THE CONCEPT OF RIGHTS ANALYSED THROUGH KANT AND MILL’S PHILOSOPHIES
Author: Shruthi Nair
Year of study: 3rd Year BA LLB (hons)
Institution: School of Law, Christ (deemed to be) University
Introduction
The concept of rights is one of the cornerstones of understanding how legal systems function and how laws must be made. Most societies rely on mutually interrelated and interdependent rights. This web of rights becomes important when we understand how societies were made in the first place. People came together and societies became much more complex, so much so that legal structures had to be brought into the picture to protect the interests of different parties. Thus, rights were established. From there, other legal concepts such as duties and privileges sprung up.
This paper focuses mainly on rights through the lens of two philosophers, Immanuel Kant and JS Mill. These two philosophers were chosen by me because they represent two extremes of ethics and how things ought to be. The differences are in the philosophies of moral absolutism on one side, and utilitarianism on the other. One propounds in the categorical application of morality in all situations, and another justifies its stance based on a semi-hedonistic morality, and justifies an action by way of a situation. In this sense, they are both opposite ends of a spectrum.
Secondly, Kant’s principles lie in behaving ethically due to an absolute moral code that runs through everyone, and such a moral code that is established through rational principles which are the same for everyone. However, Mill’s harm principle doesn’t establish itself by what should or should not be done, but by what is permissible. The permissibility of an action only has one parameter, that it must not cause harm to another. This is the second fundamental difference between the two.
The last one comes with the very nature of the philosophies. Kant’s philosophy deals with ethics and morals as it is applicable to an individual. Mill on the other hand applies directly to how societies should function. Therefore, one has to be mindful while analysing and understand that since a direct application of Kant is not possible in a legal system, an interpretation of it may be.
Rights
One of the fundamental cornerstones in understanding law and jurisprudence is the understanding of the concept of “rights”. In its basic sense, a right would refer to something that is owed to another person by virtue of fulfilling the criteria precursory to the right. To explain this, I will use two examples. A and B enter into a transaction for sale, where A sells B his property. By virtue of the transfer, B has an absolute right over the property, because he has fulfilled the criteria an owner of the property must possess. In the second instance, B has been unlawfully deprived of his right to life and liberty, which is a basic human right. B has the right to sue, since the right is accorded to him by virtue of being a human itself.
The major distinction we need to make in this case is the differentiation between a moral right and a legal right. Here, a moral right is merely one that is given through and enforced by morality and moral codes in society, whereas a legal right is given by a legally enforceable code and the punishment for which is legally defined. The extent to which each of them corresponds is a matter of debate, and is the focal point of the paper.
Preliminary arguments and debates to understand the main clash between ethics and laws can be found in the debates between naturalists and positivists. While natural jurists believe in a divine or natural existence of legal concepts, positivists believe in a state made and based societal setup.
Kant
Immanuel Kant (1724-1804) was one of the most influential philosophers in Western philosophy. A large part of his philosophy is contained in his work “A Critique of Pure Reason”.
A better understanding of Kant’s philosophies can come when we understand the historical and social backgrounds of where he came from. A majority of his philosophies came as way of criticism of the then-current wave of empiricism, especially the philosophies of David Hume.
Around this time, there were majorly two opposing philosophies that were existent: the rationalism movement that originated after the Enlightenment and the advent of sciences, and empiricism, which was a reaction against the rationalism movement.
The empiricists came after traction of the rationalists. Locke criticised first the rationalist movement. His philosophy was as follows; if rationality was really the basis of the universe, then it was important to understand what rationality was. Rationality itself is the knowledge that we accrue which we then use to bind and understand principally the reasons behind which a certain action took place. Berkeley added on to this with the question, what was knowledge itself in the first place? Knowledge is merely the usage and understanding of external stimulus, which meant that a material world was in itself, unprovable due to the fact that the only knowledge we have merely exists in the mind and nothing else.
Hume then goes ahead and attacks this very concept with his attack on the principal of causality. He asserts that the principle that ‘any event that has happened has to have had a cause’ is principally unprovable. He asserts that the only reason why we believe it is because we merely feel that it is a reality due to our experiences, and in actuality, it does not conclusively prove that every event has a precursor, only that the experiences that we’ve been through have had a causal principle. The idea behind this was that our lived experiences are principally unprovable, and that the only way a phenomenon can be proved is by way of seeing whether it would hold true by virtue of its terms itself. The result of this was that a “rationalist” philosophy couldn’t be relied upon, because rationality relies on the basic principle of causality.
On the other hand, there was a major movement calling for a return to traditional morality. Rousseau was a big proponent of this. He believed that despite the existence of rational thought, humans should follow emotions, because ‘a thinking animal is a degenerate animal’.
In reaction to all of this, Kant laid down his critique of pure reason.
Kant began with the concept of knowledge being external stimulus, and then the attack on causality. Knowledge does principally rely on external stimulus, however, not all of knowledge was made primarily of such wholly material changes. He asserted that there existed certain criteria or perceptions that lay outside the realm of mere physical knowledge, which were ways in which we group and assimilate information. For example, time and space were such modes, that transcended mere physical stimulus.
The basic underlying principle was that even in rationality, there were certain principles that were inalienable and a priori (in the sense that without them, the end result cannot exist). His most famous application of this theory is in ethics and morality. According to him, there were certain morals that were absolute and categorical in nature. These morals in any situation have a value attached to them.
In this particular analysis, the theory of categorical imperatives is the most important. The moral value of actions cannot be judged based on situations, rather it must be judged based on its inherent value. For example, lying is morally bad in any situation, whether it is to cheat another person or if it is to get out of your roommate’s nephew’s piano recital because your mother is in the hospital. To come to the answer as to what the rational parameters for ascertaining that are, Kant lays down two. First is to never use a person as a means, rather they should be an end in itself, and secondly to universalise the maxim.
Analysis
When we look at Kant’s ideals with respect to rights, specifically legal rights, we see a lot of practical applicability. For example, certain rights need to necessarily be seen within itself rather than having a process depended on a situation.
The concept of having an underlying and inherent moral code is a very interesting approach to the very conception of rights itself. One can argue that most rights are derivatives of this very common moral code. This is evident in the kind of rights we see in different societies. Despite the fundamental differences, most communities believe in a basic concept of liberty, equality and justice, even if they may be situationally applied differently. This means that there is an inherent sense imbibed in all humans of what is right and wrong, which gives rise to our legal structures.
Coming to how rights are applied in society, Kant’s principle becomes necessary in the sense that the application process in itself must be equal. However, most societies do give concessions to what would otherwise be an extremely rigid society.
Criticism
The feasibility of categorically applying laws is very less. Most societies ascribe to an Aristotelian view of justice, which is merit based, or based on specific circumstances. To categorically enforce morals can lead us down a rocky road.
Firstly, this principle is more of an individually applicable rather that societally applicable philosophy. Therefore, there is no proven outcome out of this that may benefit everyone. For example, if people are discouraged from lying all the time, and there are certain scenarios whe
re lying could have saved someone’s life, that is a societal loss rather than gain.
re lying could have saved someone’s life, that is a societal loss rather than gain.
Secondly, there doesn’t exist practical reason to enforce categorical imperatives, as there is no proof that it may actually improve someone’s life. The only reason anyone needs to follow a strict code of ethics is if they were in fear of being judged after death, which is a religious and personal debate, and has no place in a system that concerns itself mainly with the regulation of society. Therefore, there is no reason why the state must take it up as a code of ethics.
Lastly, in the practical application, if we were to debate upon a state enforced Kantian philosophy, the most glaring problem will be in what the state chooses to categorically enforce, and that would certainly lead to a tyranny of the state.
Mill
The formulation of JS Mill’s philosophy began with Bentham himself, who was a close family friend of Mill’s. Bentham propounded the famous theory of utilitarianism, which laid down one basic postulate. Laws must be made so that the maximum amount of pleasure can be given to the maximum amount of people, with minimal pain. This pleasure-pain principle is the most lasting economic philosophy in the modern world. Bentham laid down certain scientific ways in which the pleasure factor of a certain thing could be calculated.
However, many criticisms arose from this, the biggest criticism being that which was exemplified in the example of the utopian city where everything was perfect for everyone except for one child who was locked away in a basement, on who’s misery the wellbeing of the entire city rested. In this case, Bentham would have condoned the torture of the child because the maximum amount of people are happy, and there is only one child that’s miserable.
Mill added on to utilitarianism, and gave his own ideas. He believed, firstly, that pleasure cannot merely be hedonistic; rather, there were different levels at which pleasure was ranked. One was that of the body purely, and one was that of the mind, which was at a higher positioning.
Secondly, he laid down a fundamental concept of liberty. He believed that in order to allow humans to grow to the fullest potential in society, liberty to the highest degree must be given to them. This liberty must follow one basic principle, that as long as the person’s actions do not affect the liberty of another, then he is free to do such thing. Such a principle of liberty, called the harm principle, allows the individual to grow, but does not hamper the growth of another.
The most important part of Mill’s philosophy in the context of the paper is the concept of utilitarianism and the harm principle.
Analysis
The biggest advantage that utilitarianism has over Kantian philosophy is that utilitarianism is inherently a theory that is catered to how a society should function rather than how an individual should function. Therefore, applying the principle strictly is feasible here, versus with Kant it has to be interpreted differently in order to fit.
The principle of utilitarianism is something that most societies take up in at least some forms, especially democracies. The applicability of this is pretty straightforward.
The harm principle is very important in understanding the formulation of rights. Most rights that humans have rely on having some degree of freedom in order to do the same. For example, the right to free speech gives a person freedom and liberty to engage in a certain action. The harm principle comes into picture with the reasonable restrictions, and in how certain rights are restricted in its very applicability. These can come in the form of statutory restrictions, or duties that one may have to partake in in order to protect another person’s right. Therefore, the applicability of the harm principle is pretty straightforward and makes it objectively easy to understand how rights must be formulated.
Criticism
The major criticism that comes from the harm principle is that it focuses mainly on increasing to the maximum level liberty for all. However, since it lays down that liberty stops where another person’s rights begins, it brings up a further question; to what extent can this harm be calculated, and what about individual morality and social responsibility.
First, let us deal with how such a harm can be calculated. For example, certain actions may have a grey application of the harm rather than a strictly black and white one. One could follow the chain of events for a certain action and see that it may affect others as well, although at first sight it may seem like a reasonable use of personal liberty. For example, although the use of drugs may be a reasonable exercise of ones own personal liberty, can it be argued that if they have a very conservative mother who would be extremely emotionally hurt if they found out that this person was doing drugs, it would cause harm to them? Would the action then be deemed hurtful or not? Such hard cases cannot completely fall under an objective realm of law making.
Next, we will move on to social responsibility. Can harm to the society at whole, or to the government, etc be classified as a reasonable boundary to the right to liberty? This line of argument can also b
e extended to the argument in the first criticism. In both, there is no way of ascertaining what may or may not be a reasonable restriction. This was especially seen in the Hart-Fuller debate, where the laws legalising homosexuality and prostitution was scrutinised through the lens of Mill’s philosophy.
e extended to the argument in the first criticism. In both, there is no way of ascertaining what may or may not be a reasonable restriction. This was especially seen in the Hart-Fuller debate, where the laws legalising homosexuality and prostitution was scrutinised through the lens of Mill’s philosophy.
Lastly, a criticism can be made on the basis of individual morality itself. Does law have an obligation to step into the lives of citizens and make sure that they make the right choices, or is the right to liberty supreme? These questions may have different answers within different lines of reasoning. One case we can take is in the case of smoking. Smoking is inherently harmful for anyone who smokes, and has been inextricably linked to many illnesses. The question here would be that can the government step in and stop cigarette sale, because it is objectively harmful, or should it not engage in paternalistic policies and let people make choices? This is not adequately answered by the harm principle.
Coming to the criticisms against utilitarianism, we can see that it doesn’t deal adequately with the minority for whom the pleasure of the maximum might mean pain. Essentially, it is a situationally based morality. If the situation there would mean that most people are better off, then any action can be said to be a good action.
Conclusion
In both the scenarios, we have seen that a direct application is not possible without coming up with some of the problems described in the criticism. However, that does not mean that either has to be totally shunned. However, an amalgamation of both can be difficult.
If we were to build a society based on principles of any one of these, the problems however, can be remedied by the other. For example, the problem faced by the harm principle, that there is no individual morality, is remedied by Kant’s individualistic morality. Even the extent to which harm can be quantified can be analysed through categorical imperatives. In hard cases, we can look towards categorical imperatives to understand which is the next best course of action, and see the value of the action within itself. Another example could be in the criticism of categorical imperatives. By adding in the harm principle when it comes to seeing what kind of morals should be enforced, we can eliminate the unnecessary cost in enforcing a principle that may not add overall benefit.
The logical conclusion here is two-fold. Firstly, adding the two may be incompatible as they can be construed as polar opposites, but the fact may still stand that each has value in its own, and it is, at the end, up to what the society may choose to enforce through its laws.
Secondly, and lastly, in my personal opinion, the philosophy better suited to a society in order to function in the best way possible is Mill’s philosophies. In analysing both criticisms together, I have come to the conclusion that firstly, Kant’s criticism extends to the whole of his applicability of his philosophy, but Mill’s criticism is on how it may be practically applied. Secondly, Kant’s philosophy does not leave much scope for further interpretation of applicability through other philosophies, as that would go against its very self by diverting from an imperative, which is that in order to do good, one must have a will to be good.
In conclusion, Mill’s philosophy stands a better chance to be practically applied in a society.
Sources
Books
1. Will Durant, The Story of Philosophy.
2. Kant: Political Writings, (H B Nesbit tran., 2 ed. 1991).
3. Immanuel Kant, The Critique of Pure Reason (1781).
4. JS Mill, On Liberty (1859)
Articles
1. Joseph W Bingham, The Nature of Legal Rights and Duties, 12 Michigan Law Review 1–26 (1913).
2. Richard S Findler, Kant’s Phenomenological Ethics, 27 Research in Phenomenology 167–188 (1997).