Moral source of rights that transcends and can thus challenge positive law?

Is there a moral source of rights that transcends and can thus challenge positive law?

After digesting thoughts of different philosophers upon this topic, I have evaluated a categorisation of perspectives: a model in which philosophers such as John Locke stem from a basis of religion and use it as foundation for principle and religion, and that such ideas of positive law cannot destroy this foundation. Others, for example, Emmanuel Kant created a system in which morality could be accepted based on criteria and system to which it could be proven to be morally approved. Whilst these philosophers may share similar aspects in their morals, they differ on how to reach the conclusion. This has led to a wider debate as to where morals may be found, how they originated and what place they have in the "modern world". For Jeremy Bentham, would completely repel the argument of innate morals and argue Kant and Locke had "nonsense theories". Due to these differing arguments, I have decided to break down this essay as follows:

Where/what is the moral source of rights; Do moral sources of rights conflict; What is meant by positive law; and can a moral source of rights challenge positive law?

Thus, by dissecting each question with thorough exemplification, I will argue that a moral source of rights transcends and thus challenges positive law.

Where/what is the Moral source of rights?

To organise this question, I will be analysing each thinker's thoughts beginning with John Locke. Locke rejected the idea that governments could be tyrannical and that all human beings had natural "God given" rights given to them. This foundation of rights is reflected from his Christian faith and tradition. However, Locke accepted that his practise of religion was not always applicable, this can be seen in the fact he did not believe in all 10 commandments; the 10 commandments begin "Hear O Israel'' and thus are only binding on the people to whom they were addressed (Works 6:37) (Tuckness, 2020). Thus, whilst Locke established a foundation of morals from religion, he was not completely satisfied with all the legislations of God. In fact, according to Locke's argument, while natural law and divine law are both consistent and capable of sharing some substance, they do not coextend. Therefore, Locke does not have an issue if the Bible prescribes a more stringent moral code than that which can be inferred from natural law, but he does have an issue if the Bible teaches something that is against natural law. Immanuel Kant argues for a universal law likewise Locke shares some similar views on the freedom of the individual, however, has a different process of analysing good morals, unlike Locke's foundation of Christianity. "Act only in accordance with that maxim through which you can at the same time will that it become a universal law" (G 4:421). O'Neill (1975, 1989) and Rawls (1980, 1989) (Johnson, Robert and Adam Cureton, 2022) this method of ethics could also be described as deontological ethics. To put simply deontological ethics, exclaim that if everyone in the world was to practise this how would the world strive. Take for example prostitution, if everyone in the world was to practise prostitution then disease such as STDs would rampantly spread and would kill massive sections of the world population if not the entire population. Therefore, Kant may argue that prostitution is deemed as morally impermissible. However, Kant's analysis of morals is much more complicated. "Maxims" must pass four steps, these being: "First, formulate a maxim that enshrines your proposed plan of action. Second, recast that maxim as a universal law of nature governing all rational agents, and so as holding that all must, by natural law, act as you yourself propose to act in these circumstances. Third, consider whether your maxim is even conceivable in a world governed by this new law of nature. If it is, then, fourth, ask yourself whether you would, or could, rationally will act on your maxim in such a world. If you could, then your action is morally permissible." (Johnson, Robert and Adam Cureton, 2022) Therefore in my example, prostitution, in the modern world some may argue that prostitution is accepted by many and even used as business. Therefore, Kant states if your maxim fails the 3rd step, then you have a "perfect" duty admitting "of no exception in favor of inclination" to refrain from acting on that maxim. (Johnson, Robert and Adam Cureton, 2022). Moving forward, John Stuart Mill's "harm principle" is the most widely accepted ethical system in our current contemporary liberal world. The "harm principle" simply states that one can act as freely as they wish so long as they do not infringe the harm of others. Smoking, for instance, affects the smoker's lungs; therefore, it may be claimed that as long as it does not damage others, the smoker is free to pursue his happiness. However, many contend that second-hand smoking may hurt those around the smoker. This has led many to discussion over the harm principle and where truly its limits lie: "What about the indirect, remorse or psychological harm?" (Persak, 2007) "The corollary to the problem of not specifying what harm is or should be, how to measure it etc., is, namely, its potential for abuse. Not knowing what harm is, enables it, some may argue, to be anything and everything." The harm principle ultimately fails due to its flexibility, and the ambiguity surrounding what constitutes "harm" makes it untrustworthy.