Where Do Rights Come From?
From humans to rivers to corporations to AI, rights are best understood as organized obligations
We talk about rights all the time, but the concept itself is strange. We say that humans have rights, and we mean something serious enough to justify wars and revolutions. But we also say that corporations have rights, entities that exist only because a legal clerk filed the right paperwork. Environmentalists insist that rivers and forests have rights of their own, independent of human interests. Animal rights philosophers argue that sentience, not membership in a species, is the relevant threshold. Kings once claimed rights bestowed directly by God, and the people who overthrew them claimed rights that no king or god could touch. We extend rights to nation states, to those yet to be born, to those who are dead, and more recently to artificial intelligences whose inner lives we cannot inspect.
It seems difficult to find a single thread connecting all these instances. If rights are linked to rational agency, as Kant argued, then animals cannot have them. If rights arise from sentience, as utilitarians propose, then corporations cannot have them. If rights are granted only by positive law, then talk of fundamental human rights violated by the very states that refuse to codify them becomes incoherent. Every attempt to locate a single origin for rights, whether in reason, sentience, divine decree, or legal enactment, succeeds in explaining some cases while failing to account for others. The ontology of rights resists unification.
Is such unification impossible? If we tried to find an underlying substance, rational, sentient or divine, that generates rights, I think we would never succeed. But suppose instead we ask what all rights actually do in practice. Across the full variety of cases, every right turns out to have one thing in common: it makes demands on someone else. A right is a way of organizing obligations.
To say that an entity has a right is to say that certain obligations exist, distributed among certain individuals, oriented toward that entity. Consequently, it is not necessary for that entity to be human, be sentient, or even to exist at all. The right does not exist above and beyond the obligations; it is constituted by the obligations themselves.
Take a child’s right to life. This right is constituted by the obligation of his family to protect him, the obligation of strangers to intervene or seek help when the child is in danger, the obligation of enemies not to harm him, and, in a modern state, the obligation of law enforcement to investigate threats against him and of medical professionals to treat him in emergencies. If we remove these and other obligations, the right to life loses all substance. Nothing remains, no residual metaphysical property called “a right” that persists once every obligation has been subtracted.
Or consider the right to property. When we say an owner has a right to her possessions, we are saying that everyone else is obligated not to steal from her, not to vandalize what she owns, and not to interfere with its legal disposition. Officials are obligated to enforce these prohibitions. Courts are obligated to adjudicate disputes fairly. The right to property refers to this entire constellation of obligations.
The same applies to more complex cases. The right of a state to tax its subjects is constituted by the obligation of those subjects to pay what they owe, to refrain from obstructing tax officials, and to report fraud they discover. A corporation’s right to contract is constituted by the obligation of legislators not to impose arbitrary restrictions on that corporation’s ability to enter agreements, the obligation of judges to adjudicate contract disputes impartially, the obligation of officials to execute judgments fairly. In every case, what we call a right turns out to be a collection of obligations, bound together by their orientation toward a common beneficiary.
Rights can be ascribed to humans, rivers, deities, and corporations not because all these entities share some property that generates rights, like sentience or reason, but because obligations can be organized around any of them.
A natural question arises: if rights are simply a way of organizing obligations, why bother with the concept at all? The language of rights invites overreach, with new rights proclaimed whenever someone wishes to press a demand. Why not speak only of obligations and dispense with rights entirely?
The answer, I think, is that the language of rights performs a function that the language of obligations alone cannot: it creates an incentive.
An obligation is something imposed on you. It is a demand, a constraint on your freedom. When we tell someone they are obligated not to steal, we are telling them what they cannot do. We are addressing them as persons who must bear a restriction.
A right reverses the direction. It addresses the beneficiary, not the obligated party. When we say someone has a right to their property, we are telling them what they are owed. We are addressing them as persons who stand to receive a benefit. The underlying moral reality is the same set of obligations. What changes is the rhetorical frame.
The benefit of this reversal is that it recruits self-interest into the service of moral order, helping to make that order sustainable. No one is naturally enthusiastic about bearing obligations. But nearly everyone is enthusiastic about possessing rights. When obligations are organized through rights, every person who benefits from the system—which is to say, everyone—acquires a stake in its maintenance. I honor my obligation not to steal from you not out of abstract moral devotion but because I want my own right to property upheld. I support the system of obligations that constitutes your right to life because the same system constitutes mine, and the rights of those for whom I feel genuine love and attachment.
Rights, in this sense, represent an extraordinary moral innovation. They take the raw material of obligations, the “thou shalts” and “thou shalt nots” that every social order requires, and repackage it in a form that generates its own support.
This may seem deflationary, and in one sense it is. We are rejecting the intuition that rights are irreducibly normative, or that they descend from heaven, or that they are woven into the fabric of rational nature. We are recognizing them as they are: a way of organizing obligations. The invention of the language of rights is the discovery of a new way of making old moral facts sustainable.
Continue Reading:
→ Overcoming the Naturalistic Fallacy
→ Michael Huemer: Nature of Knowledge, Foundations of Morality (podcast)
→ Review of Tyler Cowen’s Stubborn Attachments
Other Projects:
→ Universal Open Textbook Initiative (free, multilingual textbooks)
→ Aesthete (visualize your taste — iOS app)