Authors: Charles Edward Andrew Lincoln IV & Cameron Peltz
When exploring critical and compelling issues, people sometimes ask rhetorical questions (rhetorical questions in the sense of slamming an issue on the table and saying merely ‘disgusting’ or ‘discuss’). This does not mean such a phrase or “question” is a question that can be readily answered and verified.
We want to encourage people and our audience to seriously philosophically ponder these things and take them seriously not just as being flippant questions. That is to say, we hope the discussion here will “get the gears moving.” a thought process going. This is what we were previously calling ‘rhetorically useful’.
It is with this reservation we explore the question of what the concept of rights mean in a social context.
This article explores the concept of rights citing:
1) American Declaration of Independence of 1776,
2) A dissent from a 2003 case from the United States Court of Appeals for the Ninth Circuit,
3) The German philosopher Immanuel Kant (1724–1804),
4) Oliver Wendell Holmes (1841–1935)
We ask: what are rights, really?
Comparing the Declaration of Independence with a Modern Case:
Perhaps the most memorable phrase and recognizable invocation of rights in our history is from the Declaration of Independence. What can the way in which (and also context surrounding where) they are described tell us, about how its author Thomas Jefferson understood their meaning?
Famously, Thomas Jefferson wrote:
“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.
That to secure these rights, Governments are instituted among Men.”
Here, in this passage from the Declaration of Independence, rights are said to be that which governments are instituted among men to secure. This view suggests that rights precede the existence of any government, because men arrive on the scene already having rights to protect.
If rights are in need of securing, then this implies they can be in danger without such security. What danger can rights be in, if they are ‘unalienable’ as this document claims? If we took this to refer to some property that people hold merely continuing to exist, no matter what happens to a person, it’s hard to see what danger such a quality could really be in. Usually, instead, we regard this language of rights as implying something that should happen or should not happen on the part of government actors. Rights are not simply properties people have, they function as claims people make restricting the acceptable behaviors of other people.
Fleshing out this concept of rights as a kind of obligation more, Jefferson wrote to James Madison (one of the key authors of the Federalist Papers that were instrumental in forming the Constitution of 1789) in 1787: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” Jefferson listed a few such rights in the Declaration of Independence “among” the set of certain unalienable ones. Could he have had in mind other unarticulated rights besides those he explicitly listed, in addition? Either way, this letter to Madison characterizes rights as something “people are entitled to” and “what no just government should refuse” — obligations which certainly go beyond a quality that might imply nothing for other people to do.
Let’s consider a popular usage of the term “rights” in a concrete example. If someone says they have a right to their property — what exactly does this mean? If a right is ‘violated’ — let’s say a person trespasses on the property, seeks to damage it, or seeks to overtake it from the person making a claim to that right in their own name — what does having a right mean in that circumstance? We can conceive of a property owner armed with a pitchfork defending their land, then other people show up asking what has happened, will the defending person be arrested? — will they be ‘within their rights’? And if they are within their rights, what is a right then in that context? Rights are not just about what you do to other people, having or not having a right is also about what will happen to you within an institutional legal context, after the events in question take place. Rights, then, are not altogether independent of government institutions and positive laws declaring what impact they have in legal contexts. If these are important qualities of what rights are, does it really make sense to say they exist prior to any government institution whatsoever?
Seeming to fundamentally oppose that conception of rights as existing independent of governments, is a dissenting opinion found in a case Save Our Valley v. Sound Transit, 335 F.3d 932, 947 (2003). Justice Marsha S. Berzon for the Ninth Circuit Court of Appeals in the dissenting opinion states:
“[a] legal right is an entitlement that inheres in an individual and enables her to make certain demands of other individuals, which demands are backed by the coercive power of the state. It is thus a tripartite relationship between one individual and another and the state. This relationship has been alternately described as: a social duty owed from one person to another, see 1 William Blackstone, Commentaries 117 (photo. reprint 1992) (1765).”
According to this conception, suggesting that an individual (like, say, Robinson Crusoe, stuck on an island) would have rights doesn’t make any sense outside of a social or political context. This is because there would be no one else to obligate or to respect such obligations.
The dissent from the 9th Circuit Court of Appeals goes on, discussing rights as:
“a restriction on each individual’s freedom, backed by the coercive power of the state, that harmonizes the individual’s freedom with the freedom of everyone else in the community, see Immanuel Kant, “On the Relationship of Theory to Practice in Political Right,” in Kant’s Political Writings, 73, 73 (H. Reiss ed.1999) (1793); “a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution, or compensation by the aid of the public force,” Oliver Wendell Holmes, Jr., The Common Law, 214 (Dover, 1991) (1881) (emphasis added); a capacityof influencing the acts of another, see Thomas Erskine Holland, Jurisprudence 78 (1908) (emphasis added), or of asserting a claim, see IV Roscoe Pound, Jurisprudence § 118 at 70 (1959) (emphasis added); and, a political trump held by an individual that supercedes a collective goal which might otherwise justify denying the individual what she wishes or imposing some loss upon her, see Ronald Dworkin, Taking Rights Seriously, xi (1977). While each description is linked to a specific conception about the world (e.g., Kant) or the nature of law (e.g., Dworkin), all share the basic idea that a right is a relationship between two individuals and the state.”
This 9th Circuit case discusses many conceptions of what a right is, all of them involving the apparatus of the state as fundamental and indispensable to what having a right means. One conception that may sound especially peculiar to American ears, is that of the German philosopher Immanuel Kant’s (which, in being about limiting freedoms in order to harmonize freedom, goes against a lot of central American beliefs about government not limiting the freedom of individuals). However, even in the earlier example of defending property, rights define the scope of what people are allowed and not allowed to do — people can try to ward off or confront trespassers, but it’s less acknowledged that people can chase off trespassers, pursuing them onto other property, as rightfully. Far from expanding liberties, recognizing rights are about constraining what people can be said to rightfully do.
Oliver Wendell Holmes, a prominent early 20th century Supreme Court Justice quoted in the 9th Circuit case, emphasizes that rights involve using the government to do things: “to obtain protection, restitution, or compensation by the aid of the public force.” In the case of adjudicating what happens between people disputing over property, there is a legal apparatus made available to people who claim that property belongs to them, and the coercive power of the state is made available through those channels to enforce those claims. Property rights are not independent of the existence of a coercive state, nor are they the only rights that governments might take actions to serve.
Some of the foregoing textual passages help us to consider possible answers to the question of what rights are. We have seen how, even in intuitive examples of self-defense, rights do not function independently of the apparatus of a coercive state, and this challenges some of the classical conceptions of rights as altogether preceding governments in much of the American intellectual tradition. Sometimes, pivotal concepts in our own thinking may not end up being as coherent as we had once thought them to be. Reflecting on what sense these concepts really make in concrete examples can be helpful in discovering aspects of them we had not ourselves considered.
 Charles Edward Andrew Lincoln IV (Charlie) is a Ph.D. candidate at the University of Groningen (Dutch: Rijksuniversiteit Groningen). He has an LL.M. degree in Tax Law from Boston University (2018), an Advanced LL.M. in International Tax Law from the University of Amsterdam (Dutch: Universiteit van Amsterdam) (2017), and a J.D. from Texas A&M University School of Law (2016).
 Cameron Peltz has a Masters in Data Science from George Washington University (2019), Masters in Public Policy from the University of Chicago (2017), and a Bachelor degree in Liberal Arts from St. John’s College — Annapolis, Maryland (2014).
 Writing to Madison in 1787, Jefferson wrote, From Thomas Jefferson to James Madison, 20 December 1787 https://founders.archives.gov/documents/Jefferson/01-12-02-0454
 9th Circuit Court of Appeals case: Save Our Valley v. Sound Transit, 335 F.3d 932, 947 (2003).
 9th Circuit Court of Appeals case: Save Our Valley v. Sound Transit, 335 F.3d 932, 947 (2003).