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? (45): Negative or Positive Rights? Ctd.

I realize now that this previous post wasn’t any good. I need to do a lot more to clarify the difference between negative and positive rights, and to argue that there are indeed two types. Most people assume that there’s only one type and that human rights are always and only negative rights:

  • the right to free speech is a right not to be silenced, not a right to be given the ability to speak (e.g. to have my vocal cords healed)
  • my right not to suffer arbitrary arrest is not a right to be rescued from a cave (in the words of Jonathan Bennett)
  • my freedom of movement is a right not to be hindered, not a right to roads
  • etc.

These examples are meant to make two points, both of which I want to contest:

  1. many so-called rights violations are really not rights violations because there is no violator
  2. rights require only the removal of constraints, more specifically of human imposed constraints.

It does seem to be the case that there can only be a right when someone can violate it (see here), and in the examples above there is no one violating a right: my vocal cords gave up without anyone’s help, and I got stuck in the cave because of my own stupidity or because of a natural calamity. And indeed, the conventional wisdom is that there are numerous types of inabilities which render rights meaningless but which are nonetheless not rights violations because there is no one who caused the violation. In other words, not all inabilities or harms are rights violations, not even if they render rights meaningless.

However, this conventional wisdom is wrong for several reasons. Often there is a violator lurking in the shadows and his or her presence is not clear at first sight. For example, many believe that poverty isn’t a rights violation because no one causes poverty; poverty is just the unfortunate outcome of economic circumstances, like my falling into a cave is the unfortunate outcome of my own stupidity. But that’s not necessarily true: poverty is often the direct result of purposeful and conscious actions by dictators, by the designers of international trade or migration policy etc. So one should be careful when arguing that something is not a right or not a rights violation because there’s no violator. Often there is one but you just fail to notice it.

The second claim implicit in the examples above is that rights require the removal of constraints, not the provision of abilities: free speech requires the removal of censorship, not the provision of the ability to speak; freedom of movement requires the absence of government imposed restrictions on movement, not the provision by the state of roads (even if the absence of roads makes freedom of movement meaningless); etc. However, even the removal of censorship requires the provision of judicial systems, of a police force etc. Hence, it requires the provision of abilities: the ability to sue censors, to send the police to them etc. I see no reason why these abilities should be limited to the ability to remove constraints, and why they should exclude abilities such as education. If rights are important, then people should have the abilities to make their rights real; sometimes this means removing constraints, but often it means providing abilities. Why should it be a big thing when someone is censored, but not when someone is denied the education necessary to make speech possible and meaningful in the first place?

The conventional wisdom – quoted above – that not all inabilities or harms are rights violations, not even if they render rights meaningless, is only partly true. Not all inabilities or harms are rights violations: my broken heart is not a rights violation. But there are many inabilities and harms – even some for which we can’t identify a human agent causing the inability or harm – which are still rights violations because they render rights meaningless. Rights violations don’t always require the presence of a violator and require more than the removal of constraints.

More posts in this series here.

What Are Human Rights? (29): Negative or Positive Human Rights?

Take the right to free speech for instance. Negatively, it means that constraints on speech should be removed as much as possible. Legal people are used to view this and other rights in such a negative sense, because courts and judges are well-placed to remove constraints: they can invalidate or refuse to apply laws and policies that constrain rights such as speech rights; they can punish or fine people that constrain rights etc.

However, this legal interpretation of rights is insufficient. I’ve often argued that human rights are positive as well as negative, in the sense that they don’t merely require the removal of constraints but also the provision of prerequisites. Take again the right to free speech: we can’t say that anyone who does not suffer constraints on her speech has an effective right to free speech. While no one or no law may prohibit or stop a person from speaking, her poverty, lack of education etc. can make it very hard for her to speak effectively. I personally, for instance, find it much easier to blog when I’m able to read inspiring material. My freedom of speech, as I exercise it on this blog, would be non-existing if I wasn’t part of a global conversation about human rights. I would still have the negative right to speak, but I wouldn’t have anything to speak about. And the freedom to do what you like without impediments doesn’t make sense if you don’t have anything to do.

There may be a difference in degree: some rights, in most circumstances, are perhaps more positive than negative or vice versa. I guess the right to food is most often a positive right in the sense that it requires provision rather than forbearance. Although even in this example, we find that famines aren’t usually caused by the absence or non-provision of food but by constraints on the effective distribution of food.

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.