The history of social conflicts has often involved attempts to define and redefine rights. According to the Stanford Encyclopedia of Philosophy, "rights structure the form of governments, the content of laws, and the shape of morality as it is currently perceived".[1]
Types of rights
Natural versus legal
According to some views, certain rights derive from deities or nature.
Natural rights are rights which are "natural" in the sense of "not artificial, not man-made", as in rights deriving from human nature or from the edicts of a god. They are universal; that is, they apply to all people, and do not derive from the laws of any specific society. They exist necessarily, inhere in every individual, and cannot be taken away. For example, it has been argued that humans have a natural right to life. These are sometimes called moral rights or inalienable rights.
Legal rights, in contrast, are based on a society's customs, laws, statutes or actions by legislatures. An example of a legal right is the right to vote of citizens. Citizenship, itself, is often considered as the basis for having legal rights, and has been defined as the "right to have rights". Legal rights are sometimes called civil rights or statutory rights and are culturally and politically relative since they depend on a specific societal context to have meaning.
Some thinkers see rights in only one sense while others accept that both senses have a measure of validity. There has been considerable philosophical debate about these senses throughout history. For example, Jeremy Bentham believed that legal rights were the essence of rights, and he denied the existence of natural rights,[2] whereas Thomas Aquinas held that rights purported by positive law but not grounded in natural law were not properly rights at all, but only a facade or pretense of rights.
Claim versus liberty
A claim right is a right which entails that another person has a duty to the right-holder. Somebody else must do or refrain from doing something to or for the claim holder, such as perform a service or supply a product for him or her; that is, he or she has a claim to that service or product (another term is thing in action).[3] In logic, this idea can be expressed as: "Person A has a claim that person B do something if and only if B has a duty to A to do that something." Every claim-right entails that some other duty-bearer must do some duty for the claim to be satisfied. This duty can be to act or to refrain from acting. For example, many jurisdictions recognize broad claim rights to things like "life, liberty, and property"; these rights impose an obligation upon others not to assault or restrain a person, or use their property, without the claim-holder's permission. Likewise, in jurisdictions where social welfare services are guaranteed, citizens have legal claim rights to be provided with those services.
A liberty right or privilege, in contrast, is simply a freedom or permission for the right-holder to do something, and there are no obligations on other parties to do or not do anything.[3] This can be expressed in logic as: "Person A has a privilege to do something if and only if A has no duty not to do that something." For example, if a person has a legal liberty right to free speech, that merely means that it is not legally forbidden for them to speak freely: it does not mean that anyone has to help enable their speech, or to listen to their speech; or even, per se, refrain from stopping them from speaking, though other rights, such as the claim right to be free from assault, may severely limit what others can do to stop them.
Liberty rights and claim rights are the inverse of one another: a person has a liberty right permitting him to do something only if there is no other person who has a claim right forbidding him from doing so. Likewise, if a person has a claim right against someone else, then that other person's liberty is limited. For example, a person has a liberty right to walk down a sidewalk and can decide freely whether or not to do so, since there is no obligation either to do so or to refrain from doing so. But pedestrians may have an obligation not to walk on certain lands, such as other people's private property, to which those other people have a claim right. So a person's liberty right of walking extends precisely to the point where another's claim right limits his or her freedom.
Positive versus negative
In one sense, a right is a permission to do something or an entitlement to a specific service or treatment from others, and these rights have been called positive rights. However, in another sense, rights may allow or require inaction, and these are called negative rights; they permit or require doing nothing. For example, in some countries, e.g. the United States, citizens have the positive right to vote and they have the negative right to not vote; people can choose not to vote in a given election without punishment. In other countries, e.g. Australia, however, citizens have a positive right to vote but they do not have a negative right to not vote, since voting is compulsory. Accordingly:
Positive rights are permissions to do things, or entitlements to be done unto. One example of a positive right is the purported "right to welfare".[4]
Negative rights are permissions not to do things, or entitlements to be left alone. Often the distinction is invoked by libertarians who think of a negative right as an entitlement to non-interference such as a right against being assaulted.[4]
Though similarly named, positive and negative rights should not be confused with active rights (which encompass "privileges" and "powers") and passive rights (which encompass "claims" and "immunities").
Individual versus group
Individual rights are rights held by individual people regardless of their group membership or lack thereof.
Do groups have rights? Some argue that when soldiers bond in combat, the group becomes like an organism in itself and has rights which trump the rights of any individual soldier.
Group rights, including the rights of nations, have been argued to exist when a group is seen as more than a mere composite or assembly of separate individuals but an entity in its own right. In other words, it is possible to see a group as a distinct being in and of itself; it is akin to an enlarged individual, a corporate body, which has a distinct will and power of action and can be thought of as having rights. Rights of nations, including a national right to self-determination have been argued for,[5] and a platoon of soldiers in combat can be thought of as a distinct group, since individual members are willing to risk their lives for the survival of the group, and therefore the group can be conceived as having a "right" which is superior to that of any individual member; for example, a soldier who disobeys an officer can be punished, perhaps even killed, for a breach of obedience. But there is another sense of group rights in which people who are members of a group can be thought of as having specific individual rights because of their membership in a group. In this sense, the set of rights which individuals-as-group-members have is expanded because of their membership in a group. For example, workers who are members of a group such as a labor union can be thought of as having expanded individual rights because of their membership in the labor union, such as the rights to specific working conditions or wages.[citation needed]
There can be tension between individual and group rights. A classic instance in which group and individual rights clash is conflicts between unions and their members. For example, individual members of a union may wish a wage higher than the union-negotiated wage, but are prevented from making further requests; in a so-called closed shop which has a union security agreement, only the union has a right to decide matters for the individual union members such as wage rates. So, do the supposed "individual rights" of the workers prevail about the proper wage? Or do the "group rights" of the union regarding the proper wage prevail?[citation needed]
The Austrian School of Economics holds that only individuals think, feel, and act whether or not members of any abstract group. The society should thus according to economists of the school be analyzed starting from the individual. This methodology is called methodological individualism and is used by the economists to justify individual rights.[citation needed] Similarly, the author Ayn Rand argued that only individuals have rights, according to her philosophy known as Objectivism.[6] However, others have argued that there are situations in which a group of persons is thought to have rights, or group rights.
Police officers in the United States are required to read the Miranda warning between making an arrest and beginning an interrogation. The warning informs the person arrested that they have rights included in the Fifth Amendment. Failure to "read Miranda" disqualifies evidence obtained primarily in the questioning.
Rights are often included in the foundational questions that governments and politics have been designed to deal with. Often the development of these socio-political institutions have formed a dialectical relationship with rights.[citation needed]
Accordingly, politics plays an important role in developing or recognizing the above rights, and the discussion about which behaviors are included as "rights" is an ongoing political topic of importance. The concept of rights varies with political orientation. Positive rights such as a "right to medical care" are emphasized more often by left-leaning thinkers, while right-leaning thinkers place more emphasis on negative rights such as the "right to a fair trial".[citation needed]
Further, the term equality which is often bound up with the meaning of "rights" often depends on one's political orientation. Conservatives and right-wing libertarians and advocates of free markets often identify equality with equality of opportunity, and want what they perceive as equal and fair rules in the process of making things, while agreeing that sometimes these fair rules lead to unequal outcomes. In contrast, socialists see the power imbalance of employer-employee relationships in capitalism as a cause of inequality and often see unequal outcomes as a hindrance to equality of opportunity. They tend to identify equality of outcome as a sign of equality and therefore think that people have a right to portions of necessities such as health care or economic assistance or housing that align with their needs.[10][better source needed]
While normative ethics addresses such questions as "What should one do?", thus endorsing some ethical evaluations and rejecting others, meta-ethics addresses questions such as "What is goodness?" and "How can we tell what is good from what is bad?", seeking to understand the nature of ethical properties and evaluations.
Rights ethics is an answer to the meta-ethical question of what normative ethics is concerned with (meta-ethics also includes a group of questions about how ethics comes to be known, true, etc. which is not directly addressed by rights ethics).
Rights ethics holds that normative ethics is concerned with rights. Alternative meta-ethical theories are that ethics is concerned with one of the following:
Rights ethics has had considerable influence on political and social thinking. The Universal Declaration of Human Rights gives some concrete examples of widely accepted rights.
The specific enumeration of rights has differed greatly in different periods of history. In many cases, the system of rights promulgated by one group has come into sharp and bitter conflict with that of other groups. In the political sphere, a place in which rights have historically been an important issue, constitutional provisions of various states sometimes address the question of who has what legal rights.
Historically, many notions of rights were authoritarian and hierarchical, with different people granted different rights, and some having more rights than others. For instance, the right of a father to be respected by his son did not indicate a right of the son to receive something in return for that respect; and the divine right of kings, which permitted absolute power over subjects, did not leave much possibility for many rights for the subjects themselves.[11]
In contrast, modern conceptions of rights have often emphasized liberty and equality as among the most important aspects of rights, as was evident in the American and French revolutions.
The Persian Empire of ancient Iran established unprecedented principles of human rights in the 6th century BC under Cyrus the Great. After his conquest of Babylon in 539 BC, the king issued the Cyrus cylinder, discovered in 1879 and seen by some today as the first human rights document.[12][13][14]
The Constitution of Medina (622 AD; Arabia) instituted a number of rights for the Muslim, Jewish, camp followers and "believers" of Medina.[15]
Magna Carta (1215; England) required the King of England to renounce certain rights and respect certain legal procedures, and to accept that the will of the king could be bound by law, after King John promised his barons he would follow the "law of the land". While Magna Carta was originally a set of rules that the king had to follow, and mainly protected the property of aristocratic landowners, today it is seen as the basis of certain rights for ordinary people, such as the right of due process.[16]
The Henrician Articles (1573; Poland-Lithuania) or King Henry's Articles were a permanent contract that stated the fundamental principles of governance and constitutional law in the Polish-Lithuanian Commonwealth, including the rights of the nobility to elect the king, to meet in parliament whose approval was required to levy taxes and declare war or peace, to religious liberty and the right to rebel in case the king transgressed against the laws of the republic or the rights of the nobility.
The Bill of Rights (1689; England) declared that Englishmen, as embodied by Parliament, possess certain civil and political rights; the Claim of Right (1689; Scotland) was similar but distinct.
The Virginia Statute for Religious Freedom (1785; United States), written by Thomas Jefferson in 1779, was a document that asserted the right of man to form a personal relationship with God free from interference by the state.
The United States Bill of Rights (1789–1791; United States), the first ten amendments of the United States Constitution specified rights of individuals in which government could not interfere, including the rights of free assembly, freedom of religion, trial by jury, and the right to keep and bear arms.
The Constitution of Poland-Lithuania (1791; Poland-Lithuania) was the first constitution in Europe, and second in the world. It built upon previous Polish law documents such as the Henrician Articles, as well as the US constitution, and it too, specified many rights.
The Universal Declaration of Human Rights (1948) is an overarching set of standards by which governments, organisations and individuals would measure their behaviour towards each other.[citation needed] The preamble declares that the "...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..."
^ a bWenar, Leif (July 9, 2007). "Rights". Stanford Encyclopedia of Philosophy. Stanford University. Retrieved 2009-12-21. Rights dominate most modern understandings of what actions are proper and which institutions are just. Rights structure the forms of our governments, the contents of our laws, and the shape of morality as we perceive it. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.
^Harrison, Ross (1995). "Jeremy Bentham". In Honderich, Ted (ed.). The Oxford Companion to Philosophy. Oxford University Press. pp. 85–88. Archived from the original on 2017-01-29. Retrieved 2012-12-01. Also see Sweet, William (11 April 2001). "Jeremy Bentham". The Internet Encyclopedia of Philosophy. Retrieved 7 January 2011.
^ a b"Human Rights | Internet Encyclopedia of Philosophy". Retrieved 2020-11-14.
^ a bWenar, Leif (July 9, 2007). "Rights". Stanford Encyclopedia of Philosophy. Stanford University. Retrieved 2009-12-21. A distinction between negative and positive rights is popular among some normative theorists, especially those with a bent toward libertarianism. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. A right against assault is a classic example of a negative right, while a right to welfare assistance is a prototypical positive right.
^Pope John Paul II, Sollicitudo rei socialis, section 15, published 30 December 1987, accessed 29 July 2023
^Ayn Rand (2009-12-18). "The Virtue of Selfishness: Individual Rights". The Ayn Rand Lexicon. Retrieved 2009-12-18. Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual). see page 104. See also: Collectivized 'Rights
^Kate Pickert (Mar 9, 2009). "Undercover Animal-Rights Investigator". Time Magazine. Archived from the original on March 10, 2009. Retrieved 2009-12-21. One of the most powerful tools animal-rights activists have is the video footage shot inside places like poorly run dog kennels, animal-testing facilities and factory farms, used as grim evidence of the brutality that can take place. But how do animal-rights crusaders actually get those videos?
^Victoria Burnett (July 26, 2007). "Human Rights Watch says migrant children are at risk in Canary Islands". The New York Times. Retrieved 2009-12-21. They must immediately come up with a plan to close these centers," Simone Troller, author of the report and a children's rights researcher for Human Rights Watch in Europe, said in a telephone interview. "While these centers continue to exist, we believe children continue to be at risk.
^"Soap Operas Boost Rights, Global Economist Says". Morning Edition. NPR. October 21, 2009. Archived from the original on Dec 25, 2009. Retrieved 2009-12-21. Many of these locally produced programs feature strong female characters. When Rede Globo began broadcasting in its native Brazil in 1965 the average woman had about six children — now the average woman has no children or one child.
^Roemer, John E. (December 14, 2005). "Roemer on equality of opportunity". New Economist (Blog). New Economist. Retrieved 2009-12-21. Equality of opportunity is to be contrasted with equality of outcome. While advocacy of the latter has been traditionally associated with a left-wing political philosophy, the former has been championed by right-wing political philosophy. Equality of outcome fails to hold individuals responsible for imprudent actions that may, absent redress, reduce the values of the outcomes they enjoy, or for wise actions that would raise the value of the outcomes above the levels of others'. Equality of opportunity, in contrast, 'levels the playing field,' so that all have the potential to achieve the same outcomes; whether or not, in the event, they do, depends upon individual choice.
^"Divine Right of Kings". BBC. 2007-10-11. Retrieved 2009-12-21. [...] the idea that a king was sacred, appointed by God and above the judgment of earthly powers [...] was called the Divine Right of Kings and it entered so powerfully into British culture during the 17th century that it shaped the pomp and circumstance of the Stuart monarchs, imbued the writing of Shakespeare and provoked the political thinking of Milton and Locke.
^"The First Global Statement of the Inherent Dignity and Equality". United Nations. Retrieved 2010-09-13.
^Lauren, Paul Gordon (2003). "Philosophical Visions: Human Nature, Natural Law, and Natural Rights". The Evolution of International Human Rights: Visions Seen. Philadelphia: University of Pennsylvania Press. ISBN 0-8122-1854-X.
^Robertson, Arthur Henry; Merrills, J. G. (1996). Human rights in the world : an introduction to the study of the international protection of human rights. Manchester: Manchester University Press. ISBN 978-0-7190-4923-1.
^R. B. Serjeant, The Sunnah Jami'ah, pacts with the Yathrib Jews, and the Tahrim of Yathrib: Analysis and translation of the documents comprised in the so-called "Constitution of Medina". Bulletin of the School of Oriental and African Studies, University of London, Vol. 41, No. 1. (1978), p. 4.
^Lepore, Jill (2015-04-13). "The Myth of Magna Carta". The New Yorker. ISSN 0028-792X. Retrieved 2024-02-10.
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