Often it is said that if the law does not condemn an act all have a right to engage in that act. While this statement is correct in the sense that all citizens do have a legal right to do anything that is not condemned by the law, this statement is problematic as it fails to distinguish between moral rights and legal rights and thus encourages us to think of all rights as having a legal character and therefore that anything permitted by the law is permitted in general. Thinking of all rights as having a legal character impoverishes our ethical vocabulary and damages our capacity to explain why we find acts deeply objectionable.
To begin with I would like to clarify my distinction between legal and moral rights. One has a legal right to do something when the law does not condemn performing that act. Contrastingly one has a moral right to do something when an act does not violate any morally salient duties. This is of course an extremely simple distinction, and one that glosses over much of the complexity of rights, but the basic point is that moral rights are wider than legal rights. Most legal rights will have a basis in moral rights, but there will be many moral rights and correspondingly violations of moral rights that will not be touched by the law. For example one may have a legal right to deceive one’s friends for personal gain, by presenting a false picture of oneself, but one certainly does not have a moral right to do so, as it is deeply unethical to deceive one’s friends for personal gain, as this invalidates the entire basis of the relationship of friendship, which is trust, honesty and intimacy. Consequently, there are cases in which our legal rights as citizens and moral rights as ethical agents are distinct.
When someone says that all have a right to do anything that is not prohibited by the law, this can be taken in one of two ways. In the first sense this means simply that a person cannot be punished by the law for doing something that is not condemned by the law. In this sense this statement is clearly correct. In the second sense, this statement means that no one can be criticized from a moral perspective for doing anything that is not condemned by the law. In this second sense we see the erasure of the vocabulary of moral rights as distinct from legal rights, and the reduction of the moral to the legal. Unfortunately, there is a tendency in post-industrial societies to think in terms of this second sense of the statement that all citizens have the right to do what is not condemned by the law. We can see this with the way that people who critique someone’s legal, but ethically questionable actions are met with righteous indignation, and the idea that we should not pass judgment on someone if they have not broken any laws. I don’t mean to suggest that this tendency is totalizing as there are still many who strongly distinguish between moral rights and legal rights, but there are tendencies among certain groups in post-industrial societies to reduce what is morally permissible to what is legally permissible.
The tendency to conflate legal rights and moral rights is problematic as it impoverishes our moral vocabulary and understanding. If we think in this way we still know that murder, rape and theft are problematic activities. But we cannot explain why we admire the loyal, trustworthy friends, over the calculating two faced false friend, because if what one has a moral right to do is the same as what one has a legal right to do, than from the perspective of moral rights the two faced false friend and the honest, loyal trustworthy friend are the same, for we have just as much of a right to be a false two faced friend as a honest, loyal, trustworthy friend.
A person who lacks the vocabulary of moral rights independent of legal rights will likely have the sense that being a two faced false friend is wrong, but they will not be able to explain that the two faced false friend is ethically problematic because he violates the duties inherent in the relationship of friendship. Consequently, he or she will be stuck and have a hard time justifying her moral intuitions and perhaps begin to cease believing in them. If such an attitude becomes widespread in our society we are surely in trouble as much of what enriches our lives are acts and relationships that while not actively regulated by law, are nonetheless structured by particular moral rights and obligations, so in order to keep these practises healthy and secure we must ensure that our ethical vocabulary and understanding of moral rights does not deteriorate.
It should be noted that I am in no way suggesting that morality is rights-centric and can be reduced to a set of rights and correlative duties, but rather I am merely suggesting that rights language is a part of morality. There are certainly many reasons why particular acts that are not prohibited by law are unethical and problematic beyond the fact that one does not have a moral right to perform a particular act. For example, I may not have a moral right to ignore my friend’s phone calls when we are having a dispute, but this is not merely problematic because I am deceiving my friend. It is also problematic because it reveals that I am a coward, and cowardice is certainly a vice. So, while I am using rights to ground my discussion here, I am not suggesting morality is rights-centric.