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A Special Supplement: Taking Rights Seriously

We are therefore left with two puzzles. How can two parties to an issue of principle, each of which thinks it is in profound disagreement with the other, embrace the same position on that issue? How can it be that each side urges solutions to particular problems which seem flatly to contradict the position of principle that both accept? One possible answer is that some or all of those who accept the common position are hypocrites, paying lip service to rights of conscience which in fact they do not grant.

There is some plausibility to this charge. A sort of hypocrisy must be involved when public officials who claim to respect conscience deny Muhammad Ali the right to box in their states. If Muhammad Ali, in spite of his religious scruples, had joined the Army, he would have been allowed to box even though, on the principles these officials say they honor, he would have been a worse human being for having done so. But there are few cases that seem so straightforward as this one, and even here the officials do not seem to recognize the contradiction between their acts and their principles. So we must search for some explanation beyond the truth that men often do not mean what they say.

The deeper explanation lies in a set of confusions that often embarrass arguments about rights. These confusions have clouded all the issues I mentioned at the outset and have crippled attempts to develop a coherent theory of how a government that respects rights must behave.

In order to explain this, I must call attention to the fact, familiar to philosophers but often ignored in political debate, that the word “right” has different force in different contexts. In most cases when we say that someone has a “right” to do something, we imply that it would be wrong to interfere with his doing it, or at least that some special grounds are needed for justifying any interference. I use this strong sense of right when I say that you have the right to spend your money gambling, if you wish, though you ought to spend it in a more worthwhile way. I mean that it would be wrong for anyone to interfere with you even though you propose to spend your money in a way that I think is wrong.

There is a clear difference between saying that someone has a right to do something in this sense and saying that it is the “right” thing for him to do, or that he does no “wrong” in doing it. Someone may have the right to do something that is the wrong thing for him to do, as might be the case with gambling. Conversely, something may be the right thing for him to do and yet he may have no right to do it, in the sense that it would not be wrong for someone to interfere with his trying. If our army captures an enemy soldier, we might say that the right thing for him to do is to try to escape, but it would not follow that it is wrong of us to try to stop him. We might admire him for trying to escape, and perhaps even think less of him if he did not. But there is no suggestion here that it is wrong of us to stand in his way; on the contrary, if we think our cause is just, we think it right for us to do all we can to stop him.

Ordinarily this distinction, between the issues of whether a man has a right to do something and whether it is the right thing for him to do, causes no trouble. But sometimes it does, because sometimes we say that a man has a right to do something when we mean only to deny that it is the wrong thing for him to do. Thus we say that the captured soldier has a “right” to try to escape when we mean, not that we do wrong to stop him, but that he has no duty not to make the attempt. We also use “right” this way when we speak of someone having the “right” to act on his own principles, or the “right” to follow his own conscience. We mean that he does no wrong to proceed on his honest convictions, even though we disagree with these convictions, and even though, for policy or other reasons, we must force him to act contrary to them.

Suppose a man believes that welfare payments to the poor are profoundly wrong, because they sap enterprise, and so declares his full income tax each year but declines to pay half of it. We might say that he has a right to refuse to pay, if he wishes, but that the government has a right to proceed against him for the full tax, and to fine or jail him for late payment if that is necessary to keep the collection system working efficiently. We do not take this line in most cases; we do not say that the ordinary thief has a right to steal, if he wishes, so long as he pays the penalty. We say a man has the right to break the law, even though the state has a right to punish him, only when we think that, because of his convictions, he does no wrong in doing so.2

These distinctions enable us to see an ambiguity in the orthodox question: Does a man ever have a right to break the law? Does that question mean to ask whether he ever has a right to break the law in the strong sense, so that the government would do wrong to stop him, by arresting and prosecuting him? Or does it mean to ask whether he ever does the right thing to break the law, so that we should all respect him even though the government should jail him?

If we take the orthodox position to be an answer to the first—and most important—question, then the paradoxes I described arise. But if we take it as an answer to the second, they do not. Conservatives and liberals do agree that sometimes a man does not do the wrong thing to break a law, when his conscience so requires. They disagree, when they do, over the different issue of what the state’s response should be. Both parties do think that sometimes the state should prosecute. But this is not inconsistent with the proposition that the man prosecuted did the right thing in breaking the law.

The paradoxes seem genuine because the two questions are not usually distinguished, and the orthodox position is presented as a general solution to the problem of civil disobedience. But once the distinction is made, it is apparent that the position has been so widely accepted only because, when it is applied, it is treated as an answer to the second question but not the first. The crucial distinction is obscured by the troublesome idea of a right to conscience; this idea has been at the center of most recent discussions of political obligation, but it is a red herring drawing us away from the crucial political questions. The state of a man’s conscience may be decisive, or central, when the issue is whether he does something morally wrong in breaking the law; but it need not be decisive or even central when the issue is whether he has a right, in the strong sense of that term, to do so. A man does not have the right, in that sense, to do whatever his conscience demands, but he may have the right, in that sense, to do something even though his conscience does not demand it.

If that is true, then there has been almost no serious attempt to answer the questions that almost everyone means to ask. We can make a fresh start by stating these questions more clearly. Does an American ever have the right, in a strong sense, to do something which is against the law? If so, when? In order to answer these questions put in that way, we must try to become clearer about the implications of the idea, mentioned earlier, that citizens have at least some rights against their government.

I said that in the United States citizens are supposed to have certain fundamental rights against their government, certain moral rights made into legal rights by the Constitution. If this idea is significant, and worth bragging about, then these rights must be rights in the strong sense I just described. The claim that citizens have a right to free speech must imply that it would be wrong for the government to stop them from speaking, even when the government believes that what they will say will cause more harm than good. The claim cannot mean, on the prisoner-of-war analogy, only that citizens do no wrong in speaking their minds, though the government reserves the right to prevent them from doing so.

This is a crucial point, and I want to labor it. Of course a responsible government must be ready to justify anything it does, particularly when it limits the liberty of its citizens. But normally it is a sufficient justification, even for an act that limits liberty, that the act is calculated to increase what the philosophers call general utility—that it is calculated to produce more over-all benefit than harm. So, though the New York City government needs a justification for forbidding motorists to drive up Lexington Avenue, it is sufficient justification if the proper officials believe, on sound evidence, that the gain to the many will outweigh the inconvenience to the few. When individual citizens are said to have rights against the government, however, like the right of free speech, that must mean that this sort of justification is not enough. Otherwise the claim would not argue that individuals have special protection against the law when their rights are in play, and that is just the point of the claim.

Not all legal rights, or even Constitutional rights, represent moral rights against the government. I now have the legal right to drive either way on Fifty-seventh Street, but the government would do no wrong to make that street one-way, if it thought it in the general interest to do so. I have a Constitutional right to vote for a congressman every two years, but the national and state governments would do no wrong if, following the amendment procedure, they made a congressman’s term four years instead of two, again on the basis of a judgment that this would be for the general good.

But those Constitutional rights that we call fundamental, like the right of free speech, are supposed to represent rights against the government in the strong sense; that is the point of the boast that our legal system respects the fundamental rights of the citizen. If citizens have a moral right of free speech, then governments would do wrong to repeal the First Amendment that guarantees it, even if they were persuaded that the majority would be better off if speech were curtailed.

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    It is not surprising that we sometimes use the concept of having a right to say that others must not interfere with an act and sometimes to say that the act is not the wrong thing to do. Often, when someone has no right to do something, like attacking another man physically, it is true both that it is the wrong thing to do and that others are entitled to stop it, by demand, if not by force. It is therefore natural to say that someone has a right when we mean to deny either of these consequences, as well as when we mean to deny both.

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