I am a qualified and practising advocate in private practice. I hold an LLM in International Law from a UK University, and also an LLB, BA Honours (jointly in Classics and Philosophy) and a BA (Legal Theory, Classics and Philosophy). I graduated at the top of my law class and was awarded the Commonwealth Scholarship for further studies. I write in the following areas: philosophy, contract law, delict (tort), trademarks and copyright, banking and insolvency law, legal ethics, jurisprudence, and constitutional and human rights law. In respect of the latter, I have done research relating to UK, European and international jurisdictions such as Canada and South Africa and, in particular, the philosophical underpinnings of the notions of human rights protection and enforcement.
Definitions of morality.
Much has been written concerning the nature, purpose and content of morality in both the legal and philosophical disciplines1. While extensive disagreement persists, it is largely uncontroversial to accept that the purpose of morality is to guide human behaviour. Morality, in the most general and neutral sense, is a standard of behaviour, and is often the standard of behaviour taught within a community and to which obedience is encouraged2. The more problematic question,3 and, for the present purposes, the more relevant and significant issue4 is the content of morality. The difficulty lies in the ambiguity inherent in the concept: does morality denote the actual standards of behaviour communities follow,5 does it embody an ideal norm of behaviour, 6 or is morality a thoroughly intellectual pursuit firmly rooted in rationality and reason?7
In light of the potential difficulties that may arise in terms of the content of morality, a specific definition is proposed. The express purpose of defining morality is, firstly, to strip the concept of any traditional, preconceived notions and, secondly, to identify a core content that is clear and sensible. The definition of morality that follows has two distinct components8. The first derives from the philosophical project of Immanuel Kant, who firmly grounds morality in the unique human attribute of rationality9. The second aspect concerns the specific values that derive from rationality and form the actual content of morality10.
i) Minimum Core of Morality
The terminology of a minimum content of morality is used prominently by Hart11. The basis of his minimum content is human biology and psychology; the proposal here, however, is that the minimum core of morality is rationality. Kant was the first to formulate a moral theory founded on pure reason – an attribute that he considered uniquely human12. A thorough exposition of his moral account is neither possible nor necessary at this juncture; it is sufficient to note that he identifies moral law as a principle of practical reason13, i.e., that the categorical imperative (the command which tells us how we ought to act) is determined by our faculty of rationality.
Natural law has long accepted the proposition that there are objective moral principles based in or discoverable by reason; 14 hence, the definition proposed here is not a new one15. That said, simply defining the minimum core of morality as rationality paints an extremely vague, obscure and frankly useless concept which is difficult to work with. The key question is therefore what this definition means in practical terms. The answer is this: any course of conduct or action16 will adhere to the minimum core of morality if it is motivated by reasonably justifiable reasons17.
This encompasses two distinct requirements, each of which stems from the basic concept of rationality18. The first requires that an action be motivated by reasons:19 action that is not supported by reasons is necessarily irrational by virtue of the fact that it has no basis whatsoever in rationality20. Action that is inspired by reasons may nevertheless be irrational action if those reasons themselves are illogical or, for want of a better description, not ‘good’ reasons. In order to avoid accusations of irrationality, actions must hence be rooted in reasons that are themselves reasonably justifiable. This, in practice, requires that moral actions depend on reasons that are understandable, logical, proportionate and defensible in light of all the relevant information (whether scientific or otherwise), the surrounding circumstances, the interests of society and the facts of a particular situation. Such reasons are consequently and necessarily also reasonable reasons21.
A practical example aptly illustrates this point. A candidate attorney who gets out of bed in the morning after a night of little sleep, before starting her day, makes a cup of coffee. It is evidently an action motivated by a reason: she wants to wake up her body and her brain. Her reason is a justifiable one because coffee has the desired effect of perking up the body and this justification is rendered reasonable not only by virtue of her past experience, but also by scientific knowledge (i.e., that caffeine stimulates the muscles/nerves). If coffee were a substance that put people to sleep, her reason for making the coffee would not be reasonably justifiable (and hence also not reasonable) because it is not reasonably justifiable, in light of common sense, logic and science, to use a substance that aims to put a person to sleep for the purposes of waking that person up.
Action that is rooted in reasons of the nature described will accord with the minimum core morality proposed here (hereafter referred to as ‘rational morality’). It must be emphasised that this minimum account describes a process of thinking and it suggests that the products of this manner of thought will be moral. Stated quite plainly, if action is motivated by the right type of reason, that action will be moral. A significant advantage that flows from this notion of morality is that rational morality is universal: the capacity for rationality belongs to all persons, irrespective of cultural diversity22. This much is recognised in the Universal Declaration of Human Rights, which states that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience”23 (my emphasis). This definition hence corresponds well to the comments made in respect of the philosophical justification for this paper24.
Despite this advantage, the definition is subjection to one blatant objection, namely, that its scope is too wide; indeed, the example used to illustrate the definition shows that it may include actions or commands which are not generally considered to be moral in nature, i.e. it is easily conceivable that an action can be motivated by reasons which are reasonably justifiable, yet which do not embody any traditional ‘moral’ content. The objection is noted, but it misinterprets the current project. As has been stated, the point of defining morality is to divorce it from all the conventional attitudes and content associated with it. It is readily conceded that this minimum core may include acts which do not fall within the definition of positive morality25, but the purpose of the minimum core definition is to exclude acts that are clearly irrational in nature.
ii) Morality as a Value-laden Concept
The aforementioned objection highlights an important feature of the definition of morality thus far: it is not sufficient to isolate only moral action on its own. For this reason, a second component is necessary in order to complete the definition of morality. The first element, as discussed, describes a process of thinking; the second constituent entails the consideration of a value. The relationship between rational morality and the role this value plays is one that defies easy definition. Nevertheless, the approach that will be followed here is that the product of rational morality must honour a particular value26. This concept of ‘honour’ is acutely ambiguous, and hence requires careful explanation. It is best understood in comparison to the notion of promoting values27. The distinction is as follows: if a person’s rational action has the actual result of furthering a particular value in some manner, the value is promoted. If the rational action, however, would have promoted the value in an ideal world, although not necessarily in reality, it can be considered as honouring the value28. The second component of the current definition hence requires the latter standard of respect for the value.
A further point that must be clarified is the source of values. The proposition is that specific moral truths must be developed from the general notion of rationality. Singer identifies a similar concept, namely that rational morality rests on principles that are “capable of rational proof”29. Although Singer continues to argue for both fundamental and subsidiary principles that are deducible from this rational foundation, there are certain drawbacks to developing an account of morality that is too specific30. This is the case because it is impossible to describe a moral system that fully encompasses any and every situation that may arise; specific commands do not always operate comfortably on a universal basis. For this reason, the second and final component of the definition of morality is limited to fundamental principles which take the form of general values that derive from rationality. The relationship that is required between these values and rational action is one in which the latter honours the former31.
The effect of this lengthy exposition of morality is that the notion can be described as follows: morality minimally consists of action motivated by reasonable justifiable reasons and this is complimented by rational values that must be honoured in the execution of rational action. Action that exhibits both of these features may be considered to be moral.
This paper will argue, albeit indirectly, that justice and freedom are two such rational values. It must be noted, however, that the focus hereafter will fall predominantly on the minimum core morality, i.e. rational morality. The values of justice and freedom will, however, be utilised in the process of investigating potential connections between the concepts of human rights and morality (specifically rational morality). The concept of values will also be relevant in considering the case of S v Jordan.
b) Human Rights
Rights, of all varieties, have received considerable jurisprudential attention32. The term is used in many contexts to refer to a number of different concepts33, and hence careful definition is required. ‘Rights’ can be seen as claims to property or certain types of action, in the sense that there is a particular entitlement thereto34. Hohfeld canvasses several formulations of a ‘right’,35 for instance that it is a type of privilege that the right-bearer holds against others36. Rights are also consistently associated with correlative duties37. For instance, if there is a right of possession in a particular object, this imposes correlative duties on others not to interfere with that possession. From this general formulation, three distinct types of rights can be distilled, namely legal rights, moral rights and human rights38. Legal rights are rights stipulated in statutes, constitutions and in the common law39. Human rights, most simply, are rights which accrue to people by virtue of the fact that they are human40 and it is worthwhile noting that human rights are often, although not always, legal rights41. The notion of moral rights defies simple or uniform definition. Alan Gewirth suggests that a moral right is a right that accords with morality, i.e. much like a legal right, a moral right is determined by considering the content of morality42. Denise Meyerson’s formulation of a moral right is less formalistic but rather puzzling. Her suggestion is that moral rights are a means of protecting those fundamental interests of which human life consists43. She continues, however, to identify such moral rights with natural rights and also human rights44 – in effect, she equates moral, natural and human rights, which is of no particular help in the present context.
Meyerson’s easy equation of the aforementioned rights will be dealt with anon; however, a clearer definition of human rights, beyond describing how people come to possess or claim them, is first necessary. The concept of ‘human rights’ that will be used here is jurisprudentially simple in that it refers to the “high-priority normative standards”45 prescribed both by international and domestic legal documents. The notion necessarily includes the actual content of the rights and the particular formulation of each, and also the interpretation thereof46. Within this wide theoretical understanding of human rights, it is further critical to isolate the exact nature of the rights that will be referred to herein. Human rights are often categorised into three different generations of rights, which effectively result in a distinction between political and civil rights, social, economic and cultural rights, and also collective rights47. Detailed expositions of each is unnecessary here, save to state that any reference to human rights herein, unless indicated otherwise, falls within the first category48. More specifically, such references are to personality rights, examples of which include the right to dignity, the right to life, the right to privacy and the right to freedom. It must also be noted that such rights are assumed also to be legal rights.
1See for instance R Brownsword, ‘Review: Ethics and Legal Education: Ticks, Crosses, and Question-Marks’ (1987) 50 The Modern Law Review 529. He offers a very brief overview of the burst of significant academic activity in this field in recent history. See also M.G. Singer, ‘The Ideal of a Rational Morality'(1986) 60 Proceedings and Addresses of the American Philosophical Associations 15at 17.
2C.H. Whitely, ‘On Defining ‘Moral” (1960) 10 Analysis 141 at 141.See also W.K. Frankena, ‘The Concept of Morality’ (1966) 63 The Journal of Philosophy 688 at 688-689; P. Singer, ‘Neil Cooper’s Concepts of Morality’ (1971) 80 Mind 421 at 421. See Singer (1986) Proceedings and Addresses of the American Philosophical Associations 17, where he writes that morality is a ‘complex of conduct, character and values.’ This wider view of morality, it must be noted, is in all likelihood linked to his understanding of personal morality.
3See the remarks of Frankena (1966) The Journal of Philosophy 688 and Whitely (1960) Analysis 142.
4Note that the nature of morality is not dealt with here. Frankena deals with certain characteristics of morality, namely, that it must be prescriptive, universal and authoritative (Frankena (1966) The Journal of Philosophy 688-689). See P. Foot, ‘A Reply to Professor Frankena’ (1975) 50 Philosophy 455, for a reply to Frankena in this regard. She makes the interesting suggestion (P. Foot, ‘Morality as a System of Hypothetical Imperatives’ (1972) 81 The Philosophical Review 305) that Kant’s account of morality (which is utilised to an extent in this paper) fails to elevate or distinguish moral commands from the dictates of social etiquette.
5See Frankena (1966) The Journal of Philosophy at 692-693, for a view on the type of notion of morality that revolves around a ‘social definition’ thereof. Singer (1986) Proceedings and Addresses of the American Philosophical Associations 19. Whitely (1960) Analysis 141-142: he, inter alia, presents morality as a social and political concept; note, however, that he continues to consider the Kantian view, which he deems to be psychological in nature (at 143). He accordingly focuses on what he calls the tension between convention and conscience based on whether people act morally due to societal pressure or approval, or an inner sense of moral obligation.
6This is often associated with the directive that we “ought” to act in a certain way. Singer (1986) Proceedings and Addresses of the American Philosophical Association 24, considers morality, and, more specifically, rational morality as an ideal.
7T. Honoré, ‘The Dependence of Morality on Law’ (1993) 12 Oxford Journal of Legal Studies 1 at 4. This question does not exhaust all possibilities – see for instance Singer (1971) Mind 422, where he distills three different types of moralities, including morality of personal universal evaluations and the morality of whatever a person thinks to be the most important; Singer (1986) Proceedings and Addresses of the American Philosophical Associations 16. Just these few examples are useful, however, in demonstrating, firstly, the plethora of ideas that drift around in this field of study and, secondly, the paramount importance of defining ‘morality’ in any particular work.
8It is not a foreign concept to moral philosophy that morality can be understood in different ways– see for instance Frankena (1966) The Journal of Philosophy 688, where he distinguishes between narrow and wide understandings of morality and also Whitely (1960) Analysis 143. Note that Whitely mentions the development in recent years of linguistic definitions of morality, i.e. by focusing on moral discourse. Though a fascinating area of research, it will not be considered here because it falls outside of the scope of this work.
9T. Honderich, The Oxford Companion to Philosophy (1995) 436-437; I. Kant, Groundwork of the Metaphysics of Morals (2002) viii.
10The nature of this distinction corresponds to a certain extent with Aristotle’s process of determination – whereby basic moral principles are developed into specific moral commands or actions – see Aristotle Nichomachian Ethics (2004) Book I: 3 and Honoré (1993) Oxford Journal of Legal Studies 4-5. Aristotle’s concern is the determination of what the proper course of action may be in a given situation. The aim in this paper differs somewhat in that a minimum core of morality will be suggested and then general moral values will be deduced from these. There is then certainly a move from the general to the specific, but I by no means endeavour to formulate a guide to any specific action that must be followed in certain situations.
11J.W. Harris, Legal Philosophies, 2nd Ed. (1997) 140.
12I. Kant Groundwork of the Metaphysics of Morals, ed. M. Gregor (1997) viii. In fact, what motivates Kant’s account is the desire to discover the role that pure reason plays in human life.
13Kant, Groundwork, xvi.
14J. Finnis, ‘Natural Law: The Classical Tradition,’ in The Oxford Handbook of Jurisprudence and Philosophy of Law (2004) 40.
15See also Singer (1986) Proceedings and Addresses of the American Philosophical Associations 17-19, where he presents an excellent argument that appeals to practical experience in order to confirm the existence of a system of rational morality. The crux of his argument is that the very practice of questioning traditional morals and the reality that moral opinions do change is significant proof that there is an appeal to a higher and more correct form of morality – rational morality. Finnis, Oxford HandBook, 40.
16Note that action here includes not only physical acts but also mental acts such as decisions and judgments.
17Finnis, Oxford Handbook, 40.
18This is also quite evident in the legal sphere in the area of administrative law. For instance, s33 of the Constitution provides a right to reasonable administrative action, and this involves the concept of rationality and reasons. See further C. Plasket, The Fundamental Right to Just Administrative Action: Judicial Review of Administrative Action in the Democratic South Africa (LLD Thesis, Rhodes University, 2002) 338-339.
19Singer (1986) Proceedings and Addresses of the American Philosophical Associations 23.
20It is doubtful, in actual fact, whether it is possible to act without any reason whatsoever. Even a person who does not consciously take note of their reasons or is unaware of their reasons for performing a particular act is still acting with reasons. Actions that are habitual are often not associated with the reasons that originally motivated the action, but this lack of cognitive association does not vitiate the existence of the reasons. For instance, a person who starts to suck their thumb as a child as a comforting gesture, may, once it has become habitual, claim that they no longer have a reason for doing so. In actual fact, the same reason for the action remains – seeking comfort; the person simply no longer actively associates the reason with the action.
21Singer (1986) Proceedings and Addresses of the American Philosophical Associations 23: he argues that rational morality, while requiring reasonable reasons, does not simultaneously or consequently also require conclusive reasons which represent the one and only correct answer.
22A. Gewirth, ‘Moral Foundations of Civil Rights Law’ (1987) 5 Journal of Law and Religion 125 at 130; A. D’Amato, Jurisprudence: A Descriptive and Normative Analysis of Law (1984) 215. See, however, Hosten et al., Introduction to South African Law 21 where the authors express profound doubt that a universal moral code is a plausible concept.
23Article 1. Note that the capacity is not always used, or accessible.
24A further possible advantage that may follow from this formulation is that moral dictates could be objective. This is a direct result of basing morality on rationality, which is this universal human trait (though not one that is always used or accessible) that takes no account of subjective, emotional factors. The characteristic of objectivity will be explored in greater depth at a latter stage and it is sufficient, for present purposes, to acknowledge that this is a generally desirable attribute for moral dictates to exhibit.
25Note that positive morality is the general term used to describe the prevailing moral convictions of a community at a particular time (Singer (1986) Proceedings and Addresses of the American Philosophical Associations 16).
26P. Pettit, ‘The Consequentialist Perspective’ in M W Baron et al., Three Methods of Ethics: A Debate (2001) 92 at 126.
27Pettit, Three Methods of Ethics, 127.
28Pettit, Three Methods of Ethics, 127.
29Singer (1986) Proceedings and Addresses of the American Philosophical Associations 22-23.
30See also Freeman (1994) Human Rights Quarterly 502.
31At this stage, specific values which fall within this ambit will not be discussed. See J. Raz, ‘Autonomy, Toleration, the Harm Principle’ in R. Gavison, Issues in Contemporary Legal Philosophy (1992) 318, where the very notion of a ‘value’ is formulated in a way that implies the existence of reasons for actions.
32A notion that is not explored here is that human rights themselves are a type of morality (see Jackson, Charting Responsibilities, 13. By definition, this cannot be the case in this paper, but the idea is not without merit. See the cogent remarks in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 136.
33Freeman, Lloyd’s Jurisprudence 355; see also Jackson, Charting Responsibilities 1.
34F.M. Kamm ‘Rights’ in The Oxford Handbook of Jurisprudence and Philosophy of Law (2004) 476; Riddall, Jurisprudence 177.
35Riddall, Jurisprudence 177; M. Freeman Rights (1991) 4.
36Freeman, Lloyd’s Jurisprudence 356.
37Kamm, Oxford Handbook 476, 478; Freeman, Lloyd’s Jurisprudence 354: in particular, Hohfeld, whose work on rights is extensive, has noted that the term is used ambiguously. The most palpable example hereof is found in the Banjul or African Charter of Human and Peoples’ Rights, which is separated into two distinct parts – rights that Africans hold against the state and the duties that they are expected to fulfill as individuals; see also A.D. Renteln, International Human Rights: Universalism versus Relativism (1990) 41.
38D. Meyerson, Understanding Jurisprudence (2007) 117-119.
39Meyerson, Jurisprudence 117; Kamm, Oxford Handbook 477; A. Gewirth, ‘Moral Foundations of Civil Rights Law’ (1987) 5 Journal of Law and Religion 125 at 126.
40Kamm, Oxford 477; Meyerson, Jurisprudence 118. This formulation is rather simplistic given more modern, generous interpretation of constitutional rights. For instance, the right to human dignity, which per se accrues by virtue of the possessor’s humanity, has been extended to incorporate personality. This certainly raises interesting questions about whether this right is a human right, merely a legal right or perhaps that the very formulation of human right requires reconsideration.
41This is particularly apparent when domestic and international human rights are compared. For instance, s14 of the Constitution provides for the right to privacy, while this right has no counterpart in international law. In other words, in South Africa, the human right of privacy is a legal right while, on an international level, it does not have legal status.
42Gewrith (1987)Journal of Law and Religion 126.
43Meyerson, Jurisprudence 118.
44Meyerson, Jurisprudence 118 and see also Jackson, Charting Responsibilities 8, where he acknowledges that moral rights and legal rights may also, in certain instances, share common ground.
45Jackson, Charting Responsibilities 1.
46Jackson, Global Responsibilities 1.
47M. Malik, ‘Communal Goods as Human Rights’ in C. Gearty and A. Tomkins, Understanding Human Rights (1999) 138 at 142; Jackson, Charting Responsibilities 16-17; J.D. van Der Vyver, ‘The Concept of Human Rights: Its History, Contents and Meaning’ in Human Righst The Cape Town Conference (1979) 19. M.P. Olivier and N. Smit, ‘Social Security Law’ in W.A. Joubert’s LAWSA Vol 13 (2002) para 44. It is significant to note that although this division of rights is common, it is not reflected in the formulation of the South African Bill of Rights – all rights are afforded equal status and protection. E. Chadwick ”Rights’ and International Humanitarian Law’ in C. Gearty and A. Tomkins, Understanding Human Rights (1999) 81 at 81.
48For the development of 3rd generation, see Malik, Understanding Human Rights, 142.