What Is a Right? A Claim That Holds Even When Outweighed
By the BrainSnail editorial team. How these articles are written and checked, and how to tell us when one is wrong.
Saying someone has a right to something claims more than that it would be good for them to have it. A right imposes a duty on somebody else, and it resists being traded away for a larger benefit elsewhere, which is what distinguishes it.
What the claim does
A right is a claim that generates a corresponding obligation, so asserting one identifies not only what a person is entitled to but who must do something about it. That correlation is the structural feature that distinguishes a right from a wish or a good, since a benefit nobody is obliged to provide is not a right however desirable it is. The second feature is resistance to aggregation, since a right holds even when overriding it would produce more total benefit, which is why rights are described as trumps over ordinary considerations. That is exactly what makes them useful, because a protection that gives way whenever the sums favour doing so protects nothing, and it is also what makes them contested, since the cases where a right blocks an apparently better outcome are the ones people argue about.
The kinds
Several distinctions cut across the subject and confusing them causes most of the trouble:
- •Claim rights, which impose a duty on someone specific to act or to refrain
- •Liberty rights, which mean only that a person is not prohibited from doing something, with no duty on anyone else
- •Negative rights, requiring others to refrain from interference, which are generally cheaper to satisfy
- •Positive rights, requiring others to provide something, which cost resources and raise questions about who provides
- •Legal rights, which exist because a legal system says so and can be changed by changing the law
- •Moral rights, claimed to hold whether or not any law recognises them, which is what makes an unjust law criticisable
Where they come from
Accounts of the source of rights divide sharply and the divisions matter practically. Natural rights theories hold that they follow from human nature or from reason and exist independently of any institution, which supports criticising a state for violating rights it never granted, and faces the difficulty of explaining how such facts are known. Contractarian accounts derive them from what people would agree to under fair conditions. Consequentialist accounts treat them as rules that produce good outcomes when generally respected, which explains their usefulness while making them derivative and, critics say, unable to do the blocking work rights are supposed to do. Legal positivist accounts hold that rights exist only where a system establishes them, which is clear and leaves no standpoint from which to condemn a legal system as such. Most practical argument proceeds without settling this, which works until a hard case arrives.
Who can hold one
The question of which beings can have rights at all is separate from what the rights are, and it has been the site of most of the historical expansion. Arguments for extending rights to previously excluded groups of people generally proceeded by denying that the excluding criterion was relevant, which is the structure of the case against slavery, against restricting the franchise and against discrimination, and the same structure is used in arguments about animals, where the claim is that the capacity to suffer rather than species membership is what matters. Corporations hold legal rights, which is a deliberate legal construction rather than a moral claim and is contested for that reason. Future people, ecosystems and rivers have all been proposed as rights holders, and several jurisdictions have granted legal personality to natural features. The recurring question is what property grounds the entitlement, since any answer both includes and excludes.
When they conflict
Rights collide regularly and the mechanisms for resolving that are where most legal and political argument actually happens. Two people may hold rights that cannot both be satisfied, and a right held against the community may run against a collective interest. Legal systems handle this by treating most rights as qualified rather than absolute, specifying conditions under which they may be limited, requiring that any limitation serve a legitimate aim, be provided by law and go no further than necessary, which is the proportionality test used in many jurisdictions. A small number of rights are treated as admitting no exception at all, including freedom from torture and from slavery, and that absolute status is itself argued about. The practical upshot is that asserting a right is the beginning of an argument rather than the end of one, which is the opposite of how the word is generally used in public debate.
The takeaway
A right generates a duty on somebody, which distinguishes it from a benefit nobody is obliged to supply, and it resists being traded away for a larger total benefit. Liberty rights impose no duty at all, and positive rights cost resources in a way negative ones do not. Most legal rights are qualified, limited only where a legitimate aim requires it, so asserting one opens an argument rather than closing it.