University of Transnational Business Law

Rights

by Carl P. Wellman


Legal rights are generally agreed to be legal advantages although the precise sense in which they are advantageous remains controversial. In this respect, they differ from legal duties that seem to be legal burdens because they require the duty-bearer to act or refrain from acting in some manner whether or not she wishes to do so.
The Nature of Rights

One of the subjects of traditional jurisprudence is the analysis of the most general legal concepts, for example rights and duties. Contemporary philosophers of law similarly ask, “What do we mean by ‘a right’?” This is not a merely academic question, for it arises in legal practice. Wesley Newcomb Hohfeld examined the writings of lawyers and judges and found that they used “a right” indiscriminately to express four very different legal concepts, that of a liberty (or privilege), claim, power or immunity. (HOHFELD 1919 p. 36) For example, under current United States law, a male student has a liberty to wear his hair long in face of his teacher’s objections. He has a claim against his teacher that she not cut his hair against his wishes. He has the power to give her permission to cut his hair. And he has an immunity against his teacher extinguishing his liberty by appealing to the school board. Hohfeld believed that lawyers and judges need to distinguish between these fundamental legal conceptions to define the precise issue before a court. Thus, should the student act to defend his rights, is he alleging a violation of his liberty after the teacher has petitioned for a court order requiring him to have a haircut or of his claim after being shorn by his teacher? Hohfeld argued that only claims are rights in the strict sense because rights are logically correlative to duties. (HOHFELD 1919 p. 38) For example, the creditor’s right to be repaid implies the debtor’s duty to repay the loan and vice versa. Although Hohfeld discussed only legal conceptions, several philosophers have used analogous moral concepts in their analyses of moral rights.

Joel Feinberg agreed with Hohfeld that only claims are rights in the strict sense, but rejected the logical correlativity of rights and duties. One can imagine a legal system, an expanded version of the ten commandments, that imposes duties upon its subjects but confers no rights.  It might require debtors to repay loans and impose penalties upon those who fail to do so, but no creditor would have any right to repayment because she would have no legal power to claim repayment as her due. Thus a legal right is a claim valid under the rules of a legal system. (FEINBERG 1980 p. 154)

H. L. A. Hart did not agree with Hohfeld that the language of legal rights is ambiguous because legal liberties, claims, powers and immunities are distinct legal relations. He proposed a general theory of legal rights to explain what liberty-rights, claim-rights, power-rights and immunity-rights have in common that makes them all rights. All consist of a core of one or more bilateral liberties with a protective perimeter of duties of noninterference. For example, one’s liberty-right to look over one’s garden fence at one’s neighbor consists of one’s liberty of so looking or not looking as one chooses together with duties such as the duties of others not to force one to look against one’s will or prevent one from looking by forcible means. In the case of a power-right, one has a bilateral liberty of exercising or not exercising some legal power; and a creditor’s claim-right, includes the bilateral liberties to cancel or not cancel the debt and to sue for repayment or refrain from enforcing one’s claim. Thus, every legal right is a legally respected choice. (HART 1982 pp. 188-189) Feinberg’s claim theory and Hart’s choice theory are two versions of a will theory of rights, theories holding that what is distinctive and important about rights is that they confer some advantageous status upon the will of the right-holder.

Like Neil MacCormick, Joseph Raz defends an interest theory of rights insisting that essentially rights give a special status to the right-holder’s interests rather than her will. He explains that to say that someone has a right is to assert that, other things being equal, some interest of that person is a sufficient reason for holding some other person or persons to be under a duty. (RAZ 1986 p. 166) Although he conceives of rights as interest-based reasons for duties, he rejects the logical correlativity of rights and duties. A right is logically prior to any duty it may imply, and a right may imply more than one duty or different duties under different circumstances. (RAZ 1986 pp. 170-171)
Legal Consequences

Philosophers of law also ask “What does a right imply?” That is, what are the legal consequences of any legal right? Because Hohfeld believed that each fundamental legal conception refers to a legal relation between two persons (like two parties before a court?), he proposed four pairs of logical correlatives. A has a legal liberty against B to do something if and only if A has no legal duty to B not to so act. A has a legal claim against B that B do something if and only if B has a legal duty to A to do so.

A has a legal power over B to change some legal relation of B if and only if B has a legal liability of having that relation changed by some voluntary action of A. A has a legal immunity against B’s changing some legal relation of A if and only if B has no legal power to change that legal relation of A by any voluntary action. This reveals the immediate logical implications of a right in each sense of “a right.” (HOHFELD 1919 p. 36) By an examination of legal opinions and legal publications, Hohfeld showed that the reasoning of judges and jurists is often fallacious because they fail to distinguish between these fundamental legal conceptions. (e.g. HOHFELD 1919 pp. 43 & 57-58) Thus, from a police person’s legal liberty to arrest a suspect they might infer a legal duty of the suspect not to resist arrest, although it implies only that the police person has no duty to the suspect not to arrest him. If, as is usually the case, the suspect does have a legal duty not to resist arrest, this must be derived from some other source.

Carl Wellman argues that any right must consist of a complex of Hohfeldian positions. Were the creditor’s right to be repaid simply a Hohfeldian claim, it would not hold against a recalcitrant debtor. To be a real right it must include at least the creditor’s legal power to sue for repayment, her legal liberty to exercise this power, and her immunity against the debtor’s canceling the debt by pleading inconvenience. (WELLMAN 1985 pp. 59-60) If a legal right is some such complex, then a single right will directly imply a variety of legal consequences. Moreover in many legal systems, a given right implies rights to whatever conditions are necessary for its exercise or enjoyment. (WELLMAN 1995 pp. 190-199) Thus, the logic of rights may begin with Hohfeld, but it must go beyond his conceptual distinctions. Legal philosophers such as Lars Lindahl develop complex formal systems of logic to facilitate the legal reasoning of lawyers and judges as well as legal scientists. (LINDAHL 1977)
The Grounds of Rights

Feinberg identified a legal right with a legally valid claim, and its validity consists in the fact that it is justified by the rules of the legal system. (FEINBERG 1980 pp. 153-154) Many jurists, including Hart, would agree that legal rights presuppose and are grounded on legal rules. But Feinberg failed to explain either precisely how legal rules ground rights or whether legal rights presuppose moral principles as well as posited rules. Those, like Hohfeld, who accept the logical correlativity of rights and duties often hold that any duty-imposing legal rule is also a right-conferring rule. For example, the legal rule that imposes a duty not to commit criminal assault also confers upon a potential victim the right not to be assaulted. On the other hand, Hart denied that the criminal law grounds any legal rights because it does nothing to respect the choice of any potential victim. She cannot make a criminal assault upon her person permissible by consent or choose whether or not the criminal shall be indicted and prosecuted by the state. (HART 1982 pp. 182-186) But Hart did not go on to explain what kinds of legal rules do confer rights. Presumably he would insist that these are all posited in conformity with the rule of recognition of the legal system. Ronald Dworkin rejects this legal positivism. He maintains that the point of legal rights, at least fundamental civil rights, is to protect the individual from mistreatment by the state. They cannot be grounded on utility because it would often be useful to violate a right of one or a few citizens in order to achieve a greater sum of public welfare. He distinguishes between social goals and the moral principles that ground civil rights. Hence, any legal system that takes rights seriously must include moral principles as well as posited legal rules. (DWORKIN 1977 pp. 90-91 & 190-192)

Many legal rights are grounded on more fundamental legal rights. Thus, the right to demonstrate may be grounded on the constitutional right to freedom of speech, and the right not to be subjected to medical treatment without one’s consent could be grounded on the fundamental right to personal security.  In some legal systems, a right of the conscientious objector to be exempted from military service is grounded on a fundamental right to freedom of religion. Are these fundamental legal rights to personal security and freedom of religion ultimate or are they grounded in turn upon even more fundamental moral rights? Although strong versions of legal positivism insist that legal rights are logically independent of moral rights, some strong versions of natural law theory suggest that fundamental moral rights do ground analogous legal rights. The legal status of civil disobedience is even more controversial. Some moderate versions of natural law theory imply that an unjust law is not a real law. Hence, if there is a basic moral right to religious freedom, then any statute that requires a pacifist to serve in the armed forces is not legally valid so that the pacifist has a legal right to violate that statute. However, most legal positivists would insist that the pacifist has no legal right to disobey the statute at issue, although he might have a moral right to refuse to serve in the armed forces. (Compare HART 1961 pp. 200-212 and FINNIS 1980 pp. 363-367)

What, then, are the grounds of moral rights? Hart argued that because rights are not merely logical correlatives of duties, they require some special justification. Thus if there are any moral rights, they must be grounded on the natural right to freedom. (HART 1955 pp. 188-191) Most philosophers believe that one cannot ground moral rights directly upon utility because under some circumstances it would be useful to violate a right of one individual in order to benefit a larger number of persons. However, David Lyons suggests that one might ground moral rights indirectly upon utility in something like the way explained by John Stuart Mill. (LYONS 1994 pp. 67-83) Robert Nozick argues that because moral rights are side-constraints on the pursuit of goals, they cannot be grounded upon good or bad consequences in any way. Instead, they must be grounded on the inherent value of human beings that makes each individual person an end-in-himself. (NOZICK 1968 pp. 28-33) John Rawls seems to have grounded basic liberties upon a hypothetical social contract that would be unanimously accepted by the members of any society choosing under ideal circumstances. (RAWLS 1971 pp. 11-17) Others have extended this kind of contractarian grounding to moral rights in general. A lawyer needs to be familiar with moral rights because when the law defines a right in moral language, the interpretation of that legal right often depends on the content of an analogous moral right. But whether some asserted moral right is real and, if so, how it should be defined will in turn depend on whether there are moral reasons sufficient to ground the asserted moral right.
Impossible Rights

Conceptual analyses of rights often imply that what is claimed to be a right could not be a right in any strict sense. Hence, philosophers of law ask “What alleged rights could not be real rights?” Because Hart conceived of a right as a respected choice, he suggested that it is idle and misleading to say that young children and animals have rights. (HART 1955 p. 181) It is idle because all one needs to say is that we have duties not to mistreat and perhaps to care for them. It is misleading because it suggests that law or morality respects the free choices of beings incapable of choice. Neil MacCormick rejects Hart’s will theory of rights precisely because it implies that young children have no right to be cared for. He asserts that the function of rights is to protect some interest of the right-holder. Since children do have interests, such as the interest in being nurtured, they can and do have rights. (MACCORMICK 1982 pp. 158-161) Because Feinberg defined a right as a valid claim and defined claims in terms of the activity of claiming something as one’s due, he recognized that his theory seems to imply that babies, who are incapable of claiming, could not possibly have rights. He avoided this conclusion by arguing that their rights can be claimed on their behalf by their parents or guardians. He suggested that this could also be true of animals because animals have interests that can be represented. (FEINBERG 1980 pp. 162-163) Some philosophers and jurists insist that human fetuses and non-human animals do have rights while others deny that any such rights are possible. To a lawyer, this debate about possible right-holder might seem, pace Hart, idle. But if the ascription of rights to infants or animals really is misleading because it suggests that the law respects the choices of infants or that animals are in a position to claim something as their due, then a lawyer will want to know how the legal system really functions. Perhaps to protect interests of infants or animals it confers rights of action upon their parents or representatives rather than the alleged right-holders themselves.

Legal philosophers also challenge the possibility of certain alleged rights because of their content. Maurice Cranston argued that the social and economic rights affirmed in the Universal Declaration of Human Rights and subsequent international conventions could not be real rights. If there were a universal human right to an adequate standard of living, for example, this would imply that every state has a duty to provide adequate goods and services to all of its citizens. But it is impossible for states that lack the necessary resources to do this. Because there cannot be any duty to do what is impossible, there could not be a right that would imply any such duty. (CRANSTON 1967 pp. 50-51) Nozick argued against the possibility of such rights on other grounds. The members of a society cannot have any natural right to welfare programs such as social security or health care because if they did, their governments would have a duty to fund these programs by taxation. But taxing those who have acquired their property legitimately in order to redistribute it to the disadvantaged would be unjust because it would be confiscating their property without their consent and imposing forced labor upon them. Since citizens can have no right to unjust state action, the alleged human rights to welfare benefits cannot be real. (NOZICK 1974 pp. 167-173) Those who agree with Cranston or Nozick often generalize their reasoning to deny the existence of positive human rights and insist that only negative human rights are real. A positive right is a right that imposes a positive duty, a duty to do some sort of action, upon some second party. A negative right is a right that implies a negative duty, a duty not to act in some specific manner. Hence, they affirm a human right to life, a right not to be killed, but deny that there is any human right to social security, any right to be provided with welfare benefits in the event of poverty. Henry Shue, among others, has challenged this distinction between positive and negative rights. Every basic right implies both positive and negative duties. (SHUE, 1980 pp. 35-64)
The Value of Rights

Although legal rights are generally believed to be legal advantages, the way in which legal or moral rights might be advantageous remains controversial. Philosophers ask what, if anything, makes rights valuable. Hart’s respected choice theory of rights locates the special value of rights in the way that they protect the freedom of individual choice and action. The interest theories of MacCormick and Raz suggest that rights are valuable primarily because they protect the interests of the right-holder. Feinberg argued that the special value of rights as valid claims is the way in which they sustain self-respect by enabling their possessors to stand up and claim something rather than merely begging or petitioning for what is due to them. (FEINBERG 1980 pp. 151 & 155)

Not everyone is convinced of the value of rights. Some feminists and communitarians argue that rights promote the selfish pursuit of individual interests at the expense of caring relationships and social responsibilities. Their adversarial nature is detrimental to personal relationships and leads to a litigious society in which conflicts are exacerbated rather then resolved amicably. They all too often serve as instruments by which those with power in any society dominate and even oppress the disadvantaged. (WOLGAST 1987 pp. 29-49) A lawyer needs to recognize both the values and disvalues of rights in order to advise her client how best to further his interests. And a legislator will wish to understand the potential social benefits and harms of rights in order to decide how best to formulate the laws of her society.

More detailed information about these and related issues can be found in the more specific entries on rights.
Bibliography

Cranston, Maurice, “Human Rights, Real and Supposed” in D. D. Raphael (ed.) Political Theory and the Rights of Man, Bloomington & London: Indiana University Press, 1967. An influential collection of essays on the nature of human rights.

Dworkin, Ronald. Taking Rights Seriously. Cambridge MA: Harvard University Press, 1977. A cogent challenge to legal positivism and any utilitarian theory of rights.

Feinberg, Joel. Rights, Justice, and the Bounds of Liberty. Princeton: Princeton University Press, 1980. The most sophisticated modern claim theory of rights.

Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press, 1980. A theory of natural rights that combines contemporary analytic jurisprudence with traditional natural law theory.

Hart, H. L. A., “Are There Any Natural Rights?” Philosophical Review 64 (1955), pp. 175-191. The classic statement of the option theory of moral rights.

Hart. H. L. A. The Concept of Law, Oxford: Clarendon Press, 1961. The most influential modern version of legal positivism.

Hart, H. L. A. Essays on Bentham. Oxford: Clarendon Press, 1982. Contains Hart’s general theory of legal rights.

Hohfeld, Wesley Newcomb. Fundamental Legal Conceptions. New Haven: Yale University Press, 1919. An immensely influential analysis of the legal language of rights and their correlative burdens.

Lindahl, Lars, Position and Change: A Study in Law and Logic, Dordrecht: D. Reidel, 1977. A sophisticated logical system using Hohfeld’s conceptual analysis.

Lyons, David. Rights, Welfare, and Mill’s Moral Theory. New York/Oxford: Oxford University Press, 1994. A qualified defense of utilitarian theories of rights against the challenges of Hart and Dworkin.

MacCormick, Neil. Legal Rights and Social Democracy. Oxford: Clarendon Press, 1982. A rejection of will theories of rights and formulation of a modified interest theory.

Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974. A libertarian theory of natural rights.

Rawls, John. A Theory of Justice. Cambridge MA: Harvard University Press, 1971. The most influential modern theory of social justice.

Raz, Joseph. The Morality of Freedom. Oxford: Clarendon Press, 1986. A theory of rights as interest-based reasons for duties.

Shue, Henry, Basic Rights, Princeton NJ: Princeton University Press, 1980.

Wellman, Carl. A Theory of Rights. Totowa NJ: Rowman and Allenheld, 1985. A revised version of Hart’s will theory of rights.

Wellman, Carl. Real Rights. New York: Oxford University Press, 1995. A detailed treatment of the grounds and implications of rights together with a theory of possible right-holders.

Wellman, Carl, ed. Rights and Duties, 6 volumes. New York/London: Routledge, 2002. A good place to begin searching the periodical literature.

Wolgast, Elizabeth H., The Grammar of Justice, Ithaca & London: Cornell University Press, 1987. A cogent criticism of many contemporary conceptions of rights.