Rights are found in various normative systems, such as moralities, the regulations of organizations, and local, state, national, and international legal systems. It is common to classify rights by the kind of normative system in which they are rooted. A positive legal right is one that is recognized and implemented within some legal system. A moral right is one that exists within a morality.
Moral rights can be divided into those that exist in actual moralities and those that exist as theoretical constructs in critical or justified moralities. An accepted moral right is one that exists within the actual morality of some group or groups. For example, a group’s moral code may give people a right not to have their clothes forcibly removed by other persons. Such a right may exist prior to the group’s having a formal legal system, and it may be recognized and enforced by the formal legal system once such a system comes into being. Rights often exist both as accepted moral rights and as positive legal rights.
When a right is part of a group’s actual morality, it is used as a standard of argument and as a guide to the evaluation of conduct and social policy. Those who refuse to comply may be scolded, shamed, ostracized, exiled, beaten, or even killed. For some rights such recognition and implementation at the moral and social level may be all that is possible or desirable. Legal or governmental implementation may be impossible (as with, say, a right to revolt against repressive governments), or it may be inappropriate because it would be too costly or because its enforcement would require unacceptable violations of other norms.
Many people believe that their moral rights include not only those accepted within their society but also some unaccepted rights they believe to be justifiable. This belief suggests that there is an additional category of justified moral rights. A justified morality may be a philosophical reconstruction of morality, of the sort one finds in Kant and Mill, or it may be simply an actual morality that has had some deficient norms replaced with ones believed to be better.
Positivists and skeptics hold that we should take legal rights as our exclusive paradigms of rights and thus treat moral rights as degenerate or spurious. Closely connected issues here are whether it should be definitional that rights are constituted by the duties or other normative burdens of the addressees, and whether legal and moral rights are rights in the same sense of the word.
Three broad positions can be taken in response to these questions, corresponding to three stages in the evolution of a legal right. The first stage is the recognition that it is very important for people to have some good available to them – that people are somehow entitled to that good. The second stage involves identifying moral duties, disabilities, and liabilities of some parties that, if they are complied with, will result in the availability of that good. The third stage involves constructing parallel legal duties, disabilities, and liabilities and providing measures for their enforcement; at this stage a legal right emerges.
Each stage corresponds to a position on when it is appropriate to speak of a right. The first, which I call the entitlements theory, endorses a liberal use of the language of rights and holds that it is proper to speak of rights whenever one can justify on moral or legal grounds the proposition that people are entitled to enjoy specific goods – even if we cannot say who should bear the burden of making these goods available or how these entitlements should be implemented and enforced. A more restrictive view, which I call the entitlements-plus theory, holds that entitlements alone cannot constitute full fledged rights and must be supplemented by the identification of addressees who have appropriate moral duties, disabilities, or liabilities. These burdens on the addressees are the “plus” added to the entitlement to yield a full-fledged right. The third and narrowest position, which I call the legally implemented entitlements theory, agrees with the previous theory in holding that genuine rights are more than mere entitlements, but it holds that this “something more” must include legal implementation. In this view, it is not proper to speak of rights at the earlier stages; the real thing does not emerge until one has effective legal implementation.
All three theories have been forcefully advocated in various forms, and I want to explore the advantages and disadvantages of each. I propose to appeal to the following desiderata for analyses of rights.
1. Accuracy: The analysis captures all of the important features of rights.
2. Inclusiveness: The analysis covers the entire range of intelligible uses of the rights vocabulary.
3. Penetration: The analysis draws useful distinctions, including marking different kinds of rights and distinguishing between rights and other norms.
4. Economy: The analysis does not multiply rights unnecessarily; it does not inflate the rights vocabulary by confusing rights and goals.
5. Exportability: The analysis allows rights to be used in a variety of cultures and legal traditions; it does not tie the idea of rights to a particular legal or cultural tradition.
Because these criteria are unranked, difficult to interpret, and possibly incomplete, they cannot conclusively settle some issues. But they at least provide explicit standards in an area in which standards of analysis are often left unspecified.
The Entitlement Theory
Broadly, this theory holds that a right is a very strong moral reason why people should have a certain freedom, power, protection, or benefit. H. J. McCloskey puts forward a theory of this kind; he believes that rights are best “explained positively as entitlements to do, have, enjoy, or have done, and not negatively as something against others, or as something one ought to have” (McCloskey 1976). McCloskey’s view implies that a full fledged right need not specify who bears the burden of making available what the right is to; a right is not to be equated with claims against other parties. Of course, rights do often give rise to duties, but McCloskey wishes to emphasize the logical priority of entitlements to the duties they generate. An entitlement seems to be a strong set of reasons, rooted in the nature of human beings, for ensuring that a certain good is available to people. Since McCloskey believes that entitlements – and thus rights – can exist even when it is not feasible to implement them, he finds no difficulty in saying that a right to medical care, for example, is a universal human right.
The entitlement theory has the advantage of accounting for the wide range of actual uses of the rights vocabulary. McCloskey emphasizes that people often speak of rights when it is unclear who must bear the burdens of these alleged rights. Thus McCloskey would have no objection on linguistic grounds to reformers who declared a new right even though they were unable to specify who would bear the burdens of this right, what exactly these burdens would be, or whether resources were available to meet such burdens. Such rhetorical uses of the rights vocabulary are very common, but a key issue here is whether we should endorse them.
A second advantage of the entitlements theory is that its notion of rights is readily exportable. Talk of entitlements is tied neither to possibly parochial activities such as claiming things as one’s due or seeking remedies for wrongs nor to legal implementation. Thus the vocabulary of rights can easily be put to use in diverse cultures.
Viewing rights as mere entitlements, however, is likely to have inflationary results. A moral right will exist whenever there are strong moral reasons for ensuring the availability of a certain good. Hence there is danger that the list of entitlements will be nearly as long as the list of morally valuable goods. To extend the economic metaphor, this conception has no built in assurance that the demand side of rights will not outrun the supply side the side involving addressees who bear normative burdens.
The entitlement theory is insufficiently penetrating because it is unable to distinguish between rights and high priority goals. Here I appeal to the definiteness of rights (the fact that they have assignable holders and addressees) and to their mandatory character. The entitlement theory comes close to collapsing rights into high priority goals by diluting the mandatory character of rights and by cutting out essential reference to their addressees.