THE VARIED TYPES OF RIGHTS

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.