Front Page Titles (by Subject) Recent Scholarship on Rights - Literature of Liberty, Spring 1981, vol. 4, No. 1
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Recent Scholarship on Rights - Leonard P. Liggio, Literature of Liberty, Spring 1981, vol. 4, No. 1 
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.
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Recent Scholarship on Rights
“Recent Work on the Concept of Rights.” American Philosophical Quarterly 17(July 1980):165–180.
The authors summarize recent work on the concept of rights and claim that three major issues appear: the normative elements which make up rights, the functions that rights serve, and the justification of rights. Nickels and Martin concentrate on the first two.
Some writers assert that all duties are necessarily correlated with rights; others maintain that all rights are necessarily correlated with duties. The first claim collapses because some duties are not owed to particular people (e.g. the duty to be charitable) and thus right cannot be correlated with such duties. The second claim fails because some moral or legal rights are immunities which are correlated with disabilities rather than with duties. For example, the First Amendment defines rights so that any law that Congress passes in areas denied by the Amendment will be declared null and void. Congress is legally disabled from passing such laws. This is not a case where an obligation has been created giving people an area of free choice.
If rights are not explicable in terms of second party duties, what explains them? Some have argued that the notions of claims would explain rights. But since claims as rights involve claims to and claims against someone, this view is committed to the notion that all rights entail duties (a valid claim against someone involves a duty on the part of that person). But in that case the “rights as claims” view cannot account for rights which aren't correlated with duties. Another suggestion is that rights are essentially “entitlements,” but this suggestion fails since “entitlements” is a very vague term which closely resembles “rights.”
Instead of trying to reduce rights to one normative element, perhaps rights should be seen as a constellation of normative (Hohfeldian) elements. On this view there is a defining core of Hohfeldian elements (which differs depending on whether it is a liberty-right, claim-right, immunity-right, etc.) and associated elements of the right which contribute to satisfying the core. What, then, gives unity to rights as a class? Here theorists rely on the notion that rights have a certain function in relation to other normative concepts. One possible function is that rights protect person's autonomy or give them an area of free choice. Another possibility is that rights protect certain important interests. Nickels and Martin think rights perform both functions (frequently the same right does both) and that it is implausible to weigh one function as more important than the other. The authors think the idea that rights function as trumps over collective goals is promising as a way of marking off rights from other concepts, since all rights appear to have more weight than other moral considerations and the notion of a “trump” nicely captures this.
Martin and Nickel also discuss the idea of whether rights are prima-facie rights (rights that are nonabsolute and which lack a specification as to their weight). Some philosophers have objected to this notion because rights do not disappear when they are justifiably overriden. But to say that rights are prima facie merely says something about their weight, not about their scope nor under what conditions they can be exercised.
Finally, the authors discuss some features that human rights (those justified by some moral code or rule) have been traditionally thought to possess. “Universality": only a few rights are universal in the sense that they apply to all persons and all situations. However, some rights are only universal in the sense that they exist whenever a certain type of institution exists. “Unconditionality": rights are unconditional only in the sense that the rights do not depend on a person belonging to a certain social class, or being recognized by the state. Finally, the only sense in which some rights can be viewed as “inalienable” is the weak sense that no person can voluntarily waive or relinquish them.
Nickel and Martin conclude that progress has been made in understanding what a right is, and that this progress will be helpful to philosophers who are concerned with justifying rights.