The Concept of Rights
by Jan Garrett
Slightly Revised: February 19, 2004
Rights and Justice
Rights and justice are not really distinct issues, but the use of the term "rights" emphasizes (at least at the start) a different dimension from the use of the term "justice." When we mention justice we are usually concerned with how (according to what pattern) valuable things (benefits) and their opposites (burdens) are distributed. When we talk about rights, we think first of all of entities, usually human individuals, who supposedly possess or bear those rights.
John Rawls' principles of justice concern the distribution of benefits and burdens among individuals in a society (the liberties, for instance, are benefits while having to pay taxes would be a burden).
The link between rights and justice is duties. Principles of justice prescribe the ways in which benefits and burdens should be distributed. At one level, these are duties of public officials, but they also provide guidelines for laws, which the rest of us have duties to obey. Rights, as we shall see, can be explained in terms of the duties of others to the right-holder.
Definition of Rights
A right is said to be an entitlement or justified claim to a certain kind of positive and [or?] negative treatment from others, to assistance from others or non-interference from others.
(Many moral philosophers would put "or" in this definition after "positive," but others, with whom I agree, would put "and." See below: "the Alleged Distinctions between Negative and Positive Rights.")
Human and Legal Rights
We can distinguish between moral or human rights and legal rights. Legal rights require for their justification an existing system of law. Our legal rights are, roughly, what the law says they are, at least insofar as the law is enforced. Legal rights gain their force first of all through legislation or decree by a legally authorized authority. (Our focus is going to be on human or moral rights.)
Those who advocate adoption of laws establishing legal rights often appeal to a notion of human rights. Laws against theft might appeal to notions of a moral right to own property. But human or moral rights must gain their validity through some other source other than legal rights, since we can appeal to human or moral rights to criticize the law or advocate changes in the law (or legal rights), and we could not do this if moral rights were based upon the law.
Some people base their notion of moral rights upon their notion of what God wants, but of course there is disagreement about what God wants. Rawls' theory of justice provides a nonreligious account of moral rights. Soon I'll give another one.
Apart from human rights and basic legal rights there are contractual rights. Contractual rights derive from the practice of promise-keeping. They apply to particular individuals to whom contractual promises have been made. Contractual rights arise from specific acts of contract making. They normally come into being when the contract is made, and they reflect the contractual duty that another party has acquired at the same time. As a result of a contract, party A has a contractual duty, say, to deliver some good or service to party B, who has a contractual right to the good or service. (Contractual rights may be upheld by the law, and in that sense can rest upon legal rights, but it is possible to conceive of contracts made outside of a legal framework and to rest purely upon moral principles; however, such contracts are less secure than contracts made within a legal framework, for obvious reasons.)
A Fuller Understanding of Human or Moral Rights
Rights correspond to duties in three ways:a) individual duties of forbearance (non-interference)Consider the right to property, conceived primarily as the right not to have one's personal property taken without one's consent. This implies that
b) institutional duties of assistance
c) individual duties of assistancea) other individuals have a duty to forbear from taking a person's possessions without his or her consent.The individual duties of assistance come into play in several ways: If the government were lax in this area, citizens might have a positive duty to pressure government to pass an appropriate law if one were missing or to enforce already existing laws.
b) institutions, such as governments, should establish and enforce laws against theft and should do so in all neighborhoods where theft is a possibility.
c) officials in the government have an individual duty, as officials, to support such laws and or enforce them.
Beyond that, individual citizens who are aware of persons with sticky fingers, as it were, have an obligation, where it could be done at reasonable cost to themselves, to thwart acts of theft.
The Alleged Distinctions Between Negative and Positive Rights
Many authors distinguish between negative rights and positive rights.
Negative rights would correspond to duties of forbearance: if X has a negative right to V, then other's have a non-interference duty in relation to X's enjoyment of V.
Positive rights would correspond to duties of assistance: if X has a positive right to V, then others (perhaps government) have a (positive) duty to provide X with V.
It is frequently thought that the right not to be killed, not to be assaulted, not to be raped or kidnapped, and the right not to have one's property taken without one's consent are negative rights and not positive rights.
But this may be a mistake. We have seen that the right not to have one's property stolen corresponds both to negative and to positive duties, and the same would be true of other rights that people have supposed were purely negative.
The Basis of Rights
There are several, mutually reinforcing ways that one can defend the existence of rights. One way is inspired by Immanuel Kant. Kant proposes that the essence of morality is captured by what has been called the Categorical Imperative. In a slight paraphrase, this reads:
Act only on those rules of action that you could will to be universal laws.
The Categorical Imperative is a rule for testing rules of conduct. It will exclude as immoral any rule of conduct that implies that one person may do something but another, in relevantly similar circumstances, may not. In other words, it demands consistency. What's all right for me is all right for you if our relevant circumstances are similar. If I may throw my toxic waste into the river to save money for myself, then you may do so likewise. But of course I would not want you to do that, so it would be wrong for me.
This is relevant to human rights, because we think of human rights as universally applicable to human beings. And Kant says that what is morally permissible applies to all rational beings. It is also relevant that this test tends to endorse rules of action that protect our most basic interests, just the sorts of things that rights protect.
We could not endorse a rule that outlaws a particular religion because, if the rule were generalized, the religion we favor could be outlawed as well.
A second formulation of the Categorical Imperative is also important: "Always act so as to treat humanity (rational beings) as an end, never as a means only."
The point is that human beings, understood as beings capable of reasoning about their choices, are inherently valuable and worthy of respect for this reason. This sets strict limits upon what we are morally permitted to do to them, at least under normal circumstances.
It can also be used to defend securing for human beings what they need in order to functional as rational beings.
Brian Orend, a Canadian philosopher, in his Human Rights: Concept and Context, develops this idea in the direction of human rights as follows: To respect human beings as an end is to respect their interests in being protected against grievous harm. (Harm is understood as loss or non-possession of the goods that fulfill vital human needs.)
For a definition of "need" and fuller discussion of the concept and concepts related to or confused with it, see Needs, Interests, Wants, Motives.
Orend lists five vital needs that, he claims, are common to all human beings. If these needs were not met at a basic level, we could not function as rational beings. They are
security, subsistence, freedom, equality, and recognition.
It would be interesting to compare this list with Martha Nussbaum's list of basic capabilities in her account of the things to which human rights entitle us.
Human rights, in a nutshell, are the entitlements we have in these five areas. Orend's approach helps explain the list of human rights found in the Universal Declaration of Human Rights, adopted by the United Nations (including the United States) in the late 1940's. The list of human rights in the Universal Declaration is much larger than five, but most of those rights can be derived by further specification from Orend's basic five.
Orend's approach fits well with the idea that you cannot distinguish sharply between negative rights and positive rights because even the so-called negative rights (for example, the right not to be killed) are positive in the sense that they call upon institutions to aid potential victims and bystanders to do what they can, at least if the cost to themselves is absorbable.