What are rights? What are the foundations of rights? Before we can positively and logically assert certain acts and “states of being” or conditions as fundamental rights, we must first have a working definition of what is a right and establish the foundational validity of rights.
By definition, a right is defined as “a moral or legal entitlement to have or obtain something or to act in a certain way.” For the sake of simplicity, we should take the simple definition of right as entitlement. This can be considered as axiomatic in some sense. In other words, a right is something that is inherent to an individual or entity. It is generally understood as something that can be demanded without the need for special grant from any authority. To some extent, fundamental rights are universally recognized.
Even in ancient and primitive cultures, some rights were recognized and already well-established. These included the right to life, the right to liberty and the right to private property.
However, it should be noted that the right to private property was once more important than the right to liberty particularly in the case of slavery. It was not too long ago that some groups of humans were legally considered as property. Although slavery still exists in a few parts of the world today, slavery is now internationally banned.
Just like the right of freedom from slavery, many of the rights that we now take for granted and consider as fundamental rights went through a series of social upheavals and bloody struggles before they were universally recognized.
Hence, rights have socio-political and legal components that change over time. These rights do not exist in a vacuum – they are not mere abstract entities that exist separately from human interactions. Even animal rights are defined by the way humans interact with various species of animals.
Rights are foundationally justified based on ethical-moral arguments. These are also called natural rights. The moral arguments for the fundamental rights may be viewed as objective and transcendental such as in the case of religious (theistic) views. Rights are seen to be God-given such as the right to life or even the now obsolete “divine rights” of monarchs to rule with absolute political control, making them accountable only to God.
Moral rights may also be considered as logically obligatory, such as in the case of deontological moral argument based on Immanuel Kant’s categorical imperative. Rights as founded on moral arguments may also be viewed as situational and consequentially-justified such as in the case of John Stuart Mill’s utilitarianism.
To some great extent, the moral rights (natural rights) are the foundation of legal rights. Many types of legal rights can be considered as extensions and corollaries of moral rights. For instance, land titles (deeds) are legal recognition of the right to property. Similarly, the legal right against self-incrimination is a derivative of the moral right to life and liberty.
John Locke identified the rights to life, liberty and property as fundamental natural rights that are unalienable. Locke’s idea of equal fundamental rights of every human being was translated in the American Declaration of Independence as:
“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.”
In analyzing legal rights, some basic elements can be distinctly recognized. One or more of these elements must be present in order for something to be properly considered as a right. These elements of legal rights are known as the “Hohfeldian incidents” named after Wesley Newcomb Hohfeld (1879-1918). He was an American legal theorist who discovered that rights based on the legal system have four fundamental components, namely, PRIVILEGE (liberty or freedom), CLAIM, POWER, and IMMUNITY. These have their respective jural opposites and jural correlative as shown in the table below. These simple “atomic” elements have clear logical forms that can be combined in certain ways to create complex “molecular” rights.
The table displays the logical structures of the system. For example, the legal right to vote has the Hohfeldian incidents of privilege and immunity because those who exercise it do not have the duty and the liability (Hohfeldian jural opposites) to exercise it. Simply put, voters are not obligated to vote and they will not be prosecuted if they don’t vote. The Hohfeldian analytical system is very useful in distinguishing different types of legal rights and how they are related to each other.
Hohfeld also distinguished between first-order rights and second-order rights. The first-order rights are the fundamental legal rights held by individuals or entities. On the other hand, the second-order rights are the extensions of the first-order rights. For example, an owner of a house has the first-order rights with the Hohfeldian components of “claim” based on the deed of sale and land title and “privilege” based on the personal choice of the owner who bought the house without coercion or obligation to do so. The claim is protected by the “duty” of the government to enforce it and the privilege is automatically implied by the “no-right” or non-claim by others. The owner’s second-order rights can be asserted if he or she decides to have his or her first-order rights modified or surrendered by having it rented or sold. He could then exercise the “power” to grant the claim to rent to a renter of his or her own choice. In so doing, the owner modifies his/her rights to live in the house while it is being rented. On the other hand, if the owner chooses to sell the house, he/she then losses the claim of ownership once the house is sold.
Similarly, individual rights can be modified or even invalidated by the state when it exercises its second-order rights such as in the case of imposing martial law or suspending the writ of habeas corpus.
Rights may be asserted, waived, transferred or annulled depending on the circumstances. Each Hohfeldian incident is a right in itself but it always refers to relationships between individuals or between the individual and society as a whole and vice-versa.
As Mill famously put it:
“When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion… To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of.”