Rights

Types and Classification of Rights

What rights do we have in the US?
The Constitution of the United States guarantees the following rights:
Right to be protected from unreasonable and unlawful search and seizure.
Right to be treated in accordance with the due process of the law.
Right to free speech and to the freedom of assembly.
Right not to be subjected to servitude or slavery.
Right to the protection of life, liberty, and property (in accordance with the law).

Right to vote.

Are there any other rights?

“Rights”
“Rights are part of rule systems. Rules include laws, by-
laws, regulations, norms, principles, and guidelines.”
Legal vs. Moral Rights
- Moral rights are extensions of moral systems of rules, norms and
standards and are, as such, independent of laws or other social
conventions.
- Sometimes, however, laws and social conventions can have an
impact on a moral right. Laws and social conventions can be used
to specify, enlarge or restrict the scope of a moral right. For
example, in the U.S., the right to free speech does not extend to
making speeches in private settings.
- Therefore, according to some, moral rights are, in an
important sense, independent of legal and social
conventions.
Classifying Rights
Types of Rights
- Political Rights: these rights deal with an individual’s
relationship with the state power. For example, the
right against unlawful search and seizure, the right to
privacy, the right against unlawful detention.
- Civil Rights: these rights deal with the rights of
individuals vis-à-vis each other in a civil society. For
example, the right not be discriminated on the basis of
sex, gender, religion, caste, creed, nationality, ethnic
origin, or socio-economic class in a civil right.
- What about Human Rights?
The Status of Human Rights
The status of human rights is usually considered to be
more controversial.
- 1. Legal View of Human Rights: On this view, “human rights” refer to all those
rights which are contained in international declarations, treaties, covenants, and
conventions. Accordingly, human rights are only those which are recognized by an
international legal instrument (i.e., treaties, declarations, covenants, or
conventions).
- 2. Moral right-to-existence-of-legal rights View: According to this view, human
rights are moral rights to the existence of legal rights. For example, person X has a
human right A when she has the moral right that there be an effective legal right to
A.
- 3. Human rights-as-deeper rights View: On this view, human rights derive their
authority a set of deeper values, i.e., a subset of moral rights. Their existence,
therefore, does not depend on their recognition in an international legal intrument.
Action Conception of Rights
One way to classify rights, generally, is to focus on who does the
action that is subject of the right itself. According to this
conception:

- A right in an active right in which the right-holder has the right

to do something. For example, the right to criticize the government
is an active right.
- On the other hand, a right is a passive right in which right-holder
has the right that someone else do something. For example, your
right to be graded fairly is a passive right. While you are the right-
holder, the obligation is on me that I grade your assignments fairly.
4 Ways to Classify “Positive” vs. “Negative”
Conception of Rights
“Positive” vs. “Natural”: By Human or By God/Nature.
1 Oldest usage: “positive rights” refer to rights The oldest usage contrasted “positive rights”
which are created by human beings themselves with natural rights. These were taken to be
through laws, regulations, or customs. rights which were either determined by
nature or by God.
“Positive” “Negative”
For example, the distinction
between killing someone (i.e.,
an act of commission) and
merely letting them die (i.e.,
2. Rights to do something. Rights not to do something. an omission) is an example of
this conception of rights. On
this view, both active and
passive rights can be positive
or negative.
On this conception, both
positive and negative rights
Rights that others refrain
Rights that other provide are passive. Problem: there
3. from interfering with the
something to the right-holder. are some active rights which
right-holder’s action.
do not have a place on this
conception.
Right that other do something The right that others refrain Again, on this conception,
Hohfield’s Conception of Rights
Hohfield (1917) argued that rights are complex things composed of smaller elements. He argued that instead of
specifying rights as active or passive, or positive or negative, it is useful to specify what someone may do, may not
do, can do, or cannot do.
According to Hohfield, every right specifies the following in the very least:
1. Duty;
2. Liberty;
For example, under the U.S. law:
3. Power; and
- a police officer is under a duty (i.e., may-not-do) not to
4. Disability. conduct unlawful search and seizure of your house.
- under the law, you are at liberty (i.e., may-do) to ask a
police officer for a lawful warrant.
- If you own something, then you have the power (i.e.,
can-do /capacity) to sell it, destroy it, gift it, etc.
- If you are under-age, then you have the legal
incapacity (i.e. cannot-do) consent to some things.
What are Rights?
Consider the following rights:
- Right of women to have an equal claim to public
spaces, that is, to be in public spaces without being
harassed.
- The right of soccer player to score a goal.
- Your right to drink your Coconut Matcha Latte from
Starbucks.
What is common between all of these?

A survey of theories bring out three features which rights must

have.
The Three Essential Features
1. All rights imply restrictions on other people, officials, or entities.

2. Rights are specific—they apply to concrete individuals or entities.

For example, if I borrow money from you, I am under an obligation
to return the money to you. You are entitled to have your money
back. On the other hand, while I may have a be morally obligated
to be charitable, but no one, as such, has a right to my charity.

3. A right cannot be set aside just because it does not benefit a lot of
people (i.e., it cannot be trumped by consequentialist
considerations).
What do rights protect: Interests or
Choices? Two Theories of Rights
Interest (or Benefit) Theories Choice (or Will) Theories
1. Protection of Interest Theories Protection of Choice Theory (PCT): all
(PIT): all rights protect interests of rights protect the choices of the right-
the right-holder. holder.
2. Justification of Interest Theories Justification of Choice Theory (JCT): all
(JIT): all rights imply a restriction on rights imply a restrictions on other
other which are justified by the people which are justified by the right-
interests of the right holder. holders being able to make certain
choices.
Questio What interest of yours is protected What is the justification for your right
ns by your right not be assaulted? to vote?
Objections to Interest Theories
Think about the following:

- You have a right (when you are 21) to smoke cigarettes, weed, or drink
alcohol. Is that right necessarily in your interest, i.e., is it to your benefit?
- It is the right of the judge to sentence criminals to imprisonment. What kind
of interest of the judge is being protected here by this right?

The objection: rights are not always about the interests

of the right-holder him/herself.
Objections to Choice Theories
Consider the following:

- A police officer has both the right and a duty to

maintain public order. Does the officer have any choice
in the matter?

- Infants cannot make choice. Does this mean that they

do not have rights?
Objections to Both Interest and Choice
Theories
Some who object to both Interest and Choice Theories argue that it would
seem surprising if all rights with either choices or interests. They make the
following observations:

(a) Laws have often made on the whims of rulers. They can be totally arbitrary
and made for reasons that are entirely political.
(b) Legal systems in tyrannical regimes make legislations without having any
regard to the choices or interests of the people.
What do rights do?
Role of Rights in Practice
1. Rights often protect interests and/or choices.
- for example, animal rights protect the interests of animals, and
Euthanasia and abortion protect choices of people.

2. Rights often distribute freedoms and responsibilities.

- for example, if you own a car, then you have the power to sell it,
destroy it, use it, give it away, etc. Other people have responsibility
not tinker with your rights of ownership without your consent.
3. Rights often indicate our self-respect and respect for others.
- One way to respect someone is to respect their rights. This is a way
of acknowledging them as a person. On the other hand, one of the
ways to disrespect someone is to disrespect their rights.
4. Rights play the role of designating something as morally valuable in itself
Who or What Can Have Rights?
What is it that makes things able to
have rights?
Naturalism about Rights: According to this view, the feature
that allow a thing to have rights is a feature of that very thing.
- For this camp, intrinsic features such as consciousness or the
ability feel pain are features that enable a thing to have rights.

Conventionalism about Rights: According to this view, the feature that

allow a thing to have rights is a feature of the society in which that thing is
found.
- This camp highlights the role of socially recognition as a key feature for
rights, that is, rights can only exist if they are socially recognized. They
argue that the only thing that matter for rights is the recognition by the
society--a thing can have rights even if it does not have any consciousness.
The Status of Rights in Moral
Theories
What are Moral Theories?
A moral or ethical theory plays the following roles:
(a) It defines what is valuable;
(b) It prescribes a course of action for an ethical or moral
agent in light of what is valuable.
The most famous moral theories are:
(a) Consequentialism;
(b) Deontology; and
(c) Virtue Ethics.
Let us look at each of these in turn.
Consequentialism
Broadly, consequentialist about morality hold that an act is moral
only when it maximizes the best consequences and/or minimizes
the worst ones. Accordingly, for consequentialists, nothing matters
but the outcomes/result of our actions.

Question: How would consequentialists view rights? That is, what is

the status of rights in consequentialist moral frameworks?

Major criticism: if, for a moral theory, only the outcomes matter, then it
fails to explain something crucial about rights, for example, rights
often have priority over considerations, such as, the number of people
which are or aren’t benefitting from the outcome of an action.
Deontology
Unlike Consequentialists, Deontological moral theories emphasize on
things which are intrinsically valuable, for example, the capacity to think,
to reason, and, therefore, the ability to act in accordance with moral
principles and duties. For Deontologists, the outcomes of a given action is
not essential to the moral goodness of an act.
Question: What would be the status of rights for a deontologist?
Deontological theories seem well placed to explain the status of rights, in
that, they can explain the role that is played by rights, for example,
Deontologists can explain:
- why consciousness or choices are important for status-bearers of rights;
- why moral rights are independent of legal rights or other social
conventions;
- why rights should protect interests that merit protection;
- why rights should have utmost priority over consequentialist
considerations
Virtue Ethics
Unlike Consequentialism and Deontology, Virtue Ethics are not about what a
person should or should not do—i.e., they are not about actions at all. They
are about how the person should be, that is, they are about the features that
people should have, for example, being truthful, bold, courageous,
magnificent, magnanimous, etc.
Question: What consequence would this have on the status of rights in virtue
theories?
The Centrality of Rights in Ethical
Discourse