We hear lots of talk about rights. Human rights. Consumer rights. The right to free speech. The right to bear arms. The right to remain silent. The right to be forgotten. But what are rights? How do we get them? And how do we know what rights we have? Well, it’s complicated. And, to be honest, I don’t think anyone’s really figured it out (yet).
Rights are essentially principles of freedom or entitlement. By freedom, we mean the right to do something, to not do something or to not have something done to us. By entitlement, we mean the right to access something or to have something made available to us.
Freedom-related rights are, for example, the right to free speech, the right to a family life, the right to not be murdered and the right to live without fear of state persecution. Entitlement-related rights include things like the right to breathable air, to drinkable water and to sick pay in the event that you are unable to work.
When philosophers think about rights, there are two main categories of rights that feature prominently: Natural rights and legal rights.
Natural rights are rights that we have automatically by virtue of being human beings. Everyone has them. They’re innate to our very existence. We don’t need to create them or to pass laws to bring them into being. Rights that are set out in scripture or by edict of some form of deity also fall into the category of natural rights, at least in the eyes of those who follow that deity.
It’s far from clear what natural rights we have. Or even if we have natural rights at all. They need to be universal. So they need to be rights that everyone can have and exercise. This restricts the set of natural rights that we can have. I can’t, for example, have a natural right that conflicts with another natural right that you have.
A lot of effort has gone into trying to figure out what natural rights we have. Seventeenth-century philosopher John Locke wrote extensively on rights, for example. As did Alexander Hamilton, Thomas Jefferson and the other founding fathers of the United States of America.
By they’ve all – in my view, anyway – really just come up with a list of rights that they think we should have, rather than rights that we have by virtue of simply being. And while I’m all in favour of us having the sorts of rights they came up with, I’m not convinced that these are natural rights in the true sense. They’re a social construct. And this brings us into the territory of legal rights.
Legal rights arise from the rules that govern a society. These may be written laws, but they may equally be social customs, practices or cultural norms.
The legal rights that people have depend on the society in which they live. And so people living in different societies may have different sets of rights. The US constitution, for example, sets out a suite of rights that US citizens have. But people living in France, Indonesia or Saudi Arabia do not necessarily have these same rights. And if they do, it’s because they’re set out in their own country’s legal framework, rather than because they’re included in the US constitution.
If you have control over a society’s legal framework (including its laws, customs and social practices), you can, therefore, give people in that society whatever rights you wish. And, indeed, deny them whatever rights you wish.
Some rights are known as liberty rights, in that you can have them without anyone else needing to do anything to facilitate your ability to exercise that right. The example commonly given here is freedom of speech. You have the right to say what you want, but nobody is obliged to listen to you. The right to speak is not the same as the right to be heard.
Rights that place responsibilities, duties or obligations on other people are known as claim rights. In order for us to exercise a particular right, we need someone else to do something to allow this to happen. For example, if I have a right to clean air, I need other people to not pollute the air that I breathe.
Personally, I tend to see all rights as essentially claim rights. I’m not convinced that liberty rights really exist in practice. After all, your right to freedom of speech is dependent on me not duck-taping your mouth shut, so is essentially a claim right.
So – in my view, at least – all rights essentially place corresponding responsibilities, duties or obligations on other members of society. Or, at least, all the ones I can think of. This might be an obligation to do something to allow us to exercise our right. Or it might be an obligation to not do something.
For example, for me to have a right to healthcare, society needs to provide me with a system of medical diagnosis, treatment and care. And for me to have the right to live my life without fear of being murdered, everyone else in society is obliged to not murder me.
Rights cannot, therefore, exist in isolation. They need to be part of some kind of social contract between the individual members of society. This means that all rights are, essentially, legal rights.
Consequently, we have no natural rights. We have only the rights that we as a society create and are willing to support.
This is a problematic conclusion for me. Because it implies that moral relativism – the notion of different societies being able to take different stances on moral and ethical issues – is an intrinsic and inevitable part of how we think about basic rights.
I’d really like to believe that there’s a universal set of basic human rights that applies to everyone on our planet. But there isn’t. Not as far as I can see, anyway.
However, rather than this being a source of regret, I prefer to see it as an opportunity. Because we don’t need to be hidebound by a pre-existing set of natural rights. Rather, we can – collectively, as a global society – agree on the rights (and the corresponding responsibilities) that we’d like everyone to have.
We’ve not managed it yet. At least, not in a way that includes everyone. And we’ll need to make sure that the rights we choose keep up with the times. I don’t really need the right any more to drive my sheep along the high street, but in this increasingly-digitalised world the right to affordable high-speed broadband internet would be a boon to many.
But it’s a worthy agenda and one that we should all engage with. Because the rights we grant ourselves are precious. We must choose them carefully. And we must nurture them for the benefit of all.
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