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Rights Theory

RIGHTS THEORY

Rights are generally defined as justified claims for the protection of general interests. In this sense, human beings have been described as having rights to property, "to life, liberty, and the pursuit happiness" (United States Declaration of Independence, 1776), as "free and equal in rights" (Declaration of the Rights of Man and Citizen, 1789), and as having rights "to share in scientific advancement and its benefits" (Universal Declaration of Human Rights, 1948). More recently civil rights or liberties to freedom of speech and assembly have been complemented by proposals for social, economic, and welfare rights to minimum levels of shelter, food, and medical care. What was initially a quite limited relation of rights to science and technology, insofar as their advancement rested on the protection of intellectual property rights, has become increasingly a question of consumer rights to certain levels of material benefit and safety related especially to technology. The assessment of such diverse claims nevertheless requires appreciation of the broader philosophical discussion of rights and various analytic distinctions introduced to clarify numerous complications.

Fundamental Distinctions

As initial observations have already indicated, the notion of rights has become deeply embedded in modern societies, but it has critics precisely because of its origin in particular socio-cultural contexts and because of its relationship to individualism. "Rights express the idea that respect for a given interest is to be understood from the point of view of the individual whose interest it is" (Waldron 1993, p. 576). While this statement arguably overlooks the fact that it is not only individuals but also groups that may be held to have rights, as seen in debates about rights of particular minorities, it soon becomes clear that this does not avoid questions of individual rights: Some of the most difficult issues with group rights concern relationships of the individual to the group.

The classic and most systematic attempt to delineate different kinds of rights was that of Wesley Hohfeld (1919), who identified a number of distinct categories. Some of the ways in which the term rights would be used, he argued, would be more accurately captured by the term privileges. These are to be contrasted with rights "in a strict sense," which Hohfeld categorized as claim-rights.

If a person X has a claim-right, in Hohfeld's sense, there must be at least one person who has a duty to X with regard to that claim. This is the thesis of correlativity of rights and duties: A claim can normally be met only through the efforts, or at least the non-interference, of others. This thesis has come to be regarded as definitive of rights.

To say that X has a privilege, however, has no such implication. A privilege is a liberty to do something, which may be either of a general or a special kind. In the general sense a privilege to act in a certain way is simply the absence of a duty to avoid doing it. No one is in a position to make a counter-claim against the person. In the special sense, however, a privilege is a liberty that is exceptional, that is, it is not enjoyed by other persons—for example, informed consent on the part of patients allows health care professionals certain liberties to do things to them which may be invasive, which would not be permissible in other circumstances. Hohfeld also distinguished claim-rights from other terms such as powers and immunities.

Questioning Correlativity

The thesis of the correlativity of rights and duties is problematic. First, different aspects of correlativity have been distinguished: the moral and the logical (Feinberg 1973). The moral correlativity thesis states that in order to have rights individuals must have and accept duties themselves. This is controversial because it would rule out the rights of persons with mental incapacity. Some would argue that all human beings have rights, pre- as well as postnatally, even if it is not possible to hold them to be subject to duties.

The logical correlativity thesis is concerned with what X's rights imply for others' duties. In terms of Hohfeld's claim-rights, which are defined in terms of the duties they imply for others, then questions arise about what those duties are, for where rights do imply duties, these may be of different kinds. For example, if X has a right to something, while it may not be the case that there is any person Y in particular who has a duty to do anything to help X to get that something, it may yet be appropriate to say that everyone has a duty not to prevent X from getting it.


More generally, however, the question has to be asked whether the correlativity thesis is true of all rights. The term rights has certain uses in political discourse, which go beyond claim-rights. This is described as the rhetorical or "manifesto" use. Thus Onora O'Neill writes: "A 'right to food' could be satisfied by earning enough money to buy food, by having enough land to grow it or by having friends and family with obligations to provide it; in each case there would be an entitlement to food ... But without one or other determinate institutional structure, these supposed economic rights amount to rhetoric rather than entitlement" (O'Neill 2000, p. 125). Such "rights" arguably do not imply duties on the part of anyone in particular.

Furthermore, even where rights imply duties, it does not appear to be the case that the converse applies: That where there are duties there are always corresponding rights. If one accepts that X has a right to the fulfilment of a promise, there must be someone who has a duty to fulfil it, and if Y has a duty to fulfil a promise, there must presumably be someone who has a right to have that duty fulfilled. Promising involves correlativity of this kind. Other duties, however, such as those involved in scientific inquiry, for example, are not of this type. Duties to pursue truth, avoid fraud, and publish results are arguably not best explained in terms of other people's rights, but arise from the nature and purpose of the activity itself.

Claim Elements

If one accepts that in addition to claim-rights in the strict sense there are also wider uses of the term, it is still possible nevertheless to regard rights as including a claim element. In order for a claim to be a right, however, it must be justified. The two elements, a claim and a justification, are common to both Hohfeldian claim-rights and manifesto rights. Different moral theories will attempt to justify rights in different ways, however, and it is the type of justification to which appeal is made that categorizes a right as of one sort or another. In the case of a claim-right to the fulfilment of a promise, that the promise was made, and thus a duty incurred, will form part of the justification. In the case of a manifesto right, however, the justification could be in terms of moral judgments about what should be the case, and may be based more on moral ideals of principles of justice than on duties.

There are at least two further distinctions it is important to consider in thinking about the claim element of a right: the contrast between negative and positive and the importance of rights of voice and rights of exit. The distinction between negative and positive rights depends on what they imply for others—either non-interference or positive action, respectively. The right to freedom of scientific inquiry, for example, might be construed negatively as a freedom right not to be prevented from pursuing a particular line of research. At the same time, it might be argued that freedom of scientific inquiry is meaningless unless research is funded, which might imply positive action on the part of others such as governments and research councils.

Claim-rights may change their content over time from negative to positive, depending on the social context. Thus at one time the right to reproduce was construed as a negative right to be free from interference: the right to choose whether or not to reproduce. Over time, however, it has been argued to include not only the right to decide on the number and spacing of one's children, but also, by some, the type of children one has. This has led to arguments about the extent of the different duties for others, including the provision of contraception advice, assisted reproduction where necessary, and sex selection. Again, X's right to life implies a duty on everyone not to kill X, but might also require, in a certain circumstance, that a bystander who has the ability to save X from drowning has a duty to do so.

The distinction between rights of voice and rights of exit (see Hirschman 1970) is particularly prominent in discussions of group rights. Rights of exit include the right not to participate—that is, the right to choose not to accept traditional practices of the group, such as practicing a certain religion. There is a view that the individual's right to exit from a group is essential if groups are to claim rights. A formal right of exit, however, may be insufficient to protect some oppressed group members, such as in the case of women traumatized by domestic violence. Rights of voice, as the name implies, involve the ability to participate in decision-making and to express one's preferences in, for example, political decision-making. The relationship between the two is complex: Arguably individuals should not need to exit if they have a right to exercise their voice within the group so that things can be changed from within.

The debate about rights of voice and rights of exit demonstrates the close association of rights talk with liberalism. Historically rights emerged in the context of liberalism, being concerned with essential freedoms and limiting government power, but there is an issue concerning the extent to which they should be limited to freedoms to do certain things, such as freedom of speech and movement, or whether they also embrace freedoms from such conditions as poverty. The distinction between negative and positive rights, describable as a distinction between freedom rights (liberal, freedom to rights) and rights of recipience or welfare rights, reflects underlying differences in political philosophy and justification.

Natural Rights

In moral and political argument, rights are used sometimes as starting points, sometimes as conclusions. A prominent example of the use of rights as starting points is to be found in Robert Nozick's Anarchy, State and Utopia (1974), the first sentence of which states: "Individuals have rights, and there are things no person or group may do to them (without violating their rights)." Nozick sees himself as operating in the tradition of the seventeenth-century philosopher John Locke (1632–1704), arguing that human beings have certain "natural" rights.

The notion depends on state of nature theory and natural law. The idea of a state of nature is a hypothetical state external to society, in which human individuals are unaffected by social conditioning, and which operates as a device for critical reflection on existing societies. The laws of different societies assign to their citizens or subjects different rights and duties. But beyond this, it is argued, there are natural laws and natural rights, which provide a point from which to criticize the laws in any particular society (such as laws that allow for institutions such as slavery). Locke argued that in a state of nature there would be a natural law that "no-one should harm another in his life, liberty or property" (Two Treatises of Government, ed. Peter Laslett, 2nd edition, Cambridge University Press, 1967).

The idea of natural rights has been heavily criticized, most notably by Jeremy Bentham (1748–1832) who described it as "nonsense upon stilts." Bentham argued: "From real laws come real rights; from imaginary laws come imaginary rights." ("Anarchical Fallacies" in The Works of Jeremy Bentham, Vol. II, ed. J. Bowring; Edinburgh: William Tait 1843). The doctrine of natural law confuses the questions of what the law is and what the law ought to be. While one can criticize the law from a moral point of view, in order to do this one needs a perspective such as that of utilitarianism, not the notion of natural law.

The idea of the state of nature has also been criticized as ahistorical by Marxist and feminist critics. The objection is that there is no universal human nature, no pre-social state of nature. What people are like, as well as their values and expectations, are the products of the society in which they live. There is a strand in natural law thinking that natural rights should be evident to everyone. But even those philosophers who employ the notion of a state of nature differ over how it is to be understood, and there is further disagreement over what rights there are. Property, for example, is high on the list of Locke and Nozick, but it is by no means evident to all that it is a natural right. From an opposing point of view the so-called "natural" right to property is a historically conditioned expression of the interest of those who have it. Rights are seen as institutionalizing certain interests at the expense of others. The debate about property rights has been particularly pertinent in science and technology, in the context of intellectual property and patenting, for example in relation to the human genome. The distinction between what is discovered and what is invented relies on a notion of what exists by nature, but controversy continues over what can legitimately be patented.


Human Rights

Nevertheless the idea that there are universal and timeless rights grounded in enduring features of human nature has persisted. The United Nations Declaration of Human Rights (1948) and the European Convention on Human Rights (1950) are expressions of this idea, although dispute has raged over how many of the rights contained in these documents are real rather than manifesto rights.

Despite traditional criticisms of natural rights, Tom Campbell (1983) has argued that socialists need not object to the notion of human rights as protectors of fundamental human interests, if this notion is divorced from the ahistorical concept of a state of nature and from the traditional view about what rights human beings have. On this view, the problem with the tradition of liberal western democracy in which the notion of natural rights flourished has been the concentration of thinkers in that tradition on "freedom" rights at the expense of "welfare" rights. To focus on freedom rights can seem callous when people's basic food needs are not being met.

The objection to this from those who favor freedom rights is that welfare rights cost money, and therefore are not always feasible. In order to count as a genuine human right, any given right must be "practicable, universal, and paramount." Consider again the example of the right to reproduce. If this is understood as the right to be free from interference, then it might appear to cost nothing. If it is interpreted as a right to in vitro fertilization (IVF), however, the costs could spiral out of control. Nevertheless, the so-called freedom rights also cost money and it might be better to think in terms of basic rights rather than accepting the negative-positive distinction (see Shue 1980). The right to freedom from interference in one's private life, for example, might require the provision of some machinery of justice, including a police force.

Thus the idea of natural rights as starting points runs into difficulties, while the notion of human rights has become a site of political struggle between competing political ideologies. So on what basis can an argument for rights be put forward? It is possible to put forward arguments on utilitarian grounds, giving reasons why people should be free to do certain things or why they should receive particular goods and services: in other words, that they should have rights to do x and y or to receive p and q because to do so leads to good consequence. In this sense the term right is quite vulnerable to being trumped by other considerations, as this way of reasoning does not regard rights as attaching to individuals in quite the same way as in the natural rights tradition: as integral to what is understood by a human being.


Rights as Conclusions

Ronald Dworkin (1977) has argued that rights themselves should be regarded as trumps over some background justification for political decisions that state a goal (such as one based on utilitarian reasoning) for the community as a whole. An example would be that if someone has a right to publish pornography, this means that it is for some reason wrong for officials to act in violation of that right, even if they (correctly) believe that the community as a whole would be better off if they did.

Dworkin argues for a "rights-based morality" in contrast to one based on either duties or goals. His arguments started with the claim that government must treat those whom it governs with equal concern and respect. He identified his aim as that of examining how far a theory of rights can be constructed from the abstract idea that government must treat people as equals. It was Dworkin's contention that utilitarianism does not do this. Despite its claim that "each counts for one and no one for more than one," he argued that utilitarianism is corrupted by external preferences, where external preferences are preferences we have regarding other people. An example might be that people who are homophobic do not only have a preference regarding their own sexuality but also have an external preference that others should not be free to embrace homosexuality. If the majority shared these external preferences the minority could experience discrimination and hardship. In the context of science and technology, some people object so strongly to possibilities such as human reproductive cloning that they not only wish not to engage in it themselves, but want it to be universally prohibited, although others argue that it could be contemplated as an application of the individual's right to reproduce.

Therefore in a society where the background justification is utilitarian, rights are needed to act as trumps over the outcome of utilitarian calculations. It is important to note that Dworkin does not want to exclude all external preferences (for example, charitable ones), but only those that fail to treat human beings with equal concern and respect. Thus he argues for basing political morality around a fundamental right to equal concern and respect.


Objections to Rights-Based Morality

Rights-based morality nevertheless overlooks crucial features of the moral landscape (see, for example, O'Neill 2000). Rights are adversarial, and may be useful when opposing oppressive governments—perhaps particularly in drawing attention to the plight of particular groups—but apart from such situations it may be more appropriate to look to another framework, such as that of duties. This way of looking at things, drawing more on the thought of Immanuel Kant (1724–1804), directs attention to what people ought to do rather than what they ought to get. Duties "formulate the requirements to which Declarations of Rights merely gesture," but rights have acquired popularity, argues O'Neill, because they appear to offer something to everyone (O'Neill 2000) without focusing on the associated and varied costs. While rights-talk is pervasive, it is important always to be alert to the question of justification of any particular rights claim.

As should be clear from the present discussion, although rights are easily asserted with regard to many aspects of science and technology, the full legitimization of such assertions is much more difficult. It may be that individuals have rights to intellectual property in particular forms of scientific inquiry, and that consumers have rights to be protected from invasions of privacy by means of surveillance technologies. It may be that individuals have a right to exit certain aspects of scientific and technological development, and that different publics have the right to a voice in the governance of science. However, for what are often no more than manifesto rights to become fully warranted claims will in many instances require further reflective consideration than has to date been achieved.


RUTH CHADWICK

SEE ALSO Human Rights; Right to Die; Right to Life; Rights and Reproduction.

BIBLIOGRAPHY

Campbell, Tom. (1983). The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights. London: Routledge & Kegan Paul. An examination of the extent to which socialist rights, as opposed to liberal rights, can be upheld.

Dworkin, Ronald. (1977). Taking Rights Seriously. London: Duckworth. Argues for the priority of the right to equal concern and respect.

Feinberg. Joel. (1973). Social Philosophy. Englewood Cliffs, NJ: Prentice-Hall. Contains a very useful introduction to the concept of rights.

Hirschman, Albert O. (1970). Exit, Voice and Loyalty: Response to Decline in Firms, Organizations, and States. Cambridge, MA: Harvard University Press. Argues for the distinction between rights of voice and rights of exit.

Hohfeld, Wesley N. (1919). Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven, CT: Yale University Press. A classic categorization of rights.

Nozick, Robert. (1974). Anarchy, State, and Utopia. Oxford: Blackwell. Takes rights as starting points.

O'Neill, Onora. (2000). Bounds of Justice. Cambridge, UK: Cambridge University Press. Argues for treating principles of obligation as more basic than rights.

Shue, Henry. (1980). Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy. Princeton, NJ: Princeton University Press. Argues for "basic" rights rather than prioritizing "freedom" or "welfare" rights.

Waldron, Jeremy, ed. (1984). Theories of Rights. Oxford: Oxford University Press. A collection of essays on topics such as natural rights. Includes an essay by Ronald Dworkin on rights as trumps.

Waldron, Jeremy. (1993). "Rights." In A Companion to Contemporary Political Philosophy, ed. Robert E. Goodin and Philip Pettit. Oxford: Blackwell. An overview.

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