The Meaning of “Rights”

August 27, 2009

We hear a lot about “rights” in American discourse.  Just watching Sportscenter, I heard the term “animal rights” (in reference to Michael Vick), which got me thinking.  What is a right?

Civil rights.  Animal rights.  Equal rights.  So-called “reproductive rights.”  “Gay rights.”  The right of privacy.  We hear lately that everyone has a “right to healthcare”. 

From America’s founding document: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” 

I did a Wikipedia search on the subject just to see what was there, and the summary was brief and, in my opinion, incomplete, but it still mentioned a couple of the concepts I will discuss below. 

So, what’s a “right”, anyway?  What does it mean when someone asserts their rights?  Especially when they assert a right that is not currently recognized in law?

People use this term in various ways to mean various things.  However, I believe that most people think they mean the same thing that the Founders of this nation meant in the Declaration of Independence quoted above (“unalienable rights”).  (As a legal note, “unalienable” means that it cannot be traded, transferred, surrendered, or sold.) 

A “right,” as generally asserted (whether the speaker knows it or not), is a claim of a duty on the government or some other person.  “Negative rights” are rights that restrict another person or government from doing something to you.  “Positive rights” are rights that require some other person or government to do something for you. 

The founders of this nation, in crafting the Declaration of Independence and later the Bill of Rights, generally referred to negative rights.  Thus, the freedom of speech was a restriction on the government from interfering with your ability to speak your mind (politically), except where the rights of others were concerned (such as slander, etc.).  Therefore, it is impossible for a private person or company to violate your constitutional freedom of speech.  You could be in a public park giving a political speech on a soapbox, and someone comes up from behind and stuffs a rag in your mouth and restrains you from removing it, and they would not be violating your constitutional freedom of speech.  That person would be committing another crime, but he could not possibly violate your freedom of speech because that right is solely against the government.  Thus, when a private company requires its employees not to speak about certain things, the company cannot be violating the constitutional freedom of speech (though they might be violating some other rights).  If I had a dime for every time I heard someone in the media claim that a private entity was violating his/her freedom of speech, I’d have a pile of dimes to remind me of the many times people in the media irritated me.

Positive rights are foreign to the Constitution (as originally construed).  Your freedom of speech did not and does not require the government to buy you a bullhorn and provide you with free billboard space so that you can air your message.  It is your responsibility to exercise your rights and to find a way to do so, and the government need not lift a finger in your aid.  However, the interpretation of the Constitution has gradually shifted from negative rights to positive rights in certain ways (which I think is problematic, but that’s for a different post).  Your right to assistance of counsel formerly was interpreted to mean that the government couldn’t interfere with your ability to hire a lawyer in a criminal case.  Today, it is interpreted to mean that a lawyer must be provided to you.  You hear people argue that everyone has a “right to healthcare” (not on a constitutional basis, but on a moral basis), as though the government is required to provide you with healthcare.  But a right to healthcare is not currently recognized in law (yet), so where does such a right come from if not the Constitution or duly enacted statutes?

There are two generally recognized sources of rights: God (or some transcendent order, such as “Nature”), or simply the human-created societal norms and positive law (we make them up as we go, and the law evolves to adopt what we want).  According to the former, if we look back on the slave trade, we might say that the southern black slaves in early America always had a right to freedom which was theirs from God, and other people were violating that right.  Those who subscribe solely to the latter, i.e. legal positivists, must maintain that during the colonial era, black people in the south did not have a right to freedom because the law did not recognize that right, and there is no other source for “rights”. 

This is why theists have the upper hand, philosophically speaking, in rights-talk.  Theists can say that citizens already have rights, before the government recognizes them, and that the government should recognize those rights because it is obligated to do so.  The legal positivist must maintain that the citizens have no rights until the government recognizes them, and that the government is under no obligation to recognize any rights for anyone.  Thus, when the legal positivist says “the government ‘should’ recognize my right to ___”, he is really merely saying “I want to do ___,” and we are under absolutely no obligation to do what he wants, simply because we don’t want to.  Thus, when an atheist homosexual claims that we should recognize his right to get married, it is perfectly philosophically justifiable to respond, “Tough.”  (It’s even easier to demonstrate that God has not endowed him with a right to marry whoever he wants, but that probably won’t satisfy him.)  Therefore, back to healthcare, someone might try to argue that God or Nature has endowed each person with a right to have healthcare provided by their government (a tough case to make), but he cannot claim that all people currently have or should have (as opposed to “want” or “will have”) a right to healthcare if he is a legal positivist. 

In law school, I had a neo-marxist legal positivist professor who claimed that when the conservatives won a court case, he did not want to hear them afterward explain with reasons why they deserved to win the case.  He said that, in his worldview, it is more legitimate for them simply to say “we won.”  To him, there were no true rights, no right answers, and therefore no reasons or legitimacy.  When people like my professor start obtaining powerful governmental positions, look out!  They feel no obligation or reason to respect any of your rights, save for their own self-interest. 

There is much more to say about the American “rights” discourse, but this is just meant to get you thinking about how you use the term…

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9 Responses to “The Meaning of “Rights””

  1. 12stepgolf Says:

    Great article. You made the valid argument. We do know a want is not a right-it is just so difficult to have people understand.
    Objective thinking, love it.


  2. Thanks for the positive feedback, and welcome to The Natural Lawyer. Your blog is very creative, analogizing golf to life. I’m no golf player, but I think sports in general have some good life lessons if we bother to pay attention to them.

  3. padraic2112 Says:

    > Theists can say that citizens already
    > have rights, before the government
    > recognizes them, and that the government
    > should recognize those rights because
    > it is obligated to do so.

    I see no reason why a secular humanist cannot make the same argument. The existence of a “Grantor of Rights” in not necessary for rights to exist (conceptually), any more than there needs to exist a “Creator” for a Universe to exist.

    Otherwise, good piece 🙂


  4. Padraic: thanks for your comment.

    Sure, an atheist can try to make the same “pre-existing rights” argument that theists can, but they are trading on theistic capital. If we are both atheists, and I steal your food because the law permits me to do so, and you respond “you are violating my rights!”, I am inclined to retort, “says who?” It is the “who” that is necessary for a right to exist between us. Either it’s the local human law-giver or a metaphysical one, but it takes an objective law-giver to have a right, because otherwise there is no common authority over both the claimant and the restrained party.

    Put another way, if I am on an unclaimed desert island in the middle of the ocean and come across someone from, say, Asia, and that person claims that I ought to behave in some certain way with respect to him solely because that’s the law as he understands it (based on the law in X country in Asia), the fact is that he does not have that right. The Asian country’s government does not govern the island or me, and the person claiming the right does not govern the island or me. So I tell him what he can do with his rights claim. His claim, whatever it is, is conceptually equivalent to him telling me that he has a right to see me wear a blue shirt every day; it’s just his desire, not a right. If we are not under a common authority, might makes right. He has no rights against anything I do, no matter how much he insists that he does, because there is no one to whom I am beholden.

    If God exists, on the other hand, I am necessarily beholden to obey His decrees, even if I deny that that is the case. The rights claim is even more powerful if I (even as an atheist) already know the decrees that God has given, based on the conscience that God has given me (as natural lawyers claim). It is that common conscience that everyone trades on when claiming rights. Rights claims that do not comport with the human conscience (like the blue shirt claim above) are not recognized because everyone knows that the conscience we were created with says nothing of shirt colors.

    The only reason an atheist would think that anyone else would recognize the rectitude of the atheist’s rights claim is because the atheist suspects that the claim will resonate with the other person. This is why atheists don’t make “blue shirt” claims, but they do make claims that sound similar to the ones recognized by natural lawyers for centuries (even if they are twisting those rights to new territories). Atheists are building with the natural lawyer’s lumber. No atheist has ever built an independent conceptual theory of rights that is truly obligatory on anyone else (like in the desert island example; the response to any atheist’s created system is “that’s what you think,” and there is no innate authority to whom the atheist can appeal for help).

  5. padraic2112 Says:

    > The only reason an atheist would
    > think that anyone else would recognize
    > the rectitude of the atheist’s rights
    > claim is because the atheist suspects
    > that the claim will resonate with the
    > other person.

    But this is clearly true of a theist as well. In fact, one could argue that an atheist would be more inclined to believe that his claims will resonate with other people, *in general*, than a particular theist’s claims, because the atheist has no theological “baggage”, so to speak, whereas a theist presumably has a preferred dogma of one sort or another.

    That is to say, given a population of assorted theists and atheists, the theists may fall to arguing over which rights they can properly claim as being decreed by their own particular incarnation of God.

    While I’m not entirely convinced that this would be a truism, it’s certainly a debatable point that (given a Muslim, a Jew, a Hindu, an agnostic, a Sufi, two Catholics, an atheist, and four other Christian denominations), any particular theistic belief of any of those traditions will resonate with those other belief systems, right?

    Also, you’re stating that this comes from “theistic capital”, but I’m not so sure that historical primacy equates to moral superiority, and I find the premise to be debatable in any event.

    Certainly (well, for the most part) animism predates polytheism, which predates theism, which predates monotheism, which predates atheism.

    However, the concept of citizen’s rights as an expressed intellectual tradition predates the monotheistic tradition, at least in Western civilization. The Greeks and the Romans both had the idea of citizen’s rights before they converted to monotheism, and neither of them can be directly attributable as a consequence of those societies’ polytheistic beliefs.


  6. But this is clearly true of a theist as well. In fact, one could argue that an atheist would be more inclined to believe that his claims will resonate with other people, *in general*, than a particular theist’s claims, because the atheist has no theological “baggage”, so to speak, whereas a theist presumably has a preferred dogma of one sort or another.

    Yes, of course it is true of a theist as well. But it is consistent with a theistic worldview and inconsistent with an atheist worldview. (I suppose I should note here that by “atheists” I mean materialists; I am not addressing those who believe in some sort of “spirit world” but deny the existence of a Supreme Being. Materialists accept no spiritual or transcendent claims.) For the atheist, it is inexplicable that all people have an intuitive knowledge of the same moral values across religions and cultures. That the atheist makes use of this intuitive knowledge demonstrates that not even the atheist truly believes (deep down) that moral truths do not exist.

    the theists may fall to arguing over which rights they can properly claim as being decreed by their own particular incarnation of God.

    Granted. However, many theists (myself included) believe that there is some set of decrees revealed to all humans outside of religious revelation. Though we may mix up the religious revelation (sacred texts) with the general revelation (our sense of justice, or Natural Law), it does not mean that the general revelation does not exist. An atheist is in no better position to grasp the Natural Law because materialism is the worst sort of intellectual “baggage” one can have, since it denies the existence of the Natural Law in the first place. This is why atheists pick and choose their moral truths to fit their passions.

    While I’m not entirely convinced that this would be a truism, it’s certainly a debatable point that (given a Muslim, a Jew, a Hindu, an agnostic, a Sufi, two Catholics, an atheist, and four other Christian denominations), any particular theistic belief of any of those traditions will resonate with those other belief systems, right?

    Precisely. There are transcendent truths that even transcend religions. How can this be in an atheist’s universe? If religion and justice are merely human creations, how did so many different, isolated people come up with so many of the same truths?

    Also, you’re stating that this comes from “theistic capital”, but I’m not so sure that historical primacy equates to moral superiority, and I find the premise to be debatable in any event.

    When I say “theistic capital”, I just mean premises that can only be true in a theistic worldview. In other words, an atheist who is using “theistic capital” is arguing from premises that are inconsistent with atheism. I am not arguing from historical primacy. The fact that an idea was developed before or after another idea is irrelevant to the truth of the idea. I make no argument that the atheist’s legal positivist beliefs are false simply because they depart from the more ancient Natural Law thinking.

    The Greeks and the Romans both had the idea of citizen’s rights before they converted to monotheism, and neither of them can be directly attributable as a consequence of those societies’ polytheistic beliefs.

    Whether or not the Greeks and Romans worked out their concepts from a theistic worldview or not, their concepts of transcendent justice are only consistent with a theistic worldview; they are inconsistent with the atheist’s worldview. Both Greeks and Romans believed in an over-arching justice that applied to all people, even people in other cultures and places. Atheists (in the sense of materialists) must deny that an over-arching standard of justice exists.

    In short, materialist atheists must deny that there is an immaterial force of obligation. If I know with certainty that I can get away with a crime, the materialist has no grounds to convince me that I am obligated not to commit the crime. Even if the materialist argues that the source of obligation is the human law itself (which would make civil disobedience inherently unjust, including MLK’s civil rights movement, for example), that would mean there is no source of obligation on the desert island, and thus no source of obligation or rights that precedes the law itself (which is what I said in the post in the first place).

  7. 12stepgolf Says:

    Natural Lawyer wins the debate, wonderful read from beginning to end.

  8. padraic2112 Says:

    Your clarification I find more agreeable; however, one must be very careful.

    The “material atheist” class needs a bit more in the way of explication. Generally, from your characterization, this sounds like someone I would classify (probably? possibly?) as an empirical utilitarian, but I’m not entirely sure; since an empirical utilitarian would still argue that you’re not obligated to commit a crime (although they certainly would argue that you’re obligated to commit a crime if it works out to the benefit of more people than it works out to be a detriment towards). Ugh, apologies for the phrasing there, somewhere an English professor is rolling over in her grave.

    I’m also not convinced that this categorization “material atheist” is much in the way of a significant subset of atheists in general; most atheists I know don’t fall into that classification (yes, admittedly, arguing from anecdote is not very rigorous).

    Secular humanists are more common, in my experience, than what you would classify as a “material atheist”, which sounds more like a classical description of a sociopath.

    > However, many theists (myself included)
    > believe that there is some set of decrees
    > revealed to all humans outside of
    > religious revelation.

    Then by direct logic, there is no guarantee that those decrees are revealed, operationally, from the actions of a Deity. That is to say, there is not necessarily a causal mechanism here; the “revealed decrees” may be revealed through some natural process attendant to sapience, rather than by a Primary Mover.

    > In other words, an atheist who is using
    > “theistic capital” is arguing from premises
    > that are inconsistent with atheism.

    Here you need to be careful, again; are you saying that this of all atheists (material atheists and non-material atheists) arguing from premises that are inconsistent with all forms of atheism (material and non-material atheism)?

    If you agree that there exists some atheists who don’t fall into the category of material atheist, making claims about atheism in general based upon the qualities of the subset leads to a hasty generalization fallacy.


  9. […] had an excellent discourse in response to a recent post about the existence of “rights.”  The comments delved a bit deeper into the existence […]


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