How to Think About Rights

So, I’ve been thinking about rights recently, and I’ve been interested to hear some other perspectives. I’d like to put my view on rights out there by answering a few fundamental questions about rights. Other people don’t seem to think about rights the same way I do, especially my libertarian leaning friends. Libertarians tend to frame rights as either negative or positive. Negative rights are rights of non-interference, such as the right to not to be killed or the right to express yourself freely. The right to bodily autonomy is also a negative right. Positive rights are claim rights on others, such as the right to an ambulance after a car crash, the right to a public education, or the right to law enforcement (e.g., my favorite example, the enforcement of your rights!).

First, what do rights have to do with morality? I’ve talked to a few people recently who argued that they are necessarily distinct. Huh? Apparently, many people think of morality as only associated with religion. That’s simply false, and indeed, rights, too, are tied up in moral reasoning. Murder and thievery are both evil, and simultaneously violations of our “rights” to life and property. Morality is merely a question of what ought to be, not what is. If you’re arguing whether things should be this or that way, you’re making a moral argument. Rights are claims we make about what other people ought to do; they’re necessarily moral. If you violate rights, you have done someone an injustice.

Second, how rights are justified? Some think rights are intrinsically valuable. I think that’s false. Freedom, for example, is valuable only insofar as it advances human welfare or flourishing. A freedom that allows people to make evil choices that harm others has no intrinsic value. Or, as Isaiah Berlin so astutely put it,

“Freedom for the wolves means death for the sheep.”

Now, one could reasonably argue that the freedom to make poor choices leads to wisdom that prevents further poor choices in the long run. But, even in that case, granting freedom is justified by long run aggregate welfare, not freedom itself. If rights exist, they are justified only by an appeal to welfare, and this appeal works most of the time (in my view).

Third, how are rights created? This is where I think people have incredibly confused views. Supposedly, either rights are “natural” (i.e., they’re handed down by God or someone), or they exist in a state of nature, or they’re intrinsically justified by an appeal to freedom or liberty. Again, huh? How can one simultaneously argue for freedom of religion and suggest that rights are “natural” or handed down by God? Let me first say something about the state of nature scenario. In a state of nature, you don’t have a right to anything. Your right to life or liberty is as good as a right to a piece of fruit you picked this afternoon. That is, you have it until someone takes it from you. Rights come into existence when a group of people agree to a social contract: they form a society and stipulate the conditions you must agree to in order to have access to the benefits. What must necessarily accompany the stipulated rights is the (positive) right to have all your rights legally enforced. This is why, among other reasons, I don’t think it makes sense to defend negative or non-interference rights only. The main point here is that it never makes sense to talk about rights in terms of whether they exist or don’t exist, e.g., “Health care is right, not a privilege” or “No one has a right to health care.” WE DECIDE WHAT RIGHTS EXIST AND DON’T EXIST. And hopefully, if we’re a just society, we judge whether we’re going to create rights by weighing the costs and benefits to society.

Fourth, what sorts of implications does this have for viewing issues commonly based in the “rights” dialogue? A few points here, and then I’ll open it up. Whether or not we grant a right to life, liberty, a public education, an ambulance ride, etc. ultimately depends on whether we’ve determined that affording such a right to citizens would be worth the costs of enforcement. As we become a richer society, we can afford to grant more rights: negative and positive. The cost-benefit analysis we conduct will necessarily depend on the circumstances and resources we have as a society. The best argument against affording a right to health insurance is that the opportunity cost is greater than the benefit, not that “No one has a right to health care.” But, it should be clear that, as health care becomes less expensive, it will become more and more likely to become a right, because the opportunity cost will, too, decrease.

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