The Rights’ Stuff

Scene from the movie “The Right Stuff”
Scene from the movie “The Right Stuff”

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):

  1. 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.
  2. 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).
  3. 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.

I’ve tried before to give a supposedly complete list of the necessary properties of rights, which you can consult here. More posts in this series about the nature of human rights are here.

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.

What Are Human Rights? (56): Protection Against the State, and Something More

In our current, non-anarchist world, human rights depend on the state for their protection. Judicial courts, the police force and political institutions such as the welfare state and democratic governance are requirements for rights realization. Perhaps in some future state of affairs that will no longer be the case, but presently it is. Which means that human rights are more than just protective tools directed against the power of the state. They are part of the state. Or better they should be. “That to secure these rights, governments are instituted among men” says the Declaration of Independence of 1776. The state should protect its citizens against its own abuses of power (and of course also against the exercise of illegitimate power by fellow citizens, but that’s a topic for another time).

Many if not most violations of human rights are caused by state actions, even when the state in question is relatively benevolent. Power corrupts, and that is why we need rights to limit power. However, without power, rights are useless. Human rights limit the actions of the state, determine what a state is not allowed to do or should refrain from doing, and define those areas where the state is not allowed to interfere. But human rights also, and positively, determine what the state should do. They demand positive action and interference from the state.

For example: the state should not only avoid torturing its citizens, it should also actively protect and help those citizens who are tortured, most commonly by some part of the state but perhaps also by fellow citizens. This means that abstention and forbearance on the part of the state, no matter how important, are not enough. The state also has a duty to act in order to protect rights. And if human rights require that the state abstains, then the state should be actively engaged in enforcing its own abstention. (Needless to say that this implies a separation of powers).

This active engagement can even go one step further. Human rights sometimes require more than actively enforced abstention. What is true for torture is also true for economic rights: the state should not only avoid creating or maintaining poverty but also try to create a minimum amount of prosperity for all. A right not to suffer poverty is an example of a right that requires the obtention of something (although it can also require abstention as in the case of Mao’s Great Leap Forward). Here we’re dealing with so-called positive rights as opposed to negative rights. (In French they call it ”le droit à l’obtention et à l’exigence” as opposed to “le droit à la résistance et à la défense”).Whether you like it or not, the state is often one of the parties that should assist people in obtaining what they have a right to, at least on the condition that there’s no other, less invasive means of obtention.

But let’s not put too much emphasis on this distinction between abstention and obtention, or between negative and positive rights. Every human right, including those rights that seem to demand only the absence of state action, require state action, for example action in the form of a judgement of a court of justice concerning an illegal state action, and the police measures enforcing this kind of judgement. The state should commit, as well as omit; prevent, provide, protect and engender, as well as forbear; and it’s not at all obvious that particular types of human rights systematically need more of one or the other type of state conduct.

Something merely negative, such as abstention, forbearance or a limited state, can never constitute a state, as Hannah Arendt has rightly stressed in “On Revolution”. There is a reason for having a state.

Human rights, particularly in the early stages of their historical development, were considered as primarily directed against the state. This was also the main cause of their initial success. The theory of anti-state rights was inherent in the idea of human rights as natural rights. Natural rights, as opposed to legal rights, are not given by the state and can be used by citizens as an instrument of defense against the state.

However, none of this should make us forget that there is something inherently positive in the state and that rights can’t be entirely “natural”, whatever that means, at least not if we want them to be real and enforceable. As things are in our day and age, it’s often the state and its legal rights that protect us against violations of our human rights, at least ideally and more commonly when the state is a democracy. It does this, not only by passively abstaining, but also by actively doing something.

More posts in this series are here.

What Are Human Rights? (38): Means or Goals?

The justification of human rights is perhaps the most important problem in human rights theory. Why do we need human rights? Why should people respect human rights? Why are these rights so important? Or are they? I think there are essentially three ways to try to answer these questions.

  • There’s the non-philosophical way of pointing to tradition: you could argue convincingly that human rights or at least the values embedded in human rights have always been a part of the world’s major cultural traditions, implicitly or explicitly. I’ve looked at that option here. However, this approach is fraught with problems. For example, it’s not obvious that you can escape Hume’s naturalistic fallacy: you can’t simply go from “is” to “ought”. It’s not because something is the case that it ought to be the case. Hence, you’ll end up with a pretty weak justification of human rights if you go about it this way. That’s why I’ll focus here on the two other options.
  • Human rights can be justified using a consequentialist approach: rights should be respected because that brings about good consequences, for example respect for rights brings about peace, prosperity and truth.
  • Or they can be justified using a so-called status approach: human beings have certain attributes that make it necessary to ascribe rights to them. For example, a person’s body and mind are hers and hers alone. Therefore, it’s up to her to say what may be done to them. Allowing anyone else to decide would be a grave indignity to her. A right to free speech is the only respectful way to treat people with a mind of their own. Status theories say that rights should be respected, not because of the consequences, but because it is fitting to do so. Rather than focus on the consequences that rights can bring about, rights are constraints on the types of consequences we can pursue. Robert Nozick is a well-known proponent of this approach. The status approach is linked to the tradition of natural rights (certain aspects of human nature make certain rights appropriate) and is evident in the famous Jeffersonian phrase about “men being endowed by their Creator with certain unalienable rights”.

I’ve personally used the consequentialist approach in some previous posts on the justification of human rights:

  • there’s one here focusing on the role of rights in the pursuit of truth
  • here is one about political rights
  • here about free speech
  • here about property rights
  • here on rights in general and
  • here on religious liberty.

(I also discussed consequentialist arguments against human rights, here for instance). One of my posts defending the status approach is here.

The consequentialist justification of human rights views these rights not as goals but merely as means. It’s instrumentalist in the sense that it justifies rights as particularly good instruments or means for the achievement of some other goals (peace, truth, prosperity etc.).

The main disadvantage of this approach is that it only provides a weak and contingent justification. If it turns out that, in certain circumstances, other means are more appropriate for the stated goals, then rights may be violated according to the consequentialist approach. The main disadvantage of the status approach is exactly the opposite: it may prove too much. The status approach makes it difficult if not impossible to limit certain rights or balance rights against each other. It’s hard to see how you can argue for limitations of certain rights or tradeoffs between rights without pointing to certain consequences. Because the status approach grounds human rights in attributes that are fundamental to human beings, it’s likely that limitations of rights have to be seen as attacks on fundamental attributes of human beings, and that’s obviously out of the question. And yet, we limit rights all the time in everyday life. We have to, since different rights are regularly in conflict with each other. Hence, a theory that can’t accommodate this normal feature of morality seems incomplete, to say the least.

A combination of the two approaches is therefore more promising. There’s no reason why human rights can’t be means and goals simultaneously.

More posts in this series are here.

What Are Human Rights? (4): Not Given Rights

A right is not what someone gives you; it’s what no one can take from you. Ramsey Clark

Although the state plays an important part in enforcing rights, these rights are not given by the state. They exist prior to the state and hence are not a gift, a reward, or a favor granted by the state to its citizens, possibly in exchange for something else, for example obedience or the entry into a certain social class. Rights are not part of a contractual relationship.

The states of the Soviet block were notorious for this kind of reasoning. They considered rights to be a favor given by the state to exemplary citizens, to citizens who had proven to be particularly useful in the advance of communism. These citizens did not have rights but privileges, and rights were not the primary or sole objective of the state. Communist states also viewed rights in a purely functional way. Exercising human rights was only possible if this was of any use to the progress of communism. Consequently, it was impossible to enforce human rights. The state decided when and where they could be enjoyed, and when and where it could violate them.

Human rights, however, are unconditional. People have human rights because they are human beings. No other conditions are necessary.

What Are Human Rights? (2): Rights Before and Above the Law

You are a human being. You have rights inherent in that reality. You have dignity and worth that exists prior to law. Lyn Beth Neylon

Rights do indeed exist before and above the law. However, the role of natural rights in moral claims, important as it is, is not enough. Only the state, by way of the constitution, the laws, the judges and the police can effectively guarantee human rights and can enforce them with a good chance of success (something which cannot always be said of moral claims; power is often more successful than persuasion). We can enforce and therefore enjoy our natural rights only because the state creates and protects legal rights and gives everybody a legal personality – a legal person is an entity subject to the law and holding legal rights and duties enforceable by a judge – on top of everybody’s natural personality (the latter is the basis of the common values used as a justification of human rights).

The state gives a tangible reality to our rights because it translates our natural rights into legal rights which can be enforced by an executive and a judicial power.