It’s pretty much impossible these days to switch on the TV, radio or internet without hearing someone or other speaking of rights. “I have a right!”, “It’s my right…”, “My rights have been violated!” Typically, claims of rights take the form of a mere assertion, unsubstantiated by any evidence in particular. The right to free speech, the right to remain silent, the right to vote, the right to abstain from voting, the right to information, the right to privacy, the right to life, the right to die, the right to choose, the right to associate freely, the right to join a trade union, the right not to join a trade union, the right to health care, the right to education, the right to internet access; property rights, states’ rights, children’s rights, women’s rights, minority rights, gay rights, prisoners’ rights, animal rights. The panoply of rights is as breathtakingly vast as the language of rights in popular culture is confused, strident, and devoid of meaning.
Today, I will attempt to put some articulation into the language of rights: what are they, and who in our society can be deemed to hold rights; how do rights come into being, what is the basis of their validity, and to what extent do they merit our respect and observance. My reason for doing this is that many of the topics I plan to explore in LibertyGibbert over the next year are based on arguments that turn on some right or other, or are (superficially at least) couched in the language of rights. As these occur, I plan to be referring back extensively to this thread, so as to give some consistency to the Libertarian view of life. The context of this article will thus become clearer as we examine specific applications of its principles. None of what follows is particularly original, but I hope to distil here some of the extensive literature on the philosophical, moral and legal approaches to rights. I’ll also include plenty of links for those who wish to pursue the subject further (though a couple of them are abstracts of articles hidden behind a paywall).
A right is a claim
At its most basic, a right is a claim of one person or group on another: a claim to do, or let be, as the case may be, according to the definition of the right. My right to free speech means you must refrain from silencing me; my right to remain silent means you cannot compel me to speak. My right to welfare means the government (or more concisely, the taxpayer) must put food on my table if I am unable to do so. Some philosophers draw the distinction between rights sensu stricto (meaning my right implies you have some sort of positive duty towards me; these are often, and somewhat confusingly, termed claim rights) and liberty rights (which imply no explicit duty towards the right-holder). Liberty rights are usually deemed to exist anywhere a claim right to the contrary does not; since, for example, no-one has a right to stop you reading a certain book, you therefore have a right to do so. I personally see the two as equivalent for all practical purposes other than codification (claim rights must be codified in order to exist; the existence of liberty rights may be inferred); Christian theology, among others, draws no great moral distinction between sins of commission and sins of omission; thus, to abuse either sort of right would appear to denote an equal transgression.
There are any number of ways in which rights may be categorized: positive rights versus negative rights (for example, the right to free speech versus the right to silence), social rights (civil liberties) versus economic rights, and so on. To chase all these down here would be to dilute the meaning of the word right, and hopelessly confuse the issue. Today we are concerned with the nature and validity of rights, rather than any taxonomy. I will however note one distinction which has cropped up frequently in my own reading on the subject: rights asserted to be inherent in man by his nature (also called natural or inalienable rights), versus rights enacted by statute. Regarding this particular distinction, I would suggest a natural right is of little value until it is actually written into the statute books as inalienable, or else (if a liberty right) may be inferred by the absence of a contrary statute. The famous words of the American Declaration of Independence are of this sort:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
If they were not so written down, anyone could simply counter, “No, they’re not!”, and it would then be left to the courts to determine the existence or otherwise of the right: a dangerous road to take, as I will argue presently.
Rights imply responsibilities
Two responsibilities, in fact: for every right (even, strictly speaking, for liberty rights), there exists a corresponding responsibility of those around the right-holder to act, or refrain from acting, as the case may be; and the concomitant responsibility of the right-holder not to misuse the exercise of that right to the detriment of other individuals, or of society generally. I have a right to free speech; but to exercise that right loudly outside your front door at three o’clock in the morning is not only a misuse of that right, but it also violates one of your rights (except of course, if the exercise of my right is occasioned by the smoke I can see pouring out of your windows; in which case, the exercise of my right has now actually become the discharge of my responsibility corresponding to yet another of your rights).
This is not merely sophistry: I believe the ability to discharge the concomitant responsibility is a precondition to hold a right in the first place. Far too often, rights are spoken of in isolation, as if no responsibilities attach to them. Though these irresponsible rights are in truth little more than the empty rhetoric of politics, the nexus between rights and responsibilities is inescapable.
Here at LibertyGibbert, I have argued previously that over the past one hundred years, we as citizens of the Western democracies have gradually ceded more and more of our responsibilities to the state, as a matter of convenience; not realising that, in the process, we have also given away our rights. Look around you today, and you will see that, for all practical purposes, the state has more rights than the citizen. It is my contention that before we can meaningfully re-assert our rights, we must first reclaim, and then be seen to successfully discharge, the responsibilities attendant on them. In allowing the rise and rise of the Nanny State, we have become irresponsible—literally—and infantalized. It’s time we once again grew up.
Citizen to State: holders of rights
The original, strict definition of rights framed in the great charters of rights throughout Western civilization articulated rights as freedoms accorded to citizens, freemen, nobility, subjects or other broad categories of inhabitants of a kingdom or republic. In other words, rights were held by individual people. Typically, though, not all people: slaves or other underclasses were not regarded as having rights, being mere chattels and not fully-fledged humans. The point here is that institutions or groups were not deemed to hold any collective rights, beyond those invested in its members individually. The great charters of rights arose as a result of a determination to counter the only right hitherto recognized, the divine right of kings, and that of the church acting as a proxy for God.
As liberal democracy in the West gradually began morphing into social democracy, the definition of right began to weaken, and (as with so many other words) broaden far beyond its original, strict scope. Rights came to be viewed as being held, not only by individuals, but collectively by a group of individuals, be they a military unit, a village, an artisans’ guild, later (ominously) an incorporated shareholder company, or even a political party. From there, it was only a small step to accord rights to a state or government. With creeping collectivism, these state rights grew in number and scope. And while the corresponding responsibilities on everyone in society towards the right-holders also grew in tandem, the concomitant responsibilities of the state, corporation or party were dispersed, dissipated, diluted and, ultimately, dispensed with. The era of the irresponsible collective right-holder had arrived.
Today of course, anyone and anything can be (and is) invested with “rights”: animals, ecosystems, bureaucracies, even the earth as a whole. Invariably, the emphasis with these “rights” is on the corresponding responsibilities placed on those around the right-holder; when it comes to the issue of any concomitant responsibility attaching to that right, the only sound audible is that of crickets chirping.
Do such rights merit our respect and observance? I’ll give you a detailed opinion in the next thread in this series (and I look forward to your views below); for the moment, I would posit as a rule of thumb that, if a society is prepared to accept a body of codified rights, some of which are held by groups or other non-human entities, a calculation must be made as to whether the burden of corresponding responsibility exceeds the benefit to the right-holder. Is it (the distribution of burdens and benefits) fair to the greatest number of individuals, and is it of net benefit to society as a whole?
Now for some specific characteristics that rights must have for them to be meaningful, at least in a legal sense:
Rights are universal
If I assert a right for myself, then by extension I am asserting it for all other people in relevantly similar circumstances (a formulation I first heard nearly thirty years ago in a lecture given by Dr Nicholas Tonti-Filippini, a prominent Australian bio-ethicist and pro-life advocate). It is at best meaningless, and at worst inhuman, to assert a right for oneself without simultaneously asserting it for all others in the same position: rights are universal.
This fact ought to be borne in mind by those who are the loudest and most aggressive in asserting their own rights; it may give them pause for thought that they are actually also asserting the same rights for others, many of whom form the audience they are shouting at. It might even silence them completely, were they to also realise the concomitant responsibility they are thereby drawing down on themselves.
Rights must be enforceable
It is otiose to declare a right, even one deemed to be inherent, unless its observance can be backed up by force of law, and where necessary, physical compulsion. For example, it is hollow bluster for a parliament (or Congress, or other people’s legislative body) to declare rights of people not within its jurisdiction, unless it plans to send military force to ensure such rights are upheld. Similarly, it is pointless for a government to declare a right where there is a corresponding responsibility of the state it has no power to discharge: an economically bankrupt government can hardly declare basic welfare rights of citizens it cannot feed (though many do—this is the diplomatic language of the begging bowl).
Rights are not absolute
Rights are typically asserted, as if the assertion itself is enough to preclude all argument, that rights are not only unquestionable, but also absolute. Yet surely this is nonsense. How can rights be absolute? Rights conflict. My right to free speech conflicts with your right to peace and quiet (and many other of your rights); my right to stage demonstrations in public conflicts with your right to walk unhindered down the street. See that bearded guy on the subway platform who just left a suspicious-looking package under the seat? He has a right not to be arbitrarily detained. But surely the hundreds of other passengers around him have rights, too?
In the next thread on rights I’ll include a recent case study on conflicting rights which is currently the subject of a High Court action in my own country. Further down the track, we’ll be examining in detail specific issues of conflicting rights: the obvious one being the abortion debate. In the meantime, it’s obvious that when there are conflicting claims, there will also be winners and losers. How can such dilemmas be resolved?
Resolving conflicting rights
To resolve conflicting rights, a test may be applied by measuring each right against an over-riding, universal concern and respect for all people. That is, when the benefits of the competing rights and the burdens of their corresponding responsibilities are juxtaposed, which benefits are more important to the basic welfare and survival of the claimants? The many approaches I have seen in the literature appear to boil down to this; for example, this book is a worthwhile read in case studies of the rights of minorities living under colonial rule, while this one describes a methodology for medical clinicians faced with ethical dilemmas involving patients.
As an alternative, I came across this blogger who has the thought-provoking idea that all rights can be interpreted as property rights, and granted all property has but one owner, rights viewed this way can never conflict. While I can see a utilitarian merit in this approach, it necessarily involves a) exalting property rights above all others, and b) in some ethical dilemmas, reducing human beings to chattels; the thread comments below it highlight this problem.
Should rights exist at all?
Are there any rights which cannot be adequately enshrined within the body of Common Law? In the twenty-first century, is there really any need for a separate Charter, or Bill of Rights?
That’s a question for another day. Specifically, in about a week’s time (I hope). In the next thread on rights, I will continue exploring the theme of rights, looking at the codification of rights, their relationship with parliamentary law, and the benefits and dangers inherent in setting a charter or bill of rights, interpreted by an unelected judiciary, against a body of Common Law, enacted by citizen representatives.