Why do we say that people fighting for their rights are in fact fighting for the recognition of their rights? That people have rights even when the law doesn’t recognize these rights? That, in other words, people have moral rights that precede their legal rights? And that these moral rights can be used to evaluate and, if necessary, create their legal rights?
At first sight, such statements imply the dubious ontological claim that moral rules have an objective reality, independent of what people believe or do, and that these rules populate a parallel and invisible universe of morality. These days, we usually think that rights and rules are the products of human beings, rather than natural or God-given entities. On closer examination, however, denying that there are such independent rights creates a problem and ignores an opportunity.
- The problem: without independent moral rights, all we’re left with are the existing legal rights, which more often than not are insufficient or even complicit in human rights violations. In other words, we’re left with legalism and legal positivism, rather unattractive worldviews.
- The missed opportunity: without independent moral rights, we ignore the strategic advantages of the endowment effect: people are much more eager to fight when they believe they are fighting to keep what is theirs already, than when they fight in order to get what isn’t theirs already. Usually, the endowment effect is considered to be a cognitive bias (in economics, the value of something shouldn’t change just because you already have it), but in this context all means to make the fight for rights more successful are welcome.