Let's
consider rights. We all have them; we all want them, but what
exactly are they? A lot has been written about them through the ages
by very smart thinkers. So this will not be in any way an exhaustive
treatment; it will be more like a short introduction of just its
basic definition. Before I attempt to report on the more elementary
aspects of rights, let me introduce the description below with a word
on the importance of the topic.
As
I have noted many times in this blog, our current view of governance
and politics is one that emphasizes the rights of the individual. I
have also promoted the idea that rights or what we call having them –
liberty – is a quality under federalist thought that is based on
equality. At a minimum, I have argued that equality based liberty is
how we should conceptualize liberty and rights. But however we view
it or act upon it, we do need to account for it and define it.
Rights are too central to our civics and our republican philosophy of
government to ignore them.
Donald
S. Lutz1
reports on the traditional view of what rights are. That is, rights
have been viewed mostly as a claim: A has a right over B
when he or she has a claim on B. If I own an object and you
want it and we agree to exchange for a certain amount of money, and
if I hand over the object, I have a claim (a right) against you for
the amount until you pay me. If I hold that I have the right of free
speech, that means I have a claim against government that, if
honored, government has the responsibility not to legislate against
my saying what I want. Of course, there are limits to just about any
claim. If I, as the often cited example illustrates, yell fire in a
crowded theater, I am violating the rights/claims of the other
theater-goers to having a safe environment. Therefore, my claim is
limited, in this case, to the demands of other people's rights.
Lutz,
under this perspective, identifies six types of rights. They are
right as privilege, right as duty, right as promise or contract (as
the first example above illustrates), civil right, common law right,
and natural right.
- Right as a privilege refers to the right of some, because of their position, to be treated in a certain fashion. We generally associate this type with nobility or monarchy where nobles and kings are granted deference due to their titles or positions in society. Of course, if such privileges are based on unearned advantages, we generally believe these rights are undemocratic. But even in democracies, certain rights of privilege are honored such as those protected by inheritance laws.
- Mirroring this first type is the second, right as duty, where a person holds the legal or socially defined responsibility to treat another because of the position that duty-bound person holds. So, for example, a parent is responsible to honor the claim of a son or daughter. We have little trouble accepting the legitimacy of this type of right as long as there is an element of voluntarism on the part of the party which has the responsibility to meet the claim. A parent, a king, a doctor, for example, all make the decisions that cause them to be the person with the responsibilities associated with the relevant role creating the associated right.
- Right as promise or contract has already been described above (in my exchange example) and I will only add here that there has to be an element of mutual agreement between the claimant and the one who has the responsibility to honor the claim.
- Civil rights have often been mentioned in the news. We all know of the Civil Rights movements which we mostly relate to the legal, economic, and social advancements of African-Americans and other groups. Here the claim is that one person needs to treat another in a certain way due to a law, edict, or dispensation issued by a mutually recognized authority or superior agent/agency, usually the government.
- Common law rights refer to claims a person has on others so that they act toward the person in certain, expected ways because they share a nationality such as American or English or Canadian. The English tradition, where common law originated, institutionalized these custom-based expectations through judicial decisions as opposed to written laws.
And
then there are natural law rights. These are claims based on the
notion that a person is a person and that suffices to merit the
ownership of a claim. To some they are natural because of the belief
that the claim either originates with God or nature and is bestowed
on individuals. We own these rights regardless of what the civil
laws include. So the claim is made that even in tyrannical polities,
even if the government does not recognize these natural law rights, a
person still has them. According to the “expression of the
national mind,” what Thomas Jefferson described the Declaration
of Independence to be, a polity that systematically violates
natural law rights, has earned a legitimate rebellion against its
rule; that is, the people, whose rights are being violated, have the
right to overthrow that government. But, according to constitutional
scholar, John Hart Ely,2
the Declaration should not be interpreted as evidence that the
founding fathers were uniformly believers of natural law or natural
law rights. Instead the Declaration should be considered more
as a legal brief where all sorts of backing are included to further
an argument; in this case, an argument for a separation from the
mother country.
If
you are a reader of this blog, you know that I prefer the title
natural rights construct for the prevailing mental construct that
guides, more than any other perspective, the views of our governance
and politics. It's the primary view that guides the inclusion of
content making up our civics curriculum in our schools. The reason
for naming the construct natural rights refers to the above
description of natural law rights. With our current emphasis on
individual rights that seem to exist for no other reason than we
exist – maybe they are there because it is believed they come from
God – we, to a great degree, have deleted from our consideration of
rights what I believe are their social foundations. I have, in this
blog, made that argument before, but let me just add the point that
liberty and rights depend on social institutions to exist and
survive. By neglecting the importance of the social element, we
formulate unrealistic beliefs and expectations regarding rights.
Richard
Dagger3
addresses these concerns. He distinguishes between claim-rights, as
those described above, and liberty-rights. Liberty-rights can best
be described with an example of how they function. Dagger offers the
following situation: suppose you and I are walking down the street
and we simultaneously see $10 on the ground. No one is around and
there is no way to determine to whom the money belongs. All other
things being equal, we both have a claim to the money, but not to
each other or to anyone else. I guess, you can argue, that we both
have the claim that we must not inflict injury on each other in an
attempt to get the money, but that's about it. Sharing another
example, we have a liberty-right to listen, in the privacy of our
home, to the music we choose. When we dismiss all social elements
entailed with rights, we make them liberty-rights and we attach no
duties that are part and parcel of claim-rights. When one makes or
insists on a claim-right, there has to be someone else to satisfy the
claim; that is, the other person has a duty. If I claim I must be
treated with equality, there must be others who recognize my claim
and have the duty to treat me with that equality. But the language
of liberty-rights is conducive to a notion that my rights are there
because I exist and ignores any sense that I have duties to promote
or respect the rights of others. Let me share Dagger's thoughts on
this trend:
There
is some reason to believe that [our appeal to individual rights] is
growing out of control, however. … “[R]ights talk,” at least
as it is spoken in the United States, threatens to impoverish
political discourse “by its starkness and simplicity, its
prodigality in bestowing the rights label, its legalistic character,
its exaggerated absoluteness, its hyperindividualism, its insularity,
and its silence with respect to personal, civic, and collective
responsibilities.” Even some rights theorists now worry about “the
escalation of rights rhetoric” that threatens either to overwhelm
other valuable moral and political concepts and considerations or, by
a process of conceptual inflation, to rob the appeal to rights of
much of its value.4
Perhaps
you heard of the recent case involving a car filled with young men
who, being parked in front of a convenience store, were playing their
music extremely loud. When a man complained, they ignored him, so he
pulled out a gun and began shooting. The young men scattered, but
one of them sitting in the back seat was hit and killed. The man was
eventually arrested and the case is pending. He claims that the
shooting was justified – he was standing his ground – while being
threatened by the young men. I am not claiming these are all the
facts. The incident happened over a month ago and the press has
ceased reporting the developments of the case, but from these
purported facts, I think we can get a sense of how our notion of our
rights is “growing out of control.”
1Lutz,
D. S. (1992). A preface to American
political theory.
Lawrence, KS: University Press of Kansas.
2Ely,
J. H. (1980). Democracy and distrust: A theory of judicial
review. Cambridge, MA:
Harvard University Press.
3Daggar,
R. (1997). Civic virtue: Rights, citizenship, and republican
liberalism. New York, NY:
Oxford.
4Ibid.
Quotation is on p. 24. The quoted portion within this quotation is
by Mary Ann Glendon.
