What are rights? What are the foundations of rights?
Before we can positively and logically assert certain acts and “states of being” or conditions as fundamental rights, we must first have a working definition of what is a right and establish the foundational validity of rights.
By definition, a right is defined as “a moral or legal entitlement to have or obtain something or to act in a certain way.” For the sake of simplicity, we should take the simple definition of right as entitlement. This can be considered as axiomatic in some sense. In other words, a right is something that is inherent to an individual or entity. It is generally understood as something that can be demanded without the need for special grant from any authority. To some extent, fundamental rights are universally recognized.
Even in ancient and primitive cultures, some rights were recognized and already well-established. These included the right to life, the right to liberty and the right to private property.
However, it should be noted that the right to private property was once more important than the right to liberty particularly in the case of slavery. It was not too long ago that some groups of humans were legally considered as property. Although slavery still exists in a few parts of the world today, slavery is now internationally banned.
Just like the right of freedom from slavery, many of the rights that we now take for granted and consider as fundamental rights went through a series of social upheavals and bloody struggles before they were universally recognized.
Hence, rights have socio-political and legal components that change over time. These rights do not exist in a vacuum – they are not mere abstract entities that exist separately from human interactions. Even animal rights are defined by the way humans interact with various species of animals.
Rights are foundationally justified based on ethical-moral arguments. These are also called natural rights. The moral arguments for the fundamental rights may be viewed as objective and transcendental such as in the case of religious (theistic) views. Rights are seen to be God-given such as the right to life or even the now obsolete “divine rights” of monarchs to rule with absolute political control, making them accountable only to God.
Moral rights may also be considered as logically obligatory, such as in the case of deontological moral argument based on Immanuel Kant’s categorical imperative. Rights as founded on moral arguments may also be viewed as situational and consequentially-justified such as in the case of John Stuart Mill’s utilitarianism.
To some great extent, the moral rights (natural rights) are the foundation of legal rights. Many types of legal rights can be considered as extensions and corollaries of moral rights. For instance, land titles (deeds) are legal recognition of the right to property. Similarly, the legal right against self-incrimination is a derivative of the moral right to life and liberty.
In analyzing legal rights, some basic elements can be distinctly recognized. One or more of these elements must be present in order for something to be properly considered as a right. These elements of legal rights are known as the “Hohfeldian incidents” named after Wesley Hohfeld (1879-1918). He was an American legal theorist who discovered that rights have four fundamental components, namely, the privilege (liberty or freedom), the claim, the power, and the immunity. These simple “atomic” elements have clear logical forms that can be combined in certain ways to create complex “molecular” rights.
The four Hohfeldian incidents can be arranged in tables of jural “opposites” and jural “correlatives.” The tables will display the logical structures of the system. For example, the legal right to vote has the Hohfeldian incidents of privilege and immunity because those who exercise it do not have the obligation and the liability (Hohfeldian jural opposites) to exercise it. Simply put, voters are not obligated to vote and they will not be prosecuted if they don’t vote.
The Hohfeldian analytical system is very useful in distinguishing legal rights.