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No concept is more central to our moral and political thought than that of rights. We talk about our rights to life, liberty, and freedom of expression; we discuss the rights of children, animals, illegal immigrants, and prisoners of war; we wonder whether we have rights to health care, a decent wage, or physician-assisted suicide. We seem to make sense of a myriad of legal and moral rights, even as we debate their boundaries. Yet few concepts so central to our thought are more deeply puzzling. The clearest evidence for this is the persistent disagreement over the content of even the most basic rights. Is a right to a free press a basic human right? Many people around the world would deny that it is. Is there a basic or human right to health care? Who has the duty to provide it, and on what grounds? Do parents have a right to discipline their children? Do workers have a human right to ‘periodic holidays with pay,’ as one United Nations document asserted? The problem is not simply that such assertions are controversial, but that we can feel so quickly at a loss about what to say next. Clearly, the concept of rights has been debased in recent years, as rights claims have become mere attempts to give rhetorical force to strongly held preferences, but the problem also lies in some deeper puzzles about the nature and justiﬁcation of rights.
The least controversial rights are those created by laws and the shared norms of our institutions and practices, where rules allow us to coordinate and regulate our activities and to divide fairly the beneﬁts and burdens of social cooperation. Any attempt to understand the concept of rights should begin here. If Smith gives tools to Farmer in exchange for a share of the grain Farmer will produce, then Smith has a claim to the grain after the harvest, and Farmer has a duty to turn it over. It seems natural to say that Smith has a right to the grain, and laws will respect and enforce such rights.
Governments have a right to tax their citizens to provide public goods, but laws also protect citizens by creating rights against other citizens and against the government itself. Civil society is founded on the concept of property, which is nothing more than a set of practices that allocate entitlements—in other words, rights to use and exchange things of value. Many of the functions of government create rights in this sense, by establishing entitlements and enforcing agreements.
1. Origin Of The Concept
If it is possible to have a concept without having a word to denote it, as one view of rights maintains, then the idea of rights goes back to primitive societies and can be inferred from ancient texts. According to this view, any society with an institution of property understands the ideas of entitlements to use and claims against infringement, which are part of a theory of rights. Ancient laws also established other liberties and privileges. The Roman law of persons, for example, recognized diﬀerent status for diﬀerent members of society. The citizen, the resident alien, and the slave were all granted diﬀerent powers and liberties, and the law determined when these people could change or lose their status. Romans thus had (and could forfeit) various personal rights.
A diﬀerent view argues that rights did not exist until sometime in the late Middle Ages, when we ﬁrst ﬁnd a word to denote the concept (Tuck 1979). There is an important diﬀerence between the implicit, ancient understanding of practices that we regard as rights and this more explicit idea. According to this view, the ancient meaning is restricted to an objective sense of right, which refers to a state of the world. Ancient and medieval societies were dominated by ideas of the natural diﬀerences between people. If someone was properly a citizen or a slave, or later a lord or a servant, their social rank determined their powers and privileges. Their status was meant to reﬂect the objective or correct natural order of the world. The concepts that come closest to describing this objective sense of right—dikaios in Greek and vius in Latin— imply an idea of a proper natural order.
The modern notion of rights, as we might call it, developed as the idea that the natural or inherited diﬀerences in status could be justiﬁed was replaced by a belief in the fundamental moral equality of all people. Historians note that this idea of human equality was not new in the late Middle Ages. It appears in the writings of the stoics and early Christians, but these ancient philosophies did not attach much importance to earthly life. As traditional social orders began to crumble in Europe, the natural diﬀerences between people came to be seen as morally arbitrary. Justice required correcting these arbitrary diﬀerences with a more egalitarian distribution of powers and opportunities. As moral thought focused on the more worldly concerns of social and political interactions among people, the subjective idea of a right emerged, as something that belongs to individuals. Thus, where ancient and medieval philosophers would say that it is right that Smith controls some thing, modern theorists would say that Smith has a right to that thing (Dagger 1989, Tuck 1979).
Rights in the subjective sense express the moral importance of the equality of persons. They justify both the claims we make against others and the duties that arise in respect of those claims. But this idea of rights is no less puzzling than that of a natural moral order. Do rights exist? What is their content and justiﬁcation?
2. An Analysis Of Legal Rights
The Revolutions in the USA and France in the eighteenth century were fought in part as a defense of the natural and inalienable rights of humans. Liberal republics and democratic governments based on these rights were established, ﬁrst in the USA and Europe, and then elsewhere. By that time, the modern idea of rights had fully taken hold in law, morality, and political theory.
Early in the twentieth century, Wesley Hohfeld categorized legal rights in a way that has profoundly inﬂuenced subsequent moral and legal theories (Hohfeld 1923). He argued that an assertion of the form ‘Smith has a right to P’ is ambiguous and could mean any of four diﬀerent things (or some combination of them). It could mean, ﬁrst, that Smith has a privilege to do P, or that he is under no obligation not to do P. Smith’s right to ﬁnd solace walking in a public park is a privilege, or as it is sometimes called, a mere liberty. It does not imply any corresponding duties on the part of others. The fellow on roller blades who insists on circling Smith in the park, with his boom box blasting, is also exercising a privilege, even though his activity undermines Smith’s eﬀorts to ﬁnd solace. Hobbes’ claim that in the state of nature ‘every man has a right to every thing’ has been interpreted as a privilege in Hohfeld’s sense. Hobbes was asserting merely that in the state of nature a person could not be criticized as irrational for laying claim to any thing, although nobody else has a duty to provide him with any thing that he might claim (Waldron 1984).
Hohfeld’s second meaning of ‘Smith has a right to P’ is that Smith has a claim to P, which imposes corresponding duties, either positive or negative, on other people to allow or enable Smith to have P. Legal theorists following Hohfeld analyze claims further by distinguishing between rights in personam and rights in rem. This distinction has implications for the kinds of duties implied by a claim. Claim rights in personam impose duties on particular individuals. A contract is such a right. If Smith agrees to work for Miller, then when Smith completes the work, he has a claim that requires Miller to pay the agreed wage. Claim rights in rem impose duties generally on all others. Property rights are an example. If Smith owns a car, then every other person has a duty not to interfere with Smith’s use of the car. Each person’s right not to be assaulted is also a claim right in rem, which means that in respect of this right, each person imposes a duty on all other people not to harm him in certain ways. In order for such rights to seem plausible, the duties must typically be negative, i.e., duties to refrain from doing something. Unlike positive duties, the millions of negative duties we impose on each other in respect of our rights in rem do not create any unreasonable burden. We can fulﬁll all of these duties simply by minding our own business and not assaulting anybody.
Hohfeld’s two remaining categories of rights apply more speciﬁcally to legal contexts. ‘Smith has a right to P’ could mean that the law gives Smith certain powers to alter legal relationships, which do not entail corresponding duties. Smith exercises such powers, for example, when he sells or transfers property. Finally, ‘Smith has a right to P’ can mean that Smith has an immunity from certain kinds of legal change, i.e., he is protected from any or all other authorities altering his legal position. Constitutionally guaranteed privileges or inalienable rights are examples of immunities. Hobbes’ argument, that when humans enter into civil society and give up their rights to the Leviathan they nevertheless retain the right to defend their life under all circumstances, is a combination of a privilege and an immunity.
3. The Nature Of Moral Rights
That legal systems and other institutions give rise to rights is unproblematic, but rights also play a more fundamental role in moral and political theory, where they are often regarded as existing independently of and prior to social institutions. The Declaration of the Rights of Man and the Citizen in France states that ‘the end in view of every political association is the preservation of the natural and imprescriptable rights of man,’ and the Declaration of Independence in the USA asserts that all citizens have inalienable rights to life, liberty, and the pursuit of happiness. Natural rights constitute the moral basis and justiﬁcation of government and laws. They express and give meaning to the belief that all people are morally equal.
Claims to natural rights have always been controversial, however. Jeremy Bentham (1834) famously dismissed them as ‘pernicious nonsense,’ and wrote that ‘a natural right is a son that never had a father.’ The controversy is about the nature of basic moral rights and their connection to duties, as well as about the justiﬁcation of basic or natural moral rights. We will address these issues in order.
The defender of basic moral rights need not assert that all moral duties are correlated to rights. Kant, for example, discusses imperfect duties, such as the duties to be charitable or kind. No individual can claim the performance of such duties as a right, and governments may choose not to enforce them. We also have legal duties, such as a duty to pay taxes, which we are morally obliged to fulﬁll, but the performance of which no individual can claim as a right.
Whether moral rights must be correlated to duties is more controversial. Many theorists claim that they are, but Joel Feinberg (1980) has argued that moral rights may exist without any corresponding duties. Feinberg distinguishes between what he calls justiﬁable rights claims and valid rights claims. The former can exist when there are good reasons for a right to exist, even if nobody is in a position to provide what the rights-holder may claim. The idea of human dignity underlies some human rights, for example, which in Feinberg’s view justiﬁes claims that certain basic human needs should be met. But in some parts of the world today, nobody is in a position to meet those needs, so they cannot be required as a matter of duty. These rights should be interpreted as developmental goals, the fulﬁllment of which governments and other agencies must assign the highest priority. Feinberg calls such rights ‘aspirational.’
A valid right in Feinberg’s sense exists when the claim is justiﬁable and the corresponding duty can be speciﬁed and acted upon. In such cases, the right is logically prior to the corresponding duty. Thus, if Smith has a right in personam against Jones, then Jones has a duty in respect of this right. Smith’s claim creates the duty for Jones, and if Smith forfeits the right or chooses not to claim it, then unless some other party has the authority to make the claim on Smith’s behalf, Jones’ duty does not exist.
We can thus interpret moral rights as valid claims, which can be created by law or else founded on the moral belief in human equality and dignity. In order to explain rights in this way, however, we must be careful not to beg questions about the existence of rights in our understanding of claims. To claim a right is not merely to claim a truth, in the sense that to make a claim can be to assert the truth of a proposition. Claiming rights must be understood as involving a diﬀerent kind of activity, more like claiming a patent for an invention or a site for a homestead in a newly settled territory. To claim something in this sense is to perform an activity diﬀerent from asserting, which can create legal and moral consequences. To claim one’s basic rights is to demand recognition of one’s status as a moral equal, which imposes duties on others in respect of one’s claims. Thus, following Feinberg (1980), we can say that a moral right is a claim, the recognition of which is called for by laws, moral principles, or an enlightened conscience.
4. Two Views Of The Justiﬁcation Of Rights
This research paper has been describing rights by explaining their role in societies in which they are recognized. This argument might also count as a justiﬁcation of rights or an argument, so to speak, for their normative existence. But to this point the argument sidesteps one of the most puzzling aspects of rights, which is about the nature of the values they promote or express. Are rights merely means for promoting other goods and preventing evils, or do they also have intrinsic value? This question has received considerable attention in recent philosophical literature, and most attempts to answer it are controversial. The following sections will consider defenses of each position.
The ﬁrst approach argues that the value of rights is instrumental. Rights promote goods and prevent evils, the value of which can be explained without any reference to rights themselves. According to this account, rights provide people with certain social guarantees that are necessary for living happy and fulﬁlling lives. They are part of the institutional structures that give people power over their own lives and protect them from the abuses of governments or other groups.
In order for these guarantees to be eﬀective, we may have to develop the strict prohibitions against doing certain things that rights typically require. We must refrain from treating people in certain ways, not only when the consequences would clearly be bad, but also when we believe in a particular case that the act would produce the best consequences overall. This is because deciding what to do on the basis of calculating the value of our actions in each case would produce consequences that are worse than those produced by institutions that rule out such calculations.
There is much to be said for an instrumental justiﬁcation of rights. In a utilitarian theory, for example, intrinsic value is located in the aggregation of individual happiness or well-being, and rights play an important role in promoting this value. Rights that establish property and legally enforceable contracts are eﬀective ways to coordinate individual actions and foster ties of cooperation and trust. Rights that protect individual liberties give people the opportunity to promote their own happiness, which is generally a more eﬀective way of achieving happiness than trusting the task to others. Rights that protect the freedoms of conscience and expression enable people to discover important truths that are necessary for reducing suﬀering and increasing happiness. In relatively afﬂuent societies, a utilitarian might also defend positive rights to food, shelter, health care, a minimum income, and other basic needs, because the redistributive eﬀects of recognizing such rights can increase social welfare. A utilitarian would thus defend most of the rights we take for granted, as well as many that are controversial.
Critics of utilitarianism may defend many of these same rights, but they will disagree about their justification. The utilitarian justiﬁcation of rights depends on empirical assumptions that make it the case that rights are eﬀective means for promoting happiness or welfare. But these assumptions may fail to hold, or the facts may be such that violating the rights of some would produce greater happiness overall. If rights are to have a more fundamental and secure role in political and moral thought, according to these critics, then they must be justiﬁed by appealing to other, more basic values.
Ronald Dworkin (1977) argues that the fundamental requirement of any legitimate political system is that it treats all people with equal respect and concern. Equality of respect means that, except in extreme circumstances, it is wrong to require some people to sacriﬁce their interests for the greater happiness of others. Rights play an essential role in securing equality, because they restrict the individual preferences that social and political decisions may legitimately consider, thus guaranteeing to all people a measure of independence from decisions aimed at promoting social welfare or the general good.
The kind of preferences that rights aim to restrict are primarily what Dworkin calls external preferences. These are preferences about how other people should be treated or what they should be permitted to do, because of who they are, because they have interests and desires of which others disapprove, or because their suﬀering is a source of happiness to others. Dworkin argues that unless a political system disallows these external preferences, it fails to show equality of respect. Under such conditions, a utilitarian concern simply to maximize the satisfaction of individual preferences lacks political legitimacy. Rights thus have a kind of lexical priority in Dworkin’s system, which he expresses by saying that rights trump utility.
Another critic of utilitarianism, T. M. Scanlon (1977), argues that the basic values that a political system should promote must include not only what happens to people but also factors that aﬀect the ability of individuals to determine what will happen to them. People care about their ability to inﬂuence outcomes, and they want to be protected from interference or control by others. The goal of rights is to foster and protect this kind of autonomy.
If Scanlon’s view is to be distinguished from a sophisticated utilitarianism, however, then the value of autonomy must be defended as an objective good that does not depend on the strength of the preference for it among the people that live in any society. Scanlon argues that moral values must be determined not merely by an aggregation of preferences but by an ethically signiﬁcant objective notion of their importance. To value autonomy is ‘to be concerned with the conditions necessary for people to develop their own aims and interests and to make their preferences eﬀective in shaping their own lives and contributing to the formation of social policy’ (Scanlon 1977, p. 85). Rights protect people from the paternalistic interventions of others, and they ensure an acceptable distribution of control over important factors in our lives. Rights would protect religious freedom, for example, even in societies where the majority of citizens care passionately about making their religious views mandatory, while the minority who don’t share these beliefs also have tepid preferences about religion. A concern for autonomy implies that people must be free to make their own decisions about religion independently of the control of others.
James Griﬃn (1999) argues for a diﬀerent but closely related non-utilitarian justiﬁcation of rights. He appeals simply to the value of human agency. Griﬃn argues that a fundamental moral value, more important even than happiness, is the distinctly human ability to contemplate and plan a future. We deliberate, assess, and choose in ways that enable us to envision a good life and act to realize it for our self and others. This value of personhood or agency, however, rests on certain conceptual and empirical facts. One of these facts is the condition of autonomy, which Griﬃn interprets as the ability to choose a course in life free from domination or control by other forces. But the value of agency also demands that we be provided with some level of education, information, and the chance to learn what others think, so that our choices will be appropriate to our deepest interests. We must have the ability to follow the course of action we have chosen, which includes an adequate supply of material resources and capabilities, as well as protection from having our eﬀorts blocked by others. The goal of rights on Griﬃn’s account is to enable people by protecting and providing these conditions of agency. The basic right in Griﬃn’s system is thus a right to pursue happiness, which is more important than maximizing happiness itself.
These three conceptions of moral rights are nonutilitarian, because they appeal to values such as equality, autonomy, or human agency and claim that these values are more basic than happiness or wellbeing. But these theorists share with utilitarians the view that the value of rights is instrumental. Rights are part of the structure of institutions that aim to promote other basic values, and they can be overridden for the sake of promoting the values that justify rights in the ﬁrst place. For example, if rights are justiﬁed because they promote equality of respect, then we would be justiﬁed in violating equality in some instances in order to produce greater equality overall. On any of these accounts, we presumably should still violate the rights of one innocent person if this is necessary to protect the rights of ﬁve other innocent persons.
While these implications might seem acceptable to many people who view rights as morally important but not absolute, they are unacceptable to theorists who believe that rights have intrinsic value. The belief that the value of rights is intrinsic lies at the core of the second approach to justifying rights. According to this second approach, all instrumental accounts of the value of rights fail to explain the way in which rights determine how a person may or may not be treated. Rights aim to secure for each person a realm of independence, not only from the will of the majority but more generally from pursuit of the best overall result.
In order to have this kind of intrinsic value, rights do not have to be regarded as absolute (Nagel 1996). If there is a right not to be tortured, for example, it may nevertheless be the case that some evils are great enough that they would justify torturing one innocent person to prevent them. The threshold for such justiﬁcations would have to be set high, however. Torturing one person may be permitted to save a thousand lives, but it would not be permitted to save one life or to prevent two other innocent people from being tortured.
This intrinsic justiﬁcation of rights expresses requirements for how we may treat other people in a way that is relatively independent of the value of what happens to them. It tries to explain what we are prohibited from doing to others in respect of their rights, which it regards as diﬀerent from what we must try to pre ent from happening to them. Thomas Nagel, who defends this view of rights, explains that, ‘It is this qualiﬁed independence of the best overall results … that gives rights their distinctive character’ (Nagel 1996, p. 89).
Robert Nozick (1974) assumes the truth of an intrinsic account in his inﬂuential defense of natural rights. He insists that rights should be interpreted as side constraints, which mark the bounds of value- based deliberation and set limits to what we are allowed to do in pursuit of all other goals (see also Thomson 1990). But Nozick simply accepts the traditional view of natural rights and does not explain why they should have this character. Without appealing to something such as divine sanction for natural rights, however, as did many of the traditional natural rights theorists, it seems ad hoc to posit rights as ﬁrst principles of moral deliberation. It begs the question about why it would be wrong to torture one innocent person in order to prevent the torture of ﬁve others.
A diﬀerent intrinsic account, which has been defended by Alan Gewirth (1981, 1982), tries to connect the justiﬁcation of rights to the capacity for moral valuing, which human beings typically and uniquely possess. Rights express the conditions that make it possible for people to recognize and act on values, so respect for rights is necessary in order for things such as happiness or equality even to exist as moral goods. To violate a person’s rights for the sake of some other value, therefore, undermines these conditions and thus makes the actions impossible to justify. While this kind of transcendental argument has drawn much interest among philosophers (see Hart 1955), many people do not ﬁnd it convincing. If you kill one person in order to prevent ﬁve other people from being killed, you cannot then justify what you have done to the victim. But as long as the conditions necessary for him to recognize and act on moral values exist, it is not clear why a person could not comprehend why he might have to be sacriﬁced for the sake of others.
Another and currently popular intrinsic account of the value of rights appeals to our status as human beings. But rather than seeing human status as an objective moral value, this argument insists that status generates diﬀerent kinds of moral requirements. Human status is a feature of each person that allows them to claim rights and demand to be recognized and treated in certain ways. Frances Kamm (1992) interprets this status as a kind of inviolability, which she identiﬁes with the possession of rights. According to this argument, if one innocent person may be tortured in order to prevent the torture of ﬁve other innocent people, then not only have the rights of that one person been violated, but this acknowledgment of what may be done to someone undermines the inviolability of all people. Everyone’s moral status is thus compromised by such an act (see Quinn 1993, Nagel 1996).
This argument for the intrinsic value of rights resonates with Feinberg’s (1980) interpretation of rights as valid moral claims. He attempts to illustrate the signiﬁcance of rights by imagining a society that is in every other way as good as possible but does not recognize moral rights. People in this imaginary society are virtuous, caring, and may even be motivated by a sense of duty, but without rights they can only receive beneﬁcent treatment as a gift. If they fail to get what they deserve, they have no ground for complaint. What people lack in a society without rights is the capacity to claim their status as equals and to demand that these claims be recognized. Indeed, Feinberg suggests that the ability to claim rights may be necessary to having the minimal self-respect that makes a person worthy of the love and esteem of others. A society without rights may be incapable of supporting the kind of love, compassion, and sympathy that we most esteem.
The moral importance of inviolability is thus different from the objective value of not being violated, and it is expressed in terms of moral requirements, the recognition of which each person can demand from all others. If this kind of argument could be made convincing, then it would have several important implications. First, it would explain why it is wrong to violate one person’s rights, even to prevent similar violations of ﬁve other people. Second, it would explain another feature of rights that internal accounts regard as important, which is that rights imply that it is morally more important not to treat people in certain ways than it is to prevent identical harms from occurring to people. We value the reduction of harms, but rights express our idea of human dignity because they impose moral requirements that take precedence over what we value.
The justiﬁcation of rights remains a matter of controversy. The diﬃculty is to defend a theory of rights that captures most of our deepest intuitions about them without making them seem mysterious or paradoxical in the ways we have been discussing. Most philosophers would acknowledge that much work remains to be done in defending an adequate theory of rights, just as most people would acknowledge that much more important work remains to be done to secure the protection of basic human rights for most of the world’s population.
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