A Short History of the Idea of Rights

Rights are at the centre of our political & legal culture, but, like many seemingly 'eternal' notions, the idea of rights in fact has altered in conception and importance over time.

The concept of rights has its beginnings in the Natural Law tradition.

Natural Law Theory - a theory that claims there are certain laws governing human behavior that, morally speaking, are binding upon all people regardless of where they live.

This is very similar to what we have been calling objectivism.  The main difference is that Natural Law Theory has traditionally been associated with religious/spiritual explanations of the existence of those laws.  Typically, the world is thought of as having been created by god(s) with a certain logical order to it.  In that order, natural law is to be found.

The Greek school of philosophy known as Stoicism (a view invoked several times in the move Gladiator) is an important early source of this view.

Zeno of Citium (334-262 B.C.)
Marcus Aurelius (121-180 A.D.)

Stoicism was an influential view during the Roman period (Marcus Aurelius was a Roman emperor) & it is in large part through the Roman Empire that the idea of natural law spread.

Notice, however, that believing in Natural Law is not identical with believing in Natural Rights.  Until after the Middle Ages, Natural Law theories tended to focus on the duties of men.  They also frequently allowed for the holding of slaves, thus denying what we might think of as the most fundamental of all rights.  Nonetheless, Natural Law Theory creates a conceptual 'space' in which the idea of Natural Rights can grow.

Natural Rights

During the 16th through 18th centuries, natural law theories shift from a focus on duties to a focus on rights.  Historically speaking these shifts need to be understood as related to the historical periods known as the Renaissance (~1400-1600) & the Enlightenment (~1700-1789).

Hugo Grotius (1583-1645) - The Law of War & Peace (1625)

Claims that the laws of nature would bind us even if God didn't exist (although he did think God existed)

Grotius based much of his theory of  jus naturae (natural law) on the idea that men were entitled to preserve themselves.  This inspired Thomas Hobbes to write explicitly of rights.

Thomas Hobbes (1588-1679) - Leviathan (1651)

The Right of Nature - in the "state of nature" (a state with no government nor social organization), a person has the right to do anything it takes to preserve his own life

Notice that this is what we might call a 'liberty right' - all it involves is a liberty each person has - no restrictions are placed on anyone else's conduct.

This is a much weaker conception of rights than our 'everyday' conception.

For Hobbes & Grotius, legitimate governments arise as a result of a trading off of rights amongst people in order to improve their lives.

John Locke (1632-1704) - Second Treatise of Government (1690)

Locke argues that man are created with rights to life, liberty and property.  He also argues these rights are not given up by the 'social contract' involved in entering into society.  A legitimate state must protect these rights.

1689 Bill of Rights (England) - enshrines rights to life, liberty and property

1776 - The Declaration of Independence (U.S.) - "... all men ... are endowed by their Creator with certain inalienable rights, ... among these are Life, Liberty and the Pursuit of Happiness."

1789 - Declaration of the Rights of Man (France) - "men are born and remain free and equal in rights"

1791 - Bill of Rights (U.S.) - involves many more specific rights (e.g., freedom of speech, freedom of the press)

1982 - Canadian Charter of Rights and Freedoms

Human Rights

Although the idea of natural rights was politically influential, it also came under strong attack.

One of the founders of utilitarianism, Jeremy Bentham, described the idea of natural rights as "nonsense".  Many utilitarians have been similarly suspicious of the idea.

Marxists attacked the individual nature of natural rights, preferring to focus on groups as the primary holders of rights.

In the 20th century, particularly after the World War II, the idea of rights became detached from the idea of natural law and the idea of human rights took hold.

1948 - The Universal Declaration of Human Rights (the UN)

An influential document, although few, if any, countries live up to all of its provisions.  Some examples:

23.1 Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

23.2 Everyone, without any discrimination, has the right to equal pay for equal work.

23.4 Everyone has the right to form and to join trade unions for the protection of his interests.

25.1 Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

26.1 Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.  Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

By now, the idea of human rights has become nearly universally accepted (although there is still wide disagreement about exactly what those rights are & what is involved in meeting them).

Some Basic Distinctions Among Types of Rights

Positive vs. Negative Rights

Negative Right - negative rights are rights of the rightholder not to be interfered with

i.e., they tell others what they may not do

e.g., a negative right to free speech is a right not to be prevented from speaking

Positive Right - positive rights are rights of the rightholder to have something done for him/her

i.e., they tell others to do something

e.g., a positive right to free speech might require television stations to provide airtime to those who want to make some point about public policy

Initial conceptions of rights tended to focus on negative rights, subsequently many theorists of rights argued we should also think of rights in positive terms

E.g., one way of justifying welfare programs is in terms of a positive right to a minimum income

Likewise, the 'typical' Canadian attitude to health care might be defended in terms of a positive right to health care

One partly accurate way of thinking about the Left/Right distinction in present-day politics is in terms of the importance placed on positive rights vs. negative rights.  On this way of thinking, Left wingers stress positive rights to a greater extent than Right wingers.

Ideal, Bounded and Unbounded

McGinn points out this distinction in his article.

1. Ideal Rights:  Such rights are always worthy of considering as a guiding ideal, but may be overridden in particular situations if they get in the way of certain goals. (133)

e.g., the right to privacy  (Consider the current anti-terrorism legislation.)

2. Bounded Exceptionless:  Such rights are absolute (i.e., exceptionless) but only within certain bounds.  They might, for instance, be overriden if they run up against other rights. (133)

e.g., the freedom of speech (Limits on speech are usually justified by reference to things like the right to security of the person.)

3. Unbounded Exceptionless:  Such rights are binding without exception. (133)

e.g., the right not to be tortured

McGinn on Rights & Technology

Main Claims:

We need to refine our typical thinking about rights.

There are no Unbounded Exceptionless rights.

Rights must be understood as existing only within a certain context.

Technology can render certain rights impractical.  When this happens those rights must be revised.

The Three Elements of the Problem:

1. Technological Maximality - a quality a technology possesses when it embodies "in one or more of its aspects or dimensions the greatest scale or highest degree previously attained or currently possible in that aspect or dimension." (127)

i.e.,  technology that makes it possible for us to do things on a scale that wasn't formerly possible

Note that technologies may be individually maximal (e.g., louder stereos) or aggregatively maximal (e.g., more stereos) or both. (128-9)

2. Traditional Rights - rights conceived of as timelessly and rarely, if ever, acceptably violated. (128)

Part of the problem here is the way in which some rights have gone from being conceived of negatively to conceived of positively.

E.g., the status of the right to bear children is ambiguous at present - people are arguing about whether techniques like in vitro fertilization should be covered by our public medical system.

3. An Increasing Population - the number of rights holders continues to increase (128)

The Problem

"'technological maximality,' unfolding under the auspices of 'traditional rights' supposedly held and exercised by a large and increasing number of parties, is apt to dilute or diminish contemporary societal quality of life." (127)

In other words, there's no problem with any of the three elements individually, but together they pose a real problem.

Some Examples

The Provision of Reproductive Technology

The Cost of Advanced Medical Care

The Use of Automatic Dialers

The Use of Advanced Life Saving Technologies

The Solution?

1. Cut or stabilize the number of rights holders

Problem:  politically unrealistic, besides would involve reconceiving reproductive rights and mobility rights (122-3)

2. Control technologically maximal behaviour

Problem:  this also seems to require reconceiving the nature of rights

Why not 'cut out the middle man' and simply re-examine our view of rights?

McGinn's Solution:  Do away with the fiction of inalienable rights.

Inalienable Rights Are a Fiction:  "to get citizens of a society to take a declared 'right of man' seriously, it has often seemed prudent to represent rights ... as having some kind of transcendental seal of approval: e.g., God's blessing..." (131)

A Contextual View of Rights: Instead, we should take the view that "something qualifies as an individual human right if and only if its protection is vital to the fulfillment of one or more underlying basic human needs." (133)

Notice that this is a very practical, consequentialist justification of rights.  If a right stops serving our needs, it ceases to be a right.

Six Reasons for Limiting Rights

1. if the exercising of the right threatens the very existence of society (134)

2. if the exercise of the right will get in the way of "continued social functioning" (134)\

3. if the exercise of the right threatens some natural resource (134)

4. "if some phenomenon of significant aesthetic value, cultural, historical, or spiritual value ... is jeopardised by the exercise of a right" (134)

5. "if some highly valued social amenity would be seriously damaged or eliminated through the exercise of a right." (134)

6. "if a seriously debilitating financial cost is imposed on society by the widespread or frequent exercise of a right" (134)
 

Does the Canadian Charter of Rights and Freedoms offer another way of solving the problem?

The Canadian Charter of Rights and Freedoms guarantees Canadians certain rights, but all are subject to a limit laid out in the first section of the Charter:

Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As such, Charter challenges function quite differently in Canada than they do in the U.S. and other countries that follow its model.  In Canada, if you want to have a law declared unconstitutional, it's not enough to show that the law violates your rights.  Even if a law violates your rights, the courts will allow the law to operate if that violation of your rights is one that "can be demonstrably justified in a free and democratic society."

Does this solve McGinn's problem without giving up the framework of individual rights?

Does the Charter represent a contextual approach to rights?