There is no escape from philosophy. Public debate about euthanasia, abortion, or any controversial issue, will always force us back to the notion of moral rights.
Do we have rights because the state grants them? Or does the state recognize certain rights, because those rights already exist naturally, whether the state grants them or not?
In other words, do rights have a concrete origin in written laws, or does written law strive to express something we know at first abstractly, from reflection on nature?
If we think we have rights because the state grants them, the state becomes like the God of voluntarism, who can invent rights whether they make any rational sense or not. But if we already have rights, whether or not the state recognizes them, then why do we need the state’s clumsy laws?
Given this dilemma, the temptation is to do as the philosopher Alasdair Macintyre does. He dismisses the whole notion of rights as fake, as things that do not exist any more than witches and unicorns do. But a serious philosophical case can be made for the metaphysical reality of rights.
Consider the rigorous arguments of David Oderberg in his excellent book, Moral Theory. A moral right is “a moral power of doing or having something,” and this power is a “capacity or potentiality of doing or having something according to law,” which includes the natural law as well as the state’s written laws, says Oderberg.
This moral power is distinct from physical and legal power. But it is obvious, if physical and legal power is set against these philosophically distinct moral powers, we are in trouble. The moral power is a higher power.
The dilemma about rights is thus somewhat like the dilemma about God depicted by Plato in his dialogue, the Euthyphro. Plato dramatizes Socrates presenting a dilemma to Euthyphro: Is something holy because it pleases God? Or does God find pleasure in it because it is holy?
In the first case, there is no restriction on God to prevent him being pleased with the most horrible actions. In the second case, holiness becomes a higher, external standard, over and against which God’s responses are to be measured.
The discussion in Plato’s Euthyphro ends without a resolution of the dilemma. But the later classical philosophical tradition responded with helpful resources.
For example, Thomas Aquinas made a crucial distinction between primary causality (God’s gift of existence to all things) and secondary causality (anything in the universe acting as a lesser spiritual or material power).
God, as good and holy, is the primary cause. He is always already the source of any goodness and holiness there is, in whatever things exist in the order of secondary causality.
So there can never be an external standard of actuality apart from God, against which he could be measured. The order of secondary causality would not even exist in the first place without God gifting its existence.
His activity uniquely supplies a prior and ongoing action of primary causality. But this does not amount to a nullification of the order and intelligibility in the order of secondary causality.
The universe’s own intelligibility cannot be overridden by the irrational whims of God. God would never wish to redefine good as evil, and evil as good, within the world’s order.
God won’t give a stone to someone who needs bread, or a scorpion to someone who needs an egg, or a snake to someone who needs a fish. He could never find perverse pleasure in acting contrary to his own nature.
He can’t do this, because his nature is pure rationality and pure intelligibility. God himself is the source of any actual perfections in the order of secondary causality. So God himself cannot be anything but at least as ordered and intelligible. God is thus, by his nature, incapable of acting contrary to what is good.
A similar solution can be applied to the dilemma about rights. Rights exist because of the action of primary causality.
The right and good built into nature by the action of primary causality is prior to the state. It is even prior to any action of secondary causality.
Hence any so-called “rights” that would actually contradict the prior order and intelligibility of things, as they actually exist, are not real rights and all.
But when there is an apparent conflict between rights, conflict can be resolved, in principle, on the basis of morality. Morality cannot be internally incoherent, which moral rights would be if they only existed as contingent upon the actions of the state.