What Rights Are by Tara Smith (1995) Ch.1: Moral Rights and Political Freedom

The first task before us is to establish exactly what rights are. Given that disputes about rights frequently reveal confusion over rights' most fundamental character, this is not as simple an undertaking as one might suppose. I shall draw on the existing literature, seeking out previous authors' most useful observations. More significantly, though, I shall direct our attention to the facts of human experience that give rise to the concept of rights. We can best illuminate rights by considering the sorts of actual situations which invite their introduction.

The Subject Matter

To begin, we should restrict our domain of inquiry. The rights we shall be examining are general moral rights. By general rights I mean rights held by everyone. These are contrasted with special rights, which are those rights that particular individuals hold by virtue of an action that someone has taken or by virtue of standing in a particular relationship to another person. For example, Lance may have a special right that Valerie give him piano lessons because she promised to do so. A child may have special rights against her parents that she does not hold against strangers. General rights, by contrast, do not rely on such contingent features of individuals' actions or relationships.¹

By saying that the rights that we are investigating are moral, I mean to distinguish them from legal and other institutional rights, such as the particular voting or speaking rights belonging to corporate stockholders or to members of a club, debating society, or board of trustees. Moral rights are rights that individuals possess independently of such conventional construction. While the designation of certain rights as general spotlights who holds rights (everyone), the designation of certain rights as moral concerns the basis of individuals' rights. These issues are not entirely distinet, of course. We can only sort special from general rights by reference to their bases. But the moral rights-institutional rights distinction calls attention to a further aspect of rights' foundations: whether any conventions must be followed in order to generate a particular right. To confirm that the two distinctions do not collapse into one, observe that general rights may be either moral or institutional and that special rights may be either moral or institutional.²

While a variety of specific rationales have been offered as the basis for moral rights, the conviction uniting these accounts is that individuals hold certain rights regardless of whether a particular legal or other manmade code acknowledges them. The same sorts of foundations that justify other moral principles also underwrite the possession of certain rights. While moral rights sometimes acquire the additional status of legal rights, the salient point is that the existence of moral rights does not depend upon any such conventional recognition. General moral rights, then, are those that all persons possess simply by virtue of being persons.³

Prevailing Accounts

With the subject matter thus confined, I can turn to the question of what rights are. Contemporary authors do not agree. It is not so much that they explicitly disagree as that they fail to confront the question directly. While many take pains to carve out various species of rights and to decipher what a particular right (such as the right to privacy) entails, we find far less attention paid to what rights per se are. Most are reluctant to venture a definition. Joel Feinberg has declared that rights cannot be defined: "the concept of a right is a 'simple, undefinable, unanalyzable primitive.'"⁴

Despite this reticence, we do find widely shared views about prominent characteristics of rights. Nearly all rights theorists agree that a right represents something that a rightholder has coming to her, something that she is entitled to demand. To acknowledge that a person has a right to x is not merely to assert that it is desirable that she have x. Rather, when we recognize rights, we are affirming that the rightholder would be wronged if the object of her right were denied her. The fulfillment of rights is neither optional nor supererogatory, but morally mandatory. As L. W. Sumner has put it,

To say that I have a right to some good or service is not to say that it would be nice or generous or noble of others to give it to me; it is rather to say that they are obliged to do so, that it would be unfair or unjust of them not to, that I am entitled to expect or demand it of them.⁵

This much conveys some of the strength of rights. In the absence of definitions, however, synonyms and metaphors have carried the balance of the clarificatory burden. A few that have become entrenched do convey important aspects of rights.

H. J. McCloskey has championed the view that a right is "essentially an entitlement to do as I please."⁶ Feinberg maintains that rights merge entitlements with claims against others. He has described rights as "valid claims" - claims that are valid in light of other moral principles.⁷ Both "entitlement" and "claim" have become standard elucidations of rights.

Rights are not simply one sort of claim alongside others of comparable weight, however. As Ronald Dworkin so famously put it, rights are trumps.⁸ Their authority is not negotiable. When various kinds of considerations are raised in an attempt to determine how a person should be treated, a right is not simply one among equals. Rights assume priority. They carry veto power over other sorts of claims. To assert a right to something is to catapult one's claim to an elevated status; to have a right recognized is to have that claim acknowledged as beyond legitimate challenge. This portrait of rights' unique power is of a piece with Feinberg's contention that a valid claim offers "a decisive case, invulnerable or conclusive.⁹

This characterization of rights meshes with the way that rights claims are usually presented. When a person invokes a right, it is not tentatively proposed as an opinion open for reasonable debate. Rather, rights are asserted as claims whose authority is beyond dispute; they must be respected. (No doubt, this decisive status explains why so many different causes paint their claims as rights. Winning recognition of a claim as a right is valuable precisely because rights carry this heightened, unimpeachable authority.)

However apt some of the metaphors for rights may be, such truncated images cannot substitute for a definition. They do not adequately identify rights' distinguishing characteristics. Consider: If rights are valid claims, by which moral principle do we determine their validity? What type of entitlements are rights? What do they protect? In which sphere of disputes are rights trumps? With such open questions dangling around our understanding of rights, it is no wonder that suspect claims could gain credence. The discipline of a definition is indispensable in battling the inflation of rights.

What Rights Are

Rights are individuals' moral claims to freedom of action. Historically, this has been the dominant conception of rights.

John Locke, the most influential philosophical advocate of rights, held that every person is born with a right to freedom. The insecurity of this freedom in the state of nature propels us to establish a government, but once under government, the concern to safeguard liberty remains paramount. Locke repeatedly invokes this objective when discussing more technical questions about the administration of governmental authority (such as the limits of legislative power, government financing, and the dissolution of government). Rights' service to liberty reverberates throughout Locke's political theory. Indeed, Locke spoke about rights as a means of speaking about freedom. ¹⁰

In recent years, rights scholars have devoted more attention to some of Locke's predecessors. Hugo Grotius is often credited with ushering in the modern conception of rights. One commentator writes that Grotius' conception of a right initiated a "new way of understanding the sphere of control belonging to individuals."¹¹ Note that designating a person's legitimate sphere of control is a jurisdictional issue. It offers no guidance concerning how a person should conduct herself within that sphere. In other words, even Grotius seemed to realize that rights govern the issue of which person is entitled to determine actions in a given domain - i.e., what a person should be free to do.

In this century, the thesis that rights govern freedom was clearly articulated by H. L. A. Hart:

the concept of a right belongs to that branch of morality which is specifically concerned to determine when one person's freedom may be limited by another's, and so to determine what actions may appropriately be made the subject of coercive legal rules.

References to rights reflect a type of moral evaluation specially appropriate to interferences with freedom, Hart explains. Determinations of which rights individuals possess should not be confused with determinations of what is morally right or people's broader obligations.¹²

Still more recently, Carl Wellman has written that in any debate over rights, what is at issue is whose will ought to prevail. Rights delineate individuals' proper domains of freedom. Wellman invokes Hart's image of rights as "protective perimeters" around a right-holder, beyond which others may not trespass.¹³

Countless others have affirmed the conceptual link between rights and freedom. No inventory of these authors could, by itself, provide a conclusive case for accepting this portrait of rights' function, however. For the validation of rights as a freedom-protecting mechanism rests in actual phenomena. Beyond the wide consensus about rights' purpose, we must identify the practical impetus behind recognizing claims to freedom. This is easily done, since ordinary experience makes plain the need for a concept that demarcates individuals' spheres of authority.

In order to appreciate this need, we should first back up a bit. Consider the myriad ethical questions that individuals confront on a regular basis. Should I pursue the career that will enable me to make the greatest contribution to society? Or the work that I expect to find most satisfying? Should I establish personal goals and strive to achieve them, or let myself slide when no one else is affected? Should I lie to others to get what I want? Should I be honest with myself even when tempted toward self-deception? Should I allow a person's race to determine whether I hire her? Do I have an obligation to give money to the poor? Should I recycle bottles for the sake of the environment? On what basis should I select my friends? Should I buy stolen property? Should I try to dissuade others from engaging in immoral activities? Should I try to prevent others from engaging in immoral activities?

Obviously, the list could be extended considerably. Within it, we find a broad division between two kinds of issues. Some moral questions concern the impact that one's behavior will have on others, while some do not. Not all moral questions concern our interactions with other people. While it may be that nearly all of a person's actions carry some repercussions for others, however minuscule, it is fair to distinguish between those actions that primarily concern the treatment of others and those whose social effects are minor. In most circumstances, whether I seize your property directly affects you; whether I drink does not. A person's decisions about a range of things, such as what she consumes and how she entertains herself, can fairly be considered self-regarding. Accordingly, we can divide moral questions into social and personal ones.¹⁴

Within the social realm of ethics, we must draw a further distinction. Among the many ways that one person's action may affect another, one is by obstructing that person's ability to run her life. Lance may affect Valerie by declining her invitation to dinner, refusing to hire her for a job, or buying the last available ticket to a concert that she longed to attend. He also can affect Valerie by shooting, gagging, raping, or enslaving her. Only in the latter sorts of cases, however. would his action interfere with her control of her life. (We shall have much more to say on this in later chapters.) These disparate ways of having an impact on others raise a serious moral question: is a person ever justified in preventing others from doing as they choose?

Notice that this question concerns not simply the broad issue of how we should act toward others. This question addresses a more particular aspect of people's interactions: what are we obligated to allow others to do? Beyond the issues of whether we approve of others' activity, whether we should express our evaluation of it, and whether we should encourage, assist, or discourage their engaging in it, the prospect of preventing others from doing as they wish raises a unique question. As such, it requires specially tailored guidance, designed to steer us solely on this issue. It is here that it is appropriate to introduce the concept of rights.

Many disputes between people revolve around just this issue. Differences over how territory is to be used - a given plot of land, a body of water, an abandoned building - are often questions about who shall control the territory. One question obviously concerns how a given resource should be used. Yet a separate, often fiercely contested question must be resolved first: who is entitled to decide how the territory will be used?

Control of external objects is not the only subject that provokes disputes about people's freedom. Decisions directing the course of an individual's life also require the recognition of someone as legitimate "boss." People frequently clash over who should decide how a life should be lived. Should parents select the type of education their child receives? Should the federal government, or a local church committee? Should the child herself decide whether and whom to marry, or is that for someone else to decree? Though disputes in certain areas tend to arise more often than in others, all of the decisions that plot our lives - choice of profession, friends, residence, play - require that someone be respected as the sovereign over a life. This is precisely rights' province: that area in which conflicts arise over who is entitled to rule a person's actions.¹⁵

What I am suggesting, then, is a division of moral labor.¹⁶ Where significantly different kinds of questions arise, different kinds of guidance are called for. Our moral principles should respect the all-important difference between what a person should do and what a person should be free to do. The concept of rights distills judgments of what is right from judgments of what a person has a right to do. The realization that rights exclusively govern freedom separates the question of how a person should act from the question of who should decide how she will act. If someone must be the legitimate authority choosing a person's actions, rights address the question of who that authority should be. The concept of rights thus governs just one subset of moral questions. Rights adjudicate disputes about individuals' authority to rule actions. A determination of what rights a person holds does not assess how a person should rule or what actions she should take, however.

The Right to Do Wrong

Given the very specialized task that rights perform, we should notice an implication that may initially be puzzling. A person may have "a right to do wrong." To eliminate the air of paradox, it is important to understand exactly what this means.¹⁷

The right to do wrong makes perfect sense as long as we bear in mind the distinct functions of rights and other moral principles. Rights concern the domains over which individuals are entitled to rule. Accordingly, acknowledging that Valerie has a right to do something means that she remains within her "territory" in doing it. While her action may be morally objectionable (wrong) on some other grounds, it does not trespass on anyone else's rightful domain. Valerie's action does not overstep the bounds within which she is entitled to do as she pleases.¹⁸

The crucial point is that acknowledging a person's right to do something concedes no more than that. In interpreting the claim that Valerie has a right to x, we must strictly adhere to the separate kinds of moral judgments made by pronouncements about the rights people possess and by pronouncements about what behavior is right. Judgments of what rights a person holds exclusively concern the freedom that individuals are entitled to. Judgments about what is right concern the overall moral propriety of an action. Accordingly, determining which rights a person possesses tells us only who should have authority to make decisions in a certain sphere. It does not pass judgment on the decisions that might be made.

While a right shields a person from others' interference, it does not immunize the uses that she might make of that right from further moral evaluation. Attributing a right to a person delivers only a partial verdict on the morality of the actions protected by the right.

It is perfectly possible for a person to make use of her legitimate freedom by doing something that she ought not to do - something that is, all things considered, morally wrong. Maintaining that the person has the right to take this action in no way mitigates that broader negative appraisal. To acknowledge a person's right to do something is not to lend her action one's endorsement or a moral imprimatur. Recognizing a person's right to do x merely affirms that the decision is (morally) hers to make. Others would wrong her if they interfered with her making it. The further moral character of the decision, however, is not evaluated by this recognition. To allow certain behavior (and to believe that it should be allowed) is not to approve of it.

All of this may seem unproblematic. Since the relevant distinctions are frequently fumbled in application, however, I should caution against potential misunderstandings.

• First, the right to do wrong is not the reason to embrace rights. Protecting immoral behavior from outside interference is not the prize for the sake of which we should recognize rights; the justification of rights is hardly that they can help us "get away with something." Rather, the right to do wrong is a by-product of rights unwavering protection of individuals freedom. As will become clearer in chapter 2, rights' protection of certain immoral behavior is simply a logical implication of rights' foundations.
• Second, insisting that rights be respected does not imply that rights are the most important moral principle. We already have emphasized that rights do not exhaust the realm of moral judgment.¹⁹ Since other moral principles address other questions, the authority of rights does not come at the expense of any other moral principle. If rights and injunctions to be honest, loyal, or brave, for instance, delivered conflicting instructions on the very same question, then respect for rights would entail diminished respect for other moral principles. Since what a person should be free to do is distinct from what a person should do, though, no competition between rights and other moral principles arises. Thus the decisive authority of rights does not attenuate the significance of other moral judgments. As long as we understand the delimited statement that an attribution of rights makes, we should appreciate that respect for rights is perfectly compatible with properly honoring other moral principles, as well. Taking rights seriously does not mean taking only rights seriously, or taking rights more seriously than all other moral concerns.²⁰
• A third observation: disputes over political issues are, appropriately, usually framed in terms of rights. The unfortunate tendency, however, is for public debate about rights to crowd out discussion of other substantive moral questions. That is, our attention to determining who holds which rights too often deflects us from considering further questions of how rightholders ought to exercise their rights. Frequently. it is easier to arrive at the conclusion that a person should be free to do certain things than it is to explain why, nevertheless, she should not do them. It would be fair to blame devotion to rights for this phenomenon only if one misrepresented rights as purporting to provide the sum of the moral guidance that we require. Since a commitment to rights carries no such pretensions, an advocate of rights can lament this neglect of other substantive moral questions as much as anyone else.

Corollary Characteristics of Rights

Rights, again, are moral claims to freedom of action, mandated by the need for clearly demarcated lines of authority over individuals' lives. This core character radiates other distinctive features of rights. An elaboration of these will deepen and tighten our understanding or what rights are.

Since rights protect their bearers freedom, rights function as a defensive mechanism. Rights are protective devices intended to guard a rightholder from external intrusions. It is important to underscore rights defensive character in light of criticisms that the concept of rights promotes adversarial attitudes among people. The charge has been made lately that thinking of ourselves as rightsbearers encourages the view that individuals are enemies. In fact, rights are shields, not weapons. The concept of rights is necessary, and it makes sense for an individual to assert her rights, only in the face of others actual or threatened aggression. Since some people do interfere with others, we have a need for sateguards such as rights. Rights are not the cause of hostility, but a response to it.

A second significant property of rights is that they obtain only in social settings. Insofar as rights are moral claims, recognition of rights is to guide the behavior of moral agents. Consequently, rights do not hold against inanimate objects or nature. Invoking rights against car keys or inclement weather would be fruitless. Rights claims are addressed to other persons because rights protect their bearers from others' possible intrusions. To speak of the rights of a person alone on an island would make no sense. At best, we might speak of rights that such a solitary figure would possess if she had human company. In the absence of others, however, talk of her rights is empty. In that context, rights are inapplicable.²¹

The fact that a right is a compelling claim that must, morally, be honored means that rights are two-party propositions. As a defensive mechanism, a right is always a claim against someone: whomever poses a potential threat. When a claim is a genuine right, others are bound to respect it. Recognizing that a person has a right, therefore, delineates the range of others' morally permissible behavior.

This two-party dimension of rights goes hand in hand with a third, crucial aspect of rights - one person's rights always entail other persons' obligations.²² Any time we recognize the rights of one person, we are simultaneously recognizing others' duties to respect those rights.

Often, the moral restrictions that rights impose are hardly noticeable. A person need not be obligated to perform particular actions in order to respect a right; minding one's business, refraining from interfering with a rightholder in certain ways, will normally suffice. If Lance's right not to be killed implies that others are obligated not to kill him, then that obligation falls on all other people. This includes those who are not tempted to kill Lance as well as those who have never met Lance and may not even be aware that Lance exists. (You are fulfilling this obligation now, as you read.) That people may not notice this obligation, let alone be tempted to violate it, however, does not erase the obligation. An obligation to stay out of another person's way - regardless of one's acquaintance with or proximity to that person - is no less genuine than an obligation to take some more positive action.²³

In general, neither the form in which an obligation is fulfilled, the ease with which it is fulfilled, nor the amount of resistance to the obligation felt by those bound by it determines the authenticity of the obligation. Just as we tend to hear more about rights when they are abused than when they are respected, so the obligations correlative to rights are most conspicuous when they seem onerous. But the spotlight need not be on particular rights or duties for those rights or duties to be operative.

Rights' correlativity with obligations is essential to rights' value. These obligations are the means through which rights provide their protection. If a person could have a right that didn't affect others' obligations, recognition of rights would be hollow. Obviously, the recognition of rights does not guarantee that all people will actually respect those rights. But rights unattached to correlative obligations would not even aspire to practical efficacy. Indeed, such a conception of rights would surrender the view that morality demands their respect. The belief that one person's right carries no implications concerning how others may act might express the hope that others treat the rightholder in certain ways, but it would not convey the conviction that they must. It would lack all moral punch.

It is worth emphasizing that because rights entail duties, we can never recognize rights for some without a corresponding adjustment in our understanding of the duties of others. The recognition of duties correlative to genuine rights does not represent a loss for the duty-bearers. That is, if the rights recognized are authentic, then the respective restrictions do not deprive others of anything that they are entitled to. The moral license to interfere with the rightholder in the proscribed manner was not theirs in the first place. Having the illegitimacy of such interference avowed (via recognition of rights) does not constitute a loss. (We shall discuss this aspect of the rights-duties relation further in chapters 3 and 7.)

In light of the proliferating rights claims discussed in the Introduction, however, we must be attentive to the duties associated with rights. Recognizing the cornucopia of rights that people demand may appear harmless, or even generous only as long as we neglect the obligation side of the ledger. While duties correlative to true rights do not impose literal costs on others, duties correlative to false rights do. That cost is a violation of their rights.

All rights entail duties, in order to constitute potent moral claims. Given the limited jurisdiction of rights, however, not all duties entail rights. Since the realm governed by moral obligation is much broader than the realm governed by rights, many duties concern aspects of the moral propriety of actions other than the freedom of those actions. Accordingly, many moral imperatives are unattached to any individuals' rights (prescriptions to be disciplined, productive, or honest with oneself, for instance). Since numerous moral principles instruct what we should do rather than simply what we are obligated to allow others to do, these obligations are not rooted in particular claims that other individuals are entitled to press against us.

The fact that the ancient Greeks had a coherent conception of morality that did not include the idea of rights supports the claim that obligation is not dependent upon the concept of rights.²⁴ Many cases arise in which, although a person has an obligation to do something, her failure to do that something would not deprive another person of what he is entitled to. When a person has such an obligation, she can (and should) be morally condemned for falling to fulfill it. But the grounds of that condemnation are different from the grounds for condemning violations of rights.

While most rights theorists concur with this view of the relationship between rights and duties, they have tended to defend it by appealing to examples rather than by explaining the distinctive tasks of rights and other moral principles.²⁵ A few standard examples are typically invoked to illustrate the difference between rights-based and non-rights-based duties. Many maintain that people have an obligation to contribute to charitable causes although no particular individuals may demand, by right, that people donate to them. Many maintain that we have obligations toward animals and the environment, though again, no rightholder stands on the receiving end of such obligations. (In recent years, of course, some have claimed that animals and the environment do have rights, but many continue to hold that we have duties in these areas untied to anyone's [or anything's] rights.) Others have suggested that we have obligations of courtesy, though a victim of unprovoked gruffness has not suffered any infringement of her rights.

Self-regarding behavior provides more compelling evidence. As noted earlier, a person may have some moral obligations that have no direct bearing on others. Moral injunctions against sloth or wanton indulgence of appetites fall under this category. Obligations to live up to these demands are not grounded in anyone's rights.

Obviously, whether any example provides a convincing case for the existence of obligations independent of rights will depend on whether one credits the cited obligation as genuine. The true basis for the thesis that not all duties entail rights rests in attending to the division of labor that I have sketched: the distinction between judgments of what a person should do (the broad realm of obligations) and judgments of what a person should be free to do (the particular province of rights, which coincides with the narrower field of rights-based ob-ligations).

Conclusion

We can now better understand my original statement that rights are individuals' moral claims to freedom of action. Rights are authoritative claims that individuals are entitled to in virtue of the particular moral principle governing people's freedom of action in social contexts.²⁶ The salient features of this definition reflect the central elements I have described. Rights are claims of trumplike authority. Rights govern one segment or morally: individuals' freedom. And rights apply only in social setungs. In addition. it is important to appreciate the defensive character of rights and their irrevocable implication of others' obligations. In order to shield individuals' freedom, rights must correspond with others' duties of non-interterence.

The remainder of this book is devoted to elaborating further on what this means and to demonstrating why we should recognize such claims.

Chapter 2: The Justification of Rights

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