7.3 Rights Theory

We hear very often these days people asserting that they have a “right” to this or to that.  The notion of rights is implicit in much of the language used by Hobbes and Locke to elucidate the social contract.  But just what are rights? Where do they come from?  Do they actually exist, or are they imaginary?  What are the various kinds of rights claims we hear in public discourse these days?

What are Rights?

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed to people or owed to people according to some legal system, social convention, or ethical theory. Rights are of essential importance in such disciplines as law and ethics, especially theories of justice and deontology.

Rights are fundamental to any civilization and the history of social conflicts is often bound up with attempts both to define and redefine them…

Natural rights are rights that are “natural” in the sense of “not artificial, not man-made”, as in rights deriving from human nature or from the edicts of a god. They are universal; that is, they apply to all people and do not derive from the laws of any specific society. They exist necessarily, inhere in every individual, and can’t be taken away. For example, it has been argued that humans have a natural right to life. These are sometimes called moral rights or inalienable rights.

Legal rights, in contrast, are based on a society’s customs, laws, statutes, or actions by legislatures. An example of a legal right is the right to vote for citizens. Citizenship, itself, is often considered the basis for having legal rights and has been defined as the “right to have rights”. Legal rights are sometimes called civil rights or statutory rights and are culturally and politically relative since they depend on a specific societal context to have meaning.

Some thinkers see rights in only one sense while others accept that both senses have a measure of validity. There has been considerable philosophical debate about these senses throughout history. For example, Jeremy Bentham believed that legal rights were the essence of rights, and he denied the existence of natural rights; whereas Thomas Aquinas held that rights purported by positive law but not grounded in natural law were not properly rights at all, but only a facade or pretense of rights…

In one sense, a right is a permission to do something or an entitlement to a specific service or treatment from others, and these rights have been called positive rights. However, in another sense, rights may allow or require inaction, and these are called negative rights; they permit or require doing nothing. For example, in some countries, e.g., the United States, citizens have the positive right to vote, and they have the negative right to not vote; people can choose not to vote in a given election without punishment. In other countries, e.g., Australia, however, citizens have a positive right to vote but they don’t have a negative right to not vote, since voting is compulsory.

It’s important to understand that a “right” is always a claim, and almost always a political claim.  A right is not something that exists in nature, despite the notion of natural rights.  John Tasioulasis, professor of ethics and legal philosophy and director of the Institute for Ethics in AI at the University of Oxford, has said,

We live in an age of human rights. The language of human rights has become ubiquitous, a lingua franca used for expressing the most basic demands of justice. Some are old demands, such as the prohibition of torture and slavery. Others are newer, such as claims to internet access or same-sex marriage. But what are human rights, and where do they come from? This question is made urgent by a disquieting thought. Perhaps people with clashing values and convictions can so easily appeal to ‘human rights’ only because, ultimately, they don’t agree on what they are talking about. Maybe the apparently widespread consensus on the significance of human rights depends on the emptiness of that very notion. If this is true, then talk of human rights is rhetorical window-dressing, masking deeper ethical and political divisions.

Philosophers have debated the nature of human rights since at least the 12th century, often under the name of ‘natural rights’. These natural rights were supposed to be possessed by everyone and discoverable with the aid of our ordinary powers of reason (our ‘natural reason’), as opposed to rights established by law or disclosed through divine revelation. Wherever there are philosophers, however, there is disagreement. Belief in human rights left open how we go about making the case for them – are they, for example, protections of human needs generally or only of freedom of choice? There were also disagreements about the correct list of human rights – should it include socio-economic rights, like the rights to health or work, in addition to civil and political rights, such as the rights to a fair trial and political participation? (Tasioulasis, “Are human rights anything more than legal conventions?”, Aeon, April 11, 2017)

Moreover, if you are claiming a “right,” you are at the same time claiming that others have certain obligations to you.  Positive rights are claims that others have an obligation to do something for you, e.g., to give you healthcare, education, or an audience.  Negative rights are claims that others must not interfere with you, e.g., obligations not to impede your liberty, take your life, or steal your property.

A Short History of Human Rights

Andrew Fagan offers this brief history of rights discourse in The Internet Encyclopedia of Philosophy:

The doctrine of human rights rests upon a particularly fundamental philosophical claim: that there exists a rationally identifiable moral order, an order whose legitimacy precedes contingent social and historical conditions and applies to all human beings everywhere and at all times. On this view, moral beliefs and concepts are capable of being objectively validated as fundamentally and universally true. The contemporary doctrine of human rights is one of a number of universalist moral perspectives. The origins and development of the theory of human rights is inextricably tied to the development of moral universalism. The history of the philosophical development of human rights is punctuated by a number of specific moral doctrines which, though not themselves full and adequate expressions of human rights, have nevertheless provided a number of philosophical prerequisites for the contemporary doctrine. These include a view of morality and justice as emanating from some pre-social domain, the identification of which provides the basis for distinguishing between ‘true’ and merely ‘conventional’ moral principles and beliefs. The essential prerequisites for a defense of human rights also include a conception of the individual as the bearer of certain ‘natural’ rights and a particular view of the inherent and equal moral worth of each rational individual. I shall discuss each in turn.

Human rights rest upon moral universalism and the belief in the existence of a truly universal moral community comprising all human beings. Moral universalism posits the existence of rationally identifiable trans-cultural and trans-historical moral truths. The origins of moral universalism within Europe are typically associated with the writings of Aristotle and the Stoics. Thus, in his Nicomachean Ethics, Aristotle unambiguously expounds an argument in support of the existence of a natural moral order. This natural order ought to provide the basis for all truly rational systems of justice. An appeal to the natural order provides a set of comprehensive and potentially universal criteria for evaluating the legitimacy of actual ‘man-made’ legal systems. In distinguishing between ‘natural justice’ and ‘legal justice’, Aristotle writes, ‘the natural is that which has the same validity everywhere and does not depend upon acceptance.’ (Nicomachean Ethics, 189) Thus, the criteria for determining a truly rational system of justice pre-exist social and historical conventions. ‘Natural justice’ pre-exists specific social and political configurations. The means for determining the form and content of natural justice is the exercise of reason free from the distorting effects of mere prejudice or desire. This basic idea was similarly expressed by the Roman Stoics, such as Cicero and Seneca, who argued that morality originated in the rational will of God and the existence of a cosmic city from which one could discern a natural, moral law whose authority transcended all local legal codes. The Stoics’ argued that this ethically universal code imposed upon all of us a duty to obey the will of god. The Stoics thereby posited the existence of a universal moral community effected through our shared relationship with god. The belief in the existence of a universal moral community was maintained in Europe by Christianity over the ensuing centuries. While some have discerned intimations towards the notion of rights in the writings of Aristotle, the Stoics, and Christian theologians, a concept of rights approximating that of the contemporary idea of human rights most clearly emerges during the 17th. And 18th. Centuries in Europe and the so-called doctrine of natural law.

The basis of the doctrine of natural law is the belief in the existence of a natural moral code based upon the identification of certain fundamental and objectively verifiable human goods. Our enjoyment of these basic goods is to be secured by our possession of equally fundamental and objectively verifiable natural rights. Natural law was deemed to pre-exist actual social and political systems. Natural rights were thereby similarly presented as rights individuals possessed independently of society or polity. Natural rights were thereby presented as ultimately valid irrespective of whether they had achieved the recognition of any given political ruler or assembly. The quintessential exponent of this position was the 17th. Century philosopher John Locke and, in particular, the argument he outlined in his Two Treatises of Government (1688). At the center of Locke’s argument is the claim that individuals possess natural rights, independently of the political recognition granted them by the state. These natural rights are possessed independently of, and prior to, the formation of any political community. Locke argued that natural rights flowed from natural law. Natural law originated from God. Accurately discerning the will of God provided us with an ultimately authoritative moral code. At root, each of us owes a duty of self-preservation to God. In order to successfully discharge this duty of self-preservation each individual had to be free from threats to life and liberty, whilst also requiring what Locke presented as the basic, positive means for self-preservation: personal property. Our duty of self-preservation to god entailed the necessary existence of basic natural rights to life, liberty, and property. Locke proceeded to argue that the principal purpose of the investiture of political authority in a sovereign state was the provision and protection of individuals’ basic natural rights. For Locke, the protection and promotion of individuals’ natural rights was the sole justification for the creation of government. The natural rights to life, liberty, and property set clear limits to the authority and jurisdiction of the State. States were presented as existing to serve the interests, the natural rights, of the people, and not of a Monarch or a ruling cadre. Locke went so far as to argue that individuals are morally justified in taking up arms against their government should it systematically and deliberately fail in its duty to secure individuals’ possession of natural rights.

Analyses of the historical predecessors of the contemporary theory of human rights typically accord a high degree of importance to Locke’s contribution. Certainly, Locke provided the precedent of establishing legitimate political authority upon the foundation of a right. This is an undeniably essential component of human rights. However, the philosophically adequate completion of the theoretical basis of human rights requires an account of moral reasoning, that is both consistent with the concept of rights, but which does not necessarily require an appeal to the authority of some super-human entity in justifying human beings’ claims to certain, fundamental rights. The 18th. Century German philosopher, Immanuel Kant provides such an account.

Many of the central themes first expressed within Kant’s moral philosophy remain highly prominent in contemporary philosophical justifications for human rights. Foremost amongst these are the ideals of equality and the moral autonomy of rational human beings. Kant bestows upon contemporary human rights theory the ideal of a potentially universal community of rational individuals autonomously determining the moral principles for securing the conditions for equality and autonomy. Kant provides a means for justifying human rights as the basis for self-determination grounded within the authority of human reason. Kant’s moral philosophy is based upon an appeal to the formal principles of ethics, rather than, for example, an appeal to a concept of substantive human goods. For Kant, the determination of any such goods can only proceed from a correct determination of the formal properties of human reason and thus does not provide the ultimate means for determining the correct ends, or object, of human reason. Kant’s moral philosophy begins with an attempt to correctly identify those principles of reasoning that can be applied equally to all rational persons, irrespective of their own specific desires or partial interests. In this way, Kant attaches a condition of universality to the correct identification of moral principles. For him, the basis of moral reasoning must rest upon a condition that all rational individuals are bound to assent to. Doing the right thing is thus not determined by acting in pursuit of one’s own interests or desires but by acting in accordance with a maxim that all rational individuals are bound to accept. Kant terms this the categorical imperative, which he formulates in the following terms, ‘act only on that maxim through which you can at the same time will that it should become a universal law.’ (1948:84). Kant argues that this basic condition of universality in determining the moral principles for governing human relations is a necessary expression of the moral autonomy and fundamental equality of all rational individuals. The categorical imperative is self-imposed by morally autonomous and formally equal rational persons. It provides the basis for determining the scope and form of those laws which morally autonomous and equally rational individuals will institute in order to secure these very same conditions. For Kant, the capacity for the exercise of reason is the distinguishing characteristic of humanity and the basis for justifying human dignity. As the distinguishing characteristic of humanity, formulating the principles of the exercise of reason must necessarily satisfy a test of universality; they must be capable of being universally recognized by all equally rational agents. Hence, Kant’s formulation of the categorical imperative. Kant’s moral philosophy is notoriously abstract and resists easy comprehension. Though often overlooked in accounts of the historical development of human rights, his contribution to human rights has been profound. Kant provides a formulation of fundamental moral principles that, though exceedingly formal and abstract, are based upon the twin ideals of equality and moral autonomy. Human rights are rights we give to ourselves, so to speak, as autonomous and formally equal beings. For Kant, any such rights originate in the formal properties of human reason, and not the will of some super-human being.

The philosophical ideas defended by the likes of Locke and Kant have come to be associated with the general Enlightenment project initiated during the 17th. and 18th. Centuries, the effects of which were to extend across the globe and over the ensuing centuries. Ideals such as natural rights, moral autonomy, human dignity, and equality provided a normative bedrock for attempts at re-constituting political systems, for overthrowing formerly despotic regimes and seeking to replace them with forms of political authority capable of protecting and promoting these new emancipatory ideals. These ideals effected significant, even revolutionary, political upheavals throughout the 18th. Century, enshrined in such documents as the United States’ Declaration of Independence and the French National Assembly’s Declaration of the Rights of Man and Citizen. Similarly, the concept of individual rights continued to resound throughout the 19th. Century exemplified by Mary Wollstencraft’s Vindication of the Rights of Women and other political movements to extend political suffrage to sections of society who had been denied the possession of political and civil rights. The concept of rights had become a vehicle for effecting political change. Though one could argue that the conceptual prerequisites for the defense of human rights had long been in place, a full Declaration of the doctrine of human rights only finally occurred during the 20th century and only in response to the most atrocious violations of human rights, exemplified by the Holocaust. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on the 10th of December 1948 and was explicitly motivated to prevent the future occurrence of any similar atrocities. The Declaration itself goes far beyond any mere attempt to reassert all individuals’ possession of the right to life as a fundamental and inalienable human right. The UDHR consists of a Preamble and 30 articles which separately identify such things as the right not to be tortured (article 5), a right to asylum (article 14), a right to own property (article 17), and a right to an adequate standard of living (article 25) as being fundamental human rights. As I noted earlier, the UDHR has been further supplemented by such documents as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) and the International Covenant on Economic, Social, and Cultural Rights (1966). The specific aspirations contained within these three documents have themselves been reinforced by innumerable other Declarations and Conventions. Taken together these various Declarations, conventions and covenants comprise the contemporary human rights doctrine and embody both the belief in the existence of a universally valid moral order and a belief in all human beings’ possession of fundamental and equal moral status, enshrined within the concept of human rights. It is important to note, however, that the contemporary doctrine of human rights, whilst deeply indebted to the concept of natural rights, is not a mere expression of that concept but actually goes beyond it in some highly significant respects. James Nickel (1987: 8-10) identifies three specific ways in which the contemporary concept of human rights differs from and goes beyond that of natural rights. First, he argues that contemporary human rights are far more concerned to view the realization of equality as requiring positive action by the state, via the provision of welfare assistance, for example. Advocates of natural rights, he argues, were far more inclined to view equality in formalistic terms, as principally requiring the state to refrain from ‘interfering’ in individuals’ lives. Second, he argues that, whereas advocates of natural rights tended to conceive of human beings as mere individuals, veritable ‘islands unto themselves’, advocates of contemporary human rights are far more willing to recognize the importance of family and community in individuals’ lives. Third, Nickel views contemporary human rights as being far more ‘internationalist’ in scope and orientation than was typically found within arguments in support of natural rights. That is to say, the protection and promotion of human rights are increasingly seen as requiring international action and concern. The distinction drawn by Nickel between contemporary human rights and natural rights allows one to discern the development of the concept of human rights. Indeed, many writers on human rights agree with the identification of three generations of human rights. First-generation rights consist primarily of rights to security, property, and political participation. These are most typically associated with the French and US Declarations. Second-generation rights are construed as socio-economic rights, rights to welfare, education, and leisure, for example. These rights largely originate within the UDHR. The final and third generation of rights are associated with such rights as a right to national self-determination, a clean environment, and the rights of indigenous minorities. This generation of rights really only takes hold during the last two decades of the 20th. Century but represents a significant development within the doctrine of human rights generally.

While the full significance of human rights may only be finally dawning on some people, the concept itself has a history spanning over two thousand years. The development of the concept of human rights is punctuated by the emergence and assimilation of various philosophical and moral ideals and appears to culminate, at least to our eyes, in the establishment of a highly complex set of legal and political documents and institutions, whose express purpose is the protection and promotion of the fundamental rights of all human beings everywhere. Few should underestimate the importance of this particular current of human history.  (from Fagan, “Human Rights,” The Internet Encyclopedia of Philosophy, November 5, 2021).

Strengths and Weaknesses of Rights Theory

Claims of natural rights can oblige a government to restrain its control over the population.  These rights are almost always negative, meaning that they state what governments are obliged not to do.  These have traditionally included rights to life, liberty, and property, but more can be seen in the Bill of Rights of the American Constitution:  rights to trial by jury, possession of arms, freedom of religion, etc.  To claim these rights is to curb unjust government intrusion in our private lives.

Another strength of rights claims is that they can, in their positive forms, push governments to provide more care for citizens in the form of such things as education, health care, and safe working environments.

A weakness of rights claims is that they really don’t “exist” but are always negotiable political claims.

Also, an assertion of rights, especially negative rights, can be an excuse to not participate in the commonwealth, to isolate and shun any responsibility to the broader community.

Works Cited

Fagan, Andrew. “Human Rights.” Internet Encyclopedia of Philosophy, https://iep.utm.edu/hum-rts/.

Tasioulas, John. “Are Human Rights Anything More than Legal Conventions?: Aeon Ideas.” Aeon, Aeon Magazine, 18 Oct. 2022, https://aeon.co/ideas/are-human-rights-anything-more-than-legal-conventions.