Suppose you want something to be a right. In other words, you want to make a new right.1 What are the ingredients that you need to “cook” it? What is the stuff that rights are made of? I’ll focus of course on the necessary ingredients only, as well as on the necessary ingredients that aren’t trivial. For example, it’s trivial that rights are universal, otherwise they would be privileges. The same triviality applies to the equality of rights, their priority, their force of obligation, their exceptional nature etc. If anything and everything can be a right, then the force of obligation of those rights and their priority over other moral or legal considerations will vanish.
So, very briefly: in order for something to qualify as a human right, the following ingredients are necessary, and concurrently necessary (though not concurrently sufficient; I’m not offering a complete list of all necessary properties of rights):
- We should be dealing with important claims, in some socially agreed sense of “important”. Non-important claims as well as claims that are only idiosyncratically important (for example, the claim that people should have the right to live in a climate where the temperature is consistently between 23 and 26 degrees Celsius, or the claim that a particular person should have the right to recognition as an artist) should not be turned into a right, because that would diminish the importance of rights as such and of rights in general. There’s also a pragmatic reason for allowing only important claims to contend for “rightship”: rights imply duties, and duties should not become overbearing. Too many rights equals too many duties, which in turn equals disrespect for duties.
- We should be dealing with claims that are amenable to social help (in the words of Amartya Sen), either through legislation, policy or horizontal help. Some claims may be important and yet impossible for people to achieve through law, governance or mutual assistance. It’s universally agreed that romantic love is an important good and that people have good and non-idiosyncratic reasons to claim that they should be loved and should be able to love. And yet no one to my knowledge has made the case that romantic love can be promoted by the courts, by governments or by beneficence (other types of love, such as agape or philia may be more amenable to social or even legal action).
- We should be dealing with interpersonal claims. Rights are claims from one person to another, even when we claim our rights against the state. Rights violations are always committed by human individuals, whatever their official capacity. So claims from God, for example, aren’t good reasons to make a right. We should not respect rights because God claims that we should, although of course we should welcome all motives, however fanciful, that promote the rights which we should value for argued reasons (as opposed to “revealed” reasons). Rights also exclude reasons from nature. We should not respect rights because “human nature” requires that we should. Human nature is a highly dubious concept, and can’t by itself constitute a good enough reason to value rights. Some more argumentation is required to convince us that something is a right, and this argumentation may end up with a notion of human nature but can’t start from it. One caveat: the definition of “persons”, like the definition of “important”, may evolve over time and after social discussion. For example, it may come to include animals, the dead, future persons etc.
1 As most thinkers today, I see rights as things that are “made”. They aren’t given by God. They aren’t “natural” in the sense of being “there” just as other things of nature are “there”. People don’t have rights simply because they are natural human beings. They have rights because someone has proposed that they have rights, and that through argumentation and deliberation over a long period of time we have convinced each other that there are good reasons to have rights. Rights are “made” in the sense that we have proposed them and ultimately agreed on them. Which doesn’t mean that those among us who don’t accept this agreement – for whatever philosophical or selfish reasons – are allowed to ignore and violate rights. They should still respect them because there are good reasons why they should respect them. (Rights are part of a “justified morality“). This is a strange double nature of rights: they are both objects of agreement and beyond agreement. Strange, but not much different from any other philosophical or scientific proposition that has been found to possess good reasons for its truth, such as the proposition that free markets are often beneficial. (“Truth” not in any absolute sense, of course; future argumentation can undermine reasons that we now believe are sound, or can unearth reasons for other, conflicting propositions). The double nature of rights as things subject to agreement and yet also above agreement is apparent from the fact that rights are both legal and moral. Legal rights are – or better should be – strictly contractual, whereas moral rights of course exist independently of agreement.