The Meaning Of "Right"

Rights. Since the seventeenth century, problems connected with rights have steadily engaged the attention of political and legal philosophers. For medieval philosophers the problems of political ethics were problems not of rights but, rather, of the duties a man owed to his lord, his king, his church, or his God, by virtue of his role and function in the universal order. Medieval lawyers, it is true, might challenge encroaching authority by appealing to the ancient and customary privileges or "liberties" appertaining to status or to corporate communities like cities and guilds. In the seventeenth and eighteenth centuries, however, such considerations gave way to notions like "an Englishman's birthright" or, still more personal and universal, "natural rights." Thereafter it was commonly held that it was the proper task of the state and of positive law to safeguard such rights, lists of which were drawn up in documents like the American Bill of Rights and the French Declaration of the Rights of Man for the guidance and control of governments.

The idea that a man could have a right which, as natural, inalienable, and indefeasible, had some kind of sanctity and validity transcending that of ordinary positive law led philosophers to speculate about what kind of thing a right might be. What sort of assertion is it to say that X has a right to R, and what kind of criteria would have to be satisfied for such a proposition to be true?

Juristic theories of rights. Many philosophers and jurists have treated questions about the nature and criteria of rights as if they asked what facts were referred to when one said "X has a right to R." Spinoza, for instance, tried to give a consistent account, in terms of power, of all instances where rights were ascribed. Thus a man's natural right amounted to the power he could exercise over another; a sovereign's right was the power he exercised by virtue of the combined power of all the individuals who were prepared to support him; and the individual's legal rights were the powers he had by virtue of the sovereign's support in upholding the law. Again, T.H. Green described an individual's right as "a power of acting for...what he conceives to be his own good, secured to an individual by the community."

A right, however, is not and does not necessarily imply a power (except, perhaps, in the sense of a legal competence like, for instance, the power to make a will). For a man may have rights he is powerless to enforce if the courts are corrupt or his opponents too powerful to risk offending. One might say perhaps that his rights are hypothetical powers -- what he would be able to achieve if he were able and chose to appeal to the courts and if the courts acted according to the law. But this would be the same as saying that his rights are the powers he would enjoy if he had his rights. Rights, in other words, may explain why persons have the powers they do, but they are not identical with these powers...

A right is commonly said (by Paul Vinogradoff, for instance) to be a claim upheld by the law. As in the case of "power," however, there is an ambiguity between the positive and the normative sense of "claim." If by a claim were meant a demand actually made, it might be objected both that men possess rights to things they never claim, and that it makes sense to talk of the rights of infants incapable of demanding anything. On the other hand, "to have a claim," as against "to make a claim," means that if one were to make a demand, it would be justified or, at least, defensible. But as with "power," this would then locate the concept not in the language of description but in that of norms. Vinogradoff may well be right in saying that men have acquired legal rights only by claiming them, yet it would be a mistake to confuse a historical fact with an account of the meaning of "rights."

A rather similar confusion underlies the view that a right is an interest protected by the law (Rudolf von Jhering). This view is unsatisfactory whether what is meant by an "interest" is what a man desires or whether it means that it would be to his advantage to have. A man may have rights to what he does not desire. It is not a condition of my having a right to the repayment of a debt, for instance, that I should want it repaid. Equally, however, I may have rights that are not to my advantage. A right to drink myself to death without interference would not be logically absurd. Though, generally speaking, our rights do protect our interests, they are not themselves protected interests.

Rights and duties. Bentham and Austin defined rights in terms of duties. "Every right," says Austin, "...rests on a relative duty...lying on a party or parties other than the party or parties in whom the right rests" (Province, 1954 ed., Footnote p.285); for Bentham and Austin, a duty exists only where the law imposes (and enforces) a sanction for a breach of it. Bentham wrote in his Fragment on Government (1776), "Without the notion of punishment...,no notion could we have of either right or duty." There are two points here: first, whether duties really depend on consequential sanctions for their meaning or only for their effectiveness, or perhaps for neither; second, whether every right has its correlative duty, such that the right of X can always be stated without alteration of meaning as a duty of Y. As to the first point, there is no internal contradiction in the notion of a duty without a sanction. Indeed, English administrative law has frequently placed statutory duties upon authorities while barring judicial review and providing no alternative remedy or sanction. Outside the sphere of law, it certainly makes sense to talk of moral duties without sanctions. What one ought to do cannot properly be equated with what one must do to avoid a penalty.

The correlation of rights and duties raises more difficult questions. If to ascribe a right is not to attribute a socially supported power or, indeed, to describe any actual or hypothetical set of facts about human behavior, can one say that it must be a way of stating the provisions of a system of rules and therefore a way of prescribing conduct? Yet a right implies neither what a man must nor what he ought to do, but what he may do if he chooses. It can be reconciled with an exclusively prescriptive conception of law only by identifying every right with an obligation in reverse -- "X has a right to $10 from Y" being exactly equivalent to "Y has a duty to (that is, shall) pay X $10 if X so chooses"...

A general statement of rights differs from a corresponding "conclusion of law" in that a general statement cannot be elucidated in terms of a duty but at best only in terms of an obligation of one class of persons to another, defeasible in particular cases by any of a number of pleas or excuses. A general right is thus a ground of claim, not a license to infer what ought to be done...

Bibliographical References In Article:

Maurice William Cranston, What Are Human Rights? (New York, 1963). With a preface by Reinhold Niebuhr.

H.L.A. Hart, "Are There Any Natural Rights?" Philosophical Review, Vol. 64 (1955), 175-191.

Leo Strauss, Natural Right And History (Chicago, 1953).

W.D. Ross, The Right And The Good (Oxford, 1930).