University of Transnational Business Law

Conceptions of Rights in Recent Anglo-american Philosophy

by Rex Martin


Although the concept of rights is rather complex, there is considerable agreement about what might be included in a preliminary characterization. For example, there’s widespread consensus that rights (understood as socially established ways of acting or ways of being treated or, alternatively, such ways as ought to be so established) are things that (i) can be distributed, more or less equally, on an individual basis to each and all of those who are relevantly said to be rightholders. (ii) Most people think that rights are, in some sense,justified. But there is considerable controversy as to what, precisely, is the proper focus of justification. Thus, even a characterization concerning their acceptability is not unduly contestable when stated neutrally, but dispute would break out so soon as we tried to determine what to emphasize    whether rights are in factsocially established ways of acting or of being treated, or merely ought to be. (iii) For a final example, the idea that rights always involve some sort of significant normative direction of the behavior of others (though it gives rise to important interpretive issues) would, as stated, appear to be almost universally agreed upon.
I. Concepts and Conceptions

The characterization of rights I offered above identifies three of the most important features of rights. This characterization, if spelled out more fully, would constitute the concept of rights. It is the organizing focal point common to competing conceptions of rights; this concept consists of elements that all of these conceptions (in the limiting case, everybody) would agree on. A concept gives focus to what competing conceptions are differing about; it indicates important features of their shared ground and what they have in common. What the conceptions provide, then, is particular and differing interpretations of the various elements of the focal concept. Each of the competing conceptions provides arguments why the integrated or overlapping features of the particular interpretations it offers afford overall a good and proper way of looking at the concept under scrutiny and, indeed, does a better job at that task than any of the other conceptions.

Our concern in this entry is with conceptions of rights within one the most important classes of rights: universal rights, in particular, human rights as moral rights and constitutional rights insofar as these have normative foundations. Interest in rights has undergone something of a revival since World War Two, especially in the years beginning in the late 1960’s. In the time since then there have been several crux disputes between conceptions of rights. Three of these stand out: (1) whether rights are best viewed as claims or as practices, (2) differing conceptions of the justification of rights, (3) competing accounts of the main functions of rights (and of the closely related question of who--or what--can be rightholders). In this entry we will briefly look at each of these ways in which conceptions of rights have been organized and deployed. The conceptions we are concerned with here are not identical to conceptions of rights as found in law (though there will, of course, be points of overlap).
II. Claims and Practices

Some say that rights are practices (certain ways of acting or of being treated) that are established, typically socially established. Thus, the issue for them is whether the fact of social recognition and enforcement is justified (or could be). Others say that rights themselves are justified principles or claims of some sort (whether the practice identified in any such principle or claim exists or not).

The problem we are examining arises, in part, because the procedure for deciding whether something is a right is not wholly settled. We find that the vocabulary of rights, in particular, of human rights, may actually be used at any of several steps: that of mere claim, that of entitlement (where the claim to element is pretty well settled), that of fully validated claim (where we have the idea both of a justified claim to something and of a justified claim against someone for it) and, finally, that of satisfied or enforced claim (where the appropriate measures required to support or to fulfill the claim have been given effective embodiment as well). The presence of these possible stages has introduced a degree of ambiguity into assertions that a right exists. Accordingly, contemporary opinion varies significantly as to the point at which such assertions can most plausibly be thought to take hold.

For simplicity, the views here can be divided into two main camps: the view (advanced most notably by Joel Feinberg) that rights are justified or valid claims and the view (developed by Wayne Sumner among others) that rights, even human rights, are basically justified conventions for acting or being treated. The main case for each of these contrasting views will be laid out briefly.

The starting point to the view that rights are (valid) claims is the common opinion that to have a right is to have a justification for acting in a certain way, or a justification for being treated in a certain way. Now, suppose that a candidate for rights status had all the rights-making features but one. Though accredited (in the sense of justified), it was not socially established; it lacked the social acceptance or the official recognition which it ought to have. Why should the lack of such recognition deprive it of rights status? Clearly, if the rights-making features were modeled on what was justified (what was accredited in that sense), the thing was already a right even before it was recognized, even before it became a practice. And when it was recognized it would be recognized as a right (as something that was fully justified) and would not simply become a right in being recognized. Many people, then, do regard justified claims as rights.

The opposing view is that rights are socially recognized practices or conventions, suitably justified. This view rests on three main contentions. The first contention is that the notions of authoritative recognition (if not explicit, then at least implicit, as evidenced by conduct) and of governmental promotion and maintenance (usually on a wide variety of occasions) are themselves part of the standard notion of a legalright, that is, when we are concerned with rights that are more than merely nominal ones. Arguably, then, legal rights cannot be satisfactorily accounted for under the heading of mere justified or valid claims. The next point put forward by the social recognition view is that, where one alleged that moral rights or human rights are radically different from legal rights on the exact point at issue (that features of recognition and maintenance are seemingly expected of active legal rights but not of moral rights), then it would prove difficult to hold onto the ideal that rights to identifiable ways of acting or of being treated should (a) provide significant normative direction to the conduct of people and should (b) provide some kind of guarantee to, some kind of protected enjoyment of, the benefits that can reasonably be expected to accrue to rightholders from these very ways of acting or of being treated. In sum, rights, as understood by the valid claims theorists, would not do some of the basic things that rights are ordinarily expected to do.

If the argument sketched so far is credited, then the view of rights as justified or valid claims (understood as a generic account of rights) does not provide an adequate generalized notion of rights, one that can comfortably include both legal rights and human or other moral rights. Thus, we must consider the contention that the notions of social recognition (of some appropriate sort) and of promotion and maintenance (usually on a wide variety of occasions) are themselves internal to the notion of any active right.

This raises the third main point urged by the social recognition view. Here the argument is that allmoral rights, as accredited moral rights, can themselves be construed as involving established practices of (social) recognition and maintenance. Since human rights (as a special case of moral rights) are thought to be addressed to governments in particular, we must regard practices of governmental recognition and promotion as being one of the appropriate forms for such recognition and maintenance to take for these rights.

If one subscribes to the social recognition view, the conclusion one comes to can be put (least contentiously) as follows: a fully functioning or fully constituted human or constitutional right satisfies all of three crucial points--sound justification (including appropriate validation, if a constitutional right), effective recognition, maintenance by conforming conduct and, where need be, enforcement by government.

There are, as we have seen, strong arguments for both of the main conceptions we have canvassed here. But the important point is that discussions about individual candidates for rights status, or about how best to shape specific rights, will feel the gravitational pull of each of these conceptions and will have to weather telling arguments from the perspective each provides.
III. The Justification of Rights

The question of how best to justify specific kinds of rights, in particular human rights and basic constitutional rights, has more and more come to be a focal point of dispute. Is there a substantive theory of critical morality that can do the job and do it well? I will confine the account here to a discussion of utilitarianism and its current critics.

One main concern that has surfaced is whether utilitarianism (one of the dominant ethical theories in the West today) is up to the task of justification. Many people in the 1970's and 1980's (including John Rawls, Ronald Dworkin, and even thinkers broadly sympathetic to utilitarianism, like H.L.A. Hart or David Lyons) had concluded that utilitarianism was somehow incompatible with basic rights (human or constitutional), or at least with the priority habitually given to such rights.

The problem they saw was that no one can think that acting in accordance with any given right will on every occasion yield up a result that is compatible with the general happiness principle. Sometimes deviating from that policy will have the greater welfare value. And, given the general happiness principle itself--the principle that the greater or more general benefit should be preferred to the lesser and that, where it is feasible to adjust normative requirements on action to achieve a greater benefit, one should so act--it follows that such a deviation should be taken. Sometimes a right ought to yield to these considerations: it should do so when so doing holdsthe prospect of increased general well-being.

In an effort to deal with the problem these critics had identified, significant attempts have been made within utilitarianism (under the name of ‘rule’ utilitarianism) to address and perhaps resolve it. This new version of utilitarianism shifts the focus of attention fromJeremy Bentham, who did not countenance the idea of basic moral rights, to J.S. Mill, who did. Roughly, the theorists of rule utilitarianism assert that direct appeals to general welfare are self-defeating, all things considered, and that putting standing constraints on the principle--such as a system of moral rules (typically relatively simple and easily followable rules) or a coherent set of civil or constitutional rights justifiable by the standard of general happiness--in fact producesthe greater well-being.

Rule utilitarians do not, however, assert that moral rules should never be overridden nor individual rights ever broached. Rather, on their view, where rules conflict or rights do (as they inevitably will, many have argued), some sort of appeal to the general happiness is in order.

Here is where the notion of indirect utilitarianism (a species of rule utilitarianism developed by David Lyons and others) comes crucially into play. Its advocates argue that the principle of general happiness should notdirectly determine what is to be done even here. Rather, the principle operates only indirectly in all such cases; it bears down, not on individual actions per se or even on individual rules on the particular occasion in question (an occasion of conflict of rules or of rights). Instead, the general welfare principle is used here merely to help contribute, in a continuing way, to an ongoing cumulative ranking of ‘the opposing obligations’ so as to achieve a refined and resultant clear ranking of those obligations, for use on particular occasions of conflict (see Lyons, 1994, p. 61). In indirect utilitarianism there is never a direct and determining appeal to the general happiness principle as to what to do, what act to perform or what rule to follow, on a particular and given occasion.

On the indirect utilitarian account, then, it is possible to have policies for action (to have both moral rules and rights) that are justifiable by the standard of general welfare and at the same time to shield these policies from direct confrontation with (and possible overthrow by) the welfare principle on individual occasions. And it is possible to do so while still allowing these policies to remain sensitive to what produces the greater or more general benefit on given, individual occasions--a sensitivity that is registered in the differential weights assigned the various rights and policies, an assignment that occurs gradually (over time and with experience) and cumulatively. Thus, indirect utilitarianism (if all its arguments and presumptions are allowed) seemingly establishes that utilitarianism is compatible with human rights or basic constitutional rights and with the priority of such rights--at least in the case of those rights that are themselves justifiable in accordance with the general happiness principle. Certainly, it preserves the priority of such rights over against considerations of corporate good or of aggregate welfare that mark but a marginal increase in general welfare.

Now let us turn to some criticism. It will continue to be the case, even after granting everything said in favor of indirect utilitarianism, that considerations of greater welfare (including those that amount to nothing more than the increased well-being of some individuals at the expense of others) can and do in fact override basic civil rights on given occasions. Indirect utilitarians cannot really deny this.If they do, then the very jumping-off point of indirect utilitarianism would disappear along with the problem it was designed to solve. There would simply be no point to a strategy of shielding moral rules and human or constitutional rights from being overridden by corporate or aggregate political policies unless there were (or could be) occasions when such overriding policies would arguably be supported as preferable by direct reference to the standard of general happiness. Thus, indirect utilitarians are in effect forced to admit that social policies conducing to greater welfare could come to outrank and override such rights, within the utilitarian frame they have devised.

The heart of the problem here is that utilitarianism, like any other comprehensive and general theory, casts a wide net. Its determinations range not only over the tendencies of types of actions--the perspective for assessment probably preferred by most of the classic nineteenth century utilitarians--or over the consequences of moral rules for conduct and, as well, of civil rights (conceived as politically universal ways of acting/being treated)--the perspective favored by contemporary rule utilitarians. But utilitarian determinations don’t stop with just these things; they also range over the consequences of states of character, of motives for acting, of other social institutions, of nonrights political and social policies. And, last but not least, its determinations range over individual pieces of conduct (over acts on given occasions)--the perspective for assessment favored by contemporary act utilitarians, a perspective that came into prominence in the twentieth century, primarily under the influence of G. E. Moore (and of his teacher Henry Sidgwick).

None of the perspectives just named identifies the correct or criterial standpoint from which utilitarian assessment is to be made. There is no reason within utilitarianism, as a comprehensive and general critical moral theory based on a single foundational principle, to restrict its scope to individual acts or to moral rulesand basic rights (even constitutional or human rights) or to give any of these named perspectives an absolute or privileged status. Only one thing has that status in this theory: the master principle of general happiness itself (and, of course, whatever follows from that principle). That master principle, utilitarianism (if you will), does not reduce to any one of these perspectives of assessment; it embraces them all. But the possibility of these multiple perspectives for assessment within utilitarianism, all of them legitimate by the lights of that theory, introduces an irresolvable instability into utilitarianism. On a given occasion any one of them couldprevail as the platform for assessment.

It is this fact that caused concern among the critics of utilitarianism. It is this concern that led them to conclude that the general happiness principle, an aggregative principle, could not support the sort of radically distributive program we associate with rights--could not support the assignment of constitutionally guaranteed benefits and protections, to each and every individual person in advance, so to speak, and across the board. It could not do so if, in effect, such rights tied the utilitarian politician's hands against allowing corporate or aggregate interests to override or supersede human or constitutional rights when, cumulatively and all things considered, those aggregate interests could be seen to conduce to greater benefit. Utilitarians of any stripe (regardless of whether they are act or rule utilitarians or something else) cannot allow for politically fundamental rights that have a built-in, standing, and overriding priority over considerations of corporate good or aggregate welfare. To this degree, then, philosophical utilitarianism is incompatible with the notion of basic rights (human or constitutional rights) as that idea is commonly understood.

Thus, we find John Rawls saying, in the preface to the 1999 revised edition of his Theory of Justice (a book originally published in 1971), that he 'wanted to work out a conception of justice that provides a reasonably systematic alternative to utilitarianism . . .' He continues, The primary reason for wanting to find such an alternative is the weakness . . . of utilitarian doctrine as a basis for the institutions of constitutional democracy. In particular, I do not believe that utilitarianism can provide a satisfactory account of the basic rights and liberties of citizens as free and equal persons, a requirement of absolutely first importance for an account of democratic institutions.

Although Rawls intended his Theory of Justice to provide a 'convincing account of basic rights and liberties, and of their priority', he admits he did not successfully achieve this objective until ten or so years later. Accordingly, one would need to look at Rawls's 1982 Tanner Lectures as providing the best account of, and arguments for, his first principle of justice, the principle of equal basic liberties and rights. But I will not, for reasons of space, pursue this matter further (s.v. the entry on ‘Rawls' by Reidy).

Suffice it to say that differing views about the proper justification of basic rights have organized and regimented the debate about rights in the last thirty years or so. Some theorists have turned to classical natural law as a ground for justification (s.v. the entry on ‘Natural Law' by Westerman and the entry on ‘Natural Rights’ by Coyle), others to Hobbes or Locke. Yet others have turned for a justification of basic rights to notions of agency, typically either libertarian or Kantian in their formation (s.v. the entry on ‘Rights' by Wellman). This is why I have included a section on the justification of rights in the present entry, and have focused (as one of the most salient, significant, and controversial examples) on contemporary utilitarianism and its leading critics.
IV. The Function of rights

Rights in the seventeenth and eighteenth centuries were largely discussed as if they were simply liberties and, hence, ways of acting on the part of the rightholder. Indeed, this tendency is deeply rooted in the tradition of rights discourse. It constitutes, nonetheless, a drastic oversimplification even if the rights referred to are, as they often are, the classic rights of the eighteenth century declarations. For these rights include important rights to ways of being treated and such rights are not things the rightholder does or can do. Even so, the oversimplification continues to prevail in philosophical literature (as for example in Hart 1973 and in the earlier writings of Rawls).

Rights have many functions. Two in particular have been emphasized in the contemporary literature: the conferring of choice or autonomy (on rightholders) and the protection of their interests, especially their basic interests (s.v. the entry on ‘Rights' by Wellman). Now, it is clearly possible to have both important functions (the conferring of protected choice on rightholders and the protection of their interests) as functions of rights, often of a single right. Thus it seems arbitrary, where both functions are normally served by a great many rights, to single out just one of these functions (typically the function of conferring autonomy) and to give itdefinitional weight (as Sumner has done). Many discussions have, nonetheless, treated the choice/interest issue as if it were a crux issue, indeed, a deep dichotomy, within rights. Accordingly, I have included it in an entry devoted to competing conceptions of rights.

This idea of a single duality, a fundamental bifurcation is, I think, another oversimplification. In line with the contemporary understanding of rights (as expressed, for example, in the UN's Universal Declaration of Human Rights of 1948), it might be best to stress three main functions of rights. Thus, the central content of some rights will be a way of acting (e. g., a liberty of conduct of some sort). But at the core of other rights will be a way of being treated: a noninjury of some sort or, alternatively, the provision of a service.

Corresponding to each main heading or class of rights (as determined by these central cores) there is an appropriate or characteristic normative response enjoined for the conduct of others. But the essential character of this normative direction of the conduct of second parties shifts from main case to main case. Allowing or even encouraging a piece of conduct is what these parties are normatively directed to do in the case of a liberty; prohibiting their doing of an injury to the rightholder or requiring of them a service, again to the rightholder, is the incumbent directive in the other two cases.

It is important to see too that choice (or ‘will’, as it is often called), though a feature of many of these rights, is not a feature of all of them. For there’s sometimes no choice available to the rightholder in the latter two cases mentioned above; the right not to be tortured (a right to a noninjury) cannot be waived by the rightholder and the service right to an education at public expense (or in some other suitable venue) is a right that the rightholders--so long as they’re not above school leaving age--are required to exercise (required to avail themselves of). Similar points could be made about the interests of the rightholder. Thus, we have good reasons to accept the ‘Several Functions Theory’ of rights, a view laid out by Leif Wenar, and to avoid what he calls ‘single-function theories’.
V. Conclusion

The conceptions of rights identified in this entry have all come into play in evaluating and sometimes constricting contemporary rights discourse, on a wide front and in a diverse array of important topical disputes. These conceptions have proven to be arbiters on such issues as whether a given class of rights (for example, group rights) can even permissibly be asserted or whether a certain kind of being (a fetus, say, or an animal, a tree, the whole eco-system) can plausibly even be said to be possible rightholders. The conceptions are important, then, not only to rights theory but also to rights practice.
Annotated bibliography

Dworkin, Ronald. 1978. Taking Rights Seriously, Cambridge, MA: Harvard University Press. (Essays 2 4, 6, 7, 12, 13 are especially relevant to rights.)

Dworkin, Ronald. 1985. A Matter of Principle, Cambridge, MA: Harvard University Press. (Essays 2, 5, 17 are especially relevant to rights.)

Feinberg, Joel. 1973. Social Philosophy, Foundations of Philosophy Series, Englewood Cliffs, NJ: Prentice Hall. (Feinberg was probably the leading American writer on the concept of rights in the second half of the twentieth century; his argument that rights are valid claims has been especially influential. Chs. 4 6 are relevant to rights.)

Gray, John. 1996. Mill on Liberty: A Defence, 2d edition, London: Routledge. (The 2d edition reprints the main text of the 1st edition of 1983, with pagination unchanged, and adds to that a short ‘Preface to the Second Edition’ and a longer ‘Postscript’. Gray is one the leading theorists of indirect utilitarianism.)

Hart, Herbert L. A. 1973. 'Bentham on Legal Rights'. (Reprinted, unchanged, as ch. 7 in H.L.A. Hart. 1982. Essays on Bentham: Studies in Jurisprudence and Political Theory, Oxford: Oxford University Press.

(One of several of Hart’s important accounts of the will theory of rights--of rights as protected choices.)

Hart, H.L.A. 1983. Essays in Jurisprudence and Philosophy. Oxford: Clarendon Press. (See chs. 8 and 9 for Hart’s later thoughts about utilitarianism and rights; these essays were originally published in 1979.)

Lyons, David. 1982. 'Utility and Rights', in J.R. Pennock and John W. Chapman, eds.Ethics, Economics, and the Law, NOMOS vol. 24, New York, NY: New York University Press. (This essay criticizes the thesis that indirect utilitarianism is compatible with basic rights, but many of Lyons' earlier essays, as reprinted in Lyons 1994, had supported that compatibility.)

Lyons, David. 1994. Rights, Welfare, and Mill's Moral Theory, New York, NY: Oxford University Press. (Collects together the 1982 essay referred to above with other relevant essays on Mill.)

Martin, Rex. 2005. 'Rights', in The Shorter Routledge Encyclopedia of Philosophy, Edward Craig, ed. London: Routledge, pp. 907-912. (A source for the present entry, especially the introduction and the discussion of the functions of rights.)

Nickel, James W. 1980. 'Recent Work on the Concept of Rights', with R. Martin, co-author, American Philosophical Quarterly 17: 165-180. (A survey of much of the early formative literature on rights, a source for the discussion in the present entry of the claims/practices conceptions of rights.)

Rawls, John.1993. Political Liberalism, New York, NY: Columbia University Press. (2d edition, enlarged, in paperback, 1996. In this book Rawls reworks his theory of justice as a political theory. It contains, unrevised, Rawls’s important 1982 Tanner Lecture on 'The Basic Liberties and Their Priority'.)

Rawls, John. 1999. A Theory of Justice, 2d edition, Harvard University Press. (1stedition, 1971. Rawls’s characterization of rights is vague, but the book contains one of the most suggestive attempts at a critical justification of rights and a powerful critique of utilitarianism on this score.)

Raz, Joseph. 1986. The Morality of Freedom, Oxford: Oxford University Press. (One of the most important accounts of the interest theory of rights.)

Sumner, L. Wayne. 1987. The Moral Foundation of Rights, Oxford: Oxford University Press. (This well written book develops an account of rights, including moral rights, as justifiable conventional rights, and it represents one of the most important attempts to provide a critical justification of rights on a consequentialist--largely utilitarian--basis.)

Wenar, Leif. 2005. ‘The Nature of Rights’, Philosophy and Public Affairs 33.3: 223-252. (Important analytical and critical study, with many citations to the interest and will and other theories of the function of rights.)