Introduction to Human Rights What are rights and how are they derived?19 min read
Introduction to Human Rights
The issue of human rights is important. In fact, when checking google trends on this and some related terms, the topic of human rights was markedly higher to related topics like women’s rights or civil rights. Human rights are basic – they’re foundational; yet they are the most often violated around the world. They’re also the most misunderstood in terms of their origin and our authority to exercise them. Moreover, if we don’t understand human rights, how can we possibly understand what women’s rights, civil rights, or religious rights entail?
Generally speaking, we operate on certain assumptions concerning rights:
We either possess them or they are owed to us.
The government plays some role in our rights.
Rights are generally enumerated in a government document somewhere (eg. The Bill of Rights or the UN Declaration on Human Rights).
There are moral and immoral ways to use rights, and there is a question over whether the immoral use of rights should be legal.
Parsing Legal Definitions and Philosophical Theory
If you were to do a google search on a basic definition of rights, you’re going to get a multitude of responses. This is primarily due to the legal tangents that have come up over the centuries in an attempt to refine legal obligations to protections, enforcement, and punitive actions over rights and rights violations. We’re not going to address the nuances of these tangents here due to their potential dubious nature.
Let’s start with the legal definition according to Black’s Law Dictionary:
Right, n. concrete sense; a power, privilege, faculty or demand, inherent in one person and incident on another.” They are the “power of free action.”
This is a formidable definition, so let’s unpack it:
A right is concrete; it’s a real substantial thing (it actually exists and is not merely some abstract idea). Rights exist individually in either a power, a privilege, a faculty, or a demand. And these rights exist intrinsically in our existence and also have a causal effect on others. Our rights to act are free from coercion by outside entities.
It needs to be stated here that legal definitions are quite a bit different than other kinds of definitions. If I use the Merriam-Webster dictionary to look up ‘right’, I get a common, or a generally agreed upon definition, or series of contextual uses, but when I go to Black’s Law Dictionary, I’m reading a definition that has been created by the state, either through legislation or case law. This is where things get tricky because what Merriam-Webster uses to define rights is not a definition that is recognized by any state institution – like a court, or a police officer. The common definition is intended to give a general idea; Black’s definition is intended to give the state’s legal idea. The latter can be used in a court of law, the former cannot; both are derived from a philosophy of rights.
Ask yourself: on what authority does the state have to change or complicate the definition of a word already understood in common use? If your vote delegates authority, does that mean that you have the authority to redefine words and your vote delegates that authority? If you do not have that authority, then how can you delegate through a vote?
A Philosophy of Rights
Looking at philosophical discussions (as distinct from the legal definitions) is helpful in understanding what is really at stake here and provides perspective beyond that of legislators, lawyers, and judges.
On the philosophy of human rights, it is generally agreed that rights are “basic moral guarantees” that we have simply by virtue of our being human– ie. Existing as humans – and this philosophy attempts to identify the most basic prerequisites for each human being to lead a minimally good life.
If you want to understand more of the ‘why?’ behind the assertion that we have rights by virtue of our existence, I’d encourage you to explore the resources I’ve included in the footnotes. As a general rule, it’s fair to say that if I have a right to live, then there is a natural consequence for you to let me live. Or, parents have a right to raise their children, but there is a natural consequence for them to be responsible in following through with that.
So far, we see that rights are inherent to human nature; there are natural consequences for how others relate to our rights, and legally we recognize that different categories of rights exist.
Determining rights in the US usually involves going to court; the nature of the law is so complicated and convoluted that it takes legal teams to analyze, interpret, and present to a judge a case, and the judge can only operate on information provided and his or her own intuition. But why should it be this way? Should we be perpetually dependent upon lawyers and legislators to dictate to us what rights are and when they’re violated? Is the topic of rights really all that complicated, or does our political culture over-complicate the matter?
An historical perspective
If we trace our steps backwards through history, we can see the big names that have influenced the discussion on human rights; Wesley Hohfeld, Immanuel Kant, and John Locke are the ones we’ll discuss here. But to fully grasp what’s at stake, we have to understand that the discussion on human rights really began in ancient Greek philosophy with questions about morality, virtue, and what they called “the good life.” I’ve included references for further reading in the footnotes, but for our purposes I mention the ancient perspective only to show the connection of human rights to ethics.
It’s also important to point out that, while rights are necessarily connected to ethics, they are not themselves moral or immoral. Rights can be used for both moral and immoral behavior alike. And later we’ll discuss whether the state has a legitimate claim on legislating against the immoral use of rights.
First, let’s discuss Wesley Hohfeld’s formula for determining rights. To understand the Hohfeldian Analysis in detail, I’ll direct you to the link in the footnotes, but I’m going to sum it up here by saying that this is a scheme in the philosophy of law designed to indicate how rights impact our relationship towards others and vis versa.
The relationship is essentially reciprocal; if I have a right, you have some obligation to not interfere; If I can claim just ownership of something, you cannot claim ownership of the same thing. These are first order rights, according to Hohfeld, and he also describes second order rights which are higher rights that give the rights holders authority to manipulate or change the first order rights, and is often used to describe the authority the state has over us and our rights. We’ll discuss how the governing authorities relate to and impact our rights later. For now, we’re addressing the relationship between individuals – the first order rights.
John Locke’s contribution to the discussion on rights is in identifying that our most basic rights are our rights to life, liberty and property – which is a product, a direct consequence of preserving our life and exercising our liberty. Immanuel Kant’s contribution deals with the idea of justice – how do we justly enforce our human rights and he posited (in contrast to utilitarian philosophers) that human beings are not to be used as a means to an end, but rather ends in themselves. In other words, it would be unjust to argue violating the rights of some for the sake of the whole.
Locke didn’t come up with life, liberty, and property, as our most basic rights arbitrarily. Since we exist, and as adults have ultimate ownership* and primary responsibility for ourselves, the only way to do that is by utilizing things in nature to provide for our most basic needs. These three things represent our existence; our property represents our past existence, our liberty represents our present existence, and our life represents our future existence. Therefore, we have the right to life, liberty, and justly acquired property.
All subsequent rights can be derived from these three things, and anything outside these three things, and their derivatives, we do not have a right to. No individual can lay a higher claim to another person’s life, liberty, or property because that presumes they have ownership over you.
*Ultimate ownership with respect to other humans; and a stewardship with respect to the Creator.
Two perspectives on rights
Though you will hear many different descriptions of rights – women’s rights, children’s rights, minority rights, claims, duties, privileges, etc., in each of these there is a positive and negative perspective. This isn’t to say that there are good and bad perspectives, but rather are an indication of how we are to act in relation to these rights.
In the ongoing effort to preserve my own life, liberty, and property, I have a right to your negative act – that is, to your not doing something; specifically, I have a right to your not violating my life, liberty, and property. I have a right to your non-aggression, and should you violate that right, and aggress against my life, liberty or property in any way, then I have a right to defend those things. What counts as aggression? Aggression is the initiation of force, fraud, abuse, or other harm that would infringe on another person’s life, liberty, or property. This prohibition is known as the non-aggression principle.
Positive rights are usually taboo in libertarian circles because we generally think of positive rights in terms of things the government gives us, which always requires the government taking from others. But since we’re not addressing the role of civil governance here, I want to discuss positive rights on the individual level.
With rights come responsibilities. So, in my right to acquire and create property to preserve my life, I am responsible to ensure that I’m not violating someone else’s life, liberty, and property in the process. But should my lawful actions result in another person’s dependence on me, then that person has a positive right to my protection at least until the situation is resolved. This is best seen in the parent/child relationship. Children are products of their parents’ lawful actions of reproduction; therefore the children are entitled to, and parents are responsible for, protecting those offspring until they are capable of providing for themselves.
It’s simple, but comprehensive
While there is some value in ideas like Hohfeld’s in light of the negative and positive perspectives of rights, the simplest way to determine if a right exist is to see how it relates to an individual’s life, liberty, or justly acquired property.
What is theft?
A violation of someone’s property.
What is murder?
A violation of someone’s life.
What is slavery?
A violation of someone’s liberty.
What is assault?
An act of aggression.
These are just a few examples, and to be sure, we cant actually enumerate all our particular rights with regard to every particular thing because we can’t foresee every possible scenario, and technological advances give us new opportunities to evaluate where rights exist in relation to those things.
For example, drones are a new technology, but does your right to fly a drone mean that you have a right to do so over my house? I would have to be able to claim a right to the space over my house. But how much space can I rightly claim and upon what basis?
That’s certainly not to say there is no answer to this question, I believe there is and one that upholds privacy, but the point is that existence of the new technology gives us reason to go back to the drawing board and establish where the boundaries of life, liberty, and property exist in just such a scenario.
Ask yourself: If Locke is right, are human rights different from women’s rights, civil rights, and religious rights? Are these derivatives of human rights? Are they unique to their respective groups, or do they simply manifest themselves in different ways?
Rights are an intrinsic part of who you are by virtue of your existing as a human.
Rights create a tension between what you can freely do and what others are obligated to do as a result.
The intrinsic nature of our rights means we have a right to life, liberty, and our justly acquired property.
It is impossible to enumerate all of our rights because technological advancement requires that we re-evaluate how we relate to technology.
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