Sep 1, 1964
In this essay, Hazlitt explores the legal, historical, and philosophical foundations of rights.
The concept of Rights is in origin a legal concept. In fact, in most European languages the term for Law is identical with the term for Right. The Latin jus, the French droit, the Italian diritto, the Spanish derecho, the German Recht signify both the legal rule that binds a person and the legal right that every person claims as his own. These coincidences are no mere accident. Law and Right are correlative terms. They are two sides of the same coin. All private rights are derived from the legal order, while the legal order involves the aggregate of all the rights coordinated by it. As one legal writer puts it: “We can hardly define a right better than by saying that it is the range of action assigned to a particular will within the social order established by law.”¹
In other words, just because every person under the rule of law is divested of an unlimited liberty of action, a certain liberty of action within the legal limits is conceded and guaranteed to him by right.
When a man claims something as a right, he claims it as his own or as due to him.The very conception of a legal right for one man implies an obligation on the part of somebody else or of everybody else. If a creditor has a right to a sum of money owed to him on a certain day, the debtor has an obligation to pay it. If you have a right to freedom of speech, to privacy, or to the ownership of a house, everyone else has an obligation to respect it. A legal right for me implies a legal duty of others not to interfere with my free exercise of it.
Among legal rights almost universally recognized and protected today are the right to freedom from assault, or from arbitrary arrest or imprisonment; the right to be protected from arbitrary intrusion into one’s home; the right to freedom of speech and publication (within certain established limits); the right to hold property; the right to compensation for damages inflicted by trespassers; the right to demand fulfillment of a contract; and many others.
The notion of legal right has its counterpart in legal duty. In their legal relations men either claim or owe. If A exerts an acknowledged right, he has the legal power to require that B (or that B, C, D, etc.) shall act or forbear to act in a certain way — shall do something or abstain from doing something.
Neither legally nor morally can “property rights” be properly contrasted with “human rights”:
The right of ownership is, strictly speaking, quite as much a personal right—the right of one person against other persons—as a right to service, or a lease. It may be convenient for certain purposes to speak of rights over things, but in reality there can only be rights in respect of things againstpersons…. Relations and intercourse arise exclusively between live beings; but goods as well as ideas are the object and the material of such relations; and when a right of ownership in a watch or a piece of land is granted to me by law, this means not only that the seller has entered into a personal obligation to deliver those things to me, but also that every person will be bound to recognize them as mine.
“Every single legal rule may be thought of as one of the bulwarks or boundaries erected by society in order that its members shall not collide with each other in their actions.” 3 As every legal rule appears as a necessary adjunct to some relation of social intercourse, it is often difficult to say whether the rule precedes the rights and duties involved in the relation, or vice versa. Both of these sides of law stand in constant cross-relations with each other.
In the last three centuries there has been an expansion of legal rights and an increasingly explicit recognition of their existence and importance. To protect the individual against abuses in statute law or by law-enforcement officials, “bills of rights” have been incorporated into written constitutions. The most famous of these is the Bill of Rights adopted in 1790 in the American Constitution.
The Bill of Rights is another name for the first ten Amendments. It guarantees freedom of worship, of speech, and of the press; the right of the people peaceably to assemble, and to petition the government for a redress of grievances; the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; the right of every person not to be compelled in any criminal case to be a witness against himself; nor to be deprived of life, liberty, or property, without due process of law; nor to have his property taken for public use, without just compensation; the right of the accused, in all criminal prosecutions, to a speedy and public trial by an impartial jury; the right to be protected against excessive bail and excessive fines, and cruel and unusual punishments.
This list is not complete. To the rights specified in the first ten Amendments, additional rights were later added in the Fourteenth Amendment. Some rights, in fact, are specified in the original Constitution. The privilege of the writ of habeas corpus cannot be suspended unless in cases of rebellion or invasion the public safety may require it. Congress is prohibited from passing any bill of attainder or ex post facto law. Any state also is prohibited from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts.
We shall return later to fuller consideration of some of these rights, and of their scope and limitations.
Especially in the last two centuries, there has been a broadening of the concept of legal rights to the notion of “natural” rights. This was already implicit and sometimes explicit, however, in the thought of Plato and Aristotle, of Cicero and the Roman jurists, and becomes more explicit and detailed in the writings of Locke, Rousseau, Burke, and Jefferson.4
The term Natural Rights, like the term Natural Law, is in some respects unfortunate. It has helped to perpetuate a mystique which regards such rights as having existed since the beginning of time; as having been handed down from heaven; as being simple, self-evident, and easily stated; as even being independent of the human will, independent of consequences, inherent in the nature of things. This concept is reflected in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
A Goal or Ideal
Yet though the term Natural Rights easily lends itself to misinterpretation, theconcept is indispensable; and it will do no harm to keep the term as long as we clearly understand it to mean ideal rights, the legal rights that every man ought to enjoy. The historic function of the doctrine of Natural Rights has been, in fact, to insist that the individual be guaranteed legal rights that he did not have, or held only uncertainly and precariously.
By a further extension, we are justified in talking not only of “natural” legal rights but of moral rights. Yet clarity of thought demands that we hold fast to at least one part of the legal meaning of “rights.” We have seen that every right of one man implies a corresponding obligation of others to do something or refrain from doing something so that he may be protected in and even guaranteed that right. If we abandon this two-sided concept the term right becomes a mere rhetorical flourish without definite meaning.
Before we examine the real nature and function of “natural” or moral rights it will clarify our ideas to look at some illegitimate extensions of the concept.
These have been rife for the last generation. An outstanding example is the Four Freedoms announced by President Franklin D. Roosevelt in 1941. The first two of these — “freedom of speech and expression,” and “freedom of every person to worship God in his own way” — are legitimate freedoms and legitimate rights. They were, in fact, already guaranteed in the Constitution. But the last two — “freedom from want… everywhere in the world” and “freedom from fear… anywhere in the world” are illegitimate extensions of the concept of freedom or the concept of rights.
It will be noticed that the first two are freedoms of (or to), and the second two are freedoms from. Had Roosevelt used the synonym “liberty,” he would still have been able to promise “liberty to,” but English idiom would hardly have allowed him to promise “liberty from.”5 “Freedom to” is a guaranty that no one, including the government, will be allowed to interfere with one’s freedom of thought and expression; but “freedom from” means that it is considered the duty of someone else to supply one’s wants or to remove one’s fears. Aside from the fact that this is a demand impossible of fulfillment (in a world of daily dangers and in a world in which we have not collectively produced enough to meet all our wants), just how does it become someone else’s duty to supply my wants or to banish my fears? And how do I decide just whose duty it is?
Human Rights and the U. N.
Another outstanding example of a demand for pseudo-rights is found in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948. This declaration states, for example, that “everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” Assuming that this is even possible for everyone (in South America, Asia, Africa, and in the present state of civilization), whose obligation is it to provide all this? And how far does each provider’s alleged obligation extend?
The same questions may be asked of all the rhetorical demands for alleged rights that we now hear almost daily —”the right to a minimum standard of living”; “the right to a decent wage”; “the right to a job”; “the right to an education”; and even “the right to a comfortable living”; “the right to a satisfactory job,” or “the right to agood education.” It is not only that all these alleged rights have vague quantitative boundaries — that they do not specify how high a wage is considered “decent” orhow much education “the right to an education” implies. What makes them pseudo-rights is that they imply that it is somebody else’s obligation to supply those things. But they do not usually tell us whose obligation, or precisely how it comes to be his.My “right to a job” implies that it is somebody else’s duty to give me a job, apparently regardless of my qualifications or even whether I would do more damage than good on the job.
Absolute vs. Prima Facie Rights
Unfortunately, disposing of some of the more obviously pseudo-rights does only a little to simplify our problem. Natural rights or moral rights are not always self-evident, are not necessarily simple, and are seldom if ever absolute. If legal rights are the correlates of legal rules, moral rights are the correlates of moral rules. And as moral duties may sometimes conflict with each other, so may moral rights. My legal and moral rights are limited by your legal and moral rights. My right to freedom of speech, for example, is limited by your right not to be slandered. And “your right to swing your arm ends where my nose begins.”
The temptation to simplify moral rights is great. One moral philosopher, Hastings Rashdall, tried to reduce them all to one single right — the right to equality of consideration:
Not only does the principle of equal consideration not necessarily prescribe any actual equality of Well-being or of the material conditions of Well-being: when properly understood, it does not favor the attempt to draw up a prioriany detailed list of the “rights of man.” It is impossible to discover any tangible concrete thing, or even any specific “Liberty of action or acquisition,” to which it can be contended that every individual or human being has a right under all circumstances. There are circumstances under which the satisfaction of any and every such right is a physical impossibility. And if every assertion of right is to be conditioned by the clause “if it be possible,” we might as well boldly say that every man, woman, and child on the earth’s surface has a right to £1000 a year.
There is every bit as much reason for such an assertion as for maintaining that every one has a right to the means of subsistence, or to three acres and a cow, or to life, or to liberty, or to the Parliamentary franchise, or to propagate his species, or the like. There are conditions under which none of these rights can be given to one man without prejudice to the equal rights of others. There seems, then, to be no “right of man” which is unconditional, except the right to consideration—that is to say, the right to have his true Well-being (whatever that true Wellbeing be) regarded as of equal importance in all social arrangements with the Well-being of everybody else.
Elaborate expositions of the rights of man are, at best, attempts to formulate the most important actual or legal rights which an application of the principle of equality would require to be conceded to the generality of men at a particular state of social development. They are all ultimately resolvable into the one supreme and unconditional right—the right to consideration; and all particular applications of that principle must be dependent upon circumstances of time and place.6
A Vague Criterion
In its negative contention — in emphasizing how many devoutly to-be-wished-for conditions may be falsely called rights — this passage is highly instructive. But in its affirmative contention — in its effort to prove that all rights may be subsumed under equality of consideration — the passage cannot be called successful. No doubt “equality of consideration” is one moral right. But it is a very vague one. Suppose we think of it for a moment as a claimed legal right. Suppose a chair of philosophy falls vacant at Harvard and M, N, and 0 are among those who secretly aspire to be appointed to the post. And suppose, instead, that A gets the appointment and M, N, and 0 discover that A was, in fact, the only man even considered for the post? How could any one of the unsuccessful hopefuls go about legally proving that he did not get equality of consideration? (And in just what would “equality of consideration” have consisted?) He could say that the appointing group was influenced byirrelevant considerations — by considerations apart from what were strictly A’s qualifications for the post — or that his, M’s, qualifications for the post were not even considered. But could the appointing group reasonably be expected to consider equally everybody’s qualifications for the post? Or is Rashdall’s criterion merely another form of Bentham’s “everybody to count for one, nobody to count for more than one”? And just how would either criterion help a man to decide a specific moral problem — such as, in a shipwreck at sea, whether to save his wife or a stranger? Or even (if conditions made this the only alternative) whether to save his wife ortwo strangers?
We must try to think of moral rights with at least as much care and precision as legislators, judges, and jurists are compelled to think of legal rights. We cannot be satisfied with any vague and easy rhetorical solutions. Legal rights actually constitute an intricate and interrelated structure of rights worked out by centuries of judicial reasoning applied to centuries of human experience. Contrary to Justice Holmes’s facile epigram: “The life of the law has not been logic; it has been experience,”7 the life of the law has been both logic and experience. The law is the product of logic and reason brought to bear on experience.
Few Rights Are Absolute
As everyone’s rights are conditioned by the equal rights of others, as the rights of each must be harmonized and coordinated with the equal rights of all, and as one right may not always and everywhere be compatible with another, there are few if any absolute rights. Even the right to life and the right to freedom of speech are not absolute. John Locke often wrote as if the rights to life, liberty, and property wereabsolute, but he made exceptions and qualifications in the course of his discussion: “Every one as he is bound to preserve himself… so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind, and not unless it be to do justice on an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”8 (My italics.)
Even the right to freedom of speech does not extend to libel, slander, or obscenity (though there may be difficult problems of definition concerning the latter). And nearly everyone will concede the limits to free speech as defined by Justice Holmes in a celebrated opinion:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from injunction against uttering words that may have all the effect of force. The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.9
Adherence to Principle the Ultimate Foundation
The suggestion has been made, following the analogy of the concept of “prima facieduties” (which we owe to Sir David Ross), that though we have no absolute rights, we do have prima facie rights. That is, we have a prima facie right to life, liberty, property, etc., which must be respected in the absence of some conflicting right or other consideration. But just as the law must be more precise than this, so must moral philosophy. Legal rights are of course subject to certain conditions and qualifications. But within those necessary qualifications, legal rights are or ought to be inviolable. And so, of course, should moral rights be inviolable.
This inviolability does not rest on some mystical yet self-evident “law of nature.” It rests ultimately (though it will shock many to hear this) on utilitarian considerations. But it rests, not on ad hoc utilitism, on expediency in any narrow sense, but on rule utilitism, on the recognition that the highest and only permanent utility comes from an unyielding adherence to principle. Only by the most scrupulous respect for each other’s imprescriptible rights can we maximize social peace, order, and cooperation.
I Paul Vinogradoff, Common-Sense in Law (Home University Library; New York: Henry Holt, 1914), pp. 61-62. I am indebted to Vinogradoff’s whole discussion of the nature of rights in positive law.
2 Ibid., pp. 68-69.
³ Ibid., p. 70.
4 A scholarly and illuminating history can be found in Leo Strauss, Natural Right and History (University of Chicago Press, 1953).
5 See George Santayana, Dominations and Powers (New York: Scribner’s, 1951), p. 58
6 The Theory of Good and Evil (Oxford University Press, 1907), I, 227.
7 Justice Oliver Wendell Holmes, Jr., The Common Law (1881).
8 Two Treatises of Civil Government
9 Schenck v. United States, 249 U.S. (1689), Book II, Chap. 2, sec. 6. 52.
This article originally appeared on the Foundation for Economic Education’s The Freeman blog.