Rights and Duties
Halachah's foundation is one of obligations and prohibitions -- duties.
Western Civiliation, since the American revolution, as tended toward legal system based on defining rights. John Lock wrote of the natural writes of "life, liberty and property". To Thomas Jefferson, these are endowed by G-d and inalienable, and (perhaps to avoid issues of slavery and what would later be called communism), "property" was replaced by "the pusuit of happiness". But clearly, the US, and subsequently many other governments, are built on a Lockian conception of the role of law.
At first glance, one would think that there is little real difference between a legal system based on defining the rights of each party, and one in which the philosophy is based on one's duties. After all, is there a difference between granting people a right to property and giving people the duty to avoid theft and damages?
I feel, however, that there are very real differences.
First, a psychological difference. Rights are about protecting "my own" from being encroached upon by others. Rather than looking at what I'm supposed to do, the system is set up to encourage me to make sure I got mine. From which the current culture of entitlement, and the insane abuse of tort law, are a minor step -- "Do I still got mine?" to "How can I get mine?" The culture is set up to encourage such a progression.
Second, a rights-based law is about maximizing autonomy. Does each person have sufficient conceptual space, to act with full liberty and freedom? There is no establishment of society's moral stance. One watches for intereference from others, but one is making an ideal out of maximizing autonomy rather than harnessing that autonomy to some end.
This is a consequence of moral relativism. Because there is no real belief in an absolute moral standard, of a territory people's personal standards are to map, there can be no meaningful attempt to implement one in the law. Therefore, one encourages freedom to act as an end itself, rather than as a means to greatness.
Therefore is therefore no room in a rights-based law for protecting able minded adults from themselves. So, for example, regardless of one's position on the immorality of homosexuality, the foundational philosophy of American law does not support such a ban. (I'm not saying that's a good thing, just observing the facts.) With the goal being the maximization of autonomy, how can one ban what two adults do behind closed doors with no direct impact on others?
However, the lack of establishment of a common moral code is itself damaging to society. No one private violation of moral code, whatever the society holds it to be, will necessarily harm others. But living in a society that doesn't promote morality, that doesn't work toward aiming that autonomy toward some higher end, is harmful.
Western Civiliation, since the American revolution, as tended toward legal system based on defining rights. John Lock wrote of the natural writes of "life, liberty and property". To Thomas Jefferson, these are endowed by G-d and inalienable, and (perhaps to avoid issues of slavery and what would later be called communism), "property" was replaced by "the pusuit of happiness". But clearly, the US, and subsequently many other governments, are built on a Lockian conception of the role of law.
At first glance, one would think that there is little real difference between a legal system based on defining the rights of each party, and one in which the philosophy is based on one's duties. After all, is there a difference between granting people a right to property and giving people the duty to avoid theft and damages?
I feel, however, that there are very real differences.
First, a psychological difference. Rights are about protecting "my own" from being encroached upon by others. Rather than looking at what I'm supposed to do, the system is set up to encourage me to make sure I got mine. From which the current culture of entitlement, and the insane abuse of tort law, are a minor step -- "Do I still got mine?" to "How can I get mine?" The culture is set up to encourage such a progression.
Second, a rights-based law is about maximizing autonomy. Does each person have sufficient conceptual space, to act with full liberty and freedom? There is no establishment of society's moral stance. One watches for intereference from others, but one is making an ideal out of maximizing autonomy rather than harnessing that autonomy to some end.
This is a consequence of moral relativism. Because there is no real belief in an absolute moral standard, of a territory people's personal standards are to map, there can be no meaningful attempt to implement one in the law. Therefore, one encourages freedom to act as an end itself, rather than as a means to greatness.
Therefore is therefore no room in a rights-based law for protecting able minded adults from themselves. So, for example, regardless of one's position on the immorality of homosexuality, the foundational philosophy of American law does not support such a ban. (I'm not saying that's a good thing, just observing the facts.) With the goal being the maximization of autonomy, how can one ban what two adults do behind closed doors with no direct impact on others?
However, the lack of establishment of a common moral code is itself damaging to society. No one private violation of moral code, whatever the society holds it to be, will necessarily harm others. But living in a society that doesn't promote morality, that doesn't work toward aiming that autonomy toward some higher end, is harmful.
posted by micha @ 12/15/2004 05:26:00 PM
