In Defence of the Legal-Political Existence of Rights[1]: Toward a Theory of Justice

Analytical Justice Studies: Dr. Mohammad Rasekh’s[2] Underappreciated Gift to Iran’s Legal and Philosophical Academy

Ali Mokhtari[3]

Abstract

We Iranians can take pride in the fact that, within our civilizational heritage, we turned to rights far earlier and to a greater extent than Europeans. The famous Cyrus Cylinder contains edicts comparable to today’s human rights, and the Treatise on Rights by the fourth Shia Imam is replete with precepts founded upon the rights of others; yet, if we are honest with ourselves, we cannot consider our society even close to being “rights-oriented” in the modern sense—that is, having a right, not being in the right. In the following lines, we shall examine why “moral right”—in the sense of justifying the content of rights—despite resorting to universal rationality, not only failed to extend from the past into the present, but also cannot suffice today for establishing rights in the new sense. This is, in brief, because it does not find a place within the historical actuality of the modern state as an objective reality; it speaks to power through the communicative action of language, i.e., based on the truth and validity of speech, and consequently does not provide authoritative protection and the element of guaranteeing a claim irrespective of its content, which is precisely the newly emerged dimension of right. In contrast, an attempt was made to show that the modern right, in its ultimate manifestation, is understood as the constituent parts of a “just political-institutional order,” regardless of whether it is inscribed in the legal system arising from the existing political order or not. Right is a political entity that constitutes the components of a legal system which, grounded in justice, provides for the political obedience of citizens to the state—correspondingly, in Weber’s[4] terms, the legitimate and exceptional possibility of exercising force or violating individual freedom—in exchange for protecting the element of “having” in the new sense of right; in this formulation, the legal system is understood as transcending the rule of recognition (statute and positive law). In the final step, an analytical concept of justice was put forward as the substantive principle of political philosophy, aimed at justifying the conditions of political obedience and, simultaneously, serving as the justificatory basis of rights, among other things: “The principle of justice or equal liberty, like the principle of universality, is not a purely formal rule in evaluative discourse. Justice is a ‘substantive rule of conduct that is logically unique.’[5] The logical difference between the principle of justice and moral rules lies in the fact that its negation is meaningless, whereas the negation of moral rules is meaningful. For example, one can meaningfully endorse a benevolent act for being non-benevolent, i.e., one can believe in a moral system that endorses that act, but one cannot endorse an unjust act for being unjust because (for example), regardless of what an individual’s moral values are, it is meaningless to claim a greater degree of freedom for oneself relative to others while simultaneously claiming a proportionate forbearance of that freedom by the other; for claiming freedom for oneself and, consequently, the other’s omission logically entails a disagreement among persons over values or moral principles.”[6] This disagreement is ruled out due to the inalienable value-neutrality of the negative concept of liberty,[7] which is another expression of the principle of the equal worth of human beings.

In sum, justice refers to the fact that individuals under governance accept the exercise of power only if that power is justifiably grounded in justice, which entails, among other things, guaranteeing individuals’ right to have, based on self-ownership; justice also does not ignore the reality that individuals’ right to have is a function of the opportunities and resources of life and the physical possibilities for action within the entire territory of the nation-state, and hence, this reading of justice, while not rejecting appropriate and justified methods of resource redistribution (for instance, policymaking[8]), equally or more so prescribes the increase of these resources (wealth) on the scale of the whole and for each individual; this understanding of justice, which is libertarian and egalitarian, is also, among other things, a basis for advocating “development.”

Introduction

This note seeks to demonstrate that a non-concrete and non-phenomenological understanding of rights[9]—that is, other than as the perception of the “experience of having a particular right”—which grounds them in a kind of substantive judgment (belief in and will toward the good) and persuasion-based approach (by appealing to inner restraint), is inadequate and unstable. If the basis of a right is anything other than a theory of justice—such as social morality—in addition to its inability to provide the essence of the guaranteed nature of the right, it traps the right in knowledge-power relations and leads to totalitarianism; because the language of right, only in its strategic[10] (non-communicative) function oriented toward sovereignty, as a claim to power and efficacy rather than a claim to validity and truth, can be considered the currency of authoritarianism or political subjugation, and provide the modern right’s distinguishing element from the pre-modern, namely content-independent guarantee, by political power. The theory of justice, which also encompasses the specific language of right, appears to be the sole reliable process for justifying rights due to several unique features, which are elaborated upon as space permits in the two final sections. These features, in brief, are: 1) Justice has become the standard reason for regulating the individual’s relationship with the political community, aligning the justificatory basis of right with the justificatory basis for the establishment, application, preservation, and transfer of political power. 2) Justice provides a logically unique explanation of the rule of conduct, the negation of which is impossible, unlike the rules of other substantive normative domains (moral, religious, etc.). 3) From one perspective, justice does not necessarily presuppose free will (in the strict sense of the word) and, consequently, among other things, the causality of cognition (reason) for the subject’s action; rather, for the application of the rules of justice, the mere will to life, or the experience of decision, or the experience of choice[11]—regardless of all or any determinations external to self-consciousness yet affecting it—is sufficient, because justice, from this perspective, is, among other things, the rule for the distribution of negative liberty; and conduct conforming to the rule of justice, that is, within the guaranteed sphere of freedom for the individual, can, depending on the case or philosophical position, be considered entirely spontaneous or not.

This piece was written in fragmented intervals with the aim of continuing dialogues among Iranian university professors and providing a concise understanding of some competing theoretical endeavors in the field of rights; therefore, while thanking Mr. Mohammad Hosseini for initiating this useful and valuable endeavor with the note “A Critical Look at the Views and Presuppositions of Dr. Mohammad Rasekh Regarding the Concept of Right and Its Relation to Concepts in the Sphere of Moral Inquiry,” I apologize for the delay and am pleased to have a share in this fine tradition. I humbly hope to have taken a step, however small, toward clarifying concepts and correcting possible errors in the perilous abyss of the theory of rights. An effort has been made to analyze the subjects with precision and without tedious preliminaries so as not to deprive myself of the sharper critiques of the experts, but the complex nature of the discussion may have diminished its appeal; therefore, readers who do not have the time to read the whole piece are advised not to overlook at least the section bearing the same name as the main title, namely The Legal-Political Existence of Rights: Toward a Theory of Justice. I thank in advance all the learned friends who read this text and request that, while refraining from piecemeal judgment, simplistic summation, or criticism of motives and labeling, you do not deprive this humble person of your critique and opinion. I hope to have, for my part, cast a faint glimmer upon the trunk of the elephant in the dark room, so that although the dimensions, color, and state of the elephant still require much investigation, we at least know it is an elephant and not a rhinoceros!

It seems that the few insightful thinkers who write about rights in the modern sense within the Iranian intellectual sphere are preoccupied with explaining the logical connection among a chain of concepts so that ultimately, right—in the sense that came into use from the late Middle Ages and was accepted in the early modern period, and in the form guaranteed in the modern world through the declarations of revolutions from the Enlightenment onward and constitutional laws—is linked to a universal normative perspective, thereby providing a common basis in the minds and language of the Iranian people and rulers for commitment to it. This is a valuable concern, but perhaps the intensity of empathetic emotions toward the dignified and suffering people of Iran causes the difficult questions, at the forefront of which "why" has taken root, not to be properly asked in the shadow of the immediate goal of the real and practical establishment of human rights for the Iranian person, or to be reduced to a question of "how." I believe the claim of "moral right" is in fact an answer to the question "How do we establish human rights for the specific human beings existing in a specific land?" and has not properly examined the original question: "Can the moral serve as a justificatory basis for modern right?" The importance of examining this question is such that without a correct, fundamental understanding of the problem of right, the path to approaching the realization of the rights-based ideals of society will become more distant, and paying enormous costs on this path will lead to the desired result much later. In this note, we will try to address this question.

Response to Some Critiques

Before entering into a detailed explanation, it seems that brief responses to Mr. Mohammad Hosseini's main claims regarding Dr. Mohammad Rasekh's philosophical presuppositions would benefit the readers.

"Rasekh's most fundamental and controversial presuppositions can be summarized in a few points; in his opinion:

• Morality is a personal/individual matter";
• In response, it must be said: alongside the personal characteristic, persuasive and autonomous characteristics have also been mentioned.[12] What do personal and persuasive mean together? Personal, persuasive, and autonomous are set against institutional, authoritarian, and heteronomous. Personal means non-institutional, but it is persuasive, not based on authority, meaning one must be persuaded based on reasons and evidence; therefore, it in no way carries a subjective or individualistic meaning.
• "Morality is a matter confined to 'virtue ethics'—and that too only personal virtue (= individual virtue-centered ethics)";
• It seems it has been overlooked that, according to his view, morality generates virtue and is not necessarily virtue-centered. The discussion concerns the effect of morality on an individual's character, not a specific theoretical framework among the common frameworks. Nowhere is a position taken regarding one of the three common theories in ethics, and specifically, critiques apply to all three theories; hence, attributing virtue ethics theory to him is unfounded, not to mention that morality being a generator of virtue as a necessary but not sufficient condition has significant differences from morality being virtue-centered as a necessary and sufficient, ultimate theoretical framework for a moral system.
• "It seems that even his reading is not 'virtue ethics' but 'moral subjectivism' / 'moral personalism'";
• To great surprise, it is evident that this proposition is an unwarranted escalation resulting from a mutated combination of propositions two and one; for this reason, it is necessary to emphasize that personal means non-institutional and non-heteronomous, but what the person accepts and is convinced by is certainly an intersubjective (objective) claim.
• "'The right to be wrong' / 'the right to be in the wrong,' besides referring 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";
• The gist of the matter is that having a right is compatible with anti-morality, and therefore, logically, it must be said that right is morally neutral. The right to be wrong is, in fact, another expression for free will! To explain, if we grant someone free will, we must ask: a) Does free will necessarily mean the free will for moral action? b) Can the possessor of free will, is he permitted to, make an anti-moral choice? If the answer to the first question is negative and to the second is positive, does the result become anything other than the right to be wrong (in thought and action)?

"And most importantly,

• There is no connection or relation between “right” and “morality,” at least in Kant’s view, and, therefore, one cannot speak of something called a “moral right.” In a sense, from his perspective, “right in the modern sense is a morally neutral/amoral/morality-averse matter.”»;
• It must be noted that right and the good (the correct and the good) are translations of Kant’s Recht and Tugend, which in the Continental European tradition have been used as subjective right and objective right, respectively. In the former, the final judgment regarding action is left to the individual (right or the correct thing), and in the latter, it is an objective and intersubjective judgment (the good or the good thing). There is absolutely no claim to a Kantian exposition or interpretation. In theoretical attempts to justify right, three accounts of his categorical imperative, especially the principle of humanity as an end, have been used.

In the article “The Moral Matter and Right,” it has also been noted that universality, rationality, and treating humanity as an end are common aspects of all normative systems. But the question concerns the distinguishing aspects. What are the distinguishing aspects of different normative systems (law, morality, and politics)?

Moral Right versus the Morality of Right: An Analysis of the Insufficiency of Justifying Modern Right from a Moral Standpoint

A has a right against B to X by reason of Y.

The structure of the sentence above can be stated as a logical definition of a right. Now, to understand the claim contained in the compound “moral right,” one must distinguish between at least two conceptions of formulating right as a moral entity: 1) The morality of right, on the one hand, may mean providing a basis for deriving the content of rights from moral duties; that is, Y or X in the structure above are determined on the basis of morality, in the strict sense of the word; 2) On the other hand, it may be considered as providing a basis for the universal, inalienable, and dignity-based protection of the existence of rights by appealing to the universal moral conscience. The second formulation, which can be interpreted as employing the moral conscience under the virtue or duty of seeking rights or seeking justice, is what can be called the morality of right or the morality of justice, which is expressed in this sentence: It is good that: based on justice, A has a right against B to X by reason of Y. As is evident, this formulation clearly has a second-order status relative to the content and justification of a specific right and does not aspire to determine X or Y; hence, it seems defensible. In this writing, the first formulation, namely the substantive justification of right from a moral standpoint, which has been introduced into the Iranian intellectual sphere by Dr. Fanai[13], is the subject of critique and assessment. He writes:

“When we speak of moral duty toward others, we must distinguish two kinds of duty toward others: one is ‘duty to others’ and the other is ‘duty concerning others.’ The first kind of duty toward others is a sort of debt to others; this particular kind of duty toward others corresponds to a right that others hold against us. For this reason, the normative consideration that this particular kind of duty expresses or manifests can also be formulated and expressed in terms of the ‘right’ of others. Thus, in this case it makes no difference whether we say: ‘A has a duty toward B,’ or ‘B has a right against A’; in both instances we have expressed or articulated one and the same normative consideration.”[14] In other words: what duty/right do we have and why? That we have such a duty/right is determined on the basis of morality. To better compare the two aforementioned approaches to moral right, consider this example: take the right to nationality (Article 15 of the Universal Declaration of Human Rights). Possessing the nationality of a country at least renders that country’s criminal laws applicable to the individual. Now, if the laws of country y contain oppressive provisions that are also applicable to that particular individual by way of active personality or territorial jurisdiction, can one morally defend the right of individual x to the nationality of country y? In other words, can a moral duty be imposed on moral agent A—for instance, a passport officer—to respect the right to nationality of x, who is to face an unjust punishment in his country? According to the second approach (the morality of right), since the moral reason applies not to the content of the right but to the existence of the right (the entire clause at the beginning of this section), one can defend the right of individual x to the nationality of country y with deontic reasons, including moral reasons. In contrast, according to the first approach (content-based justification of moral right), this defense entails a contradiction, for it is incompatible with the moral duty to negate oppression and submission to oppression, and is not deemed good, since the content of the right (x in the first clause of this section), which here is nationality, is itself an immoral matter, and a moral reason cannot directly justify an immoral matter or demonstrate a moral duty to perform an immoral act. In the remainder of this note, whenever reference is made to the theory of moral right, what is meant is the first approach (content-based justification of right).

At any rate, the fact that a particular kind of right exists that expresses a moral consideration, or that a moral reason exists in favor of that particular kind, is not futile provided that these rights, by virtue of having come into existence as rights, possess features that they can possess exclusively because they are moral. That is, the moral obligation corresponding to the right is not futile provided that it obligates the moral agent to a particular kind of obligation such that this obligation preserves its moral character without involving the agent’s intention and motive; this is a subtle point that proponents of moral right must explicate. Which right is it that has come into existence as a right—that is, is at least a guaranteed claim—solely because it is moral (i.e., expresses a moral consideration or has a moral reason)? This statement is different from saying that the content of rights sometimes overlaps or corresponds with the content of moral duties, because that does not mean those rights are founded upon moral duties; in other words, if the moral duties in question did not exist, no harm would befall the status of those claims as rights [of the having sort], because from the standpoint of political philosophy and principles of justice, one can/should argue in favor of rights without needing a moral foundation.

In truth, it is not the duty of the right’s addressee to act in accordance with the right of the right-holder that constitutes the essential core of the right, but rather the freedom of the right-holder to act in accordance with his right—which, owing to its political guarantee, sometimes entails another duty—that is the principal core of the right. Therefore, in order to claim that right, in addition to its non-moral uses and meanings, also has a moral meaning and use, it must be shown that at least some rights have only a moral justification; or that the moral justification of the right—assuming motive is set aside from this justification—imparts distinctive features to it. In both cases, moreover, the moral justification of the duty corresponding to the right is not sufficient; rather, the justification of the negative freedom of the right-holder is necessary, which sometimes entails a corresponding duty and sometimes does not.

Consider the right to do wrong (in action) or to be in the wrong (in thought) as the bottleneck for understanding the modern right: this right permits its holder to commit an immoral act without interference from society or the legal system (provided that the immoral act has not been criminalized, which is a separate discussion) or to hold a belief contrary to the truth. The paradox is that this right has also been said to be moral, because it corresponds to the moral duty of society, both at the level of institution-building and policymaking and at the level of individuals, to refrain from imposing their beliefs on the right-holder.

Leaving aside the confusion between the moral concept of tolerance and forbearance and the right to error, one may ask: Now that the aforementioned right corresponds to a normative duty, what reason is there to consider the duty in question a moral duty of non-imposition of a true belief or a good action, rather than a normative but non-moral[15] (and not anti-moral) duty to abandon the duty of truth-telling or prescribing a good action? In other words, it can be said that when A exercises the right to error—that is, holding an erroneous belief or performing an immoral act—there are two possible analyses of the obligation of others to respect this right. First: a negative moral duty on the part of others gives rise to A's right, which is the duty of non-imposition of a true belief or non-imposition of a good action. Second: A's right grants him a freedom whose necessary corollary is the possibility of obliging others to abandon the moral duty of truth-telling or prescribing a good action.

Both analyses share the point that a right entails a corresponding duty for another, but attention to one of the fundamental features of a right will guide us toward choosing the correct analysis, which appears to be the second one. That feature is the optionality of the “exercise” of the right. That is, the point that a right requires that A can maintain or waive the obligations on others arising from his right, solely conditional upon his own free will. It is precisely here that the substantive justification of a right from a moral source clearly lacks the stability of the moral character in the corresponding duty; for the duty that the right requires to be established for the addressee of the right (not the right-holder) is defeasible if and only if the right-holder so wills; thus the claim that the duty of the addressees of the right possesses a moral character cannot be sustained because, when A (the holder of the right to be wrong (in deed or belief)) waives his right, it entails two contradictory claims on the part of the addressee of the right to be wrong, who is a moral agent [according to the claim of proponents of moral rights] merely obligated to act. One: I ought not to impose my rightful belief on A / I ought not to prescribe the good act to A if and only if I can will this obligation for everyone. Two: It is not the case that I ought not to impose my rightful belief on A / I ought not to prescribe the good act to A if and only if I can will this obligation for everyone. For the truth of the latter proposition arises from A’s discretion in waiving his right and, consequently, the dissolution of the corresponding duty arising from it for the addressees of the right. It is worth noting that if we apply the moral duty of tolerance and forbearance and do not conflate it with a right, this problem does not arise; for the waiver of the right to be wrong by A has no effect on the goodness of others’ duty of forbearance. On the other hand, according to the second analysis, the waiver of the right to be wrong also removes the reason-giving yet non-moral (not anti-moral) ground for abandoning the duty of truth-telling that originated from that right, and the addressee of the right is no longer under this obligation, although he can still be the addressee of the moral obligation of forbearance. In other words, the motivation-independent moral obligation corresponding to the right disappears with the waiver of the right, but the moral obligation of forbearance persists even though the erring subject has extinguished his right to be wrong. From this, it can be understood that the existence or absence of a right only changes the rational agent’s situation regarding this duty: whether he ought to abandon truth-telling or moral prescription in favor of the guaranteed freedom of action of the right-holder or not? Because if the right to be wrong is not exercised or does not exist, the moral duty of tolerance and forbearance, which is based on an epistemological stance, and likewise the moral duty to guide the ignorant, are not negated, and the moral agent must make the better decision depending on the other circumstances of the situation; in contrast, if the right to be wrong is exercised, the right-holder, by employing his freedom, renders the moral duty to guide the ignorant impossible and adds to the moral and motivated duty of forbearance a rational but non-moral and non-motivated duty of non-interference, whose bindingness is independent and even stronger.

Therefore, the problem of the moral right to be wrong (in thought or deed) is a problem of mutual compatibility and the possibility of the coexistence of moral duties with one another and with the right; because according to the conception of the morality of this right, when A exercises his right, a particular right, while corresponding to an obligation of the moral duty type (non-imposition of belief or action), also corresponds to a non-moral obligation (abandoning the duty of truth-telling or prescribing action); and these two obligations cannot simultaneously, while preserving their moral/non-moral character, serve as the basis for the action of the addressees of the right, because it logically entails a contradiction. It is worth noting that according to the foundation of the believers in moral rights, intention and motivation have no bearing on the obligation of the addressees of the right to perform the act it requires, and therefore the aforementioned problem—that is, the conflict between the obligation to abandon truth-telling and the obligation not to impose belief—cannot be resolved by reference to the agent’s motivation. In fact, the problem with the concept of a moral right is, among other things, its inability to regulate a homogeneous and mutually compatible normative relationship between the right-holder, the addressee of the right, and rights in their interrelation with one another.

A Critique of the Reduction of the General Theory of Value to Its Types: Not Every Normative Matter Is a Moral Matter

To answer: Why must the moral be the justificatory basis of right?, one must also ask: Does ethics and morality, in Immanuel Kant’s acceptable account, as rational [conforming to the universal law] normative [conforming to the principle of ends] propositions, cover the entire domain of the ought-propositions of human practical reason? More precisely: Is the logical relation between the rational ought and the moral one of equivalence?

The answer of the proponents of moral right to this question, based on the implications of their claims, must be affirmative; especially considering their reference to Kant’s division of the entire domain of moral duties into applications of the universal principle of virtue and the universal principle of justice (Recht)[16], as a result of which we cannot find any universally rationally binding principle for the [ideal] agent that does not fall under one of these two principles, with the difference that in instances of virtue, good intention and motive are conditions, whereas in instances of justice, merely the realization of the act by the agent is required, and hence; the latter case is also susceptible to external compulsion through law, and social morality, according to the claim, refers to the latter type of moral duties.

As Dr. Fanā’ī has stated,[17] right is justified on the basis of social morality because having a right always summons another in society to a positive duty (act) or a negative duty (omission) toward the right-holder, and the latter duty does not require good intention and motive; hence the content of such a right is originally moral, which can also don the garb of law. Therefore: “Only some moral duties, namely the duties corresponding to moral rights, have the capacity to be transformed into positive law. From a logical perspective, the relation between the moral and the political and the legal is not one of mutual exclusivity, but rather one of general and particular; we have two types of moral matters, one type of which has the capacity to don the garb of positive law and be accompanied by external compulsion, but the other type lacks such a capacity.”[18]

As quoted, the relation between the moral and the legal (juridical) has been considered by one of the defenders of moral right to be that of general and particular, although it has astutely not been specified whether it is absolute or partial; yet the fundamental question concerning the relation between the moral and the absolute (rational norm) remains. Is the moral a species (or application) alongside other coordinate species of the absolute, or is it itself the genus? Is there no specific meaning in the moral such that, by removing it, we could still have a rational ought-proposition that is non-moral? If there is not, the concept of a fundamentally ought-based, and not necessarily moral, right is superfluous. If there is, what is the relation of that meaning to right as an ought-based entity? In reality, morality in this general sense, which subsumes right under itself, refers to the entire domain of value (the ought), and if we do not regard this, in witness of Kant’s other substantive statements about the categorical imperative as a general theory of value, as a misnomer of the species for the genus (probably for historical reasons and the non-formation of independent normative disciplines), then it can be said: “moral” refers to no meaning beyond the meaning of “ought-based/normative,” and the use of moral in place of normative is correct; in other words, it is not logical to have a political normative matter, or a social normative matter, or a legal normative matter, or a customary normative matter, without these matters being moral beforehand. In other words, every normative matter is a moral matter, and vice versa; thus, other normative matters must be reduced to it.

These conclusions are mistaken because, on the one hand, they contradict human experience and normative intuition. For example, when a lie is told for the expediency of saving a life, although the categorical imperative can be applied to it—that is, one can say the human being was treated as an end and a universal will was also exercised; therefore, lying is a rational norm—this does not eliminate the badness of the lie even in this particular situation and does not make it “good.” On the other hand, the analysis of the categorical imperative clearly opposes this reductionist view; what lies at the center of the categorical imperative is our autonomy as rational beings, and the absoluteness of this rule, which applies to everyone without considering their particular ends and purposes, lies precisely in the fact that the rational being, when willing to act, can/must apply the categorical imperative to their conduct, and no presupposition or primary material other than autonomous action is needed. Of course, this action, while conforming to the categorical imperative, can be reasoned, explained, or expressive of a political, legal, social, customary, economic, or moral meaning.

Therefore, an action performed in accordance with the categorical imperative, although right, one can still meaningfully ask: Is that action good? For instance, Dr. Rasekh and colleagues[19] have formulated this distinction as follows: “It can be said that the moral matter is distinguished from other normative matters by its ‘essential,’ ‘partial,’ ‘virtue-creating,’ ‘intrinsically desirable,’ and ‘overriding’ characteristics.” Of course, one must be careful that the conceptual analysis of the moral matter, insofar as it is moral—that is, its essential distinguishing characteristics—does not impair the semantic simplicity of “good” in analytical language.

Another important and common division regarding obligation, elaborated by Ross[20], has had a significant impact on ethical theory and meta-ethical understanding (the absolute realm of ought-propositions). Ross divides obligation into two spectra: “absolute obligation”[21] and “prima facie obligation.”[22] Complete obligation or “absolute obligation” means the obligation to do what one “all things considered”[23] ought to do; in contrast, prima facie obligation means the obligation to do what one ought to do “considering all things relevant to a specific context.” For example, what one ought to do considering all moral things is a “prima facie obligation.” Complete obligation encompasses various prima facie obligations.[24]

An attempt was made to show that the conceptual distinction between right/good is a meaningful and useful distinction. Indeed, it can be claimed that although all moral actions are characterized as right and wrong, what ultimately determines their morality or immorality is another simple semantic feature called goodness. Therefore, the existence of a domain empty of the good within the semantic circle of the right—which would be the non-good, or morally evasive, or non-moral, or amoral (not anti-moral)—is logically justified and practically applicable. The following propositions express this distinction:

1) Every bad, insofar as it is bad, is wrong.

2) Every good, insofar as it is good, is right.

3) Every wrong, insofar as it is wrong, is not bad.

4) Every right, insofar as it is right, is not good.

The Legal-Political Existence[25] of Rights: Toward a Theory of Justice

I begin this section by comparing social morality and justice. Consider this account of social morality:

«Social morality is neither a part of individual morality, nor a function of individual morality; rather, it is the vessel and context within which the possibility of peaceful coexistence based on differing conceptions of individual morality is provided for the adherents of those conceptions. The mission of social morality is the provision, guarantee, and equitable distribution of the chance and opportunity to live according to individual morality for all citizens without exception. Government can only enact into law the duties pertaining to right and justice, and, if necessary, use coercion to compel citizens to perform this category of moral duties.»[26]

A particular conception of social or other-regarding morality constitutes a significant part of the argument of those who assert moral rights. According to the account cited, a legal norm or a specific law always prescribes a rule of conduct such that performing that conduct is, for the addressee: in the first instance, a duty arising from morality. In the second instance, this moral duty stems from the general principle of justice (right and fairness) in the Kantian formulation, meaning it does not require good intention or motive to be moral. In the third instance, the addressee's living according to morality, including conduct in accordance with the law, is itself made possible by the sovereignty of social morality in society. The extension of these three steps guides us toward a better judgment regarding social morality; in the fourth instance, one must ask: how is social morality itself made possible? Is it fundamentally realizable? What is the relationship between social morality and social justice? Is social morality a presupposition of social justice, or vice versa?

From the above account, it becomes clear that the functional differentia of social morality is its being the vessel and context for the peaceful coexistence of the adherents of several conflicting individual moralities, but this function is contingent upon the prescription of rules independent of individual morality and other normative domains. Let us read an explanation of how social morality [according to the claim] does this:

«If A's right to live according to the values of individual morality accepted by A is not recognized in the social morality accepted by A and other citizens, that is, if the social morality governing the society of which A is a citizen is not based on right and respect for persons, and consequently not based on respect for the rights of persons, and if A is not free from external coercion and imposition in choosing the values of their individual morality and living according to these values, and others (whether other citizens or the government) claim for themselves the right to impose the values of individual morality they accept upon A by force and coercion, then living according to individual morality becomes impossible and moot for A.»[27]

To understand social morality, one must first know what it is not; that is, it is not non-morality, including the anti-moral and the a-moral (for example, a political norm). Secondly, it is not individual morality, which regulates the individual's relationship with themselves and with others without the intervention of institutions and other individuals. It seems that social morality, according to its functional definition, cannot be of the type of a rule of conduct for a specific rational agent, but is rather a depiction of a desirable state of affairs that should govern the intricate relations of institutions and individuals in society so that autonomous individual morality becomes possible within its context. In other words, it is not reasonable for an individual or institution to be committed to social morality in isolation or not.

Therefore, the first problem with this concept is that social morality is agentless; which individual or institution is the realizer of the sovereignty of social morality? If you say everyone, in the sense of deferring it to a moral consensus whose attainment is neither certain nor possible, if you say the institution-building institution, i.e., the nation-state, then where is the moral character of this rule that summons the most political institution of society? Can the state prefer and enforce a particular conception of social morality? Even supposing it can, if it does so, it can still be said that this social morality is not just for those who have not been persuaded by it. And the greatest problem with this conceptualization of social morality is that it renders justice meaningless and impossible. Not, of course, justice understood as a part of morality, but justice in the sense of an independent, non-moral normative domain. It seems that if, in the first paragraph cited, we were to substitute justice for social morality, it would be better understood.

Another error of the moral justification of rights, which also has its roots in the aforementioned reduction, is considering the originally legal nature of certain behavioral rules in human society as accidental and like a garment; in other words, reducing rights[28] to law and reducing behavioral rules to morality. This is a deceptive, destructive trap and, unfortunately, common among non-lawyers. It is not the case that a behavioral rule is required by morality and then, with or without reason, the apparatus of government selects it and, from the day after its enactment, it becomes law, and the accumulation of these laws constitutes the legal system. Rather, many behavioral rules, for legal reasons, are current in the relations of society even before being recognized by legislative bodies, and sometimes they can be easily distinguished from moral rules, although in many cases a particular behavioral rule has both a moral and a legal foundation. For example, keeping a promise, where the content of this fulfillment does not violate a more important moral rule, is also moral, but if the content of the fulfillment is itself anti-moral, the justification for keeping the promise, even without a written law or the intervention of a judge, arises solely from the sense of contractual balance, which is a legal phenomenon. Consider a contract of money in exchange for the condition of beating someone: fulfilling this contract has no moral justification, but it is legally justified.

The statement that rights have various types—some legal, some moral, some political, and some customary[29]—is not incorrect if said for educational purposes; but from an epistemological standpoint, it faces the problem that it considers right as an abstract identity possessing heterogeneous and overlapping divisions (because the source of a right does not necessarily determine its type; a customary right can be political or moral in content, and so forth), or it conveys the idea that concerning a right, one can be convinced and persuade independently with a moral argument, or independently with a customary argument, and so on.

It seems that the above division cannot serve as a basis for recognizing an independent type of right, including moral right, because it does not consider right as a concrete entity within the social normative discipline manifested by the state; which is a complex amalgam of all these types in its historical and economic context; fundamentally, modern right insofar as it exists as a right, that is, as a guaranteed claim, has no types; right, insofar as it is right, has only one type, and that is legal-political right[30]. This does not mean that only rights recognized in a specific legal system are worthy of the title of right (positive rights), nor does it mean that rights can be constructed, limited, or developed from a pure theoretical base disproportionate to their ultimate existence—for example, morality. Rather, it means that an independent normative knowledge, comprising the ought-principles governing the relationship between the individual (citizen) and the political community (for instance, principles of justice), justifies and articulates rights, albeit oriented toward a concrete, comprehensive, and institutionalized situation of specific political sovereignty in a specific territory among a specific population, that is, oriented toward the specific nation-state as the ultimate agent of practically guaranteeing or denying right. Therefore, although the principles of this normative knowledge have not yet been manifested in the legal system, they inherently necessitate rights and must articulate these rights in a language oriented toward the nation-state, that is, with a claim to efficacy and power, not a claim to validity and truth. In other words; it proposes an understanding of legal knowledge that has the most authentic connection with the political (the fundamental, irresolvable antagonism) and the institutionalized and institutionalizing layers of its management, as reality, but is not reducible to the political; because the political unit of the nation-state, whether in a voluntarist or rationalist reading, is not exclusively and instantaneously the source of the determination or existence of these rights-constituting principles, but it is the exclusive realizer, permanent seat, and ultimate beneficiary of the establishment (guarantee) of rights through the increase of governmental authority. Hence, legal knowledge, by utilizing relevant social sciences in a self-sufficient yet sensitive manner to the institutionalized political reality, bears the mission of articulating and regulating rights in a language oriented toward political power. Law in this sense encompasses three levels: statute, legality, and meta-legality[31].[32] It should be noted that natural rights and rights arising from societal traditions are, depending on the case, incorporated into one of these three levels, recognized through the application of the appropriate legal method, not necessarily at the first level. Of course, the list of rights to be guaranteed in this conception of legal discipline cannot be a universal list, even if commonalities are found without exception in the lists of different states.

In any case, modern right, in its ultimate phenomenon, is understood as the constituent components of a "just political-institutional order", regardless of whether it is incorporated in the legal system arising from the existing political order or not. Right is a political entity that constitutes the components of a legal system which, based on justice, provides for the political obedience of citizens to the state—correspondingly, in Weber's[33] terms, the legitimate and exceptional possibility of exercising force or violating individual freedom—in exchange for protecting the element of "having" in the new sense of right; the legal system in this articulation is understood beyond the rule of recognition (legislation and positive law).

In other words, formulating the concept of modern right has been particularly difficult because it justifies a kind of summons to violence in the general sense [sovereignty], as it necessitates a kind of political judgment, and, if necessary, police intervention, compared to the types of reasons and considerations that express a value in an ought-language. In other words, the legal matter is/must be the final and hardest level of the absolute[34], which operates/must operate under the political principle of justice as the regulating principle of other matters—the moral matter, the customary matter, the utilitarian matter, the religious matter, etc.; in general, the legal principle is the governing principle for the commensuration of the universal and historical substantive values of individuals, groups, and society, and for this function, it does not need to be posited. In the final analysis, the theory of right is one of the branches of the theory of justice as a defensible theoretical foundation for justifying political obedience to the state and the legal system.

Modern rights, without a justified element of political-judicial guarantee, are nothing other than their predecessors, namely natural rights, which propose highly persuasive normative requirements for everyone (the individual, the individual in society, and private institutions alone and in relation to one another), exactly like social morality if it is conceived as the basis of right. For, in addition to its deep entanglement with the concept of justice and, of course, its lack of comprehensiveness regarding non-intuitive types of right, the guarantee and realization of rights is once again deferred to universal moral agreement, or at least an effective majority, or a moral agreement based on claims of validity and truth with the sovereign—something that, on the horizon of time, can neither be predicted nor hoped for.

A persuasion-based justification of rights, oriented toward the will of rational agents on the assumption of a relatively inclusive social agreement, without expressing these duties in a political-legal language so as to become the legitimate basis for the establishment, exercise, and preservation of the power resulting from the unity of the multitude, is not a basis for the existence of rights in the real world. This is because the necessary and distinguishing element of rights in the modern world is their guarantee by the nation-state, and this matter requires the will and acceptance of power, and power has nothing to do with persuasion and the communicative action of language based on claims of validity and truth. Moreover, if political power is persuaded by a particular kind of social morality and transforms its precepts into law, the enforcement of these precepts against members of society who do not accept that social morality will still be unjust and coercive, and more importantly, this group will have no justified reason for political obedience. It can be said that the political-legal language which elevates, among other things, appropriate moral claims to the level of rights in a real territory full of limitations, composed of real human beings full of conflict—that is, which commits political power, in exchange for the political obedience of citizens, to guaranteeing those claims regardless of their moral nature—is a political philosophy based on an analytical theory of justice aimed at justifying the conditions of political obedience. The unity between the justified basis of right and the justified basis for the establishment, exercise, preservation, and transfer of political power, and the conditions of obedience to it, is the key to the entry of rights from the intersubjective world and from case-by-case realization into the concrete world and institutional (continuous and sustained) realization by the rights-based state.

Justice as the Vessel of Possibility for Right and the Analytical Self-Sufficiency of Justice

We usually know justice as distributive justice, but in this context, a pure approach to justice as the substantive principle of political philosophy is intended, whose mission is the propositional and analytical explication of just/unjust in the complex human relations within a political society. Right is also one of the requirements of justice, alongside the interests of collective life or the public good.

Justice is a value principle or an "ought," but it offers a different logical explication compared to moral principles, one that is based on a real problem, namely: the interdependence of individuals' actions and the possibility of conflict among those actions, while these individuals can meaningfully believe in various and even contradictory moral principles.[35] The definition of right as a constituent component of justice[36] is thus justified because it provides a normative solution immune to moral objection for these conflicting reciprocal duties, such that the coexistence of individual rights under the requirements of justice becomes possible, among other things.

Consider a situation where moral agent A, for compelling reasons, wants to perform moral act x; they have not treated any human being as a mere means and can will the act they are about to perform as a universal law. In the same situation, moral agent B, with all the aforementioned attributes, is about to perform moral act y. Add two further facts to this picture: first, moral acts x and y physically negate the possibility of each other's performance. Second, A and B logically evaluate the other's behavior based on the universal prescription they have accepted. The meaning of the personal nature of morality, which Dr. Rasekh emphasizes, is better understood in this situation, for moral judgment, although it ultimately occurs for objective or intersubjective reasons and based on a persuasive universal prescription, is inevitably "by the acting person and for themselves," not by an institution and in a heteronomous manner.

There is a preliminary solution to such a practical moral conflict, which is contingent upon reaching agreement on a regulative moral principle that specifies the priority of conduct under conditions of conflict. However, disagreement over the regulative moral principle is also unavoidable, and agreement may not be attainable; in such a practical moral impasse, the concept of justice comes into play, which remains a kind of universal prescriptive principle for individual conduct that logically and inevitably resolves the aforementioned conflict. Rights are the constituent components of this concept of justice, which, in a manner acceptable to the addressee of the right, empower the right-holder, based on their guaranteed freedom, to choose the party obligated to forgo moral action under conditions of conflict. In the final analysis, this is the equal and mutually compatible distribution of the physical elements and components of action (the same pure negative concept of freedom), such that it remains neutral with respect to the content of actions and eliminates the impasse of practical moral conflict by determining the agent free to act.

"The principle of justice or equal freedom, like the principle of universalizability, is not a purely formal rule in evaluative discourse. Justice is a 'substantive rule of conduct that is logically unique.'[37] The logical difference between the principle of justice and moral rules lies in the fact that its negation is meaningless, whereas the negation of moral rules is meaningful. For example, one can meaningfully approve of a benevolent act because it is non-benevolent, that is, one can believe in a moral system that approves of that act, but one cannot approve of an unjust act because it is unjust, because (for example) regardless of what one's moral values are, it is meaningless to claim a greater degree of freedom for oneself than for others while simultaneously claiming a corresponding forbearance of that freedom for the other; for claiming freedom for oneself and, consequently, the omission of action by others logically entails a disagreement among persons over values or moral principles. [Which this disagreement is ruled out; due to the inalienable value-neutrality of the negative concept of freedom[38] which is another expression of the principle of the equal value of human beings.]

In conclusion, it must be noted that the justness of specific social and political systems cannot be derived solely from this analysis of justice, and we must add various types of non-moral judgments[39] to this analysis. These judgments concern, for example, questions such as: Should the various physical elements within the domain of distribution be considered infinitely divisible or ultimately accessible? Only by providing substantive judgments on these matters and combining them with the stated requirements of justice can we say whether a particular society is just or not."[40]

The truth is that it might be said that justice itself is a kind of necessary evil, insofar as it unavoidably entails anti-morality as well. In the end, it must be said: the necessary presupposition of justice is not that the equal distribution of freedom/property is the only desirable thing that society should pursue; although it affirms the important point that the entitlement of individuals based on self-ownership[41] is a function of the opportunities and resources of life and the physical possibilities of action within the entire territory of the nation-state, and hence; this reading of justice, while not rejecting appropriate methods of resource redistribution, prescribes, equally or more so, the increase of these resources on the scale of the whole and for each individual; this understanding of justice, which is libertarian and egalitarian[42], can also be a basis for 'developmentalism'.

[1] political-jurisprudential

[2] Professor of Philosophy of Law and Public Law at Shahid Beheshti University

[3] Graduate with a Master's degree in Public Law from Shahid Beheshti University [email protected]

[4] "The state is that compulsory political organization that claims the monopoly of the legitimate use of physical force within a given territory."

Weber, Max. "Politics as a Vocation." in Max Weber: Essays in Sociology. Translated and edited by H. H. Gerth and C. Wright Mills. Oxford: Oxford University Press, 1946. pp. 77-128.

[5] logically unique substantive rule for conduct

[6] Steiner, Hillel. "The Concept of Justice." in Justice: The Essence of Political Philosophy. Edited by John Arthur, Oxford: Oxford University Press, 1984.pp15-53.

[7] Negative liberty, in brief, means the absence of obstacles for an individual who wishes to carry out their will in action.

See: Berlin, Isaiah. "Two Concepts of Liberty." in Four Essays on Liberty. Oxford: Oxford University Press, 1969.

[8] policy making

[9] Throughout this writing, the fundamental distinction between having a right (to have right) versus being right (to be right) is taken into account.

[10] Unlike the communicative function and the principle of discourse, which, in the linguistic turn of Habermas and his like-minded colleagues, entail a claim to validity and universality.

[11] sense of agency

[12] Rasekh, Mohammad, Taskhiri, Maedeh, Eskandari, Alireza, Ameri, Faezeh. (1398). The Moral Matter and Right, Legal Research Quarterly, No. 87, pp. 19-48.

[13] Assistant Professor of Philosophy and Moral Philosophy at Mofid University.

[14] Fanaei, Abolqasem, Hosseini, Seyed Mohammad, Hasankhani Taskouh, Somayeh. (1399). 'Moral Right: Possibility or Impossibility?', International Biannual Journal of Human Rights, pp. 15-40. p. 35.

[15] amoral (rather than immoral)

[16] Schaller, W. E. (2000) “Kant on Right and Moral Rights”, The Southern Journal of Philosophy, 38(2), pp. 321-342.

[17] Fanaei, Abolqasem et al. (1399). 'Moral Right: Possibility or Impossibility?', International Biannual Journal of Human Rights, pp. 15-40.

[18] Ibid., p. 25.

[19] Rasekh, Mohammad, Taskhiri, Maedeh, Eskandari, Alireza, Ameri, Faezeh. (1398). The Moral Matter and Right, Legal Research Quarterly, No. 87, pp. 19-48.

^[20] Look: Ross, W. and Stratton-Lake, P., 2009. The Right and The Good. Oxford: Clarendon Press.

^[21] Absolute/Overall Obligation

^[22] Prima Facie Obligation

^[23] All things considered

^[24] Michael J, Zimmerman. 1951. The concept of moral obligation. Cambridge University Press. P,6.

[25] political-jurisprudential

[26] Fanaei, Abolqasem, et al. (1399). 'The Moral Right: Possibility or Impossibility?', International Biannual Journal of Human Rights, pp. 15-40.

[27] Ibid., p. 37

[28] in French: droite

[29] Wenar, L. (2020) “Rights”, Stanford Encyclopaedia of Philosophy. URL= < https://plato.stanford.edu/entries/rights/>

[30] political-jurisprudential

[31] Super legality

_[32] See, Loughlin, M. (2018) Political jurisprudence. Oxford: Oxford University Press.

The Political Concept of Law (1402), translated by Mohammad Rasekh, Ney Publishing.

[33] “The state is that compulsory political organization which claims the legitimate monopoly of the use of physical force within a given territory.”

Weber, Max. "Politics as a Vocation." in Max Weber: Essays in Sociology. Translated and edited by H. H. Gerth and C. Wright Mills. Oxford: Oxford University Press, 1946. pp. 77-128.

[34] categorical imperative

[35] Steiner, Hillel (1382). "The Concept of Justice" in Right and Expediency: Essays in the Philosophy of Law, Philosophy of Right, and Philosophy of Value, Vol. 2, 5th ed., Tehran, Ney Publishing, pp. 317-347.

[36] Rasekh, Mohammad (1398). "Right as a Component of Justice" in Proceedings of the National Conference in Honor of the Scholarly Status of Professor Mohammad-Jafar Jafari Langarudi, 1st ed., Tehran, Ganj-e Danesh, pp. 1699-1713.

[37] logically unique substantive rule for conduct

[38] Negative liberty, in brief, means the absence of obstacles for an individual who wishes to realize their will to act.

See: Berlin, Isaiah. "Two Concepts of Liberty." in Four Essays on Liberty. Oxford: Oxford University Press, 1969.

[39] non-moral, not immoral:

[40] Steiner, Hillel (1382). "The Concept of Justice" in Right and Expediency: Essays in the Philosophy of Law, Philosophy of Right, and Philosophy of Value, Vol. 2, 5th ed., Tehran, Ney Publishing, pp. 317-347.

Steiner, Hillel. "The Concept of Justice." in Justice: The Essence of Political Philosophy. Edited by John Arthur, Oxford: Oxford University Press, 1984. pp15-53.

[41] self-ownership

[42] left libertarianism