Why Do We Need Human Rights? (41): Our Interests or Our Autonomy?

Two competing answers to a fundamental question about rights are doing the rounds: why do we need rights anyway? There’s an interest theory of rights which gives one answer, and then there’s a will theory of rights which gives another, incompatible answer. (There are other theories but most of the discussion is between these two). Very, very simplistically, the answers are these:

  • Will theory (WT), otherwise known as choice theory, argues that the purpose of rights is to protect and foster individual autonomy. An individual who has rights is a small-scale sovereign. WT attempts to establish the validity of human rights based on the unique human capacity for freedom. Rights help to protect and realize this capacity. This implies that the rights holder has the moral power to waive or annul his or her rights. All rights are derived from the essential right of all human beings to be free.
  • Interest theory (IT) argues that the principal function of human rights is to protect and promote certain essential human interests. This is another way of saying that rights protect what is beneficial to individuals:

Necessary though insufficient for the holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of X’s situation that on balance is typically beneficial for a being like X. (source)

Both theories have appealing and somewhat less appealing features. One appealing aspect of WT is that it wants to offer equal freedom to all. People want things, face choices – good and bad – and need opportunities to do things. Rights offer the ability to make preferred choices and provide the opportunities to do things. The understanding that most rights are alienable is also positive, in my view.

However, more problematic – and some say fatal – is the fact that WT rules out the holding of rights by animals, dead people, future persons, infants, comatose people, severely mentally disabled people, senile people and fetuses. In WT, people only have rights when they are competent to claim rights, and members of the cited groups can’t typically claim rights. If they don’t have rights, we can do whatever we want to them. Not a good conclusion.

Personally, I think the most appealing feature of IT is that it more or less corresponds to my own value theory of rights (which I argued for here). Also not to be frowned upon is the fact that IT avoids the problem of the rights of non-autonomous beings.

One problem with IT is the vagueness of the term “interests”. What is an interest? Should it be the case that an individual understands an interest as an interest (in other words, should an interest be a felt interest)? Or is it enough that the interest is objectively a human interest? In the former case, IT replicates the problem of the comatose and others who can’t be said to understand their interests. In the latter case, we’ll quickly end up with paternalism and we’ll also have to enter the treacherous domain of human nature.

Another problem is that most versions of IT don’t define which specific interests we’re talking about, and which interests create rights. Consequently, IT also remains vague about the exact rights people have. In one sense, that may be positive. Rights have to evolve. But I think that the vagueness here is to be deplored.

Also, rights don’t only exist to benefit the rights holder. Your freedom of speech is in my interest as well (more on that here). Again, IT can’t deal with this very well.

To conclude, if we have to choose between IT and WT, I guess the problems faced by IT are less deep. The exclusion of large groups of beings in WT is very hard to solve. Compared to that, one can at least see some possible solutions to the problems raised by IT.

More posts in this series are here.

What Are Human Rights? (27): What Does It Mean To Have Rights?

When thinking about what it means to have a right it’s sometimes useful to replace the word “right” with another and similar word. Let’s review a few of those words and see how far they get us. You’ll notice immediately that those words only describe part of what we usually understand by the word “right”. Hence, they’ll allow us to clarify only part of the meaning of the phrase “to have a right”. Perhaps taken together they’ll provide an overall definition. (Some of the definitions are based on the famous work by Hohfeld).

Rights as privileges

Formally this can be stated as follows:

A has a privilege to do X if A doesn’t have a duty not to do X.
A has a privilege not to do Y if A doesn’t have a duty to do Y.

For example, in the U.S. I have the privilege to speak my mind, because I don’t have a duty to keep silent. Or, I have the privilege not to vote for our Dear Leader because I don’t have a duty to do so.

Rights as permissions

Similarly, one could say that rights are permissions. That sounds somewhat weaker than “privilege” but formally, this way of talking about rights has the same structure as “rights as privileges”:

A has a permission to do X if A doesn’t have a duty not to do X etc.

It’s about what a rights bearer is at liberty to do, not what he has to do or shouldn’t do. Hence, rights as liberties is again another way of saying the same thing. The fact that I have the privilege, the permission or the freedom to speak my mind doesn’t imply that I must speak my mind.

Rights as claims

A more relational understanding of rights focuses on the claims we may have on others. Having a right then means having a claim on someone.

A has a claim that B does X if B has a duty to A to do X.
A has a claim that B doesn’t do Y if B has a duty to A not to do Y.

For example, I have a claim that my employer pays me a fair wage because my employer has a duty to do that (see article 23 of the UDHR). I also have a claim that he doesn’t impose slave-like or dangerous working conditions on me because he has a duty not to do that.

Usually, and at least in the case of human rights, I have such claims vis-à-vis every other human being.

Rights as immunities

This is similar to rights as claims but it’s a bit stronger.

A has an immunity if B doesn’t have the legal, moral or political ability or power to do X to A.

For example, I have immunity against self-incrimination because a judge does not have the power to force me to testify against myself.

Rights as limits

Again, similar if not identical to immunities:

A has a right to X if B doesn’t have the legal, moral or political ability or power to interfere with A doing X.

For example, I have to right to practice my religion because no one else is allowed to interfere with me practicing my religion.

Rights as provisions

Having a right can mean more than the ability to limit interference it can also mean being entitled to the provision of some goods or services.

A has a right to X if B has the legal, moral or political duty to provide A with X.

For example, I have the right to an amount of food that guarantees my decent survival. The state, among others, has a duty to provide this food if I can’t acquire it independently. But also so-called non-interference rights or negative rights fall under this heading: I have a right to be protected by Courts and the police force – to be provided with protection – if people impose a religion on me, harm my bodily integrity etc.

Rights as properties

You could say that all rights are in essence property rights. We have a right to have rights; our rights are our property. In the words of John Stuart Mill:

When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it. … To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (source)

Formally:

A has a right to X if society has a duty to protect A’s possession of X.

Again, very similar to the formulation of rights as provisions. For example, I have a right to free speech if I can call on judges and Courts to assist me in my struggle against those who want to take this right away from me.

Rights as sovereignty

Very similar to the notions of rights as claims, immunities, limits and properties is the notion of rights as sovereignty. My right to freedom of opinion or my right to property make me a small scale sovereign over my mind or my possessions, in the sense that others aren’t allowed to interfere, invade, dispossess or modify. All these notions of rights focus on the rights bearer’s ability to control whether others must or must not act in certain ways.

Rights as interests

Conversely, rights as interests focus on what rights do to the rights bearer. Rights serve to further the rights bearer’s interests. People have rights because rights make them better off. What these rights imply for others is of secondary importance. Formally:

A has a right to X if X makes A better off.

Rights as abilities

Another way to focus on the rights bearer rather than the duty bearer is to view rights as abilities. That allows us to see that rights as liberties, privileges or permissions only describe part of what we understand by rights. Indeed, I have a right if I have the freedom, privilege or permission to act in a certain way. And rights as claims, immunities and limits protect me against others who would interfere with my freedom, privilege or permission to act in a certain way. And yet I can be free to do X because 1) I’m free from a duty not to do X and 2) I’m free from the interference of others, but at the same time I may be unable to do X. For example, I may have the permission and freedom to practice whatever religion I choose, and others don’t interfere, but I lack the education or mental capacities to choose and practice a religion. Rights as abilities would then provide me with the necessary education, rather than only the freedom, privilege, permission or limits on interference.

Rights as trumps

Following Ronald Dworkin, we can view rights as trumps. Rights are norms with a special force. They provide particularly weighty reasons to do or not to do something, reasons that are weighty enough to override other reasons or concerns. Rights give reasons to treat people in certain ways or permit them to act in certain ways, even if certain other goals or objectives would be better served by violating their rights. Within the system of rights, it’s possible to give some rights a higher trump value and hence a higher priority than others, perhaps depending on the circumstances (meaning that one right only trumps another when certain conditions are met, and not systematically).

Formally:

A has a right to X if X overrides all other concerns.

Only if we combine all these different definitions of rights can we perhaps have an overall understanding of them.