We have seen over the past few posts that while the idea of individual rights is not just a modern invention, it also is far from a universal one. Rights are not obvious or commonsensical. Contra the American Declaration of Independence, they are not self-evident.
Rather, rights need reasons. If one wants to get to the truth of the matter (and not merely to achieve an expedient political deal), it is never good enough to say something should be done for, or not done to, a person “because he has a right to it”. The right itself requires a justification. Sometimes one’s interlocutor already agrees that the person has this right, but in many cases – the most important cases – they do not in fact agree.
This point is easy to lose sight of, perhaps especially in the contemporary United States where the opposing political sides rarely speak to each other. Each side insists it is defending rights: the employee’s right to contraception, Hobby Lobby‘s right to refuse to provide contraception on religious grounds, the fetus’s right to life, the woman’s right to an abortion. But what is in question here – assuming we acknowledge the existence of rights in the first place – is who has which rights. And then we need to provide reasons.
On Leif Wenar’s modern definition, a right is an entitlement. Historically, when William of Ockham articulated a concept of rights that would get increasingly taken up in the years following, it was a potesta licitas: a legal power, a power of licence. Key to a right is an entitlement or licence that implies an obligation of others to respect it.
But who grants the licence, the entitlement, the permission? Note first that these concepts – permission, licence, entitlement, obligation – are all legal concepts, and that is no coincidence. In nearly every European language except English, the word for rights is the word for law. There are no rights without law; the idea of rights implies some sort of law that grants them.
What kind of law? The first answer is the commonsense kind we are most familiar with: the system of rules and punishments (and sometimes rewards) set up by human beings and their governing bodies. But the point of speaking of human rights, of universal rights, even of civil or equal rights is to go beyond existing human law: to say that even where the particular existing state does not recognize a right to freedom of speech or the vote or equal treatment, people still in some sense have that right and it should be recognized, whatever “the law” in the usual sense might say.
So these higher kinds of rights, if they exist, are permissions granted by some higher kind of law. But what kind? This is what we usually don’t specify, and that is where we go wrong. In the late medieval era, there were two kinds of law (ius) specified: natural law, a law derived from nature, and positive law, law posited directly by God’s commands. So we could infer rights either from the natural order or from scripture. To monotheists like Jacques Maritain, one of these sources may be sufficient – though the argument for rights must still be made to other Christians (like MacIntyre) who do not believe that rights follow from natural law or divine command.
But to those of us who are not monotheists, the law that makes rights is not a God-given one. What then is it? Is it a non-theistic natural law, rooted in human nature? Is it a moral law of some other kind? Or are law and rights just convenient ways of expressing other, more fundamental kinds of moral and political reasoning?
Wenar helpfully divides possible reasons for rights into instrumental theories and status theories. For instrumental theories, respect for rights is justified because it serves some larger end, independent of rights; if it could somehow be demonstrated that rights did not serve that end, then we would not need them. The normal example of an instrumental theory is rule-utilitarianism, as is put forth in the works of John Stuart Mill: if people treat respect for rights as a rule, that will lead to the greatest overall happiness. I have myself advocated the kinds of freedoms often protected by catalogues of rights, in the name of a somewhat different end – an Aristotelian telos, the ability to fulfill one’s purpose (which, I argued, requires that one have the leeway to discover what that purpose is).
For status theories, on the other hand, people’s rights are in some sense ends in themselves; we should respect and protect their rights irrespective of other goals served by doing so. Wenar says that status theories “belong to the tradition of natural rights theories”, which is not quite accurate. Ockham’s formulation of rights is very much about positive rather than natural rights – rights that are posited by a voluntary decision rather than through a reading of nature, but God’s decision rather than humans’. Ockham’s formulation makes for a status theory through divine command: God has told us that there are rights, and therefore there are rights. I do not know whether Ockham’s formulation has significant numbers of adherents today. One might imagine some of them among American fundamentalists, who believe fervently both in divine command as the source of all good, and in the rights protected by the American Constitution. (I would argue that their scripturalism itself has its roots in Ockham via Luther, but that is a topic for another day.)
Formulations of rights based on nature – especially human nature – are more widespread, however. Many thinkers after Ockham (such as Francisco Suàrez and Francisco de Vitoria) developed a concept of natural rights amid Catholic natural law: subjective (individual) rights are part of the divinely ordained natural order of things, a dharma inferrable from the world. This point is important given Alasdair MacIntyre’s criticism of rights: some prominent thinkers defended rights on the grounds of the same Thomist tradition in which MacIntyre situates his own reasoning.
Kant, too, gives us a theory that could at least arguably be classified as a theory of natural rights or law. It might not appear so at first glance, because Kant does not speak much of rights and specifically argues morality must be separated from nature – it must be derived from pure reason. Yet nature does matter for Kant’s ethics, in the form of what he calls “practical anthropology”. Kantian morality is by and for rational beings – reason is what allows them both to be moral agents themselves and to be deserving of moral respect – and so he needs to be able to establish the conditions under which human beings are rational beings. (A newborn baby or a human in a vegetative coma surely does not count.) And it is a logical consequence of this rational status, for Kant, that some of our capacities must be respected and not infringed by others. So when Wenar says “All natural rights theories fix upon features that humans have by their nature, and which make respect for certain rights appropriate”, Kant’s thought counts by this definition.
This is probably not an exhaustive list of reasons for rights. (Wenar lists John Rawls’s theory as one that does not fall neatly into instrumental or status categories.) And while I think some of these kinds of reasons are better than others, I certainly don’t have space here to arbitrate between them; that becomes part of a much longer constructive discussion of ethical and political theory. The point is, there are deeper reasons that can be provided for the existence of supposed rights – can be, and need to be. Without some such reason (whether of the instrumental or status variety), rights are nothing. It is not that rights as such are a fiction akin to witches and unicorns – but one must provide a good underlying reason to believe in any given right’s existence, or one has no more justification to believe in that right than in witches and unicorns.