The Basics, Part 21: Politics, Part 3

In our first two sessions, we examined the relationship of the individual to the state, and the state to the individual. While the second of these focused mainly on the characteristics of the state, we also touched upon certain obligations that a state might have to its citizenry. This segues nicely into our third session on Politics, which will deal with the nature of rights.

A "right," as commonly understood, could be summarized as "something that a person is or should be morally or legally allowed to have, get, or do." This definition instantly sounds in the language of the law, the formalized language of rights.

Some inquiries that will arise in this discussion concern the source of rights, the subject-matter of rights, what rights are necessary to a functioning, legitimate state, and what methods can be used to ensure (or enforce!) rights.

Before I introduce our text, consider the two following conceptions of the right to free speech:

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

• Article 19, The Universal Declaration of Human Rights

"Congress shall make no law...abridging the freedom of speech..."

• Amendment I, Constitution of the United States of America

Closely compare the way in which a right is conceived in each statement. In the former, rights are expressed in an explicitly contractual way, i.e. this amendment formalizes a contractual relation between individuals and states; in this fashion, the right exists by virtue of the contract. In the latter, while the contract is explicitly between the government and the state, the right itself does not arise by virtue of the contract. Instead, the contract acts to safeguard an already existent right, which might arise in some reading from the providence of a Creator, or by virtue of human existence itself. In abstraction, the two seem very different, but are they terribly different in practice?

Since rights generally sound in law, it is fitting that our reading for this session be a piece written by Wesley Newcomb Hohfeld (1879-1918), a law professor who taught at Stanford and Yale Law School. His essay "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," which was later expanded into a book, has remained an influential text on the nature of rights. The text of this article can be found here:

http://www.hiit.fi/files/ns/Herkko/SOME%20FUNDAMENTAL%20LEGAL%20CONCEPTIONS%20AS%20APPLIED%20IN%20JUDICIAL%20REASONING.pdf

Don't worry, half of the length of the article is footnotes, most of which are legal citations.

Hohfeld sought to resolve obfuscations in the nature of rights by providing an analytic framework by which individual rights could be differentiated. Hohfeld disambiguated the term "rights" by creating eight distinct concepts and defined them in relation to each other, thus creating a set of jural opposites and jural correlatives:

Opposites: right/no-right; privilege/duty; power/disability; and immunity/liability.

Correlatives: right/duty; privilege/no-right; power/liability; and immunity/disability.

As a crucial interpretive note, a "right" sounds in a claim, and a "privilege" sounds in liberty.

So, as an example, if right and duty are correlatives, the reasoning goes that if A has a right against B, this is equivalent to B having a duty to honor A's right. In effect, "when a right is invaded, a duty is violated." However, if privilege is an opposite to duty, the reasoning is that if A has a privilege to act in a certain way, then A has no duty to refrain from acting as such.

While the article might seem a bit dry and "legal-ese," the analysis is valuable in interpreting rights. Rights here are envisioned as a creature of contract, in which either two distinct entities have an express or implied contract between each other (a claim-based right), or that one entity has a contract with the rest of the political unit, such as the "state" or the "world", perhaps (a liberty-based right).

If we recall from our talks on ethics, the system that first springs to mind is that of deontology - the right exists so long as a duty is recognized, and the respecting of the right at issue is a matter of recognizing and adhering to that duty. But while deontological (and to some extent consequentialist) perspectives create a framework for bringing rights into existence, what concepts can be conceived as rights is an inquiry that bleeds over into more overt theories of virtue and consequentialism. For instance, in establishing "free speech" as a right, do we approach the analysis by deciding whether the promotion of free speech is a virtue, or whether it has positive consequences? Can we conceive of it as a categorical imperative, as Kant might?

Once again, we find theories of normative ethics finding their way into our study of other normative disciplines. I look forward to exploring the nature of rights with you and I hope to see you at this next meetup!