rights

Legal or moral recognition of choices or interests to which particular weight is attached. Assertions that X has a legal right to Y are tested by whether the law does in fact recognize X's right to Y; assertions of a right in the absence of that legal recognition may be demands that the law be changed to accommodate the asserted right, or be a way of stating the perceived demands of morality. There are two principal theories seeking to explain what it is to have rights and the purpose of ascribing them to individuals. On the first view, a person who possesses a right has a privileged choice: it is recognized, if a legal right, because the law will ensure that it has effect, while if a moral right it identifies a person whose choice should have effect. To the extent that other persons have duties or liabilities as a consequence of the right, it is the right-holder who may choose to release them from those duties or choose not to trigger their liabilities. The point of rights, then, is to make available these sorts of choices, and a system of rights involves some sort of distribution of freedom. On the alternative view, rights give expression to important interests, and it is the purpose of rights to protect a person's significant interests by imposing duties on others. (Whether only persons are capable of having rights is a debated issue, but one affected by whether the capacity for choice or the possession of interests is thought fundamental.) Which choices or interests have the relevant importance or significance still needs to be specified, of course: for some writers the interests are those which would be threatened by utilitarian calculations. One recurrent controversy about rights is just how weighty they should be. Are rights ways of establishing important claims, but claims which are defeasible or alienable? Or are rights vetoes (‘trumps’, according to Dworkin) which cannot be put into a balance? (See also side-constraint.) On the one hand, to respect a property right when the lives of thousands could be saved by overriding it looks fetishistic; on the other, to allow rights to be overruled by considerations of general utility is alleged to neglect the integrity and separateness of persons. In any case, if and when rights conflict we shall have to decide which to uphold, possibly on utilitarian grounds.

Two problems about freedom have parallels in the discussion of rights. The first concerns the distinction between a formal right to X and the substantive capacity to X. For example, A has a legal right to X, in a case where that means ‘A is not to be forbidden to do X’, does not guarantee that the action X is available to A, since its performance may require resources which A lacks. Similarly, with respect to equality, Marx criticized the rights held dear by the bourgeois revolutions of the eighteenth century: to guarantee to all a right of private property (for example) does not by itself give everyone equal amounts of property, or, indeed, any property at all. An equality of rights, in short, is compatible with great inequality in actual conditions. The second parallel with debates about freedom arises from the alleged differences between rights the primary purpose of which is to protect the individual from outside interference, and rights attributed to the individual which impose duties on others to provide the individual with resources. It is suggested that the latter (welfare rights) are unwarranted extensions of the former (claim rights) because of the different sort of duty they require. The alleged differences depend in part on whether we focus on choice/freedom or interests as explanations for the ascription of rights.

The relationships between rights and duties within systems of positive law cannot be assimilated to one model. Wesley Newcomb Hohfeld demonstrated over seventy years ago that ‘rights’ embrace four types of legal relation, and his analysis can also be applied to non-legal usage. Very often, statements about rights draw on more than one of the four relations identified. (1) A right is a liberty: a person has a liberty to X means that he has no obligation not to X. (2) A right is a right ‘strictly speaking’ or a claim right: a person has a right to X means others have a duty to him in respect of X. (3) A right is a power, that is, the capacity to change legal relations (and others are liable to have their position altered). (4) A right is an immunity, that is the absence of the liability to have the legal position altered. The relation between the right-holder and other persons differs in the four cases. The importance of Hohfeld's analysis is not merely that it clarifies rights talk. Understanding how rights operate, characterizing them accurately, is a necessary precondition to decisions about their value. Sceptics have been critical of the importance rights seem to attach to the individual, particularly the acquisitive or egoistic individual: they see rights as the expression of the distance between a person and the community. Supporters have argued that rights are of crucial value in balancing the claims of persons, and that they have a potential to integrate society by providing a framework for action.

— Andrew Reeve

Legal rights exist in virtue of positive law; moral rights are sufficiently independent of it to give a platform from which legal arrangements may be criticized. The basis for analysis is usually a fourfold distinction due to Wesley Hohfeld (1879-1918). A person A has a claim-right to x, and against person B, if B has a duty to refrain from interfering with A having or doing x, or even has a duty to assist A in obtaining x. A has a privilege (or liberty-right) to x, and against B, if B has no claim-right that A not do or obtain x. A has a power-right to x with regard to B, if A may render B liable to some status connected with x (a policeman obtains a power-right to enter my home, when he gets a warrant). A has an immunity-right to x against B, if A is free from B's power-right with regard to x. Questions arising include the relations between these families, and the nature of the ground in virtue of which any of these rights obtain.

Rights are frequently held to ‘trump’ other practical considerations, which requires seeing them as not themselves simply grounded in the interests of the right-holder, but perhaps existing in virtue of more central considerations of the duties we owe to each other. For Kant, the fundamental moral right is to be treated as an end in oneself, and reason alone justifies and grounds this right. The basic lists that have been drawn up of human rights to be respected by any legitimate constitution are surprisingly similar, suggesting a common conception of the conditions necessary for societies that accord human beings their full dignity or respect. This common core may be thought of as ‘natural rights’, although the term only makes good sense in a metaphysical or theological context in which nature is conceived of as capable of creating moral imperatives. Bentham is notorious for having opposed this, claiming that ‘natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts’ (Anarchical Fallacies, Art. ii). Nature, according to Bentham, provides a background against which we may wish that there were such things as rights, but they do not exist until law creates them. However, the term remains firmly at the centre of moral, political, and legal thought, particularly since rights are more attractive possessions than duties.