Rights, Introduced

"I have a right to be paid for the work I did." "I have a right to wear whatever I like."

Both sentences are ordinary English and they are not making the same kind of claim. The first says something about what someone else must do. The second says something about what nobody may stop you doing, and identifies no one who owes you anything. Rights talk runs the two together constantly, and a great deal of political argument gets nowhere because of it.

Two things the word covers

Wesley Hohfeld, an American legal theorist, produced the analysis that sorted this out, in a paper in the Yale Law Journal in 1913. His subject was legal reasoning rather than political morality, and philosophers took the apparatus over because nothing better has been produced since.

Hohfeld identified four distinct things the word right is used for, and the two above are the ones that carry most of the weight in political argument. The other two are worth naming. A power is the ability to change someone's rights and duties, which is what a judge has, and what you have when you make a promise. An immunity is the absence of someone else's power over your position, which is what a constitutional guarantee provides.

The most useful result in the whole analysis is that claim rights and duties are two descriptions of one relation. Your claim right that a debt be repaid and the debtor's duty to repay it are not two facts but one fact seen from either end. Nothing is added by asserting the right once the duty is established, and nothing survives the duty's disappearance.

Liberty rights work quite differently and the difference is easy to miss. Saying you have a liberty right to do something says only that you have no duty not to. It imposes no duty on anyone else, including no duty to let you. Two people who spot a banknote on the pavement each have a liberty right to pick it up, neither has a duty to leave it for the other, and each may perfectly properly get there first.

That is why the political question is almost never whether someone has a liberty right. Almost anything you have no duty to refrain from is something you have a liberty right to do, and the interesting question is always whether the liberty is protected by a surrounding claim right that others not interfere. A liberty right on its own is a very thin thing.

Where rights come from

The contrast is with rights that exist because some institution created them. Your right to vote in a particular election exists because a law says so, and a different law would abolish it. A natural right, if there are any, would not be like that. It would be there before the law, would provide the standard by which laws are assessed, and would be violated rather than cancelled by a law denying it.

Locke's Two Treatises of Government of 1689 is the reference point in English, and the tradition it belongs to supplied the vocabulary of the American and French revolutionary declarations. The attraction is obvious. Without something of this kind, the claim that a regime violated its subjects' rights reduces to the claim that it broke its own laws, which is exactly what such regimes usually take care not to do.

The difficulty is equally obvious, which is saying where such rights come from and how anyone knows what they are. The traditional answers appealed to God or to nature, and a secular political philosophy that wants the conclusions without the premises has work to do.

Jeremy Bentham put the objection with more force than anyone since. Writing against the French revolutionary declarations in the 1790s, in a text published in French in 1816 as Anarchical Fallacies, he held that a right is the creature of a law and that talk of rights existing prior to law is talk of an effect without its cause. Natural rights he called nonsense, and imprescriptible natural rights nonsense upon stilts. His positive point beneath the abuse was that declarations of natural rights state conclusions without argument: each right is asserted, none is derived, and when two of them conflict the declaration provides no way of deciding between them.

What a right demands

A right not to be assaulted is satisfied by everyone leaving you alone. A right to medical treatment is not satisfied by anyone leaving you alone; somebody has to provide the treatment. That is the whole of the distinction, and an enormous amount rides on it.

The case for treating only the negative ones as genuine rights runs as follows. A duty of restraint can be discharged by everyone simultaneously, at no cost, and is perfectly determinate: it tells each person exactly what to do, which is nothing. A duty of provision can be discharged only by someone, at real cost, and the right does not say by whom. If a person has a right to housing, who has failed in their duty when they are homeless? Without an answer the right has no correlative duty, and by Hohfeld's analysis a claim right without a correlative duty is not a claim right at all.

The reply is that the asymmetry is exaggerated and the aside below sets out the strongest version of it.

Human rights

The modern doctrine is a twentieth-century institution rather than a philosophical position, and it was built deliberately in response to what states had shown themselves willing to do. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in Paris on 10 December 1948, by a vote of forty-eight in favour with eight abstentions and none against.

The Declaration includes both kinds of right, and the political disagreement about that was severe enough to shape everything that followed. When the attempt was made to turn it into binding treaty law, the negative and positive rights were separated into two instruments, adopted together in 1966 and in force from 1976: one covering civil and political rights, the other economic, social and cultural rights. The split tracked the ideological division of the period, with one bloc pressing the first set and the other the second, and the two covenants differ in what they demand: the first requires states to respect and ensure its rights, while the second requires progressive realisation to the maximum of available resources, which is a considerably weaker obligation.

Human rights are related to natural rights and are not the same thing. Natural rights is a claim about the source, holding that the rights exist independently of institutions. Human rights, as the doctrine actually operates, is a claim about scope and universality, and it can be held by someone who thinks the rights are institutional creations that ought to exist everywhere. Whether the doctrine needs a natural-rights foundation to be more than a widely ratified list is one of the central questions of the field, and the advanced tier takes it up.

Next

Rights have been treated here as moral claims that a legal system may or may not recognise. The relationship between the two has been left open. The next article asks what a legal system is, what separates it from organised force, and whether law and morality are as separable as they have just been assumed to be.