Political Concept of Rights

Since antiquity, political thinkers have debated the proper relationship between the individual and the state. In Ancient Greece, this relationship was embodied in the notion of the ‘citizen’, literally a member of the state. Within Greek city-states, citizenship was reflected in the right to participate in the political life of the community and the obligation, if selected, to shoulder the burden of public office. This was, however, restricted to a small minority living in such states, in effect, free-born propertied males.The modern concept of citizenship is, by con-trast, founded upon the principle of universal rights and obligations. Its roots lie in seventeenth-century ideas about natural rights, elaborated in the twentieth cen-tury into the doctrine of human rights. Although such ideas are now common-place, cropping up in everyday discussions as regularly as in political argument, it is less than clear what the term ‘rights’ refers to and how it should be used. For instance, what does it mean to say that somebody ‘has a right’? On what basis can they be said to enjoy it? And how far does this doctrine of rights stretch: to what rights are we entitled?

Citizens are not, however, merely bearers of rights, able to make claims against their state; they also have duties and obligations towards the state that has pro-tected, nurtured and cared for them.These obligations may indeed include com-pulsory military service, entailing the duty to fight, kill and possibly die in defence of one’s state. Once again, however, this raises difficult questions. In particular, what are the origins of such obligations, and what kind of claim do they make upon the citizen? Moreover, are these claims absolute, or can citizens, in certain circumstances, be released from them? All such questions are linked to the idea of citizenship, the notion of a proper balance between the rights and obligations of the citizen. However, while politicians and political theorists are eager to extol the virtues of citizenship, the concept itself invariably carries heavy ideological baggage. Is the ‘good citizen’, for example, a self-reliant and hard-working indivi-dual who makes few demands upon his or her community, or is it a person who is able to participate fully in its public and political life? Moreover, is the idea of universal citizenship any longer applicable in the light of growing cultural and other forms of diversity?

Rights

Political debate is littered with references to rights – the right to work, the right to education, the right to abortion, the right to life, the right to free speech, the right to own property and so forth. The idea is no less important in everyday language: children may claim the ‘right’ to stay up late or choose their own clothes; parents, for their part, may insist upon their ‘right’ to control what their children eat or watch on television. In its original meaning, the term ‘right’ stood for a power or privilege as in the right of the nobility, the right of the clergy, and, of course, the divine right of kings. However, in its modern sense, it refers to an entitlement to act or be treated in a particular way. Although it would be wrong to suggest that the doctrine of rights is universally accepted, most modern political thinkers have nevertheless been prepared to express their ideas in terms of rights or entitlements. The concept of rights is, in that sense, politically less contentious than, say, equality or social justice. However, there is far less agreement about the grounds upon which these rights are based, who should possess them, and which ones they should have.

There is, in the first place, a distinction between legal and moral rights. Some rights are laid down in law or in a system of formal rules and so are enforceable; others, however, exist only as moral or philosophical claims. Furthermore, particular problems surround the notion of human rights. Who, for instance, is to be regarded as ‘human’? Does this extend to children and embryos as well as to adults? Are particular groups of people, perhaps women and ethnic minorities, entitled to special rights by virtue either of their biological needs or social position? Finally, the conventional understanding of rights has been challenged by the emergence of the environmental and animal liberation movements, which have raised questions about the rights of non-humans, the rights of animals and other species. Are there rational grounds for refusing to extend rights to all species, or is this merely an irrational prejudice akin to sexism or racism?

Legal and Moral Rights

Legal rights are rights which are enshrined in law and are therefore enforceable through the courts. They have been described as ‘positive’ rights in that they are enjoyed or upheld regardless of their moral content, in keeping with the idea of ‘positive law’ discussed in the last chapter. Indeed, some legal rights remain in force for many years even though they are widely regarded as immoral. This can be said, for instance, about the legal right enjoyed by husbands in the UK until 1992 to rape their wives. Legal rights extend over a broad range of legal relationships. A classic attempt to categorize such rights was undertaken by Wesley Hohfeld in Fundamental Legal Conceptions (1923). Hohfeld identified four types of legal right. First, there are privileges or liberty-rights. These allow a person to do something in the simple sense that they have no obligation not to do it; they are ‘at liberty’ to do it – for instance, to use the public highway. Second, there are claim-rights, on the basis of which another person owes another a corresponding duty – for example, the right of one person not to be assaulted by another. Third, there are legal powers. These are best thought of as legal abilities, empowering someone to do something – for example, the right to get married or the right to vote. Fourth, there are immunities, according to which one person can avoid being subject to the power of another – for instance, the right of young, elderly and disabled people not to be drafted into the army.

The status which these legal rights enjoy within a political system varies considerably from country to country. In the UK, the content of legal rights has traditionally been vague and their status questionable. Before the Human Rights Act 1998, most individual rights, such as the right to free speech, freedom of movement and freedom of religious worship, were not embodied in statute law. Indeed, UK statute law consisted largely of prohibitions which constrained what the individual could do or say. For example, although there was no statutory right to free speech in the UK, there were a host of laws which restricted what UK citizens could say on grounds of slander, libel, defamation, blasphemy, incitement to riot, incitement to racial hatred, and so forth. Legal rights in the UK were often therefore described as ‘residual’, in that they were based upon the common law assumption that ‘everything is permitted that is not prohib-ited’. The danger of this situation is that, lacking clear legal definition, it may be difficult or impossible to uphold individual rights in court. Although the Human Rights Act 1998 introduced greater clarity in the definition of rights, it did not give them entrenched status, allowing Parliament, albeit by a special procedure, to infringe the Act.

In contrast, a Bill of Rights operates in the USA and many other states. A Bill of Rights is a codified set of individual rights and liberties, enshrined in constitutional or ‘higher’ law. It is usually said to ‘entrench’ individual rights because such documents are complicated or difficult to amend. As such, a Bill of Rights can be seen to offer a number of clear advantages. In the first place, unlike traditional ‘residual’ rights in the UK, a Bill of Rights provides a clear legal definition of individual rights. Moreover, it can be said to have an educational value: by making people more aware of the rights they have it can promote within government, in the courts and among the general public what has been called a ‘human rights culture’. Most significantly, however, a Bill of Rights establishes a mechanism through which rights can be legally defended and thus protects the individual from over-mighty government. This it achieves by investing in the courts the power of ‘judicial review’, enabling them to check the power of other public bodies if they should infringe upon individual rights.

A Bill of Rights, nevertheless, may also bring disadvantages. UK conservatives, for instance, have traditionally argued that individual rights are best protected by common law because rights are then rooted in customs and traditions that lie at the very heart of the legal system. By comparison, a Bill of Rights may appear both inflexible and artificial. On the other hand, socialists have often objected to Bills of Rights on the grounds that they serve to protect class interests and so preserve social inequality. This can occur through the entrenchment of property rights, making nationalization impossible and blocking radical social reform. One of the most serious drawbacks of a Bill of Rights is, however, that it dramatically enlarges the authority of the judiciary. Given the typically vague or broad formulation of rights, judges end up deciding the proper scope of these, which, in effect, means that political decisions are taken by judges rather than by democra-tically elected politicians. Finally, it is clear that the mere existence of a Bill of Rights does not in itself guarantee that individual liberty will be respected. The Soviet Constitutions of 1936 and 1977, for example, established a truly impressive array of individual rights; but the subordina-tion of the Soviet judiciary to the Communist Party ensured that few of these rights were upheld in practice. Similarly, despite the enactment in 1870 of the Fifth Amendment of the US Constitution granting the right to vote regardless of race, colour or previous condition of servitude, blacks in many Southern states were not able to vote until the 1960s.

A different range of rights, however, may have no legal substance but only exist as moral claims. The simplest example of this is a promise. A promise, freely and rationally made, invests one person with a moral obligation to fulfil its terms, and so grants the other party the right that it should be fulfilled. Unless the promise takes the form of a legally binding contract, it is enforced by moral considerations alone. It is, quite simply, the fact that it is freely made that creates the expectation that a promise will be, and should be, fulfilled. In most cases, however, moral rights are based, rather, upon their content. In other words, moral rights are more commonly ‘ideal’ rights, which bestow upon a person a benefit that they need or deserve. Moral rights therefore reflect what a person should have, from the perspective of a particular moral or religious system.

The danger with moral rights is, however, that they may become impossibly vague and degenerate into little more than an expression of what is morally desirable. This was precisely the view taken by Jeremy Bentham, the British utilitarian philosopher, who rejected the very idea of moral rights, believing them to be nothing more than a mistaken way of describing legal rights that ought to exist. Nevertheless, despite Bentham’s scepticism, most systems of legal rights are under-pinned, at least in theory, by some kind of moral considerations. For example, legal documents like the US Bill of Rights, the UN Universal Declaration of Human Rights (1948) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) have all developed out of attempts by philosophers to define the ‘Rights of Man’. In order to investigate moral rights further it is necessary to examine the most influential form of moral rights – human rights.

Human Rights

The idea of human rights developed out of the ‘natural rights’ theories of the early modern period. Such theories arose, primarily, out of the desire to establish some limits upon how individuals may be treated by others, especially by those who wield political power. However, if rights are to act as a check upon political authority, they must in a sense be ‘pre-legal’, law being merely the creation of political authority. In the seventeenth century, John Locke identified as natural rights the right to ‘life, liberty and property’; a century later, Thomas Jefferson defined them as the right to ‘life, liberty, and the pursuit of happiness’. Such rights were described as ‘natural’ in that they were thought to be God-given and therefore to be part of the very core of human nature. Natural rights did not exist simply as moral claims but were, rather, considered to reflect the most fundamental inner human drives; they were the basic conditions for leading a truly human existence. As such, natural rights theories were psychological models every bit as much as they were ethical systems.

By the twentieth century, the decline of religious belief had led to the secularization of natural rights theories, which were reborn in the form of ‘human’ rights. Human rights are rights to which people are entitled by virtue of being human. They are therefore ‘universal’ rights in the sense that they belong to all human beings rather than to members of any particular nation, race, religion, gender, social class or whatever. Human rights are also ‘fundamental’ rights in that they are inalienable: they cannot be traded away or revoked. This was clearly expressed in the words of the American Declaration of Independence (1776), written by Jefferson, which proclaimed, ‘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’. Many have further suggested that human rights are ‘absolute’ rights in that they must be upheld at all times and in all circumstances. However, this view is more difficult to sustain since in practice rights are often balanced against one another. For example, does the assertion of a right to life rule out capital punishment and all forms of warfare, whatever the provocation? The right to life cannot be absolute if a right to self-defence is also acknowledged.

The concept of human rights raises a number of very different questions, about both who can be regarded as ‘human’ and the rights to which human beings are entitled. There is, for example, fierce controversy about the point at which ‘human’ life begins and so the point at which individuals acquire entitlements or rights. In particular, does human life begin at the moment of conception or does it begin at birth? Those who hold the former view uphold what they see as the rights of the unborn and reject absolutely practices like abortion and embryo research. On the other hand, however, if human life is thought to start at birth, abortion is quite acceptable since it reflects a woman’s right to control her own body. Such contrasting positions do not only reflect different conceptions of life but also allocate rights to human beings on very different grounds. Those who regard embryos as ‘human’ in the same sense as adults, draw upon the belief that life is sacred. According to this view, all living things are entitled to rights, regardless of the form or quality of life with which they may be blessed. However, if life itself is regarded as the basis for rights it becomes difficult to see why rights should be restricted to humans and not extended to animals and other forms of life. To argue, by contrast, that ‘human’ life begins only at birth is to establish a narrower basis for allocating rights, such as the ability to live independently, to enjoy a measure of self-consciousness, or the ability to make rational or moral choices. If such criteria are employed, however, it is difficult to see how human rights can be granted to groups of people who do not themselves fulfil such requirements, for example, children and people with mental or physical disabilities.

A further problem arises from the fact that while human rights are universal, human beings are not identical. This can clearly be seen in the notion that women in some sense enjoy rights that are different from men’s. To advance the cause of ‘women’s rights’ may simply be to argue that human rights, initially developed with men in mind, should also be extended to women. This would apply in the case of women’s right to education, their right to enter particular professions, their right to equal pay and so forth. However, the idea of women’s rights may also be based upon the fact that women have specific needs and capacities which entitle them to rights which in relation to men would be unnecessary or simply meaningless. Such rights would include those related to childbirth or childcare, such as the right to perinatal maternity leave. More controver-sial, however, is the notion that women are entitled to a set of rights in addition to men’s in an attempt to compensate them for their unequal treatment by society. For example, social conventions that link child-bearing and child-rearing and so channel women into a domestic realm of motherhood and housework undermine their capacity to gain an education and pursue a career. In such circumstances, women’s rights could extend to a form of reverse discrimination which seeks to rectify past injustices by, say, establishing quotas for the number of women in higher education and in certain professions. In so far as such rights are based upon a commitment to equal treatment it can be argued that they draw upon the notion of human rights. However, it is difficult to regard women’s rights in this sense as fundamental human rights since they are not allocated to all human beings. Rights that arise out of unequal or unjust treatment will be meaningful only so long as the inequality or injustice that justifies their existence persists.

Even when such controversies are set aside, there are very deep divisions about what rights human beings should enjoy. The idea that rights-based theories in some way stand above ideological and political differences is clearly misguided. From the outset, the idea of natural rights was closely linked to the liberal notion of limited government. The traditional formulation that human beings are entitled to the right to life, liberty and property, or the pursuit of happiness, regarded rights as a private sphere within which the individual could enjoy independence from the encroachments of other individuals and, more particularly, from the interference of the state. These rights are therefore ‘negative’ rights or ‘forbearance’ rights; they can be enjoyed only if constraints are placed upon others. For instance, the right to property requires that limits be set to the government’s ability to tax, an idea clearly reflected in the principle of ‘no taxation without representation’.

During the twentieth century, however, another range of rights came to be added to these traditional liberal ones, an acknowledgement of government’s growing responsibility for economic and social life. These are welfare rights, social and economic rights, and they are ‘positive’ in the sense that they demand not forbearance but active government interven-tion. The right to health care, for example, requires some form of health insurance, if not a publicly funded system of health provision. The UN Universal Declaration of Human Rights includes not only classical ‘negative’ rights, like the right to ‘freedom of thought, conscience and religion’, but also ‘positive’ rights such as the ‘right to work’ and the ‘right to education'. Such welfare rights have, however, provoked fierce disagreement between socialists and conservatives, leading to the development of two contrasting models of citizenship. This controversy is examined in the final section of the chapter in relation to social citizenship and active citizenships.

Finally, the very idea of natural or human rights has been attacked, notably by utilitarians, Marxists and multicultural theorists. As pointed out earlier, Jeremy Bentham was prepared to acknowledge only the existence of ‘positive’ or legal rights. Natural rights were subjective or metaphysical entities, which Bentham dismissed as ‘nonsense on stilts’. Marx, on the other hand, regarded the doctrine of ‘the Rights of Man’ as little more than a means of advancing the interests of private property. In his view, every right was a ‘right of inequality’ since it applied an equal standard to unequal individuals. For instance, the right to property can be regarded as a ‘bourgeois’ right because it has very different implications for the rich and the poor. Multicultural theorists have questioned the relevance and value of human rights in modern pluralistic societies. In particular, they have drawn attention to the extent to which the idea of human rights reflects a form of ethnocentricism, in which the norms and values of dominant cultural groups take precedence over those of minority cultural groups. Anticolonial and postcolonial theories have at times portrayed the doctrine of human rights as an example of cultural imperialism.

Animal and Other Rights?

The final decades of the twentieth century witnessed the emergence of the animal welfare and animal liberation movements as part of the broader growth of ecologism. These have campaigned, for instance, in favour of vegetarianism and improved treatment of farm animals, and against the fur trade and animal experiments. Such campaigns have typically been carried out under the banner of ‘animal rights’. This amounts to the assertion that animals have rights in the same sense that human beings do; indeed, it implies that once human beings are invested with rights it is impossible not to extend these same rights to animals. In effect, the doctrine of human rights leads irresistibly in the direction of animal rights. However, on what basis can animals be said to have rights, and is the notion of animal rights at all meaningful or coherent?

Animal rights theories have developed in popularity since the 1960s as a result of the growth of ecological theories that have tried to redefine the relationship between humans and the natural world. Traditional attitudes towards animals and nature in general in the West were shaped by the Christian belief that human beings enjoyed a God-given dominion over the world, reflected in their stewardship over all other species. In medieval Europe, it was not uncommon for animals to be tried before ecclesiastical courts for alleged wrong-doing, on the grounds that as God’s creatures they, like humans, were subject to ‘natural law’. At the same time, however, Christianity taught that humankind was the centrepiece of creation and that animals had been placed on the earth for the sole purpose of providing for human needs. Since they do not possess immortal souls, animals can in no sense be regarded as equal to humans. Envir-onmentalist theories, by contrast, hold that human beings are neither above nor beyond the natural world but are, rather, an inseparable part of it. This belief is much closer to the pagan notion of an Earth Mother and to the emphasis found in Eastern religions like Hinduism and Buddhism upon the oneness of all forms of life. In the process, the clear distinction once thought to exist between humans and animals has come under increasing pressure.

It is important, however, to distinguish between the notion of ‘animal welfare’ and the more radical idea of ‘animal rights’. Animal welfare reflects an altruistic concern for the well-being of other species, but not one which necessarily places them on the same level as humans. Such an argument was, for example, advanced by the Peter Singer in Animal Liberation (1975). Singer argued that concern for the welfare of animals is based upon the fact that as sentient beings they are capable of suffering. Like humans, animals clearly have an interest in avoiding physical pain. For Singer, the interests of animals and humans in this respect are equal, and he condemns any attempt to place the interests of humans above those of animals as ‘speciesism’, an arbitrary and irrational prejudice not unlike sexism or racism. The animal welfare argument emphasizes the need to treat animals with respect and to try, whenever possible, to minimize their suffering. It may, nevertheless, acknowledge that it is natural or inevitable for humans, like all species, to prefer their own kind and to place human interests before those of other species. The animal welfare movement may therefore oppose factory farming because it is cruel to animals, but not go as far as to insist upon vegetarianism. Altruistic concern does not imply equal treatment. The animal rights argument, on the other hand, has more radical implications precisely because it is derived directly from human rights theories.

Animal rights theories commence by examining the grounds upon which rights are allocated to humans. One possibility is that rights spring out of the existence of life itself: human beings have rights because they are living individuals. If this is true, however, it naturally follows that the same rights should be granted to other living creatures. For instance, the US philosopher Tom Regan argued in The Case for Animal Rights (1983) that all creatures that are ‘the subject of a life’ qualify for rights. He therefore suggested that as the right to life is the most fundamental of all rights, the killing of an animal, however painless, is as morally indefensible as the killing of a human being. Regan acknowledges, however, that in some cases rights are invested in human beings on very different grounds, notably that they, unlike animals, are capable of rational thought and moral autonomy. The right to free speech, freedom of worship and to gain an education may seem absurd if invested in animals. Regan nevertheless points out that such an argument fails to draw a clear distinction between the animal and human worlds. There are, for instance, what Regan calls ‘marginal cases’, human beings who because of mental disability have very little capacity to exercise reason or enjoy autonomy. If rights are invested on the grounds of rational and moral capacity rather than life itself, surely such humans can be treated as animals traditionally have been: they can be used for food, clothing, scientific experimentation and so forth. At the same time, there are clearly animals that possess mental capacities more normally associated with humans; for instance, research has shown dolphin communication systems to be every bit as sophisticated as human language. Logically pursued, therefore, this argument may justify the allocation to some animals of rights which are nevertheless denied to ‘marginal’ humans.

It is difficult, however, to see how these ideas can be confined to animals alone. If the distinction between humans and animals is called into question, how adequate are distinctions between mammals and fish, or between animals and plants? Evidence from biologists such as Lyall Watson (1973) suggests that, in contrast to conventional assumptions, plant life may possess the capacity to experience physical pain. What is clear is that if rights belong to humans and animals it is absurd to deny them to fish on the grounds that they live in water, or to deny them to plants simply because they do not run around on two legs or four. Although such ideas seem bizarre from the conventional Western stand-point, they merely restate a belief in the interconnectedness of all forms of life long expressed by Eastern religions and acknowledged by pre-Christian ‘pagan’ creeds. On the other hand, it is reasonable to remember that the material and social progress that the human species has made has been achieved, in part, because of a willingness to treat other species, and indeed the natural world, as a resource available for human use. To alter this relationship by acknowledging the rights of other species has profound implications not only for moral conduct but also for the material and social organisation of human life.