Although ancient ethics used the concepts of property and justice, each of which presupposes something similar to the concept of a right, the concept of a right in the modern sense developed only later. The first philosopher to define a moral right was most likely William of Ockham (c. 1285–1347), who noted that jus sometimes refers to the power to conform to right reason.
Thus, he integrated the legal concept of dominium or property into the moral theory that the law of nature determines right action. Hugo Grotius (1583–1645) adopted the resulting theory of natural rights—rights conferred by the law of nature—and made it the basis for his theory of international law.
Hobbes and Locke used their conceptions of natural rights to explain the grounds and limits of political obligation. Hobbes (1588–1679) conceives of a right as a liberty of action that is the absence of any contrary obligation.
Because the law of nature requires only that one seek peace, in a state of nature where there is no peace one has a natural right to do anything one desires. He infers that citizens can have a duty to obey the sovereign only if they give up most of their natural rights.
Locke (1632–1704), however, uses his theory of inalienable natural rights to limit the authority of the sovereign over the members of a society. He conceives of natural rights in the traditional way as powers of acting in conformity with the natural law and assumes that the law of nature also imposes obligations upon others not to prevent one from exercising these rights.
The Lockean theory of inalienable and imprescriptible natural rights inspired the American Declaration of Independence, the French Declaration of the Rights of Man and the Citizen, and the subsequent development of constitutional law in much of Europe and North America.
|the Rights of Man|
Jeremy Bentham (1748–1832) subjected the doctrine of natural rights to severe criticism. The notion that there are natural rights—rights not created by human legislation—is conceptual nonsense because a right of one party implies a corresponding obligation of some second party, and an obligation exists only when commanded by some law enforced with coercive sanctions.
Granting the existence of natural rights is morally perverse, for one could appeal to natural rights to justify any arbitrary action because without any law to define their content they would be indeterminate.
Finally, the doctrine of inalienable and imprescriptible natural rights is politically dangerous because it would justify anarchy, for the individual's absolute natural right to liberty or the pursuit of happiness could neither be given up by the citizen nor extinguished by coercive legislation.
After the 1950s, few moral philosophers adopted a traditional natural rights theory because of skepticism about both the existence of a natural law expressing the will of God or a Cosmic Reason as well as one's ability to know what it might command or forbid by the natural light of reason.
Skeptical as one may be of natural rights, one can hardly doubt the existence of legal rights. A central concern of modern jurisprudence has been to explain the nature of these rights. Although juristic theories are primarily theories about the nature of legal rights, they can be extended to moral rights if one conceives of morality in terms of something like the moral law.
John Austin held that a legal right is equivalent to a relative legal duty. Legal duties are imposed upon persons by laws that command some act or forbearance and constitute obligations because they are enforced by sanctions in the event of disobedience.
Although some duties, such as the duty to pay one's taxes, are absolute in the sense that they are owed to society in general and not to any assignable individual, a relative duty is owed to one or more determinate second parties. Thus, the creditor's contractual right to be repaid by the debtor is simply the debtor's duty of repayment owed to the creditor viewed from the latter's point of view.
John Salmond (1920) developed the view of Rudolph von Jhering that a legal right is a legally protected interest. The object of any right is the thing—not necessarily a material object—in which the right holder has an interest. Not all of one's interests constitute legal rights, however.
Only those protected by the law. For example, the object of one's legal right not to be killed is one's life, probably the most fundamental interest of every individual. This interest is protected by laws that prohibit killing and that punish murderers.
Paul Vinogradoff (1928) maintained that there are three elements of any legal right.
- A legal right must be claimed by some individual or state;
- this claim must be recognized by organized society as justified from the public point of view; and
- this declaration of right must be enforced by the legal authorities.
The former hold that the essential function of rights is to protect some interest of the right holder; the latter insist that the function of rights is to give the will of the right holder some privileged legal status.
Karl Llewellyn (1962) defined a right as a future judicial remedy. To say that Jones has a property right to his car is simply to predict how the courts will decide any cases concerning that car. For example, if someone steals the car, a court will hold that the vehicle shall be returned to Jones.
Or if someone damages that car and Jones sues for damages, a court will decide in favor of Jones. This theory of rights reflects the rule skepticism of American legal realists. They argued that it is a mistake to identify the law with the general principles or rules written in the law books.
What these general statements mean is left open to the interpretation of the courts and may or may not be applied in practice depending upon how judges choose to decide particular cases. Hence, what the law really is consists of the decisions made by the courts.
|the interpretation of the courts|
Scandinavian legal realists are not rule skeptics. In fact, Alf Ross (1957) identified a legal right with a set of legal rules such that any one of a number of facts legally implies all of a variety of legal consequences.
For example, if someone has purchased a thing or if someone has inherited a thing or if someone has earned a thing, then if another person steals that thing it shall be returned to the person who purchased or inherited or earned it, and if a second party damages that thing the second party shall compensate the person who purchased or inherited or earned that thing, and so on.
What the legal right to ownership really amounts to is simply the preceding set of legal rules. Thus, the language of rights is a convenient technique of summing up a complex set of connections in the law.
If legal rights seem to be some mysterious sort of ideal entities, this is merely because the language of rights has an emotive meaning that seems to give rights a magical power. This theory of rights reflects the concern of Scandinavian legal realists to reject the metaphysical idealism prevalent in continental legal philosophy.
Wesley Newcomb Hohfeld (1919) examined the writings of judges and jurists and concluded that they use "a right" indiscriminately to express any of four very different fundamental legal conceptions. This ambiguity suggests invalid legal reasoning because claims, liberties, powers, and immunities are different legal relations.
A legal claim of X against Y is logically correlative with a corresponding legal duty of Y to X. For example, X's legal right not to be struck by Y is the logical correlative of Y's legal duty not to strike X. A legal liberty or privilege of X in the face of Y is simply the absence of any corresponding duty of X to Y.
|X over Y|
Thus to say that X has a legal liberty to phone Y after midnight is to deny that X has a legal duty not to phone Y after midnight. A legal power of X over Y is the ability to change some legal position of Y by some voluntary action of X.
For example, X's power to give Y a book is X's ability to confer ownership of that book upon Y by handing it to Y and saying "I hereby give this book to you." A legal immunity of X against Y regarding some legal consequence C is Y's lack of legal power over X regarding C.
Thus, X has a legal immunity against Y that Y not extinguish X's ownership of a book by Y's act of saying "I hereby take ownership of the book away from X." Hohfeld argued that in the strict sense, only legal claims are rights because an essential feature of the concept of a right is that rights and duties are logically correlative. Every right implies a duty with a corresponding content, and every duty implies a corresponding right.
|single legal claim|
He admitted that lawyers often speak of multiple sets of claims as a legal right, but insisted that clarity and precision require conceiving of a legal right as a single legal claim of one individual against one second party.
Joel Feinberg (1980) agreed with Hohfeld that rights are claims, but denied that rights and duties are logically correlative. Although every right implies some duty, not every duty implies any corresponding right. For example, one's legal duty to obey the orders of a police officer is imposed by the impersonal law and not owed to the officer.
Similarly one's moral duty to sacrifice some of one's wealth to assist those in need does not imply any right of this or that needy individual to one's charity. Even when a right does imply some corresponding duty, it is a mistake to reduce the right to that duty.
What is distinctive and most valuable about rights is that they put one in a position to claim and to demand—and not merely request or beg—performance of the duty owed to one. What confers this status of claimant upon the right holder is some set of rules—legal rules in the case of legal rights and moral principles for moral rights. Hence, a right is a valid claim, a claim justified by some appropriate set of rules.
H. J. McCloskey (1959, 1979) denied that rights are claims against and argued that they are entitlements to do, have, enjoy, or have done. Having purchased a car and obtained a driving license, one has a legal right to drive one's car.
This is a right to do something—to drive on public thoroughfares; it is not primarily a claim against policemen and magistrates not to interfere. One possesses and exercises rights; one makes claims but does not possess or exercise them.
|policemen and magistrates|
Although one's moral right to life gives rise to duties of others not to kill one, it is primarily a right to live and preserve one's life. A hermit's right to life is the hermit's right to do whatever is necessary to sustain the hermit's life—including killing and eating animals—although there is no one else on or near the isolated island against whom the hermit could possibly claim the right to do so.
Admittedly, the creditor's right to be repaid does hold against the debtor, but this is a special sort of right and not typical of rights in general.
H. L. A. Hart (1982) agreed with Hohfeld that "a legal right" is used to refer to four very different legal relations, but did not conclude that this makes the expression ambiguous. He explained what liberty-rights, claimrights, power-rights, and immunity-rights have in common.
They all consist of one or more bilateral liberties protected by a perimeter of duties. For example, at the center of one's liberty-right to look over one's garden fence at one's neighbor is one's legal liberty either to look over one's fence at one's neighbor or not to do so.
This right does not impose upon one's neighbor any logically correlative legal duty to allow herself to be looked at; she is legally permitted to erect a higher fence or hide behind a screen. Still, this bilateral liberty is protected by a number of duties against interference.
One's neighbor has legal duties not to climb over one's fence and assault one or to blind one with a chemical spray. What distinguishes one species of rights from another is the kind of bilateral liberties at their center.
|event of nonpayment|
Thus, central to one's power-right to contract is one's liberty either to exercise one's legal power to accept an offer or to refrain from accepting it. And central to the creditor's claim-right to be repaid are the liberties to cancel or refuse to cancel the debt and, in the event of nonpayment, to sue or refrain from suing for payment.
Thus, a legal right is an individual choice respected by the law. Presumably Hart thought of a moral right as an individual choice respected by the rules of morality. His view that moral rights concern the proper distribution of freedom strongly suggests some such theory.
Hart's respected choice theory of rights is a will theory of rights, but it is a mistake to assume that all will theories are option theories. Feinberg's claim theory of rights is also a will theory because he argues that to have a right is to be in a position to make a claim, to demand performance of some corresponding duty.
Yet, his theory does not place any bilateral liberty at the center of every right. He even recognizes mandatory legal rights, such as the right to vote in Australia—where voting is a legal duty—so that one does not have any legal liberty to refrain from voting.
As one would expect, Hart argued against interest theories of rights. For one thing, to hold that a right consists in an interest protected by a duty reduces rights to duties that benefit some second party. This renders the concept of a right redundant, for one can say everything one needs to say in the language of beneficial duties.
But what is distinctive of rights correlative with duties are powers such as the right holder's power to cancel or enforce performance of that duty. Also, when a right benefits some third party, the right holder is not the party whose interest is protected by the law.
Thus, when a parent purchases life insurance and names a child as beneficiary, it is the child's interest that is protected by the insurance company's legal duty to pay, but the right holder is the parent rather than the child.
A conceptual analysis of rights usually implies something about the necessary conditions for the possession of any right. Thus, Hart's respected choice conception of rights implies that it is idle and misleading to ascribe rights to young children who have not yet developed the ability to choose.
Neil MacCormick (1982) suggested that children's rights are a test case for any theory of rights. He thought it clear that these children do have moral rights, including the rights to be nurtured, cared for, and if possible, loved.
Because will theories cannot explain these rights, they must be rejected. In their place, he proposed a protected interest theory of rights. Because even neonates do have interests, this theory can explain how it is possible for them to be right holders.
Feinberg's theory also seems to imply that very young children could not be right holders. He maintained that to have a right is to be in a position to make a claim, to demand something as one's due. Infants seem incapable of claiming in this performative sense.
But Feinberg believed that clearly even wee babies do make claims, not in their own persons but through parents or guardians who act as their representatives. These representatives are claiming on their behalf, acting in their interests.
|possible right holders|
Because children do have interests from the day they are born, they are capable of being represented and, therefore, are possible holders of legal and moral rights. Thus, Feinberg combined a will theory of the nature of rights with an interest theory of possible right holders.
Feinberg extended his theory of possible right holders to the more controversial debate about animal rights. Because many non-human animals do have interests in food, shelter, and freedom from pain, human beings can represent them and make claims on their behalf.
Hence, animals are also possible possessors of rights. R. G. Frey (1980) challenged the assumption that animals can have interests in the relevant sense.
|R. G. Frey|
One can take an interest in something only if one can desire or want that thing, and this requires that one believe something about that thing. But because animals lack any language adequate for believing, they cannot possibly have the desires or wants presupposed by the interest theory of possible right holders.
H. J. McCloskey denied that it is the capacity to have interests that makes one a possible right holder because one may, on moral grounds, choose to exercise one's rights contrary to one's interests. The notion of exercising—acting on the basis of—one's rights is central to the concept of a right.
And to exercise or refrain from exercising some moral right requires that one make a moral choice. Hence, it is the capacity for moral autonomy, for self-direction, and self-determination, that is required for the possession of rights.
Because animals lack this capacity, they are not possible right holders. Robert Elliot (1987) agreed that the capacity to exercise one's rights is necessary for the possession of rights, yet denied that this
requires full moral autonomy—the ability to consider moral reasons and choose on those grounds.
A human being could exercise one's moral right to self-defense simply by unreflectively defending oneself against an attacker. An animal could do the same. Hence, animals are capable of acting in a sense robust enough to enable them to possess rights.
Tom Regan (1983) accepted the Kantian view that human beings have moral rights because of their inherent value, but argued that it is arbitrary to restrict inherent value to moral agents. It is being the subject-of-a-life— having a life that goes better or worse for one—that confers inherent and not merely instrumental value upon one.
Because at least the higher animals are also subjectsof-a-life, they are also moral right holders.
Are human fetuses capable of possessing human rights, including the right to life? Mary Anne Warren (1973) granted that unborn children are human in the genetic sense of being members of the same biological species as adult human beings, but denied that this is relevant to whether they are members of the moral community of right holders.
It is because normal adult human beings are persons that they possess moral rights. The traits that are central to personhood are consciousness, rationality, self-motivated action, the capacity to communicate, and self-awareness.
Although it may be uncertain how many of these and in what degree are required for personhood, it is clear that fetuses possess few of these traits in any significant degree. Therefore, a human fetus cannot possess any significant right to life.
Advocates of the right to life often argue that the human fetus has the capacity to develop into an adult person; this potentiality gives it the moral right to life. The standard reply to this argument is that the potentiality to become a person implies only the capacity to acquire rights in the future, not the capacity to possess them before birth.
However, Francis C. Wade (1975) argued that if a kernel of seed corn has the capacity to grow into a stalk of corn, this must be because of something in the present nature of that kernel, an active tendency to grow.
Similarly, the human fetus's potentiality of full humanity in the morally relevant sense is an active tendency to develop personhood already existing in the fetus. This explains how fetuses can now possess moral rights, including the human right to life.
Although Bentham (1962) rejected the existence of moral rights independent of the law, John Stuart Mill (1969) defended their existence partly as moral grounds for judging that some law is unjust. A duty is a kind of action that a person may rightfully be compelled to perform and that one may be punished for not performing.
Legal duties ought to be enforced with legal sanctions; moral duties are obligations one should be compelled to perform by public opinion or the internal sanction of one's conscience. A moral right is the logical correlative of a relative moral duty, a duty owed to the right holder because that is the one who would be harmed by its nonperformance.
Why ought society to defend one in the possession of one's moral rights? Mill's answer is that this will promote the general utility—the greatest well-being—of all the members of the society.
Ronald Dworkin (1977) argued that no utilitarian theory of rights can take moral rights seriously. Sometimes to say that someone has a right to do something is to say merely that to do so would not be to act wrongly, but to say that someone has a right in the strong sense is to assert that it would be wrong to prevent one from so acting.
Thus, one may say that Jones has a moral right to spend his money gambling, although he ought to spend it in a more worthwhile way. The moral rights of the citizen against the state—such as the rights to free speech or to freedom from unreasonable searches—are worth taking seriously only if they are rights in the strong sense.
If they were grounded on utility, the government would be justified in infringing them whenever it would be useful to do so. But this would undermine their moral purpose: to give the individual special protection against political interference.
Therefore, a theory can take moral rights seriously only if it grounds them either on the human dignity of the individual person or on the ideal of political equality. Thus, the most fundamental moral right must be the right to equal concern and respect.
David Lyons (1994) responded that a utilitarian can take moral rights seriously. Dworkin failed to notice Mill's distinction between expediency and morality. An expedient act—one that has the best consequences—can be morally wrong because it violates a moral obligation.
What makes an act a moral obligation is not its utility, but that society would be justified in imposing sanctions— either the disapproval of others or of one's own conscience—upon agents who fail or refuse to act. And enforcing moral obligations is justified by its social utility.
For someone to have a moral right to something is for others to have a corresponding moral obligation at least not to injure and perhaps to promote the right holder's interest in that thing. This sort of indirect grounding of moral rights on the utility of the enforcement of the correlative duties does not imply that a right may permissibly be violated whenever it would be expedient to do so.
L. W. Sumner (1987) agreed with Bentham that there are no natural rights, but did not infer that there are no moral rights. Although he rejected Hart's will theory of rights and held that the function of rights is to protect some interest of the right holder, he adopted Hart's view that rights presuppose social practice rules.
Legal rules are made and upheld by the officials in some legal system; the rules of the moral code of a society are constituted by the practices of its members. But not every conventional right has moral force. A moral right is a morally justified conventional right, either an existing conventional right that it would be morally justified to retain or one that it would be justified to introduce into the conventional morality.
|L. W. Sumner|
And what justifies moral rights is the valuable consequences of maintaining the social practice rules that confer them upon moral agents. Although moral rights are grounded upon their contribution to human welfare, they can be taken seriously because the rules that confer them often constrain the direct pursuit of social utility.
Jeffrie G. Murphy (1977) argued that there are two very different kinds of moral rights. Autonomy rights mark out the special kind of treatment required to respect the dignity of autonomous rational persons. As Kant recognized, persons are ends—and not means only—and ought not to be sacrificed or used without their consent as instruments or resources for achieving the ends of others.
Autonomy rights are grounded on the inherent moral value of autonomous rational agents. But Mill recognized a different function of moral rights: to pick out those moral claims that ought to be protected by society, especially by the law.
|Jeffrie G. Murphy|
However, Murphy rejected Mill's utilitarian justification of moral rights and argued that they are grounded on a hypothetical social contract of the sort described by John Rawls (1971). Thus, an individual has a social contract right to X only if a law guaranteeing X to the individual would be unanimously chosen by rational agents who are not aware of what their special circumstances would be in their society.