NAME : MOREBLESSING TAKUNDWA
REG : R165372P
COURSE : PROFESSIONAL COMMUNICATION SKILLS FOR COMMERCE AND LIFE SKILLS CSCO104
LECTURER: MRS DHUMUKWA
DISTINGUISH BETWEEN MORAL AND LEGAL RIGHTS BY DRAWING EXAMPLES FROM YOUR AREA OF SPECIALISATION. 50 MARKS
According to Wikipedia, rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory. Some people tend to view legal rights and moral rights as the same thing whilst they are two distinct features. A moral or legal entitlement to have or obtain something or to act in a certain way, Rights are conditions that cannot be infringed upon or taken away by others, even by the government or the state for example the right to life and security, also the right of workers to be compensated for the work they did. A right is an entitlement to be treated in a certain way.
Moral rights are importantly distinct from legal rights. Usually legal rights are derived from moral rights. Although an effort is often made to bring the force of law behind some moral right by making it a legal right, moral rights must be distinguished from legal rights. There is no contradiction in saying that a person has a legal right to do something but not a moral right to do it, or in claiming that some laws are unjust. In this paper we are going to discuss what legal and moral rights are and also looking at their similarities and differences.
Legal rights are rights that people have under some legal system, granted by a duly authorized legal authority or government. For example, where I live, kids have a legal right to an education (Kindergarten up to Grade 12). And consumers have a legal right to know the basic ingredients and nutritional profile of packaged foods. There is likely to be lots of overlap between moral and legal rights. For example, in most places, someone accused of a crime has a legal right to know what they’re accused of. But most people would argue that the law here is merely recognizing what is really a moral right — it would be immoral to jail someone and put them on trial without letting them even know what they are being charged with.
Moral rights are rights accorded under some system of ethics. These might be grounded in mere humanity — they might be rights that all people deserve just because they are humans, or because they are rational beings, or whatever. Examples might be the right to be treated fairly, or the right to privacy. If I have a right to privacy, then you (and others) are obligated not to invade my privacy. (Not everyone believes in moral rights. The philosopher Jeremy Bentham, for example, once wrote that moral rights were “nonsense upon stilts” — in other words, the silliest kind of nonsense. Bentham thought that all rights that made sense had to be legal rights.) A right is a justified claim, entitlement or assertion of what a rights-holder is due. For a person to have the moral right to have, get, or do something, there must be a moral basis or justification for the claim. These bases or justifications are different for different categories of rights.
There are differences that exist between legal rights and moral rights. The Concise Oxford Dictionary defines a right as including “a thing one may legally or morally claim; the state of being entitled to a privilege or immunity or authority to act.”This definition comprehends the fundamental distinction between legal and moral rights mentioned in the Introduction to this paper. To reiterate, a legal right will arise whenever the operation of a pre-existing legal rule gives an individual an entitlement enforceable at law. It is usually accompanied by a legal duty on another party to fulfil that entitlement or refrain from denying it. Moral rights need not be enforceable at law, and hence their existence is much harder to demonstrate. An examination of the source and scope of moral rights will take up the remainder of this chapter. According to Petrazyeki (1955), moral rights are rights which command without authorizing anybody to claim the deed commanded, while legal rights are not just unilaterally binding but give to others a right to claim the fulfilment of role. It goes back€ to the difference between is and ought. Moral rights describe what ought to be, whereas legal rights are the rights that are on the books. Moral rights represent the natural law, versus legal rights representing the positive law.
Moral rights are ones that are determined by a moral system — which are declared by a religion, philosophy, cultural values, or personal code — while legal rights are those that are declared by a legal body and set as law. According to Wikipedia, moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work.
The other differences between moral and legal rights are that moral rights are natural. This means that all moral rights are discovered, not created by anyone or any organisation, therefore this is a form of moral realism thereby making moral rights more realistic whilst legal rights are created. Our legal rights are created by legislation and they are not discovered, in order for legal rights to exist they have to be created by the legislation. Legal right is a right that has been established by the government for its people or citizens while moral right is a right that has been established by religious, philosophical or ethical leaders.
Furthermore moral rights are equal whilst legal rights can be unequal. Moral rights are equal rights; there is no injustice in how they are distributed, they are always fair meanwhile there is injustice in legal rights, there are many situations in which the distribution of legal rights is unjust. Legal rights can be unfair to another party or the third party. Also moral rights are inalienable whilst legal rights are alienable. Moral rights cannot be taken away from you without your consent (although you can voluntarily surrender them), while your legal rights can be taken from you against your will and even without your consent.
Another difference between moral and legal rights is that moral rights are universal whilst legal rights are local. In moral rights, your moral rights are the same no matter where you are and in legal rights your legal rights change when you move from one jurisdiction to another. The other difference is that moral rights are subjective in form, different people have different opinions on what people have the right to do and what we are morally obligated to uphold whilst legal rights are not subjective.
Conclusively legal rights and moral rights are two different things that are handled differently. Usually the legal rights are derived from moral rights thus therefore making them two different things.
Leon Petrazyeki, Law and Morality, tr, by H.W. Babb (Harvard Univ. Press, Cambridge, Mass, 1955).
The legal Philosophies of Lask, Radbruch and Dabin, tr. By Kurt Wilk (Harvard Univ. Press, Cambridge, Mass, 1950), p.81
Jeremy Waldron, ‘A Right to Do Wrong’ in Waldron, Liberal Rights (Cambridge: Cambridge University Press, 1993)63, at 65
Concise Oxford Dictionary