Do We Have It Wrong about Rights?
Updated: Aug 5
There is something a bit odd, if not contradictory, about the idea that one can claim a right to do something at the risk of harming or disadvantaging another person. One person’s claim to liberty becomes another person’s burden to bear.
Yet prevalent today is this very rhetoric of right-claiming which, by insisting on the priority of an individual, creates a conflict of interests with other individuals. Is this the way rights are supposed to work?
Though it would be overly ambitious to sort out this problem in a blog, perhaps we can make some significant headway in seeing how and why our modern idea of a right is . . . well, a bit wrong.
What Is a Right?
Any scholar of jurisprudence or political philosophy will probably sigh if asked to define what a right is. This is because while there are definite historical sources that can shed light on the concept, each source has a specific context that determines its meaning.
But why begin with scholarship? Do these historical and philosophical contexts really matter for anyone but academics? Isn’t the idea of a right pretty clear to us when confronted with the violation of our liberties?
I’ll let you be the judge. Let’s consider some basic insights from scholarship that I think help illustrate our modern conundrum.
Whether looking at ancient Greek, ancient Roman, Medieval, or early modern sources on rights, one finds an interesting commonality: Understanding what a right is relies on the concept of justice. In these periods, while justice can mean many things, it tends to denote how there is an overall order of things that dictates or determines how human beings ought to act.
Many ancient Greek sources, for example, will refer to the order of the cosmos as dike; Christian theologians will refer to the intellect and will of God manifest in natural law; and the early modern theorists of law (e.g. Hugo Grotius, Samuel Pufendorf, and John Locke) will do much of the same as their Medieval predecessors, though with a few significant twists that accentuate the dominant role of individual human beings.
The important takeaway is that individual rights to do things were originally conceived as courses of action made possible only because it was in keeping with the overall order of things, which notably includes regarding and respecting others. Another way of putting this is that human liberties and freedoms were constrained by an overriding conception of orderliness and regard for others. And such constraint is not necessarily a bad thing for liberty.
Take, for example, Thomas Aquinas (1225-1274) who is somewhat well-known for his thoughts on the private ownership of things. According to Aquinas, it is in keeping with natural law for humans to own things as long as it does not deprive another of their livelihood. In general, ownership of property was arguably in keeping with God’s will and to develop our capacity to be social. Yet when ownership results in a compromise of this sociability—perhaps in terms of greed or in terms of denying someone access to something essential for life—then the right to ownership was superseded. Aquinas even concludes that what we might call theft is permissible in extreme cases where a person is deprived of the necessities of life. (For Aquinas on property and theft, see Question 66 of his Summa Theologica.)
According to this example, constraint works in at least two ways. Justice, or the order of things, constrains other people from claiming another’s property. But as well, it constrains property owners from having a perpetual and unilateral claim on their things when someone may be in need of them.
What we can learn from Aquinas is that a person has the right to act or claim ownership of something as they see fit or according to their beliefs and preferences; yet, this right is constrained when such ownership harms others.
A rendition of this appears in John Locke’s (1632-1704) proviso on land ownership. However, I think a broader proviso is in fact needed given how we often tend not to think that our actions cause others harm.
Let me offer a tentative definition of a right in this respect:
A right is a liberty or freedom of an individual to do something that takes into account the status and well-being of others.
I leave open what it would mean to take into account the status and well-being of others, not because I think it’s an empty phrase but rather because the idea of accountability will have to be filled in by one’s own community, society, or nation. Essential to this process is how we regard others as moral equals (respect) and how we might recognize and resolve those difficult situations where a right to action requires mitigation when it can hurt or harm others.
Aren’t Rights All about Me?
I would venture to say that if asked what a right is, many people would offer a shortened version of my definition that would omit the relation to others:
A right is a liberty or freedom of an individual to do something . . .
And they might add,
. . . because if I don’t have such a right, then it violates my individuality or liberty in some way.
There is much to this difference that results in being too narrow and perhaps even incoherent. Here are two points.
Firstly, it tends to fail to recognize how we rely on others to live, to succeed in our careers, and to flourish emotionally, imaginatively, and psychologically. It also fails to recognize how the efforts and accomplishment of others (both present and past) have provided us with the goods and resources to do what we do—something admirably put by Lewis Hyde in his book As Common as Air.
Let’s call this blinkered account of rights the oblivion of interests (because it forgets how our interests depend on the work of others).
A second point is made by Thomas Hobbes (1588-1679) with respect to contradiction:
But that right of all men to all things, is in effect no better than if no man had right to any thing. For there is little use and benefit of the right a man hath, when another as strong, or stronger than himself hath right to the same (Hobbes as quoted in Eleanor Curran’s essay, p. 563).
If rights are only about “me” as an individual, then that means everyone is also a “me” competing with all the other “mes” to secure and act on their respective rights. Rights in that sense come to mean nothing more than those entertained by the will of the strongest. Or to put this another way, one person’s right becomes another person’s coercion; and this creates and perpetuates an inhospitable society in which we are all trying to coerce others in order secure our respective rights.
Let’s call this blinkered account of rights the coercion of interests.
How Did We Get Here?
The story I have told—albeit a very truncated one—derives from two different traditions in the West. Sometimes these two traditions are distinguished as the Continental (European) and the English (and American). The former is based on Civil Law doctrine and the latter on Common Law doctrine.
If you entertain the idea that Europeans tend to be more community-minded than Americans, it may not be because of political ideology. (After all, I have encountered conservative views amongst European acquaintances that do care about communal relations.) Instead, it may really be down to the way a nation has been generally influenced by its legal tradition’s conception of a right.
The definition of a right that I offered above and which takes into account the welfare of others is closer to the Civil Law way of thinking. The Common Law doctrine tends to mute the relation to others by emphasizing an individual’s capacity to act without unreasonable constraint. This is often referred to by scholars as “negative liberty” since it defines individual freedom with the emphasis on the absence of coercion and constraint.
In contrast, the Civil Law framework sees how we relate to others as key to realizing individual freedom. Does this seem paradoxical?
We saw from our historical examples above how constraints to action intervene to protect others and can be both beneficial and empowering. Here’s a more recent example: Constraints on going out in public without a face mask are enabling when they limit the spread of contagion and allow for economic and social commerce to resume.
So another way of phrasing the Civil Law idea is to say that it sees the key to realizing individual freedom in protecting and developing human sociability, or our ability to co-exist and flourish with one another.
But wait! Things are not so bleak for the Common Law tradition . . . and for us!
Avoiding “a War of All Against All”
The Common Law way of thinking is not too far from its Civil brethren. It is not as if the Common Law tradition thought each individual was a self-sufficient island. Rather in caring so much about individual liberty, the “other-regarding” side of the Common Law traditions tends to be missed in how we practice and conceive of rights today.
We saw with Aquinas and a version of Locke’s proviso that being concerned about the welfare of others was not only important but unavoidable. And we saw with Hobbes that an individual-only conception of rights leads to a competition to see who can enforce their own right/will. We in effect devolve to a state of nature which he famously called “a war of all against all”.
Indeed, before getting embroiled in an argument about rights, it might be of immense help practically if we can call to mind Hobbes’ image of a war of all against all. As Gregory Kavka explains, Hobbes
defines war not in terms of actual fighting, but as a known willingness to fight. So a war of all against all is a state in which each knows that every other is willing to fight him, not one in which each is constantly fighting. But it is more than just this, for Hobbes contends that, in the state of war, there is so little security of life and property, that all live in constant fear and productive work is pointless. (p. 292)
So, let the “war of all against all” be the soothing mantra to remind us how we can be wrong about rights when we think rights are about individuals alone. Then perhaps a space of reasoning might open in which presumption ends and a provocative but nonetheless potentially illuminating question can emerge: “What do you mean by right?”
Dr Todd Mei is a public philosopher and business consultant who specializes in the areas of meaningful work, the philosophy of work, virtue ethics, and hermeneutics. He runs a podcast called Living Philosophy. Todd was formerly Assistant and Associate Professor at the University of Dundee and the University of Kent, respectively. In addition to being an academic writer, he is also the author of a short sci-fi novella called Pig Terrorism. When not immersed in reading and writing, he can be found rock climbing or windsurfing.