Imprudent jurisprudence? Human rights and moral contingency

Journal article

Oliver O'Donovan is mistaken to think that subjective rights are irredeemably bound up with Hobbesian individualism, but correct to criticize their abstraction from deliberation about a wider range of moral considerations. As Grotius's thinking shows, the existence of a natural, moral right against physical harm depends on the contingent presence or absence of morally significant circumstances. There is, however, an important distinction between natural moral rights outside a particular, effective legal system and positive rights granted by such a system. Positive rights are less contingent and more stable, because society thinks it prudent to bear the social costs of that stability. Take, for example, the positive right against torture. This is not based simply on the intrinsic evil of what is done to the tortured. It is based partly on the intrinsic evil of the sadistic motive of the torturer. However, this motive obtains only in some cases, not others. Let us distinguish the latter as cases of “aggressive interrogation.” There might be instances of such interrogation that are conscientious and morally justified, all considerations of social cost and risk apart. There is, therefore, no natural moral right against it. Nonetheless, its general legal prohibition under a positive right against torture is justified by the prudential judgment that any possible momentary advantages to national security are outweighed by the high risk of social and institutional corruption and its political costs. That said, extraordinary circumstances might still justify—morally—the rare violation of the positive, legal right.

Authors: Biggar, N

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Cambridge University Press
• Journal: Journal of Law and Religion
• Volume: 30
• Issue: 3
• Pages: 391-401
• Publication date: 2015-10-01
• DOI: 10.1017/jlr.2015.23
• EISSN: 2163-3088
• ISSN: 0748-0814
• Keywords: SBTMR