I. The Right to Life
Generations of malleable Israeli children are brought up on the story of the misnamed Jewish settlement Tel-Hai (“Mount of Life”), Israel’s Alamo. There, among the picturesque valleys of the Galilee, a one-armed hero named Joseph Trumpeldor is said to have died, eight decades ago, from an Arab stray bullet. He died mumbling: “It is good to die for our country.” Judaism is dubbed “A Teaching of Life” but it would seem that the sanctity of life can and does take a back seat to some overriding values.
The right to life at least the life of human beings is a rarely questioned fundamental moral principle. In Western cultures, it is assumed to be inalienable and indivisible (i.e., monolithic). Yet, it is neither. Even if we accept the axiomatic, and therefore arbitrary, source of this right, we are still faced with intractable dilemmas. All said, the right to life may be nothing more than a cultural construct, dependent on social mores, historical contexts, and exegetic systems.
Rights, whether moral or legal, impose obligations or duties on third parties towards the right-holder. One has a right against other people and thus can prescribe to them certain obligatory behaviors and proscribe certain acts or omissions. Rights and duties are two sides of the same Janus-like ethical coin.
This duality confuses people. They often erroneously identify rights with their attendant duties or obligations, with the morally decent, or even with the morally permissible. One’s rights inform other people how they must behave towards another, not how they should or ought to act morally. Moral behavior is not dependent on the existence of a right. Obligations are.
To complicate matters further, many apparently simple and straightforward rights are amalgams of more basic moral or legal principles. To treat such rights as unities is to mistreat them.
Take the right to life. It is a compendium of no less than eight distinct rights: the right to be brought to life, the right to be born, the right to have one’s life maintained, the right not to be killed, the right to have one’s life saved, the right to save one’s life (wrongly restricted to the right to self-defense), the right to terminate one’s life, and the right to have one’s life terminated.
None of these rights is self-evident, or unambiguous, or universal, or immutable, or automatically applicable. It is safe to say, therefore, that these rights are not primary as hitherto believed but derivative.
The Right to be Brought to Life
In most moral systems, including all major religions and Western legal methodologies, it is life that gives rise to rights. The dead have rights only because of the existence of the living. Where there is no life there are no rights. Stones have no rights (though many animists would find this statement abhorrent). Hence the vitriolic debate about cloning, which involves denuding an unfertilized egg of its nucleus. Is there life in an egg or a sperm cell?
That something exists does not necessarily imply that it harbors life. Sand exists and it is inanimate. But what about things that exist and have the potential to develop life? No one disputes the existence of eggs and sperms or their capacity to grow alive.
Is the potential to be alive a legitimate source of rights? Does the egg have any rights, or, at the very least, the right to be brought to life (the right to become or to be) and thus to acquire rights? The much trumpeted right to acquire life pertains to an entity, which exists but is not alive: an egg. It is, therefore, an unprecedented kind of right. Had such a right existed, it would have implied an obligation or duty to give life to the unborn and the not yet conceived.
Clearly, life manifests, at the earliest, when an egg and a sperm unite at the moment of fertilization. Life is not a potential; it is a process triggered by an event. An unfertilized egg is neither a process nor an event. It does not even possess the potential to become alive unless and until it is fertilized.
The potential to become alive is not the ontological equivalent of actually being alive. A potential life cannot give rise to rights and obligations. The transition from potential to being is not trivial, nor is it automatic, or inevitable, or independent of context. Atoms of various elements have the potential to become an egg (or, for that matter, a human being), yet no one would claim that they are an egg (or a human being), or that they should be treated as such (i.e., with the same rights and obligations).
The Right to be Born
While the right to be brought to life deals with potentials, the right to be born deals with actualities. When one or two adults voluntarily cause an egg to be fertilized by a sperm cell with the explicit intent and purpose of creating another life, the right to be born crystallizes. The voluntary and premeditated action of said adults amounts to a contract with the embryo, or rather, with society, which stands in for the embryo.
Henceforth, the embryo acquires the entire panoply of human rights: the right to be born, to be fed, sheltered, to be emotionally nurtured, to get an education, and so on. But what if the fertilization was either involuntary (rape) or unintentional(“accidental” pregnancy)? Is the embryo’s successful acquisition of rights dependent upon the nature of the conception? We deny criminals their loot as “fruits of the poisoned tree”. Why not deny an embryo his life if it is the outcome of a crime? The conventional response that the embryo did not commit the crime or conspire in it is inadequate. We would deny the poisoned fruits of crime to innocent bystanders, as well. For example, would we allow a passerby to freely spend cash thrown out of an escape vehicle following a robbery?
Even if we agree that the embryo has a right to be kept alive, it cannot be held against his violated mother. It cannot oblige her to harbor this patently unwanted embryo. If it could survive outside the womb, this would have solved the moral dilemma. But it is dubious, to say the least, that it has a right to go on using the mother’s body, or resources, or to burden her in any way in order to sustain its own life.
The Right to Have One’s Life Maintained
This leads to a more general quandary. To what extent can one use other people’s bodies, their property, their time, their resources and to deprive them of pleasure, comfort, material possessions, income, or any other thing, in order to maintain one’s life? Even if it were possible in reality, it is indefensible to maintain that I have a right to sustain, improve, or prolong my life at another’s expense. I cannot demand, though I can morally expect, even a trivial and minimal sacrifice from another in order to prolong my life. I have no right to do so.
Of course, the existence of an implicit, let alone explicit, contract between myself and another party would change the picture. The right to demand sacrifices commensurate with the provisions of the contract would then crystallize and create corresponding duties and obligations. No embryo has a right to sustain its life, maintain, or prolong it at his mother’s expense. This is true regardless of how insignificant the sacrifice required of her is. Yet by knowingly and intentionally conceiving the embryo, the mother can be said to have signed a contract with it. The contract causes the right of the embryo to demand such sacrifices from his mother to crystallize. It also creates corresponding duties and obligations of the mother towards her embryo.
We often find ourselves in a situation where we do not have a given right against other individuals, but we do possess this very same right against society. Society owes us what no constituent-individual does. Thus, we all have a right to sustain our lives, maintain, prolong, or even improve them at society’s expense no matter how major and significant the resources required. Public hospitals, state pension schemes, and police forces may be needed in order to fulfill society’s obligations to prolong, maintain, and improve our lives, but fulfill them they must.
Still, each one of us can sign a contract with society, implicitly or explicitly, and abrogate this right. One can volunteer to join the army. Such an act constitutes a contract in which the individual assumes the duty or obligation to give up his or her life.
The Right not to be Killed
It is commonly agreed that every person has the right not to be killed unjustly. Admittedly, what is just and what is unjust is determined by an ethical calculus or a social contract, both which are constantly in flux.
Still, even if we assume an Archimedean immutable point of moral reference does A’s right not to be killed mean that third parties are to refrain from enforcing the rights of other people against A? what if the only way to right wrongs committed by A against others was to kill A? the moral obligation to right wrongs is about restoring the rights of the wronged. If the continued existence of A is predicated on the repeated and continuous violation of the rights of others, and these other people object to it, then A must be killed if that is the only way to right the wrong and re-assert the rights of A’s victims.
The Right to have One’s Life Saved
There is no such right because there is no moral obligation or duty to save a life. That people believe otherwise demonstrates the muddle between the morally commendable, desirable, and decent (“ought”, “should”) and the morally obligatory, the result of other people’s rights (“must”). In some countries, the obligation to save a life is codified in the law of the land. But legal rights and obligations do not always correspond to moral rights and obligations or give rise to them.
The Right to Save One’s Own Life
One has a right to save one’s life by exercising self-defense or otherwise, by taking certain actions or by avoiding them. Judaism, as well as other religious, moral, and legal systems, accepts that one has the right to kill a pursuer who knowingly and intentionally intends to take one’s life. Hunting down Osama bin-Laden in the wilds of Afghanistan is, therefore, morally acceptable (though not morally mandatory).
But does one have the right to kill an innocent person who unknowingly and unintentionally threatens to take one’s life? An embryo sometimes threatens the life of the mother. Does she have a right to take its life? What about an unwitting carrier of the Ebola virus; do we have a right to terminate her life? For that matter, do we have a right to terminate her life even if there is nothing she could have done about it had she known about her condition?
The Right to Terminate One’s Life
There are many ways to terminate one’s life: self sacrifice, avoidable martyrdom, engaging in life risking activities, refusal to prolong one’s life through medical treatment, euthanasia, overdosing and self-inflicted death that is the result of coercion. Like suicide, in all these, bar the last, a foreknowledge of the risk of death is present coupled with its acceptance. Does one have a right to take one’s life? The answer is: it depends. Certain cultures and societies encourage suicide. Both Japanese kamikaze and Jewish martyrs were extolled for their suicidal actions. Certain professions are knowingly life threatening; soldiers, firemen, policemen. Certain industries. like the manufacture of armaments, cigarettes, and alcohol, boost overall mortality rates.
In general, suicide is commended when it serves social ends, enhances the cohesion of the group, upholds its values, multiplies its wealth, or defends it from external and internal threats. Social structures and human collectives such as empires, countries, firms, bands, institutions often commit suicide. This is considered to be a healthy process.
Thus, suicide came to be perceived as a social act. The flip side of this perception is that life is communal property. Society has appropriated the right to foster suicide or to prevent it. It condemned individual entrepreneurship. Suicide, according to Thomas Aquinas, was unnatural. It harmed the community and violated God’s property rights.
In Judeo-Christian tradition, God is the owner of all souls. The soul is on deposit with us. The very right to use it, for however short a period, is a divine gift. Suicide, therefore, amounts to an abuse of God’s possession. Blackstone, the venerable codifier of British Law, concurred. The state, according to him, has a right to prevent and to punish suicide and attempted suicide. Suicide is self-murder, he wrote, and, therefore, a grave felony. In certain paternalistic countries, this still is the case.
The Right to Have One’s Life Terminated
The right to have one’s life terminated at will (euthanasia), is subject to social, ethical, and legal strictures. In some countries, such as the Netherlands, it is legal (and socially acceptable) to have one’s life terminated with the help of third parties given a sufficient deterioration in the quality of life and given the imminence of death. One has to be of sound mind and will one’s death knowingly, intentionally, and forcefully.
II. Issues in the Calculus of Rights
The Hierarchy of Rights
In Western moral and legal systems the right to life supersedes all other rights. It overrules the right to one’s body, to comfort, to the avoidance of pain, or to ownership of property. The amount of dilemmas and controversies surrounding the right to life is, therefore, surprising.
When there is a clash between equally potent rights for instance, the conflicting rights to life of two people we can decide among them randomly(by flipping a coin, or casting dice). Alternatively, we can add and subtract rights in a somewhat macabre arithmetic. Thus, if the continued life of an embryo or a fetus threatens the mother’s life that is, assuming, controversially, that both of them have an equal right to life we can decide to kill the fetus. By adding to the mother’s right to life her right to her own body we outweigh the fetus’ right to life.
The Difference between Killing and Letting Die
Counterintuitively, there is a moral gulf between killing (taking a life) and letting die (not saving a life). The right not to be killed is undisputed. There is no right to have one’s own life saved. Where there is a right and only where there is one there is an obligation. Thus, while there is an obligation not to kill, there is no obligation to save a life.
Killing the Innocent
The life of a Victim (V) is sometimes threatened by the continued existence of an innocent person (IP), a person who cannot be held guilty of V’s ultimate death even though he caused it. IP is not guilty of dispatching V because he hasn’t intended to kill V, nor was he aware that V will die due to his actions or continued existence.
Again, it boils down to ghastly arithmetic. We definitely should kill IP to prevent V’s death if IP is going to die anyway and shortly. The remaining life of V, if saved, should exceed the remaining life of IP, if not killed. If these conditions are not met, the rights of IP and V should be weighted and calculated to yield a decision (see Abortion and the Sanctity of Human Life by Baruch A. Brody).
Utilitarianism , a form of crass moral calculus, calls for the maximization of utility (life, happiness, pleasure). The lives, happiness, or pleasure of the many outweigh the life, happiness, or pleasure of the few. If by killing IP we save the lives of two or more people and there is no other way to save their lives, it is morally permissible.
But surely V has right to self-defense, regardless of any moral calculus of rights? Not so. Taking another’s life to save one’s own is rarely justified, though such behavior cannot be condemned. Here we have the flip side of the confusion we opened with: understandable and perhaps inevitable behavior (self defense) is mistaken for a moral right. If I were V, I would kill IP unhesitatingly. Moreover, I would have the understanding and sympathy of everyone. But this does not mean that I had a right to kill IP. Which brings us to September 11.
What should prevail: the imperative to spare the lives of innocent civilians or the need to safeguard the lives of fighter pilots? Precision bombing puts such pilots at great risk. Avoiding this risk usually results in civilian casualties (“collateral damage”). This moral dilemma is often “solved” by applying, explicitly or implicitly, the principle of “over-riding affiliation”. We find the two facets of this principle in Jewish sacred texts: “One is close to oneself” and “Your city’s poor denizens come first (with regards to charity)”.
Some moral obligations are universal, such as thou shalt not kill. They are related to one’s position as a human being. Other moral values and obligations arise from one’s affiliations. Yet there is also a hierarchy of moral values and obligations. The ones related to one’s position as a human being are, actually, the weakest. They are overruled by moral values and obligations related to one’s affiliations. The imperative “thou shalt not kill (another human being)” is easily over-ruled by the moral obligation to kill for one’s country. The imperative “thou shalt not steal” is superseded by one’s moral obligation to spy for one’s nation.
This leads to another startling conclusion: there is no such thing as a self-consistent moral system. Moral values and obligations often contradict each other and almost always conflict with universal moral values and obligations. In the examples above, killing (for one’s country) and stealing (for one’s nation) are moral obligations. Yet they contradict the universal moral value of the sanctity of life and the universal moral obligation not to kill. Far from being a fundamental and immutable principle, the right to life, it would seem, is merely a convenient implement in the hands of society.