|Theories of rights|
|Negative & positive|
Rights entitle one to perform certain acts (or be in certain states) and to (not) have others perform certain acts, they govern ways of acting and of being treated. These rights are thought to be directly tied to a duty, whether this be a duty to act or not to act, and whether this duty be legal or morality|moral]]. There is conflict as to whether rights are inherent (things that all human beings possess whether they are recognized by others or not). Those that argue for natural rights maintain that rights should be respected in virtue of humans possessing them, while those that argue against natural rights argue that rights should be respected as they are used as instruments in bringing about optimal consequences in our lives. These differences do not only challenge the justifications of rights, but also their function. Criticisms of rights theories abound, with some even claiming that moral rights do not exist without legal sanction, that a right is by definition a legal concept.
Rights can be considered to guide behavior, to give normative direction. They do so, most argue, by correlating directly with duties. In Kantian terms (and Later Mill), rights correlate to perfect duties (those which must be honored, as opposed to imperfect duties such as acts of charity). Whether these duties are moral or purely legal will is discussed in section two.
Legal theorist Wesley Hohfeld identified four basic components of rights, namely privileges (or liberties), claims, powers and immunities. These are known as the four “Hohfeldian incidents.” Briefly, they are described as follows. Privileges or liberties refer to acts that one has no duty or obligation not to perform, for example kicking around a soccer ball, eating an apple (in order for privileges to correlate to duties, it must be that others have a duty not to interfere with what one is doing, a position that Hohfeld himself did not endorse). A claim on the other hand is directly related to a duty or obligation on at least one agent, to either perform an act or refrain from performing an act. Examples of claim rights include the signing of contracts or the right not to be physically abused, property rights are also claim rights, as others have a duty to respect ones ownership. The obligations of claim rights can either be to a specific person or body, such as in the case of contracts, are apply universally, such as the claim against physical abuse. Power rights refer to the ability or power to impose an obligation or duty on others, such as those of judges. Lastly, immunities refer to the rights one has not to adhere to duties imposed by powers due to an existing right that makes one immune (again, there is the implied duty that others respect this). For example, a judge does not have the right to sentence someone to lashes if this person is protected by the right not to receive corporal punishment. Claims and privileges are of the greater concern and have received wider philosophical recognition.
Rights can be further characterized as active and passive, and negative and positive. Both privileges and powers are active rights as they are actively exercised, immunities and claims are passive as they can be held without any accompanying action on the part of the right holder. Both negative and positive rights are passive. Negative rights refer to the right that actions not be performed, this includes things like the right to privacy and the right to make decisions that do not adversely affect others. Negative rights are often employed as a defense against paternalism. A positive right refers to a right that some action is performed, such as some kind of protection or service. Claim rights can therefore be either positive or negative, whereas privileges are mostly negative.
What Hohfeld’s incidents fail to do is to establish the validity of claims, and whether indeed validity is needed for a claim to be considered a right. It is on this issue that theorists differ, mostly between those that believe that a right can exist without social recognition (natural rights theory) and those that believe that rights need to be substantiated. Natural rights theorists would maintain, for example, that to simply claim a right is sufficient for entitlement, whereas others, such as Jeremy Bentham, argue that a right needs to be recognized, justified and enforced (by law and society) in order for it be valid. Most take the view that rights are valid claims (though they differ on what makes them valid) and therefore provide a justification for action and treatment, and according to John Rawls, that rights are justified expectations.
While the above characterizations have focused mainly on actions and conduct, it must be kept in mind that rights can also be epistemic, affective and conative, that is, one has rights the relate to beliefs, feelings and emotions, and desires.
Rights are normative in that they aim to direct human behavior. Justifications of rights then come from normative theory, and more specifically normative theories of morality. The justification for moral rights, as opposed to legal rights, has historically most commonly been argued from a deontological standpoint, and to a lesser degree by a consequentialist one. A historical overview is therefore given establishing the tradition of moral rights, followed by the two prominent contemporary normative theories justifying rights—Will Theory and Interest Theory.
The deontological approach to the justification of rights most commonly defends the concept of natural rights (also called moral rights). Theories justifying natural rights are descried as ‘status-based’ and include social contract theorists, Kantean ethics and intuitionism. Broadly, these theories maintain that by virtue of certain attributes that human beings possess (and there is disagreement on what these attributes are, but include sentience, free-will and reason), it is fitting and moral that certain rights (again there is disagreement on what these rights are) be bestowed upon them, and furthermore that they be respected. Status based theorists therefore maintain that rights should be respected because it is fitting, reasonable or moral to do so, and that these rights are universal. These rights exist independently of whether they are recognised (and protected by) law or society, though it is the aim of advocates of moral rights that they are universally recognised.
Until relatively recently, rights were viewed in merely judicial terms and not as part of moral theory. In the Platonic era, rights served to structure human relationships and were conferred by the law hierarchically according to ones role or status. Slaves and women therefore enjoyed considerably fewer rights than male citizens in ancient Greece, a state of affairs that would widely be considered to be at odds with a broader modern notion of rights which has come to include the concept of natural rights, that is rights that all human beings posses as reasoning, sentient beings.
William Ockham (fourteenth century) is widely credited as being the first to develop the modern concept of a moral right, that is to refer to rights as the power to conform to right reason according to the law of nature. Following from Ockham, classic natural rights theorists included Grotius, Hobbes and Locke. Their ideas on natural law, self-determination and property rights were hugely influential in shaping the political landscape of the seventeenth and eighteenth centuries, as can be seen, for example, in the British Bill of Rights (1689), the Declaration of the Rights of Man in France (1789) and the US Bill of Rights (1791). Thomas Jefferson in the Declaration of Independence spoke of “certain unalienable rights” (including life, liberty and the pursuit of happiness), and that furthermore these rights are bestowed on humankind by God. Despite the widespread legislation of natural rights at this time, Thomas Paine in Rights of Man (1791) warned that it is not charters or constitutions that confer rights, as they could then be taken away at any time, but that rights are inherent. In the late eighteenth century Kant (1724-1804) developed his own system of justifying natural rights using the categorical imperative and his principle of respect that human beings not simply be treated as means to an end. Whereas many of his predecessors used god, natural law and social contract theories to justify natural rights, Kant used reason and an appeal to universal human dignity.
Breaking with most others in the tradition (most notably Bentham), John Stuart Mill (1806-1873) attempted to defend the concept of moral rights from a utilitarian standpoint. From straight utilitarian position a right should be upheld only when it brings about the greatest amount of utility, that is happiness. Mill, however, argues that society should defend one’s moral rights in order to promote overall utility, (not because of common attributes that all humans posses, as had been previously argued by natural rights theorists). He defends this stance within rule utilitarianism, in which if individual rights produce the greatest good for the greatest number, then as rules they are to be preferred over anything else. Furthermore, Mill (expanding on Kant) maintained the rights are directly connected to perfect duties (duties that must be performed). Mill’s view is not widely held and most agree that utilitarianism is not equipped to accommodate a theory of moral rights, indeed some of the most fierce opposition to moral rights came from utilitarianism. A more accepted form of justifying rights through consequentialism is maintained by contemporary Interest Theory (section 3).
Natural rights theories have had significant impacts on the recognition (as they argue that they have always existed) of the rights of women, children, people of colour, labourers and even animals. Natural rights formed the basis of what are now commonly referred to as human rights. Human rights became widely accepted as part of twentieth century discourse, most notably set out by the United Nations Universal Declaration of Human Rights (1948) and continue be widely held, although questions of the lack of ability to enforce international human rights laws have called into question the usefulness of such laws.
There are many who dismiss natural rights out of hand, most famously Utilitarian Jeremy Bentham (1748-1832) who declared: “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts..” He states further that “Right...is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters..” In other words, for Bentham, rights are necessarily created by law. He is not alone in this argument, there are many that argue that in order for rights to be rights they need necessarily to be socially recognized and furthermore maintained. This is the view maintained by legal positivists and those that advocate the social recognition view. Legal and moral rights however should not be seen as distinct, as many moral rights are incorporated into the legal system, although not all legal rights are moral, and vice versa. Also, those that advocate that rights only exist in the legal sense do not dismiss that one may have moral duties to respect what have been called moral rights, and that indeed many of these should be incorporated into the law, but merely that these should not be referred to as rights until they have. Rights then govern conduct within a legal system and can have little to do with morality.
The nineteenth century political philosopher Karl Marx attacking natural rights from a rather different angle. Marx claimed that the right of liberty is ultimately selfish. Cries of universal equality that rights claim simply mask the great inequalities (of power and economy) that rights in fact protect and promote. Rights are therefore mere tools and justifications of the ‘capitalist machine’.
Whereas the above gives a historic overview of some of the justifications for rights within popular normative theory, the following section will focus on the two currently most prominent arguments justifying rights and their functions, those of ‘Will Theory’ and ‘Interest Theory’. Traditional natural rights theories are no longer subscribed to by most philosophers, although some elements of these early theories are retained, most notably the desire to justify the universality of rights.
Will theorists maintain that rights are justified due to humankind’s capacity for freedom. H.L.A Hart goes as far as to argue that all rights stem from one fundamental right, that is “the equal right of all men to be free” (Hart 1955, 77). Other will theorists have attempted to stipulate other foundations for rights, Alan Gewirth for example argues that human capacity for rationally purposive action justifies the human possession of rights. The common element is that rights are owed to humans due to some common attribute(s), therefore natural rights theorists like Kant can be described as will theorists. Will theory emphasises the power that our ability to make rational choices has, rights function as a power that the right-holder exercises over others, and that related to these powers are certain duties. For will theorists rights and duties are necessarily linked. Furthermore, will theorists maintain that there is no such thing as an unwaivable right, emphasizing the freedom that is associated with rights. According to Ronald Dworkin, rights act as ‘trumps’ and should be preferred over other claims within the political and legal system, thus protecting the rights of minority groups and ensuring equal treatment for all.
One major problem with will theory, as argued by those such as interest theorist Neil MacCormick, is that if rights function as powers, then in theory those that are powerless and incapable of acting in a rational autonomous fashion (children, the mentally challenged) do not have rights, unless these rights are legally protected.
Interest theorists on the other hand maintain that the function of rights is to further and protect human interests, that is the interests of the right holder. These interests are defined as those required to lead a minimally good life (such as freedom to develop and acquire knowledge). The interest theory is thus universal as it is argued that all humans share the same basic needs. Interest Theory can broadly be defined as an instrumental approach to the justification of rights, in that rights are instrumental in securing human well-being. Therefore interest theory includes rights of ways of being treated (as opposed to merely the right to act in a certain way as in will theory). Interest theory has been criticized for its focus on self-interest, as even respecting the rights of others is justified as being done in ones own best interest. Rights then work through the recognition and respect of others, not because of any inherent value they may have or to promote a common good, but because this mutual recognition and respect is needed in order for our own rights to be respected and out own interests thus furthered. For interests theorists then, rights are necessarily socially recognised in order for them to function. Interest theorists include MacCormick and Finnis, while Feinberg has attempted to straddle both, for example he maintains that for rational adults the function of rights is will based, while for ‘incompetents’ it is interest based. Others, such as Rex Martin, have argued that there is no need to choose between functions as most rights serve both functions.
Interest theory has been subject to various criticisms, most notably from those that argue that interests are relative and those that argue against the self-interest of interest theory. While the universal aspect of interest theory is part of its appeal it is also part of its problem. Appeal to human nature in order to establish what is commonly needed to lead a minimally good life has proved problematic. Firstly, interests theorists themselves disagree on what these requirements are. Secondly, others argue that the conditions needed for a minimally good life are relative to culture and society.
The second major criticism of interest theory has already been touched on, that due to the theory’s characteristic focus on self-interest it does not adequately accommodate the interests of others and therefore respecting the rights of others. Furthermore, Marx, although writing before interest theory had been developed as such, attacked the selfish notion of rights that had come out of the eighteenth and nineteenth centuries as aligning rights to individual interests that do not relate to others, are defined without reference to others and have the potential to conflict with others. Interest based rights then, according to Marx, serve to further facilitate huge gaps in wealth and power with no obligation on people to protect or further the interests of others.
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