July 17, 2015 Leave a comment
You’ve probably heard this question asked before: “Who gave you the right?” In everyday situations, the accused might just take the question as rhetorical, or a mere expression of puzzlement or frustration. After all, he might be certain that his right is absolute or a brute fact. Then who are other people to question it? Yet, rights claims conflict and are doubted all the time. Is there a right to life or a right to choose? Is there a right to bear arms or the right to enjoy a gun-free zone? Supreme Court decisions aren’t even immune to controversy. To get a proper grasp on stubborn rights conflicts, we need to not just heed professional jurists, but reason along with ethicists and philosophers also.
Modern rights theorists owe much to Enlightenment thinker Immanuel Kant. He pioneered a way of using “pure reason” to deduce what ethical duties a rational person has. In his Practical Critique of Reason, he asks, quaestio iuris, “by what right” should we make ethical deductions?
A successor to Kant, twentieth century philosopher Alan Gewirth, paid particular attention to what it takes to have a right. In his essay “Are There Any Absolute Rights?”, he invokes a general formula:
A has a right to X against B by virtue of Y.
This conception helps us see what substance lies behind a rights claim. Notice that regardless who is said to have the right (A), who must respect it (B, also known as the respondent), or what the right itself is (X), that the reason for it all is described by Y. This is the “justificatory basis” or the explanation of what ground the right.
I’d suggest another way to justify a right, this one coming from the premodern scholastic Thomas Aquinas. In his commentary on Aristotle’s Politics, Aquinas wrote, “What gives reason for action is always some intelligible benefit.” He goes on to elaborate three basic common goods: religious fellowship, friendship, and marriage. While Aquinas did not explicitly address modern rights as common goods, it seems reasonable to me to do so. It is not a stretch to say that a right is a kind of reason for action existing for “some intelligible benefit.” The question becomes, what is the intelligible benefit of any given right? This is asking for a natural law basis of rights.
In summary, I’ve given three approaches to rights. Kant focuses us on asking what duties impress themselves upon the rational person. Gewirth comes in a line of thinkers who break rights down into constituent parts. Finally, I’ve encouraged us to view rights as goods that serve a purpose. I’ve highlighted these aspects of rights in order to get people thinking about what rights claims really are. Another question we should address going forward is what makes rights binding? Back to Gewirth’s general formula, why does respondent B have a duty or obligation to respect person A’s enjoyment of right X?
This exercise isn’t just academic; I have a practical concern. If there is always a respondent B, it seems to me that rights always have a cost, which is always to in some way bar or constrain others in action. When that cost and limit is felt by another, don’t be surprised when she asks, “Who gave you the right?”
1. Finnis, John, “Is Natural Law Theory Compatible With Limited Government?” in Natural Law, Liberalism, and Morality. Ed. Robert P. George (Oxford: Clarendon, 1996)
2. Gewirth, Alan, “Are There any Absolute Rights?” in Theories of Rights. Ed. Jeremy Waldron (Oxford: Oxford University Press, 1984)
3. Wenar, Leif, “Rights”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition). Ed. Edward N. Zalta http://plato.stanford.edu/archives/fall2011/entries/rights/