THE DIFFERENCE BETWEEN A “RIGHT” AND A “LIBERTY”
AND THE SIGNIFICANCE OF THIS DIFFERENCE IN
DEBATES OVER PUBLIC POLICY ON ABORTION AND EUTHANASIA
William E. May
Michael J. McGivney Professor of Moral Theology
John Paul II Institute for Studies on Marriage and Family
There is a great deal of talk in our society today about “rights.” Frequently, particularly in popular discussions (as on T.V., radio talk shows, etc.) people talk about rights as a two-term relationship between a person (or persons) and a thing or an action. Thus pro-life people affirm the right of the unborn to life, whereas feminists claim the right of women to have an abortion; workers affirm their right to a just wage, smokers their right to smoke, some infertile couples their right to have a child, etc.
The following procedure will be followed: I will begin by summarizing the useful distinctions made by John Finnis (taking the lead suggested earlier by W. N. Hohfeld) between a “‘claim’ right” or a “right in the ‘strict sense’” and a “‘liberty’ right” or “liberty.” Then, after noting the moral relevance of these distinctions, I will show how they clarify “rights talk” in debates over abortion and euthanasia. I will then offer a moral analysis of the various claims made in these debates. In order to carry out this analysis it will be necessary to consider briefly the relationship between freedom (liberty) and the truth in order to provide criteria necessary for offering a moral analysis of the contradictory claims made in the debates over abortion and euthanasia. Finally, I will consider public policy and the question of the common good with regard to abortion and euthanasia, centering attention on the campaign to legalize voluntary euthanasia.
Finnis on the Difference Between a “‘Claim’ Right” or “Right in the ‘Strict Sense’” and a “Liberty” or “Liberty Right”
Finnis begins his analysis of this difference by calling attention to the discussion of rights provided by W. N. Hohfeld in an early twentieth-century work in jurisprudence (Finnis refers to W.N. Hohfeld’s Fundamental Legal Conceptions. New Haven, CT: Yale University Press, 1919). The fundamental postulates of Hohfeld’s system are:
In what follows I will not consider what Hohfeld referred to as “powers” and “immunities,” insofar as they are not relevant to our concern, but focus attention on “claim-rights” (“rights stricto sensu”) and “liberties.” If A and B signify persons and f stands for an act description signifying some act, then, as Finnis points out, the following logical relations among A, B, and f will obtain:
The Moral Significance of These Distinctions
It is most important to recognize that the third element in the three-term relationship between persons or groups of persons (A and B above) is a specific kind of action, f, and that when rights are at stake the action in question is an act on the part of others, and not on the part of the person or persons who have the right, whereas when liberties are at stake the action is an act on the part of the person or persons claiming the liberty. This enables us to clarify “rights” talk and to distinguish between a “right” and a “liberty” and to determine, on the basis of a moral analysis, whether the “right” or “liberty” claimed is authentic. For from the analysis provided above by Hohfeld/Finnis, we can see that rights are strictly correlative to duties or obligations and that liberties are limited by duties or obligations. This in no way leads to the conclusion that there are no true liberties; it simply means that our liberty to do as we please is limited by our moral duties or obligations and, correlative to them, the true rights of others.
To illustrate, the claim that smokers have a right to smoke turns out to be a claim to the liberty of smokers to smoke because the act in question (f), namely smoking, is an act on their part, not on the part of others. And while they may have the liberty to smoke under certain conditions, their liberty to do so is restricted by the rights of others and their duty to forebear smoking should their choice to do so violate the rights of others. I believe that although smokers have the liberty to smoke when alone in their cars or homes or in the woods where no one’s health would be harmed by their smoking, they do not have the liberty to smoke, say, in a room where persons suffering from asthma, whose health could be seriously jeopardized by tobacco smoke, are present.
When workers, however, claim a “right” to a just wage, we can see that this claim, if expressed in a three-term relationship between workers (A), their employers (B), and a specific act (f), we can see that a “claim” right or right in the “strict sense” is at stake, because the act in question (f), namely, payment of a just wage, is an act on the part of their employers, not on the part of the wage earners, and such payment is indeed morally required.
Their Relevance in Clarifying “Rights Talk” in Debates Over Abortion and Euthanasia
Here I will simply show the relevance of these distinctions to clarifying “rights talk” in these debates. Once this is done, a moral analysis can be made in order to determine which claims are true and which are spurious.
First, let us consider “rights” talk in discussions of abortion. Feminists claim that women have a “right” to an abortion. Assume, for the present, that the living organism destroyed by abortion is a human person (an issue that must be addressed, albeit briefly, in the moral analysis below). If we then analyze this alleged right in light of the three-term relationship between persons (A and B) and a specific kind of action (f), we immediately see that the “right” claimed is not a right in the strict sense but an alleged “liberty,” for the claim is that women (A) have the liberty relative to their unborn children (B) to abort them (f). It is an alleged liberty and not a right because the action in question (f), namely, to abort, is not an action on the part of others (B) but rather on the part of those (A) claiming the “right/liberty.” Thus this claim can be articulated as follows: “Women (A) have the liberty to abort (f) their unborn children (B), if and only if their unborn children (B) do not have the right that their mothers (A) not abort (f) them.”
We also see that the claim that unborn children have a “right” to life is indeed a “‘claim’ right” or a “right in the strict sense,” insofar as the action in question (f) is an action, not on the part of the unborn children but on the part of their mothers, and the three-term relationship can be expressed as follows: “Unborn children (A) have the right relative to their mothers (B) not to abort them (f), if, and only if, their mothers (B) have a duty not to abort them (f).”
To settle the debate, and to determine whether unborn children indeed have the right that their mothers not abort them and that, correlatively, their mothers have an obligation to refrain from doing so is a matter to which I will return below in undertaking a moral analysis of these claims.
Now let us examine “rights” talk in debates over euthanasia or mercy killing. Here I will limit consideration to debates over “voluntary euthanasia,” i.e., mercy killing engaged in only after the free and informed consent of the person who is to be killed mercifully to being so killed.
Advocates of voluntary euthanasia, both as a morally good option and required by public policy, claim that a person has a “right to die.” The right claimed here is indeed a “‘claim’ right” or a “right in the strict sense” because those claiming the right are claiming the right to be killed mercifully, and this is an act (f) on the part of other persons and not on the part of those claiming the right. The claim can be expressed as follows: “A (those persons seeking to die mercifully) have the right that B (other persons) kill them (f) for reasons of mercy, if and only if B (other persons) have a duty to kill them for reasons of mercy.” The claim of a “right to die,” in the sense of a right to be killed mercifully, must therefore be distinguished from the claim of a “right” to “suicide” or the “right” to kill oneself. The latter claim is not a claim to a right in the strict sense or a “claim” right but rather to a “liberty” insofar as the act in question (f), i.e., suicide, is an act on the part of the claimant, not on the part of others. In the moral analysis to follow, therefore, I will not take up the issue of suicide despite the fact that it is intimately linked, as a moral act, to euthanasia.
We have now been able to clarify the kinds of claims made in debates over abortion and euthanasia, distinguishing claims for “rights” in the “strict sense” or “claim rights” and “liberty rights” or “liberties.” Earlier, in considering the three-term relationship involved in rights and liberties, we saw that our liberty, or our freedom to do as we please, is limited by our obligations and, correlative to such obligations, the rights of other persons. I will therefore begin by considering the relationship between our “liberty” or our “freedom to choose” or, more briefly, “free choice” and moral truth, because moral truth is at the basis of moral obligation.
1. Free Choice (Liberty) and Moral Truth
We are free to choose what we are to do and in this way determine ourselves to be the persons we are. But we are not free to make what we choose to do to be morally good or morally bad. We know this from our own experience, for we know that at times we have freely chosen to do things that we knew, at the very moment we chose to do them, were morally bad. We can, in short, choose badly or well. We choose well when we choose to do what is good; we choose badly when we choose to do evil. But how can we determine, prior to choice, which alternatives are morally good, and which are morally bad? That determination can only be made on the basis of practical truths, i.e., truths about what-we-are-to-do.
Here I cannot enter into
a detailed presentation of these truths, which constitute the “natural law” or our intelligent participation in
God’s eternal law or his “wise and loving plan for human existence” (see Dignitatis
humanae, no. 3). But the Christian tradition has always recognized that
the truths of the natural law are summarized in the first great moral principle, expressed religiously as the twofold commandment to love God above all things
and our neighbor as ourselves. Moreover, we cannot love the God, whom we do not see, if we do not love our neighbor,
whom we do see. In addition, as Pope John Paul II has rightly emphasized, we love our neighbor only by loving his good, at the level of the various goods constitutive of his being, goods such as life itself, the marital communion, etc. Indeed,
the negative precepts of the
In other words, bodily life is intrinsic to the being of a human person, and an attack on an innocent person’s bodily life is an attack on the person. The life of an innocent person is always something good, an intrinsic constituent of that person’s being. Consequently, one of the limits to human free choice, to our liberty to do as we please, is the absolute obligation to forbear intentionally killing an innocent human person. One simply cannot love one’s neighbor if one freely chooses to deprive him of his or her bodily life, for in doing so one chooses to deprive him or her of his being as a human, bodily person.
Given this understanding of the moral law, of the natural law or our intelligent participation in God’s wise and loving plan for human existence, and the limits it places on the exercise of our liberty to do as we please, we can now enter into a moral analysis of the “rights” and “liberties” at stake in debates over abortion and euthanasia.
We have already seen that the feminist claim that a woman has a “right” to abort her unborn children is a claim, not to a “right” in the strict sense but rather to a “liberty,” and we have likewise seen that A, in this case, pregnant women, have the liberty to (f), in this case to abort, if and only if B, in this case their unborn children, do not have the right that A not f. But do the unborn have this right? They do if, and only if, they are innocent human persons. But are they?
Many who champion abortion in our culture today are willing to acknowledge, on the basis of what we know about human genesis and embryology, that the organism living in the body of a pregnant woman is biologically a member of the human species (I will not here consider the issues raised by identical twinning, save to suggest that in identical twinning one living biological organism was present from conception/fertilization and that, prior to implantation another genetically identical biological organism was generated by a process akin to cloning), but they maintain that this biologically human organism is not a person. According to these people (among them Peter Singer, Michael Tooley, and a host of other abortion advocates), a person is a subject aware of itself and capable of relating to other selves; for them a criterion of personhood is the exercise of cognitive abilities. Since the human biological organism within the body of a pregnant woman is definitely not a conscious subject aware of itself as a self and capable of relating to other conscious subjects, they conclude that it cannot be regarded as a person or the subject of rights that need to be respected by others. They claim that at most this biological organism is a potential person, not an actual person.
The fatal flaw in the reasoning of these advocates of abortion is their failure to distinguish between an active potency and a passive potency or between a radical capacity and a developed capacity. If a passive potency is to be actualized, an extrinsic efficient cause must intervene (e.g., human sperm and ova have the passive potency to become a living biological member of the human species, but this potency becomes actualized only when the sperm is united to the ovum and fertilization occurs). But the living biological organism brought into existence when fertilization is completed has within itself the active potency to develop its own capacity to engage in cognitive activities, which are predictable of members of the human species. Although this living member of the human species does not have the developed capacity to engage in cognitive activities, it has the radical capacity, rooted in its being, to develop the capacity to do so. Similarly, an eaglet has the radical capacity or active potency to engage in the activities predictable of eagles, such as soaring in flight. But in order for the eaglet to exercise its capacity and to soar in flight, this capacity needs to be developed, but it could not be developed were it not present to begin with. Thus the living members of the human species present in the bodies of pregnant women have the radical capacity or active potency to engage in the activities predictable of the human species (e.g., exercising cognitive acts), but in order for them to engage in these activities they need to develop them from within. From this it follows that they are not potential persons, but persons with potential.
Similarly, once living organisms have developed the capacities rooted in their being the kind of beings they are, the exercise of these capacities can be inhibited, perhaps permanently, by disease or accident, but they do not cease being the kind of beings they are. Thus if an eagle’s wings are broken, it can no longer soar above the ground in flight, but it remains the kind of being it was and is, an eagle, with the radical capacity, rooted in its being, to soar above the ground. Similarly, some members of the human species may be prevented by disease or accident from the exercise of the activities for which they have a radical capacity or active potency, but they remain the kind of beings they are, human beings, who have the radical capacity, rooted in their being human, to do what human persons do. They are and remain persons. [Patrick Lee magnificently develops the argument summarized here in his book Abortion and Unborn Human Life, Washington, D.C.: The Catholic University of America Press, 1996, pp. 24-28.]
Those who justify abortion, to put matters differently, have a dualistic understanding of the human person. If the person is really not his or her body, then the destruction of the life of the body is not directly and in itself an attack on a value intrinsic to a person (cf. Germain Grisez, “Dualism and the New Morality,” in Atti del Congresso Internazionale: Tommaso d’Aquino nel Settimo Centenario. Naples: Edizioni Domenicane Italiane, 1977). But dualism is false. To show why it is not an easy task, but the basic argument against it can be summarized in four steps: (1) it is the same “I” which understands and which senses or perceives; it is not one thing which engages in an act of understanding and another thing which senses or perceives; (2) perceiving is a bodily act; (3) since perceiving is a bodily act then the perceiving entity is a bodily thing or organism; (4) if the entity that understands and is self-conscious is identical with the entity that senses or perceives (first point), and if the entity that perceives or senses is a bodily organism (third point), it follows that the being that understands and is self-conscious (the “I”) is a physical organism. [Here I have summarized Lee, ibid, pp. 36-37.]
Other arguments can be developed to show that the living biological organism within the body of a pregnant woman is, precisely as a member of the human species and endowed with the radical capacities characteristic of that species, a person. Moreover, if the actual exercise of cognitive abilities is the criterion for personhood, this turns out to be a very arbitrary one. Individual members of the human species differ enormously in the exercise of their cognitive abilities. To what extent must these abilities be exercised if one is to count as a person? Do those who exercise them more perfectly and fully count as superior persons, whose well-being is to be preferred to individuals whose exercise of cognitive abilities is much less? The arbitrariness of this criterion seems obvious and odious.
My essential point, however, is simply that the living bodily organism that comes into being at fertilization of human ova by human sperm is, like its parents, a living member of the human species, with the radical capacity or active potency to engage in the activities predictable of members of the human species who are allowed to develop their natural capacities. They are persons, not things, and because they are innocent persons they have the right not to be killed. As we have seen, A has a right relative to B, if and only if B has the duty to f. In this case, unborn babies (A) have a right relative to their mothers (B) not to be aborted, if and only if their mothers (B) have the duty to forbear intentionally killing them (f). But, as we have seen above, all human persons have the absolute duty to forbear intentionally killing innocent human persons, and, correlatively, innocent human persons have a right in the strict sense to life, i.e., to possess their lives without the threat of being deprived of it by intentional killing. Since the unborn are indeed persons, their mothers have the absolute obligation not to kill them intentionally; therefore they do not have the liberty to abort them.
We have seen already that the claim of advocates of voluntary euthanasia that people have a “right” to die is indeed a claim to a right in the strict sense. For the claim is that persons other than those who freely choose to be killed for reasons of mercy have the duty to kill them mercifully. It can be expressed as follows. Human persons (A) who are suffering and freely choose to be killed for reasons of mercy have the right, relative to other persons (B) to be killed mercifully, if and only if others (B) have the duty intentionally to kill them for reasons of mercy (f). However, as we have also seen, all human persons have an absolute obligation to forbear killing innocent persons. There cannot, consequently, be any moral duty or obligation on the part of others (B) intentionally to kill for reasons of mercy (f) those (A) who assert their right to be killed mercifully. Quite to the contrary, all human persons are absolutely obliged not to kill intentionally, for any reason whatsoever, innocent human persons. Thus the alleged “right” in question is a spurious and not authentic right.
Public Policy and Abortion/Euthanasia: Legislation and the Common Good
The natural law extends to the whole sphere of human choices and actions, to everything we understand by the term “morality.” Civil law does not. Civil law is concerned with regulating the choices and actions of individual persons insofar as those choices and actions bear upon the “common good.” I cannot here enter into a lengthy discussion of the common good, but it is reasonable to hold that this concept embraces the protection of inviolable human rights, correlative to which, as we have seen, are absolute moral requirements. Civil law cannot proscribe all human vices; if it attempted to do so human liberty or freedom, itself a good of human persons and a component of the common good, would unduly suffer. Civil law cannot compel me not to hate my neighbor or not lie to my wife about putting out the trash. But it can compel me to forbear acting on my hatred or from falsely testifying against my wife in court. Its function, in part at least, is to prohibit with appropriate sanctions those human choices and actions that bring grave harm to others, violating their “inviolable” rights. Without prohibiting such actions civil law cannot succeed in its principal purpose, which is to make it possible for human society to be preserved. It is thus the function of civil law to prohibit such crimes as homicide, theft, and the like.
Here I will not take up the question of abortion and public policy or the common good. I hold that abortion is a serious crime that violates the inviolable right of the unborn to life, i.e., not to be killed intentionally by others. Rather here I will focus on public policy regarding voluntary euthanasia.
At present in our society anyone who intentionally kills an innocent human person fortunate enough to survive pregnancy is guilty of homicide; and the lives of all innocent persons who have survived pregnancy are legally protected from lethal attacks intentionally directed against them, however benevolently motivated. Today some are seeking to change the law so that voluntary euthanasia will be legally permissible, so that some innocent human persons can then be legally killed, namely, those who consent to their own killing for reasons of mercy.
The case for voluntary euthanasia can be summed up as follows:
As numerous scholars have demonstrated—most notably Germain Grisez and Joseph Boyle—the legalization of voluntary euthanasia will inevitably work to the serious disadvantage of many persons who do not want to be killed. Once it is legally permissible for a person to consent to being killed and for others to help achieve this choice, many who do not want to be killed will be under heavy pressure to give their consent to this “beneficent” option. Many who are mortally ill worry that they are a burden to others and feel guilty for the care they need. Once dying persons realize that they can, by availing themselves of the most technically efficient way of ending their lives, relieve others of the burden of caring for their worthless lives, they will begin to suffer feelings of guilt should they stubbornly, perhaps selfishly, refuse to consent to being killed mercifully. There will doubtless be times when some relatives, health-care personnel, social workers, and others will urge the dying to consent to this beneficent and kindly treatment.
These are some of the serious disadvantages that will result from legalizing voluntary euthanasia—many of them noted years ago by Yale Kamisar [“Some Non-Religious Views Against Proposed ‘Mercy-Killing’ Legislation,” Minnesota Law Review 22, 1973, 723-745]. Grisez and Boyle have developed a compelling argument against the legalization of voluntary euthanasia. The argument is basically that legalizing voluntary euthanasia will inevitably cause injustices by violating the right to life of those who do not wish to be killed beneficently and/or violate the liberty of everyone who do not wish to have their government involved in killing of this kind. The argument can be put this way:
But in addition to this, legalization of voluntary euthanasia would simply further erode the bonds holding the human community together—bonds seriously eroded by public policy granting women the abortion liberty and denying to the unborn the protection their lives deserve. As Arthur Dyck has reminded us in a recent work, human agents such as ourselves exist only because of the cooperative behavior of others. Human agents, including women who seek abortion and individuals who want to be killed for reasons of mercy, come to be only because others have given them life, and they continue to be only because others have nurtured and sustained them, have preserved their lives and refrained from harming and killing them. Dyck points out that there are certain “natural proclivities” (St. Thomas Aquinas called them “natural inclinations”) essential to the continuation of human life and of human communities: some make life possible to begin with—the proclivities to procreate and nurture; others to protect and enhance life for persons both as individuals and as members of a community. And there are certain natural “inhibitions”: those against killing, against taking away or failing to provide life’s n necessities. These natural proclivities and inhibitions, Dyck argues, make individual and communal life possible. Indeed our natural rights, Dyck says—and here what he says fits in well with our previous analysis of “rights in the strict sense”—are “actual either as expectations or claims on the relations that are moral requisites of our individual and communal life.” Killing is wrong when it is wrong for several reasons. First, “the act of killing oneself or someone else violates and threatens to undermine the mutual responsibilities that are requisites of individual and communal life.” Second, killing is wrong when it is wrong because killing “no longer shows a love for life,” a good that we rightly prize and do not price. Finally, killing is wrong when it is wrong because the human life killed “is treated as a life that has little or no worth rather than as a life of incalculable worth” (see Arthur Dyck, When Killing Is Wrong: Physician-assisted suicide and the courts. Cleveland: Pilgrim Press, 2001, pp. 91-103).
Thus legalizing voluntary euthanasia would undermine further the bonds holding human communities together. If laws were permitted to embody the idea that in some circumstances human life loses its worth or that some people lack sufficient worth to have their lives protected, the equal protection of the law would be denied to certain classes of persons. Doing so would advance the “culture of death” typified by our society’s acceptance of abortion as a way of life.
Copyright ©; William E. May 2002
Version: 10th February 2002