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? Continue reading →