The problem highlighted in my last post appears to have been one of terminology. Read these three tweets by Penn Julliette:
It seems clear Penn isn’t trying to suggest people should go to jail or be sued for looking at leaked material. It also seems clear Penn doesn’t know what a “right” is. Rights are a matter of legality. What he’s trying to discuss is morality. It’s important to keep these things separate so people know what each other are saying.
It’s also important to know just what a “right” is. That’s what I’m going to discuss today.
The first thing I’m going to discuss are the many different types of “rights” that exist. In the process, I’m going to explain why the current terminology is bad. I’ll then offer a simpler approach.
There are several key distinctions used in discussions of rights. The first is the distinction between a “natural right” and a “legal right.” Natural rights are sometimes called moral rights, but people try to avoid that because “moral rights” is a specific term in copyright law (which I won’t discuss, but can be seen here). The concept of them is expressed in the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
There are two key components to a natural right. First, they do not stem from any legal system; they are intrinsic to all people. Second, they are inalienable. Inalienable means they can never be lost or given up. They are things everyone possesses, no matter what. Both of these components are absent from legal rights as rights granted by a legal system can obviously be taken away by a legal system.
The next key distinction in any discussion of rights is that between “negative rights” and “positive rights.” Negative rights are rights to be free of obligations. Your right not to be censored is a negative right because you are not obligated to keep quiet. Positive rights are the opposite, being things you are entitled to. Things often listed as positive rights are the right to a lawyer when arrested and the right to an education.
Another distinction isn’t always recognized. This distinction is between “claim rights” and “liberty rights.” The difference is best demonstrated by this classic quote by John Finch:
your right to swing your arm leaves off where my right not to have my nose struck begins.
The right to swing one’s arm is a liberty right. It is a freedom you have. The right not to have your nose struck is a claim right. It is a duty imposed upon others.
That gives us six different types of “rights.” That may not seem bad, but you can combine each of these. You can have a natural positive claim right. You can have a legal negative liberty right. It gets convoluted very quickly. That’s especially true since other types of rights have been added in with no real respect for the previous classifications. One such culprit is “human rights.” President Barack Obama said last year:
Advancing democracy and respect for human rights is central to our foreign policy. It is what our history and our values demand, but it’s also profoundly in our interests. That is why the United States remains firmly committed to promoting freedom, opportunity and prosperity everywhere. We stand proudly for the rights of women, the LGBT community and ethnic minorities. We defend the freedom for all people to worship as they choose, and we champion open government and civil society, freedom of assembly and a free press.
We support these rights and freedoms with a wide range of tools, because history shows that nations that respect the rights of all their citizens are more just, more prosperous and more secure.
This is a good sentiment. However, it raises a number of concerns. Saying “history and our values demand” a respect for human rights implies such a respect is not an inherent requirement. That’s true. Because they’re based upon societal values, human rights are not legal rights. They also aren’t natural rights because they come from society, not nature.
Not only is that confusing, anything which stems from society can change over time and location. The idea that rights can change from place to place or time to time isn’t surprising. What is surprising is humans rights are said to be inalienable. You can never lose inalienable rights, but you could have an inalienable human right yesterday that you won’t have tomorrow.
Confusing, right? There’s an argument to be made that human rights shouldn’t be considered in the philosophical discussions of rights at all. The phrase seems to be a political catch phrase used and abused just to make people feel good. Maybe I’m wrong about that though. Either way, you need to know it’s out there.
Now that we’ve looked at the major types of “rights,” let’s consider what Penn said. He said he doesn’t have a moral right to look at leaked nude pictures. As we saw above, natural (moral) rights are inherent, inalienable rights all people have. I guess the right to look at leaked nude pictures may not rank in the same category as life and liberty.
That’s not what Penn was getting at though. Penn was getting at the idea he feels it is wrong, morally, to look at those pictures. That has next to nothing to do with natural rights. It has next to nothing to do with any rights. Morality isn’t addressed with rights. No matter how confusing the terminology may be, morality just doesn’t come into play.
Speaking of confusing terminology, it is now time for me to propose a simpler approach. I doubt I’m the first person to come up with this. I just want to get it out there for people to consider.
We begin by saying we have the natural rights to do whatever we want. This gives us complete and total freedom. Our natural rights are not inalienable though. We can choose to give them up. In order to form society, we do. We give up certain natural rights in order to create a legal system.
Any legal system necessarily places restrictions upon the people. These restrictions are duties people accept in exchange for the shared sacrifice of rights. There are no new rights created by the legal system. This means there is no such thing as “legal rights” as described above. Some natural rights may get called “legal rights,” for convenience, but they’re still just natural rights that haven’t been sacrificed.
And that’s all there is. You have an infinite number of rights to do anything you can think of. You give up some of those rights so you can join society. The rights you give up become duties placed upon you. Those duties can range from obligations about how you behave in public to what percent of your income you give up the right to.
It’s simple. The only thing missing from it is the idea of inalienable rights. I’m not sure we need such rights. I don’t know that a person should be prohibited from giving up any or all of his rights. The idea easy to address though. If we want to say there are inalienable rights, all we have to do is pick out the natural rights we want to be inalienable and label them, “inalienable rights.”
We don’t need two dozen different types of “rights.” Everything can be broken down into just two or three different categories.