Main source: Wenar, Leif, “Rights”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), URL = .

Introduction to Rights in the United States

Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.

Rights dominate modern understandings of what actions are permissible and which institutions are just. Rights structure the form of governments, the content of laws, and the shape of morality as it is currently perceived. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.

This entry begins by describing the nature of rights: their classification, their composition, and their function. It then reviews the history of the language of rights, and various relationships between rights and reasons. The major contemporary philosophical approaches to the justification of rights are compared, and the entry concludes by surveying criticisms of rights and “rights talk.” The focus throughout is on general theoretical issues instead of on the analysis or justification of specific rights. Those looking for a book-length introduction to rights may consider Jones (1994), Edmundson (2004), Campbell (2006) and Ivison (2007).

1. Categories of Rights
2. The Analysis of Rights
2.1 The Form of Rights: The Hohfeldian Analytical System
2.2 The Function of Rights: The Will Theory and the Interest Theory
3. The History of the Language of Rights
4. Rights and Freedom
5. Rights and Reasons
5.1 Rights as Trumps
5.2 Conflicts of Rights?
5.3 Support among Rights
5.4 Rights to Do Wrong
5.5 Rights to Believe, Feel, and Want
6. Three Approaches to the Justification of Rights
6.1 Status-Based Rights
6.2 Instrumental Rights
6.3 Contractual Rights
7. Critiques of Rights
7.1 Critiques of Rights Doctrine
7.2 Critiques of the Language of Rights
Bibliography
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1. Categories of Rights

A right to life, a right to choose; a right to vote, to work, to strike; a right to one phone call, to dissolve parliament, to operate a forklift, to asylum, to equal treatment before the law, to feel proud of what one has done; a right to exist, to sentence an offender to death, to launch a nuclear first strike, to castle kingside, to a distinct genetic identity; a right to believe one’s eyes, to pronounce the couple husband and wife, to be left alone, to go to hell in one’s own way.

We encounter assertions of rights as we encounter sounds: persistently and in great variety. Making sense of this profusion of assertions requires that we class rights together by common attributes. Rights-assertions can be categorized, for example, according to:

Who is alleged to have the right: Children’s rights, animal rights, workers’ rights, states’ rights, the rights of peoples.

What actions or states or objects the asserted right pertains to: Rights of free expression, to pass judgment; rights of privacy, to remain silent; property rights, bodily rights.

Why the rightholder (allegedly) has the right: Moral rights are grounded in moral reasons, legal rights derive from the laws of the society, customary rights exist by local convention.

How the asserted right can be affected by the rightholder’s actions: The inalienable right to life, the forfeitable right to liberty, and the waivable right that a promise be kept.

Many of these categories have sub-categories. For instance, natural rights are the sub-class of moral rights that humans have because of their nature. Or again, the rights of political speech are a subclass of the rights of free expression.

The study of particular rights is primarily an investigation into how such categories and sub-categories overlap. There has been much discussion, for example, of whether human rights are natural rights, whether the right to privacy is a legal right, and whether the legal right to life is a forfeitable right. (For the central jurisprudential debate over the relation between legal and moral rights, see legal positivism, natural law theories, and the nature of law.)
2. The Analysis of Rights

Categorization sorts the profusion of rights assertions. To understand the exact meaning of any assertion of a right, we need to understand more precisely how rights are constructed and what they do.

An analysis of rights has two parts: a description of the internal structure of rights (their form), and a description of what rights do for those who hold them (their function). The Hohfeldian system for describing the form of rights is widely accepted, although there are scholarly quarrels about its details. Which theory gives the best account of the function of rights has been much more contentious; we turn to that debate in section 3.
2.1 The Form of Rights: The Hohfeldian Analytical System

Analysis reveals that most familiar rights, such as the right to free expression or the right of private property, have a complex internal structure. Such rights are ordered arrangements of basic components, much in the same way that most molecules are ordered arrangements of chemical elements. The four basic components of rights are known as “the Hohfeldian incidents” after Wesley Hohfeld (1879–1918), the American legal theorist who discovered them. These four basic “elements” are the privilege, the claim, the power, and the immunity. Each of these Hohfeldian incidents has a distinctive logical form, and the incidents fit together in characteristic ways to create complex “molecular” rights.
2.1.1 Privileges (or Liberties)

You have a right to pick up a shell that you find on the beach. This right is a privilege:

A has a privilege to ? if and only if A has no duty not to ?.

To say that you have a right to pick up the shell is to say that you have no duty not to pick it up. You will not be violating any duty not to pick up the shell should you decide to do so. Similarly your right to sit in an empty seat in the cinema, and your right to paint your bedroom red, are also privileges. Privilege-rights mark out what their bearer has no duty not to do. When a US President invokes “executive privilege” to resist an assertion that he has a duty not to conceal evidence, he is invoking a Hohfeldian privilege. Similarly, a license (to drive, to perform surgery, to kill) endows its holder with a privilege to engage in the licensed activity.

(Some writers on rights have preferred to speak of “liberties” instead of “privileges” (e.g., Steiner 1994, 59–60). Others have given these two terms different definitions (e.g., Thomson 1990, 53–55). To avoid confusion, this entry will always use “privilege” and never “liberty” to refer to the incident defined above.)
2.1.2 Claims

A contract between employer and employee confers on the employee a right to be paid his wages. This right is a claim:

A has a claim that B ? if and only if B has a duty to A to ?.

The employee has a claim that the employer pays him his wages, which means that the employer has a duty to the employee to pay those wages. As seen in the definition and the example, every claim-right correlates to a duty in (at least) one duty-bearer. What is distinctive about the claim-right is that a duty-bearer’s duty is “directed at” or “owed to” the right-holder.

Not all claim-rights are created by voluntary actions like signing a contract; and not all claim-rights correspond to duties in just one agent. For example, a child’s claim-right against abuse exists independently of anyone’s actions, and the child’s claim-right correlates to a duty in every other person not to abuse her. This example of the child’s right also illustrates how a claim-right can require duty-bearers to refrain from performing some action (i.e., that “phi” can be a negative verb such as “not abuse her”).
2.1.3 Powers

Privileges and claims define what Hart called “primary rules”: rules requiring that people perform or refrain from performing particular actions (Hart 1961). Indeed the primary rules for all physical actions are properly analyzed as privileges and claims. Were we to know all the privileges and claims that there are regarding physical actions, we would know for every possible physical action whether that action was permitted, required or forbidden.

Two further Hohfeldian incidents define what Hart called “secondary rules”: rules that specify how agents can introduce, change, and alter primary rules.

The Hohfeldian power is the incident that enables agents to alter primary rules:

A has a power if and only if A has the ability within a set of rules to alter her own or another’s Hohfeldian incidents.

A ship’s captain has the power-right to order a midshipman to scrub the deck. The captain’s exercise of this power changes the sailor’s normative situation: it imposes a new duty upon him and so annuls one of his Hohfeldian privileges (not to scrub the deck). Similarly, a promisor exercises a power-right to create in the promisee a claim that the promisor will perform a certain action. The promisor’s exercise of her power-right to promise creates in the promisee a claim that the promisor do what she promised to do. Or again, a neighbor waives his claim that you not enter his property by inviting you into his home. Ordering, promising, waiving, sentencing, buying, selling, and abandoning are all examples of acts by which a rightholder exercises a power to change his own Hohfeldian incidents or those of another.

Powers can alter not only “first-order” privileges and claims, but “second-order” incidents as well (Sumner 1987, 31). An admiral, for example, has the power-right to relieve a captain of her power-right to command a ship. Rights to alter the authority of others are, as we will see, definitive of all developed legal and political systems.
2.1.4 Immunities

The fourth and final Hohfeldian incident is the immunity. When A has the ability to alter B’s Hohfeldian incidents, then A has a power. When A lacks the ability to alter B’s Hohfeldian incidents, then B has an immunity:

B has an immunity if and only if A lacks the ability within a set of rules to alter B’s Hohfeldian incidents.

The United States Congress lacks the ability within the Constitution to impose upon American citizens a duty to kneel daily before a cross. Since the Congress lacks a power, the citizens have an immunity. This immunity is a core element of an American citizen’s right to religious freedom. Similarly, witnesses in court have a right not to be ordered to incriminate themselves, and civil servants have a right not to be dismissed after a new government comes to power. All of these rights are immunities, corresponding to an absence of a power in some other party to alter the rightholder’s normative situation in some way.
2.1.5 Opposites and Correlatives

Hohfeld arranged the four incidents in tables of “opposites” and “correlatives” so as to display the logical structure of his system. In order to fill out the tables he added some further terminology. For instance, if a person A has a claim, then A lacks a “no-claim” (a no-claim is the opposite of a claim). And if a person A has a power, then some person B has a “liability” (a liability is the correlative of a power).

2.1.6 Molecular Rights

Each of the “atomic” incidents—the privilege, claim, power, and immunity—can be a right when it occurs in isolation. And as mentioned above these atomic incidents also bond together in characteristic ways to form complex rights.

2.1.7 Active and Passive Rights

The distinction between active and passive rights (Lyons 1970) maps neatly onto the Hohfeldian incidents. The privilege and the power are “active” rights that concern their holders’ own actions. The claim and the immunity are “passive” rights that regulate the actions of others. Active rights are signaled by statements of the form “A has a right to ?”; while passive rights are signaled by statements of the form “A has a right that B ?” (in both of these formulas, “?” is an active verb).

A naval captain has an active privilege-right to walk the decks and an active power-right to order that the ship set sail. A player in a chess tournament has a passive claim-right that his opponent not distract him, and a professor has a passive immunity-right that her university not fire her for publishing unpopular views.
2.1.8 Negative and Positive Rights

A distinction between negative and positive rights is popular among some normative theorists, especially those with a bent toward libertarianism. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. A right against assault is a classic example of a negative right, while a right to welfare assistance is a prototypical positive right (Narveson 2001).

Since both negative and positive rights are passive rights, some rights are neither negative nor positive. Privileges and powers cannot be negative rights; and privileges, powers, and immunities cannot be positive rights. The (privilege-) right to enter a building, and the (power-) right to enter into a binding agreement, are neither negative nor positive.

It is sometimes said that negative rights are easier to satisfy than positive rights. Negative rights can be respected simply by each person refraining from interfering with each other, while it may be difficult or even impossible to fulfill everyone’s positive rights if the sum of people’s claims outstrips the resources available.

However, when it comes to the enforcement of rights, this difference disappears. Funding a legal system that enforces citizens’ negative rights against assault may require more resources than funding a welfare system that realizes citizens’ positive rights to assistance. As Holmes and Sunstein (1999, 43) put it, in the context of citizens’ rights to state enforcement, all rights are positive. Moreover, the point is often made that the moral urgency of securing positive rights may be just as great as the moral urgency of securing negative rights (Shue 1996). Whatever is the justificatory basis for ascribing rights—autonomy, need, or something else—there might be just as strong a moral case for fulfilling a person’s right to adequate nutrition as there is for protecting that person’s right not to be assaulted.