The fundamental elements of rights

Rights-talk is pervasive. The assertions “I have a right to that” or “You can’t violate their rights!” are familiar, and we often take ourselves to understand what they mean. But, insufficient attention is often paid to the various elements that jointly comprise a right, and very little attention is given to how those elements fit together.[1] This oversight can cause problems, and so it’s worth being clear about what we’re talking about when we speak of rights.

When discussing rights, we can distinguish between the grounds, the structure, and the content of any given right we are considering. These different elements of the right perform different functions and it is thus important to understand the distinct role of each:

  1. Grounds: The grounds of a right are the property on which that right is based. In specifying the grounds of a right, one is thereby specifying the domain of possible right-bearers. For example: On an interest theory of rights, possession of an interest in some aspect of well-being grounds rights. The potential right-bearers are specified as those beings who possess the relevant interest. If the interest is in avoiding pain, then anything that feels pain, and has an interest in avoiding it, will be part of the relevant domain. If the interest is in exercising freedom of choice, then all free beings will be part of the relevant domain.

It is important that we see that the grounds of a right do not specify the actual right bearers but only the possible right bearers (i.e., possession of the grounds is a necessary but insufficient condition for possession of the right). Consider an interest theory according to which only sufficiently weighty interests will ground rights. All beings that have the interest will be part of the domain, though only those in whom that interest is sufficiently weighty will meet the condition for having a right. This is especially apparent if we consider changing circumstances. When circumstances change, so does the weightiness of a given interest. My interest in having sufficient food to live a reasonably healthy life gets weightier the longer I go without eating. When the weightiness of my interest rises, the relations of right between different potential right bearers changes. Before, I didn’t have a right to the food in front of us, but now I do because I will become significantly worse off without it and you will be fine. The ground of the right was always present, though the triggering condition for the right (i.e., my interest in eating becoming sufficiently weighty) was not.

  1. Structure: The structure of a right concerns features of the rights such as whether it is: a claim, a liberty, etc.; horizontal or vertical (i.e., held primarily against individuals or institutions); relational or non-relational; held in rem or in personam; etc.

Hohfeld’s Fundamental Legal Conceptions as Applied in Juridical Reasoning is perhaps the most influential discussion of the possible structural features of rights. There, he determines the possible combinations of structural features of rights, while remaining neutral about their grounds.

Taken discretely, the grounds and the structure of rights do not tell us whether there are any right-bearers, or who the relevant duty-bearers are (if, indeed, there are any). In order to settle these questions—and, in doing so, to fully determine the right—we must be able to combine the grounds and the structure of the right. This combination is what gives us the content of the right.

  1. Content: The content of the right is the full determination of the right. Content is generated by applying the structure of the right to the domain specified by the grounds. This generates the actual entitlements of the right, and specifies the actual right-bearers. The exact relationship between the structure and grounds is thus important for determining the right as a whole.

To my mind, the most appropriate way to think of the relationship between the grounds and the structure of the right is to think of the structure as restricting the way in which the members of domain specified by the grounds can interact. Imposing the structure upon the grounds generates content.

It is important that we keep this various elements distinct in our thinking about rights. To not do so is to risk confusion about the nature of the right under consideration. When we are sensitive to these distinctions, it also allows us to see the points at which we makes choices about the nature of those rights we defend.

Consider this example:

One might believe that human rights are relational, in personam claims. That is, one might think that human rights are claim rights that concern the relationship between the actions or omissions of different people, and that those rights specify particular other people (rather than the world at large) as the duty bearers. However, as human rights, one might believe that the grounds of the right are non-relational. That is, one might believe that the grounds of the right are that humans are agents, or that they possess particular interests that require protection, or that their needs have special significance, etc. None of these characteristics, we might think, need to be defined in terms of a relation to others. My need for shelter and food doesn’t go away if I’m the only person in the world. These two features may appear to conflict. On one hand, we have a claim about the relationality of the right. The right concerns the relation of actions and omissions of specified agents. On the other hand, we have a claim about the non-relationality of the right. One can possess the property protected by the right even if one is alone.

Here, as one might expect, the distinction between structure and grounds alleviates the problem. While there may be a conflict in saying that the right (broadly speaking) is both relational and non-relational, there is no problem in saying that the structure of the right is relational, but the ground is non-relational. So, in the case above, we might say that the grounds of human rights are non-relational properties whose application in terms of right are only triggered in the context of relations between agents.

[1] This doesn’t by any means that no attention is given to the elements of rights, as I outline them here. That is too strong a claim. Rather the problem is that not enough attention is given.

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