A right to do wrong?

My last post on whether generous action is an enforceable moral duty leads naturally into the question of whether there can be “rights to do wrong.” To recap, Adam Smith says that being a generous, beneficent person is a good way of living that an impartial spectator approves of. If you never do good things for people, you haven’t committed any injustice, but you also don’t deserve any gratitude, and in fact you’ve failed to live up to your full moral duties. Even if you don’t have a duty to help any specific person at any specific time, you have a duty to be open to helping people, to make benevolence a part of your character.

But because doing good and helpful things for people isn’t a duty of justice, you can’t force people to be good and helpful. You can force people not to steal or murder, because not stealing and not murdering are duties of justice. We can enforce duties of justice.

In my last discussion with the Ethics & Economics Challenge students, we talked about “rights.” What does it mean to say that you have a right to X? Take the right to free speech. If you have a right to speak something, does that mean that what you are speaking is factually accurate? Does it even mean that it is morally permissible for you to speak in that way?

The students correctly understood that the right to free speech doesn’t mean that whatever you speak is accurate. They also picked up on the fact that the right to free speech even covers speech that is immoral. One student brought up the case of Westboro Baptist Church. They engage in hateful protests where they say hateful things, yet it would be wrong to imprison or otherwise punish them for their hateful, morally (and factually) wrong speech.

At this point, we talked about the fact that having a moral right to do something is different from having a legal right to do something. They’re different concepts, even though the same words are sometimes used to describe them. For instance, you might say, “Americans have a right to free speech under the First Amendment,” which means that, due to its constitution, the U.S. government allows Americans to speak on a wide variety topics, in a wide variety of ways, without punishing them. But that has nothing to do with whether Americans have a moral right to free speech. The Soviet Union did not allow free speech in the way we understand it, but that doesn’t mean that people in the Soviet Union lacked the moral right to free speech, just that the Soviet Union’s government was violating its moral obligations to allow free speech.

But we still haven’t defined what a “right to X” means. Moral philosophers say that every right a person enjoys is simply a duty of justice that others have to that person. So if you have a right to free speech, that just means that I have a duty of justice (an enforceable moral duty) to let you speak. If I try to punish you for, or forcibly stop you from, speaking, then you may permissibly use force in self-defense. You have a right to free speech, and I may not violate that right without opening myself up to punishment.

So is it possible to have a right to do wrong? It seems so. It sounds weird only because the English language uses the same word – “right” – to mean an enforceable moral duty of others (noun) and the quality of being morally permissible (adjective). Westboro Baptist Church has a right to engage in morally wrong, hateful speech. They shouldn’t speak in that way: it’s mean, hateful, and wrong. But they also have a right to speak in a mean, hateful, and wrong way, because it would be wrong – punishably wrong – for us to use force to stop them.

So how can we determine when you have a right to do wrong? Well, whenever the wrong you’re doing is not violating a duty of justice, you have a right to do it. Never helping others even when it’s easy is wrong, Adam Smith would say, but it violates no duty of justice, so you have a right not to help others.

But that answer just raises a further question: How do you determine what moral duties are and are not duties of justice? One answer comes from John Stuart Mill’s On Liberty, and that’s where we pick up the discussion next.