Rights

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.

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4 comments

  1. ==?> “It also seems clear Penn doesn’t know what a “right” is.”

    Yes. That’s clear. Penn doesn’t know what a right is. He has no idea, It’s mind-boggling. What he says doesn’t make sense.

    ==> “Rights are a matter of legality.

    Indeed, whenever someone speaks of a “right,” they are speaking of legality. Well, except that a “right” is often used to reference a moral (not legal) entitlement. But except for that, which of course happens often, whenever someone speaks of a “right’ they are speaking of morality. Except when they aren’t. Which happens a lot. But other than that, Brandon is absolutely correct.

    ==> ” It’s important to keep these things separate so people know what each other are saying.”

    Brandon, if that’s the case then why are you conflating the two. Penn was speaking of a moral right. You conflated that to be speaking of a legal right. You conflated them, so it seems to me that you should be more careful to separate the two “things.”

    But I have to say, that was on spectacular Gish Gallop in defense of your mistake of conflating moral and legal rights.

  2. Commenting to both Joshua and Brandon:

    I agree essentially completely with Brandon on this. Having served the United States for over 20 years in the military I gave this matter frequent serious consideration and I still do. When a person shouts “I know my rights!” I am nearly certain he does not.

    There is not and cannot be any such thing as a *binding* moral right. In your mind, your moral rights are whatever you want them to be, and in mine, they are whatever I want them to be. This is why Brandon writes “You have an infinite number of rights to do anything you can think of.”

    Indeed — rights come into existence the instant anyone thinks of it. The problem then becomes persuading enough other people, and the right people (in power), that you do in fact have a right that causes someone else to defer to your right and not perform theirs.

    Consider a “right to an education”. That is what Brandon calls a “claim right” because you demand service from someone else — while offering absolutely nothing in return.

    Essentially all of the United Nations “rights” are claim rights that necessary compel other humans to your service. Needless to say, people who give little but expect to receive love it.

    The United States, on the other hand, was founded with no claim rights, no demand on other people; only some *limitations* on what government could do and of course some limitations on what citizens could do (like not printing their own money).

    Moral rights require an authority of morality. Human rights require an authority, a sovereign. The equal rights clause of the Declaration of Independence depends entirely on the moral authority of the “Creator”. Remove the creator and suddenly you no longer have moral authority.

    One of the intelligence tests I give others (which essentially all fail) is to explain where the right of taxation comes from. If I do not have the authority, legal or moral, to come to your house and demand money, for which I *might* have done something in your interest even if you didn’t ask for it, or maybe I didn’t; that’s extortion. If I sieze your property because you refused this extortion that is theft and you’d be within your natural rights to resist.

    If I came to your house with my buddy, the two of us still don’t have a “right” to your property.

    If I came with ten thousand I still don’t have a “right” to your property.

    So what is the number that makes it right? The answer, IMO, is that it isn’t right, it is *expedient*. At some point the needs of society outweigh your convenience whether it is right or not.

    Suppose you claimed all of North America as your property when Leifur Eiriksson arrived with Vikings (from Greenland, which in turn had been settled by his father Eirik Rauthi, Eric the Red, emigrated from Iceland). He being a respectful man says, “Okay, you own North America, we’ll go back to Greenland.” The concept seems absurd. No man can own all of North America. It is more likely he said, “Here we are, push us off if you can” which it appears eventually happened.

    So what can you “own”? I suggest that a natural right exists to own your shelter and such as is needed for life itself. How much that is depends on where you are. But your natural right cannot infringe on anyone else’s natural right to the same thing, so there’s shuffling and negotiation where you sell a portion of your rights and more importantly establish a division of labor:

    Rather than everyone having to hunt, farm and do everyting individually, society can divide the labor for efficiency. Do all the living in higher density towns and cities, and the farming where farming is best done. This efficiency allows for a dramatic increase in the number of humans per square mile but it also clouds the issue of what exactly is your “right”.

    In the end, “might makes right” is the final judge.

  3. By way of illustration, let us compare a few nations.

    Can you obligate your descendants to a contract you enter? In Japan, the answer is yes, in the United States, the answer is no.

    It is cultural and what is cultural obtains the force of law, sooner or later, by one means or another.

    I feel no guilt over what others did 200 years ago. I *might* feel a touch of embarassment if my own ancestors did something particular heinous but what is that to me? They did what they do, I do what I do. I recognize that a name might be held for honor or dishonor; if my surname was “Hitler” I would certainly change it simply because so many people DO consider honor, dishonor and contract to flow through family lines.

  4. Michael 2, I disagree on a minor (but significant) point:

    Indeed — rights come into existence the instant anyone thinks of it.

    I think rights exist as a concept independent of anyone’s thought, meaning all rights exist whether or not anyone has ever thought of them. That doesn’t change your point though.

    One of the intelligence tests I give others (which essentially all fail) is to explain where the right of taxation comes from.

    So what is the number that makes it right? The answer, IMO, is that it isn’t right, it is *expedient*. At some point the needs of society outweigh your convenience whether it is right or not.

    This goes to a point which has bothered me for as long as I can remember. The issue can be generalized beyond taxation. It applies to all laws in any society. Societies form via social contracts, agreements between people about what can and cannot be done. That is (or at least can be) fair. There is nothing wrong with people entering agreements of their own volition.

    However, such agreements require continuity which can only be achieved by imposing social contracts upon anyone who enters that society. People who enter that society voluntarily (such as immigrants) can be expected to agree to the social contract as part of their decision to enter society.

    People who had no choice (e.g. children) cannot be. Because they had no choice about entering the society, they had no choice about agreeing to that society’s rules. They did not agree to any social contract. They had a contract imposed upon them. They were, effectively, made slaves of a society they had no say in.

    Once we consider inter-generational ethics, the inevitable conclusion is all society is founded upon stripping rights of people against their will, which is wrong. Therefore, society is built upon injustice. We can dress it up with whatever trappings we want, but as you say:

    In the end, “might makes right” is the final judge.

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