46 Pages Posted: 29 Aug 2007 Last revised: 17 Jul 2013
Date Written: 2007
This article--which was the basis of the Natural Law Colloquium Lecture that I was honored to deliver at Fordham University on Feb. 20, 2007--is my contribution to the symposium on the moral and legal philosophy of John Finnis that was published in the periodical LEGAL THEORY.
I have explained why I am skeptical that there is a plausible secular ground for the morality of human rights. See Perry, TOWARD A THEORY OF HUMAN RIGHTS 1-29 (Cambridge, 2007). The blogosphere has recently yielded commentary - mainly, I think, at BALKINIZATION and MIRROR OF JUSTICE - on my argument. However, some of the commentary - in particular, by Brian Tamanaha and Andrew Koppelman - reflects serious misunderstandings of my argument.
1. My argument is not theistic. In the course of making my argument, I articulate a theistic position, which I attribute to someone named Sarah, but Sarah's position is not my argument. My argument is in part *about* Sarah's position - and also about some secular positions. 2. It is not as a theist that I make my argument. Indeed, some non-theists, such as Art Leff and Raimond Gaita, have made similar arguments. 3. Yes, some religious believers have been among the principal violators of human rights, and, yes, some theologies deny the claim that is at the heart of the morality of human rights, namely, that all human beings have inherent dignity. But my argument nowhere presupposes, claims, or hints to the contrary.
As we all know, there is not just one morality in the world; there are many. By a morality, I mean a claim or set of claims to the effect that human beings, either some or all, should live a certain sort of life - should in the sense of have conclusive reason to. The morality Adolph Hitler espoused is radically different from the morality Mother Teresa espoused; nonetheless, each is a morality. Hitler's 'morality' is not a morality, you reply, because it is, to put it mildly, false. There is only one true morality, and Hitler's - least of all Hitler's - is not it! To say that there are many moralities, however, is to say nothing about whether a particular morality - or indeed any morality - is true. There are many moralities - and the morality Hitler espoused is one of them. Of course, just as one can acknowledge that there are many moralities and reject every one of them as false, one can acknowledge that there are many moralities and affirm a particular morality as true - affirm as true, that is, the claim that one should live, that one has conclusive reason to live, the sort of life the morality claims one should live.
A morality may purport to be true for all human beings, by claiming that all human beings have conclusive reason to live the sort of life it claims all human beings should live. Or a morality may purport to be true only for some human beings. Either way, a morality may be false in one sense but partly true in another: Some, but only some, of the human beings for whom the morality purports to be true may have conclusive reason to live the sort of life the morality claims they should live. Conceivably, two (or more) moralities may both be true, or both be partly true, in this sense: One morality may be true for those, or for some of those, for whom it purports to be true, and another morality may be true for those, or for some of those, for whom it purports to be true.
Notice that it would beg the question to say to someone that the conclusive reason she has for living the sort of life a morality claims she should live is just that that sort of life is (for her) moral: The question is precisely whether the sort of life the morality claims she should live is (for her) truly moral; she wants to know whether in fact she has conclusive reason to live the sort of life the morality claims she should live.
The ground of normativity question - as I call it - can be asked about any morality; to ask it about a particular morality is simply to ask whether (and for whom) the morality is true and, if so, why - in virtue of what - it is true. Again, to say that a particular morality is true (for one) is to say that one should live - that one has conclusive reason to live - the sort of life the morality claims one should live; put another way, it is to say that one has conclusive reason to be(come) the sort of person who lives the sort of life the morality claims one should live. So to ask whether a particular morality is true is to ask what conclusive reason one has, if any, to live the sort of life the morality in question claims one should live. To ask the ground-of-normativity question about a particular morality is to ask what grounds the "should" in the morality's claim that one should live a certain sort of life; it is to ask why - in virtue of what - one should live that sort of life.
In this paper, I elaborate a particular, and particularly important, morality, which I call the morality of human rights (because, as I explain, it is the principal articulated morality that underlies the law of human rights). Next, I ask the ground-of-normativity question about the morality of human rights and proceed to elaborate a religious response. (It bears emphasis, first, that the religious response I elaborate - Sarah's response - specifically *rejects* the divine command conception of morality, and, second, that in the paper I do *not* argue that Sarah's response is [or is not] true or even plausible.) Then, after explaining why one might be skeptical that there is a plausible secular response to the question (i.e., to the question asked about the morality of human rights), I comment critically on some secular responses. Finally, I ask what difference it makes if there is no plausible secular response and if we reject any religious response.
There is no doubt plenty in this paper with which one can reasonably disagree, but the blogospheric commentary to which I referred above has not (yet) engaged - because it has misconceived - my argument.
Suggested Citation: Suggested Citation
Perry, Michael J., Morality and Normativity: Natural Law Colloquium Lecture (2007). Legal Theory, Vol. 13, pp 211-255, 2007. Available at SSRN: https://ssrn.com/abstract=1009604