Rights
Alan Gewirth
The claiming of rights is one of the strongest ways of demanding protection of persons’ interests. At the same time, many aspects of the appeal to rights are intensely controversial. The controversies bear not only on the normative and substantive issues of who has rights to what, but also on basic conceptual issues.
Hohfeld’s Distinctions
The standard starting point for dealing with the conceptual issues is Wesley N. Hohfeld (1879–1918), who saw that the phrase ‘‘a right’’ was used with different meanings in the legal literature. To avoid the resulting confusion, he distinguished four meanings of this phrase. First, if A has a claim right to X against B, then B has a correlative duty to A to refrain from interfering with A’s having or doing X, or, in some situations, a duty to give X to A or to help A to have or do X. Thus, A has a claim right to life against B and all other persons in that they have a correlative duty to refrain from taking A’s life; and if B promised to meet A at the bookstore at noon, then A has a claim right against B that B meet him there and then, and B has a correlative duty to meet A as promised.
Second, if A has a liberty right (or privilege) to X against B, then B has a correlative no right (i.e., no claim right) that A not do X. Hence, A has no duty to refrain from doing X; but also, in contrast to the case of claim rights, B has no duty to refrain from interfering with A’s doing X. Thus, if A and B simultaneously engage in a footrace, each has a liberty right to win the race if he can – neither has a duty to refrain from winning it – and each has no right that the other not win. The liberty right is hence the opposite of a duty, just as the no right is the opposite of a claim right.
Third, if A has a power (or power right) to X with regard to B, then A is in a legal or other justified position to effect a change in some relevant status of B, and B has a correlative liability to undergo this change. Thus a religious official has a power right to perform a marriage ceremony between a man and a woman, so that their legal status is changed from being unmarried to being married to each other.
Fourth, if A has an immunity (or immunity right) to X against B, then A is free or exempt from B’s legal or other justified power or control with regard to X, and B is under a correlative disability to affect the legal or other relevant status of A. Thus, A has an immunity to being forced to testify against himself in a criminal case, and the state has a correlative disability to force him to testify. The immunity is the opposite of a liability, and the disability is the opposite of a power (power right).
These distinctions clarify many of the diverse usages of the phrase ‘‘a right,’’ but they also leave many conceptual problems unresolved. For example, what do all these types of ‘‘rights’’ have in common? Hohfeld said they are all ‘‘legal advantages,’’ but this is vague.
The Elements of Claim-Rights
Despite the possible interconnections between Hohfeld’s types, it is generally agreed that claim rights are the most important kind of rights, especially because of their stringency as entailing strict duties to forbear or assist. The general structure of a claim right is given by the following formula: A has a right to X against B by virtue of Y.
There are five main elements here: first, the subject (A), of the right, the right holder; second, the nature of the right, what being a right consists in or what it means for someone to have a right; third, the object (X) of the right, what it is a right to; fourth, the respondent (B) of the right, the duty bearer, the person or group that has the correlative duty; and fifth, the justifying ground (Y) of the right.
The Problem of Redundancy
This formula with its elements helps to elucidate some of the chief conceptual problems that have been raised about rights. One is the problem of redundancy, which takes two forms. The first form concerns the relation between the subject’s rights and the respondent’s duties. Since rights and duties are correlative, this is taken to mean that the right of A against B is the ‘‘same relation’’ as (or, as Hohfeld said, is ‘‘equivalent’’ to) the duty of B to A. But if they are the ‘‘same relation,’’ then isn’t one of them redundant?
A main answer is that claim rights and strict duties have objects that differ in valuational con tent. Rights are justified claims to certain bene fits, the support or protection of certain interests of the subject or right holder. Duties, on the other hand, are justified burdens on the part of the respondent or duty bearer: they restrict his freedom by requiring that he conduct himself in ways that directly benefit not himself but rather the right holder. But burdens are for the sake of benefits, and not conversely. Hence duties, which are burdens, are for the sake of rights, whose objects are benefits, so that rights are the justifying reasons for duties. Thus, rights and duties are distinct, and neither is redundant.
In opposition to this answer, it is sometimes contended that the objects of rights are not always benefits to the right holder. Examples are the right to smoke excessively and the right to have a promise to oneself kept that will benefit not oneself but only some third party. There are at least three replies:
- The right to smoke and to engage in other self harming actions may be taken as species of the right to freedom, which is in general a good to the right holder. Thus the objects of rights are general goods for the right holder, even if all their specific varieties may not be good for her.
- Rights would not be claimed unless the claimant thought there was some value in her having the object of the right.
- In the case of third party beneficiaries, the person to whom a promise is made also has an interest in the promise being kept, so that to this extent she too derives benefit from it.
These considerations lead to a second form of the problem of redundancy. In the formula given above, the object (X) of the right – the object consisting in certain benefits or interests – seems to do most or all of the work for which the right is invoked, so that the concept of rights is again declared to be redundant. For if what is so important about rights is the support or protection of certain benefits or interests, then why isn’t such protection sufficient; why do we also need rights to these interests?
There are several more answers. All involve that rights, especially when they are moral, provide certain indispensable normative additions to simply having or being protected in certain interests or benefits. To begin with, A’s having a moral right to X adds to his having X or his being protected in having X the import ant qualification that there is strong justification both for his having X and for his being protected in having X. This justification, more over, is of a special sort, in that, when A has a right to X, this means that he is personally entitled to have X as his due, as what belongs personally to him, so that it is normatively necessary that A be protected in having or doing X.
Rights as Normatively Necessary Personal Entitlements
These aspects of personal entitlement and normative necessity bear on three specific relations among the elements of rights distinguished above. First, rights are normatively necessary in the relation between the subject and the object, in that the subject has personal property in, and thus justified personal control over, the object, so that it is personally owed to him as his due and for his own sake, not because it adds to overall utility. Second, rights are also normatively necessary in the relation between the subject and the respondent, in that the former is in a position to make a justified personal claim or demand, not merely a request or a plea, against the latter for the support or protection of his having the object of his right. In this way the respondent has duties that are personally owed to the subject. Third, rights are normatively necessary in the relation between the subject and the object, on the one hand, and the justifying ground, on the other, in that this ground supplies the warrant or title, and thus the necessitating premise, for the object’s being person ally owed to the subject and hence for the requirement that the subject have, and be protected in having, the object to which he has a right. In view of these stringent aspects of normative necessity, the question arises whether rights can ever be overridden. This will be dis cussed below.
The Nature of Rights
These three diverse relations between the subject, on the one hand, and the respondent, the object, and the justifying ground, on the other, also have a direct bearing on the conceptual question of the nature of a right. Two different theories focus on different elements in the structure of a right given above. The ‘‘benefit theory’’ emphasizes the relation between the subject and the object of rights. Since the object consists in certain benefits or interests of the subject, the benefit theory holds that for a person to have a right is for him to be the directly intended beneficiary of someone else’s performance of a duty, or, in a further version, that some projected benefit or interest of his is a sufficient ground for other persons having duties. The ‘‘choice theory,’’ on the other hand, emphasizes the relation between the subject and the respondent of rights. The theory holds that to have a right is to be in a justified position to determine by one’s choice how other persons (the respondents) shall act.
Each theory is plausible, but each also incurs difficulties. It has been held that the choice theory does not explain how children and mentally deficient persons may have rights; but this could be taken care of by the consideration that such persons can be represented by other persons who make claims for them. Another, perhaps more serious difficulty for the choice theory is that it implies that subjects may waive their rights; but some rights, such as those pro vided by the criminal law or by welfare legislation, cannot be waived. On the other hand, it seems to follow from the benefit theory, unlike the choice theory, that animals have rights, since they have certain interests and thus are capable of being benefited. Some thinkers have endorsed this conclusion, and have used it to reject the choice theory. At the same time, however, the choice theory has the distinct advantage that it views the right holder as an active claim ant on her own behalf, and thus as having an indispensable element of autonomy and dignity, in contrast to the passive recipience that the benefit theory seems to attribute to right holders. This defect of the benefit theory can, however, be substantially remedied if it can be shown that a full justification of the theory in volves that all morally justified rights have, as their most general objects, the fulfillment and support for each right holder of the necessary conditions of action and of generally successful action. This will be further discussed below. It seems, then, that despite the possible divergences of the benefit and choice theories, the most acceptable account of the nature of rights must involve some combination of the two theories that incorporates the strong points of each while omitting its negative features.
The Nature of Moral Rights
The justifying ground of legal rights consists in the statutes and other provisions of positive municipal law. But it is also often said that persons have certain rights even if these are not recognized or enforced by positive laws, such as when it is asserted that slaves have a right to be free. In such cases the having in question, like the rights themselves, is moral, not legal.
There are two different views on the nature or existence of moral rights. On one view, for such rights to exist means that, while they fulfill certain moral criteria, they are embodied in positive laws or other social rules. On another view, moral rights exist or are had even when they are not so embodied; it is sufficient that they fulfill or derive from justified moral principles or other morally relevant considerations. Against this latter view it is objected that because of the diversity and conflicts of moral principles, there would be no way of definitively determining whether anyone has moral rights, in contrast to the determinate answers provided by positive laws. This point is often adduced in criticism of the undisciplined proliferation of rights claims that are invoked by various protagonists in political and legal controversies. But against the former, positivist view it is objected not only that it incurs the same difficulty of ascertainment when it seeks to evaluate positive laws by moral criteria, but also that it makes unintelligible the recognized practice of appealing to rights even when they are not embodied in positive laws or ongoing social rules, and even in opposition to such laws and rules. Against the specifically legal positivist view it is further objected that it does not provide for those moral rights which, by general agreement, are not and should not be embodied in positive laws, such as the rights, in ordinary interpersonal relations, not to be lied to and not to be subjected to broken promises, as well as the rights of children to receive loving care from their parents.
The Justifying Ground of Moral Rights
To ask who has what moral rights to what is to ask a normative and substantive question, not only a conceptual one, although conceptual considerations also figure in the answers one gives. If for moral rights to exist, they must be justified by sound moral principles or other morally relevant grounds, where do we look for such principles or grounds? An important emphasis has been that human beings have interests. But not all interests generate rights. In view of the normative necessity involved in rights, it would seem that the interests that ground them must also involve necessity. Such necessity could be obtained if the interests consisted not in contingent, dispensable desires or goods, but rather in the goods that are necessary for human action or for having general chances of success in achieving one’s purposes by action.
For such a general grounding of general moral rights to be successful, the necessary conditions of actions and of generally successful action would have to be carefully specified. The two main such conditions are freedom and well being. Freedom is the procedural necessary condition of action; it consists in controlling one’s behavior by one’s own unforced choice while having knowledge of relevant circumstances. Well being is the substantive necessary condition of action; it consists in having the general abilities and conditions needed for achieving one’s purposes. Since the agency needs that are here called ‘‘necessary’’ pertain not only to bare action but also to generally successful action, the necessity in question can accommodate the varying degrees in which practical abilities and conditions are needed for action. Thus, well being falls into a hierarchy of goods ranging from life and physical integrity to education and opportunities for acquiring wealth and income. According to the general substantive theory here sketched, all actual or prospective agents have equal moral rights to freedom and well being, and their having these rights is grounded in their enduring needs for the necessary conditions of their action and generally successful action. An argument can be given for the moral principle that grounds this thesis.
Moral Rights as Solely Negative
According to one libertarian view, all moral rights are negative: they set absolute ‘‘side constraints’’ on actions in that their correlative duties require refraining from actions that inter fere with persons’ freedom. A difficulty with this view is that it cannot handle conflicts of rights. Suppose A is going to murder B, and the only way to prevent this is for C to steal the car of D, who is entirely innocent in relation to A’s murder project. Here the absolute rights not to be murdered and not to be stolen from come into unresolvable conflict.
To deal with such cases, it has been suggested that rights construed as side constraints should be supplemented by ‘‘consequential analysis’’ that trades off the lesser badness of infringing one right by the greater badness of infringing another. A related suggestion is the general idea presented above that rights fall into a hierarchy according to the degree of their objects’ needful ness for action, so that the right not to be stolen from is overridden by the right not to be murdered when these rights are in conflict.
Such a procedure has been called a ‘‘utilitarianism of rights.’’ But this phrase is misleading if it implies a constant readiness to interfere with rights for the sake of regularly achieving some sort of weighted minimization of rights violations. A ‘‘utilitarian’’ approach of this sort is different from considerations that are restricted to wide disparities in degrees of importance bet ween the interests that are the objects of the respective rights, as in the above example.
What, however, of situations where the rights that are in conflict have objects that are of the same degree of importance? A recurrently adduced example is the one in which a casual bystander can save ten innocent persons from being murdered only if he murders one of the persons himself. It has been suggested that, since the function of rights is to protect justified personal interests, and since the interests in this example are on a par, the rights theorist must seriously consider participating in this abominable project.
The rejections of such participation can, how ever, be justified on grounds of rights. For the rights to life of the nine other innocent persons do not extend to the right to life of the tenth person. In general, if a person has a right to X, then he has a right to anything else Y that may be necessary for his having X, unless someone else already has a right to Y and Y is as important for action as is X. For example, if Jones is starving and cannot obtain food by his own efforts, while Smith has abundant food, then Jones’s right to life overrides Smith’s property right in the food, so that Jones has a right to as much of Smith’s food as he needs in order to prevent starvation. But if Smith has only enough food to prevent his own starvation, then Jones does not have a right to it because Smith’s not starving is as important for his action as Jones’s not starving is for his. It is for such a reason that the nine other innocent persons do not have a right that the tenth person be murdered in order to prevent their being murdered. Hence, if the casual bystander were to murder the tenth person, he would be violating that person’s right to life, while if he were to refrain from the murder, he would not be violating the others’ rights to life, since they do not have a right that the tenth person be murdered in order to prevent their murder.
Positive Rights
A second view of the contents of moral rights is that they are positive as well as negative. If the ultimate justifying ground of rights is the needs of agency, including well being, then positive welfare rights are justified when persons cannot fulfill their needs of well being by their own efforts so that positive assistance by other per sons is required, in cases ranging from relief of starvation to provision of educational resources. As in the case of negative rights, the application of the positive rights model requires consideration of degrees of needfulness for action, so that, for example, taxation that removes a relatively small part of affluent persons’ wealth is justified, and is not a violation of the taxed persons’ rights, if this is needed in order to prevent other persons’ starvation or to provide opportunities for education. More than in the exclusively negative theory of rights, the positive theory requires recourse to institutional, especially state, provision for various rights, as against leaving such provision solely to individual initiative. Thus, on this view, moral rights are social and economic as well as political and civil.
Utilitarianism and Rights
Utilitarianism raises two kinds of questions for theories of rights. One is whether it can ‘‘accommodate’’ rights (i.e., whether the requirements of rights can be justified by the utilitarian principle that the rightness of actions is to be determined by consequentialist considerations about the maximizing of total or average utility). It has been contended that utilitarianism can require that special protection be provided for the special interests and needs that are the objects of rights. A chief reply to this thesis is that, since the aim of utilitarianism is ultimately aggregative, to maximize utility, the distributive protections provided by even the most import ant rights would be at best only contingently maintained, since the rights could be over ridden whenever the maximization of utility required this.
A second question about the relation of utility to rights goes in the reverse direction. Even if utilitarianism cannot adequately accommodate rights, is this always a fault? Isn’t it also true that rights cannot accommodate utilitarianism, in that the insistence on individual rights may block the fulfillment of important communal goals? This question underlies the charge, which goes back at least to Jeremy Bentham (1748–1831) and Karl Marx (1818–83), that rights are egoistic because they involve claims for the fulfillment of individual interests, so that they may operate to submerge the values of community or society.
Two replies can be given to this charge. The first relies on the thesis sketched above about the varying degrees of importance or needfulness of the objects of rights. Thus, the theory of rights may allow for the exercise of eminent domain where an important community project like the building of a new public school requires that some persons be forced to give up their property rights in their houses at a certain location (with due compensation). But the theory cannot allow, for the reasons indicated above, that an innocent person be killed in order to prevent certain even severe harms from befalling the community as a whole.
A second reply is that human rights, which are universally distributed moral rights, require of each person that he act with due regard for other persons’ interests as well as his own. For since, in principle, each person has human rights against all other persons, every other person also has these rights against him, so that he has correlative duties toward them. The concept of human rights thus entails a reciprocal universality: each person must respect the rights of all the others while having his rights respected by all the others, so that there must be a mutual sharing of the benefits of rights and the burdens of duties. The human rights thus involve mutuality of consideration and, thus, a kind of altruism rather than egoism. By requiring mutual aid where needed and practicable, the human rights make for social solidarity and a community of rights.
Bibliography
An earlier version of this entry appeared in L. C. Becker and C. B. Becker (eds.) (1992), Encyclopedia of Ethics. New York: Garland.
Dworkin, R. (1977). Taking Rights Seriously. Cambridge, MA: Harvard University Press. (Rights as ‘‘trumps.’’)
Feinberg, J. (1973). Social Philosophy. Englewood Cliffs, NJ: Prentice-Hall. (Analysis and conflict of rights.)
Feinberg, J. (1980). Rights, Justice, and the Bounds of Liberty. Princeton, NJ: Princeton University Press. (Importance of rights; their relation to claims.)
Finnis, J. (1980). Natural Law and Natural Rights. Oxford: Clarendon Press. (Rights account for the requirements of practical reasonableness.)
Flathman, R. E. (1976). The Practice of Rights. Cambridge: Cambridge University Press. (Rights are adversarial; communitarian objections.)
Gewirth, A. (1978). Reason and Morality. Chicago: University of Chicago Press. (Rights based on necessary conditions of action.)
Gewirth, A. (1986). Why rights are indispensable. Mind, 95, 329 44. (Answers conceptual and moral objections against rights.)
Hohfeld, W. N. (1964) [1919]. Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven, CT: Yale University Press. (Classic fourfold typology.)
Lyons, D. (ed.) (1979). Rights. Belmont, CA: Wadsworth. (Good collection, including Lyons’s ‘‘Rights, claimants, and beneficiaries’’ (58 77), which argues for the benefit theory.)
Martin, R. and Nickel, J. W. (1980). Recent work on the concept of rights. American Philosophical Quarterly, 17, 165 80. (Extensive bibliography.)
Melden, A. I. (1977). Rights and Persons. Berkeley: University of California Press. (Rights based on personhood.)
Sen, A. (1982). Rights and agency. Philosophy and Public Affairs, 11, 3 29. (Discusses a ‘‘goal rights system’’ wherein the fulfillment or non-fulfillment of rights is included in the consequential evaluation of states of affairs.)
Shue, H. (1980). Basic Rights: Subsistence, Affluence, and US Foreign Policy. Princeton, NJ: Princeton University Press. (Basic rights include subsistence as well as security and liberty.)
Sumner, L. (1987). The Moral Foundation of Rights. Oxford: Clarendon Press. (Argues against natural law and contractualist theories of rights and for consequentialist theory.)
Thomson, J. (1990). The Realm of Rights. Cambridge, MA: Harvard University Press. (Examines what rights are and which rights there are.)
Tuck, R. (1979). Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press. (Histories of rights theories from twelfth to seventeenth centuries.)
Waldron, J. (ed.) (1984). Theories of Rights. Oxford: Oxford University Press. (Good introduction and bibliography.)
Wellman, C. (1985). A Theory of Rights. Totowa, NJ: Rowman and Allanheld. (A right is a complex structure of legal positions having a central core.)
Wolgast, E. H. (1980). Equality and the Rights of Women. Ithaca, NY: Cornell University Press. (Women’s rights based not on egalitarian reasoning but on distinctiveness and interdependence.)