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Subject Area: Political Theory

What are Rights? - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


What are Rights?

Alan Gewirth

  • University of Chicago

“The Basis and Content of Human Rights,” Georgia Law Review 13, No. 4(Summer 1979): 1143–1170.

Despite the great practical importance of the idea of human rights, some of the most basic questions about them have not yet received adequate answers. Are there such rights? How do we know there are? What is their scope or content, and how are they related to one another? Are any of them absolute, or may each of them be overriden in certain circumstances?

These are primarily substantive questions which require that we show that persons have rights other than those grounded in positive law or social custom. For if human rights are rights all persons have simply insofar as they are human, then for those rights to exist is for there to be valid moral criteria which justify their existence. When we look for such criteria or principles, however, not only do we find that no single set has been universally accepted; more fundamentally, the very context or subject-matter to which one should look to resolve the disagreements of moral principle is itself involved in disagreement, which neither traditional nor contemporary arguments have satisfactorily resolved. Nevertheless, a non-question-begging subject-matter for morality can be found by considering the general concept of morality. Amid the various divergent moralities, all agree that they are concerned with actions. For all moral judgments, including right-claims, consist directly or indirectly in precepts about how persons ought to act toward one another.

How then does the consideration of human action serve to ground or justify the ascription and content of human rights? It does so when we take a dialectically necessary approach, which proceeds from what all agents (or actors) logically must claim or accept, on pain of contradiction. In brief, because certain objects are the proximate necessary conditions of human action, all rational agents logically must hold or claim, at least implicitly, that they have rights to such objects; since the claim must be made or accepted by every agent on his own behalf, it holds universally within the context of action.

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More fully, every agent regards his purposes as good on some (not necessarily moral) criterion; hence he also regards as necessary goods the proximate general necessary conditions of his acting to achieve his purposes. From a consideration of these necessary goods or generic features of action (freedom and well-being) we get the ascription and content of rights; for when claimed by the agent himself from within the context of conative agency, there is a logical connection between these necessary goods and rights. In particular, the agent's claim is prescriptive, advocating that he have these necessary goods; it carries the idea that these goods are his due, that he is entitled to them; and it is made against others who are claimed to have the correlative obligations. But these claims are based on prudential criteria only and hence are prudential, not moral rights.

In order to establish that these claims are also moral rights we have to show that each agent must admit that all others have these rights as well. This we do by showing that the sufficient reason on which the agent must hold that he has rights to freedom and well-being (namely, that he is a prospective agent who has purposes he wants to fulfill) applies to every other prospective agent as well. Thus by the principle of universalizability, every agent must accept that every other agent has the same basic rights to freedom and well-being that he necessarily claims for himself. There is then a valid moral criterion or precept which justifies human rights and which every agent must accept on pain of self-contradiciton, the Principle of Generic Consistency (PGC): Act in accord with the generic rights of your recipients as well as of yourself.

The generic rights to freedom and well-being are further specified by analyzing their components. The right to freedom consists in a person's controlling his actions and his participation in transactions by his own unforced choice or consent and with knowledge of relevant circumstances, so that his behavior is neither compelled nor prevented by the actions of other persons. Well-being, viewed as the abilities and conditions required for agency, comprises three kinds of goods: (1) basic goods are the essential preconditions of action, the rights to which are violated when we are killed, physically incapacitated, or when others fail to give us aid when we need it and when it can be given at no comparable cost to those others; (2) nonsubtractive goods are the abilities and conditions required for maintaining undiminished one's level of purpose-fulfillment and one's capacities for particular actions, the rights to which are violated when we are lied to, stolen from, or subjected to excessively debilitating conditions of physical labor or housing; and (3) additive goods are the abilities and conditions required for increasing one's level of purpose-fulfillment and one's capabilities for particular actions, the rights to which are violated when we are discriminated against or when we are denied education to the limits of our capacities.

Since these various rights and duties may conflict with one another, they are only prima facie, not absolute. but the PGC sets the criteria for resolving these conflicts, both in its direct applications at the interpersonal level and in its indirect applications at the institutional level. These indirect applications serve in turn to justify social rules and institutions, including both the minimal state and the supportive state. Thus the PGC requires that three kinds of rights receive legal enforcement and protection: personal-security rights, social and economic rights, and political and civil rights.