Unlike some of the moral theories discussed in the last chapter, everyone who is reading this primer is likely familiar with the term “rights.” For example, you might have heard of human rights, property rights, or even used phrases like “It’s my right,” in arguments of your own. While the term “right” is often deployed in legal contexts, as with documents like the Canadian Charter of Rights and Freedoms, our focus in this resource is on moral rights. Legal rights are articulated and upheld by legal codes and practices, whereas moral rights are rights that are justified or motivated by moral arguments. In some cases, these rights overlap. After all, one would hope that some legal rights became enforceable by law because there are powerful moral grounds to protect them. However, it is critical that one does not assume that just because something is enforceable by law that it is a morally justified way to act or that every moral right should be protected by law. Through studying ethics, one may come to realize that a particular moral right should be protected by law or that some laws should be scrapped or changed because they are unfair or otherwise unethical. While arguments at the intersection of ethics and law are beyond the scope of this primer, we do note the tendency for discussions of ethical, political, and legal rights to blur into each other.
So, what are rights? Rights are entitlements or enforceable claims that we make in relation to others. If one is entitled to a certain right, then other individuals or groups are obligated to protect or fulfill that right. Suppose you claim that all people have a right to potable drinking water. Such a right brings with it the responsibility for someone to ensure that any given person has access potable drinking water. In this way, rights generate strong duties that we have to each other. If we fail to respect someone’s right to something, then we commit a serious injustice to them. Some philosophers hold that rights override all other moral claims, though this is contentious. As we will see, we often face the challenge of adjudicating among competing rights claims.
13.1. Categorization of Rights
There are several key distinctions that specify different types of rights—negative versus positive rights; active versus passive rights; in rem versus in personam rights; and the distinction between rights and privileges. Identifying these different types of rights and understanding how they relate to each other not only helps one assess the character of any given rights claim but also elucidates what rights are and how they relate to the actions of rightholders and those who ought to respect, protect, and uphold rights.
Negative rights are freedoms that obligate others to not interfere with a rightholder’s actions. For example, you have a right to not be assaulted. This right obligates the rest of us to not physically strike or harm (that is, assault) you. A positive right, in contrast, is a right that entitles one to a specific good or service, obligating at least one other person to ensure one’s access to that good or service. Consider the right to clean drinking water. This right might obligate a parent to ensure that their child has water to drink or obligate a government to ensure that its citizens have access to safe drinking water. In brief, a positive right requires others to do something and a negative right requires that others not do (or forebear from doing) something.
Negative rights can be further subdivided into active and passive rights. Active rights are the rights one has to act in a way that is free from the interference of others. Conversely, passive rights are the rights one holds to not be treated in certain ways. An example of the former is the right to freedom of speech, where one has the right to voice their opinions and say what they believe without someone else silencing them. An example of a passive right is the right to not be discriminated against because of one’s cultural, racial, sexual, political, etc. identities.
Notice that active and passive rights can be in tension with each other. One’s freedom to act without interference (active) is limited by the freedom of others to not have certain things done to them (passive). So, in the above examples, one’s right to freedom of speech is limited by their duty to uphold the right of others to not be discriminated against through actions like hate speech. It is difficult to balance active negative rights with passive negative rights. Different moral theories place different emphases on which rights should override others.
Another key distinction concerns the identification of who bears the obligations to respect, fulfill, or protect a given right, which is captured by the distinction between in personam versus in rem rights. In personam rights hold against one or more specifiable persons. For example, every person has the right to a safe working environment. Because of the relationship between employer and employee, this means employees hold this right against their employers. Thus, employers have obligations to their employees to make sure their workplace is safe. On the other hand, in rem rights hold against people in general. Recall the right to not be assaulted. This right is not held against specific persons but against anyone and everyone.
Rights—claims that generate correlative duties in other persons or institutions—are contrasted with privileges (also called liberties or freedoms). To have a privilege means that a rightholder’s freedom to act (or not act) does not require that anyone has a duty to protect the rightholder’s action. Privileges are unprotected freedoms, meaning that the freedom to act how one wishes doesn’t entail corresponding duties in others. For example, if you have a driver’s license, you have the privilege to drive. No one has a duty to ensure that you have the means to drive—you are simply free to drive without placing a responsibility on anyone else to ensure that you can drive.
But, who has rights? In most philosophical and political discourses, the existence of a right means that every individual of equal moral status deserves that right. So, for instance, many philosophers would hold that, in virtue of our dignity as human beings, every non-fetal human has a claim to certain rights. (Note, many rights theorists take dignity to mean something like Kantian idea of being an end in itself, discussed above 3.8.3). However, there are others who hold that various non-human entities have rights. Most commonly, some have suggested that those non-human animals that have capacities and interests that are much the same as the morally relevant capacities and interests found in humans should share some of the same rights as humans. Here again, we see the issue of moral status. The question of who should have rights and which rights they should have is, in effect, the question of who counts morally and how we should count them. Grappling with such questions requires ethicists to go back to moral theory (such as those discussed in Part III) to tease out the underlying justification for the rights in question.
13.4. The Function of Rights in Ethical, Political, and Legal Theory
There are two approaches to the function of rights in contemporary discourse: the will theory and the interest theory. The will theory holds that rights define individuals as dignified moral agents whose status demands that their agency and autonomy be protected. Thus, the main function of rights according to the will theory is to give people control over their actions and ensure that others have a duty to act in ways that respect this autonomy. We can see here the Kantian origins of rights discourse as, in effect, rights are thought to protect the autonomy of those individuals deemed ends in themselves. Conversely, the interest theory is concerned with protecting human interests that are critical to human flourishing. Here, we might think that consequentialist and virtue theories are likely to be the most effective grounds for justifying and elucidating such claims.
While these theories overlap in some of the rights they advocate, the interest theory determines which positive rights one should have because of interests that are essential to flourishing. For example, if one believes that all humans should be free from chronic pain, then an interest theorist might claim a right to healthcare services that protect against chronic pain (like palliative care). Alternatively, a will theorist might argue that one has a right to (a level of) healthcare because healthcare is necessary to protect against threats to one’s autonomy and dignity. Both theories are subject to various difficulties and criticisms and recourse to more basic ethical theory is often required to resolve disputes.
13.5. Objections to a Rights Approach
Despite its ubiquity in moral and especially political discourse, there are a number of difficulties with a rights approach. As noted, rightholders make claims against others who have corresponding duties. However, it is often difficult to know who is obligated to ensure and protect a given right. Consider the claim that all humans have a right to clean drinking water. Whose duty is it to ensure that people in our own community or elsewhere have access to water? Do we have an obligation to our neighbours to ensure that they have potable water? Is the local or national government responsible? Or, does the international community have a responsibility to ensure that all people have access to clean water? If so, does that mean that we, as university students and professors, have a moral obligation to provide clean water to others across the world? Setting aside the practical problems of motivating people to protect the rights of strangers on the other side of the globe and the political dangers of interfering in another nation’s internal politics, the theoretical problem remains of how to determine who is obligated to protect this right.
Another difficulty of a rights approach is determining which rights are the most deserving of protection when rights conflict. As mentioned above (4.13.1), it is common for certain active rights to be limited by passive rights. However, this becomes more complicated when interest theorists and will theorists debate the various kinds of rights that ought to be respected, protected, upheld, or prioritized. Both approaches have their weaknesses. Neither has decisive replies to the problems of the other. Typically, intractable debates about competing rights require us to return to the ethical theories that ground them (such as deontology or consequentialism), reserving rights language for political discourses and legal contexts.
- Leif Wenar, "Rights", in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Spring 2021 Edition), §6.1. https://plato.stanford.edu/archives/spr2021/entries/rights. ↵