Consider the following story:

Ryan, a tall and lanky African-American boy about 14 years of age, walks down a sidewalk in his local neighborhood. He passes several run-down multi-family housing units where many of his school mates live, all of whom are African-American. He wishes to help his mother finish the laundry at the local laundromat; while on his way, he must cross through Afluentville, a small centralized community separated from the surrounding communities by a golf-course and several lush and well-kept parks, if he is to arrive in time.

Upon crossing through the neighborhoods of Afluentville, he notices that there are no multi-family dwellings, the roads a clean, the houses well-kept, and the majority of the inhabitants are white. He continues down the road until he hits the corner of 32nd and West Street, which is a private but open-to-locals road, he notices a nice house with a man washing his car. He walks by the house curiously observing the red Ferrari that the man is detailing. The man, however, sees Ryan and inquires as to why he is walking through this neighborhood. Ryan responds that he is only trying to get to Hank’s Laundromat to help his mom. The man tells Ryan that if he does not get out of the community and off the road is he calling the police. Ryan, caught off guard by the man’s hostility, tell’s him that he can walk on the road if he wants. The man declares, with anger:

“you ought to get out of here boy, or I might send your nigger-ass to jail where you belong”

Ryan is infuriated, so he remains on the road. The Ferrari owner, runs into his house and calls the police, and a local patrol man picks up Ryan and charges him with trespassing.

Was it wrong that Mr. Ferrari owner called the cops?

It seems that Ryan’s actions were innocuous. He was merely trying to save some time in getting across town. However, he did violate property rights by walking on a private street.

Moreover, what about the social harms? Did you notice the change in the communities? Ryan obviously lived in a community that was a bi-product of low skilled labor, lack of education, and lack of individual opportunity, right? Not to mention, that he was verbally attacked for his race. And the question lingers: would the Ferrari man have called the police were Ryan a white boy?

Consider another case:

Dr. Cassell, a Florida urologist, and republican, places a sign outside his office door that reads: “if you are a supporter of Obama, seek care elsewhere, the change in your healthcare starts now.”

Has the good Dr. Cassell discriminated? He is a physician after all. He holds a certain level of respect in society and his position is such that society expects him to adhere to a level that does not include withdrawing or limiting treatment, or lowering his treatment standards merely out of a certain political belief, right? What about those people who see this sign and walk away feeling estranged such that they do not seek help? And has Cassell violated the Hippocratic oath by making political ideals superior to the health of society? Even if Cassell claims that he is not refusing or turning away anyone who seeks care, is he still not adhering to the respected position he possesses in society? Or, has he merely expressed his opinion via the right to free speech?

One last case:

Mary, a loving housewife, answers a knock on her door; upon answering the door, she realizes that her long-lost friend Beth has come to visit. Beth was a long time childhood and college friend of Mary. Mary introduces Beth to Herman, her husband. Herman is a local minister and a staunch social conservative. Mary, Beth, and Herman all sit down to enjoy some tea. Mary asks Beth what she has been doing these last five years. Beth responds the she got married. Herman congratulates her, and Mary innocently asks who the lucky guy was. Beth confidently responds that she married a college friend that was on the college women soccer team. Herman almost chokes on his tea while Mary asks if the college friend was the coach, or a team manager. Beth responds by clarifying that her spouse is a woman, and that she played for the team.

Upon hearing this, Herman stands up and tells Beth to leave his house immediately. Irate, he begins to mutter crude terms and derogatory phrases toward Beth while he escorts her to the door. As she walks to her car he goes to his shop grabs a can of spray paint and writes on his grass the words:

“Fags will burn in hell, and were it not for God’s grace we should have destroyed them all.”

He then runs over to his church and places a sign outside disparaging and discouraging homosexuality as a sinful act.

Herman is a jerk, I know. But was he acting immoral?

It isn’t clear that the actions in these three cases are morally impermissible. However, some would argue that in the case of Ryan, harm occurred given that he was sent to jail. However, Ryan was trespassing, and received due warning both by the fact that the road was private and the owner gave him a verbal notice. Others may hold that Dr. Cassel violated morality by either violating the Hippocratic Oath or by estranging those who seek care. However, this case does indicate that he will be accepting all those who enter into his office for care, he is just attempting to make a political statement about the dangers of a policy. Arguably, if a policy harms the general healthcare of society, then a doctor, under the Hippocratic Oath, has duty to do whatever he can to protect it. Or, maybe you feel that Beth was harmed by Herman’s reaction, but how? She was removed from his property which is his right, and she was not physically harmed by him.

Maybe the reason why discrimination is generally immoral is due to how it affects a person’s autonomy. Perhaps the autonomy and rights that a person has (even in the Lockean sense) are violated by situations where I am treated differently than others merely because I am a member of a disjunct set of society. So, when I am deprived of things like bank loans, employment, estranged by important individuals like doctors, or abruptly removed from a friend’s house because I am gay, constitute a general deprivation that harms both future opportunity, personal relations, and Socio-economic opportunities that I may now not have in virtue of my being what I am which is often no choice of mine.

Maybe, however, general deprivation of individuals is not sufficiently precise to pin-down any actual harm as a general rule. Interestingly, Judith Thomson’s idea that we should separate cleanly the issues of (1) whether or not an action by some agent would be morally permissible; (2) whether the agent would be at fault if he were to do the action; and (3) with what intention the agent would do the act if he were to do it. Issue (1) is claimed to be entirely independent of issues (2) and (3).

Whether going to the store and buying bread right now is permissible depends on the features of that act, and according to Thomson, the crucial point is whether my doing this right now would violate anyone’s moral rights (that are not overridden by counterbalancing factors). The act can be completely innocent even if the actor intends something bad in doing the act, or would be (culpable) at fault in doing it. My hatred of some person might induce me to repay a debt to her on time, because I know that she will be distressed that I have not paid her, my right, then, in this instance, a rare phenomenon, deprives her of yet another opportunity to lament my failure to fulfill my obligations, so I should pay her. My intention is bad but the bad intention does not taint the act, which remains the morally required thing to do. So, any proposal to characterize a type of wrong action in terms of the agent’s intention or the agent’s culpability of conduct is mixing up categories that for clarity’s sake had better be kept in separate bins.

Additional situations of spiteful acts or evil intentions can include situations where the person refuses to share something out of hate rather than wanting to keep the resource form themselves. Suppose I am drinking a cold bottle of water on a hot summer day and some guy, let’s call him Jim, is am acquaintance of mine, yet I loathe Jim so deeply that I wish his demise every waking moment. Jim does not know this, so he asks if he can have sip of water from my bottle. I take this opportunity to refuse only because I hate him, and I like to see him suffer. Now, according to Thompson, we have to look at the features of the act in question, and question if it can be settled using any moral framework. Can we settle this deontologically by discovering a proper way to bound the situation in question under the ideal of moral rights such that we can determine if moral rights were violated? Indeed, I may be violating Kant’s formula of humanity by treating Jim as merely a means to my own pleasure. That is I deprive Jim of water to fulfill my hate for Jim, or that I am violating Ross’ duty of beneficence.

The problem I have with cashing-out this water situation under the scope of moral duties or rights is that there seems to be some factors that preempt the application of deontology in this, and many others, situation; just like the repayment of a loan example, there seems to be no actual moral harm generated even if I act morally because I hate someone.

Thus, moral rights require some corresponding duty. If I am to have the moral right of acting in such and such a way, there must be a covering procedure that kicks in. For example, we say that a murder has forfeited his right to exist among law-abiding citizens. He failed to follow the duty of not-killing. This raises an important question: do we have a right to act immoral?

There are two ways we can understand this question. First, most rights exist only to furthering the holder’s autonomy. Rights entitle their holders to make choices, and as Waldron says, the importance of a person’s having choices would be diminished if she were forced to do the right thing. Even though the person has no (privileges) right to perform an action that is wrong, it would nevertheless violate an important (claim) right of hers for others to compel her not to do that thing. To take the speech example, we respect the autonomy of speakers when we allow them to speak unmolested—even when they do wrong by expressing themselves in disrespectful ways (see: Waldron, J., (ed.), 1984, Theories of Rights, Oxford: Oxford University Press).

The second way is to view rights is looking at them as involving a mid-sentence shift in domains of reasons. There is no mystery, after all, in having a legal right to do something morally wrong. The potential for a legal right to do a moral wrong arises from the fact that the domains of legal and moral reasons are not perfectly overlapped. One has a legal privilege to edge in front of the tired mother in the check-out line, but this is something that one has a moral duty not to do. Similarly, one might have a moral privilege to do what one has no customary privilege to do (a moral right to do a customary wrong), and so on. Each domain of reasons is distinct, and however conclusive are the reasons that any particular rights-assertion implies, these are only reasons within a single domain of reasons (moral, or legal, or customary).

So, if we have a right, even in some cases to do wrong, do we have a right to harm someone? The case of Ryan and the social conditions of himself and his counterparts cause some economists to argue the income disparity amid those who are members of the set that Ryan belongs to have been harmed because they have been deprived of resources that are: (1) rightfully owed to the harmed set due to exploitation by higher social classes, (2) deprivation due to unfair political systems, or (3) because the rich have such an excess of wealth that hoarding it is morally wrong, and there is some duty that we have to correct this. Note that (3) is usually contractual in nature; that is, that we have agreed to a certain contract merely in virtue of the fact the we exist in a society that is the result of the work of a group and the property, opportunity, and all other conditions that obtain are not only a direct byproduct of how society operates but because we assent to certain rational principles that are inherent to our society. So, the rich cannot have all the money because they have obtained that by the sacrifice and services that others have brought about. Basically, society has allowed them (the rich) to have such success –Elizabeth Warren loves this line as did John Rawls.

The problem with (3) is that it is not apparent that I would assent to having my money or property taken from me given that I complied with all the explicit terms of the contract such tha it employed and provided opportunity to those who would under (3) have claim to my resources. Moreover, I followed the contract’s terms as they were presented to me, and we the social fabric to change and were my resources taken, then have I not been harmed? Society is too dynamic to be considered akin to normal conceptions of how contracts work. The question also arises as to where a solid line of demarcation can be drawn that is morally just. Which amount of taxes is morally acceptable that the rich pay? They already pay a huge share (upward of 80%), so should they pay more? Where is the limit such that I can no longer asset to such a contract upon which (3) is based?

The problem with implicit coercion as noted in (3), is that it can’t be adequately founded in anyone theory or description. There is no line that is sufficient such that we could clearly pick out when and which set of rights have been violated. This problem is exacerbated when one considers that lack of universalization this position possesses.

According to J.P. O’Riley, all human action, both economic and social, aims to establish coordination as equilibrium outcomes present in things like: convention, action, economic action, culture, and future states of being. Coordination happens “normally” on a consistent and continuous basis, which he feels is a outcome of conscious self-interested beings interacting and aiming to achieve cetain ends. Thus, any action generates either a situation of coordination (where the thing in question, the ends, is obtained), negative coordination, or positive coordination. These situations of negative coordination are either natural (I.e I consume X, so there is one less of X for you) or unnatural (I.e. I take X from you and consume it), and they apply individually and not collectively even if the goal in question is group executed. Natural and unnatural coordination require different action responses by players in simple and complex coordination; for natural conditions, I must change my set of actions to either obtain X in an alternative manner, or find a replacement for X assuming that X, or an equivalent, is necessary for equilibrium. O’Riley continues, by asserting that all unnatural coordination situations require the establishment of “operating rules”, which act as boundaries that impede or correct the actualization of situations of unnatural coordination. So, things like cultural ideals of virtue, and honor qualify as operating rules, but he classifies those as “soft” and dynamic. These are the most efficient operating rules for controlling and correcting unnatural conditions of coordination given that they provide a longer and more efficient correction of action -soft norms or “operating rules” are usually long-lived and “organic” in effecting change and development of coordination action systems.

O’Riley goes on to demonstrate how other operating rules differ, while some are soft, others are hard. Hard rules are things like laws against drunk driving. Or, laws against drug use. These are the most inefficient type of coordination correction systems, because they create new situations of disequilibrium or unnatural coordination that take the form of black markets, crime, and resistance; often the reaction of people to seek coordination from hard norms moves to the development of a general situation that does not admit soft norms to take effect such that a conflict arises that establishes a slippery slope of repeated disequilibrium and unnatural conditions. This creates serious conflict who follow hard norms and those who don’t.

The reason, according to O’Riley, that some people follow hard norms and some don’t, is due to the “Vague Action Principle.” Basically, this means that: the goal of any one action executed by an agent cannot be correctly defined or determined; that means, that the action of an agent is indeterminable in both reason for execution, method of execution, and outcome of execution. So, implicit coercion is, by O’Riley, always natural, and explicit coercion is unnatural. So, we cannot regulate natural coordination given that it would lead to massive disequilibrium such that either resistance, stagnation, or continuous “moral hazard” obtains by the fact that we must now switch our efforts over to unnatural coordination control via hard norms.

Assuming that O’Riley is correct, and we cannot work with implicit coercion in the terms of morality or rights, then we have a right to do wrong, but only if the wrong in question does not harm me physically or directly establish a situation of unnatural coordination/disequilibrium -deprive me of my ability to seek coordination.

O’Riley’s view dovetails nicely with Nozick’s theories expressed in Anarchy State and Utopia (1974). While Nozick does acknowledge a debt to Locke’s theory of property, his work belongs within the Kantian tradition of natural rights theorizing. Nozick centers his explanation of the moral force of individual rights on the Kantian imperative against treating humanity merely as a means to an end. Each person’s rights impose side-constraints on the pursuit of others’ goals, Nozick says, because each person possesses an inviolability that all others must respect. “Individuals have rights,” he wrote, “and there are things no person or group may do to them (without violating their rights).” (Nozick 1974, SEP entry).

Many find this approach of grounding rights in individual dignity appealing. There is a directness and clarity to status explanations of fundamental rights. Moreover, status-based rights are attractively robust. While the justifications of instrumental rights are always contingent on calculations concerning consequences, status-based rights are anchored firmly in individual dignity. This makes it easy to explain why status-based rights are strong, almost unqualified rights, and this is a position which many believe properly expresses the great value of each person.

However, there is a shortcoming contained in this view by Nozick. Nagel argued that “there are evils great enough so that one would be justified in murdering or torturing an innocent person to prevent them.” Consequences, if bad enough, do justify the qualification of individual rights, which leaves the status theorist needing to explain how a theory which rejects consequences so resolutely at the outset can concede their importance later on.

O’Riley’s work has addressed this problem, but it is far too complex to cover in this post. It is sufficient to say that the idea of rights being violated in the instance indicated by Nagel can be captured by action and the Vagueness Principle and by how this person effects my coordination ability.

It would seem, then, that rights to do wrong like in throwing a homosexual out of one’s house, making crude racial statements, or singling out a young black boy as a violator of your property merely because he is black are permissible. The fact that one may be treated differently is implicit and thus not subject to regulation or hard rules given by its status as a type or set of unnatural coordination. So, if I don’t give you employment, or if a doctor places a sign up on his wall that indicates that he won’t treat your illness for a political reason, then that act is within both the doctor’s and my rights to do so and in line with natural coordination situations; moreover, my doing so is not an immoral act given that my rights still obtain and the negative consequences are merely natural conditions of disequilibrium which will always be resolved if the agent participating in coordination chooses to seek for the particular equilibrium under discussion.

Some may not be satisfied by my proposal. Indeed, I am redefining and refining morality here. So, I expect some backlash. However, consider the case of Dr. Cassell. Let us suppose that he puts up a sign that reads: “Any Medicare or government backed insurance holder seek care elsewhere. We do not accept patients with these forms of payment. Cash only.” Some would argue that this is morally permissible because Cassell can justify this as sound business principle. However, does that really remove moral judgment from the good Dr.? What if his intentions are evil? He hates black people and his office is downtown where the black community resides. Is he morally permitted to not accept public insurance given that he hates black people and he knows they can’t pay cash? He is actually harming black people in the same way as were he to state it outright, isn’t he? What if he is the only Dr. in a 5000 mile radius? We honestly can’t justify Cassell’s action on “business principles” can we? No. We can’t. At least not under standard morality given the implicit harms generated. The same argument that would be used to claim that Cassell cannot put up a politically charged sign applies to this instance as well.

However, on the framework that I have built in this post, we don’t have to. We can’t argue that natural equilibrium will obtain from its corresponding natural disequilibrium. Coordination will hold by a new doctor being available, Dr. Cassell not being in business due to no customers, or soft operating norms will adjust and a set of dynamic actions will organically correct the issue. Moreover, are we willing to butcher rights up into instrumental sets or conditionally evaluate their relevancy? To do so, causes the whole notion of rights to become subject to implicit harms/action which not only threatens slippery slope, but requires that further extend or control over other ‘s actions that may be perceived as equally harmful as any explicit harm, even if the action in question is implicit. Thus our justification becomes absurd -or, at least, morally dangerous.