What is a right?

[Jonathan Buhacoff]

This is a proposal to develop a working definition of rights, which can then be used in other proposals regarding rights.

A summary of this proposal:

* A right is a social construct, agreed upon and accepted by members of a society, and applies to all members of society.
* Rights should be declared in the constitution.
* Members of a society must obligate themselves to seek justice for themselves and for others when rights are violated.
* The consent of the person or people harmed by violation of rights is not necessary for others to seek justice on their behalf.
* When seeking justice for violation of rights, the goal must be to make things right and not to enrich the victim or the attorney
* The number of rights must be kept to a minimum that is required to achieve a strong foundation for society.
* Rights that apply only in special situations may require an organization to guard and seek justice against violations.

A brief summary of the various concepts of rights that have been proposed:

* Natural rights (created by nature) vs legal rights (created by society)
* Claim rights (obligation on others) vs liberty rights (freedom to act)
* Positive rights (permission to act) vs negative rights (prohibition on others)
* Individual rights vs group rights

A summary of our position on each one of these:

* We don’t use the term “natural rights” because rights are a social construct
* We don’t use the term “legal rights”, because there are no “illegal rights”; using the concept of “social rights” instead, social rights are either “proposed” (a minority recognizes the right and advocates for it) or “accepted” (a majority recognizes the right and advocates for it) or “constitutional” (the right has been declared in the country’s constitution)
* We don’t use the term “claim rights”, preferring to express obligations on others as laws creating the obligation and the system through which the obligation will be fulfilled
* We don’t use the terms “liberty rights” and “positive rights”, preferring to define liberties which are limited by other people’s rights
* We don’t use the term “negative rights”, preferring to name rights after the freedom they protect (which is easy to remember), but defining them as a set of prohibitions on others
* We define all rights as individual rights; any reference to group rights is merely a short-hand for a collection of related rights for a specific situation for analysis or discussion, but they exist only as individual rights or as laws creating obligations
* We attempt to define the minimum set of rights that is necessary, avoiding repetitive or duplicate rights that are the same but merely applicable to different situations; there are some cases in which some overlap is acceptable for the purpose of clarity and we try to minimize such occurrences

Rights are a social construct

A right is a social construct. A person alone in nature and not part of a society, has no need for rights and cannot benefit from rights. That person can have no rights or make up whatever rights they want, and it makes no difference because there is nobody around to violate them or to fight for them. When a person is among others, rights must be agreed upon. If a person claims a right and others reject it, the outcome depends on negotiation or violence. Similarly, if a person seeks justice for a violation of rights, it is obtained through negotiation or violence by that person with or without the support of others, or by others who fight for that person’s rights. Finally, if a person’s injury or death is perceived as a violation of rights, it is up to others to seek justice by negotiation or violence and they do not require the consent of the victim to seek that justice. Therefore, members of society must agree on rights and must obligate themselves to seek justice for themselves and for others when rights are violated. Without such an agreement, rights are not enforced. Without enforcement, rights do not exist.

Therefore, we say there are no natural rights, only societal rights.

Adoption of rights

Anyone can propose a right, but to make it work the right must be accepted by the majority. Imagine a situation in which someone proposes that they have the right to take anyone’s property. That right would likely be rejected by a majority of people, and any attempt by that person to take someone else’s property would be seen as a violation and cause a conflict. As a practical matter, individuals should not attempt to enforce proposed rights because they haven’t been accepted yet — it will only lead to problems for them. When a right has been accepted by the majority, individuals may attempt to enforce that right and have a good chance of prevailing in court in case of a conflict due to the majority acceptance. The best situation for a right is when it has been accepted by the majority and added to the country’s constitution. At this point it is a constitutional right and individuals can be confident in enforcing such rights.

When considering whether a proposed right should be adopted by society, it’s important to determine whether it creates an obligation on others, or a liberty which protects the freedom and permission to act, or a prohibition on others.

Since rights only exist when enforced, there must be an obligation to seek justice when constitutional rights are violated, and constitutional rights must be taught to new members of society — both immigrants and children.

Rights and obligations instead of “claim rights”

We reject the use of “claim rights” that create obligations on others, preferring to express them as a combination of prohibitions and laws creating the obligation and systems to ensure that society meets those obligations. For example, the right to education does not mean that anyone can just approach anyone else and demand to be taught something. Education involves a teacher, a classroom, lesson plans, school supplies, transportation, instructional standards, and a myriad of other things involved all of which cost money or require someone’s time. A right to education cannot be fulfilled without the infrastructure or at least some system in place to provide that education. So we express the right to education as a set of prohibitions on others to prevent interference with someone receiving their education, and a set of laws creating the systems that are required to operate a public education program. Whenever a right creating an obligation is proposed, careful consideration must be given to the obligations on society and the adoption of a claim right should be accompanied or followed by the adoption of at least one law creating the system that will help society fulfill those obligations.

Liberties instead of “positive rights”

We reject the term “positive rights” because freedom or permission to do something must always be limited by the “negative rights” of other people. For that reason, we prefer to express such ideas as liberties, which we define as a freedom or permission to say or do something which is limited by the rights of others and may also be limited by the availability of resources or applicable laws and regulations. For example, the right to travel guarantees that neither the government nor private individuals are allowed to interfere with someone moving from one place to another, but does not grant someone the right to trespass on another’s property, to enter public facilities outside of their operating hours. The right to travel is limited to adults who are not under arrest or imprisonment. A minor, for example, may not be allowed to travel somewhere without a parent or guardian’s permission. These boundaries and limitations should be carefully considered and mentioned in the definition of the right itself or in accompanying explanation.

Rights as freedoms and prohibitions

Negative rights prohibit other people from doing things, and these need to be carefully considered to avoid unnecessarily limiting the freedom of others. For example, the right to consent prohibits forcing or coercing someone to “agree” to a contract. It limits the freedom of other people to force or coerce an agreement, and probably most people would agree this is a good thing and not shed any tears for the villains who are not allowed to force or coerce people. However, it also has a limit on the person consenting to the agreement, which is that they don’t have the right to consent to an agreement that would harm someone else or violate enacted laws.

We prefer to name rights after the freedoms they protect, while defining them as a collection of prohibitions on others. The term “negative rights” may be clear to academics but creates confusion.

Equal rights

Rights must apply to every member of society. If rights apply only to some individuals but not others, they will create resentment. However, some rights are only applicable in certain situations so while not everyone may be in that situation, they are equally applicable to everyone who is in that situation. Group rights are merely organized collections of individual rights. Sometimes people talk about rights as if they are group rights, but this is merely a short-hand for a collection of individual rights. For example, “patient rights” apply to all healthcare patients, “female rights” apply to all females, “male rights” apply to all males, “children’s rights” apply to all children, “worker’s rights” apply to all workers, and so on. We reject the use of “group rights” as a concept that a certain group of people have rights that other groups don’t have. Instead, any reference to group rights must be understood to mean that it applies to anyone in the same situation.

Minimum set of rights

The number of rights should be the minimum that is required to achieve a strong foundation for society. If there are too many rights, it may be difficult for a normal person to remember all of them and this will cause conflict instead of order. Societies with a large population may create additional rights for special situations with a corresponding organization to guard and seek justice against violations of those additional rights. For example the right to asylum is not one that most people would interact with on a daily basis, but it is something that people guarding the border or working with immigrants might encounter, and to ensure this right is protected some cooperation is needed among the people involved.

Organized enforcement

For example, the category of individual rights referred to as “patient rights” applies only in a medical care setting, but is essentially an application of other rights such as right to life, right to consent, right to equal opportunity, and more. However, because violations of those individual rights in a medical care setting might be difficult or impossible for the patients themselves to pursue, a large society should create an organization dedicated to protecting the individual rights of all people but focusing its efforts on the special situation when a person is a patient in a medical care setting. Other organizations may similarly be created for protecting individual rights of all people in other special situations, such as for students in schools, for defendants in courtrooms, for people seeking asylum, and so on.

Limited rights

Rights are not absolute. For example, if there’s a right to travel, there may still be checkpoints and restricted areas. Or if there is a right to parental control, it does not allow the parents to harm the child or prevent the child’s education. The definition of a right should include important limits where they are known.

Waivable rights

A person is allowed to waive one or more rights in some situations. To the extent that minors have rights, minors cannot waive their own rights — only a parent or guardian may waive the rights of a minor in their care, and even this is limited to prevent abuse.

Obligation to seek justice

An important part of the consensus required to propose, accept, and declare a constitutional right is that people agree to defend that right and to seek justice for themselves and others when that right is violated. Rights are an important part of the social fabric of the country.

Justice for violation of rights

When seeking justice for violation of rights, the first goal is relief, meaning to end the violation. The second goal is correction, meaning to put in place rules and a system of enforcement to prevent future violations by the same person or organization. The third goal is restitution, meaning to restore the victim or the victim’s family to their prior position in the form of returning property that was taken away or compensating for loss or damage or harm. If the harm is irreparable, such as permanent injury or death, the compensation may be increased or the perpetrator may be sentenced to community service. The fourth goal is deterrence, meaning to punish the perpetrator in some way that will deter future violations by others. The circumstances should affect the punishment, such that if the violation was intentional, repeated, malicious, or coordinated the punishment should be accordingly greater.

Judges should not award any sum to a victim that is not due to restitution. If a monetary fine is imposed on the violator for deterrence, that money does not go to the victim — it goes to the treasury.

Judges should only award attorney fees for hours worked at market rates. Seeking justice for a violation of rights is an important duty and attorneys should be compensated enough to make a living but not to be enriched by the process. It is never appropriate to award attorneys a percentage of restitution collected. Reasonable attorney fees should always be added to the judgement such that the victim gets the full restitution they are owed and don’t share any of it with the attorneys.

In cases where the plaintiff is seeking justice for a violation of rights, it should be illegal for attorneys to demand a share of proceeds or to demand that their client compensate them for any fees or rates that are above market rate or that they did not submit to the judge to consider.

Comparison to the United States

In the United States Constitution, the Ninth Amendment states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This phrase creates ambiguity because people will undoubtedly claim rights that haven’t been agreed upon by society, and judges will then be ruling in favor of or against rights that maybe haven’t even been discussed by the legislature. When rights are adopted, those are the rights. This doesn’t mean there can never be more rights — society can always adopt more rights but it has to be done the right way, through broad consensus, and that means only the legislature can create new rights. In the United States and other countries with a constitutional document, that law would be an amendment to that document — the most important laws of the land. In other countries without such a document, the new right may be expressed as a law or royal decree.

Comparison to the United Nations

The United Nations has adopted a Universal Declaration of Human Rights. Article 1 is really a preamble and doesn’t describe any right, but says that everyone has the same rights. That is reflected here where we state that a right applies to all members of society. The concept in the United Nations declaration is that everyone everywhere has rights, and that’s a nice idea but it’s not really a right if there aren’t people who obligated themselves to fight for it, and the United Nations is not an organization that’s going to initiate a war to fight for someone’s rights so it’s only talk. Every society must agree on the rights its members have. We hope that more societies will adopt the rights described and discussed in this forum, because we believe they are important for peace and prosperity.

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