Do Non-Legal Rights Contingently Emerge?

To start, I shall return to the three separate perspectives I distinguished at the beginning of this chapter. This time though, I shall concentrate on perspective (i). This shift in focus is explicitly Humean and is, as I have argued, quite natural for the moral sceptic.

Similarly, even if non-legal rights cannot be said really to exist by the moral sceptic, there still might be varying moral standards or moral criteria which do in fact emerge in particular places and times and which then are generally regarded as setting acceptable limits on conduct. Such concerns would also fall within the ambit of perspective (i). So in focusing on non-legal rights from perspective (i), a related set of interesting questions arises. To begin with, how nearly universally felt are certain moral standards, say for example the preclusion of torture or the entitlement of those willing to work to a job? Secondly, is it possible that a standard which becomes widespread, or better still virtually universal, can give rise to expectations and entitlements, even in the absence of legal rules? In other words, can an admittedly contingent moral rule give birth to de facto non-legal rights? On these questions I wish now to elaborate.

As I have explained, Hume bases his positive moral theory on the contingent but actual feelings of people. For him, morality is a public institution imposing constraints on the behaviour of individuals.¹⁶ It has a social and communal function and explanation is in terms of the agreeableness and benefits of certain actions, conduct and constraints. Indubitably such sentimentalist moral theories lack the solid, comforting purchase of objectivist theories. Values, be they protections for free speech, bodily security, or due process, or entitlements to work or to economic development, or even a basic demand for impartiality, must be admitted to be mere contingent preferences at core. They are ineluctably linked to the responses of human beings — which could conceivably always have been otherwise.

Yet as fragile for some as such a basis may be on which to ground the moral standards which establish moral, non-legal rights, I think at a very practical level one can simply shrug one’s shoulders and press on with the task of seeing which values are, or strictly speaking happen to be, widely held. This may require an admission of a rather unfortunate state of affairs. Who would not be attracted by the prospect of values, standards and rules which are ‘real’ and ‘right’ and awaiting discovery in some Mosaic revelation or presumed as some Kantian major premiss or teased out by recourse to some Dworkinian interpretive technique?

But for those people like Hume who find the empirical evidence indicates otherwise, pointing away from the existence of objective, mind-independent values, there nevertheless remains the fact that certain feelings (say, against the use of torture in all but the most extreme circumstances) are held by most people today in most, if not all, places in the world.¹⁷ These feelings do, in an amorphous and inexact way, give rise to expectations, standards and entitlements. If some unrepresentative government somewhere were to contravene the standards embodied in such feelings, one could, I think, talk of the infringement of a non-legal right.

This explicit linking of non-legal rights and moral standards to the contingent, subjective responses, sentiments and feelings of human beings seems to me to be the most that a Humean sceptic can say. That may appear to be quite ethereal and insubstantial to some; to be a very weak branch on which to place any weight; indeed, to be a shifting, empty and, for many, unsatisfying basis on which to rest claims for non-legal rights. Beyond merely saying that, unfortunate or not, this is all that actually can be said for non-legal rights, I would also point out how any conception of non-legal rights still leaves them as ineffective tools. By that I mean to refer to the close connection between enforceability and the practical value of rights,¹⁸ Whether non-legal, moral rights be mere wisps of mutating human sentiments or some absolute, eternal, true and right relations dictating correct conduct is of little significance to the Chinese student who cannot speak her mind or to the American labourer who wants to work but cannot find a job. Unless moral, non-legal rights be made legal, and more importantly enforceable, then to some extent the profound theoretical disagreements between the sceptic and objectivist are of little practical importance. In either instance what is important is to turn desired moral rights into legal rights, and the sceptic can seek this as well as anyone else. Or can he?

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