Understanding Rights in a Moral Context

It is difficult to discuss moral rights in abstraction from a particular moral theory and the particular claims it makes about such rights. (Theories of moral rights are generally not independent moral theories, but rather elements of more general moral theories.) But because talk of rights figures so prominently in political and moral discourse, and because so much of that talk is muddled and/or question-begging, we think it necessary to say something about moral rights in general: to identify some important distinctions, concepts, complexities, and theoretical positions that should be kept in mind when discussing moral rights. Not everything we say here is uncontroversial, but we do attempt not to assume any point on which we would bear the burden of argument.

Moral rights vs. legal rights

We must, of course, distinguish between moral rights and legal rights. Slaveholders in the antebellum South had legal property rights in their slaves: legally, their slaves were their property. But it does not follow that they had any moral property rights in their slaves: morally, their slaves were not property, but rather free and equal beings.

Perhaps less obviously, we must also distinguish between rights that are recognized or enforced and those that are not. Slaves in the antebellum South had moral rights to liberty and equality that were neither recognized nor enforced, either by the law or by the conventional morality of the antebellum South.

Human Rights

Human rights are those moral rights of humans as such, rights that humans have in virtue of being human. “Human” here is used in the moral sense and does not mean a biological human, a member of the species Homo sapiens. What features are definitive of humans in the moral sense is itself an open question in philosophical ethics, as is the question of whether all humans in the biological sense are also humans in the moral sense. For instance, if reason or the capacity for choice is necessary for humanity in the moral sense, then some Homo sapiens—including infants—are not humans in the relevant sense. On the other hand, if sentience, the capacity to suffer, or having interests is sufficient for humanity in the moral sense, then not only are most infant Homo sapiens humans in the relevant sense, but so too are many pets, livestock, and wild animals.

Natural Rights

Natural rights are moral rights that humans (in the moral sense) have because of their nature, or in virtue of being human. Thus, the (historical) term natural rights and the (contemporary) term human rights are synonymous. Natural rights are sometimes said to be rights that humans have, or would have, in a pre-political “state of nature.” But this is simply a consequence of the fact that they are moral rights that humans have because of their nature, as opposed not only to legal and other conventional rights, but also to civil rights.

Civil Rights

Civil rights are moral rights of citizens as such. In moral and political philosophy, they are often further defined as the rights that constitute free and equal citizenship in a liberal democracy.

The claim that all natural rights are negative rights—claim-rights against others that they forbear from doing certain things, which include rights to non-interference or negative freedom—has its origins in an eighteenth-century understanding of such rights that is far narrower than most contemporary understandings thereof. Thus, the claim that there cannot be natural rights to such things as an education, healthcare, or a certain standard of living because all natural rights are negative rights is question-begging: it assumes a particular, controversial conception of such rights, one that is not shared by anyone who thinks that there are natural rights to such things. In this regard, it may be worth noting that a right can be a natural or human right even if its realization requires the existence of a political community, such as a state, with the resources necessary to secure its realization.

Claim rights, liberties, powers, and immunities

Talk of rights, or of what someone has a right to, is systematically ambiguous between talk of claims or claim-rights, liberties (aka privileges, licenses or permissions), powers, and immunities. (These terms derive from Hohfeld’s discussion of legal rights¹⁴. ) Consider the following statement, “Smith has a right to give her car to Jones.” This statement could express four entirely different propositions. That is, it could say or mean four entirely different things.

1. Smith has a valid claim that others not interfere with her giving her car to Jones. In other words, Smith has a claim or claim-right against others that they not interfere with her giving her car to Jones.
2. Smith has no obligation or duty not to give her car to Jones. In other words, Smith has a liberty to give her car to Jones.
3. Smith has the authority to give her car to Jones. In other words, Smith has the power to alter the existing scheme of rights and duties by giving her car to Jones—that is, by transferring her property rights in the car to Jones.
4. Some other (e.g., the state or Smith’s parent) lacks the authority to prohibit Smith from giving her car to Jones. In other words, Smith enjoys a certain immunity with respect to some other’s power to alter the existing scheme of rights and duties.

A claim-right is a valid claim to a performance or forbearance, a valid claim that someone do or forbear from doing something. (N.B. Claim-rights include not only rights to negative freedoms, but also rights to active assistance.) A liberty is an absence of an obligation or duty to do or forbear from doing something. (The terms “privilege” and “license” often connote an exceptional absence of a duty or obligation, as does the term “special permission.”) A power is a certain authority to alter the existing scheme of rights and duties, while an immunity is a certain immunity from such an authority. Claim-rights are often said to be rights in the strictest sense, and some go so far as to deny that liberties, powers, and immunities are rights properly so called. Moreover, in some contexts, the term “right” connotes a claim-right as opposed to a liberty, power, or immunity.

Strictly speaking, one cannot have a claim-right to do something. This is not to deny that statements such as “Smith has a right to give her car to Jones” and “Jones has a right to speak” can ascribe claim-rights. Rather, it is to say that (when they do) the claim-rights they ascribe are claim-rights against others that they not interfere with Smith’s giving her car to Jones or with Jones’s speaking, respectively.

Moreover, assertions of claim-rights do not entail assertions of liberties, nor do they entail assertions of permissibility. For example, it could be that Smith has a claim right against others that they not interfere with her giving her car to Jones even though she has an obligation or duty to give it to a third person, Black, and even though it would be wrong (impermissible) for her to give it to Jones rather than to Black. Thus, I may have a right to say something defamatory or to obtain an abortion in the sense that I have a claim-right against others that they not interfere with my doing this or punish me after the fact for having done it, but that would not suffice to justify my doing it. Likewise, I may have a right not to give the money I spend on luxuries to the needy in the sense that I have a claim-right against others that they not force me to do this, but that does not justify my not doing it.

The forgoing facts may be obscured by the following fact: when we speak of rights, we are often speaking of complex aggregates of rights that include claim-rights, liberties, powers, or immunities. (Judith Thomson suggests that such aggregates are themselves rights, rights that contain other rights, or “cluster rights.”¹⁵ .) For example, when we speak of Smith’s property rights in her car, we mean an aggregate of rights that includes both Smith’s claim rights against others that they not interfere with her continued possession and use of that car and Smith’s powers to transfer (or alienate) her rights therein. And when we speak of a right of self-defense, we often mean an aggregate of rights that includes both a qualified liberty to do certain things that are normally prohibited (e.g., use violence) to defend oneself and a claim-right against others that they not interfere with one’s exercise of that liberty. Similarly, when we say that someone is “at liberty” to do something or has “the liberty” to do something we often mean not only that she as a liberty to do it (i.e., that she has no obligation not to do it), but also that others have an obligation not to interfere with her doing of it.

For these and other reasons, a theory of rights will not be a complete moral theory. And knowing what the rights of the relevant parties are is not sufficient to know what one ought or ought not do.

Correlative duties

Claim-rights entail “correlative duties,” or corresponding obligations. For example, if Smith has a right against me that I not interfere with her giving her car to Jones, I have a correlative duty not to interfere with Smith’s giving her car to Jones. Moreover, I owe this duty to Smith. For correlative duties are owed to the holders of the correlative rights.

Note that not all duties or obligations entail correlative rights. Thus, while the absence of an obligation or duty entails the absence of a claim-right, the absence of a claim-right does not entail the absence of an obligation or duty.

For these and other reasons, a theory of rights will not be a complete moral theory. And knowing what the rights of the relevant parties are is not sufficient to know what one ought or ought not do.

Consent, waiver, and forfeiture

One does not violate a person’s rights if one acts with that person’s consent. For example, I do not violate Smith’s property rights in her car if I use it with her permission. Consent can be thought of as the granting of a liberty, which liberty may be qualified or revocable. So understood, it implies a power, the power to grant a liberty.

To waive a right is to give it up voluntarily. Waivers may be limited or revocable. To forfeit a right is to lose it by fault or wrongdoing. Forfeitures may be limited. Both waiver and forfeiture imply powers, the powers to waive and forfeit the rights in question.

Inalienable rights

Strictly speaking, an inalienable (or unalienable) right is one that cannot be transferred. (In property law, “alienability” refers to the transferability of property rights.) Thus, someone who possesses an inalienable right lacks another right, namely, the power to transfer that inalienable right. But in law, the term is often used differently, to refer to a right that cannot be transferred or surrendered without the right-holder’s consent. And in moral philosophy, the term is often used more broadly to refer to a right that cannot be lost or given up either by transfer, forfeiture, or waiver. Historically, it was used to refer to a natural right that cannot be—and thus is not—transferred or surrendered to the sovereign or the state upon becoming a subject or a citizen. And some (perhaps many) would distinguish rights that are inalienable in that sense from rights that cannot be forfeited by, for example, committing a capital offense or waived by, for example, enlisting in the military.

Constraints, instruments, or goals

Constraint theories

Constraint theories of rights claim that rights are constraints, limits or restrictions on what we may do to promote good ends or optimal outcomes—limits on what it is permissible to do, even to achieve noble ends or the greater good (including the ends of promoting respect for rights and of minimizing the violation thereof). Expressions of the idea that moral rights are constraints include John Rawls’s thesis that the demands of justice have “lexical priority” over other moral considerations, Robert Nozick’s thesis that moral rights are “side-constraints” on the pursuit of our goals, and Ronald Dworkin’s thesis that political rights are “trumps” over collective goals that are held by individuals.¹⁶

Constraint theories assign rights a non-instrumental status but may take them to be derivative of other sorts of constraints, including obligations or duties. For example, many Kantian ethical theories claim that the basic moral unit is an obligation to treat rational nature “as an end in itself” or to treat rational beings as “ends in themselves,” rather than a right of rational beings to be so treated. On such theories, rights are derivative of an obligation that is more fundamental, even if they are constraints rather than instruments for acknowledging the moral status of persons (see below).

that the consequences of infringing a right would, on the whole, be better than the consequences of respecting that right does not suffice to make infringing that right permissible.

To claim that moral rights are constraints is thus not to claim that moral rights are absolute constraints, or that it is never permissible to infringe a moral right. Using terminology introduced by Thomson (1986), we may distinguish between “infringing” a right and “violating” a right. To infringe a negative right is to do something that someone has a claim-right against you that you not do, while to infringe a positive right is to not do something that someone has a claim-right against you that you do. And to violate a right is to infringe a (positive or negative) right impermissibly. In this terminology, the claim that moral rights are absolute constraints is the claim that moral claim-rights may never be permissibly infringed, or that every infringement of such a right is a violation thereof. And that claim is one that most constraint theorists (including Thomson and Dworkin) reject.

Instrumental theories

Instrumental theories of rights claim that moral rights are instruments, or means, either for promoting valuable ends or outcomes (e.g., well-being or equality) or for acknowledging the moral status of persons. Such theories assign rights and respect for rights a derivative status, as means to ends or as ways of acknowledging moral personhood or aspects thereof. Nevertheless, they may assign practical priority to rights and respect therefor. That is, they may claim that, for practical purposes (deliberation, justification, etc.), rights function as if they were constraints.

End-state Theories

Amartya Sen has defended a third option, a goal-rights (or end-state) theory—that is, one claiming that the fulfillment and non-violation of rights are themselves valuable ends and, so, contribute to the overall value of states of affairs. This theory assigns rights and respect for rights a non-derivative status, as intrinsic goods and ends to be promoted. Furthermore, it denies that rights are constraints.

Regardless of which of these theories we accept, it is always presumptively wrong (immoral or unethical) to infringe a claim right. However, this presumption is rebuttable so long as the right in question is not absolute, and any claim that a right is absolute will be controversial.