in check. In his view everyone had a natural right to food, which explained a lot of killing. Others argued that rights were based on natural tendencies or capacities. If human beings have the natural capacity for communication, then they should be allowed to communicate, they have a natural right to speech. Unfortunately humans also have the natural capacity for murder – so then there is a right to…? In order for this argument to work, nature has to be moral. And its not.

3. The argument from rights-conferring properties

Originally this was the argument that rights receive their legitimacy from the fact that human beings are rational or that they have reason. Its an old idea that human beings have rights not only because they are free, but also because they know they are free and reason how to make choices with that freedom. In other words, you and I know that we have a life to live and make our choices in the light of that knowledge. Traditionally this was used to argue why animals don't have rights, due to the fact that they don't live on the same level of reason or awareness. You have a right to life because you have an awareness of that life and its value, whereas a cow may know that it wants to live, but probably doesn't understand why. As many people used to say, and still say, in the case of the cow its just a matter of instinct. However things have gotten more complicated with this argument for several different reasons. One reason why is that many philosophers have argued that being reasonable is too narrow a criterion to decide who or what has a right, and many such objections come from some concern with the rights of animals. Yes, its true that a pig may not be able to do calculus, but should a criterion like that seriously decide the issue? How many humans know enough to do calculus?

This has led to a reworking of this argument which no longer hands out rights based on the possession of reason, but based on what are called rights-conferring properties. A rights conferring property is any quality or characteristic of life, which, when possessed by a living being, necessitates our recognition that the being has at least the most basic of rights (the right to Life). Here's an example. Back in the 1960's there was a lot of groundbreaking research into dolphins. It was found that dolphins were highly intelligent creatures. As a result of this research, it became common knowledge that the brain size of dolphins was not only comparable to humans, the dolphin brain was actually slightly larger than the human brain. For many people, this became a rights-conferring property for the dolphin, meaning that dolphins are at least the equals to humans, and therefore should be treated as such on a moral level.

This argument is now one of the leading arguments in rights ethics, and not only because of the concern for animal rights. Many of the concerns that humans have with the beginning and end-of-life issues have been answered with this kind of thinking. Take the abortion issue. The whole thing revolves around the question as to when the fetus is a human life. This is a rights-conferring property issue. Or the end-of-life issue as to when a person's life is effectively over. What are the rights-conferring property of a real conscious life? Not so easy to say- but more on this in the next module.

4. The argument from the absolute value of life

This view argues that a right, or at least the right to life as the root or basic right, is a kind of marker or sign that sets a boundary between what could be called practical judgments and moral judgments. The absolute value of life refers to the judgment or insight, which is subject to debate, that a human life has a value which is not limited to any definite amount, or in other words, the life is beyond price, is priceless. In other words, no one can truly say what the value of any (human) life really is. To make such a judgment is morally reproachable at worst and morally questionable at least. The murderer, therefore, presumes to make a merely practical judgment about the person they kill, which could be that the victim is a liability and needs to be eliminated. The murderer fails to see that their victim has their own life that should not be judged as if it were a merely an obstacle to their own ends. To violate a persons right is to fail to see the moral foundry that defines our lack of knowing concerning the real value of living, if there is such a value.