It may be right to do something, or not to do something, and it may be wrong to do something, or not to do something. It is quite a different matter tho, to claim that someone has the right to do, or not to do, something. There is nothing inconsistent in asserting that someone has the right to do right or to do wrong. In other words: one may have the right to be moral; one may also have the right not to be moral, or to be immoral. Only those who commit the right-should fallacy believe that one should do something one has a right to. Maybe, a particular normative doctrine vehemently rejects every right to be immoral, while recognizing many other rights, but that is a question of the content of rights, not of their meaning or possible form. (Many, if not all, political and religious ideologies are unable to make this conceptual distinction.)

Could it be that the difference between something being right and having the right to something is one between an ethical or normative notion and a legal, and therefore factual-modal, notion? If so, then it would be obvious that a person can have the (legal) right to do something that is (morally) wrong, or that 'e might not have the (legal) right to do something that is (morally) right. But this position would amount to denying that there exist any nonlegal rights, or rights in a normative sense, at all. Yet, this is an issue to be divorced from the question of what having a right in the normative sense means. Even if there is a meaning for this expression, we still do not have to acknowledge this kind of right for that reason, let alone all kinds of fancy, alleged, moral or 'natural' right. The very fact (or rather mode) that one can meaningfully speak of the rights of people or nonpersonal beings in a context where there is no legal system at all, or where a law is morally bad, is itself a proof of the significance of a nonlegal concept of right.

The special, linguistic connection between legal and 'moral', or other nonlegal, rights is nevertheless typical of the concept of right where it is used in a normative doctrine. It suggests at least that what may not be an actual right according to the law or legal practise, should be or become a right according to the doctrine in question. Since the law in a particular country may not guarantee a fair trial, and since the actual practise of judging people in courts of law in a country may not be fair, the right to a fair trial, for instance, means that the law should guarantee a fair trial, and that the actual judgments should be fair.

Some theorists on rights want us to believe that a right is nothing else than a 'claim upheld by law', or a 'future judicial remedy', or an 'opportunity guaranteed by the state', and so forth. Of course, such definitions drain the concept of right of all normative significance and make it into a factual-modal, legal notion. Other theorists are less one-sidedly legalistic or 'archistic'. Nonetheless, their conceptions display a similar attitude. They may define a right as a permission secured by public force or as a power of influencing the acts of another by the force of society or as an interest recognized and protected by a rule. But even when merely conceiving of a right as a 'liberty', it has still to be made explicit whether reference is made to a liberty someone (actually) has, or a liberty someone should have. (And then there remain all the different meanings of liberty and freedom to be tackled.)

When speaking of the concept of right as a factual-modal notion, this does not necessarily involve the law. Any existing system of cultural or 'social' norms is or would be factual-modal in the same sense, even in an anarchical society or community. Yet, it is the law of a state, or between states, which is the most clearly institutionalized system of such cultural norms. It is therefore the legal concept of right which has attracted more attention than any other factual-modal concept of right. One legal theory of rights in particular has been very influential. According to this theory there is a strict and a loose usage of right. In the strict sense a 'right' would be the jural opposite of a 'no-right' and the jural correlative of a duty. In this view a right is, strictly speaking, only a claim, but in a looser sense it covers privileges or liberties, powers and immunities too. The whole scheme centers round the relations of being-the-jural-opposite or -correlative between legal right elements.

On the basis of the legal theory of right elements an analogous conception of ethical rights has been developed. This theory recognizes also four 'advantages' (claims, liberties, powers and immunities) and four 'disadvantages' ( no-claims, duties, liabilities and disabilities). But instead of being described as a 'complex system of legal advantages', an ethical right is now described as a 'complex system of ethical advantages'. The concept of right is in neither field restricted to a single feature, but refers to a constellation of four different elements (for other theorists to several of those elements). A distinction has been drawn, next, between --what has been called-- 'the defining core of a right' (an element or pair of elements 'fundamental to its existence') and the other elements belonging to it. Dependent on the element(s) in the defining core, both legal and ethical rights have been subdivided into 'claim-', 'liberty-', 'power-' and 'immunity-rights'. However, from a normative point of view it seems hardly necessary (if at all) to speak of the latter two types of 'right'. Power(-right) and immunity(-right) are primarily modal and not normative notions. Power refers to an ability required for performing some sort of act with a certain kind of 'legal or ethical consequence'. As the argument goes, one must have the power, for example, to make a promise. But when talking about rights and duties with respect to a particular situation in which someone promised a certain thing, this power or ability is already presupposed. (Ought implies can in practise.) And when talking about rights and duties with respect to the question whether someone ought to be able or not to be able to perform 'the', that is any act of promising, this is another subject altogether.

Those who do not take the view that the concept of right itself is a compositional notion have usually analyzed a right as essentially a claim or a liberty. It need not be merely a claim in their eyes; it has also been defined as a 'valid claim to something and against someone'.

The most outspoken noncognitivistic is probably the position of those who maintain that uttering a proposition with (to have a) right (to) in it, is merely a question of 'choosing a side' or that such an utterance is merely some 'complicated performance'. Altho linguistic considerations have always played, and will continue to play, an important part for us, because language is our only means of communication at this place, it is something else to remain completely entangled in propositional affairs without ever getting closer to the subject matter itself. At the moment we are interested in rights, or if they do not really exist, in the norms or absence of norms which give rise to them. It is more than the language of rights we are concerned about, more than the propositions in which the word right occurs.

On a functionalist, cognitivist account rights have also been portrayed as 'trumps over collective goals'. This account rests on a conception of individual, human dignity and political equality. It treats of right as a notion relating to the distributive principles which counteract the effects of one or more purely aggregative principles such as that of ordinary utilitarianism. Consequentialist theories with aggregative goals only need not aim at something abstract like maximum or average utility; they may aim at less abstract goals too, like general welfare or maximum security. But in all these cases everyone's behavior must somehow serve these collective goals, and a doctrine which exclusively recognizes one or more aggregative principles disallows any act which does not serve these collective goals. If on another view a person or living being is free to perform such an act nevertheless (altho the one or more collective values may be recognized as well), this person or living being is said to 'have a right' to that particular act or kind of act.

A purely aggregative form of consequentialism cannot cope with rights very well, or not at all. Yet, even a consequentialist theory with one or more distributive values might be incompatible with certain alleged rights, such as the right to give or to bequeath -- it has been argued. Any distributional pattern (egalitarian or not) would be upset anyhow by the individual's right to hold and to choose that someone else holds in 'er place. Hence, there are bound to be many conflicts, not only between rights and aggregative principles, but also between rights and pattern-based distributive principles. The fundamental question which usually remains hidden in discussions on the latter kind of conflict is the question of what having (a right to or of) property means in a normative sense -- not in some legal or social, factual-modal sense of owning, nor in some factual sense of possessing. Not until we know sufficiently what 'property' is, or is not, can we know what we or some collective agency hold, and what we or that collective agency may give away. If there is a moral right to hold and a moral right to give and bequeath, then certainly not to hold, give or bequeath what one morally does not own, whatever the legal or social practise may be. This issue we have to leave for now until we are going to discuss the concept of property itself.

Traditional consequentialism has been criticized for other or broader reasons, namely that it could not accomodate agent-relative values and the autonomy or integrity of human beings or people. However, if a consequentialist system does allow to look at its goal or goals from different angles, and if it does allow for agent-relative evaluations of consequences, then --it has been argued-- rights can be incorporated in such a system as 'goal-rights'. We will return to this concept of rights as goals when reviewing some theories of the justification of rights.

©MVVM, 41-57 ASWW

Model of Neutral-Inclusivity
Book of Instruments
Right-Duty Constellations
The Basics of 'Having a Right'