A theory of human rights — sources and hazards

Summary

Foundations for a theory of rights are explored. Absolutist and positivist perspectives present opposing positions, absolutism professing universal rights whether recognised by societies or not, and positivism professing rights to exist in arrangements made and practiced by societies. It is argued that absolutist positions — deistic and naturalistic — are conceptually flawed and potentially dangerous insofar as they foster intolerance and violence. The features of societal systems of rights include: a system of rights and their allocation; means of enforcement and revision; and a rationalizing ideology. There is a strong correlation between systems of rights and the democracy — autocracy spectrum.

A theory of human rights — sources and hazards

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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

US Declaration of Independence 1776

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

UN Universal Declaration of Human Rights 1948

Introduction

The U.S. Declaration of Independence proclaimed the ‘self-evident’ truths ‘that all men … are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ Deprivation of these Rights by the British was deemed a rationale for separation from Great Britain and the founding of a new nation and government that would protect those Rights for the governed. In 1948, the U.N. published its Universal Declaration of Human Rights, listing a range of concrete goods and services considered rights. In recent decades, it seems as if claims to rights have exploded: a right to life, health and health care, employment, a living wage, education, housing, clean air, clean water, property, social security, peace, rest and holiday, asylum from persecution, transportation, …. Is there a limit to such promises? For reasons to be discussed, some of these are not possible — such as a right to health (Hahn, Robert A; Muntaner, Carles 2020). Many are dependent on resources which may or may not be available.

This essay considers what a right might be — not to catalog the rights we may or may not have, but rather to consider what kinds of beings would and would not have rights and why, what kind of an arrangement a right is, what might be the foundation or source of rights, and how we know what rights there are? Who or what is responsible for the fulfillment of rights, for their enforcement? Are there limits to rights that can be promised? What might be meant by describing rights as ‘unalienable,’ ‘natural,’ ‘universal.’ How should proclamations such as the U.S. Declaration of Independence, the UN Universal Declaration of Human Rights … be interpreted — descriptions, prescriptions, aspirations? The essay also examines in whether the notion of rights is compatible with authoritarian, totalitarian states, benevolent or not? Or, are rights compatible only with democratic states?

A theory of rights

What kinds of entities have rights? Only entities with goals, desires, intentions.

The universe doesn’t give a damn one way or the other. It chugs along without a care, indifferent.

The pursuit and fulfillment of goals, intentions, and desires by animate and/or living entities require conditions and resources, e.g., safety and nourishment. Promises of access to these conditions and resources are the subjects of rights. The locus of rights is found only among entities in the universe that harbor goals, intentions, and desires. ‘… right-holders are creatures who have interests.’(Raz, Joseph 1986) Not all needs are provided with matching rights; rather societies select some needs that they believe merit rights — presumably rights that they can assure. Rights assist in the fulfillment of selected needs.

What is a goal, how do we know what kinds of entities have them? In the case of humans, expressed intention is a helpful, but not foolproof guide; humans deceive others and themselves, and it is possible that they have goals they are not aware of. Observed behavior, e.g., overcoming ‘obstacles’ to a hypothesised objective until the objective is achieved can also be evidence, e.g., in animals or plants. Psychologist E.C. Tolman referred to purposive behavior as ‘persistence until.’(Tolman, Edward Chace 1925) Goal-directedness is regarded as a fundamental characteristic of living entities. ‘In particular, biological systems can be described as having the essential goal of surviving (and reproducing). Hence, biological functions are dispositions that contribute to these goals.’

Though animists may disagree, it seems reasonable that beyond humans and other animals and plants, other entities are unlikely candidates for rights. However, Raz notes one other kind of entity, the ‘artificial person,’ e.g., the corporation, which may also have (or be given) rights.(Raz, Joseph 1986) Some have argued that Lake Erie has rights,(https://www.news5cleveland.com/homepage-showcase/toledo-votes-on-lake-erie-bill-of-rights-during-special-election) the earth has rights,(Guardian Nov 2, 2019), trees have or should have rights.(Stone, Christopher D 2017) But it is plausible (if cynical) that what are proposed as rights in these instances are projections of rights that foster the well-being of humans.(Stone, Christopher D 2017) There may be other intentional beings elsewhere in the universe, but we do not know of them. This analysis focuses on humans as the bearers of rights. Populations (of humans) are also said to have rights that differ from the rights of their constituents, e.g., the right to self-determination, the foundation of the Declaration of Independence.

Competing notions of the sources of rights

Conceptions of what a right is are inextricably linked with theories of their foundation and origins. Two basic and antithetical theories of the foundation and origins of rights can be distinguished. One, which might be called ‘absolutist,’ maintains that humans (and perhaps other organisms — animals and plants) have basic rights in all settings, i.e., absolutely. Even in a dictatorship in which the government explicitly denies a range of rights and punishes their exercise, the absolutist position maintains that humans have these rights; the rights exist regardless of whether they are recognised.

Two dominant versions of the absolutist position are a deistic one in which rights are endowed by spiritual entities, e.g., a God, and a natural one, in which rights are thought to exist because of the ‘nature’ of right holders, e.g., their evolutionary state or biological needs.(O’Manique, John 1990) In the absolutist position, the rights of specific kinds of being, e.g., humans, are universal, common to all beings because of their, e.g., human, nature. Heterogeneous forms of fundamentalism are absolutist; they ascribe rights and other arrangements to an undoubted foundation and generally assume alternative accounts to be false. Notions of the nature of human might be vary, and notions of natural rights may vary accordingly. If rights are essential, inherent to humanity (or other beings) — either because of human nature or divine endowment, they may also be thought to be ‘unalienable’ as well as ‘universal.’

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. (Wenar, Leif 2021)

The theory contrasting with absolutism is referred to as ‘positivist.’(Green, Leslie; Adams, Thomas 2003) While commonly applied to the foundation of a society’s laws, it applies similarly to rights and maintains that rights are arrangements that societies make and revise. Rights exist insofar as they are established, implemented, and enforced by societies. Thus, rights found in one society may differ from those found in another society and are not inherently universal. The etymology of this concept — positivist — is associated with the notion that society ‘posits’ the law and rights, rather than with the homonymous philosophy of science. While from the absolutist perspective, humans have rights whether or not a given society recognizes these rights, from the positivist perspective, in a dictatorship, a citizen may not have rights that are available in democratic societies. From the absolutist perspective, societal arrangements are tangential, if not irrelevant to the underlying existence of rights. From the positivist perspective, rights exist only when established and practiced in a society, and otherwise not. What a right is differs fundamentally in these two views.

While these positions are alternatives, they may also interact.(Green, Leslie; Adams, Thomas 2003) In the positivist perspective, a society constructs or posits its system of rights based on a theory or rationale, and that rationale may be about human nature or spiritual/divine provision. In this case, society’s members (or at least those who design and maintain the system of rights and laws) believe that their design corresponds to human nature or divine mandate. Still, in the positivist perspective, it is a society that has established this system and justified it in accordance with societal beliefs — a mythology — in this case, natural or spiritual.

Several prominent documents justifying the establishment of new states and international agencies are built on absolutist premises. The U.S. Declaration of Independence justified the proposed separation from Britain with reference to divinity and ‘unalienable,’ natural human rights; divine and natural sources were conceptualised as unified — ‘Laws of Nature and of Nature’s God.’ The French Declaration of the Rights of Man similarly justified a new state (i.e., ‘natural, inalienable and sacred rights of man’). Two more recent, internationally representative documents, the International Covenant on Civil and Political Rights (1966/1976) and the UN’s founding 1948 Universal Declaration of Human Rights (UDHR), avoiding identification with any particular religious or spiritual tradition, base their notions of rights on the concept of ‘human dignity,’ without further clarification of this notion. Rawls’ A Theory of Justice is a prescription for how rights and justice could rationally be distributed in a democratic society; despite its title, it is not a theory of justice as a social phenomenon.

Here the absolutist perspective is rejected for several reasons.

1. Contrary to the U.S. Declaration of Independence and the French Declaration of the Rights of Man, it is assumed that no deity or spiritual force has endowed the universe or any of its creatures with rights.
2. The notion of ‘human nature’ is notoriously unclear and debatable. Jeremy Bentham famously wrote that talk of natural rights was nonsense and ‘nonsense upon stilts’ (an early version of steroids.) Among others, Brown claims, ‘… the international human rights regime has been established without the employment of a coherent account of human nature.’(Brown, Chris 2013)
3. Documents such as the UN Declaration of Universal Human Rights were established by nations including colonial states whose colonies did not participate in the decisions and were thus denied the rights proclaimed.
4. The rights determined had a distinctly Western, individualistic world view orientation that is by no means universal.(Mutua, Makau Wa 2017)
5. If there were agreement on human nature, which rights would follow? Those that satisfy needs to survive — hunger, shelter? Or satisfy the needs to thrive? Love, learning, longterm care? The potential list seems endless.
6. However, more problematic than a definition of human nature and a list of needs, simply because an entity exists and may have certain needs does not imply that any other entity should be responsible for the fulfillment of those needs. What entity might have that responsibility and what force brings about an obligation? Gods do not seem to consistently meet human needs or resources for thriving, nor does nature consistently provide. This perspective lacks a mechanism linking needs and their fulfillment.

And a puzzle: If rights are given by divinity or by nature, why do societies spend such extensive resources declaring what rights there ‘are’ and ‘are not,’ revising their decisions, and institutionalizing means for the provision of rights and the sanctioning of their violation? Are these rights given and withheld in societies simply recognitions or failures to recognise the true rights established by divinity or by nature?

The hazards of the absolutist position

The absolutist position is not only mistaken, but potentially hazardous. Absolutist positions, in particular its deistic versions, are commonly associated with surety and unwavering commitment to their positions. Many religions seem to have absolutist forms. Such conviction may lead to intolerance of alternative views and those who hold them. In turn, intolerance may lead to violent efforts to block the behaviors of those who violate their principles, even to the killing of violators. History is replete with such occurrences — the Inquisition, the Crusades, other religious wars, the Nazi holocaust, 9/11, Hindu-Muslim violence in contemporary India, the killing of physicians providing abortions.

What kinds of things are ‘rights’ that an entity may have?

What does it mean to ‘have a right’ or ‘not to have a right’ in a given political system, be it democratic or authoritarian? In the U.S., before the 1954 Brown vs. Board of Education Supreme Court ruling, it was generally believed that, after the Plessy vs. Ferguson ruling of 1896, ‘separate but equal’ schooling rights for Black and White children, was legitimate — the law of the land. In 1952, 18 states required the segregated schooling of Black and White children.(Johnson, Rucker C 2011) However, the law and corresponding rights, are constantly evolving matters of interpretation. Moreover, individual judgments, such as Plessy vs. Ferguson are parts of an evolving system of laws. In the 1954 Brown vs. Board of Education case, the plaintiffs argued that the Plessy ruling and segregated schooling violated the equal protection clause of the Fourteenth Amendment of the Constitution. The Supreme Court agreed, found ‘separate’ to be inherently ‘unequal,’ and overturned the Plessy vs. Ferguson ruling. The right to unsegregated educational opportunities was thus mandated, although it has yet to be widely achieved.(Hahn, Robert A 2022) ‘Separate but equal’ was no longer legal. Racially segregated schooling was illegal. A new right had evolved.

The right to an abortion in the U.S. has evolved similarly. Prior to Roe vs. Wade (1973), the right was restricted in all states to varying degrees, e.g., by trimester. Lawyers for Roe argued that the right should be protected under a right to privacy which they attributed to the 14th Amendment. States could not longer restrict abortions in the first trimester, but could limit abortions during the second and third trimesters. Thus a right that had been restricted in various ways by states was now universally available nationwide at least in the first trimester. And, as we now know, the Supreme Court has recently withdrawn the right at the federal level. Rights do not exist in the abstract.

A right ‘is’ what is established by political regimes at any particular time.

Just because a right, e.g., free speech, does not exist in a given setting, say a totalitarian state, does not mean that subjects in the state are unable to speak freely, only that they are not allowed to speak, i.e., so that they speak freely in violation of the policies of the state. They ‘may not,’ yet they can. If they do freely speak, they may suffer sanctions mandated by the state. Similarly, if a citizen organises a rebellion against the state and wins, then a new state can be launched and rights established. Rebellion was not a right, but it can result in new rights. Rights exist only insofar as they are granted and/or enforced by societies. ‘It is hard to think of rights except as capable of exercise.’(Hart 1982, 185) Cranston 83:12–13: ‘ … a right is not an ideal.’

In a concise sentence, philosopher Leif Wenar (Wenar, Leif 2021), following Hohfeld (Hohfeld, Wesley Newcomb 1917), defines rights as ‘… entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.’ To clarify the range of phenomena under consideration, here are examples of Wenar’s forms of rights in the U.S..

The right to perform: free speech.

The right not to perform: self-incrimination.

The right to be in certain state: identifying as LGBTQ.

The right not to be in certain state: slavery.

The right that others perform an action: national defense, law enforcement.

The right that others not perform an action: arbitrary arrest.

The right that others be in certain state: sober driving, quiet after midnight.

The right that others not be in certain state: intoxication at work.

Several constraints limit the rights that can be promised by a society. For one, there cannot be a right to run a two-minute mile or to immortality. Most of us would deny that such rights are possible because they are not physically or otherwise feasible. A right to an outcome that cannot be achieved makes no sense. For this and other reasons, I have argued that health cannot be a right, though a right to equitable access to available health care resources is reasonable.(Hahn, Robert A; Muntaner, Carles 2020) Another constraint is the tolerance of society’s members to what they perceive to be unwarranted deprivations. If their circumstances are too hard — unbearable — and they see others profiting and living well, they may be motivated to rebellion. If successful, the intolerable regime of rights will be overthrown and a more tolerable one instituted. This suggests the possibility of universals in the rights developed in diverse societies — minimally acceptable standards.

Societies as the source of rights and their evolving social contracts

Diverse forms of social organization, e.g., nations, groups of nations, states within nations, institutions, clubs, etc. establish and revise systems of rights. This is key: human systems of rights, including the rationales professed to justify and explain them, are societal constructions — social arrangements. In more democratic states, rights may be established and maintained by consent and enforced by a system of justice; in authoritarian and in totalitarian regimes, to the extent that society members have rights, these rights (and the denial of desired rights) may be established and maintained by force or the threat of force. Such systems are the foundations of the organization of rights in a society.

Basic elements of a societal system of rights include:

• An ideology of the origins and source of rights, e.g., a Creator, human nature, a principle. To the extent that systems of rights are designed with specific objectives, e.g., maximizing individual freedom or what’s best for society as a whole, the success of the system in achieving these objectives is an empirical question.
• Societies may also have their own theories and values regarding how rights should be allocated, e.g., in more democratic states — utilitarian/communal theories or deontological theories. In many literate societies, systems of rights are codified in constitutions. (What is codified may have little to do with the reality of rights, e.g., the constitution of North Korea whose constitution proclaims: ‘The State shall effectively guarantee genuine democratic rights and liberties as well as the material and cultural well-being of its citizens.’ https://www.constituteproject.org/constitution/Peoples_Republic_of_Korea_1998.pdf.) Which entities within the society, e.g., the nation, states within the nation, etc., are empowered to distribute which kinds of rights to its members? (E.g., in the U.S., rights not explicitly reserved to the federal government are granted to the states. For example, states have the right to issue professional licenses, i.e., rights to practice, for lawyers, physicians, and other professions.) States may grant authority to local jurisdictions to establish rights, but they may also restrict local authorities from establishing rights by ‘preemption.’
• Societies may promote their own arrangements of duties for the fulfillment of rights, the enforcement of rights and their violation, the removal and restoration of rights (e.g., for a crime), sanctions. Who is the guarantor? Does a person have a right no matter the circumstances.

The distribution of rights is a basic metric on the democracy — autocracy spectrum. What characterises democratic societies in principal is the distribution of rights of societal control among diverse the population segment. For example, since its foundation, the U.S. has haltingly, but increasingly granted rights to racial and ethnic minority populations and to women. But restrictions remain on groups defined by other features, e.g., sexual identity and orientation, and citizenship status. In contrast, autocracies commonly restrict citizens’ rights, generally with the goal of maintaining power and accumulating resources.

As Hart noted, a society’s system of rights need not be morally reasonable or lead to justice or equity. But it also may do any of these. Autocracies often fail in this regard, but democracies may fail as well, either through poor design or by inadequate execution. Failures may lead to the evolution of systems of laws and rights, as dramatically evidenced by revolutions such as the American, the French, the Russian revolutions, and others. But autocratic coups occur as well, in which rights are often withdrawn and restricted.

Discussion

There are several conclusions: First, rights are rare in the universe and relevant only to entities that have goals; only entities with goals have needs for resources to achieve these goals — needs that may be promised by rights. Second, there are two principal opposing perspectives on the nature of rights — an absolutist view that assumes that rights are given by divinity or nature and exist whether or not provided by society, and a positivist view that assumes that rights exist only as established and supported and revised by societies. Prominent historical rights documents, such as the U.S. Declaration of Independence, take absolutist positions and provide corresponding foundational theories.

The absolutist perspective is popular, but, for many reasons, unsupportable. It may promote demands for rights, without end. Absolutist positions may also foster fundamentalism, intolerance, and violence against those with differing perspectives and behaviors.

The positivist perspective maintains that systems of rights, commonly associated with law, are established by societies which also provide foundational ideologies and systems of rights allocation and enforcement. Rights within societies may be contested and evolve over time. Access to rights is closely associated with the process of democratization.

References

1. Robert A Hahn and Carles Muntaner, ‘Why a Right to Health Makes No Sense, and What Does’, Health Equity 4, no. 1 (2020): 249–54.

2. Joseph Raz, The Morality of Freedom, (Clarendon Press, 1986).

3. Edward Chace Tolman, ‘Behaviorism and Purpose’, The Journal of Philosophy 22, no. 2 (1925): 36–41.

4. Christopher D Stone, ‘Should Trees Have Standing? — toward Legal Rights for Natural Objects’, in Environmental Rights, (Routledge, 2017).

5. John O’Manique, ‘Universal and Inalienable Rights: A Search for Foundations”(1990)’, Human Rights Quarterly 12(1990): 465.

6. . <https://plato.stanford.edu/archives/spr2021/entries/rights/>.

7. Leslie Green and Thomas Adams, ‘Legal Positivism’, (2003).

8. Chris Brown, ‘Human Rights and Human Nature’, Human rights: The hard questions (2013): 23–38.

9. Makau Wa Mutua, ‘The Ideology of Human Rights’, in International Law of Human Rights, (Routledge, 2017).

10. Rucker C Johnson, ‘Long-Run Impacts of School Desegregation & School Quality on Adult Attainments’, (National Bureau of Economic Research, 2011).

11. Robert A Hahn, ‘School Segregation Reduces Life Expectancy in the Us Black Population by 9 Years’, Health Equity 6, no. 1 (2022): 270–7.

12. Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’, The Yale Law Journal 26, no. 8 (1917): 710–70.