We often hear loose talk about rights, be they civil, individual or communal. Yet often missing from this discussion is a real understanding of exactly what rights are and where they come from. As such, we are beginning a new series looking at all elements of rights, ranging from the historical, the present and even what we would like to see them be in the future. Today, we will begin our series on rights with a look at what rights are and where they come from.
What Are Rights?
Rights in modern usage refer to ‘entitlements to perform or not perform certain actions, or to be or not be in certain states; or entitlements that others perform or not perform certain actions or be or not be in certain states’ (Stanford Encyclopedia of Philosophy, 2020). In other words, rights are the normative standards in a community that set limits to what can and cannot be done. This implies that rights are somehow binding on the society in which they are recognised. Yet, in practice, this does not appear to be the case with the impressions of what actually constitutes a given right differing in the interpretations of every individual and every age.
Natural Rights vs. Artificial Rights
Perhaps this confusion to do with rights stems from their uncertain foundation. After all, by what power do rights exist in the first place? Many different thinkers have offered their views on this, with the diversity of views tending to coalesce around rights being, in their first expression, natural or artificial. Natural rights are rights granted by the nature of the universe, God or by the nature of man, or in other words, they are innate and inalienable, belonging to each person by virtue of their personhood alone. In contrast, artificial rights are rights granted by society, i.e. legal, moral, customary, etc. These man-made rights are not inherent to the person but are possessed because of the individual’s status (legal or otherwise) and are held by the bequest of their society.
The intrinsic differences in the assumed origins of rights — i.e. if they are natural or man-made — cuts to the core of the argument as to what constitutes a right as well as indicating what (if any) limits should be placed on their use. Proponents of the natural rights theory tend to feel that any limitation placed on a supposed right is an intolerable imposition on their natural freedom. At the same time, those who see rights as a human-made invention tend to be more open to the restriction of rights for the supposed common good. Both sides make good arguments, so where does the truth lie?
If rights could be found to come from nature, then they could be ascribed to stand of a firm foundation. While if they are innovations of humanity, then they are invariably delicate things that may be swept away by the changing fashions of the times. Therefore, it would be best to seek to answer if there are any attributes that humanity holds in common that can be clearly ascribed to nature and termed as rights.
Are There Natural Rights?
As always, we can only judge the world from where we stand and with the limited understanding we possess. Yet, as we have long espoused that all beings have an equality of value from the universal perspective, it would be contradictory to ascribe a right to humans that cannot be possessed by all other beings. Thus, we must ask not what the rights of man are but rather what the rights of living beings are more generally.
If we look at the common attributes of living beings, one impulse is so ubiquitous as to be universal. That impulse is the instinct for self-preservation. It is undeniable that all life possesses this impulse in some form, be they single-celled organisms or human beings. I would suggest that the universality of this impulse implies the existence of a prototypical right related to the pursuit of a being’s continued existence.
This prototypical right is, in Hohfeldian terms, that each being has the absolute natural privilege to seek after their continued existence and conversely has no duty to refrain from any act that promotes this aim no matter the consequences on other beings. Consequentially, no being has a claim on any other being to refrain from acting in a way that promotes its own continued existence. Nor do they have a claim on any other being to assist them in surviving. I.e. in the state of nature, it is as correct for me to kill a wolf, sheep, person, etc., as it is for the wolf, sheep, person, etc., to kill me. Both of us have the privilege to act (in this case, kill) if it is in our interests to do so. Neither of us has a claim to immunity from the other’s actions as each of us has the unlimited natural right to seek to survive by any means necessary.
The Privilege-Duty Exchange (The Social Contract)
You may naturally wonder how this unlimited natural right could evolve into the limited common rights we think of today if we think about the concept of rights. Well, if we concede that this natural right to the pursuit of existence exists, then it will become clear. Each individual in the primeval state of their natural freedom is a god unto themselves. They can do anything they desire to, hurt anyone, take anything… in short, they owe nothing to anyone but themselves. Yet with this freedom comes danger. Just as they are free to do anything, so too is every other being. Each being is alone, trapped in a Hobbesian war of all against all without friend or succour.
Now you might be strong and tough, yet eventually, you will get sick, you will get injured, and you will get old. In each of these eventualities, alone, you will become easy prey. This reality seems to have driven many species, not least humans, to form groups for protection, support and reproduction. I am simplifying greatly here, of course, but essentially as Rousseau famously observed in his seminal work, ‘The Social Contract’, we exchange a portion of our natural freedom of action in exchange for corresponding duties from the other community members on joining a group or community. Essentially, trading our privileges for reciprocal duties in what we will term the ‘privilege-duty exchange”.
At a minimum, on joining a group, we contract away the privilege of harming other group members in exchange for their privilege of harming us. This exchange of privileges leads to the creation of a duty to each other. We are no longer absolutely free to act, yet we have gained claims on the actions of others, and thus, they are duty-bound to us just as we are bound to them. Essentially, we have agreed to modify the enforcement of our first-order natural rights to freedom of action in exchange for second-order social rights. It is easy to see how this imagined initial trade of freedom for reciprocal duties (privilege-duty exchange) could lead to increasingly complex exchanges.
Imagine the titular cave dwellers who have made the first trade of privileges — they agree not to harm each other and see that this is good. Then perhaps they agree to exchange protection, saying, “I will defend you if you defend me.” This exchange also proves to be beneficial to the two troglodytes, so they continue to contract with each other. The other cave dwellers, seeing the benefits that these social innovators are receiving, join them or emulate them. Those that join in the contract are less free yet survive more easily and benefit as a result.
Of course, in reality, this process was likely not so much a conscious exchange but rather an evolutionary trait that we inherited from our pre-human ancestors. Yet, the conceptual idea of a mutual exchange of duties and privileges, even if it is driven in the first instance by biological impulses rather than rational choices, remains instructive. This is not least as it is an easily observable if rarely explicitly recognised element of human societies. If you don’t believe me, just watch how people interact when they are thrown into a group of perfect strangers. Invariably and often without conscious thought, they will seek out allies and form cliques, instinctively making privilege-duty trades for their own benefit.
Rights Are Inalienable, i.e. The Contract Can Be Broken!
Of course, these trades of privileges and duties are not necessarily permanent. Each individual’s unlimited natural right to seek to survive is an inalienable right that all beings possess. Thus, while they can agree to mutual exchanges of privileges and duties, they can never trade away their natural right. Therefore, no matter what they have previously agreed, they are always fundamentally free to renegotiate the deal or end it when they no longer feel it is in their interests to continue to be bound by it. This remains as true in the personal realm of friend groups as it does in the greater contract of national life.
Essentially, this means that humans and all other beings are fundamentally free. Just as they can freely contract away their freedoms (privileges) in exchange for reciprocal duties, they can just as freely revoke the social contract and return to their ancient freedom. At that point, they can do whatever they wish to without the restraint of society’s rules. Unfortunately for them, at the same time, as they gain their freedom, they lose the protection of society and become open to attack. This situation can be illustrated best if one considers that a criminal, on breaking the law, effectively breaks the social contract and thus loses the protection of the community. With this protection being absent, they become liable for arrest, imprisonment, etc. (handled in our societies in a formalised manner through the police and the courts).
In conclusion, in this article, we set out to answer what rights are and where they come from. Upon completing our initial investigation, we can confidently answer both questions. We have shown that rights are privileges that we hold to act or not act in certain ways at specific times. Additionally, when a privilege-duty exchange has taken place, rights also extend to entitlements that other parties to the exchange act or do not act in certain ways at certain times.
Secondly, through observation of the universal nature of the will for self-preservation, we have inferred that there exists a single natural right, namely the right to strive to survive. We have posited that this natural right is both innate to every being and inherently inalienable to them due to their fundamental nature as living beings. This natural right is the basis for individual freedoms, with all social or artificial rights stemming from this single unalienable natural right.
Second-order rights, i.e. social or artificial rights, are established through conscious and unconscious privilege-duty exchanges between individuals. These privilege-duty exchanges involve trading privileges to act or not act in specific circumstances for corresponding duties to either act or not act in other specific circumstances. When taken as a whole, these privilege-duty exchanges form what Rousseau termed as the social contract or society’s written and unwritten rules.
Importantly though, as these artificial rights are established by free exchange, they are revocable by either party. This is as the first-order natural right to the seeking of existence is inherent to life and cannot be traded away. Second-order social rights, however, are merely agreements to restrain or take action made to support the aim of individual survival. Whenever these agreements no longer serve this purpose, they can be revoked just as freely as they were made.
The next article in this series will look at this implied social contract in greater detail and seek to formulate a set of principles that can be used to determine what social rights should or should not exist. Join us next week to continue the conversation.
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First Published on https://www.andrew-stadtmauer.com on the 11th of October 2021