A Critical Examination of Mohammad Rasekh’s Views and Presuppositions on the Concept of Right and Its Relation to Concepts in Moral Philosophy

A Critical Examination of the Views and Presuppositions of Dr. Mohammad Rasekh on the Concept of Right and Its Relation to Concepts in the Sphere of Moral Philosophy

Seyyed Mohammad Hosseini[1]

Introduction

My concern with critiquing the views of the esteemed legal scholar, Professor Mohammad Rasekh[2], dates back several years; to when I was a master's student in public law at Beheshti University and gradually became acquainted with his works and writings. Due to my interest in the philosophy of law and ethics, I read his works many times, and while acknowledging that I learned a great deal from them, my relative familiarity with human rights and moral philosophy (especially Kantian moral philosophy) always raised this question for me: for what reason(s) does Mohammad Rasekh, citing Kant's intellectual system in the field of ethics – which I will refer to later – consider the concept of "right"[3] separate from "morality"[4] and believe that "right" is indifferent and neutral towards "morality" – meaning there is no connection or relation between these two concepts in Kant's intellectual system? To present my claims that his presupposition about Kant's moral system is incorrect, I wish to take a "critical" look at his views. Accordingly, by examining his views on the connection and/or lack of connection between the two concepts of "right" and "morality" in Kant's intellectual framework, as well as his statements and claims in other areas of the moral sphere, I will attempt to critique his incorrect presuppositions. In short, I will argue that, contrary to his presuppositions, "modern right" has a "moral" basis and, in a sense, right is not an "amoral"/"morality-evasive"[5] concept. In this space, I will try to demonstrate some of his most important incorrect presuppositions in both the field of "ethics" and the field of "metaethics"[6] and, on this basis, will address the claims he has put forward. Finally, and most importantly, I will present reasons in favor of the moral nature of the concept of "right" – even from the perspective of "utilitarians" – and will briefly discuss the harms of this legal scholar's views and presuppositions.

Aside from the above points, which I will address later, it should be said that Dr. Mohammad Rasekh is one of the prominent professors of law and one of the most influential Iranian legal scholars, whose valuable works have been the focus of many students and other jurists, and few are unfamiliar with his name, which is intertwined with the philosophy of law, public law, and human rights. However, his prestige and invaluable works do not preclude his controversial analyses from being subject to critique and evaluation. Undoubtedly, critique and the clash of opinions is a virtue that will contribute to the dynamism of any thought, and if we blindly, out of personal biases and fondness for a certain person's ideas, without a shred of doubt in the views of a certain scholar and teacher, and without any critical perspective, entrust our faculty of thought to the opinions of thinkers and merely imitate them, by virtue of whatever they say and argue, certainly neither will a thought possessing genuine truth emerge, nor will the path be paved for correcting and modifying incorrect ideas, which is an urgent need of any academic activity. Unfortunately, it must be said that the culture of critique is severely neglected in our country, and I believe one of the main reasons for this is that by critiquing a certain idea, it is assumed that there is personal animosity towards the holder of that idea. This is while, if we look at some of the works of the great philosophers of the West, they thank all their critics for the suggestions they offer and even mention the sound and well-reasoned suggestions of critics, by name, in their works. Unfortunately, such a practice is rarely seen in our academic activities.

(1)

Some of Mohammad Rasekh's Claims about Right and Morality

In his authored books and articles—some of these works were written in collaboration with other authors—as well as in the introductions he has written to some of his translated articles, Mohammad Rasekh puts forward several main claims regarding the concepts of “morality” and “right,” some of which are as follows:

(1) In an article titled The Moral Affair and Right, Rasekh and his colleagues believe that the moral affair is autonomous, and the final normative judgment regarding the moral affair is made by the individual and for themselves. The authors introduce the moral affair as a “personal affair” concerning which no institution or authority other than the person can make a moral judgment about the person. Autonomy indicates that moral views are not predetermined views. Also, a requirement for a person to be moral is the existence of good intention and purpose in the act[7] and, in addition, the moral affair is something that creates “virtue.” In this regard, they believe that “[...] the characteristic [...] of right refers back to its relation to virtue. Unlike morality, right does not seek to create good character or good will in a person.” Ultimately, the claim put forward by the authors is that: “[...] right [...] always represents matters that are content-wise neutral, morality-averse, [...] posterior to virtue [...]. [...] Right signifies a vessel and context within which, at the discretion of the right-holder, morally diverse and contradictory contents can be placed. It can be boldly said that the logical possibility of combining the moral affair and right is not possible.”[8]

(2) In the article The Theory of Right, Rasekh’s justification in explaining the concept of right is entirely based on the tenets of Kantian deontological ethics. In other words, the reasons he offers in favor of justifying humans’ possession of human rights are based on the idea that humans possess rights by virtue of “inherent dignity” and apart from accidental attachments. Also, by virtue of being human (= being an end in itself) and also by virtue of the prohibition of the instrumental use of these ends in themselves, they must enjoy human rights. Such arguments, in the author’s own words, are rooted in Kant’s moral outlook, and Rasekh explicitly states in this regard that the human being’s status as an end and the prohibition of their instrumental use, which is the basis for enjoying human rights, is a principle that “[...] Immanuel Kant called the ‘principle of ends’ and made it the substantive foundation of his [...] moral philosophy.” Despite this justification, he introduces one of the results of the theory of the sovereignty of right as the “right to do wrong” and states in an ambiguous way that if we take having a right seriously, we can no longer question the “moral content” [!] of the right-holder; “The right-holder may take the morally correct path in exercising their right, or may be drawn down the immoral wrong path. This characteristic is referred to as the ‘right to do wrong’ or the ‘right to do injustice.’ Every individual has this right to make an immoral decision in employing their rights.” The right to do wrong means the moral neutrality of right. In a word, according to the author’s claim, in the realm of right, we have nothing to do with the moral content of the decision, meaning in the domain of right, we deal with the vessel/decision and not with the content/its substance (= right). Hence, right is an “immoral” concept and is related to the “immoral” domain.[9]

(3) In accordance with the above approach (i.e., the morally neutral right), in the foreword he wrote to the article The Concept of Right (1); A Historical Introduction, he claims that in the separation between the two concepts of “having a right” and “being right,” he considers the first concept as pertaining to the domain of “right” and the second as pertaining to the domain of “morality.” Rasekh writes on this matter: “‘Being right’ in the value sense is the same as ‘being good’ [...], if an action is ‘right’ (or ‘rightful’), it means that it is approved and accepted from a moral perspective and based on the substantive principles of a specific moral system. [... However,] ‘having a right’ does not necessarily mean performing a ‘good’ and ‘moral’ action.”[10]

(4) In another claim similar to the above assertions, in the article Freedom as Value, Rasekh believes that at the level of ethics, we also deal with the content of individuals' decisions [i.e., the content of right].[11] Furthermore, the author believes that: "[...] at the level of justice, the 'right' (haqq) is discussed, but at the level of ethics, the 'good' (khayr) is discussed." According to Rasekh, the public and governmental sphere is the domain of right and justice, and the private and civil sphere (i.e., independent and autonomous civil institutions that act as a buffer between individuals and the government) is the domain of the good and ethics; it is in this latter sphere that one can speak of moral intention and action.[12]

(2)

Some Questions That Can Be Raised About the Above Presuppositions

Having mentioned the above presuppositions, I will now raise some questions and then, one by one, critique these presuppositions. The questions that can be raised regarding his perspective are as follows:

(1) Does ethics possess only a personal concept, or can one also speak of normative ethics[13] or social ethics[14], which stands in opposition to individual ethics? What reasons can be given that ethics does not solely have an individual reading and also has a social dimension? In other words, is the study of ethics exclusively confined to virtue ethics (and, according to his belief, only individual virtue ethics)?

(2) In the performance of moral duties, is the existence of a good intention a necessary and obligatory condition?

(3) Does right lack moral foundations and is it considered a morally neutral matter?

(4) What is the meaning of the right to be wrong / the right to do wrong, and what connection can it have with ethics (or moral right)?

After a brief statement on the views existing in the sphere of moral philosophy, I will first formulate his claims and then proceed to critique each of them.

Discussions in moral philosophy are generally summarized in three areas: (1) "meta-ethics", (2) "normative ethics", and (3) "applied ethics"[15]. "Meta-ethics" deals with the sources and foundations of morality. The subject of "normative ethics" is ideal morality and is a set of norms and values; and "applied ethics", although like normative ethics it pertains to norms and values, differs from normative ethics in that in normative ethics we deal with macro-level questions regarding moral rules, whereas in applied ethics the scope of these norms is narrower and relates to a specific domain and/or a particular profession—for example, in the field of medical ethics, what is the doctor's moral duty towards their patient? Or, for instance, is abortion morally permissible and justified? Regardless of the discussion on applied ethics, in the domain of "normative ethics" and also "meta-ethics", critiques can be leveled against Rasekh's controversial claims. In what follows, I will attempt to critique these claims in the field of ethics and also the connection and relationship between right and ethics. But before addressing the critique of his views, Rasekh's main controversial presuppositions can be summarized in several points; according to him:

(a) Ethics is a personal/individual matter;

(2) Ethics is a matter confined to "virtue ethics"—and even then, only personal virtue (= individual virtue ethics);

(3) It seems that his reading is not even "virtue ethics" but "moral subjectivism" / "moral personalism";

(4) The "right to be wrong" / "right to be in the wrong", besides pertaining to the content/container of the right, is a concept related to "being right" not "having a right" and, from one perspective, "having a right" does not pertain to moral action;

And most importantly,

(5) There is no connection or relation between “right” and “ethics,” at least in Kant’s view, and, therefore, one cannot speak of something called a “moral right.” In other words, from his perspective, “right in the modern sense is a morally neutral/amoral/morality-averse matter.”

(3)

A Critique of the Above Presuppositions

(1) It was said that, in his view, right pertains to what is “correct” and ethics pertains to what is “good” / “the good.” Given this presupposition and upon scrutinizing it, it seems that from his perspective, there is no right or wrong in the realm of ethics, and this presupposition is an incorrect one. In other words, one can speak objectively of “morally right” matters and “morally wrong” matters. This issue pertains to the domain of “meta-ethics,” where we speak of the objective truth or falsity of moral judgments. If moral judgments are not objectively true or objectively false, it seems he subscribes to a kind of “meta-ethical relativism” [/“meta-ethical relativism”][16]. Since he thinks we do not have “morally right” and “morally wrong” matters, then based on that, moral judgments are not objectively true or objectively false, and are merely true or false in the view of certain individuals or different societies, and thus different individuals or societies can believe in conflicting moral judgments—without any of them being mistaken. In a word, proponents of “meta-ethical relativism” believe that not only can we not know whether matters are morally good or bad (right or wrong)—note the above account from him, which holds that “morally right or wrong matters do not exist”—but there is no moral truth at all (i.e., no objective answer to moral questions) to be known.[17] Accordingly, it can be said that he believes in a kind of “meta-ethical relativism” and holds that right and wrong moral judgments do not exist. Based on his claim, we must then say that morally right and wrong matters and propositions cannot be objectively known.

(2) If we assume that his reading is directed at “virtue ethics”[18], then ethics has only a “descriptive” aspect and is a personal matter. But the initial question that arises is: does the field of ethical inquiry only include “virtue ethics”? If so, what becomes of other fields of ethical inquiry (for example, “normative ethics”)?[19] For among his claims was that ethics is a personal/individual matter that generates virtue for the person. With this incorrect presupposition that ethics is merely a personal matter, this claim can be easily refuted, because in contrast to “individual/personal ethics,” we also encounter “social ethics” and “political ethics.” Rasekh’s argument is, in a sense, the opposite of “ideal ethics.” According to Bernard Gert[20], “existing morality” (= “descriptive ethics”)[21] differs from “ideal morality.” “Existing morality” is the subject of empirical studies, and is part of anthropology or sociology. In studying such moralities, anthropological and sociological methods must be used, whereas the correct and valid method in studying “ideal morality” (such as “normative ethics”) is the methods available in philosophy. When ethics refers to the behavioral guidelines of a person (= “individual descriptive ethics”) or a group (= “social descriptive ethics”), or even the important attitudes of an individual, ethics is used in its descriptive sense—just as one can refer to the ethics of the Greeks or study it; likewise, when we refer to the morality of a person, we have stepped into the domain of “descriptive ethics.”[22] Thus,

«[...] در اخلاق هنجاری، موضوع اخلاق آرمانی است و آن چیزی است که دربرگیرنده‌ی مجموعه‌ای از بایدها و ارزش‌ها است، در حالی که اخلاق توصیفی نه یک اخلاق آرمانی، بلکه آن چیزی است که یک گروه [= اخلاق توصیفیِ اجتماعی] یا یک فرد [= اخلاق توصیفیِ فردی] بر اساس آن اخلاقِ مدنظر خود زندگی می‌کند. این اخلاق، بخشی از فرهنگ یک شخص یا یک جامعه است. در اخلاق توصیفی زمانی که از باورهای اخلاقیِ دیگران خبر می‌دهیم، گزاره‌ی بیانگر این باور، گزاره‌ای اخلاقی نیست، بلکه گزاره‌ای علمی یا تاریخی است که با تحقیق تاریخی یا تجربی نفی و اثبات می‌شود. چنین تحقیقی را نمی‌توان علم اخلاق/ اخلاق هنجاری نامید، هرچند ممکن است این گزاره‌ها به ضمیمه‌ی مقدمات خاصی به کار اثبات گزاره‌های اخلاقی بیایند. در مقابل، در اخلاق هنجاری ما از باورهای اخلاقی اشخاص یا مکتب‌ها خبر نمی‌دهیم، بلکه از اصول اخلاقی خبر می‌دهیم.»[23]^و[24]

(3) چنانکه بیان شد، با توجه به مدعیات راسخ، باید این را هم متصور بود که به نظر می‌رسد پیش‌فرض ایشان نه ”اخلاق فضیلت“ که ”سوبژکتیویسم اخلاقی“/ ”شخصی‌انگاری اخلاقی“[25] است، چه اینکه گفته شد وی بر این باور است که «داوری نهاییِ هنجاری در خصوص امر اخلاقی، از سوی فرد و برای خود اوست». در مورد ”سوبژکتیویسم اخلاقی“/ ”شخصی‌انگاری اخلاقی“ گفتنی است که «”شخصی‌انگاری“ بر این گزاره مبتنی است: ”الف خوب است“ یعنی ”من الف را دوست دارم“. [پس] اصول اخلاقی‌تان را با پیروی از احساسات‌تان برگزینید.»[26] بر اساس این قرائت، داوری‌های اخلاقی نوعِ احساسات ما را توصیف می‌کنند- وقتی می‌گوییم چیزی ”خوب“ است یعنی احساس ما نسبت به آن مثبت است.[27] با توجه به ”شخصی‌انگاری“ من باید پیرو احساسات خودم باشم. بر اساس این خوانش، حقایق اخلاقی به فرد بستگی دارد. اگر من ”الف“ را دوست دارم و تو نداری، باید گفت ”الف خوب است“ برای من صادق و برای تو کاذب است. پس، چیزی فی‌نفسه، فارغ از احساسات ما، خوب یا بد نیست. ارزش‌ها فقط در سلیقه‌ی یکایک افراد وجود دارند نه در جهان خارج. هیچ عقیده‌ای نیست که به نحو عینی درست یا نادرست باشد. طرفداران ”شخصی‌انگاری“ قائل به عینیت امور اخلاقی نیستند. «شخصی‌انگاری رویکردی بسیار خام به اخلاق دارد و بر اساس آن ما هرکاری که دوست داریم انجام می‌دهیم و، حتی بدتر از آن، آنچه باعث می‌شود چیزی خوب باشد یا بد، بر اساس خوشایند و بدآیندِ ماست.»[28] به عبارتی دیگر، داوری‌های اخلاقی توصیف‌کننده‌ی احساسات بالفعل ما، و هوس‌های آنیِ ما، یعنی آنچه اتفاقاً همین حالا دل‌مان می‌خواهد نیست. یکی از پیامدهای محتومِ ”شخصی‌انگاری“ این است که «اگر در استدلال اخلاقی همه پیرو الگوی شخصی‌انگاری باشند – یعنی هر چه را دوست دارند بکنند و نسبت به اثرات آن بر دیگران بی‌توجه باشند – نظام جامعه فرو خواهد پاشید.»[29] بر این اساس، در ”شخصی‌انگاری“ اعتقاد بر این است که هیچ ”حقیقت عینی“ای وجود ندارد و این خوانش، هیچ نظری در رابطه با ”عینیت“ گزاره‌های اخلاقی ندارد. از این‌منظر، همانگونه که استدلال و بیان کردم در حوزه‌ی ”فرااخلاق“، راسخ قائل به صدق و کذبِ عینی گزاره‌های اخلاقی نیست و، همچنین، از این جهت که اخلاق را امری شخصی/ فردی می‌داند، می‌توان نگرش او را به ”شخصی‌انگاری“ نسبت داد.

(4) Contrary to the above assumption, I assume that his claim is directed at “virtue ethics.” It was said that he believes ethics is a personal/individual matter that creates virtue for the person. This claim is, on the one hand, incomplete but correct, in that one of the aspects of “virtue ethics” is its individual nature—as was the case for most ancient philosophers, virtue was considered a personal matter. For example, Aristotle said: “Virtue is a characteristic of character that manifests in actions that have become a ‘habit’ for the human being. The ‘habituation’ of virtue is important, because someone who tells the truth only sometimes or whenever it benefits them does not possess the virtue of honesty. The honest person is fundamentally truthful, and their actions stem from a stable and unchangeable character.”[30] Such a reading also exists among modern philosophers. For instance, Gertrude Elizabeth Margaret Anscombe[31] in her famous article titled Modern Moral Philosophy emphasizes the importance of this individual reading of “virtue ethics.”[32] But Rasekh’s claim, which restricts “virtue ethics” to this individual reading, is, on the other hand, incomplete, because in the domain of “virtue ethics” we also deal with “collective virtues”[33]—and “virtue ethics” is not solely confined to the individual reading or individual virtues. For example, Per Sandin[34] provides an example regarding “trustworthiness.” He says, suppose a certain company “makes misleading statements about the safety of its products” and consequently appears to violate its “virtue of trustworthiness.” Based on this, can we conclude that this company will still be trustworthy despite this? The answer Sandin gives is no. Sandin believes that “trustworthiness” for a company is a “collective virtue” about that company. Accordingly, virtue is not merely a personal matter; rather, we also encounter “collective virtues.”[35] Furthermore, the discussion of “collective virtues” is an important discussion in this context. Even if someone believes in “virtue ethics,” there is no necessity to accept Rasekh’s view on “individual-focused virtue ethics,” because objective truth also exists in “collective virtues”—and this is another reason indicating that he has made an epistemic error in the domain of “metaethics.”

It would not be amiss to take a look at Linda Zagzebski’s[36] definition of “virtues of epistemic communities.”[37] She writes on this matter:

“The aim of epistemic communities is not merely limited to the individual personally pursuing truth (sidq). If we are lovers of truth (sidq), then we have the motivation to bring truth (sidq) to others as well. The conscientious person is always concerned that others also attain truth (sidq). For this reason, he is not epistemically stingy and seeks to acquire traits that make him a person who is credible in informing others [...]. Epistemic generosity or liberality[38] is a virtue with which the conscientious members of an epistemic community are adorned. Generosity has a conventional moral meaning that usually entails someone going out of their way to convey news to another person [...]. [...] There are many other virtues with which the members of epistemic communities must be adorned. Virtues such as epistemic fairness and epistemic tolerance. Also, some virtues may well be an inseparable part of the community itself and not of the individuals within the society. Examining epistemic justice is an interesting task; because it can reveal that a community which is epistemically virtuous requires structures for actions such as epistemic praise and blame, structures designed to block the path of nonsense, lies, and other attacks that target truth (sidq). There are also some virtues that we would like only some members of a community (not all of them) to possess. In my opinion, intellectual innovation [/ intellectual openness] is among this category of virtues. We do not wish everyone to be like Plato or Milton, but any community in which a brilliant, innovative mind occasionally emerges will be better off.”[39]

Of course, it is clear that accepting this jurist’s view, and considering morality to be merely a personal/individual matter, will have no result other than “moral relativism”[40]—the harms of accepting the view of “moral relativism” are evident to all. Since he believes that: “the final normative judgment regarding the moral matter is made by the individual and for themselves,” “altruism” / “heteronomy”[41] in the sphere of morality must also be ignored and considered a futile issue, and, thus, what takes precedence is “ethical egoism”[42]—and the primary importance of the individual’s own moral interests. Furthermore, if the definition of morality is limited solely to the moralities of a particular individual or a particular group, the path to criticizing such moralities through “ideal morality” will be closed. Regarding the importance of “altruism” / “heteronomy”[43], it can be pointed out that individuals, by virtue of the human dignity of other ends, are obliged to uphold the rights of others. Accordingly, although in the sphere of morality we have ethical egoism, what is usually meant by morality is the observance of the welfare and rights of others.[44]

(5) Another reason that can be presented against “individual morality”—which Rasekh adheres to—and in favor of “social morality,” and which demonstrates, at least according to some renowned philosophers, that morality does not merely have an individual aspect but also possesses a social aspect. In this regard, one can refer to the view of John Rawls. According to Rawls, as one of the most important contemporary moral and political philosophers, it is easy to understand that morality is a “social category.” From his perspective, the first characteristic of a “theory of justice” is the “moral nature” of such a theory, meaning this moral concept (= “justice”) is directed at political, social, and economic institutions.[45]

Another justification in favor of “social morality” can also be observed in this argument from Abolqasem Fanaei:

“The aim of individual ethics is to cultivate the good person, and the aim of social ethics is to cultivate the good society […]. A good society is not necessarily the sum total of good individuals. A good society is one that possesses a just legal and real structure, whose members enjoy equal rights and generally observe one another’s rights. […] In social ethics, motive and intention are not important […] From the perspective of this ethics, what matters is that a person does not harm others in their conduct and does not trample upon the rights of others, and the person’s motive is largely irrelevant to the realization of this goal.”[46]

Considering these issues, if the author under critique means ethics in this individual, virtue-centered sense, it can be said that his claim that right is a morally neutral matter is correct, because an individual and personal attitude that varies from one person to another fundamentally cannot be the basis and foundation of right. However, the problem with his argument is that, without distinguishing between the various concepts of ethical theories, he commits an epistemological error, and the generality of his intended argument even extends to the separation of “right” from “normative ethics.”

(6) Another objection that can be raised against one of his other presuppositions concerns the “right to do wrong.” It was mentioned that he believes, first, that “having a right” pertains to the domain of “right,” and “being right” pertains to the domain of “ethics”; and second, that every individual has the right to make an unethical decision in exercising their rights. In what follows, I will present arguments concerning the connection and relationship between “right” and “ethics,” which, according to his own accounts, he borrows from Kant, and that right is fundamentally a moral concept—at least from Kant’s perspective. But for now, I will address the issue of the “right to do wrong.”

(6/1) Regarding the aforementioned epistemological error—according to the claim I quoted from him—it must be said that this error and misunderstanding has led to the “right to do wrong” also being considered a concept related to the domain of “being right.” This is while the “right to do wrong” is itself a “moral right”—which, of course, must also be a “legal right”[47]. The “right to be wrong” is the expression that a person is entitled to a moral right (= “normative ethics”). For example, in Kant’s view—who is a deontologist in ethics—lying is morally wrong, but according to Walter E. Schaller[48], Kant believes that under certain conditions, individuals possess the right to lie. In other words, lies that do not violate anyone’s right to freedom of action may not be coercively interfered with; and because they do not violate anyone’s freedom of action, they are therefore not wrong. But the foregoing account is to say that: (1) no one has the right to be lied to, and (2) people (in those cases where they do not violate anyone’s right to freedom of action) have the right to lie.

If this issue holds true, and if we accept Kant’s claim that lying does not (always) violate a “judicial duty”[49], then we are dealing with an example of an action that is wrong but does not violate anyone’s rights, and, in short, an example of the “right to do wrong.” For instance, because a certain person, through an action, does not violate the right of the deceived, this is not wrong—for before someone performs an action that affects the rights of others, they have committed no wrong against anyone. In the Metaphysics of Morals[50], Kant argues that lying (only) violates a duty to oneself.[51] Thus, from Kant’s perspective as well, we possess a “moral right” to lie as long as we do not violate the rights of others, and this right only violates a duty to ourselves, not to others. This is another reason that can be adduced against Rasekh’s incorrect presupposition that “having a right” pertains to the domain of “right” and “being right” pertains to the domain of “ethics.” If he subscribes to a Kantian reading—which he appears to—based on the above evidence, it is clear that “having a right” pertains both to the domain of “ethics” and to the domain of “right.”

Fanaei, likewise, writes on this matter: “The meaning of the ‘right to be wrong’ in the modern era is that being mistaken in discerning [moral] truth is a moral right. The meaning of this right is that others do not have the right to forcibly impose upon me what they themselves consider to be right—‘right’ here meaning ‘being right’ (حق‌بودن), as opposed to ‘having a right’ (حق‌داشتن).”[52]

Also, in the words of Jeremy Waldron[53], if we take the claim of “moral rights” seriously, the individual has a “moral right” to do that which is wrong or mistaken. For example, a person has the right to spend money won from gambling on purchasing racehorses or alcohol, instead of donating it to a charitable institution,[54] and no one can prevent the exercise of his right. The “right to be wrong” has also been expressed by one legal scholar as follows:

“Anyone who morally recognizes the right to be wrong for others will naturally be tolerant and forbearing towards the opinions of others, even if, from their perspective, those opinions are erroneous. The right to be wrong, or in other words, the right to ‘be in the wrong,’ embodies two manifestations of the concept of right: the concept of right that combines with the verb ‘to have’ and the concept that is used with the verb ‘to be.’ The meaning is that every human being morally has the right to choose an opinion, even if it is invalid from the standpoint of others. Thus, others, and especially the legal system, should not, under the supposition that this belief and opinion is an incorrect one, compel the individual to abandon it and adopt the correct opinion.”[55]

(6/2) However, regarding Rasekh’s ambiguous claim, wherein he initially justifies his “theory of right” on the foundations of Kantian ethics and then defends the “amorality” of such a theory, it is necessary to briefly discuss the ethical foundation of “right” in Kant’s view and the close connection and relation between “right and ethics” from this thinker’s perspective.[56] I will merely cite several reasons indicating that his presupposition regarding the separation of “right” from “ethics” from Kant’s viewpoint is incorrect. On this matter, I also refer the esteemed reader to a collection of articles translated by the present author from renowned Kant commentators, which is being prepared for publication, and which can be adduced in support of the above argument from Kant and against Rasekh’s incorrect interpretation.[57] Furthermore, I will point out that even among “utilitarians,” arguments have been advanced in favor of “moral rights.”

In any case, the reasons that can be advanced against his view are as follows:

(6/2/1) Kant’s Metaphysics of Morals comprises (1) the “Introduction to the Metaphysics of Morals,” (2) the “Metaphysical First Principles of the Doctrine of Right,” and (3) the “Metaphysical First Principles of the Doctrine of Virtue.” Hence, Kant considers “law”[58] and “ethics” to be the two parts of his moral philosophy. Kant believes that the “doctrine of right” is dedicated to individual rights, according to which right is a moral concept and also a metaphysical one. Kant defines right as follows: Right is “the moral capacity to obligate others.”[59]

(6/2/2) The first part of the Metaphysics of Morals concerns the “Doctrine of Right.”[60] This first part, as stated above, includes the metaphysical first principles of the doctrine of right, where Kant seeks to integrate the ideas of his ethical theory with elements and components drawn from “natural law”[61] and “social contract traditions” in order to formulate his theory of law and the political state. In the second part of this work, which pertains to the metaphysical first principles of the doctrine of virtue, Kant elucidates his views on “personal ethics.”[62][63]

(6/2/3) “In the Metaphysics of Morals, which in a way contains the final formulation of his views on normative ethics, Kant subsumes all moral duties under the two headings of duties of ‘justice’/‘right’ and duties of ‘virtue’ [...] and theorizes about each of these two sets of duties. Each of these two sets of duties is deduced from a general principle, i.e., they are applications of a general principle: duties of justice are deduced from the ‘universal principle of justice,’ and duties of virtue from the ‘universal principle of virtue’; and these two general principles are, in turn, deduced from the ‘categorical imperative’/‘unconditional’ [...].”[64]

(6/2/4) For Kant, the “categorical and unconditional imperative” is an objective, unconditional, obligatory, and necessary principle of reason that holds true for all rational agents, under any circumstances. Although he provides numerous examples illustrating this objective principle in the Groundwork of the Metaphysics of Morals[65], in his later writings, especially in the Metaphysics of Morals, he elaborates a complex normative theory for interpreting and applying the categorical and unconditional imperative for persons in a natural world. He describes two subsidiary principles intended to embody different aspects of the “categorical and unconditional imperative.” The first is the “universal principle of right,” which is based on issues of “justice,” “rights,” and external actions that can be coercively enforced, and the second is the “supreme principle of the doctrine of virtue,” which requires us to “act in accordance with a maxim of ends that can be a universal law for everyone.”[66]

(6/2/5) “Kant’s practical philosophy” is considered one of the foundations of the major theory of “human rights.” Our moral identity, as an end in itself, is the ground for our entitlement to “moral rights”—moral rights that correspond to our duties toward others. For Kant, a “human right” is an “innate”/“inherent”[67] or “natural”[68] right rooted in the moral nature of human creatures.[69]

(6/2/6) From Kant’s perspective, every human being, by virtue of being human, possesses intrinsic worth, and certain fundamental moral values, such as “autonomy” and “human dignity,” are considered the most important logical and rational support for certain rights, such as “human rights.” Immanuel Kant is one of the most prominent moral philosophers to have theorized about these two moral values; two values whose subject is the human being qua human, regardless of any “accidental” characteristics.[70] In fact, “[...] the most robust foundation of contemporary human rights is the principle of the human being as an end. This principle, which in the Kantian moral system entails the principle of individual autonomy or, ultimately, the fundamental right to self-determination [...].”[71]

(6/2/7) Even some “utilitarians” have spoken of and argued about “moral rights.” Contrary to some “utilitarians”—specifically Jeremy Bentham, who considers “moral right” to be essentially nonsense—others, such as J. S. Mill, defend “moral right.” As Christer Bykvist[72] states in the book Great Thinkers in Moral Philosophy, “utilitarians” can, without any contradiction, accept “moral rights.” More explicitly:

“Bentham thought that the very concept of moral rights was ‘nonsense upon stilts,’ but Mill, contrary to him, defended the coherence of this concept and, moreover, considered his own version of utilitarianism to be entirely compatible with the existence of moral rights. To see whether he was successful in this regard, let us first see what he says about the concept of a moral right.

In Mill's view, a right (whether legal, conventional, or moral) is, by definition, linked to a perfect duty.[73] For instance, I have a right against you to walk on the sidewalk only if you have a perfect duty towards me not to prevent me from walking on the sidewalk. Imperfect duties,[74] such as the duty of generosity or charity, are not the kind of duties that "create a right for anyone." Mill then identifies justice with these perfect duties: "Justice implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his moral right." Furthermore, in Mill's view, it is part of the meaning of moral rights that they are associated with sanctions; meaning that if I fail to provide what you have a moral right to, I ought to be punished in some way, either by law, by the opinion of other people, or by my own conscience. Mill sums all this up as follows: "When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it." So far, this has merely been an account of the concept of a moral right and the requisites of its existence. Mill's utilitarianism enters the picture when he says that the sole reason society is obliged to defend rights and the sanctions for violating them is general utility. One way to understand this is to put yourself in the position of a utilitarian legislator. As a legislator, you must design a system of legal and conventional rights, which, by definition, are linked to a system of perfect legal and conventional duties and their associated sanctions. As a utilitarian, your guide is solely general utility, and you seek a system of rights that yields the best results, that is, a system that maximizes the sum of happiness in the long run. Therefore, a moral right can be considered a legal or conventional right that is part of a system of rights that produces the best results. This applies to all moral rights, including the right to liberty.

So far, it seems Mill has successfully shown how utilitarians can, without any contradiction, accept moral rights. The problem arises when we consider a specific situation where we know the only way to maximize the sum of happiness is to violate one person's moral right. Suppose you are a judge and you know that the only way to prevent a riot, which will lead to many people being harmed, is to convict an innocent person whom the potential rioters believe is guilty of murdering one of their comrades. If Mill truly wishes to remain faithful to act-utilitarianism, he seems compelled to say that the judge in this particular situation should not respect the moral right of the innocent person. Of course, this does not mean denying that person's moral right to be acquitted, for this right remains part of the best possible legal system; we are merely saying that in this particular situation, this right should not be respected, because we know that violating this right yields better results. However, it can be argued that Mill's endorsement of this point shows he does not take rights as seriously as he ought to. Should not rights, in cases like this, trump general utility?»[75]

(4)

Pathology

At the end of the discussion, I will confine myself to just two instances of the harms that Rasekh's perspective and claims inflict upon the body of law, ethics, and society—although other harms could be added to these two, but by scrutinizing what has been said, the esteemed reader can easily add other harms to these instances, especially since, during the above discussions, I raised objections regarding Rasekh's reading within my arguments and spoke of some of the incorrect effects of his interpretation.

(1) Regarding the pathology of the approach that describes right as an “amoral” / “morality-averse” category, one can enumerate cases that will certainly have adverse effects on the theory of “modern right”; to explain, if we introduce “right” as being without need of and without the backing of “morality,” the philosophical foundation of the “universality of rights,” which is based on human dignity and the prohibition of using humans instrumentally, will be cast into eclipse. In other words, the justified and reasoned basis that, through Kantian ethics, can justify the foundation of contemporary human rights—if we separate this moral foundation from right, and also rely solely on an individualistic reading of morality (= “moral subjectivism” / “personalism”)—undoubtedly the first harm that will threaten the theory of modern right is the problem of “relativism” in the sphere of human rights. Hence, the consequence of an individualistic reading of morality has at least two results, namely: (1) “we have both become proponents of relativism in the sphere of morality,” and (2) “we have become proponents of relativism in the domain of human rights.” Although some human rights are limitable not in their realm but in their content, this issue never means that the moral foundation of modern right differs from one individual to another (= “individual morality”). Individuality is one of the morally irrelevant features in determining a moral judgment. Making individuals’ conceptions of moral principles and fundamental rights the guide for action will result in “relativism” in moral judgments and will lead to a kind of “skepticism” toward moral principles and norms. Moreover, in “[...] the science of ethics, in rejecting or accepting moral principles, we pay no heed to authorities, institutions, or even public opinion [and the moral judgments of individuals], but rather we resort only to criteria within their own realm [...].”[76] Reliance on the moral beliefs of others – and here meaning the differing moral beliefs of individuals – without the need for the justificatory tools available in ethics, leads to a kind of “ethical positivism”[77] – to which serious objections apply –[78] and, consequently, “fundamental rights,” which are “moral rights” and originate from moral principles, can also become subject to the varying definitions and conceptions of different individuals, cultures, the ruling class/rulers, and the meaning of “right” becomes whatever these intend. In the realm of legislation as well, “right” is only what the legislator recognizes. “The theory of amoral right has no result other than the very view that legal positivists emphasize regarding the separation of morality and law.”

(2) An individualistic reading of morality leads to the threat of the “private sphere” of individuals. This means that the separation of “individual morality” from “social morality” depends on the separation of the “private realm” from the “public realm” and the protection of the “private realm” from the intervention of others, including the state, social institutions, and other individuals.[79] Accordingly, in “social morality,” persons have the right to organize their lives based on their own conceptions of the concept of “the good” (= “individual morality”) and to have their privacy respected. The meaning of the “right to be in error” – to which I referred – is also in this sense that individuals have a moral right in discerning the truth, and others cannot impose what they themselves consider to be right (“being right” not “having a right”) upon others.[80]

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[1]. Doctoral researcher in Public Law, Allameh Tabataba’i University.

[2]. Full Professor, Department of Public Law, Faculty of Law, Shahid Beheshti University.

[3]. right

[4]. ethics

[5]. amoral

[6]. meta ethics

[7]. Rasekh, Mohammad, et al. (1398 [2019]). “The Moral Matter and Right.” Legal Research Quarterly. 22 (87), p. 26. Also, regarding his approach that introduces the moral matter as requiring the presence of a “good” intention and purpose, see the author’s introduction in: Harrison, Ross (1393 [2014]). “Government and Morality”. in Right and Expediency; Essays in the Philosophy of Law, Philosophy of Right, and Philosophy of Value. Translated by Mohammad Rasekh, 5th ed., Tehran: Tarh-e No, pp. 75 and 79; Rasekh, Mohammad (1393 [2014]). “Freedom as Value”. in Right and Expediency; Essays in the Philosophy of Law, Philosophy of Right, and Philosophy of Value. 5th ed., Tehran: Tarh-e No, p. 285.

[8]. Rasekh et al., op. cit., pp. 8-36 and 7-26, 3-21.

[9]. Rasekh, Mohammad (1393 [2014]). “The Theory of Right”. in Right and Expediency; Essays in the Philosophy of Law, Philosophy of Right, and Philosophy of Value (2). 3rd ed., Tehran: Ney, pp. 246 and 48-245.

[10]. Golding, Martin P. (1393 [2014]). “The Concept of Right (1): A Historical Introduction”. in Right and Expediency; Essays in the Philosophy of Law, Philosophy of Right, and Philosophy of Value. Translated by Mohammad Rasekh, 5th ed., Tehran: Tarh-e No, p. 179.

Justifying the concept of “right” based on Kantian moral foundations, and then introducing this concept as something pertaining to the realm of the “non-moral,” is logically a “union of opposites.” It is fundamentally illogical to justify a concept based on moral foundations (= right) and then consider it related to the “non-moral” realm. In other words, if the “container” is moral, speaking of a non-moral “contained” is a baseless claim. It seems the justification the author had in mind regarding the non-moral content of right, and which he failed to provide, concerns rights that, according to the “descriptive ethics” of a particular group or society, are considered “anti-moral and/or immoral.” For example, from the perspective of many philosophers of law and ethics, a right such as the right to “homosexuality” is a “moral right”—what is meant by morality here is “normative ethics.” However, this right can be considered an “anti-moral” / “immoral” matter from the perspective of a particular group or society—especially in religious societies like our own.

In other words, there is a difference between what an individual or society accepts as a moral matter and what an individual or society morally ought to accept. “In the literature of the discussion, the former is called ‘descriptive ethics’ and the latter ‘normative ethics.’ For example, a society might consider animal cruelty a moral act (descriptive ethics), but deep moral reflection shows that harming animals is morally reprehensible (‘normative ethics’).”

On this, see Behbahani, Kaveh (1402 [2023]). From Ethics Research to Aesthetics. 1st ed., Tehran: Tarh-e No, footnote on page 111.

[11]. Rasekh, “Freedom as Value.” op. cit., pp. 2-281.

[12]. Ibid., pp. 4-283.

[13]. normative ethics

[14]. social ethics

[15]. applied ethics

[16]. metaethical relativism

[17]. For further study on the reading of “metaethical relativism,” see Behbahani, op. cit., pp. 43-42.

[18]. virtue ethics

[19]. Undoubtedly, if we were to enter into a hypothetical dialogue with Dr. Rasekh, he would certainly not hold that the moral sphere is exclusively confined to "virtue ethics," but since he has emphasized taking this ethics seriously, a critique of his view has been placed on the agenda of this article.

[20]. Bernard Gert (1934-2011).

[21]. descriptive ethics

[22]. Gert, Bernard (2020). “The Definition of Morality,” Stanford Encyclopedia of Philosophy, URL= <https://plato.stanford.edu/entries/morality-definition/> §2(5).

[23]. Warnock, Mary (1387 [2008]). Falsafe-ye Akhlāq dar Qarn-e Bistom [Ethics Since 1900]. Translated by Abolqasem Fanaei, 2nd ed., Qom: Bustan-e Ketab Institute, p. 34.

[24]. In Arash Naraghi's phrasing as well, "the argument of 'cultural relativists' [/ or 'cultural relativity believers']" can be summarized in the following simplified form.

(1) Different cultures have different conceptions of good and bad. The reality is that in most cases, what is considered "good" in one particular culture (for instance) is regarded as "bad" in another. Different cultures follow very different value systems (the principle of diversity)

Therefore,

(2) "Good" and "bad" or moral values change from one culture to another. In other words, there is no objective, cross-cultural truth (the doctrine of cultural relativism)

And of course, critics of human rights, based on proposition (2) (i.e., the doctrine of cultural relativism), can easily conclude:

(3) "Universal human rights," as a set of cross-cultural rights or values that encompass all human beings equally, do not exist.

On this, see Naraghi, Arash (1390 [2011]). "Hoqūq-e Bashar va Mas'ale-ye Nesbīyat-garāyī-ye Farhangī" [Human Rights and the Problem of Cultural Relativism]. In Akhlaq-e Hoqūq-e Bashar [The Ethics of Human Rights]. 2nd ed., Tehran: Negah-e Mo'aser, p. 33.

[25]. moral subjectivism

[26]. Gensler, Harry J. (1395 [2016]). Darāmadī Jadīd be Falsafe-ye Akhlāq [Ethics: A Contemporary Introduction]. Translated by Hamideh Bahraini, edited by Mostafa Malekian [2nd ed.], 6th printing, Tehran: Aseman-e Khial, p. 56.

[27]. Ibid.

[28]. Ibid, p. 59.

[29]. Ibid, p. 65.

[30]. Rachels, James (1396 [2017]). Anāsor-e Falsafe-ye Akhlāq [The Elements of Moral Philosophy]. Translated by Mahmoud Fathali and Alireza Alebouyeh, 2nd ed., Qom: Islamic Sciences and Culture Academy, p. 287.

[31]. Gertrude Elizabeth Margaret Anscombe (1919 – 2001).

[32]. Anscombe, Gertrude Elizabeth Margaret (1958). “Modern moral philosophy,” Philosophy, 33(124), pp. 1-19.

[33]. collective virtues

[34]. Per Sandin

[35]. For a study of the examples Sandin has provided, see

Sandin, Per (2009). “Approaches to ethics for corporate crisis management,” Journal of Business Ethics. (87), pp. 109-116; Sandin, Per (2007). “Collective military virtues,” Journal of Military Ethics. 6(4), pp. 303-314.

And for a better understanding of the concept of “collective virtue,” refer to these works:

Byerly, T. Ryan & Byerly, Meghan (2015). “Collective virtue,” The Journal of Value Inquiry. 50(1), pp. 33-50; Greco, John (2021). “Virtue epistemology,” Stanford Encyclopedia of Philosophy. URL= < https://plato.stanford.edu/entries/epistemology-virtue/#InteVirtEpisComm/> §10(1).

[36]. Linda Zagzebski (1946 – 2016).

[37]. virtues epistemic communities

[38]. epistemic generosity

[39]. Zagzebski, Linda (1400 [2021]). Epistemology. Translated by Kaveh Behbahani, 5th edition, Tehran: Ney Publishing. pp. 164-167.

[40]. moral relativism

Again, if we enter into a hypothetical dialogue with this legal scholar, I doubt they would be unaware of the unsound consequences of “moral relativism” or, for instance, the consequences of “ethical egoism,” and would not consider them a destructive attitude in the sphere of ethics.

[41]. altruism

[42]. ethical egoism

[43]. According to some renowned contemporary philosophers, ethics commands nothing but “altruism,” and this is fundamentally the mission of normative ethics. Great philosophers such as Emmanuel Levinas, Thomas Nagel, Peter Singer, and others have based the foundation of their moral philosophy on the justification of this very issue.

[44]. Atkinson, R. F. (1394 [2015]). An Introduction to Moral Philosophy. Translated by Sohrab Alavinia, 2nd edition, Tehran: Hermes Publications, p. 41.

[45]. Rawls, John (1987). “The Idea an Overlapping Consensus,” Oxford Journal of Legal Studies. 7(1), p. 4.

The existence of “political morality” is another reason for the non-individualistic nature of ethical theories. For further study on this, see.

Dworkin, Ronald (2011). Justice for Hedgehogs. The Belknap Press of Harvard University Press. pp. 317-34, 384.

[46]. Fanaei, Abolghasem (1384 [2005]). Religion in the Scales of Ethics. 1st edition, Tehran: Serat Cultural Institute, pp. 54-56.

[47]. legal right

Of course, the author does not believe that the mere “immorality” of an act is sufficient for legislating against it (the view known as “legal moralism”). Saying that “legal rights” have a moral source does not necessarily lead us to the claim that mere “immorality” justifies “illegality.”

[48].Walter E. Schaller

[49]. juridical duty

[50]. Metaphysics of Morals

[51]. For further study on this, see.

Schaller, E. Walter (2000). “Kant on Right and Moral Rights,” The Southern Journal of Philosophy. Vol. XXXVIII, pp. 333-335.

[52]. Fanaei, Abolqasem (2017). The Ethics of Theological Studies; An Inquiry into the Epistemological and Ethical Foundations of Jurisprudence. First edition, new revision (third edition), Tehran: Negah-e Moaser Publishing, p. 146.

[53]. Jeremy Waldron (1953 - …).

[54]. Waldron, Jeremy (1981). “A right to do wrong,” Ethics. (92), p. 21.

[55]. Qari Seyed Fatemi, Seyed Mohammad (2017). Contemporary Human Rights; Analytical Essays on Rights and Freedoms. Book Two, fourth edition, Tehran: Negah-e Moaser, p. 134.

[56]. According to Waldron as well, the language of rights is part of moral discourse. See.

Waldron. Op. cit. p. 23.

[57]. Kant, Ethics, and the Legal System. Forthcoming.

[58]. law

[59]. B. Sharon Byrd & B. S. & Joachim Hruschka (2010). Kant’s Doctrine of Right: A Commentary. Cambridge University Press p. 3.

[60]. Kant, Immanuel (1996). The Metaphysics of Morals. Trans. & Ed. by Mary Gregor. Cambridge University Press, p. 49.

[61]. natural law

[62]. personal morality

[63]. On this, see.

Kant. Immanuel (1997). Groundwork of the Metaphysics of Morals. Trans. & Ed. by Mary Gregor. Cambridge University Press, xxxii.

[64]. Fanaei, Abolqasem et al. (2020). “Moral Right: Possibility or Impossibility?”. Human Rights Journal, (15)1, pp. 4-23.

[65]. Groundwork of the Metaphysics of Morals

[66]. Johnson, Robert (2016). “Kant’s Moral Philosophy,” Stanford Encyclopaedia of Philosophy. URL= <https://plato.stanford.edu/entries/kant-moral/> § 13.

[67]. innate right

[68]. natural right

[69]. human beings

[70]. For some reasons in favor of the moral nature of right from Kant's perspective, see.

Qari Seyed Fatemi, Seyed Mohammad (2017). Contemporary Human Rights; An Introduction to Theoretical Issues; Concepts, Foundations, Scope and Sources. Book One, fifth edition, (Tehran: Negah-e Moaser, pp. 21-29; Qari Seyed Fatemi, Seyed Mohammad (2002). “Ethical Theories in the Mirror of Law”. Nameh-ye Mofid, No. 29.

[71]. Qari Seyed Fatemi, Contemporary Human Rights: Analytical Essays on Rights and Freedoms. op. cit., p. 98.

[72]. Krister Bykvist (1965 - …).

[73]. perfect obligation

[74]. imperfect obligation

[75]. Bykvist, Krister (2020). "John Stuart Mill." In Great Thinkers of Moral Philosophy. Translated by Mohammad Zandi, compiled and edited by Kaveh Behbahani, Tehran: Lega Publishing, pp. 262-264.

[76]. Atkinson, op. cit., p. 72.

[77]. moral positivism

[78]. For a study of the reasons for this, see ibid., pp. 70-72.

[79]. Fanaei, Religion in the Scales of Ethics. op. cit., p. 62.

[80]. Fanaei, The Ethics of Religious Studies: An Inquiry into the Epistemological and Ethical Foundations of Jurisprudence. op. cit., p. 164.

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