Do We Have It Wrong about Rights?

Updated: Aug 5, 2021

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.

Photo by Andrea De Santis on Unsplash

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.
Photo by Will H McMahan on Unsplash

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.