Making Sense of Human Rights Revised Edition 11 September 2004 all rights reserved

Chapter 2 The Concept of a Right

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Chapter 2

The Concept of a Right

This chapter addresses the question of what it means to call a norm a right. Given the tradition of bills of rights that includes historic documents such as the Magna Carta 1215, the English Bill of Rights (1689), the French Declaration of the Rights of Man and the Citizen (1789), and the U.S. Bill of Rights (1789), it is not surprising that the authors of the UDHR chose the concept of rights to express international standards of government conduct. But that leaves unclear what calling human rights "rights" implies.
Elements of Rights

One way to analyze a concept is to look at its elements or parts and the relations between them. For example, if we analyzed "biological mother" in this way the elements would include parent, female, and offspring. Because rights often involve complex relationships concerning who has the right and when it can be applied, it is helpful to have a detailed analysis of the parts of a fully specified right.

First, rights have rightholders. Each right identifies some party as its possessor or holder. This person or agency is positioned to benefit or be empowered by the fulfillment of the right.

Second, rights are to some freedom, power, immunity, or benefit, which is its scope or object. The scope of a right often contains exceptions excluding items that might otherwise be expected to be included. If, for example, the constitutional right to freedom of speech does not include protection for speeches made from the visitors’ gallery during sessions of Congress, this exception could be specified in, or be a consequence of, a full statement of the right’s scope.

The scope of a right also includes conditions of operability, which specify when a right applies and what, if anything, must be done to bring it into play. A right becomes operable when its holder can it too use, perhaps by claiming or invoking it. When that occurs the right is engaged. To waive or refuse to exercise one's right when it is operable often prevents the right from being engaged. Some rights, however, seem to be continuously engaged. A person's right not to be tortured is engaged and generates a duty not to torture even when the person being tortured is too weak to invoke the right.

Third, a fully specified right identifies a party or parties who must act to make available the freedom or benefit identified by the right's scope. These are the addressees of the right. Rights are commonly classified as negative or positive, according to whether the right requires the addressees merely to refrain from doing something or instead requires them to take some positive action they might not otherwise take. Many rights impose on their addressees both negative and positive duties.

Finally, the weight of a right specifies its rank or importance in relation to other norms. Weight pertains to whether a right can be overridden by other considerations in cases of conflict. A prima facie right is a non-absolute right whose weight is not fully specified. Describing a right as prima facie does not imply that it is only an apparent right but rather asserts that it a genuine right that can sometimes be outweighed by other considerations. When prima facie rights are infringed they typically leave a "residue," i.e., some further duty of the addressee to the rightholder such as a duty of compensation.

Rights range from abstract to specific (or from general to precise) according to how fully their parts are specified. Indeterminacy can occur in any of the elements of a right. We may be unclear about the identify of the rightholders and addressees. The scope of the right, what it offers its holder(s) and requires of its addressee(s), may be imprecisely understood. And we may lack a clear view of the right's weight in competition with other considerations. One of the confusing things about rights is that they have differing degrees of abstractness. A right under a business contract is likely to be quite specific while constitutional rights are usually abstract (and therefore somewhat vague). Abstract rights are just as important as specific rights, so we should not repudiate them simply to achieve some philosophical ideal of precision.

Distinctive Functions of Rights

Does the language of rights have unique advantages for formulating international standards for the behavior of governments? Here it will be helpful to try to identify the distinctive functions of the concept of a right. Describing what one can do with a concept usefully supplements analyses that identify their elements or constituent parts.

Goals and Rights

We can begin by comparing rights to high priority goals. Suppose that instead of formulating a bill of rights the human rights movement had formulated high priority goals in areas such as civil liberties, security of the person, due process, and social justice, and had recommended that these goals be pursued by all nations. This vocabulary would have lent itself to formulating a long list of things that it was desirable for governments to do and not do. The resulting “Universal Declaration of High Priority Goals” could have been even more expansive than the UDHR.

A declaration of high priority goals might have had much the same effect, and many of the same problems, that the UDHR has had. These goals might have served as international standards for governments and have led to familiar sorts of disputes about the phrasing, relative priorities, and ambitiousness of the goals. Defenders of these high priority goals might have justified them by appeal to considerations of human welfare, dignity, and equality. Their critics might have charged that high priority goals for such things as civil liberties and due process are Western ideas with few roots in non-Western cultures.

This comparison of goals and rights should help us to recognize some of the distinctive features of rights. I have spoken of high priority goals in order to match an apparent feature of rights, namely, that they are typically very important or high priority considerations. In Ronald Dworkin’s phrase, rights are “trumps” (Dworkin 1977). What Dworkin means to suggest with this metaphor is not that rights always prevail over all other considerations but rather that rights—or at least constitutional rights--are strong considerations that generally prevail in competition with other concerns such as national prosperity or administrative convenience. Dworkin simply makes this stipulation part of what he means by a right; he proposes “not to call any political aim a right unless it has a certain threshold weight against collective goals in general; unless, for example, it cannot be defeated by appeal to any of the routine goals of political administration” (Dworkin 1977). Dworkin's stipulation seems to be descriptively true of most uses of the concept of rights. Part of the rhetorical appeal of this concept is that having a right to something usually means having a strong claim that can outweigh other competing claims.

The assertion that rights are powerful normative considerations does not imply that their weight is absolute or that exceptions cannot be built into their scope. And the weight of a particular right is relative to other considerations at work in a given context. Some rights involve matters that are not of earthshaking importance (e.g., the repayment of a small loan). Such rights are powerful in comparison with other considerations normally at work (e.g., in the context of a small loan, the debtor's convenience).

The vocabulary of goals, if it had been chosen for the UDHR, would have yielded more flexible standards of government behavior. Even high priority goals can be pursued in various ways and can be deferred when prospects for progress seem dim or when other opportunities are present. Rights, however, are more definite than goals; they specify who is entitled to receive a certain mode of treatment (the rightholders) and who must act on specific occasions to make that treatment available (the addressees).

Rights are more suitable for enforcement than goals because they have identifiable holders, scopes, and addressees. But a theorist who wished to equate rights with some subset of goals might respond that rights are just those goals that are both high priority and definite in the sense of having specific beneficiaries and addressees.

It is not clear, however, that having these two characteristics will make a goal into a right. Suppose that a family explicitly commits itself to the goal of providing the resources for its only child to get a university education. It is clear that such a high priority goal is a lesser commitment than giving the young person a right to the resources needed to attend university. The mandatory character of a right is still missing. As long as providing the resources is merely a high priority goal, the parents would do no wrong if they decided to use their resources to pursue some other high priority goal, for example, providing for their retirement by taking advantage of a very attractive investment opportunity. But if they had given their child a moral right to the resources for a university education through an explicit promise, such a decision would be morally wrong. The mandatory character of a right provides a basis for complaint that a high priority goal does not.

Rights are distinctive not only in their high priority and definiteness but also in their mandatory character. It is these three features – high priority, definiteness, and bindingness – that make the rights vocabulary attractive in formulating minimal standards of decent governmental conduct. This character would be lost if we were to deconstruct rights into mere goals or ideals.

To avoid exaggeration here, however, two qualifications need to be stated. First, rights are never perfect guarantees. To return to our example, a young person who has been given a right to university expenses may face not only deliberate noncompliance with that right but also the parents’ inability to pay when the time arrives or even a conflicting, higher priority claim on those resources such as expensive medical treatments for a sibling.

The second qualification concerns the fact discussed above that rights vary greatly in degree of specificity, ranging from very specific, such as a right to reside in a particular apartment under a rental contract, to grand constitutional rights such as due process of law. Abstract rights are much less definite in their requirements than specific rights; indeed, very abstract rights may function in a way not too different from high-priority goals. Rights do not always imply clearly what must be done by whom, and hence actions to comply with and implement them are subject to considerable discretion. But when abstract rights can be made concrete in particular cases, they differ from priority goals by conferring on the guidance they provide a binding character that high priority goals lack and cannot confer .

Conferring Authority and Benefits

Two of the most familiar accounts of the functions of rights are the interest and will theories. Interest theories, which are associated with the utilitarian tradition, assert that the function of rights is to promote people’s interests by conferring and protecting benefits. Will theories, which are associated with the Kantian tradition, assert that the function of rights is to promote autonomy by conferring and protecting authority, freedom, or control in some area.

Will-theorists hold that the role of rights is to guarantee a specified scope for people’s decision-making capacities, their wills. A representative statement of the will theory is provided by Carl Wellman:

The function of a legal right is to resolve ... conflicts by giving legal priority to the desires and decisions of one party over those of the other. A legal right is the allocation of a sphere of freedom and control to the possessor of the right in order that it may be up to him which decisions are effective within that defined sphere (Wellman 1975).

The insight that rights often prevent disputes and promote autonomy by conferring and protecting decision-making authority is important. It is illuminating to see property rights, for example, as giving their holders authority over the use of resources, and thus denying that authority to others and to government.

Rights to benefits, such as an elderly person's legal right to social security benefits, fit this model less well. The main function of these rights is to confer benefits such as money or services on parties with certain characteristics. The powers these rights confer are only powers to decline benefits or--on the other side--to demand and receive a hearing if benefits are denied or terminated.

There are three conditions for a rightholder to have full and effective control over, say, the repayment of a loan. One, obviously, is that there must be compliance with the right, and this often requires some means of coercing those who do not comply voluntarily. Enforcement, however, is a condition for the effectiveness of the right, not for its existence or possession. A second condition is that the persons who are required by the right to repay be able to do so, and the third condition requires that an engaged right not be overridden in a particular case by stronger normative considerations.

Will theories need also to be qualified to accommodate cases where a right to A is accompanied by a duty to do A. In many countries citizens have both a right and a duty to vote. The right confers no control over whether a citizen will vote, except when officials exclude some people from voting or fall to hold elections. The right protects against these abuses. The accompanying duty requires that people make use of opportunities to vote when they are offered. Here the most we can say is that the right to vote gives citizens valid claims against government officials to be given regular opportunities to vote. It does not give citizens control over the decision whether to vote when elections are being held.

Interest theories assert that the function of rights is to promote interests by conferring and protecting benefits. Jeremy Bentham, for example, held that to have a right is to be in a position to benefit from another’s duty (Bentham 1838). John Stuart Mill held that universal moral rights are justified as protections of people’s most basic and shared interests (Mill 1863). An interest theory would emphasize that although a minority stockholder’s property rights provide very little control over the corporation's use of the individual’s assets, these rights put the stockholder in position to benefit from the earnings of the corporation.

It has often been argued that being in a position to benefit from an obligation does not itself amount to having a right. Repayment of an overdue loan may benefit people other than the lender (e.g., aged parents, whom the lender will now have the means to support), without those beneficiaries having a right to repayment of the loan. Further, one can have rights that are not in fact beneficial. Officials may not benefit by or have interests in all of the powers conferred by their positions. Some of these powers may be merely burdensome and offer no real advantage to their holder. If we continue speaking of rights as conferring benefits or goods, our broad generalization has many exceptions.

We need not choose between the will and interest accounts because rights can have more than one distinctive function. If the will and interest accounts are formulated as theses about important functions of rights, then they are mutually compatible and even correct each other's exaggerations. There is no contradiction between the statements (a) “conferring a sphere of authority on rightholders is a distinctive function of rights,” and (b) “conferring benefits on rightholders is a distinctive function of rights.” A contradiction arises only if we assert that each is the only distinctive function of rights. Nothing requires us to make this stronger claim. Considerable tension exists between the associated Kantian and utilitarian traditions in moral and legal philosophy, but it is perfectly consistent to take both conferring and protecting authority and conferring and protecting benefits to be important functions of rights. To combine the two theories one need only say that rights serve to direct the behavior of the addressees in ways that make available to rightholders freedoms, protections, opportunities, immunities, powers, and benefits.

This broad description of rights emphasizes the wide variety of things that rights secure. Within a particular legal system one might have rights to act in certain ways (e.g., to leave the country), to be treated in certain ways (not to be subjected to cruel punishments), to have certain protections (those provided by police and fire departments), to have certain opportunities (to vote or to attend free public schools), and to receive certain goods (free school lunches or social security payments). It is implausible to select liberties, authority, or benefits as canonical. In what follows I will sometimes write, for reasons of linguistic convenience, of all the various things to which there can be rights as “goods,” but this description should be understood as a loosely-used shorthand device.

Claiming Things as One’s Due

A third thesis about the functions of rights emphasizes their usefulness in claiming things as one's due. It is sometimes accompanied by the assertion that in allowing claiming things as one’s due, rights provide especially firm support for dignity and self-respect. Joel Feinberg states this as follows:

Even if there are conceivable circumstances in which one would admit rights diffidently, there is no doubt that their characteristic use and that for which they are distinctively well suited, is to be claimed, demanded, affirmed, insisted upon.... Having rights, of course, makes claiming possible, but it is claiming that gives rights their special moral significance .... Having rights enables us to “stand up like men,” to look others in the eye, and to feel in some fundamental way the equal of anyone (Feinberg 1973, see also Hart 1955, Gewirth 1981, and Pogge 2002).

Moral and legal guarantees of important freedoms, benefits, and powers do seem to support people's self respect. And we can readily concede that the identification of rightholders to whom the addressees have duties (or other normative burdens) gives rights a more definite meaning than goals. It is less clear, however, that the activity of claiming is somehow central to the meaning of the rights vocabulary or the existence of self-respect.

One problem with this assertion is that the notion of claiming a right is very ambiguous: it can involve either (1) seeking recognition of one's right or (2) invoking an already-recognized right. The latter divides into several different possibilities. These include (a) seeking to engage a right (e.g., applying for state unemployment benefits when one cannot find work); (b) demanding compliance with a recognized right in the face of a threatened violation (e.g., a member of a minority group insisting on nondiscrimination from a realtor who is giving him or her the runaround); and (c) taking steps to bring about enforcement, compensation, or punishment when one's right has been violated (e.g., taking legal action to stop continual invasions of one's right to privacy by police).

Another problem concerns the claimant. Must it be the rightholder? Or can claiming by an interested party other than the rightholder serve as well? This difference is important since a self-effacing society might rely almost entirely on interested party claiming.

These questions show how imprecise it is to say that the distinctive feature of rights is found in the activity of claiming one's due. A further problem with this thesis is that we can easily imagine the concept of a right functioning in cultures where actions such as demanding, claiming, and protesting are frowned on as discourteous. If we generalize from the close connection between rights and claiming in many Western societies, we risk giving an ethnocentric account of the functions of rights – one that overemphasizes social and legal procedures for bringing about the recognition of rights and that suggests that other cultures cannot have or adopt the concept of rights unless they are or become pushy and litigious.

Finally, it is not necessary to identify some particular speech act – claiming or anything else – as the single act which it is the special role of the rights vocabulary to perform. Most words can be utilized in a great many speech acts. Just as the word “good” can be used to perform many speech acts besides commending, the statement that someone has a right can be used to perform many speech acts besides claiming a right to A. Besides claiming rights, we can recognize them, question them, take them into account, disregard them, respect them, and use them as a basis for decision. Since these other activities give the rights vocabulary a functional role, perhaps all we should say about the connection between rights and claiming is that claiming things as someone's due is one of the characteristic things done by rights talk.

The Focusing Function

Duties focus on what the addressee must do, while rights focus on the benefit the rightholder will receive if the addressees satisfy their duties. By identifying in its scope a freedom or benefit to be made available, a right identifies the rationale of the various powers, immunities, duties, and liabilities that are part of the right. This is one way in which rights are different from duties. Richard Brandt makes this point as follows:

A manifesto of the Women's Movement might list innumerable duties of men, corporations, or government, in respect of women. But such a list would lack focus. After all there is a target here: that women have an equal opportunity for a good life. That is what all these duties are aimed at; the duties are what other people must do if women are to have an equally good life. In talking of a right to equal opportunity, we focus attention on the intended good (Brandt 1983).

Multiple Functions

The arguments in this section show that there is no single function of the concept of rights. Among other things, rights characteristically (1) provide a normative category that is binding, high priority, and definite; (2) confer and protect a sphere of authority; (3) confer and protect benefits or goods; (4) provide a normative vocabulary that allows for “claiming” in a variety of senses, by either rightholders or interested parties; and (5) provide a focus for particular duties.

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