What is a Right?
Introduction
Rights are fundamental in our thinking about ethics and politics. Rights are everywhere. We talk about rights to free speech, life, liberty and the pursuit of happiness, equal treatment, worship, fair trial, work, strike, privacy, paid holidays, form trade unions, legal representation, form and join political parties, a free education, and more. Furthermore, we talk about the rights of women, aboriginals, children, pensioners, homosexuals, disabled people, foetuses, embryos, future generations, animals and sometimes even trees. But what exactly is a right? This question will be answered later, but there are some general features of rights which can be pointed out now. A right is a right to something for someone and against someone else. Thus, for example, my right to free speech is a right for me and against everyone else in that no-one is allowed to interfere with my speaking freely (except in certain extreme circumstances). Furthermore, rights have differing degrees of strength. For example, a right not to be tortured is stronger than a right to free assembly or free speech – some rights are more basic than others.
Legal and moral rights
It is important to distinguish between legal rights and moral rights. Legal rights are pretty clear. They exist if the appropriate laws or political constitutions exist. For example, in Australia in many industries an employee has a right to long service leave after 10 years continuous service. And in the USA the First Amendment to the US Constitution guarantees all Americans the right to free speech. These are legal rights, being based in the law and political constitution. A legal right is a certain sort of entitlement guaranteed by the law. Thus the existence of any given legal right can be settled by pointing to the appropriate law. If the law exists then so does the right. Moral rights are not so clear. Their basis is moral rather than legal. In a certain society there may be rights which, though legally recognised, are not morally justified. Think of a society which grants the right of people to own slaves. As well as that, certain societies may have laws which deny what we think of as rights such as the right to vote or speak freely – in South Africa under apartheid, for example. In these cases it seems that a right exists (in some sense) but one that has not been legally recognised – a moral right. So the important question is "What is a moral right?" The American philosopher Ronald Dworkin has produced a very influential theory of rights and I’ll give an outline of his theory.
Dworkin’s theory
Dworkin is concerned mainly with political rights - rights against governments such as the right to free speech and expression or the right to equal treatment. He begins by contrasting rights with goals. Consider goals first. A political goal is essentially collective. It applies to society as a whole. Here are some examples: Economic efficiency, the pursuit of military strength, establishing the 1000 year Reich or the Dictatorship of the Proletariat or the Islamic state, improving the general welfare, achieving full employment, maintaining 5% growth for the next 5 years, and so on. These goals are collective or aggregate in that they are aimed at providing benefits for society as a whole rather than for particular individuals. Moreover, a society may have more than one goal and these may conflict, in which case one has to be traded off against the other until a suitable balance is found. Suppose, for example, that in a certain society two of its goals are maintaining a high level of economic growth and also achieving full employment. Situations may arise where a policy of job creation leads to a decline in economic growth, or where the attempt to increase economic growth leads to unemployment. The government is then forced into having to trade off full employment for economic growth so that a suitable balance which provides the greatest overall benefit can be found (assuming a certain degree of rationality and good will).
Consider now the notion of a right,
"A political right is...a trump over the general welfare for the account of a particular individual. When someone claims a right of free speech, for example, then it would be wrong for the state to prevent him from speaking on some matter even if the general welfare would be improved by preventing him from speaking." (p. 364)
There are two fundamental differences between rights and goals. Firstly, a right is an individual benefit whereas a goal is a collective benefit. Secondly, a right overrides or "trumps" a (collective) goal. This is another way of saying that a right, unlike a goal, cannot be traded off for another goal. A right can be traded off only against another right. Taking the example of free speech, if you have this right then it trumps other goals such as increasing the general level of prosperity in the community. If free speech is a right then this means that you must be allowed to speak freely. And furthermore, you must be allowed to speak freely even if this fails to advance any other goal or even if it works against some other goal which would benefit the society at large To repeat, a right is an individual benefit which prevails over, overrides or trumps political goals. As Dworkin says, "a right is an individual trump over decisions justified collectively" (p. 366). Thus according to Dworkin, this view of rights demonstrates their importance in protecting the interests of individuals against goals which serve society as a whole.
The idea of a right as a trump over collective goals should not be overstated. It is not that rights win out over the general welfare come what may. Rights are not absolute. Using the example of free speech again, to grant the right to free speech on a certain occasion may cause so much harm that the right may have to be curtailed. For instance, if racial tensions are high it may be necessary to prevent certain politicians, say, from speaking if their doing so is likely to lead to mob violence. The point of Dworkin’s view is this. To regard free speech as a right means that free speech can’t be curtailed simply because the general welfare or some other political goal would be served by restricting free speech. This is where rights differ from goals. A government may trade off full employment in favour of economic growth and this decision will be the result, suppose, of a cost-benefit calculation. According to Dworkin’s view, a right cannot be traded off simply on the basis of this sort of cost-benefit calculation. This allows that there may be certain extreme circumstances where rights have to be curtailed. Goals can be traded off at will whereas rights cannot. That is the essence of Dworkin’s theory of rights.
One final point about rights. Not all rights have equal force. For example, the right not to be tortured is more fundamental than, say, the right of peaceful assembly. Thus it may be that on occasion one right has to be traded off against another, in which case the more fundamental right will prevail. Rights conflicts present difficult moral problems. One such is the debate about abortion which, in part, involves a choice between the rights of a foetus and the rights of the mother. Trading off rights against other rights does not conflict with Dworkin’s view. According to his view, a right cannot be traded off for some political goal, but this allows that a certain right may have to be traded off for some other right. The problem here is to say which rights are the fundamental ones.
Dworkin’s theory, which I have outlined, gives an answer to the question asked earlier "What is a moral right?" But answering that question still leaves a lot of questions about rights unanswered.
Some questions about (moral) rights:
- Are there any rights at all? If so, how can this be shown? A nihilist about rights is someone who denies their existence. How would you persuade the nihilist that rights do exist? Are rights discovered or created? Are there any "natural" rights?
- Are there any fundamental rights? Which ones? "Right to life, liberty and the pursuit of happiness"? Right to free speech? Right to equal treatment? Right not to be tortured?
- What sorts of things have rights, and why? Animals? Fetuses? Future generations? Dead people?
- What would a society without rights be like?
- What exactly is the basis of moral rights? One type of moral right is a "human" right. What is the basis of human rights? Thus it is sometimes said that human rights are rights we have simply in virtue of the fact that we are human beings. We are somehow born with them – they are not conferred on us by a judge or by parliament. Examples are the right to life or the right not to be tortured. But this is mysterious. Is there some higher authority that confers these rights on us, God say? This is unsatisfactory firstly, because God may not exist and secondly, because even if God existed we have no way of knowing whether or not has in fact conferred on human beings the right to life or not to be tortured. But if not God, then what? If there is a disagreement about the human rights we actually have, then how can it be settled? For example, the UN Declaration of Human Rights claims that the right to be a paid holiday is a basic human right. How could there be rights before they were actually conferred by a legal system or political constitution?
Reference
R. Dworkin, Taking Rights Seriously
R. Neurath