On Rights

The concept of rights (natural rights, civil rights, etc.) is an important one that is often not well understood. Many privileges are mislabeled as rights, but the distinction between rights and privileges is critical since conflating the two concepts can result in flawed arguments for various public policies. It doesn’t help that many dictionaries use “privilege” in the definition of “right” and vice versa. One dictionary has these relevant definitions for “right”:

1. something to which one has a just claim, as a: the power or privilege to which one is justly entitled b (1): the interest that one has in a piece of property —often used in plural(2)plural: the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature

2. something that one may properly claim as due

The same dictionary has this definition for “privilege”:

a right or immunity granted as a peculiar benefit, advantage, or favor

Perhaps a better way to understand the distinction between rights and privileges is to consult a thesaurus. Synonyms for “privilege” include “allowance” and “entitlement” (this thesaurus also includes “right” as a synonym, unfortunately). It should be clear, though, that there is a difference between a mere “allowance” and a right. One’s right to life is not an “allowance” or “privilege” or even “entitlement” — it is a (near) absolute right which is justly due to each person except when one has forfeited it of his own volition (e.g. one who is attempting to murder another person has forfeited his right to life). Privileges like drinking alcoholic beverages or driving, on the other hand, are not inherently due to each person and are typically earned in some way (e.g. by age or some achievement).

The relationship between individuals and their government is often described as a “social contract”. The idea is that individuals agree to a “contract” in which they relinquish certain privileges in order to obtain different (and more desirable) privileges from their government.  For example, individuals relinquish their ability to spend their wealth only on what they desire (i.e. pay no taxes) in exchange for various services provided by the government (police protection, construction of infrastructure, etc.). Under this social contract, individuals subject to their government are afforded certain rights and privileges.

The rights held by individuals can be differentiated between “negative rights” and “positive rights”. A negative right is one which requires no action or inaction on the part of the government. The government is required not to deny these negative rights to individuals in its jurisdiction and the government does not need to perform any action or service in order for individuals to exercise these negative rights. Rights such as life, free speech, free religion, free press, etc. are negative rights since the government does not need to provide anything in order for individuals to have life, free speech, etc. — they occur naturally. A “positive right” is one which requires a certain action or service on the part of the government. A “positive right” might be a “right to national defense” or “right to health care” since a government must act or provide a service to fulfill such an obligation.

It is important to note that all of the rights listed in the United States Bill of Rights are negative rights. An American citizen’s right to free speech, right to keep and bear arms, right to due process, etc., are all negative rights since they protect individuals from actions by the United States federal government. None of the rights listed in the Bill of Rights are “positive rights” which obligate the government to perform an action or service. Instead, the government is forbidden from violating these rights. The language of the Ninth Amendment also makes clear the fact that the Bill of Rights only recognizes negative rights:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The rights referred to by the Ninth Amendment exist naturally since they are “retained by the people”. But only negative rights exist naturally since “positive rights” must be provided by the government, by definition. It makes no sense to say that the people retain their “right to national defense” or “right to health care” because these “positive rights” do not exist without a government to provide them.

The problem with “positive rights” is that they can’t be treated the same way as negative rights. A government that fails to allow its citizens to exercise their rights commits an illegal act and fails to abide by the social contract. By the nature of negative rights, a government is always capable of providing for its citizens’ negative rights — it simply has to avoid violating them. On the other hand, a government may fail to provide for a “positive right” even if it uses all its (finite) resources. For example, a government may establish a military and defenses in order to attempt to provide national defense, but a surprise attack by a foreign armed force may cause the government to fail to provide national defense. Has this government committed an illegal act in its failure? Of course not! National defense is a privilege that is earned by citizens when they enter into the social contract with their government. “Positive rights” are therefore more correctly described as privileges — governments have finite resources, and they may simply not have enough necessary resources to provide these privileges. A government does not violate the social contract if it is unable to provide them.

Another difference between negative rights and “positive rights” is that all governments with jurisdiction over a particular individual must protect his negative rights, but it is not necessary for all such governments to attempt to provide for his “positive rights”. For example, if his local government protects his negative right of free speech but his national government doesn’t, then he has still effectively lost this negative right. On the other hand, it is unnecessary and likely wasteful for his local government to attempt to provide him with his “positive right” (privilege) of national defense since that is a service more suitably provided by his national government. Some “positive  rights”/privileges, in fact, require no government to provide them — individuals can enjoy privileges like drinking alcoholic beverages and driving without any government providing those alcoholic beverages to drink or vehicles to drive (a government may choose to regulate such privileges, but in that case the government is enforcing restrictions on such privileges rather than providing them).

The failure to understand the distinction between negative rights and “positive rights” (privileges) can lead individuals to advocate various public policies using flawed arguments. One such flawed argument is that the government is obligated to provide for its citizens’ “right” to health care. This supposed right is clearly a “positive right” since the government would have to provide health care service. However, even a rich government may be unable to provide all its citizens with health care if, for example, there are insufficient health care experts or if the government lacks sufficient resources to provide the necessary health care to its citizens during and after a natural disaster or plague. Unlike negative rights like free speech, health care is a finite resource. Also, it is not actually necessary for any government to provide health care — individuals can trade with each other to obtain health care from health care experts even in an anarchy, and many governments do not provide health care service yet most of their citizens are able to obtain the health care they need (not everyone can receive the health care they need, unfortunately, because health care is a finite resource whether it is provided by the government or not). Health care is therefore more properly considered a privilege, but by calling it a “right” one is easily duped into believing that a government must provide health care service just as it must honor its citizens’ negative rights like free speech. One can argue that a government should implement certain public policies like provision of health care, but to say that a government is obligated to implement such public policies is disingenuous and false.

There are many public policies which are advocated by individuals confused by the distinction between privileges and rights. One should always be careful when using or hearing the word “right” — is it really a right or just a privilege?

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One thought on “On Rights

  1. Men are civil, as long as comfortable.

    Strong post indeed. We don’t have rights. None of us do. They are temporary privileges poured onto us, from the high and mighty.

    🙂

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