Moral issues at the present time are frequently discussed in terms of the language of rights. But the one word 'rights' can refer to a number of types of situation and claims. People speak of rights to life, to liberty, to owning property, to a fair trial, to a living wage, to holidays with pay, and even to assisted suicide. What is the origin of these claims and what moral force do they have? It is helpful to go back a bit.
The Greeks didn't have a conception of human rights but they did speak of a closely connected idea – natural law. For example, Aristotle writes:
It will now be well to make a complete classification of just and unjust actions. We may begin by observing that they have been defined relatively to two kinds of law… by the two kinds of law I mean particular law and universal law. Particular law is that which each community lays down and applies to its own members… Universal law is the law of nature. For there really is, as everyone to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. It is this that Sophocles' Antigone clearly means when she says that the burial of Polyneices [her brother] was a just act in spite of the [political] prohibition: she means it was just by nature.
This is an early statement of the theory of natural law – the view that we have obligations to each other simply in virtue of the fact that we all belong to the human race. Aristotle's idea of a universal law of nature passed through the Stoics to Roman law where it became the test for reconciling the 'particular law' of conquered communities with the law of Rome. At some period towards the end of the 16th century, for reasons not well understood, the conception of natural law became one of natural rights. In the 17th-18th centuries, ideas of 'natural rights' changed to (if I dare use the expression) 'the rights of man' and assorted Declarations of Rights in the UK and USA. These 'Declarations' culminated in the UN Declaration of Rights in 1946.
There have been various refinements and discussions of human rights since then but the relevant point for this discussion is that the widespread acceptance of human rights seems to indicate that some types of conduct are wrong in themselves and others are required of us as human beings.
The Doctrine of Human Rights has its critics. The most trenchant criticism of human/natural rights comes early on (at the beginning of the 19th century) from Jeremy Bentham:
Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense – nonsense upon stilts.
Bentham makes several points against natural rights but as a utilitarian he rejects the idea of rights not backed by law, and a law based on the principle of utility. Since the time of Bentham, utilitarians have made several efforts to accommodate rights in their theories. For example, they have argued that rights are able as it were to encapsulate known utilities. But that move can take us only a certain distance, for when it comes to the crunch a utilitarian must back the general benefit against the rights of the individual. On the other hand, a believer in rights will see rights as inalienable.
But other fundamental criticisms can be made, at least of what have become known as human rights. If we go back to Aristotle's idea of natural law, as developed by the Stoics and philosophers of the 17th century such as John Locke, we find that the natural rights they endorsed had several characteristics. They were universal – they belonged to human beings as such; they were practicable – they didn't cost anything; they were justiciable – they could be affirmed and defended in any jurisdiction.
It follows that these natural rights were few in number. Lists varied but typically included rights such as to life, liberty, and the pursuit of happiness. These could be regarded as basic moral and political rights, rights which followed from the nature of human beings.
But from the time of the UN Declaration (1946), human rights have multiplied and include rights to holidays with pay, unemployment benefits, etc. These rights are excellent as aspirations and they can certainly be granted in wealthy countries. But they cannot be granted in every jurisdiction. My point is not to argue for or against such alleged human rights but only to note that if such rights exist they are very different from those envisaged by writers on natural rights in earlier centuries. It could be argued that we have a more developed sense of human nature and its rights than our predecessors, but it could also be argued that we have trivialised the language of human rights; if every claim becomes a human right then the language of human rights becomes meaningless.
The vocabulary of rights extends far beyond that of human rights. For example, rights can refer to powers – a policeman has a right to stop traffic but the rest of us don't. They can refer to privileges – the master of the college has a right to walk on the college lawn but tourists don't. They can refer to exemptions – people with asthma have a right not to wear a mask in a shop but the rest of us don't.
Perhaps the most common uses of rights terminology involve rights as freedoms to do or forbear, and rights as claims against one or more people. For example, I have a right to walk down the street whistling. That is a right as a freedom, meaning by that that no-one has a right or duty to stop me, at least for the reason that I am whistling. But if you have my book on loan, then I have a right or a claim against you for the return of the book and you have a reciprocal duty to return it.
There can be confusions between rights as freedoms and rights of reciprocity which have necessary duties attached. If we go back to human rights, we find there is a right to have a family. That is clearly a freedom right. In other words, no-one has a duty or a right to stop you having a family. But it is sometimes thought that this right somehow carries with it a reciprocal duty on someone or some institution to enable this, and they are thinking not just of midwives but of benefits of various kinds.
In other words, it is sometimes thought that the human right or freedom to have a family involves a right of a different kind, one where a reciprocal duty is laid on a government to provide everything from fertility treatment to child benefits. Now these are all excellent benefits which I fully support. But they make demands of a very different kind from the original natural rights, which were universal, practicable and justiciable.
Robin Downie is Emeritus Professor of Moral Philosophy at the University of Glasgow