## 1. Categories of Rights



> 
> A right to life, a right to choose; a right to vote, to work, to
> strike; a right to one phone call, to dissolve parliament, to operate
> a forklift, to asylum, to equal treatment before the law, to feel
> proud of what one has done; a right to exist, to sentence an offender
> to death, to launch a nuclear first strike, to castle kingside, to a
> distinct genetic identity; a right to believe one's eyes, to
> pronounce the couple husband and wife, to be left alone, to go to hell
> in one's own way.
> 



We encounter assertions of rights as we encounter sounds: persistently
and in great variety. To make sense of this profusion of assertions we
can class rights together by common attributes. Rights can be
categorized, for example, according to:



> 
> 
> *Who* is alleged to have the right: Children's rights,
> animal rights, workers' rights, states' rights, the rights
> of peoples.
> 
> 
> 
> *What* *actions* or *states* or *objects*
> the asserted right pertains to: Rights of free expression, to pass
> judgment; rights of privacy, to remain silent; property rights, bodily
> rights.
> 
> 
> 
> *Why* the rightholder (allegedly) has the right: Moral rights
> are grounded in moral reasons, legal rights derive from the laws of
> the society, customary rights exist by local convention.
> 
> 
> 
> *How the asserted right can be affected* by the
> rightholder's actions: The inalienable right to life, the
> forfeitable right to liberty, and the waivable right that a promise be
> kept.
> 
> 
> 



Many of these categories have sub-categories. For instance, natural
rights are the sub-class of moral rights that humans have because of
their nature. Or again, the rights of political speech are a subclass
of the rights of free expression.



The study of particular rights is primarily an investigation into how
such categories and sub-categories overlap. There has been much
discussion, for example, of whether human rights are natural rights,
whether the right to privacy is a legal right, and whether the legal
right to life is a forfeitable right. (For the central jurisprudential
debate over the relation between legal and moral rights, see
 legal positivism,
 natural law theories, and
 the nature of law.)
 Sometimes theorists will also do analytical work on a single
subcategory: for example, Steiner (2013) questions whether inalienable
or unwaivable rights are logically possible, and Andersson (2013)
discusses who moral rightholders are.


## 2. The Analysis of Rights



Categorization sorts the profusion of rights assertions. To understand
the exact meaning of any assertion of a right, we need to understand
more precisely how rights are constructed and what they do.



An analysis of rights has two parts: a description of the internal
structure of rights (their form), and a description of what rights do
for those who hold them (their function). The Hohfeldian system for
describing the form of rights is widely accepted, although there are
scholarly quarrels about its details. Which theory gives the best
account of the function of rights has been much more contentious; we
turn to that debate in section 3.


### 2.1 The Form of Rights: The Hohfeldian Analytical System



Analysis reveals that most familiar rights, such as the right to free
expression or the right of private property, have a complex internal
structure. Such rights are ordered arrangements of basic components,
much in the same way that most molecules are ordered arrangements of
chemical elements. The four basic components of rights are known as
"the Hohfeldian incidents" after Wesley Hohfeld
(1879-1918), the American legal theorist who discovered them.
These four basic "elements" are the privilege, the claim,
the power, and the immunity. Each of these Hohfeldian incidents has a
distinctive logical form, and the incidents fit together in
characteristic ways to create complex "molecular" rights.
Once one knows the Hohfeldian system, one can analyze precisely what
any assertion of a right might mean.


#### 2.1.1 Privileges (or Liberties)



You have a right to pick up a shell that you find on the beach. This
right is a privilege:



> 
> 
> *A* has a privilege to ph *if and only if* *A*
> has no duty not to ph.
> 
> 
> 



To say that you have a right to pick up the shell is to say that you
have *no duty not* to pick it up. You will not be violating any
duty not to pick up the shell should you decide to do so. Similarly
your right to sit in an empty seat in the cinema, and your right to
paint your bedroom red, are also privileges. Privilege-rights mark out
what their bearer has no duty not to do. When US Presidents invoke
"executive privilege," they deny an assertion that they
have a duty not to withhold evidence: they assert a Hohfeldian
privilege. Similarly, a license (to drive, to perform surgery, to
kill) endows its holder with a privilege to engage in the licensed
activity. Someone with a license to drive has no duty not to operate
(specified kinds of) motor vehicles (in particular ways).



(Some writers on rights have preferred to speak of
"liberties" instead of "privileges" (e.g.,
Steiner 1994, 59-60). Others have given these two terms
different definitions (e.g., Thomson 1990, 53-55). To avoid
confusion, this entry will always use "privilege" and
never "liberty" to refer to the incident defined
above.)


#### 2.1.2 Claims



A contract between employer and employee confers on the employee a
right to be paid her wages. This right is a claim:



> 
> 
> *A* has a claim that *B* ph *if and only if*
> *B* has a duty to *A* to ph.
> 
> 
> 



The employee has a claim that the employer pays her her wages, which
means that the employer has a duty to the employee to pay those wages.
As seen in the definition and the example, every claim-right
correlates to a duty in (at least) one duty-bearer. What is
distinctive about the claim-right is that a duty-bearer's duty
is "directed at" or "owed to" the
right-holder. What explains the "direction" of directed
duties has been the subject of controversy, discussed in section
2.2.3.



Some claim-rights exist independently of voluntary actions like
signing a contract; and some claim-rights correspond to duties in more
than one agent. For example, a child's claim-right against abuse
exists independently of anyone's actions, and the child's
claim-right correlates to a duty in every other person not to abuse
him (in legal terms, the claim right is *in rem*). This example
of the child's right also illustrates how some claim-rights can
require duty-bearers to *refrain* from performing some action
(i.e., that "phi" can be a negative verb such as
"not abuse him"). Bodily rights and property rights are
paradigmatic rights with claim-rights at their core.


#### 2.1.3 Powers



Privileges and claims define what Hart called "primary
rules": rules requiring that people perform or refrain from
performing particular actions (Hart 1961). Indeed the primary rules
for all physical actions are properly analyzed as privileges and
claims. Were we to know all privileges and claims concerning physical
actions, we would know for every possible physical action whether that
action was permitted, required, or forbidden.



Two further Hohfeldian incidents define what Hart called
"secondary rules": rules that specify how agents can
introduce and change primary rules.



The Hohfeldian power is the incident that enables agents to alter
primary rules:



> 
> 
> *A* has a power *if and only if* *A* has the
> ability to alter her own or another's Hohfeldian incidents.
> 
> 
> 



A ship's captain has the power-right to order a midshipman to
scrub the deck. The captain's exercise of this power changes the
sailor's normative situation: it imposes a new duty upon the
sailor and so annuls one of the sailor's Hohfeldian privileges
(not to scrub the deck). Similarly, a promisor exercises a power-right
to create in the promisee a claim that the promisor will perform a
certain action. The promisor's exercise of her power-right to
promise creates in the promisee a claim that the promisor do what she
promised to do. Or again, a neighbor waives his claim that you not
enter his property by inviting you into his home, thus endowing you
with a corresponding privilege. Ordering, promising, waiving,
abandoning, consenting, selling, and sentencing are all examples of
acts by which a rightholder exercises a power to change his own
Hohfeldian incidents or those of another.



Powers can alter not only "first-order" privileges and
claims, but "higher-order" incidents as well (Sumner 1987,
31). An admiral, for example, has the power-right to relieve a captain
of her power-right to command a ship. Power-rights to alter the
authority of others are, as we will see, definitive of all developed
legal and political systems.


#### 2.1.4 Immunities



The fourth and final Hohfeldian incident is the immunity. When
*A* has the ability to alter *B*'s Hohfeldian
incidents, then *A* has a power. When *A* *lacks*
the ability to alter *B*'s Hohfeldian incidents, then B
has an immunity:



> 
> 
> *B* has an immunity *if and only if* *A* lacks
> the ability to alter *B*'s Hohfeldian incidents.
> 
> 
> 



The United States Congress lacks the ability within the Constitution
to impose upon American citizens a duty to kneel daily before a cross.
Since the Congress lacks a power, the citizens have an immunity. This
immunity is a core element of an American citizen's right to
religious freedom. Similarly, witnesses in court have a right not to
be ordered to incriminate themselves, and civil servants have a right
not to be dismissed when a new government comes to power. All of these
rights are immunities, corresponding to an absence of a power in some
other party to alter the rightholder's normative situation in
some way.


#### 2.1.5 Opposites and Correlatives



Hohfeld arranged the four incidents in tables of
"opposites" and "correlatives" so as to
display the logical structure of his system. In order to fill out the
tables he added some further terminology. For instance, if a person
*A* has a claim, then *A* lacks a "no-claim"
(a no-claim is the opposite of a claim). And if a person *A*
has a power, then some person *B* has a "liability"
(a liability is the correlative of a power).




|  |
| --- |
| **Opposites** |
| If *A* has  | a Claim, | then *A* lacks  | a No-claim. |
| ... | a Privilege, | ... | a Duty. |
| ... | a Power, | ... | a Disability. |
| ... | an Immunity, | ... | a Liability. |




|  |
| --- |
| **Correlatives** |
| If *A* has  | a Claim, | then some person *B* has  | a Duty. |
| ... | a Privilege, | ... | a No-claim. |
| ... | a Power, | ... | a Liability. |
| ... | an Immunity, | ... | a Disability. |


#### 2.1.6 Molecular Rights



Each of the "atomic" incidents--the privilege, claim,
power, and immunity--can be a right when it occurs in isolation.
And as mentioned above these atomic incidents also bond together in
characteristic ways to form complex rights. Following, for example, is
part of the "molecular" structure of the property right
that you have over your computer:



![](figure.jpg)
Part of the "Molecular" Structure of a Property Right




In the figure, the "first-order" rights are your legal
rights directly over your property--in this case, your computer.
The privilege on this first level entitles you to use your computer.
The claim correlates to a duty in every other person not to use your
computer.



The "second-order" rights are your legal rights concerning
the alteration of these first-order rights. You have several powers
with respect to your claim--you may waive the claim (granting
others permission to touch the computer), annul the claim (abandoning
the computer as your property), or transfer the claim (making the
computer into someone else's property). Also on the second
order, your immunity prevents others from altering your first-order
claim over your computer. Your immunity, that is, prevents others from
waiving, annulling, or transferring your claim over your computer. The
four incidents together constitute a significant portion of your
property right.



Of course all of these incidents are qualified: you have no privilege
to use your computer as a weapon, or to use your computer to hack into
someone else's machine; and your immunity may not entirely block
out the state's power of expropriation (if for example the
computer becomes evidence in a criminal case). These qualifications to
the incidents carve the contours of your property right, but they do
not affect its basic shape.



There may also be more incidents associated with ownership than shown
in the figure above. Wellman (1985, 1995) describes each right as
having a "defining core" surrounded by "associated
elements" which may be present or absent in a particular case.
Your property right, for instance, may also be protected by a
qualified third-order immunity against the government altering your
second-order rights over your property (for example, under the
"Takings Clause" of the Fifth Amendment to the US
Constitution the government cannot simply annul your right to sell a
parcel of your land).


#### 2.1.7 Active and Passive Rights



The distinction between active and passive rights (Lyons 1970) maps
neatly onto the Hohfeldian incidents. The privilege and the power are
"active" rights that concern their holders' own
actions. The claim and the immunity are "passive" rights
that regulate the actions of others. Active rights are signaled by
statements of the form "*A* has a right to ph";
while passive rights are signaled by statements of the form
"*A* has a right that *B* ph" (in both of
these formulas, "ph" is an active verb).



A naval captain has an (active) privilege-right to walk the decks and
an (active) power-right to order that the ship set sail. A player in a
chess tournament has a (passive) claim-right that his opponent not
distract him, and a professor has a (passive) immunity-right that her
university not fire her for publishing unpopular views.


#### 2.1.8 Negative and Positive Rights



A distinction between negative and positive rights is popular among
some normative theorists, especially those with a bent toward
libertarianism. The holder of a negative right is entitled to
non-interference, while the holder of a positive right is entitled to
provision of some good or service. A right against assault is a
classic example of a negative right, while a right to welfare
assistance is a prototypical positive right (Narveson 2001).



Since both negative and positive rights are passive rights, some
rights are neither negative nor positive. Privileges and powers cannot
be negative rights; and privileges, powers, and immunities cannot be
positive rights. The (privilege-) right to enter a building, and the
(power-) right to enter into a binding agreement, are neither negative
nor positive.



It is sometimes said that negative rights are easier to satisfy than
positive rights. Negative rights can be respected simply by each
person refraining from interfering with each other, while it may be
difficult or even impossible to fulfill everyone's positive
rights if the sum of people's claims outstrips the resources
available.



However, when it comes to the enforcement of rights, this difference
disappears. Funding a legal system that enforces citizens'
negative rights against assault may require more resources than
funding a welfare system that realizes citizens' positive rights
to assistance. As Holmes and Sunstein (1999, 43) put it, in the
context of citizens' rights to state enforcement, all rights are
positive. Moreover, the point is often made that the moral urgency of
securing positive rights may be just as great as the moral urgency of
securing negative rights (Shue 1996). Whatever is the justificatory
basis for ascribing rights--autonomy, need, or something
else--there might be just as strong a moral case for fulfilling a
person's right to adequate nutrition as there is for protecting
that person's right not to be assaulted.


### 2.2 The Function of Rights: The Will Theory and the Interest Theory


#### 2.2.1 Conceptual Analysis versus Definitional Stipulation



All rights can be represented by Hohfeldian diagrams, like the diagram
of the property right "molecule" above (Halpin 2017).
However, some diagrams of Hohfeldian incidents that we can construct
do not correspond to any right. To take a simple example from Hart
(1982, 191-92), your city council lacks the Hohfeldian power to
award you a pension; so by definition you have a Hohfeldian immunity
against your city council awarding you a pension. Yet it would be odd
to say that you have a right against your city council awarding you a
pension. You thus have an immunity, but not a right. Not all
(collections of) Hohfeldian incidents are rights; it is only those
(collections of) Hohfeldian incidents that have a certain
*function* (or perhaps certain *functions*) that are rights.
To take an analogy: all engagement rings are rings, but only rings
with a certain function are engagement rings. What, then, is the
function of rights?



The question of the function of rights is the question of what rights
do for those who hold them. Before discussing the two major positions
on this issue, we can survey some statements that theorists have made
that may appear to be describing which Hohfeldian incidents are
rights:


* To have a right is to have a "valid claim." (Feinberg
1970, 257)
* "In the strictest sense" all rights are claims.
(Hohfeld 1919, 36)
* "Rights are built around the claims of patients on an
agent." (Walen 2019, 58)
* "A right, in the most important sense, is the conjunction of
a [privilege] and a claim-right." (Mackie 1979, 169)
* "Rights are permissions rather than requirements. Rights
tell us what the bearer is at liberty to do." (Louden 1983,
95)
* "No one ever has a right to do something; he only has a
right that some one else shall do (or refrain from doing)
something." (Williams 1968, 125)
* "A person who says to another 'I have a right to do
it' is not saying that ... it is not wrong to do it. He is
claiming that the other has a duty not to interfere." (Raz 1994,
275)
* "A right is an established way of acting." (Martin
1993, 1)
* "It is hard to think of rights except as capable of
*exercise*." (Hart 1982, 185)
* "A right is a *power* which a creature ought to
possess." (Plamenatz 1938, 82)
* "All rights are essentially property rights." (Steiner
1994, 93)
* "Rights are themselves *property*, things we
own." (Feinberg 1973, 75)



At first, this survey might remind one the proverb of the blind men,
each of whom is feeling a different part of an elephant. However, we
should distinguish between two different aims that a theorist might
have when she makes a statement of the form "All rights are
*x*." A theorist may be *attempting to analyze*
the meaning of our ordinary concept of rights, or she may be
*stipulating a definition* of "rights" within her
own ethical, political or legal theory.



Consider, for example, Mill's famous assertion in
*Utilitarianism*:



> 
> 
> When we call anything a person's right, we mean that he has a
> valid claim on society to protect him in the possession of it, either
> by the force of law, or by that of education and opinion... To
> have a right, then, is, I conceive, to have something which society
> ought to defend me in the possession of. (Mill 1861, 54)
> 
> 
> 



As an analysis of the everyday concept of a right, Mill's
assertion would be weak. For example, for centuries many people have
asserted that God has the right to command man; yet presumably no one
who asserts such a right would commit to the idea that society ought
to defend God in the possession of the power to command. To take
another example, there seems nothing incoherent in the thought that
individuals have a right not to be protected by society; yet this
thought could not make sense on Mill's characterization of what
rights are. (On Mill, see also Hart 1982, 100-04.)



Mill's statement is better seen not as an analysis of the
everyday concept, but as a stipulative definition of the term
"right." Mill stipulates this particular definition
because the idea of "those possessive relations that are
valuable enough that it is worthwhile for society to institute
sanctions to protect them" is an idea that works well within his
larger utilitarian theory. So where Mill's statement departs
from the common understanding of rights, we should charitably read
Mill as prescribing, instead of describing, usage. Many authors'
pronouncements about rights are charitably interpreted as these kinds
of exercises in stipulation, rather than as attempts to analyze the
ordinary concept of rights.



To take an example from the scholarly literature, it is not uncommon
to encounter a general statement that all rights are (or at least
include) claim-rights (see, e.g., Raz 1986, 166, 173-75;
Steiner, 1994, 55; Kramer, Steiner and Simmonds 1999, 9-14).
These "all rights are claims" statements are better
interpreted as stipulative, rather than as analyses of common usage.
"All rights are claims" positions cannot recognize, for
example, the rights in the Hobbesian state of nature, in which each
person has unlimited privilege-rights of self-defense yet no
claim-rights against attack. Neither could an "all rights are
claims" theory recognize that the US Constitution gives Congress
the sole (power-) right to declare war. The statement that rights are
claims is prescriptive for, not descriptive of, usage.



Occasionally a theorist will say that she is presenting neither an
analysis of the ordinary concept of a right, nor merely stipulating a
new meaning for the term "right," but is rather offering
some third type of characterization. For instance, Wellman (1995, 136)
says that his narrow specification of "a right" is needed
to provide "a clearer and more revealing map of the law."
Raz (1986, 166) frames a contrasting "philosophical
definition" that, he says, "illuminates a tradition of
political and moral discourse in which different theories offer
incompatible views of what rights there are and why." Whether
there is room for such a third category of "philosophical
definition," which goes beyond both ordinary analysis and
stipulation, is contested (Wenar 2008).


#### 2.2.2 The Will Theory and the Interest Theory



There are two main theories of the function of rights: the will theory
and the interest theory. Each theory presents itself as capturing an
ordinary understanding of what rights do for those who hold them.
Which theory offers the better account of the functions of rights has
been the subject of spirited dispute, literally for ages.



Will theorists maintain that a right makes the rightholder "a
small scale sovereign" (Hart 1982, 183). More specifically, a
will theorist asserts that the function of a right is to give its
holder control over another's duty. Your property right
diagrammed in the figure above is a right, says the will theorist,
because it contains a power to waive (or annul, or transfer)
others' duties. You are the "sovereign" of your
computer, in that you may permit others to touch it or not at your
discretion. Similarly a promisee is "sovereign" over the
action of the promisor: a promisee has a right because she has the
power to waive (or annul) the promisor's duty to keep the
promise. In Hohfeldian terms, will theorists assert that every right
includes a Hohfeldian power over a claim. In colloquial terms, will
theorists believe that all rights confer control over others'
duties to act in particular ways.



Interest theorists disagree. Interest theorists maintain that the
function of a right is to further the right-holder's interests.
An owner has a right, according to the interest theorist, not because
owners have choices, but because the ownership makes owners better
off. A promisee has a right because promisees have some interest in
the performance of the promise, or (alternatively) some interest in
being able to form voluntary bonds with others. Your rights, the
interest theorist says, are the Hohfeldian incidents you have that are
good for you.



The contest between will-based and interest-based theories of the
function of rights has been waged for hundreds of years. Influential
will theorists include Kant, Savigny, Hart, Kelsen, Wellman, and
Steiner. Important interest theorists include Bentham, Ihering,
Austin, Lyons, MacCormick, Raz, and Kramer. Each theory has stronger
and weaker points as an account of what rights do for
rightholders.



The will theory captures the powerful link between rights and
normative control. To have a right is to have the ability to determine
what others may and may not do, and so to exercise authority over a
certain domain of affairs. The resonant connection between rights and
authority (the authority to control what others may do) is for will
theorists a matter of definition.



However, the will theory's account of the function of rights
struggles to explain many rights that most think there are. Within the
will theory, there can be no such thing as an unwaivable right: a
right over which its holder has no power. Yet intuitively it would
appear that unwaivable rights are some of the most important rights
that we have: consider, for example, the unwaivable right not to be
enslaved (MacCormick 1977, 197). Moreover, since the will theorist
holds that all rights confer sovereignty, she cannot acknowledge that
beings incapable of exercising sovereignty have rights. Within the
will theory, it is impossible for incompetents like infants, animals,
and comatose adults to have rights. Yet we ordinarily would not doubt
that these incompetents can have rights, for example the right not to
be tortured (MacCormick 1982, 154-66). Will theories also have
difficulties explaining bare privilege-rights (such as in the
Hobbesian state of nature), which are not rights of authority over
others.



The interest theory is more capacious than the will theory. It can
accommodate both unwaivable rights (the possession of which may be
good for their holders) and the rights of incompetents (who have
interests that rights can protect). The interest theory also taps into
the deeply plausible connection between holding rights and being
better off.



However, the interest theory is also misaligned with any ordinary
understanding of rights. We commonly accept that people can have
interests in *x* without having a right to *x*; and
contrariwise that people can have a right to *x* without having
interests sufficient to explain this. In the first category are
"third party beneficiaries" (Lyons 1994, 36-46). You
may have a powerful interest in the lottery paying out for your
spouse's winning ticket, but you have no right that the lottery
pays out to your spouse. In the second category are many of the rights
of office-holders and role-bearers (Jones 1994, 31-32; Wenar
2013b). Whatever interest a judge may have in sentencing a convict to
life in prison, the judge's interests cannot justify ascribing
to her the power to make such a dramatic change in the convict's
normative situation.



The difficulties of the interest theory have often been noted in
Raz's version, which is perhaps the most prominent. In
Raz's account, "X has a right if X can have rights, and,
other things being equal, an aspect of X's well-being (his
interest) is a sufficient reason for holding some other person(s) to
be under a duty" (Raz 1986, 166).



Yet there appear to be many rights for which the interests of the
putative right-holder are not sufficient to hold other person(s) to be
under a duty. For example, Raz himself notices that the interest of a
journalist in protecting his sources is not itself sufficient reason
to hold others to be under a duty not to pressure the journalist to
reveal his sources (Raz 1986, 179, 247-8). Raz says that it is
rather the interests of the general public in an active and
independent media that grounds the journalist's right to protect
his sources. Yet as Kamm then objects to Raz, "If the
satisfaction of the interests of others is the reason why the
journalist gets a right to have his interest protected, his interest
is *not sufficient* to give rise to the duty of noninterference
with his speech" (Kamm 2002, 485; for a defense of Raz, see
Pallikkathayil 2016).



Nor does this difficulty only affect the rights of office-holders like
journalists; Raz admits that weighty rights such as the rights of free
expression and freedom of contract are not justified solely by the
interests of the individual citizens who hold them, but also by the
ways that these rights further the common good (Raz 1995,
30-43, 131). Or again, parents may have the right to receive
child benefit payments from the state, but here only the interests of
the children, and not the interests of the parents, could be
sufficient to hold the state to be under a duty.



Raz's version of the interest theory continues to be the most
widely-cited account of the function of rights, despite such concerns
that are now commonplace in the specialist literature. Kramer's
version of the interest theory, which specifies necessary conditions
for holding a legal right, is the major contemporary alternative
(Kramer 2013, 2017).



Will theorists and interest theorists have developed their positions
with increasing technical sophistication. The issues that divide the
two camps are clearly defined, and the debates between them are often
intense (Kramer, Simmonds, and Steiner 1998, Van Duffel 2012a, Kramer
2013, McBride 2017, Frydrych 2018). The seemingly interminable debate
between these two major theories has driven some to conclude that the
debate itself rests on the mistaken premise that there is a single
concept of a right for which these theories provide rival analyses
(Van Duffel 2012b, Hayward 2013). The deadlock has encouraged other
theorists to develop alternative positions on the function of
rights.



"Demand" theories fill out the idea that, as Feinberg
(1973, 58-59) puts it, "A right is something a man can
stand on, something that can be demanded or insisted upon without
embarrassment or shame." For Darwall (2006, 18), to have a
claim-right, "includes a second-personal authority to resist,
complain, remonstrate, and perhaps use coercive measures of other
kinds, including, perhaps, to gain compensation if the right is
violated." On Skorupski's account (2010, XII.6,
XIV.2-3) rights specify what the right-holder may demand of
others, where "demand" implies the permissibility of
compelling performance or exacting compensation for non-performance.
Like the will theory, these demand theories center on the agency of
the right-holder. They do not turn on the right-holder's power
over the duty of another, so they do not share the will theory's
difficulty with unwaivable rights. They may, however, have more
difficulties in explaining power-rights. Demand theories also share
the will-theory's challenges in explaining the rights of
incompetents, and in explaining privilege-rights. 



Gilbert (2018) develops not a demand theory of rights, but a theory of
a special class of rights that she calls "demand-rights."
In her formulation, "X has a demand-right against Y if and only
if X has the standing to demand of Y that Y ph" (2018, 70).
Gilbert's paradigm of a demand-right is a promissory right: the
promisee has the standing to demand performance from the promisor,
meaning that the promisee has the authority to demand that the
promisor do what she promised to do. Gilbert explains this standing to
demand in terms of her theory of joint commitment (2013).



Other analyses of what rights do for rightholders are varied. Scanlon
(2003, 2013) defends the position that rights are constraints on the
discretion of individuals or institutions to act. Sreenivasan (2005,
2010) puts forward a "hybrid" analysis of the claim-right
that grafts the interest theory onto the will theory: here the
function of the claim-right is to endow the right-holder with the
amount of control over another's duty that advances her
interests. Wenar (2005) abandons the idea that all rights have any
single function, and sets out a "several functions" theory
on which rights perform six distinct functions. Wenar (2013b) then
sets out a "kind desire" theory of claim-rights, which
turns on what role-bearers like journalists and parents want as such,
and more generally on what beings (like humans) want qua the kinds of
beings that they are.



Scanlon's analysis is criticized in Gilbert (2004), Wenar
(2013a); Sreenivasan's and Wenar's analyses are critiqued
in Kramer and Steiner (2007), May (2012). Kramer's,
Sreenivasan's and Wenar's theories are criticized and
developed in essays by Kramer, May, Penner, Sreenivasan, McBride, and
Cruft in McBride (2017); Kramer's theory is modified in Kurki
(2018); Wenar's theory is defended in Schaab (2018).


#### 2.2.3 The Direction of a Duty



Recently, theorists have attempted to make progress on the question of
the function of rights by scrutinizing the claim-right in particular,
and by shifting attention onto the duty that corresponds to it. As
above, on the standard account what is distinctive about the
claim-right is that a duty-bearer's duty is "directed
at" or "owed to" the right-holder. (The promisor,
for example, owes a duty of performance to the promisee.) Yet what
could account for the directionality of such "directed
duties"? (May 2015)



After all, not all duties are directed to specific others. For
example, the moral duty of affluent people to give some of their
wealth to charity is not owed to any specific person. And
"directed duties" appear to have special normative
significance. The violation of any duty may be *wrong* (it may be
wrong for a rich person to give nothing to charity). But the violation
of a directed duty is more than just a wrong: it is *a wronging*
of the being to whom the duty is owed (Thompson 2004). And unlike a
mere wrong, the wronging of some being calls, *ceteris paribus*,
for apology and compensation. Cruft (2013) further argues that the
violation of any duty owed to a being is disrespectful of that being.
The question is what could possibly account for the extra significance
of the duties that have direction. (Cornell 2015 argues against the
thesis that one can wrong only those to whom one has directed
duties.)



Darwall (2012) argues that his second-personal theory of morality best
explains the relation between duty-bearer and right-holder. (Yet see
Vankieken 2019.) Cruft (2019) agrees that the directed duty-bearer is
required by the nature of her duty to conceive of the right-holder
second-personally, as "you, on whom I act." Cruft then
distinguishes natural and human rights, which are grounded largely by
the good of the right-holder, from conventional rights, which are
grounded by how they serve people or values besides the right-holder.
Cruft argues that most property rights are conventional, yet seem to
be natural in such a dangerously ideological way that we should speak
of them as not rights at all, but rather merely as involving certain
controllable duties of others.


## 3. The History of the Language of Rights



Intellectual historians have disputed the origins of rights. These
debates are sometimes framed in terms of when "the concept of a
right" emerged. Yet insofar as it is really the emergence of the
*concept* of a right that is at issue, the answer lies beyond
the competence of the intellectual historian and within the domain of
the anthropologist. Even the most primitive social order must include
rules specifying that certain individuals or groups have special
permission to perform certain actions. Moreover, even the most
rudimentary human communities must have rules specifying that some are
entitled to tell others what they must do. Such rules ascribe rights.
The genesis of the concept of a right was simultaneous with reflective
awareness of such social norms, however our forebears decided to
describe those norms.



The more productive characterization of the debate within intellectual
history concerns when a *word* (or phrase) appeared that has a
meaning close to the meaning of our modern word. This debate turns on
when in history the pre-modern "objective" sense of
"right" came also to bear our modern,
"subjective" sense of "a right."



"Right" in its older, objective sense means "what is
just" or "what is fair" (Finnis 1980, 206).
Aristotle uses *dikaion*, for example, to indicate that a
society is "rightly ordered": that it displays the correct
structure of human relationships. "Right" in this
objective sense can also be attributed to individuals. The Roman
jurist Ulpian, for instance, held that justice means rendering each
his right (*ius*). In this sense, a person's
"right" is what is due to him given his role or status.
This objective sense of "right" is not the same as our
modern idea of "a right." For instance, Ulpian noted that
the *ius* of a parricide was to be sewn into a sack of snakes
and tossed into the Tiber (Tierney 1997, 16).



There has been a long and divisive scholarly inquiry into when our
modern, subjective sense of "a right" became established
as a meaning of some word or phrase. The history is uncertain partly
because the ancient authors often used words imprecisely, and smeared
their meanings across and beyond the Hohfeldian categories. The
intellectual historians themselves have occasionally congested the
discussion by taking different features of rights as definitive of the
modern concept. Moreover, the scholarly debate has sometimes accepted
over-optimistic assumptions about the sharpness of conceptual
boundaries.



Nevertheless, two broad trends in the scholarly discussions have
emerged. The first is to push the origins of a term indicating a
modern, subjective sense of "a right" back further into
history: from Locke to Hobbes to Grotius in the seventeenth century,
then to Gerson in the fifteenth century, then to Ockham in the
fourteenth, perhaps even to Gratian in the twelfth (Brett 1997,
Tierney 1997, Siedentop 2014, Lisska and Tierney 2015). Donohue (2010)
even argues that *ius* is used in a subjective sense throughout
the works of the classical Roman jurists in the first century BCE to
the third century CE.



The second and related trend has been to establish that terms
referring to active rights (what we would call privilege-rights and
power-rights) predate terms referring to passive rights (what we would
call claim-rights and immunity-rights). It appears that the earliest
medieval debates using recognizably modern rights-language, for
instance, concerned topics such as whether the pope has a (power-)
right to rule an earthly empire, and whether the poor have a
(privilege-) right to take what they need from the surplus of the
rich.


## 4. Rights and Freedom



Most rights entitle their holders to freedom in some sense; indeed
holding a right can entail that one is free in one or more of a
variety of senses. In the most general terms, the active
incidents--the privilege and the power--entitle their
holders to *freedom to* act in certain ways. The passive
incidents--the claim and the immunity--often entitle their
holders to *freedom from* undesirable actions or states.



We can be more specific. A single privilege-right makes its holder
"free to" in the sense of non-forbiddenness. A spy with a
security clearance, for instance, may have a privilege-right that
means she is free to enter a highly classified facility of her own
government. One can be free in this non-forbidden way without having
the physical ability to do what one is free to do. The spy, for
instance, still has "no duty not" to enter the classified
facility even when she is languishing in a distant foreign prison. The
actions that one is free to do in this sense may or may not be
physically possible for one at the moment, but at least they are not
disallowed by the relevant norms.



Someone who has a pair of privilege rights--no duty to perform
the action, no duty not to perform the action--is free in an
additional sense of having discretion over whether to perform the
action or not. For example, you may be free to join a protest march,
or not, as you like. This dual non-forbiddenness again does not imply
physical ability. A rightholder may be permitted to perform or not
perform some action, but this still does not mean that she is capable
of performing the action that she is free to perform.



In contrast, the holder of a power-right does have an ability. This is
the *normative* ability to exercise authority in a certain way
(Sumner 1987, 28). This normative ability confers freedom in a
different sense. A judge is free to sentence a convicted criminal to
prison. The judge is not merely allowed to sentence the prisoner: her
power-right gives her the ability--that is, the
authority--to do so. Her (power-) right makes her free to
sentence in a way that non-judges are not free to sentence.



As for the passive rights, many claim-rights entitle their holders to
be free from the physical interference or surveillance of others.
Other claim-rights entitle their holders to be free from undesirable
conditions like hunger or fear. Immunity-rights parallel claim-rights
one level up. Immunity-rights make their holders free from the
authority of others, and so entitle their holders to be free from
conditions like tyranny or exploitation.



A legal system can be seen as a distribution of all of these varieties
of freedom. Any legal system will set out rules specifying who is free
to act in which ways, and who should be free from which unwanted
actions and conditions. A developed legal system will also determine
who has the authority (and so who is free) to interpret and enforce
these rules.



More generally, any political constitution can be seen as a
multi-leveled structure of rights that distributes authority over
rules of conduct in a distinctive way. A democratic constitution, for
example, may give voters the power to elect legislators, who have
certain powers to enact laws, which the judiciary has certain powers
to interpret, and the police have certain powers to enforce, leaving
certain courses of conduct open as legal for citizens to pursue. The
facts about who should be free to do what within any legal or
political system, as well as the facts about who should be free from
which actions and conditions, can be represented as complex, layered
structures of rights--exponentially more complex than in the
diagram of the property right above.


## 5. Rights and Reasons


### 5.1 Rights as Trumps



Though there are disputes over the function of rights and the history
of rights language, most agree that rights have special normative
force. The reasons that rights provide are particularly powerful or
weighty reasons, which override reasons of other sorts.
Dworkin's metaphor is of rights as "trumps" (Dworkin
1984). Rights permit their holders to act in certain ways, or give
reasons to treat their holders in certain ways or permit their holders
to act in certain ways, even if some social aim would be served by
doing otherwise. As Mill wrote of the trumping power of the right to
free expression: "If all mankind minus one were of one opinion,
mankind would be no more justified in silencing that one person than
he, if he had the power, would be in silencing mankind" (Mill
1859, 20).



How rights become imbued with this special normative force is a matter
of ongoing scholarly inquiry. As Sreenivasan (2010) notes, a
Hohfeldian claim-right in itself only entails the existence of a duty
with a certain structure, and not a duty with a certain force.
*A* has a claim against *B if and only if B* has a duty
to *A*: in this definition it is the "direction" of
*B*'s duty (that it is owed to *A*) which
correlates *B*'s duty to *A*'s right;
nothing is said in the definition about the duty's strength. Why
"directed duties"--as above, those owed to an
entity--have greater normative priority remains an open question:
the only broad consensus is that they do. (See Thompson 2004 on
"bipolar" judgments.)



Dworkin's metaphor suggests that rights trump non-right
objectives, such as increasing national wealth. What of the priority
of one right with respect to another? We can keep to the trumps
metaphor while recognizing that some rights have a higher priority
than others. Within the trump suit, a jack still beats a seven or a
three. Your right of way at a flashing yellow light has priority over
the right of way of the driver facing a flashing red; and the right of
way of an ambulance with sirens on trumps you both.



This metaphor of trumps leads naturally to the question of whether
there is any right that has priority to absolutely all other normative
considerations: whether there is an "ace of rights."
Gewirth (1981) asserts that there is at least one such absolute right:
the right of all persons not to be made the victim of a homicidal
project. For such a right to be absolute, it would have to trump every
other consideration whatsoever: other rights, economic efficiency,
saving lives, everything. Not all would agree with Gewirth that even
this very powerful right overrides every conceivable normative
concern. Some would think it might be justifiable to infringe even
this right were this somehow necessary, for example, to prevent the
deaths of a great many people. If it is permissible to kill one in
order to save a billion, then not even Gewirth's right is
absolute.


### 5.2 Conflicts of Rights?



Most theorists would agree that *A*'s claim-right gives
*B* what Raz (1975, 35-48) calls an exclusionary reason:
a second-order reason not to act on some first-order reason.
Dworkin's trumping metaphor makes it tempting to characterize
the normative force of rights in the stronger terms of
*conclusive* reasons. We could indeed attempt to define the
Hohfeldian incidents in these terms. *A*'s having a
claim-right that *B* ph would imply that *B* has a
conclusive reason to ph, and *A*'s having a
privilege-right to ph would imply that *A* has no conclusive
reason not to ph. Powers and immunities would then determine the
ways in which agents were and were not able to alter the patterns of
conclusive reasons in the world.



Were we to go this route, we would need to temper the
"conclusiveness" of the conclusive reasons implied by
rights assertions to accommodate the facts that some rights have
priority to others, and that few if any rights outweigh absolutely all
non-right considerations in all circumstances. If we associate rights
with conclusive reasons, then for at least most rights these reasons
can only be conclusive with respect to some but not all competing
considerations.



This line of thought can be developed by saying that the reasons
associated with rights are conclusive *within the area covered by
the right*, but are not conclusive outside of that area. Each
right trumps competing considerations in most circumstances, but there
are certain circumstances in which another right with higher
priority--or a pressing non-right consideration--determines
what may or should be done. From this perspective, the conclusive
reasons implied by rights assertions really are conclusive, but only
within certain circumstances. Every right is absolute, within a
precisely delimited space. (Contrast this position with
Gewirth's defense of a single, unqualified absolute right.)



The theoretical position at the end of this line of thought is called
"specificationism" (Shafer-Landau 1995, Oberdiek 2008).
The specificationist holds that each right is defined by an elaborate
set of qualifications that specify when it does and when it does not
apply: a set of qualifications that define the right's
"space."



The test of specificationism is how convincingly it can explain what
occurs when rights appear to conflict. Rights do often appear to
conflict (Sinnott-Armstrong 1996; Kamm 2007, 262-301). For example, on
a certain day it may seem that the public's right to protest is
conflicting with the government's right to keep order on public
property. When confronted with a case like this one, we will judge
that one or the other (say, the public's) right should prevail.
However, we do not believe that one of these rights is always stronger
than the other. Given different circumstances, our judgment might
favor the other (in this case, the government's) right. When
rights appear to conflict like this, the usefulness of the image of
rights as trumps begins to dim. Both of these rights are trump cards,
yet it does not appear that one right always trumps the other.



A specificationist will attempt to dispel any appearance of conflict
of rights. For example, a specificationist will say that what is
colloquially referred to as "the public's right to
protest" is actually, on closer examination, "the
public's right to protest, unless the protest would cause
serious risk to life or property, or would lead to the spread of a
deadly disease, or..." Similarly, the government's
right should really be specified more fully as the right: "to
control what happens on public property, but not to the extent of
stopping peaceful protest, unless the protest would lead to the spread
of deadly disease, but not..." On the specificationist
view, rights never do conflict in the sense of overlapping in a given
case. Rather, rights fit together like pieces in a jigsaw puzzle, so
that in each circumstance there is only one right which determines
what is permitted, forbidden or required. Every right is absolute
within its own area, but the area in which each right prevails is
elaborately gerrymandered. Rights never conflict: they are always, to
use Steiner's phrase, "compossible" (Steiner
1994).



Feinberg (1980, 221-51) and Thomson (1990, 82-104) object
to this specificationist view of rights. First, fully specified rights
would be unknowable: no one could set out all of the qualifications
that define even the simplest right. Second, rights so understood lose
their explanatory force: for the specificationist rights can only be
the conclusions, not the premises, of arguments concerning which side
in any dispute should prevail. Third, specificationists cannot explain
the "moral residue" of a "defeated" right. For
instance, consider a case in which your property right in the pie
cooling on your window sill conflicts with John's right to do
what he must do to keep from starving. John's right may prevail
in this case: John may have a right to eat your pie. Still, after John
rightfully eats your pie he should apologize to you, and compensate
you if he can.



Thomson alleges that specificationists cannot explain the requirements
that John apologizes to and compensates you, since on the
specificationist view there is no right of yours that he has violated
when he consumes your food. Thomson prefers the view that there really
are conflicts of rights, and suggests that we should speak of a
"defeated" right as being permissibly
"infringed" (instead of "violated"), leaving
residual obligations on the infringer. Frederick (2014) chases down
some specificationist replies to these objections, and concludes that
although moral rights are strong moral considerations, they are only
*pro tanto*. Liberto (2014) develops a more sophisticated
specificationist position, which is critiqued by Montague (2015).
Mullins (forthcoming) offers a logical framework of practical reasoning that
claims to capture the dynamics of the debate over specification.


### 5.3 Support among Rights



Philosophers have discussed not only how rights can conflict, but how
they sometimes support one another. For example, Henry Shue has argued
that both rights of security and rights of subsistence are
"basic rights" because they are indispensable for the full
enjoyment of all other rights--while other rights are non-basic
because they are not indispensable for the enjoyment of these two. If
the enjoyment or realization of a controversial right is an important
precondition for the enjoyment of an uncontroversial right, one can
defend the controversial right by documenting its strong supporting
role. Such a "linkage argument" is used by Shue to defend
the right to subsistence as a basic right, and by Sen to defend rights
to democracy and freedom of the press as supportive of the right to
adequate nutrition in developing countries (Shue 1996, Sen 1999).
Shue's and Sen's assertions have been criticized as
exaggerated (Nickel 2008, Myhvold-Hanssen 2003 (in the Other Internet
Resources)).



Nickel (2008, 2010, 2016) develops a sophisticated typology of
supporting relations between rights (see also Gilabert 2010). One
right strongly supports another when it is logically or practically
inconsistent to endorse the implementation of the second right without
endorsing the simultaneous implementation of the first. For example,
the right to bodily security strongly supports the right to freedom of
assembly. One right weakly supports another when it is useful but not
essential to it. The right to education, for example, weakly supports
the right to a fair trial. Nickel argues that the strength of
supporting relations between rights varies with quality of
implementation. Poorly implemented rights provide little support to
other rights, while ones that are more effectively implemented tend to
provide greater support to other rights. The right to due process
supports the right to equal treatment for members of different racial
and ethnic groups--but the support will be soft if the right to
due process is only weakly implemented.



Rights that weakly support each other are interdependent. Rights that
strongly support each other are indivisible. Beginning with the 1968
Proclamation of Tehran, the United Nations has promoted the idea that
"Since human rights and fundamental freedoms are indivisible,
the full realization of civil and political rights without the
enjoyment of economic, social and cultural rights is impossible"
(see Whelan 2010). Nickel holds that this indivisibility thesis
exaggerates the density and strength of supporting relations among
human rights. He allows, however, that many supporting relations exist
between rights--particularly under high-quality
implementation--and endorses the use of linkage arguments when
indispensability can be shown.


### 5.4 Rights to Do Wrong



Are there rights to do wrong? Many have thought so. Waldron (1993, 63)
gives the example of antiwar protesters organizing a rowdy
demonstration near a Remembrance Day service; Wellman (1997, 33)
offers the illustration of edging into a checkout line with a full
cart, just ahead of a tired woman carrying triplets. The puzzle is how
the positive normative force of "a right" can exist so
close to an opposed negative normative pole, "wrong." In
Hohfeldian terms, how can there be a right (no duty not) to do what it
is wrong (duty not) to do? (Similar questions arise about "the
abuse of rights" (Schauer 1984).)



There are two main readings of rights to do wrong. The first reading
characterizes most rights as furthering the holder's autonomy.
Rights entitle their holders to make choices, and as Waldron (1993)
says the importance of a person's having choices would be
diminished if she were forced to do the right thing. Even though the
person has no (privilege-) right to perform an action that is wrong,
it would nevertheless violate an important (claim-) right of hers for
others to compel her not to do that thing. To take the speech example,
we respect the autonomy of speakers when we allow them to speak
unmolested--even when they do wrong by expressing themselves in
disrespectful ways. (For a defense of this reading against objections
from Galston and George, see Herstein 2012. On the existence and value
of legal rights to do legal wrongs, see Herstein 2013.)



The second reading of rights to do wrong sees them as involving a
mid-sentence shift in domains of reasons. There is no mystery, after
all, in having a *legal right* to do something *morally*
wrong. The potential for a legal right to do a moral wrong arises from
the fact that the domains of legal and moral reasons are not perfectly
overlapped. One has a legal privilege to edge in front of the tired
mother in the check-out line, but this is something that one has a
moral duty not to do. Similarly, one might have a moral privilege to
do what one has no customary privilege to do (a moral right to do a
customary wrong), and so on. Each domain of reasons is distinct, and
however conclusive are the reasons that any particular
rights-assertion implies, these are only reasons within a single
domain of reasons (moral, or legal, or customary). Osiel (2019)
examines the sociology of stigmatization that encourages individuals
and states not to exercise their legal rights in ways that violate
moral norms.



A related question concerns how it can come to be permissible to treat
A in certain ways that would, but for the actions or situation of A,
be wrong. For example, it is wrong purposefully to impose a hardship
on another person, unless that person has acted in a way that merits
punishment. Wellman (2017) makes a close study of how it can be
permissible to punish, concluding that the best explanation is that
the wrongdoer has *forfeited* her right against hard treatment. A
separate line of scholarship running through work by Thomson, McMahan,
Otsuka, Frowe, and Lazar debates how it can be permissible to attack
innocents during war (see Walen 2019, 2-8).


### 5.5 Rights to Believe, Feel, and Want



Moral rights, legal rights, and customary rights all define domains of
rights within the realm of *rights of conduct*: rights
concerning how agents may and should *act*. When our reasons
within these three different domains conflict, we may have reasons of
different kinds to act in different ways. Yet there are also rights
entirely beyond the realm of conduct. These are rights to
*believe*, to *feel* and to *want*. For example,
the prime minister asserts that he had a right to believe what his
advisors told him. The artist says she has a right to feel angry at
her critics. The frustrated suburbanite complains he has a right to
want more out of life.



The realm of rights of rights to believe, to feel, and to want are the
realms of *epistemic*, of *affective*, and of
*conative* rights. Together with the realm of rights of
conduct, these are the four realms of rights. Each of these four
realms of rights defines a separate conceptual space: there are no
epistemic rights to act, and no affective rights to believe. What is
distinctive about the three realms of rights beyond the rights of
conduct is that they seem only to contain only privilege-rights (Wenar
2003). One may, for example, have a privilege-right to believe what
one's eyes tell one, and a privilege-right to feel proud of what
one has done. It is interesting to consider why these epistemic,
affective, and conative realms contain no claims, powers, or
immunities.



Philosophers have long been interested in epistemic rights in
particular (Altschul 2010 (Other Internet Resources), Graham and
Pedersen 2012), though there is also skepticism about this category
(Glick 2010). William James, for instance, calls *The Will to
Believe*, "an essay in justification of faith, a defense of
our right to adopt a believing attitude in religious matters, in spite
of the fact that our merely logical intellect may not have been
coerced." James's "radical" conclusion in the
essay is that "we have the right to believe at our own risk any
hypothesis that is live enough to tempt our will" (James 1897,
2, 29). Similarly, the deepest questions in Kant's philosophy
are framed in terms of rights. In the *Critique of Pure
Reason*, the Transcendental Deduction of the Categories aims to
prove the validity of the employment of the concepts of pure
understanding. In the *Critique of Practical Reason*, the
Deduction of Freedom aims to demonstrate our entitlement to regard
ourselves as free. In both Deductions, the central question is
a *quaestio iuris*: "By what right?" Kant's
questions are: By what right do we employ the categories; and by what
right do we think of ourselves as free?


## 6. Three Approaches to the Justification of Rights



There are two leading philosophical approaches to explaining which
fundamental rights of conduct there are, and why these rights should
be respected. These two approaches are broadly identifiable as
deontological and consequentialist. Status theories hold that human
beings have attributes that make it fitting to ascribe certain rights
to them, and make respect for these rights appropriate. Instrumental
theories hold that respect for particular rights is a means for
bringing about some optimal distribution of advantages. Each approach
has characteristic strengths and weaknesses; the long-running contest
between them is ongoing.



Quinn (1993, 170) sketches a modern status theory this way:



> 
> 
> A person is constituted by his body and his mind. They are parts or
> aspects of him. For that very reason, it is fitting that he have
> primary say over what may be done to them--not because such an
> arrangement best promotes overall human welfare, but because any
> arrangement that denied him that say would be a grave indignity. In
> giving him this authority, morality recognizes his existence as an
> individual with ends of his own--an independent *being*.
> Since that is what he is, he deserves this recognition.
> 
> 
> 



Quinn claims that there is some attribute of the person--here,
being "an individual with ends of his own"--that
merits recognition from others. The recognition that is due to each
individual can be accorded to that individual by respecting his
fundamental rights.



Quinn contrasts his status approach to rights with one that ascribes
rights "because such an arrangement best promotes overall human
welfare." His target is consequentialist theories of rights, the
paradigm of which are utilitarian theories. We met such a utilitarian
theory of rights above in John Stuart Mill's conceptualization
of rights as "something which society ought to defend me in the
possession of." Mill believed that society ought to defend the
individual in possession of her rights because doing so would bring
about the greatest utility summed across the members of that society.
For Mill, as for other instrumental theorists, rights are a tool for
producing an optimal distribution of interests across some group.



The two approaches differ sharply over the role of consequences in the
justification of ascribing rights. Status theorists hold that rights
should be respected because it is fitting to do so, and not because of
the good consequences that will flow from so doing. By contrast,
within an instrumental theory good consequences are the justification
for promulgating and enforcing rights. As Quinn (1993, 173) says about
the status approach:



> 
> 
> It is not that we think it fitting to ascribe rights because we think
> it is a good thing that rights be respected. Rather we think respect
> for rights a good thing precisely because we think people actually
> have them--and... that they have them because it is fitting
> that they should.
> 
> 
> 



Within a status approach, rights are not means for the promotion of
good consequences. They are rather, in Nozick's phrase, *side
constraints* on the pursuit of good consequences (Nozick 1974,
29). A status approach frowns on any rights violation, even for the
sake of maximizing the non-violation of rights overall (as in a
"utilitarianism of rights"). Such an approach emphasizes
the "agent-relative" reasons that each person has to avoid
violating the rights of others.



A status-based justification thus begins with the nature of the
rightholder and arrives immediately at the right. The instrumental
approach starts with the desired consequences (like maximum utility)
and works backward to see which rights-ascriptions will produce those
consequences.


### 6.1 Status-Based Rights



Status theories belong to the tradition of natural rights theories.
All natural rights theories fix upon features that humans have by
their nature, which make respect for certain rights appropriate. The
theories differ over precisely which attributes of humans give rise to
rights, although non-religious theories tend to fix upon the same
sorts of attributes described in more or less metaphysical or
moralized terms: free will, rationality, autonomy, or the ability to
regulate one's life in accordance with one's chosen
conception of the good life. Natural rights theorists agree that human
reason can grasp the fact that it is appropriate to treat beings with
such attributes in certain ways, although they disagree on whether
such facts are self-evident.



Natural rights theory reached its high point in the early modern era,
in the work of Grotius, Hobbes, Pufendorf, and especially Locke. Locke
argued that men have rights to "life, liberty, and estate"
in a pre-political state of nature, and that these natural rights put
limits on the legitimate authority of the state. Locke's
influence can be seen in the revolutionary American and French
political documents of the eighteenth century, and especially in
Jefferson's Declaration of Independence (1776): "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."



The revival of status theory within contemporary philosophy began with
Nozick's *Anarchy State and Utopia* (1974). While Nozick
does acknowledge a debt to Locke's theory of property, his work
belongs within the Kantian tradition of natural rights theorizing.
Nozick centers his explanation of the moral force of individual rights
on the Kantian imperative against treating humanity merely as a means
to an end. Each person's rights impose side-constraints on
others' pursuit of their goals, Nozick says, because each person
possesses an inviolability that all others must respect.
"Individuals have rights," he wrote, "and there are
things no person or group may do to them (without violating their
rights)" (Nozick 1974, ix).



Many find this approach of grounding of rights in individual dignity
appealing. There is a directness and clarity to status explanations of
fundamental rights. For example, Kamm (2007, 247) explains the right
of free expression as follows:



> 
> 
> The right to speak may simply be the only appropriate way to treat
> people with minds of their own and the capacity to use means to
> express it... Not recognizing a person's option of speaking is
> to fail to respect him... To say that any given person is not entitled
> to the strong right to free speech is... a way of saying that certain
> crucial features of human nature are not sufficient to generate the
> right in anyone. And this seems to be a mistake.
> 
> 
> 



Moreover, status-based rights are attractively robust. While the
justifications of instrumental rights are always contingent on
calculations concerning consequences, status-based rights are anchored
firmly in individual dignity. This makes it easy to explain why
status-based rights are strong, almost unqualified rights, and this is
a position which many believe properly expresses the great value of
each person.



However, the strength of status-based rights can also be seen as a
weakness of the theory. One does not wish to be carried from the great
importance of each individual to the implausible position that all
fundamental rights are absolute. As Nagel (2002, 36) allows while
defending a status view, "there are evils great enough so that
one would be justified in murdering or torturing an innocent person to
prevent them." Consequences, if bad enough, do justify the
qualification of individual rights, which leaves the status theorist
needing to explain how a theory which rejects consequences so
resolutely at the outset can concede their importance later on.



Moreover, the simplicity of the status approach to rights can also
appear to be a liability. On close examination, the fundamental rights
that most people believe in are intricately "shaped." For
example, consider the widely-accepted right to free expression. This
right includes the right to make damning personal attacks on others.
Yet the right is much more permissive about attacking public figures
than it is about assailing private citizens. How could a status
approach explain this distinction between public figures and private
citizens? Or again: the right to free speech sometimes contains a
right to say what the speaker knows to be untrue. Yet we tend to be
more tolerant of deceitful speech in political campaigns than we are
of deceitful speech in advertising or in the courtroom. It is an open
question whether status theory has the conceptual resources to explain
why individual rights should be shaped in these specific ways.



Status theory also faces the challenge of vindicating its foundations
and its scope. Why after all is it "fitting" to ascribe
individuals rights? The Kantian value of inviolability can look
puzzling when presented independently of a metaphysical grounding. As
Nagel (2002, 34) admits, "it has proven extremely difficult to
account for such a basic, individualized value such that it becomes
morally intelligible." This is a quiet echo of Bentham's
protest that the doctrine of natural rights "is from beginning
to end so much flat assertion: it lays down as a fundamental and
inviolable principle whatever is in dispute" (Bentham 1796, 66).
Cruft (2010, 451) has attempted to deepen the theory of the
non-instrumental value of basic rights, by showing that such rights
are constitutive of "relationships that bind all humans together
in fellowship as members of a shared-proto-community."



Even so, status theorists must also resolve an internal debate over
exactly which rights should be thought to express an
individual's inviolability. Nozick holds that status-based
rights include rights to whatever property one has acquired, while
other status theorists reject the "right libertarianism"
to which Nozick's position leads. The resolution of this debate
became more urgent when a group of neo-Kantian and neo-Lockean
"left libertarian" theorists have advanced the view that
the status of individuals requires that each be accorded strong rights
to self-ownership, and also initially equal shares of
"world-ownership" (Vallentyne and Steiner 2000, Otsuka
2003). Status theories also need to pay particular attention to the
rights that society should enforce in cases of widespread
non-compliance with "ideal" rights (Quong and Stone
2015).


### 6.2 Instrumental Rights



Instrumental theories see rights as instruments for achieving an
optimal distribution of advantages. The archetypal instrumental theory
is some form of two-level consequentialism, such as rule
utilitarianism. Within such a theory, rights are rules the general
observance of which will lead to an optimal distribution of
advantages. In rule utilitarianism, the optimal distribution is the
one that contains the greatest aggregate utility.



The most common objection to grounding rights in such a theory is that
the resulting rights will be too flimsy. If rights are justified only
insofar as they generate good consequences, it may seem that the
theory will need to prune its rights, perhaps severely, whenever
maximum utility lies elsewhere. Why is it not a rule in a two-level
system, for example, that one should frame an innocent man if this
would prevent a major riot? Why should it not be a rule that one
should "violate" the right of an innocent not to be killed
if this would prevent the killings of two innocents elsewhere? While
status-based rights can appear to be too strong, instrumental rights
can appear to be too weak. (See Pettit 1988 for a
counter-argument.)



Weak rights are a problem for utilitarianism because its focus on
maximization makes it indifferent to certain facts about how utility
is distributed across individuals. However, utilitarianism is not the
only kind of instrumental theory. 



For example, a pure egalitarian theory will portray rights as
instruments for achieving a more equal distribution of advantages. A
prioritarian theory will define an optimal distribution in a manner
similar to egalitarianism, except that it will give extra weight to
the interests of those worse off. Other instrumental theories
characterize "optimal distribution" in other ways (Sumner
1987, 171). Instrumental theories that do not define an optimal
distribution in terms of maximization may face less pressure than
utilitarianism does from concerns about weak rights (Scanlon
1977).



Instrumental theories differ over how they define what counts as an
optimal distribution (maximization, equality, etc.). They also differ
in how they measure individual advantage. For instance, a
utilitarian's metric is utility, Sen works with a metric of
capabilities, Dworkin with resources, and so on.



Whatever metric they use, all instrumental theorists will have to
address longstanding questions about the commensurability and
interpersonal comparison of interests. Since instrumental theorists
work with overall evaluations of how well off individuals would be
were certain rights ascribed, they must explain how distinct
categories of interests (e.g., health, income, opportunities for
self-expression, social recognition) trade off against one another.
They must also explain why they believe that these interests are
similar enough across persons that it makes sense to use the same
scales of measurement for different persons (Griffin 1989).



Status theories are subject to the objection that they lack the
conceptual resources to explain why the rights we believe in are
intricately "shaped" to accommodate the particularities of
different contexts and different rightholders. Instrumental theories
are vulnerable to the mirror-image objection. An instrumental theorist
can appeal to any number of distinct interests, which are at stake for
any number of differently-situated individuals, to explain why a
certain right should be held only by certain persons or only in
certain circumstances. The danger for such a theorist is that the
wealth of normative resources at her command will permit the
ascription of whatever rights she favors. The theorist begins with the
rights that she wants to justify, then gives a "just so"
story in terms of an optimal distribution of interests that leads to
exactly those rights (Tushnet 1984, Frey 1985). Moreover all
instrumental justifications rely on empirical predictions concerning
which ascriptions of rights would produce which consequences, and
there will typically be enough slack in these empirical predictions
for instrumental theorists to fudge their derivations in order to
reach the desired rights.



Both status theories and instrumental theories of rights have held a
perennial attraction. Because of this, many have been tempted to
search for a hybrid approach that would combine what is plausible in
each (e.g., Sen, 1982).


### 6.3 Contractual and Justificatory Rights



A third approach to the justification of rights might be called
"contractual." Here rights are characterized neither as
naturally fitting for independent beings nor as tools to promote the
best state of affairs. Rather, rights define principles that would be
chosen by properly situated and motivated agents agreeing to the basic
terms of their relations (e.g., principles chosen in Rawls's
original position, or principles within Scanlon's contractualism
that no one could reasonably reject). The fact that these principles
would be agreed to under the specified conditions is their
justification.



The rights that define fundamental principles within these theories
are phrased in terms of what the theories' agents have strong
reason to want. So, for example, Rawls states that the role of a
citizen's right of personal property "is to allow a
sufficient material basis for a sense of personal independence and
self-respect, both of which are essential for the development and
exercise of the two moral powers" (Rawls 1993, 298). And Scanlon
says that reasonable individuals "have reason to insist ... on
basic rights, which give them important forms of protection and
control over their own lives" (Scanlon 2003, 4).



Forst (2012, 2014, 2016) combines critical and contractualist theory
into a sophisticated account of rights. Beginning with a status-based
fundamental right to justification, he shows how suitably idealized
demands for justification from individuals subordinated within real
relations of power can ground specific rights to relief from and
redress for actual injustices. Forst's framework shows the
enduring theoretical appeal and practical potential of the Kantian
tradition of understanding rights.


## 7. Critiques of Rights



Critiques of rights come in two forms. The first is an attack on the
substance of doctrines that give rights a central place. These
critiques allege that the content of such doctrines is, in one way or
other, malformed or unjustified. Here we find, for example, the
criticism that natural rights doctrines are "so much flat
assertion," or that utilitarian rights tend to be implausibly
weak. The second form of critique attacks the language of rights
itself. The objection here is that it is inappropriate or
counterproductive to express at least some kinds of normative concerns
in terms of rights. We should, according to the second form of
critique, reduce or avoid "rights talk."


### 7.1 Critiques of Rights Doctrine



Marx attacked the substance of the revolutionary eighteenth century
American and French political documents that proclaimed the
fundamental "rights of man": liberty, equality, security,
property, and the free exercise of religion. Marx objected that these
alleged rights derive from a false conception of the human individual
as unrelated to others, as having interests can be defined without
reference to others, and as always potentially in conflict with
others. The rights-bearing individual is an "isolated
monad... withdrawn behind his private interests and whims and
separated from the community" (Marx 1844, 146).



The right of property, Marx asserted, exemplifies the isolating and
anti-social character of these alleged rights of man. On the one hand,
the right of property is the right to keep others at a distance: the
legal equivalent of a barbed wire fence. On the other hand, the right
of property allows an owner to transfer his resources at his own
pleasure and for his own gain, without regard even for the desperate
need for those resources elsewhere.



Similarly, Marx held that the much-celebrated individual right to
liberty reinforces selfishness. Those who are ascribed the right to do
what they wish so long as they do not hurt others will perpetuate a
culture of egoistic obsession. As for equality, the achievement of
equal rights in a liberal state merely distracts people from noticing
that their equality is purely formal: a society with formally equal
rights will continue to be divided by huge inequalities in economic
and political power. Finally, these so-called "natural"
rights are in fact not natural to humans at all. They are simply the
defining elements of the rules of the modern mode of production,
perfectly suited to fit each individual into the capitalist
machine.



Communitarians (Taylor, Walzer, MacIntyre, Sandel) sound several of
the same themes in their criticisms of contemporary liberal and
libertarian theories. The communitarians object that humans are not,
as such theories assume, "antecedently individuated."
Nozick's "state of nature" theorizing, for example,
errs in presuming that individuals outside of a stable, state-governed
social order will develop the autonomous capacities that make them
deserving of rights. Nor should we attempt, as in Rawls's
original position, to base an argument for rights on what individuals
would choose in abstraction from their particular identities and
community attachments. There is no way to establish a substantive
political theory on what all rational agents want in the abstract.
Rather, theorists should look at the particular social contexts in
which real people live their lives, and to the meanings that specific
goods carry within different cultures. This communitarian critique
continues by accusing liberal and libertarian theories of being
falsely universalistic, in insisting that all societies should bend
themselves to fit within a standard-sized grid of rights. Insofar as
we should admit rights into our understanding of the world at all,
communitarians say, we should see them as part of ongoing practices of
social self-interpretation and negotiation-- and so as rules that
can vary significantly between cultures.



These kinds of criticisms have been discussed in detail (e.g., Gutmann
1985, Waldron 1987b, Mulhall and Swift 1992). Their validity turns on
weighty issues in moral and political theory. What can be said here is
that a common theme in most of these criticisms--that prominent
rights doctrines are in some way excessively individualistic or
"atomistic"--need not cut against any theory merely
because it uses the *language* of rights. Ignatieff (2003, 67)
errs, for example, when he charges that "rights language cannot
be parsed or translated into a nonindividualistic, communitarian
framework. It presumes moral individualism and is nonsensical outside
that assumption."



As we saw above, the language of rights is able to accommodate
rightholders who are individuals as such, but also individuals
considered as members of groups, as well as groups themselves, states,
peoples, and so on. Indeed the non-individualistic potential of
rights-language is more than a formal possibility. The doctrine of
international human rights--the modern cousin of eighteenth
century natural rights theory--ascribes several significant
rights to groups. The international Convention against Genocide, for
example, forbids actions intending to destroy any national, ethnic,
racial or religious group; and both of the human rights Covenants
ascribe to peoples the right to self-determination. Such examples show
that the language of rights is not individualistic in its essence.


### 7.2 Critiques of the Language of Rights



The language of rights can resist the charge that it is necessarily
complicit with individualism. However, critics have accused rights
talk of impeding social progress:



> 
> 
> Our rights talk, in its absoluteness promotes unrealistic
> expectations, heightens social conflict, and inhibits dialogue that
> might lead toward consensus, accommodation, or at least the discovery
> of common ground. In its silence concerning responsibilities, it seems
> to condone acceptance of the benefits of living in a democratic social
> welfare state, without accepting the corresponding personal and civic
> obligations.... In its insularity, it shuts out potentially
> important aids to the process of self-correcting learning. All of
> these traits promote mere assertion over reason-giving.
> 
> 
> 



Glendon (1991, 14) here draws out some of the detrimental practical
consequences of the connection between rights and conclusive reasons
that we saw above. Since rights assertions suggest conclusive reasons,
people can be tempted to assert rights when they want to end a
discussion instead of continuing it. One plays a right as a trump card
when one has run out of arguments. Similarly, the ready availability
of rights language may lead parties initially at odds with each other
toward confrontation instead of negotiation, as each side escalates an
arms-race of rights assertions that can only be resolved by a superior
authority like a court. One line of feminist theory has picked up on
this line of criticism, identifying the peremptory and rigidifying
discourse of rights with the confrontational masculine
"voice" (Gilligan 1993).



It is not inevitable that these unfortunate tendencies will afflict
those who make use of the language of rights. As we have seen, it may
be plausible to hold that each right is "absolute" only
within an elaborately gerrymandered area. And it may be possible to
produce deep theories to justify why one has the rights that one
asserts. However, it is plausible that the actual use of rights talk
does have the propensities that Glendon suggests. It seems no accident
that America, "the land of rights," is also the land of
litigation.



Another deleterious consequence of rights talk that Glendon picks out
is its tendency to move the moral focus toward persons as
rightholders, instead of toward persons as bearers of
responsibilities. This critique is developed by O'Neill (1996,
127-53; 2002, 27-34). A focus on rightholders steers moral
reasoning toward the perspective of recipience, instead of toward the
traditional active ethical questions of what one ought to do and how
one ought to live. Rights talk also leads those who use it to neglect
important virtues such as courage and beneficence, which are duties to
which no rights correspond. Finally, the use of rights language
encourages people to make impractical demands, since one can assert a
right without attending to the desirability or even the possibility of
burdening others with the corresponding obligations.



Criticisms such as O'Neill's do not target the language of
rights as a whole. They aim squarely at the passive rights, and
especially at claim-rights, instead of at the active privileges and
powers. Nevertheless, it is again plausible that the spread of rights
talk has encouraged the tendencies that these criticisms suggest. The
modern discourse of rights is characteristically deployed by those who
see themselves or others as potential recipients, entitled to insist
on certain benefits or protections.



Describing fundamental norms in terms of rights has benefits as well
as dangers (Schneider 1986, Ackerly 2013). The language of rights can
give precise expression to elaborate structures of freedom and
authority. When embodied in particular doctrines, such as in the
international human rights documents, the language of rights can
express in accessible terms the standards for minimally acceptable
treatment that individuals can demand from those with power over them.
Rights are also associated with historical movements for greater
liberty and equality, so assertions of rights in pursuit of justice
can carry a resonance that other appeals lack. Whether these benefits
of using rights language overbalance the hazards remains a live
question in moral, political, and legal theory.