What does it mean to have rights?
The Concept of "Rights:" An Outline
Rights can take on many forms and serve various functions. Fundamentally, a right grants some entitlement, permission, or protection to the rights-holder. Rights also impose duties on others to respect those entitlements. There are several key ways to conceptualize rights:
Categories of Rights
Rights can be categorized in many ways, such as by who holds them (individuals, groups, animals), what they pertain to (free speech, property), why they are held (moral, legal, customary), and how they can be affected by the holder (inalienable, forfeitable, waivable).
Natural rights are a subclass of moral rights ascribed due to human nature. The rights of political speech are a subclass of free speech rights. Debates often focus on how these categories overlap.
The Hohfeldian Analytical System of Rights (see below)
The Hohfeldian system describes the form of rights using four fundamental incidents: 1) privilege (no duty not to act), 2) claim (others have duty to act), 3) power (ability to alter others' duties), and 4) immunity (others lack ability to alter duties).
These incidents combine to form complex molecular rights like property rights, which include privileges, claims, powers, and immunities regarding the property. Molecular rights often exist in layered structures.
Hohfeld arranged the incidents in tables of opposites and correlatives to reveal logical relations. For example, a privilege correlates to a no-claim, while a claim correlates to a duty.
Theories of the Function of Rights
The Will Theory says rights give the holder control over duties, the Interest Theory says rights further the holder's interests. These have been debated for centuries.
The Will Theory fits the link between rights and authority but struggles to explain unwaivable rights and rights of incompetents. The Interest Theory is more expansive but detached from ordinary understandings.
Alternatives like Demand Theories arise from critiques of the two main theories. Recent work focuses on explaining the directionality of duties.
History of Rights Language
The subjective sense of "a right" emerged from the older objective sense of "right" as just. Terms for active rights appeared earlier than terms for passive rights.
Scholars debate origins, but terms indicating modern subjective rights seem to trace back many centuries in history, with active rights predating passive rights.
Relationships Between Rights and Freedom
Most rights confer some type of freedom, often freedom to act (for active rights) or freedom from interference (for passive rights). The type of freedom relates to the specific right.
Legal systems distribute freedoms by determining who can act in what ways and who is free from what actions/conditions. Constitutions confer complex multi-layered structures of rights.
Rights as Powerful Reasons
Rights give reasons that override other reasons, though some rights may trump others. Rights as conclusive reasons may only apply within certain delimited circumstances.
Supporters debate whether any single right overrides all other reasons in all cases. Specificationists hold that rights never truly conflict but rather have delimited domains.
Status theories say rights fit human attributes, instrumental theories say rights achieve good consequences, contractual theories say rights follow from agreement.
Status theories are clear but inflexible, instrumental theories adjustable but possibly ad hoc. Hybrids are attempted but debates ongoing.
Critiques of Rights
Karl Marx criticized the "rights of man" in the American and French revolutions as promoting an atomistic view of people as isolated individuals. He saw rights like property as encouraging selfishness and preventing unity.
Communitarians like MacIntyre also argue rights theories mistakenly start from individuals abstracted from their social identities and contexts. They accuse rights theories of falsely claiming universal applicability across cultures.
However, these criticisms of excessive individualism do not necessarily apply to all rights theories. The language of rights itself can accommodate group rights, as seen in human rights law.
Critiques of Rights Talk
Some argue rights talk promotes unrealistic expectations and adversarial legalism over negotiation and compromise. It focuses people on claiming their due rather than fulfilling duties.
Mary Ann Glendon argues American "rights talk" discourages continuing discussion, pragmatism and appreciation of responsibilities. Feminists add it reflects masculine confrontation over feminine conciliation.
However, rights talk may also have benefits such as precisely formulating concepts of freedom and authority. The hazards of rights talk depend on how thoughtfully and reasonably it is employed.
Overall, while particular rights theories may have valid critiques against them, rights language itself has both positives and negatives in its common usage.
Hohfeld’s analytic framework
When thinking about what it means to have a right it is sometimes useful to replace the word “right” with another word that expresses something similar. Let’s review some of these words in order to get a more differentiated notion of what it means to have rights. Each of these translations only capture an aspect of what we usually understand by the word “right,” but taken together they give a more comprehensive meaning of the concept of “rights”. This overview is partially based on the work of the influential American Jurist Wesley Hohfeld (1879-1918).
Wesley Hohfeld was a Harvard law professor who developed a framework for understanding interests in property. Property rights may not be the most fundamental form of rights, but they are an important class of rights, because they define political systems as well. (see John Locke) Hohfeld aims at a formal definition of rights in general, and he uses eight terms that can be arranged either as opposites, or as correlatives. The following two tables show this conceptual structure of correlative and opposite terms that determines the internal relationships among different fundamental legal rights.
Right - No-right
Privilege - Duty
Power - Disability
Immunity - Liability
Right - Duty
Privilege - No-right
Power - Liability
Immunity - Disability
A privilege is the opposite of a duty; a no-right is the opposite of a right. A disability is the opposite of a power; an immunity is the opposite of a liability. The term “correlatives” means that these aspects of rights exist on the different sides of a legal relationship between two persons. If someone has a right, it exists only with respect to someone else who has a duty. If someone has a privilege, it exists with respect to someone else who has no right. If someone has a power, it exists with respect to someone else who has a liability. If someone has an immunity, it exists with respect to someone else who has a disability.
A right can be enforced by a lawsuit against the person who has the correlative duty. A privilege negates that right and duty, and typically would be asserted as an affirmative defense in the lawsuit. A power is the capacity to create or change a legal relationship. For example, if you make a contract offer, you must have the power to create a contract, and someone else must have the power of accepting the offer (or not). If the power to create the contract is exercised, then both parties have rights and duties with respect to each other. Courts have power only if plaintiffs or prosecutors exercise their power to commence a lawsuit. Sovereign states are immune because courts lack power over them, in which case courts are said to have a disability with respect to sovereigns.
The example of property rights
If I “own” property, it means that I have various rights with respect to the thing constituting my property – the “bundle” of rights. For instance, I probably have the right to exclude others from it; which means everyone else in the world has a correlative duty not to use my property. Some people, however, may still have some privileges in relation to it, for instance, to fly over it. I also have power with respect to my property because I can create rights for others, for example: I can transfer some or all of the property to them, I can create easements, which gives the grantee certain rights vis-a-vis others and certain rights and privileges vis-a-vis me.
Here is a breakdown of different terms that define rights; this list is based on the Hohfeldian system, but expands it further.
- Rights as privileges
Formally this can be stated as follows:
A has a privilege to do X if A doesn’t have a duty not to do X. A has a privilege not to do Y if A doesn’t have a duty to do Y.
For example: Living in the U.S., I have the privilege to speak my mind, because I don’t have a duty to keep silent. Or, I have the privilege not to vote for the President because I don’t have a duty to do so.
Privileges: I have the privilege to practice any religion I choose.
- Rights as permissions
Similarly, one can also say that rights are legal permissions. Permissions have the same structure as privileges, but the form is somewhat weaker. The formal structure is this: A has a permission to do X if A doesn’t have a duty not to do X.
Permissions: My right to vote gives me the permission to cast a ballot, but does not obligate me to vote.
Rights are permissions insofar as they grant liberties to the rights bearer. they define what she is allowed to do, not what he has to do or shouldn’t do. Hence, rights as liberties is another way of restating privileges. The fact that I have the privilege, the permission or the freedom to express my feelings doesn’t imply that I must express them.
- Rights as claims
A more relational understanding of rights focuses on the claims we may have on others. Having a right then means having a claim on someone.
A has a claim that B does X if B has a duty to A to do X. A has a claim that B doesn’t do Y if B has a duty to A not to do Y.
Claims: My right to a fair trial allows me to claim that the court system must give me due process.
For example, I have a claim that my employer pays me a fair wage because my employer has a duty to do that (see article 23 of the Universal Declaration). I also have a claim that he doesn’t impose slave-like or dangerous working conditions on me because he has a duty not to do that. In the case of human rights, I have such claims vis-à-vis every other human being.
- Rights as immunities
This is similar to rights as claims but stronger. A has an immunity if B doesn’t have the legal, moral or political ability or power to do X to A.
For example, I have immunity against self-incrimination because a judge does not have the power to force me to testify against myself.
Immunities: My right against unlawful search and seizure grants me immunity from having my property searched without a warrant.
- Rights as limits
Again, similar if not identical to immunities: A has a right to X if B doesn’t have the legal, moral or political ability or power to interfere with A doing X.
For example, I have to right to practice my religion because no one else is allowed to interfere with me practicing my religion.
Limits: My right to bodily autonomy limits others from medically invading my body without consent.
- Rights as provisions
Having a right can mean more than the ability to limit interference. It can also mean that one is entitled to the provision of some goods or services.
A has a right to X if B has the legal, moral or political duty to provide A with X.
For example, I have the right to an amount of food that guarantees my decent survival. The state, among others, has the duty to provide this food if I cannot get it by myself. Non-interference rights or negative rights also fall under this heading: I have a right to be protected by Courts and the police force – to be provided with protection – if people impose a religion on me, threaten my life, etc.
Provisions: My right to education entitles me to be provided schooling resources and instruction.
- Rights as properties
In the end, we can say that all rights are in essence property rights, because a right can be understood as a property. We have a right to have rights; our rights are our property. In the words of John Stuart Mill: “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it. … To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of.”
Formally: A has a right to X if society has a duty to protect A’s possession of X.
Again, very similar to the formulation of rights as provisions. For example, I have a right to free speech if I can call on judges and the courts to assist me in my struggle against those who want to take this right away from me.
Properties: My right to my personal writings means society has a duty to stop others from publishing them without permission.
- Rights as sovereignty
The notion of rights as sovereignty is similar to the notions of rights as claims, immunities, limits and properties. My right to freedom of opinion or my right to property make me a miniature-version of a sovereign over my mind or my possessions. Others are not allowed to interfere, invade, dispossess or modify this power. All these notions of rights focus on the rights bearer’s ability to control whether others must or must not act in certain ways.
- Rights as interests
Conversely, rights as interests focus on what rights do to the rights bearer. Rights serve to further the rights bearer’s interests. People have rights because rights make them better off. What these rights imply for others is of secondary importance.
Formally: A has a right to X if X makes A better off.
Interests: My right to health care furthers my interest in maintaining wellbeing.
- Rights as abilities
Another way to focus on the rights bearer rather than the duty bearer is to view rights as abilities. That allows us to see that rights as liberties, privileges or permissions only describe part of what we understand by rights. I have a right if I have the freedom, privilege or permission to act in a certain way. And rights as claims, immunities and limits protect me against others who would interfere with my freedom, privilege or permission to act in a certain way. And yet I can be free to do X because
I’m free from a duty not to do X and
I’m free from the interference of others, but at the same time I may be unable to do X.
For example, I may have the permission and freedom to practice whatever religion I choose, and others don’t interfere, but I lack the education or mental capacities to choose and practice a religion. Rights as abilities would then provide me with the necessary education, rather than only the freedom, privilege, permission or limits on interference. This aspect of rights resembles the distinction between formal and material rights.
Abilities: My right to due process grants me the ability to actively defend myself in a court of law.
- Rights as trumps
Following Ronald Dworkin, we can view rights as trumps. Rights are norms with a special force. Or, to say it differently, one can also view rights as reasons – they provide particularly reasons to do or not to do something. Rights as reasons are strong enough to override other reasons or concerns. Rights give reasons to treat people in certain ways or permit them to act in certain ways, even if certain other goals or objectives would be better served by violating their rights. Within the system of rights, it is possible to give some rights a higher trump value and therefore a higher priority than others, perhaps depending on the circumstances. (A right may only trump another when certain conditions are met, but not systematically).
Formally: A has a right to X if X overrides all other concerns.
Trumps: My right to free speech trumps utilitarian arguments that censorship would maximize social welfare.
Conclusion: Only if we combine all these different definitions of rights can we have an overall understanding of them. A comprehensive understanding of rights draws from all these multifaceted conceptualizations. Rights are complex entities that protect freedoms, create duties, empower abilities, serve interests, limit powers, grant permissions, make claims, and create spheres of control for the rights-bearer. Any analysis of rights should consider their various dimensions.