What Are Human Rights? (36): A “Right To Something” Always Includes a “Right Not To”

The claim that a right always includes the inverted right is obvious once you start to look at examples. The right to free speech is a right to speak but also a right not to speak and to remain silent. Evidence for this can be found in practice and in intuition. Many systems of law specifically grant a right to remain silent in certain circumstances such as criminal prosecution. However, such a right isn’t or shouldn’t be limited to specific circumstances. A general right to remain silent is intuitively appealing: the absence of a right not to speak would imply the legitimacy of compelled speech, and compelled speech is problematic in different ways. We don’t like it, and we don’t think it’s meaningful. Examples of compelled speech such as loyalty oaths, flag salutes etc. clearly show how pointless compelled speech can be. Loyalty or promises can’t be compelled, and hence it’s better to let people opt out of them if they so desire. (In the U.S., the West Virginia v. Barnette case created a First Amendment right not to speak precisely in the context of such loyalty oaths).

In addition to the factual and intuitive evidence in favor of a right not to speak, there’s also some logical support: it seems incoherent to have the freedom to speak your mind and then be compelled to say what is not on your mind.

A lot of this reasoning applies to other rights as well. Take the freedom of association. This right also includes the freedom not to associate (the freedom to stay out of groups or to leave groups). In this case, the actual phrasing of the right in human rights documents is explicit – which is not true for the right to free speech. Take article 18 of the Universal Declaration:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief [my emphasis].

Or article 20:

Everyone has the right to freedom of peaceful assembly and association.  No one may be compelled to belong to an association.

There’s also the intuitive appeal of a right not to associate. Absence of such a right would legitimize some forms of compelled association, and compelled association undermines the whole purpose of association, like compelled speech undermines he purpose of speech: people associate because they want to, and they want to because association brings certain benefits – identity, belonging etc. None of those benefits can be produced by compelled association.

However, this is as far as the analogy to free speech goes. Contrary to free speech, the inverted freedom of association seems to allow exclusion. The freedom of an association not to associate with certain persons – e.g. the Boy Scouts of America refusing to associate with a gay scoutsmaster – restricts the right to associate and perhaps even the freedom to associate of the excluded persons, and is often a violation of the right to non-discrimination. Exclusion has a bad ring to it, but I think that’s a pill we have to swallow. Without exclusion rights, association rights don’t mean a thing. If associations can’t decide who to include or exclude, what is the point of having associations? So what we have here, potentially, is a conflict between rights: a conflict between on the one hand the inverted right to free association (inverted because it’s a right not to associate with certain people) and on the other hand the right to associate (and possible also the right to non-discrimination) of the excluded.

And in many cases, there’s no easy way out of such conflicts. Decisions about the supremacy of conflicting rights have to be decided on a case by case basis taking into account the relative damage done by different decisions. In our example, if there are many different “scouts” groups and just one of them wants to exclude gays, then gays have ample opportunities to go elsewhere and the inverted association right of the bigoted scouts group should be upheld. If, on the other hand, exclusion of gays is so widespread that gays have seriously diminished opportunities in life, or if exclusion of gays is limited to scouts groups but this is still a serious limitation of opportunities (if, for example, joining a scouts group is fundamental to human life), then the inverted association right of the excluders should give way.

So these are two rights for which it is clear that they contain their inverted versions. I could make similar arguments for other rights (the right to life includes the right to suicide, the right to privacy includes the right to publicity, the right to property includes the right to live naked in the woods etc.), but I don’t want to force those of you who haven’t already stopped reading to do so now.

That’s because I still have some important general remarks about inverted rights. First, we can only talk about inverted rights for those human rights which do not already take the “not to” form. For example, it doesn’t make sense to say that the right “not to be tortured” or “not to be a slave” includes the inverted version. Second, inverting rights looks a lot like waiving rights, but it’s not quite the same. Waiving a right means that you don’t want others to enforce your right. Inverting a right means that you claim a right not to do what a right allows you to do. In the former case you give up a right, in the latter you claim an additional right.

A final remark: when people claim a “right not to” or when they want to waive their rights, we want to know that they do so freely and that their choice is an informed one. Otherwise we could simply be dealing with a covert form of oppression in which the oppressor has somehow convinced a victim to abandon his or her rights or to claim a right not to do something that annoys the oppressor.

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2 thoughts on “What Are Human Rights? (36): A “Right To Something” Always Includes a “Right Not To””

  1. […] The human right to free speech protects people against compelled silence, but can and should it also protect them against compelled speech? I think in general the answer is yes. Free speech guarantees freedom, and freedom in any definition of the word should include both the freedom to do and not to do. Hence free speech rights include both the right to speak freely and the right to remain silent – or, in other words, the right not to be anyone’s coerced messenger. (In general, it’s true that a right to do something also includes a right not to do it. More here). […]

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