To put this essay in context. It’s the third in a planned series of short articles, in which I aim to set out the foundations of my political philosophy. I do this because, like many other people, I’m fed up with today’s world of states and superstates, arbitrary borders, institutional dishonesty, heavy and unjust taxes, bad political agendas and wars. So, I want to do what I can to elicit and to elucidate a better way. But I caution that this is a work in progress.
Where do rights come from?
Some believe that rights derive from a god. As Thomas Jefferson put it: “all men... are endowed by their Creator with certain unalienable Rights.” But for those who, like me, don’t believe in a deity, this isn’t a useful answer.
A second view is that rights are granted by a government. Thus there are no natural rights, only legal rights. This idea seems to have originated at the time of the French Revolution with Jeremy Bentham, who called natural rights “nonsense upon stilts.” I find this view worse than useless. For it fails to provide any moral defence at all against a government that goes rogue, and oppresses the people it is supposed to serve – as in the French Revolution itself.
A third view is that rights arise from tradition. In this view, rights are granted through such documents as Magna Carta, the 1689 Bill of Rights and the first ten amendments to the US constitution. In other words, rights granted in the past by a government that was “up against the wall” and unable to proceed without making concessions to the people, become rights for all time. I find this a more agreeable view than the first two; but it still doesn’t cut any ice for me.
A fourth view, much favoured by authoritarians, is that there’s no such thing as a right. But this view invites the obvious rejoinder: If we don’t have any rights, then you don’t have any rights. So we can do to you whatever we want! And we know where you live...
Here’s my own view. For me, rights come from human nature. And in particular, from the nature of human beings to be convivial. This word, which literally means “living together,” I have borrowed from the Belgian philosopher Frank van Dun. I use it to mean treating others peacefully and civilly.
What are rights?
In my view, a right is a benefit, which an individual acquires when everyone with whom he deals keeps to a particular obligation or rule. For example, the right to life results when everyone keeps to the Judaeo-Christian rule “Thou shalt not kill.” Or, perhaps more accurately: “Thou shalt not kill human beings against their wills.”
The convivial rules which everyone should keep to, and the rights which accrue from them, are like two sides of the same coin. And for me, all rules which generate rights are negatives. Thus, they prohibit doing things that unjustly harm, or are likely to harm, others. This is not to say that individuals don’t have any positive obligations towards others; they do. But those obligations (which I’ll treat in a later essay) don’t generate what I mean here by the word “rights.”
I see these obligations as examples of the negative form of Confucius’ Golden Rule, normally quoted as: “Don’t do to others what you don’t want to have done to you.” Thus, for example, those who don’t want their property stolen or trespassed on shouldn’t steal or trespass on the property of others. And those, who don’t want their privacy invaded, must refrain from invading others’ privacy.
There is, however, a difficulty with Confucius’ rule. Different people have different tastes. A masochist, for example, might be happy if you whip him. But you would probably not be happy if he did the same to you in return! A better statement of the rule, then, might be: “Don’t do to others what they don’t want to have done to them.” But this gives us a problem. To clarify what rights are, we need to construct a core list of things no-one should do to others, and of the corresponding rights we enjoy when others don’t do them to us. This is a hard task. I’ll give a few pointers later in this essay, but I’ll have to leave the detail for another day.
Rights and Justice
In an earlier essay “On Justice,” I discussed the nature of justice. The ideal I came up with, I call common sense justice. In this view, individuals should be treated, over the long term and in the round, as they treat others. It follows that rights must be conditional on the individual himself respecting the rights of others. Thus, rights are earned, not granted.
And those that do violate others’ rights can’t complain if they, in their turn, suffer violations of their own rights in reasonable proportion. This is why it’s OK, for example, to deny freedom of movement to convicted criminals in prison.
Are rights the same for everyone?
In my first essay in this series, “On Equality,” I identified the senses in which human beings are (or should be) equal to each other. One of these is moral equality. I put it thus: What is right for one to do, is right for another to do under similar circumstances, and vice versa.
Because of this, the list of things which people shouldn’t do to others must be the same for everyone. Not only does this mean that the core rights of each individual must be the same. But also that these rights must be independent of any particular culture.
Further, anyone who respects others’ rights thereby earns rights for themselves. And therefore, rights cannot depend on involuntary characteristics such as race, skin colour, birthplace or gender. As I like to put it: It doesn’t matter who you are, only what you do.
What kinds of rights are there?
Looking at lists of claimed rights, for example the United Nations’ 1948 “Universal Declaration of Human Rights,” I find myself dividing them into four groups. I call these: fundamental rights, rights of non-impedance, procedural rights and aspirations.
Fundamental rights result from moral prohibitions – that is, obligations to refrain from doing something, which apply to everyone – of the form “Thou shalt not...” followed by something bad. For example: The right to life (thou shalt not kill). Dignity (thou shalt not treat human beings as less than human). Property (thou shalt not steal). No slavery. No torture. No cruel or unusual punishment. No unjust arrest or detention. No unjust interference with privacy, family, home or correspondence. No untrue defamation. No coercion into marriage. And many others.
There are also some fundamental rights which should be in the Declaration, but aren’t. To find these, we need to look at other lists, for example the US Bill of Rights. I’d add at least the following examples. No unjust seizure of goods or other assets. No stalking or routine surveillance. No search without reasonable suspicion of real wrongdoing. And, in particular, no random searches, on any pretext.
Few people would deny that fundamental rights like these should be promoted and safeguarded. Moreover, fundamental rights are easy to measure respect for. With a fundamental right, such as the right to life, you always know where you are. Yes, you can say to yourself, I haven’t killed anyone. I’m OK on that one. And an hour later, you can check again. Yes, I still haven’t killed anyone. I’m still OK.
Rights of non-impedance
Rights of non-impedance, on the other hand, result from more nuanced moral prohibitions, of the form: “Thou shalt not put any obstacle in the way of...” followed by something good. And rights of non-impedance always carry an implied rider at the end. That is: “...provided it does not violate anyone else’s rights.”
In this category fall rights such as: Freedom of movement and residence. Freedom of thought, conscience and religion. Freedom of opinion and of speech. Freedom of peaceful assembly and association. Freedom to marry. Freedom to seek work. Free choice of employment.
And, as with fundamental rights, there are also some rights of non-impedance missing from the Declaration. The right to pursue happiness is one example.
The third group I call procedural rights. These are rights which an individual has, not against other individuals, but against government as an institution. Examples include: equality before the law; public, impartial courts and trials; and innocence until proven guilty.
These rights only make sense in the context of a particular scheme of government. And they are often specific to a culture, or even to a jurisdiction. For example, trial by jury for criminal accusations is normal under English law, but not in many other systems of law. I’m planning several future essays on the subject of government. So, I won’t discuss these rights further today.
The fourth group of “rights,” which I call aspirations, aren’t really rights at all. Examples in the Declaration are the “right to work,” social security, a minimum standard of living, and “free” education. While many people would agree with the gist of these aspirations, there’s a problem with elevating them into rights. For, if such a “right” requires someone to pay so that others can have it, that is itself a violation of the rights of those who are forced to pay. In general, no claimed “right” can be valid if others’ rights must be violated in order to implement it.
There’s another problem too. If an aspiration like a minimum standard of living is elevated into a right, you never know where you are. You can’t be sure that you’re doing enough to respect the right. When you check an hour later, you still can’t be sure. Is there someone in Liberia, for example, you should have given a penny to in that last hour? You don’t know. You can never be sure you’re OK. And it’s almost impossible to defend yourself from an accusation that you aren’t respecting such a right.
But many of these aspirations can easily be re-cast as rights of non-impedance. For example, the “right to work” turns into the right not to be impeded from seeking work, or from doing work in whatever way is mutually most convenient to the parties involved. And the “right to a minimum standard of living” becomes a right not to be impeded from trading with others to get your needs satisfied. In other words, no-one should ever put any obstacle in the way of free access to the market.
Can rights be given up, withdrawn or transferred?
Lastly, the thorny questions of whether rights can be given up (alienated), withdrawn or transferred to someone else.
As to alienation, you may certainly choose to give up some of your rights in a particular situation, if you wish. If you have joined with other people in a defensive war or in a fight against oppression, for example, you may be willing to give up for the common cause some of your property, or some of your freedom of movement, or some of your opportunities for rest and leisure. You may even, if you so wish, give up your right to life by committing suicide or taking euthanasia. But you must make any such decisions rationally, and in full knowledge of the situation.
As to withdrawing rights, in my view a right may be withdrawn only temporarily, and only when required by objective, common sense justice, whether restorative or retributive. The way I put this is: Justice trumps rights. I gave earlier the example of a criminal, convicted of violating others’ rights, whose freedom of movement can be justly taken away for a period. And if actual harm has been caused, the individual can justly be made to compensate his victim.
Beyond justice, though, since rights are earned by respecting others’ rights, they are not granted by anyone or anything. And they therefore cannot be withdrawn.
As to transferring rights, you can of course choose to give some or all of your property to others if you so wish. But your fundamental rights and your rights of non-impedance remain always yours. You don’t give away any of your right to property, even if you give away all the property you currently hold! Any property you justly acquire afterwards is yours, not someone else’s.
So, while you can forego some of your rights for a time, or even permanently if you wish, you can’t assign or transfer any of them to anyone else.
To sum up
Rights – that is, fundamental rights and rights of non-impedance – come from human nature. Every valid right arises out of a moral prohibition. Rights are earned by respecting the rights of others. And they are the same for everyone.
The rights of those that have caused harm to others, or committed violations of others’ rights, may be violated in proportion, insofar as is necessary to implement common sense justice. But the rights of those who respect the rights of others, unless they voluntarily choose to forego them, must not be violated. Not for any reason. Not ever.