Rights

Last updated

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory. [1] Rights are of essential importance in such disciplines as law and ethics, especially theories of justice and deontology.

Contents

Rights are often considered fundamental to civilization, for they are regarded as established pillars of society and culture, [2] and the history of social conflicts can be found in the history of each right and its development. According to the Stanford Encyclopedia of Philosophy, "rights structure the form of governments, the content of laws, and the shape of morality as it is currently perceived". [1]

Definitional issues

Rights are widely regarded as the basis of law, but what if laws are bad? Some theorists suggest civil disobedience is, itself, a right, and it was advocated by thinkers such as Henry David Thoreau, Martin Luther King Jr., and Mohandas Karamchand Gandhi. RNC 04 protest 89.jpg
Rights are widely regarded as the basis of law, but what if laws are bad? Some theorists suggest civil disobedience is, itself, a right, and it was advocated by thinkers such as Henry David Thoreau, Martin Luther King Jr., and Mohandas Karamchand Gandhi.

There is considerable disagreement about what is meant precisely by the term rights. It has been used by different groups and thinkers for different purposes, with different and sometimes opposing definitions, and the precise definition of this principle, beyond having something to do with normative rules of some sort or another, is controversial.

One way to get an idea of the multiple understandings and senses of the term is to consider different ways it is used. Many diverse things are claimed as rights:

A right to life, a right to choose; a right to vote, to work, to strike; a right to one phone call, to dissolve parliament, to operate a forklift, to asylum, to equal treatment before the law, to feel proud of what one has done; a right to exist, to sentence an offender to death, to launch a nuclear first strike, to carry a concealed weapon, to a distinct genetic identity; a right to believe one's own eyes, to pronounce the couple husband and wife, to be left alone, to go to hell in one's own way. [1]

There are likewise diverse possible ways to categorize rights, such as:

Who is alleged to have the right: Children's rights, animal rights, workers' rights, states' rights, the rights of peoples. What actions or states or objects the asserted right pertains to: Rights of free expression, to pass judgment; rights of privacy, to remain silent; property rights, bodily rights. Why the rightholder (allegedly) has the right: Moral rights spring from moral reasons, legal rights derive from the laws of the society, customary rights are aspects of local customs. How the asserted right can be affected by the rightholder's actions: The inalienable right to life, the forfeitable right to liberty, and the waivable right that a promise be kept. [1]

There has been considerable debate about what this term means within the academic community, particularly within fields such as philosophy, law, deontology, logic, political science, and religion.

According to some views, certain rights derive from deities or nature Brueghel Jan II God creating.jpg
According to some views, certain rights derive from deities or nature

Some thinkers see rights in only one sense while others accept that both senses have a measure of validity. There has been considerable philosophical debate about these senses throughout history. For example, Jeremy Bentham believed that legal rights were the essence of rights, and he denied the existence of natural rights; whereas Thomas Aquinas held that rights purported by positive law but not grounded in natural law were not properly rights at all, but only a facade or pretense of rights.

Claim versus liberty

Liberty rights and claim rights are the inverse of one another: a person has a liberty right permitting him to do something only if there is no other person who has a claim right forbidding him from doing so. Likewise, if a person has a claim right against someone else, then that other person's liberty is limited. For example, a person has a liberty right to walk down a sidewalk and can decide freely whether or not to do so, since there is no obligation either to do so or to refrain from doing so. But pedestrians may have an obligation not to walk on certain lands, such as other people's private property, to which those other people have a claim right. So a person's liberty right of walking extends precisely to the point where another's claim right limits his or her freedom.

Positive versus negative

In one sense, a right is a permission to do something or an entitlement to a specific service or treatment from others, and these rights have been called positive rights. However, in another sense, rights may allow or require inaction, and these are called negative rights; they permit or require doing nothing. For example, in some countries, e.g. the United States, citizens have the positive right to vote and they have the negative right to not vote; people can choose not to vote in a given election without punishment. In other countries, e.g. Australia, however, citizens have a positive right to vote but they don't have a negative right to not vote, since voting is compulsory. Accordingly:

Though similarly named, positive and negative rights should not be confused with active rights (which encompass "privileges" and "powers") and passive rights (which encompass "claims" and "immunities").

Individual versus group

The general concept of rights is that they are possessed by individuals in the sense that they are permissions and entitlements to do things which other persons, or which governments or authorities, can not infringe. This is the understanding of people such as the author Ayn Rand who argued that only individuals have rights, according to her philosophy known as Objectivism. [5] However, others have argued that there are situations in which a group of persons is thought to have rights, or group rights. [6] Accordingly:

Do groups have rights? Some argue that when soldiers bond in combat, the group becomes like an organism in itself and has rights which trump the rights of any individual soldier. Malian Soldiers.jpg
Do groups have rights? Some argue that when soldiers bond in combat, the group becomes like an organism in itself and has rights which trump the rights of any individual soldier.

There can be tension between individual and group rights. A classic instance in which group and individual rights clash is conflicts between unions and their members. For example, individual members of a union may wish a wage higher than the union-negotiated wage, but are prevented from making further requests; in a so-called closed shop which has a union security agreement, only the union has a right to decide matters for the individual union members such as wage rates. So, do the supposed "individual rights" of the workers prevail about the proper wage? Or do the "group rights" of the union regarding the proper wage prevail? Clearly this is a source of tension.

The Austrian School of Economics holds that only individuals think, feel, and act whether or not members of any abstract group. The society should thus according to economists of the school be analyzed starting from the individual. This methodology is called methodological individualism and is used by the economists to justify individual rights.

Other senses

Other distinctions between rights draw more on historical association or family resemblance than on precise philosophical distinctions. These include the distinction between civil and political rights and economic, social and cultural rights , between which the articles of the Universal Declaration of Human Rights are often divided. Another conception of rights groups them into three generations . These distinctions have much overlap with that between negative and positive rights, as well as between individual rights and group rights, but these groupings are not entirely coextensive.

Politics

In the United States, persons who are going to be questioned by police when they are in police custody must be read their "Miranda rights". The Miranda warning requires police officers to read a statement to people being arrested which informs them that they have certain rights, such as the right to remain silent and the right to have an attorney. Man being arrested.jpg
In the United States, persons who are going to be questioned by police when they are in police custody must be read their "Miranda rights". The Miranda warning requires police officers to read a statement to people being arrested which informs them that they have certain rights, such as the right to remain silent and the right to have an attorney.

Rights are often included in the foundational questions that governments and politics have been designed to deal with. Often the development of these socio-political institutions have formed a dialectical relationship with rights.

Rights about particular issues, or the rights of particular groups, are often areas of special concern. Often these concerns arise when rights come into conflict with other legal or moral issues, sometimes even other rights. Issues of concern have historically included labor rights, LGBT rights, reproductive rights, disability rights, patient rights and prisoners' rights. With increasing monitoring and the information society, information rights, such as the right to privacy are becoming more important.

Some examples of groups whose rights are of particular concern include animals, [7] and amongst humans, groups such as children [8] and youth, parents (both mothers and fathers), and men and women. [9]

Accordingly, politics plays an important role in developing or recognizing the above rights, and the discussion about which behaviors are included as "rights" is an ongoing political topic of importance. The concept of rights varies with political orientation. Positive rights such as a "right to medical care" are emphasized more often by left-leaning thinkers, while right-leaning thinkers place more emphasis on negative rights such as the "right to a fair trial".

Further, the term equality which is often bound up with the meaning of "rights" often depends on one's political orientation. Conservatives and libertarians and advocates of free markets often identify equality with equality of opportunity, and want equal and fair rules in the process of making things, while agreeing that sometimes these fair rules lead to unequal outcomes. In contrast, socialists often identify equality with equality of outcome and see fairness when people have equal amounts of goods and services, and therefore think that people have a right to equal portions of necessities such as health care or economic assistance or housing. [10]

Philosophy

In philosophy, meta-ethics is the branch of ethics that seeks to understand the nature of ethical properties, statements, attitudes, and judgments. Meta-ethics is one of the three branches of ethics generally recognized by philosophers, the others being normative ethics and applied ethics.

While normative ethics addresses such questions as "What should one do?", thus endorsing some ethical evaluations and rejecting others, meta-ethics addresses questions such as "What is goodness?" and "How can we tell what is good from what is bad?", seeking to understand the nature of ethical properties and evaluations.

Rights ethics is an answer to the meta-ethical question of what normative ethics is concerned with (Meta-ethics also includes a group of questions about how ethics comes to be known, true, etc. which is not directly addressed by rights ethics). Rights ethics holds that normative ethics is concerned with rights. Alternative meta-ethical theories are that ethics is concerned with one of the following:

Rights ethics has had considerable influence on political and social thinking. The Universal Declaration of Human Rights gives some concrete examples of widely accepted rights.

Criticism

Some philosophers have criticised rights as ontologically dubious entities. For instance, although in favour of the extension of individual legal rights, the utilitarian philosopher Jeremy Bentham opposed the idea of natural law and natural rights, calling them "nonsense upon stilts". [11] Further, one can question the ability of rights to actually bring about justice for all.

History

Magna Carta or "The Great Charter" was one of England's first documents containing commitments by a king to his people to respect certain legal rights. It reduced the power of the monarch. Magna Carta (British Library Cotton MS Augustus II.106).jpg
Magna Carta or "The Great Charter" was one of England's first documents containing commitments by a king to his people to respect certain legal rights. It reduced the power of the monarch.
The Declaration of the Rights of Man and of the Citizen in 1789 in France. Declaration of Human Rights.jpg
The Declaration of the Rights of Man and of the Citizen in 1789 in France.

The specific enumeration of rights has differed greatly in different periods of history. In many cases, the system of rights promulgated by one group has come into sharp and bitter conflict with that of other groups. In the political sphere, a place in which rights have historically been an important issue, constitutional provisions of various states sometimes address the question of who has what legal rights.

Historically, many notions of rights were authoritarian and hierarchical, with different people granted different rights, and some having more rights than others. For instance, the right of a father to be respected by his son did not indicate a right of the son to receive something in return for that respect; and the divine right of kings, which permitted absolute power over subjects, did not leave much possibility for many rights for the subjects themselves. [12]

In contrast, modern conceptions of rights have often emphasized liberty and equality as among the most important aspects of rights, as was evident in the American and French revolutions.

Important documents in the political history of rights include:

See also

Organisations:

Related Research Articles

Ethics Branch of philosophy that discusses right and wrong conduct

Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior". The field of ethics, along with aesthetics, concerns matters of value, and thus comprises the branch of philosophy called axiology.

Egalitarianism, or equalitarianism, is a school of thought within political philosophy that builds from the concept of social equality, prioritizing it for all people. Egalitarian doctrines are generally characterized by the idea that all humans are equal in fundamental worth or moral status. Egalitarianism is the doctrine that all citizens of a state should be accorded exactly equal rights.

Justice Concept of moral fairness and administration of the law

Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspectives, including the concepts of moral correctness based on ethics, rationality, law, religion, equity and fairness.

Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of society and the state without discrimination or repression.

Civil liberties are guarantees and freedoms that liberal governments commit not to abridge, either by legislation or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may include the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist between positive liberty/positive rights and negative liberty/negative rights.

Dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically. It is of significance in morality, ethics, law and politics as an extension of the Enlightenment-era concepts of inherent, inalienable rights. The term may also be used to describe personal conduct, as in "behaving with dignity".

Natural rights and legal rights are the two basic types of rights.

The division of human rights into three generations was initially proposed in 1979 by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg. He used the term at least as early as November 1977. Vasak's theories have primarily taken root in European law.

Negative liberty Capacity to defy others restrictions on ones own life

Negative liberty is freedom from interference by other people. Negative liberty is primarily concerned with freedom from external restraint and contrasts with positive liberty. The distinction was introduced by Isaiah Berlin in his 1958 lecture "Two Concepts of Liberty".

Liberty Ability of individuals to have agency

Broadly speaking, liberty is the ability to do as one pleases. It is a synonym for the word freedom. In modern politics, liberty is the state of being free within society from control or oppressive restrictions imposed by authority on one's way of life, behaviour, or political views. In philosophy, liberty involves free will as contrasted with determinism. In theology, liberty is freedom from the effects of "sin, spiritual servitude, [or] worldly ties". Sometimes liberty is differentiated from freedom by using the word "freedom" primarily, if not exclusively, to mean the ability to do as one wills and what one has the power to do; and using the word "liberty" to mean the absence of arbitrary restraints, taking into account the rights of all involved. In this sense, the exercise of liberty is subject to capability and limited by the rights of others. Thus liberty entails the responsible use of freedom under the rule of law without depriving anyone else of their freedom. Freedom is more broad in that it represents a total lack of restraint or the unrestrained ability to fulfill one's desires. For example, a person can have the freedom to murder, but not have the liberty to murder, as the latter example deprives others of their right not to be harmed. Liberty can be taken away as a form of punishment. In many countries, people can be deprived of their liberty if they are convicted of criminal acts.

Cognitive liberty, or the "right to mental self-determination", is the freedom of an individual to control his or her own mental processes, cognition, and consciousness. It has been argued to be both an extension of, and the principle underlying, the right to freedom of thought. Though a relatively recently defined concept, many theorists see cognitive liberty as being of increasing importance as technological advances in neuroscience allow for an ever-expanding ability to directly influence consciousness. Cognitive liberty is not a recognized right in any international human rights treaties, but has gained a limited level of recognition in the United States, and is argued to be the principle underlying a number of recognized rights.

Equality before the law Principle that each individual must be treated equally by the law without discrimination or privileges

Equality before the law, also known as equality under the law, equality in the eyes of the law, legal equality, or legal egalitarianism, is the principle that each independent being must be treated equally by the law and that all are subject to the same laws of justice. Therefore, the law must guarantee that no individual nor group of individuals be privileged or discriminated against by the government. Equality before the law is one of the basic principles of liberalism. This principle arises from various important and complex questions concerning equality, fairness and justice. Thus, the principle of equality before the law is incompatible and ceases to exist with legal systems such as slavery, servitude.

Negative and positive rights are rights that oblige either inaction or action. These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights.

Frank Van Dun is a Belgian law philosopher and libertarian natural law theorist. He is associated with the law faculty of the University of Ghent.

The following outline is provided as an overview of and topical guide to the self:

Some philosophers and political scientists make a distinction between claim rights and liberty rights. A claim right is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is a right which does not entail obligations on other parties, but rather only freedom or permission for the right-holder. The distinction between these two senses of "rights" originates in American jurist Wesley Newcomb Hohfeld's analysis thereof in his seminal work Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays.

The following outline is provided as an overview of and introduction to rights:

The philosophy of human rights attempts to examine the underlying basis of the concept of human rights and critically looks at its content and justification. Several theoretical approaches have been advanced to explain how and why the concept of human rights developed.

Alasdair Cochrane British political theorist and ethicist

Alasdair Cochrane is a British political theorist and ethicist who is currently a senior lecturer in political theory in the Department of Politics at the University of Sheffield. He is known for his work on animal rights from the perspective of political theory, which is the subject of his two books: An Introduction to Animals and Political Theory and Animal Rights Without Liberation. His third book, Sentientist Politics, was published by Oxford University Press in 2018. He is a founding member of the Centre for Animals and Social Justice, a UK-based think tank focused on furthering the social and political status of nonhuman animals. He joined the Department at Sheffield in 2012, having previously been a faculty member at the Centre for the Study of Human Rights, London School of Economics. Cochrane is a Sentientist. Sentientism is a naturalistic worldview that grants moral consideration to all sentient beings.

Social equality is a state of affairs in which all people within a specific society or isolated group have the same status in possibly all respects, possibly including civil rights, freedom of speech, property rights and equal access to certain social goods and social services. However, it may also include health equality, economic equality and other social securities. Social equality requires the absence of legally enforced social class or caste boundaries and the absence of discrimination motivated by an inalienable part of a person's identity. For example, sex, gender, ethnicity, age, sexual orientation, origin, caste or class, income or property, language, religion, convictions, opinions, health or disability must absolutely not result in unequal treatment under the law and should not reduce opportunities unjustifiably.

References

  1. 1 2 3 4 "Stanford Encyclopedia of Philosophy". Stanford University. July 9, 2007. Retrieved 2009-12-21. Rights dominate most modern understandings of what actions are proper and which institutions are just. Rights structure the forms of our governments, the contents of our laws, and the shape of morality as we perceive it. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.
  2. UN UDHR Preamble: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..."
  3. 1 2 Fagan, Andrew. "Human Rights". Internet Encyclopedia of Philosophy http://www.iep.utm.edu/hum-rts/#SH3b
  4. 1 2 "Stanford Encyclopedia of Philosophy". Stanford University. July 9, 2007. Retrieved 2009-12-21. A distinction between negative and positive rights is popular among some normative theorists, especially those with a bent toward libertarianism. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. A right against assault is a classic example of a negative right, while a right to welfare assistance is a prototypical positive right.
  5. Ayn Rand (2009-12-18). "The Virtue of Selfishness: Individual Rights". The Ayn Rand Lexicon. Retrieved 2009-12-18. Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual). see page 104. See also: Collectivized 'Rights
  6. For a general discussion see. Charles Edward Andrew Lincoln IV, Hegelian Dialectical Analysis of U.S. Voting Laws, 42 U. Dayton L. Rev. 87 (2017).
  7. Kate Pickert (Mar 9, 2009). "Undercover Animal-Rights Investigator". Time Magazine. Retrieved 2009-12-21. One of the most powerful tools animal-rights activists have is the video footage shot inside places like poorly run dog kennels, animal-testing facilities and factory farms, used as grim evidence of the brutality that can take place. But how do animal-rights crusaders actually get those videos?
  8. Victoria Burnett (July 26, 2007). "Human Rights Watch says migrant children are at risk in Canary Islands". The New York Times. Retrieved 2009-12-21. They must immediately come up with a plan to close these centers," Simone Troller, author of the report and a children's rights researcher for Human Rights Watch in Europe, said in a telephone interview. "While these centers continue to exist, we believe children continue to be at risk.
  9. "Soap Operas Boost Rights, Global Economist Says". NPR. October 21, 2009. Retrieved 2009-12-21. Many of these locally produced programs feature strong female characters. When Rede Globo began broadcasting in its native Brazil in 1965 the average woman had about six children—now the average woman has no children or one child.
  10. John E. Roemer (December 14, 2005). "Roemer on equality of opportunity". New Economist. Retrieved 2009-12-21. Equality of opportunity is to be contrasted with equality of outcome. While advocacy of the latter has been traditionally associated with a left-wing political philosophy, the former has been championed by conservative political philosophy. Equality of outcome fails to hold individuals responsible for imprudent actions that may, absent redress, reduce the values of the outcomes they enjoy, or for wise actions that would raise the value of the outcomes above the levels of others’. Equality of opportunity, in contrast, ‘levels the playing field,’ so that all have the potential to achieve the same outcomes; whether or not, in the event, they do, depends upon individual choice.
  11. Harrison, Ross (1995). "Jeremy Bentham". In Honderich, Ted (ed.). The Oxford Companion to Philosophy. Oxford University Press. pp. 85–88. Also see Sweet, William (11 April 2001). "Jeremy Bentham". The Internet Encyclopedia of Philosophy. Retrieved 7 January 2011.
  12. "Divine Right of Kings". BBC. 2007-10-11. Retrieved 2009-12-21. [...] the idea that a king was sacred, appointed by God and above the judgment of earthly powers [...] was called the Divine Right of Kings and it entered so powerfully into British culture during the 17th century that it shaped the pomp and circumstance of the Stuart monarchs, imbued the writing of Shakespeare and provoked the political thinking of Milton and Locke.
  13. "The First Global Statement of the Inherent Dignity and Equality". United Nations. Retrieved 2010-09-13.
  14. Lauren, Paul Gordon (2003). "Philosophical Visions: Human Nature, Natural Law, and Natural Rights". The Evolution of International Human Rights: Visions Seen. Philadelphia: University of Pennsylvania Press. ISBN   0-8122-1854-X.
  15. Robertson, Arthur Henry; Merrills, J. G. (1996). Human rights in the world : an introduction to the study of the international protection of human rights . Manchester: Manchester University Press. ISBN   978-0-7190-4923-1.
  16. R. B. Serjeant, The Sunnah Jami'ah, pacts with the Yathrib Jews, and the Tahrim of Yathrib: Analysis and translation of the documents comprised in the so-called "Constitution of Medina". Bulletin of the School of Oriental and African Studies, University of London, Vol. 41, No. 1. (1978), p. 4.
  17. Lepore, Jill (April 20, 2015). "The Rule of History: Magna Carta, the Bill of Rights, and the hold of time". New Yorker.
  18. Dyck, Rand (2000). Canadian Politics: Critical Approaches (3rd edition) . Thomas Nelson. ISBN   978-0-17-616792-9.
  19. "1947 Japanese Constitution". history.hanover.edu.
  20. "Internet History Sourcebooks". www.fordham.edu.
  21. Government of Canada, Department of Justice (2018-04-12). "Learn about the Charter- Canada's System of Justice". www.justice.gc.ca. Retrieved 2019-02-02.