Although ancient ethics used the concepts of property and justice, each of which presupposes something similar to the concept of a right, the concept of a right in the modern sense developed only later. The first philosopher to define a moral right was most likely William of Ockham (c. 1285–1347), who noted that jus sometimes refers to the power to conform to right reason. Thus, he integrated the legal concept of dominium or property into the moral theory that the law of nature determines right action. Hugo Grotius (1583–1645) adopted the resulting theory of natural rights—rights conferred by the law of nature—and made it the basis for his theory of international law. Hobbes and Locke used their conceptions of natural rights to explain the grounds and limits of political obligation. Hobbes (1588–1679) conceives of a right as a liberty of action that is the absence of any contrary obligation. Because the law of nature requires only that one seek peace, in a state of nature where there is no peace one has a natural right to do anything one desires. He infers that citizens can have a duty to obey the sovereign only if they give up most of their natural rights.
Locke (1632–1704), however, uses his theory of inalienable natural rights to limit the authority of the sovereign over the members of a society. He conceives of natural rights in the traditional way as powers of acting in conformity with the natural law and assumes that the law of nature also imposes obligations upon others not to prevent one from exercising these rights. The Lockean theory of inalienable and imprescriptible natural rights inspired the American Declaration of Independence, the French Declaration of the Rights of Man and the Citizen, and the subsequent development of constitutional law in much of Europe and North America.
Jeremy Bentham (1748–1832) subjected the doctrine of natural rights to severe criticism. The notion that there are natural rights—rights not created by human legislation—is conceptual nonsense because a right of one party implies a corresponding obligation of some second party, and an obligation exists only when commanded by some law enforced with coercive sanctions. Granting the existence of natural rights is morally perverse, for one could appeal to natural rights to justify any arbitrary action because without any law to define their content they would be indeterminate. Finally, the doctrine of inalienable and imprescriptible natural rights is politically dangerous because it would justify anarchy, for the individual's absolute natural right to liberty or the pursuit of happiness could neither be given up by the citizen nor extinguished by coercive legislation. After the 1950s, few moral philosophers adopted a traditional natural rights theory because of skepticism about both the existence of a natural law expressing the will of God or a Cosmic Reason as well as one's ability to know what it might command or forbid by the natural light of reason.
Skeptical as one may be of natural rights, one can hardly doubt the existence of legal rights. A central concern of modern jurisprudence has been to explain the nature of these rights. Although juristic theories are primarily theories about the nature of legal rights, they can be extended to moral rights if one conceives of morality in terms of something like the moral law. John Austin held that a legal right is equivalent to a relative legal duty. Legal duties are imposed upon persons by laws that command some act or forbearance and constitute obligations because they are enforced by sanctions in the event of disobedience. Although some duties, such as the duty to pay one's taxes, are absolute in the sense that they are owed to society in general and not to any assignable individual, a relative duty is owed to one or more determinate second parties. Thus, the creditor's contractual right to be repaid by the debtor is simply the debtor's duty of repayment owed to the creditor viewed from the latter's point of view.
John Salmond (1920) developed the view of Rudolph von Jhering that a legal right is a legally protected interest. The object of any right is the thing—not necessarily a material object—in which the right holder has an interest. Not all of one's interests constitute legal rights, however. Only those protected by the law. For example, the object of one's legal right not to be killed is one's life, probably the most fundamental interest of every individual. This interest is protected by laws that prohibit killing and that punish murderers. Paul Vinogradoff (1928) maintained that there are three elements of any legal right. (1) A legal right must be claimed by some individual or state; (2) this claim must be recognized by organized society as justified from the public point of view; and (3), this declaration of right must be enforced by the legal authorities. Hence, a legal right is a legally protected claim. One's right not to be injured, and, if injured, to sue for damages, illustrates this conception of rights. Jhering and Vinogradoff set the stage for the ongoing contest between interest and will theories of rights. The former hold that the essential function of rights is to protect some interest of the right holder; the latter insist that the function of rights is to give the will of the right holder some privileged legal status.
Karl Llewellyn (1962) defined a right as a future judicial remedy. To say that Jones has a property right to his car is simply to predict how the courts will decide any cases concerning that car. For example, if someone steals the car, a court will hold that the vehicle shall be returned to Jones. Or if someone damages that car and Jones sues for damages, a court will decide in favor of Jones. This theory of rights reflects the rule skepticism of American legal realists. They argued that it is a mistake to identify the law with the general principles or rules written in the law books. What these general statements mean is left open to the interpretation of the courts and may or may not be applied in practice depending upon how judges choose to decide particular cases. Hence, what the law really is consists of the decisions made by the courts.
Scandinavian legal realists are not rule skeptics. In fact, Alf Ross (1957) identified a legal right with a set of legal rules such that any one of a number of facts legally implies all of a variety of legal consequences. For example, if someone has purchased a thing or if someone has inherited a thing or if someone has earned a thing, then if another person steals that thing it shall be returned to the person who purchased or inherited or earned it, and if a second party damages that thing the second party shall compensate the person who purchased or inherited or earned that thing, and so on. What the legal right to ownership really amounts to is simply the preceding set of legal rules. Thus, the language of rights is a convenient technique of summing up a complex set of connections in the law. If legal rights seem to be some mysterious sort of ideal entities, this is merely because the language of rights has an emotive meaning that seems to give rights a magical power. This theory of rights reflects the concern of Scandinavian legal realists to reject the metaphysical idealism prevalent in continental legal philosophy.
Wesley Newcomb Hohfeld (1919) examined the writings of judges and jurists and concluded that they use "a right" indiscriminately to express any of four very different fundamental legal conceptions. This ambiguity suggests invalid legal reasoning because claims, liberties, powers, and immunities are different legal relations. A legal claim of X against Y is logically correlative with a corresponding legal duty of Y to X. For example, X's legal right not to be struck by Y is the logical correlative of Y's legal duty not to strike X. A legal liberty or privilege of X in the face of Y is simply the absence of any corresponding duty of X to Y. Thus to say that X has a legal liberty to phone Y after midnight is to deny that X has a legal duty not to phone Y after midnight. A legal power of X over Y is the ability to change some legal position of Y by some voluntary action of X. For example, X's power to give Y a book is X's ability to confer ownership of that book upon Y by handing it to Y and saying "I hereby give this book to you." A legal immunity of X against Y regarding some legal consequence C is Y's lack of legal power over X regarding C. Thus, X has a legal immunity against Y that Y not extinguish X's ownership of a book by Y's act of saying "I hereby take ownership of the book away from X." Hohfeld argued that in the strict sense, only legal claims are rights because an essential feature of the concept of a right is that rights and duties are logically correlative. Every right implies a duty with a corresponding content, and every duty implies a corresponding right. He admitted that lawyers often speak of multiple sets of claims as a legal right, but insisted that clarity and precision require conceiving of a legal right as a single legal claim of one individual against one second party.
Joel Feinberg (1980) agreed with Hohfeld that rights are claims, but denied that rights and duties are logically correlative. Although every right implies some duty, not every duty implies any corresponding right. For example, one's legal duty to obey the orders of a police officer is imposed by the impersonal law and not owed to the officer. Similarly one's moral duty to sacrifice some of one's wealth to assist those in need does not imply any right of this or that needy individual to one's charity. Even when a right does imply some corresponding duty, it is a mistake to reduce the right to that duty. What is distinctive and most valuable about rights is that they put one in a position to claim and to demand—and not merely request or beg—performance of the duty owed to one. What confers this status of claimant upon the right holder is some set of rules—legal rules in the case of legal rights and moral principles for moral rights. Hence, a right is a valid claim, a claim justified by some appropriate set of rules.
H. J. McCloskey (1959, 1979) denied that rights are claims against and argued that they are entitlements to do, have, enjoy, or have done. Having purchased a car and obtained a driving license, one has a legal right to drive one's car. This is a right to do something—to drive on public thoroughfares; it is not primarily a claim against policemen and magistrates not to interfere. One possesses and exercises rights; one makes claims but does not possess or exercise them. Although one's moral right to life gives rise to duties of others not to kill one, it is primarily a right to live and preserve one's life. A hermit's right to life is the hermit's right to do whatever is necessary to sustain the hermit's life—including killing and eating animals—although there is no one else on or near the isolated island against whom the hermit could possibly claim the right to do so. Admittedly, the creditor's right to be repaid does hold against the debtor, but this is a special sort of right and not typical of rights in general.
H. L. A. Hart (1982) agreed with Hohfeld that "a legal right" is used to refer to four very different legal relations, but did not conclude that this makes the expression ambiguous. He explained what liberty-rights, claim-rights, power-rights, and immunity-rights have in common. They all consist of one or more bilateral liberties protected by a perimeter of duties. For example, at the center of one's liberty-right to look over one's garden fence at one's neighbor is one's legal liberty either to look over one's fence at one's neighbor or not to do so. This right does not impose upon one's neighbor any logically correlative legal duty to allow herself to be looked at; she is legally permitted to erect a higher fence or hide behind a screen. Still, this bilateral liberty is protected by a number of duties against interference. One's neighbor has legal duties not to climb over one's fence and assault one or to blind one with a chemical spray. What distinguishes one species of rights from another is the kind of bilateral liberties at their center. Thus, central to one's power-right to contract is one's liberty either to exercise one's legal power to accept an offer or to refrain from accepting it. And central to the creditor's claim-right to be repaid are the liberties to cancel or refuse to cancel the debt and, in the event of nonpayment, to sue or refrain from suing for payment. Thus, a legal right is an individual choice respected by the law. Presumably Hart thought of a moral right as an individual choice respected by the rules of morality. His view that moral rights concern the proper distribution of freedom strongly suggests some such theory.
Hart's respected choice theory of rights is a will theory of rights, but it is a mistake to assume that all will theories are option theories. Feinberg's claim theory of rights is also a will theory because he argues that to have a right is to be in a position to make a claim, to demand performance of some corresponding duty. Yet, his theory does not place any bilateral liberty at the center of every right. He even recognizes mandatory legal rights, such as the right to vote in Australia—where voting is a legal duty—so that one does not have any legal liberty to refrain from voting. As one would expect, Hart argued against interest theories of rights. For one thing, to hold that a right consists in an interest protected by a duty reduces rights to duties that benefit some second party. This renders the concept of a right redundant, for one can say everything one needs to say in the language of beneficial duties. But what is distinctive of rights correlative with duties are powers such as the right holder's power to cancel or enforce performance of that duty. Also, when a right benefits some third party, the right holder is not the party whose interest is protected by the law. Thus, when a parent purchases life insurance and names a child as beneficiary, it is the child's interest that is protected by the insurance company's legal duty to pay, but the right holder is the parent rather than the child.
Carl Wellman (1985, 1995) agreed with Hart that what is distinctive and important about rights is the way in which they allocate freedom and control upon the right holder. He defined a right as a complex of Hohfeldian positions that, if respected, confer dominion over some defining core upon the right holder in the face of one or more second parties. For example, at the core of the creditor's legal right to repayment is the creditor's legal claim against the debtor that the debtor repay the contracted amount at or before the due date. But Hohfeld was mistaken in identifying this legal right with a single legal claim. The creditor's claim would not hold against the debtor unless the right holder also had a legal immunity against the debtor's extinguishing the claim merely by saying "I hereby cancel my debt to you." And it also includes additional associated legal positions, such as the power to sue for repayment in the face of a recalcitrant debtor, the power to cancel the debt if one so chooses, and the legal liberties of exercising these powers. Although this is a modified version of Hart's will theory of rights, Wellman did not put a legal liberty—much less a liberty to choose—at the core of every right. The defining core of a legal right can be a legal claim, power, immunity, or even a liability. He also extended his dominion theory of rights to moral rights by arguing that there are moral liberties, claims, powers and immunities analogous to the legal relations Hohfeld identified.
Joseph Raz (1986) defined rights by their role in practical reasoning rather than in terms of Hohfeld's fundamental legal conceptions. It is a mistake to identify rights with interests, even protected interests, because rights serve as intermediate reasons linking interests to duties. At the same time, a right cannot be reduced to some correlative duty because a right is logically prior to any duty, and a single right can imply more than one duty or various duties under varying circumstances. To say that someone has a right is to say that—other things being equal—an aspect of an individual's well-being (one of that individual's interests) is a sufficient reason for holding some other person or persons to be under a duty. However, what makes one's interest of sufficient importance to ground duties need not be merely the value of that interest to oneself. For example, Abel's right to free speech is based on Abel's interest in speaking freely together with the public interest in allowing citizens to speak their minds without unjustified restrictions. Thus, rights are interest-based reasons for duties. This is an interest theory of rights, but more complex than the traditional protected interest theories of Jhering and Salmond.
Rex Martin (1993) rejected Feinberg's view that rights are valid claims. For one thing, not every right implies some corresponding duty as claim-rights do. The logical correlative of the constitutional right to free speech is a disability of Congress to enact statutes limiting speech. More importantly, moral or legal justification is not sufficient to establish a claim as a right. A slave's claim to freedom, no matter how thoroughly justified by moral principles, would be infirm as a right in any society where others could disregard it with impunity. Even if the slave's claim to freedom were justified by the legal rules of that society, it would be merely a nominal right if public officials, including judges, failed or refused to act in accordance with these rules. Real rights—moral rights as well as legal rights—presuppose the social practices of recognition and maintenance. Thus, rights are established ways of acting or being treated—for example, the civil right to the free exercise of one's religion or the moral right to be rescued from imminent danger. Because rights must be established by social practices, no right can exist independently of the institutions of a society. Thus, human rights are best understood as morally justified civil rights.
Judith Jarvis Thomson (1990) doubted that one can base a theory of rights on a definition of "a right" or general description of the nature of rights. Therefore, she used a conceptual analysis different from those previously described. She suggested that to attribute a right might be to talk about permissible and impermissible actions, but in a way which groups them to bring whole clusters of cases to bear on each other. Hence, to learn what the moral or legal significance of having some right is, one must discover the moral or legal consequences for the right holder and others of that right. For example, Jill has a moral right that Jack not break her nose. This implies—other things being equal—at least that Jack ought not to break Jill's nose, that it is morally permissible for Jill to defend herself against any attempt by Jack to break her nose, and that if Jack does break Jill's nose he ought to pay her medical expenses. Thus, Thomson analyzed rights in terms of what the right holder and others may or ought to do. This is an analysis resting upon the judgments of particular cases, not one derived from general principles.
A conceptual analysis of rights usually implies something about the necessary conditions for the possession of any right. Thus, Hart's respected choice conception of rights implies that it is idle and misleading to ascribe rights to young children who have not yet developed the ability to choose. Neil MacCormick (1982) suggested that children's rights are a test case for any theory of rights. He thought it clear that these children do have moral rights, including the rights to be nurtured, cared for, and if possible, loved. Because will theories cannot explain these rights, they must be rejected. In their place, he proposed a protected interest theory of rights. Because even neonates do have interests, this theory can explain how it is possible for them to be right holders.
Feinberg's theory also seems to imply that very young children could not be right holders. He maintained that to have a right is to be in a position to make a claim, to demand something as one's due. Infants seem incapable of claiming in this performative sense. But Feinberg believed that clearly even wee babies do make claims, not in their own persons but through parents or guardians who act as their representatives. These representatives are claiming on their behalf, acting in their interests. Because children do have interests from the day they are born, they are capable of being represented and, therefore, are possible holders of legal and moral rights. Thus, Feinberg combined a will theory of the nature of rights with an interest theory of possible right holders.
Feinberg extended his theory of possible right holders to the more controversial debate about animal rights. Because many non-human animals do have interests in food, shelter, and freedom from pain, human beings can represent them and make claims on their behalf. Hence, animals are also possible possessors of rights. R. G. Frey (1980) challenged the assumption that animals can have interests in the relevant sense. One can take an interest in something only if one can desire or want that thing, and this requires that one believe something about that thing. But because animals lack any language adequate for believing, they cannot possibly have the desires or wants presupposed by the interest theory of possible right holders.
H. J. McCloskey denied that it is the capacity to have interests that makes one a possible right holder because one may, on moral grounds, choose to exercise one's rights contrary to one's interests. The notion of exercising—acting on the basis of—one's rights is central to the concept of a right. And to exercise or refrain from exercising some moral right requires that one make a moral choice. Hence, it is the capacity for moral autonomy, for self-direction, and self-determination, that is required for the possession of rights. Because animals lack this capacity, they are not possible right holders. Robert Elliot (1987) agreed that the capacity to exercise one's rights is necessary for the possession of rights, yet denied that this requires full moral autonomy—the ability to consider moral reasons and choose on those grounds. A human being could exercise one's moral right to self-defense simply by unreflectively defending oneself against an attacker. An animal could do the same. Hence, animals are capable of acting in a sense robust enough to enable them to possess rights.
Tom Regan (1983) accepted the Kantian view that human beings have moral rights because of their inherent value, but argued that it is arbitrary to restrict inherent value to moral agents. It is being the subject-of-a-life—having a life that goes better or worse for one—that confers inherent and not merely instrumental value upon one. Because at least the higher animals are also subjects-of-a-life, they are also moral right holders.
Are human fetuses capable of possessing human rights, including the right to life? Mary Anne Warren (1973) granted that unborn children are human in the genetic sense of being members of the same biological species as adult human beings, but denied that this is relevant to whether they are members of the moral community of right holders. It is because normal adult human beings are persons that they possess moral rights. The traits that are central to personhood are consciousness, rationality, self-motivated action, the capacity to communicate, and self-awareness. Although it may be uncertain how many of these and in what degree are required for personhood, it is clear that fetuses possess few of these traits in any significant degree. Therefore, a human fetus cannot possess any significant right to life.
Advocates of the right to life often argue that the human fetus has the capacity to develop into an adult person; this potentiality gives it the moral right to life. The standard reply to this argument is that the potentiality to become a person implies only the capacity to acquire rights in the future, not the capacity to possess them before birth. However, Francis C. Wade (1975) argued that if a kernel of seed corn has the capacity to grow into a stalk of corn, this must be because of something in the present nature of that kernel, an active tendency to grow. Similarly, the human fetus's potentiality of full humanity in the morally relevant sense is an active tendency to develop personhood already existing in the fetus. This explains how fetuses can now possess moral rights, including the human right to life.
Although Bentham (1962) rejected the existence of moral rights independent of the law, John Stuart Mill (1969) defended their existence partly as moral grounds for judging that some law is unjust. A duty is a kind of action that a person may rightfully be compelled to perform and that one may be punished for not performing. Legal duties ought to be enforced with legal sanctions; moral duties are obligations one should be compelled to perform by public opinion or the internal sanction of one's conscience. A moral right is the logical correlative of a relative moral duty, a duty owed to the right holder because that is the one who would be harmed by its nonperformance. Why ought society to defend one in the possession of one's moral rights? Mill's answer is that this will promote the general utility—the greatest well-being—of all the members of the society.
Ronald Dworkin (1977) argued that no utilitarian theory of rights can take moral rights seriously. Sometimes to say that someone has a right to do something is to say merely that to do so would not be to act wrongly, but to say that someone has a right in the strong sense is to assert that it would be wrong to prevent one from so acting. Thus, one may say that Jones has a moral right to spend his money gambling, although he ought to spend it in a more worthwhile way. The moral rights of the citizen against the state—such as the rights to free speech or to freedom from unreasonable searches—are worth taking seriously only if they are rights in the strong sense. If they were grounded on utility, the government would be justified in infringing them whenever it would be useful to do so. But this would undermine their moral purpose: to give the individual special protection against political interference. Therefore, a theory can take moral rights seriously only if it grounds them either on the human dignity of the individual person or on the ideal of political equality. Thus, the most fundamental moral right must be the right to equal concern and respect.
David Lyons (1994) responded that a utilitarian can take moral rights seriously. Dworkin failed to notice Mill's distinction between expediency and morality. An expedient act—one that has the best consequences—can be morally wrong because it violates a moral obligation. What makes an act a moral obligation is not its utility, but that society would be justified in imposing sanctions—either the disapproval of others or of one's own conscience—upon agents who fail or refuse to act. And enforcing moral obligations is justified by its social utility. For someone to have a moral right to something is for others to have a corresponding moral obligation at least not to injure and perhaps to promote the right holder's interest in that thing. This sort of indirect grounding of moral rights on the utility of the enforcement of the correlative duties does not imply that a right may permissibly be violated whenever it would be expedient to do so.
L. W. Sumner (1987) agreed with Bentham that there are no natural rights, but did not infer that there are no moral rights. Although he rejected Hart's will theory of rights and held that the function of rights is to protect some interest of the right holder, he adopted Hart's view that rights presuppose social practice rules. Legal rules are made and upheld by the officials in some legal system; the rules of the moral code of a society are constituted by the practices of its members. But not every conventional right has moral force. A moral right is a morally justified conventional right, either an existing conventional right that it would be morally justified to retain or one that it would be justified to introduce into the conventional morality. And what justifies moral rights is the valuable consequences of maintaining the social practice rules that confer them upon moral agents. Although moral rights are grounded upon their contribution to human welfare, they can be taken seriously because the rules that confer them often constrain the direct pursuit of social utility.
Jeffrie G. Murphy (1977) argued that there are two very different kinds of moral rights. Autonomy rights mark out the special kind of treatment required to respect the dignity of autonomous rational persons. As Kant recognized, persons are ends—and not means only—and ought not to be sacrificed or used without their consent as instruments or resources for achieving the ends of others. Autonomy rights are grounded on the inherent moral value of autonomous rational agents. But Mill recognized a different function of moral rights: to pick out those moral claims that ought to be protected by society, especially by the law. However, Murphy rejected Mill's utilitarian justification of moral rights and argued that they are grounded on a hypothetical social contract of the sort described by John Rawls (1971). Thus, an individual has a social contract right to X only if a law guaranteeing X to the individual would be unanimously chosen by rational agents who are not aware of what their special circumstances would be in their society.
Although jurists usually identify human rights with the universal human rights recognized in international law, philosophers tend to view human rights as fundamental moral rights one possesses by virtue of being human. It is this latter sort of view that is most relevant here. Gregory Vlastos (1962) defined a just act as one prescribed exclusively by regard for the rights of all those it affects substantially. Although it is often just to distribute goods unequally according to the merit of the recipients, equalitarian justice respects the equal human rights of everyone affected. Human rights are necessarily equal because they are grounded on the equal human worth of all persons, however different their individual merits. And what gives all human beings equal worth is the equal intrinsic value of their well-being and freedom. Hence, there are two classes of human rights: rights to goods required for human well-being and rights to fundamental human freedoms.
Alan Gewirth (1982) also grounded human rights upon freedom and well-being, but by a different argument. Human rights are primarily moral claim-rights of individual human beings that entail correlative moral duties of other individuals and organizations. All human beings are actual or potential agents, and human action consists in the voluntary pursuit of goals one values. Anyone who engages in action must presuppose that one has a right to the necessary conditions of prospective purposive action. And one cannot claim this and without self-contradiction deny that all other agents have the same rights. The two necessary conditions of human action are freedom and well-being. Hence, the various human rights to basic freedoms and goods are implied by the necessary presuppositions of human action.
James Griffin (2001) argued that the best account of human rights is one that preserves—but goes beyond the insights of—the traditional natural rights theories. It conceives of human rights as protections of personhood. Personhood should be understood in terms of the various strands of agency. These are autonomy (or making one's own decisions), forming a conception of the good life and being able to pursue it, and freedom from interference from others. Hence, there are three classes of human rights: autonomy rights, welfare rights, and liberty rights. The abstract human rights grounded on personhood are made more determinate by practicalities that spell out what is necessary, given the circumstances, to protect personhood. Thus, there are two grounds of human rights: personhood and practicalities.
Contemporary human rights documents reaffirm the traditional civil and political rights, such as the rights to life, free speech, and a fair trial. Yet they also assert social and economic rights, such as the rights to work, social security, and an adequate standard of living. Maurice Cranston (1967) argued that these supposed welfare rights are not genuine human rights. If they were universal human rights, they would impose upon every society the duties to provide employment, old-age pensions, and all necessary food and medical care for all their citizens. But many societies lack the resources to provide such welfare benefits to all, and there can be no moral duty to do the impossible. Hence, there can be no human rights that would imply such duties. Civil and political rights, however, require only the appropriate legislation. James W. Nickel (1987) replied that civil and political rights also face the problem of scarce resources. No society can afford a police force adequate to secure the right to life of every citizen and the right to a fair trial can be real only where there is an expensive system of courts and adequate legal assistance for all. Moreover, there are ways to realize human welfare rights in societies with varying levels of affluence. A society can introduce programs to achieve progressively full employment or adequate medical care, prune a welfare right to achieve what is most important in it, or if necessary sacrifice more costly human rights in order to secure those that are affordable.
Cranston also insisted that a human right is something of which no one may be deprived without a grave affront to justice, but that it is not a grave injustice for human beings to lack old-age pensions or the medical care they need. Hence, social security and an adequate standard of living may be moral ideals, but they are not genuine human rights. Robert Nozick (1974) went even further and argued that there can be no basic welfare rights because their implementation would violate justice. Welfare rights would require programs such as Aid to Families with Dependent Children and Medicaid. But to fund these or similar programs, the state would have to tax the affluent and redistribute their wealth to the poor. This would be unjust because it would violate the human right to property of those whose wealth is taken from them without their consent. Nozick bases his argument on his entitlement theory of justice. John Rawls (1971), however, advanced a different theory of justice. According to Rawls, the morally justified principles of social justice are those that rational persons would unanimously choose were they in an original position of equality and unaware of their particular circumstances. He argued that one of these principles is that social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all. This would require some redistribution of wealth to overcome great economic inequalities in a society.
Nozick also proposed a concept of rights that seems to exclude rights to welfare benefits. A moral right is a side-constraint on the pursuit of individual or social goals. For example, the right to property makes it morally wrong for one person to become wealthy by stealing from anyone who owns something one desires, and the right to liberty implies that it would be morally wrong for the state to suppress opposition by imprisoning its critics. Moral rights reflect the Kantian idea that individuals are inviolable because they are ends in themselves and ought not to be used to achieve the goals of others. On this view, moral rights are negative; they constrain the actions of others by imposing only negative duties not to mistreat right holders in morally impermissible ways such as injuring them or interfering with their freedom of action. But any imagined welfare right would impose positive duties to provide welfare benefits such as old-age pensions or payments for medical care to individual right holders. There can be no human rights of this sort if fundamental moral rights are side-constraints that impose only negative duties.
Henry Shue (1980) rejected the view that the traditional civil and political rights are purely negative and that social and economic rights are positive. Every basic moral right imposes three sets of duties: duties to forbear from depriving right holders of the substance of their right, duties to protect right holders against the deprivation of the substance of their right, and duties to aid right holders in obtaining or regaining the substance of any right of which they have been deprived. For example, the basic right to liberty implies that the state has the duties not to imprison innocent persons, to protect individual persons from being kidnapped, and to aid anyone who has been unjustly imprisoned or kidnapped to obtain her release. Because some of these duties are negative and others positive, it is a mistake to argue that there cannot be any welfare rights, such as the right to subsistence benefits, simply because this would impose positive duties to aid those who lack the means of subsistence. As one would expect, the philosophy of rights remains as controversial today as it has been during the past few centuries.
See also Social and Political Philosophy.
Austin, John. Lectures on Jurisprudence, or the Philosophy of Positive Law. 5th edition, edited by Robert Campbell. London: John Murray, 1885.
Bentham, Jeremy, Anarchical Fallacies. In Works of Jeremy Bentham. vol. 2, edited by John Bowring. New York: Russell & Russell, 1962.
Cranston, Maurice. "Human Rights, Real and Supposed." In Political Theory and the Rights of Man, edited by D. D. Raphael. Bloomington, IN: Indiana University Press, 1967.
Dworkin, Ronald. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977.
Elliot, Robert. "Moral Autonomy, Self-Determination and Animal Rights." The Monist 70 (1) (1987): 83–97.
Feinberg, Joel. Rights, Justice, and the Bounds of Liberty. Princeton, NJ: Princeton University Press, 1980.
Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press, 1980.
Frey, R. G. Interests and Rights. Oxford: Clarendon Press, 1980.
Gewirth, Alan. Human Rights. Chicago: University of Chicago Press, 1982.
Glendon, Mary Ann. Rights Talk. New York: Free Press, 1991.
Griffin, James. "First Steps in an Account of Human Rights." European Journal of Philosophy 9 (3) (2001): 306–327.
Grotius, Hugo. The Rights of War and Peace. Translated by A. C. Campbell. New York: M. W. Dunne, 1901.
Hart, H. L. A. Essays on Bentham. Oxford: Clarendon Press, 1982.
Hobbes, Thomas. Leviathan, edited by C. B. Macpherson. Hammondsworth, U.K.: Penguin, 1968.
Hohfeld, Wesley Newcomb. Fundamental Legal Conceptions. New Haven, CT: Yale University Press, 1919.
Jhering, Rudolph von. Geist des römischen Rechts. Leipzig, Germany: Breitkopf und Hartel, 1877.
Llewellyn, Karl. Jurisprudence. Chicago: University of Chicago Press, 1962.
Locke, John. Two Treatises of Government, edited by Peter Laslett. London: Cambridge University Press, 1967.
Lomasky, Loren E. Persons, Rights, and the Moral Community. New York: Oxford University Press, 1987.
Lyons, David. Rights, Welfare, and Mill's Moral Theory. New York: Oxford University Press, 1994.
MacCormick, Neil. Legal Rights and Social Democracy. Oxford: Clarendon Press, 1982.
Martin, Rex. A System of Rights. Oxford: Clarendon Press, 1993.
McCloskey, H. J. "Moral Rights and Animals." Inquiry 22 (1–2) (1979): 23–54.
McCloskey, H. J. "Rights." Philosophical Quarterly 15 (2) (1959): 115–127.
Melden, A. I. Rights and Persons. Oxford: Basil Blackwell, 1977.
Mill, John Stuart. Utilitarianism. In Collected Works of John Stuart Mill, vol 10, edited by J. M. Robson. Toronto: University of Toronto Press, 1969.
Murphy, Jeffrie G. "Rights and Borderline Cases." Arizona Law Review 19 (1) (1977): 228–241.
Nickel, James W. Making Sense of Human Rights. Berkeley, CA: University of California Press, 1987.
Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974.
Ockham, William of. Opus nonaginta Dierum. In Opera politica, vol. 2, edited by R. F. Bennett. Manchester, U.K.: Manchester University Press, 1963.
Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971.
Raz, Joseph. The Morality of Freedom. Oxford: Clarendon Press, 1986.
Regan, Tom. The Case for Animal Rights. Berkeley, CA: University of California Press, 1983.
Ross, Alf. "Tû-Tû." Scandinavian Studies in Law 1 (1957): 139–153.
Salmond, John William. Jurisprudence, 6th edition. London: Sweet and Maxwell, 1920.
Shue, Henry. Basic Rights. Princeton, NJ: Princeton University Press, 1980.
Sistare, Christine, Larry May, and Leslie Francis, eds. Groups and Group Rights. Lawrence, KS: University Press of Kansas, 2001.
Steiner, Hillel. An Essay on Rights. Oxford: Blackwell, 1994.
Sterba, James P. "The Welfare Rights of Distant People and Future Generations: Moral Side-Constraints on Social Policy." Social Theory and Practice 7 (1) (1981): 99–119.
Sumner, L. W. The Moral Foundation of Rights. Oxford: Clarendon Press, 1987.
Thomson, Judith Jarvis. The Realm of Rights. Cambridge, MA: Harvard University Press, 1990.
Tuck, Richard. Natural Rights Theories. Cambridge, U.K.: Cambridge University Press, 1979.
Vinogradoff, Paul. Jurisprudence. In Collected Papers of Paul Vinogradoff, vol 2. Oxford: Clarendon Press, 1928.
Vlastos, Gregory. "Justice and Equality." In Social Justice, edited by Richard B. Brandt. Englewood Cliffs, NJ: Prentice-Hall, 1962.
Wade, Francis C. "Potentiality in the Abortion Discussion." Review of Metaphysics 29 (2) (1975): 239–255.
Waldron, Jeremy. Liberal Rights. Cambridge, U.K.: Cambridge University Press, 1993.
Warren, Mary Anne. "On the Moral and Legal Status of Abortion." The Monist 57 (1) (1973): 43–61.
Wellman, Carl. Real Rights. New York: Oxford University Press, 1995.
Wellman, Carl, ed. Rights and Duties, 6 vols. New York: Routledge, 2002.
Wellman, Carl. A Theory of Rights. Totowa, NJ: Rowman and Allenheld, 1985.
Carl Wellman (2005)
In the wake of international concern over the Holocaust, on December 10th 1948 the General Assembly of the United Nations proclaimed a Universal Declaration of Human Rights, which included the right to ‘life, liberty and security of person’, ‘recognition everywhere as a person before the law’, ‘freedom of movement’, ‘a nationality’, ‘freedom of thought, conscience and religion’, ‘freedom of peaceful assembly and association’, and ‘freedom to take part in government’.
In sociology, rights are usually seen to develop out of specific communities: they are social inventions that play an important—and contested—role in political life. For instance, in abortion politics in the United States, one side claims the ‘right to life’ whilst the other claims the ‘right to choose’. The concept of citizenship evokes notions of rights—as well as those of obligations (see B. S. Turner , Citizenship and Capitalism, 1986
). There is also an extensive literature on property rights (see, for example, S. R. Munzer , A Theory of Property Rights, 1990
). For a general introduction see Michael Freeden , Rights (1991)
. See also CIVIL RIGHTS; COLLECTIVISM; LIBERALISM.
See also right2.
RIGHTS. SeeHuman Rights ; Natural Rights .