Moral and Legal Rights

Legal Rights

First published Thu Dec 20, 2001; substantive revision Sat Nov 4, 2017

Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of decisions of suitably authoritative bodies within them. They raise a number of different philosophical issues. (1) Whether legal rights are conceptually related to other types of rights, principally moral rights; (2) What the analysis of the concept of a legal right is; (3) What kinds of entities can be legal right-holders; (4) Whether there any kinds of rights which are exclusive to, or at least have much greater importance in, legal systems, as opposed to morality; (5) What rights legal systems ought to create or recognise. Issue (5) is primarily one of moral and political philosophy, and is not different in general principle from the issue of what duties, permissions, powers, etc, legal systems ought to create or recognise. It will not, therefore, be addressed here.

A preliminary point should be mentioned. Do all legal systems have a concept of rights? Their use is pervasive in modern legal systems. We talk of legislatures having the legal right to pass laws, of judges to decide cases, of private individuals to make wills and contracts; as well as of constitutions providing legal rights to the citizens against fellow citizens and against the state itself. Yet it has been suggested that even some sophisticated earlier systems, such as Roman law, had no terminology which clearly separated rights from duties (see Maine (1861), 269–70 ). The question is primarily one for legal historians and will not be pursued here, but it may be remarked that it may still be legitimate when describing those systems to talk of rights in the modern sense, since Roman law, for example, clearly achieved many of the same results as contemporary systems. Presumably, it did so by deploying some of the more basic concepts into which rights can, arguably, be analysed.

1. Are Legal Rights Conceptually Related to Other Types of Rights?

The position of many important writers on legal rights is difficult to ascertain on this point, because it is not one they addressed directly. Hohfeld (1919), for example, confined his discussion entirely to legal rights and never mentioned moral ones. Hart did write about moral rights (1955, 1979) as well as legal ones (1973, 1994), but not in a way that allows for much direct comparison. Bentham (1970 [1782]) wrote extensively about the analysis of legal rights, but, notoriously, thought that the idea of natural moral rights was conceptual nonsense.

Mill (1969 [1861]), whilst endorsing Bentham’s overall Utilitarian position, did not share his scepticism about moral rights, and seems to have thought that moral and legal rights were, analytically, closely connected — “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion.” Those things which ought to be so protected were, in his view, those which concerned the fundamentals of human well-being, and were therefore a sub-set of those things which a person ought to have on grounds of utility.

Whilst not necessarily sharing Mill’s view about all rights being related to fundamentals of well-being, many contemporary writers (e.g., Raz 1984a, 1984b; Wellman 1985, 1995) agree that the core concept of a right is something common to law and morality, though some have argued that jurisprudential writers, particularly Hohfeld, provide a better and clearer starting-point for general analysis than previous writers in moral philosophy. The view that the core concept is common to both would appear to be consistent with maintaining that, nevertheless, in terms of justification in practical reasoning, legal rights should be based on moral ones.

2. The Conceptual Analysis of Legal Rights

Not all philosophers have agreed that rights can be fully analysed. White (1984), for example, argued that the task is impossible because the concept of a right is as basic as any of the others, such as duty, liberty, power, etc (or any set of them) into which it is usually analysed. He agreed, however, that rights can in part be explained by reference to such concepts. White’s approach, based largely on close linguistic analysis, has remained something of a minority one.

The remaining approaches can be categorised in different ways, but a main division is between those who think that rights are singled out by their great weight as practical reasons, and those who think that rights are not special in this regard, but instead are to be analysed into duties, permissions, powers, etc, or some combination of these, perhaps with the addition of other conditions.

Dworkin (1973, 1975, 1981, 1986), in one formulation of his theory of rights, was a proponent of the first view. According to that, rights enjoy a categorial priority in weight over any other consideration which is not itself right-based. Clearly, it is true of many legal systems that constitutional rights, or some of them, should outweigh any other consideration which is not itself derived from a constitutional right. But that seems to be primarily because of the constitutional status of the right. Both in law and in morality many rights are of a rather trivial nature. In morality such rights can, arguably, sometimes be justifiably outweighed even by considerations of personal convenience (cf. Raz 1978). Similarly in law it seems that many prima facie rights can be defeated by what the court regards as considerations of the general interest. Dworkin’s (1977) response to the latter type of criticism was to argue that, on closer inspection, the consideration opposing the right can be seen as itself an instantiation of another general right. But this depends on the contentious claim that the only considerations that courts can justifiably rely upon are pre-existing rights. The objection has also been raised that, as a general theory of the nature of rights, it risks being self-defeating, since any consideration whatsoever can then be argued to be right-based, which leaves rights with no special role in practical reasoning. (For discussion of Dworkin’s theory, including his other formulations, see Yowell 2007.)

Most writers have, instead, favoured the view that rights are to be analysed into other, more basic, notions, principally those of duty, permission and power, with perhaps the addition of other criteria. This means that not all rights will be of great importance. Their importance will vary with the strength of the grounds for the duty, permission or power. Before looking more closely at these accounts, another point should be mentioned. Theorists are divided between those who think that rights are, as it were, the ‘reflex’ of the duty, permission or power, and those who think that the right has a priority over them. The question is whether the duty, etc, grounds the right, or the right the duty. Most older writers (e.g., Bentham, Austin, Hohfeld, Kelsen) appear to have adhered to the first view, whilst more recent writers (e.g., MacCormick, Raz, Wellman) take the second. The second view has the implication that the force of a right is not necessarily exhausted by any existing set of duties etc, that follow from it, but may be a ground for creating new duties as circumstances change. This latter view seems to accord better at least with the way that constitutional legal rights work.

Amongst those who think that rights can be analysed, at least in part, into duties, permissions and powers, there is a further main division. Some think that the essence of a right is to have choice or control over the corresponding duty etc. Others think that the main thing is that one’s interests are protected by the duty etc. Hart and Wellman are amongst the proponents of the first view, Bentham, Austin, MacCormick and Raz are amongst those maintaining some version of the second.

An outline of Hart’s (1973) theory may be given as an illustration of the first view. According to Hart, someone (call him ‘X’) may be a legal right-holder primarily in one of two ways. First of all, X may have a bilateral permission to perform some action, i.e., X is permitted both to A and to not-A (together with there being some prohibitions on others interfering). Secondly, someone else may have a duty (e.g., to pay X £10) over which X has control, primarily by waiving or enforcing it. Since X has a choice in each case that explains why he is referred to as being a right-holder. One difficulty about this kind of theory is to explain our apparent reference to rights when there is no choice, eg when one is not only entitled to vote in elections, but also obliged by law to do so.

Two different versions of the interest theory can be seen, corresponding to the question about the priority of rights mentioned above.

According to older versions, such as those of Bentham and Austin, X is a right-holder because he is the beneficiary, or intended beneficiary, of another’s duty, or perhaps of the absence of a duty on him which the law might otherwise have imposed. For example, if X has a right to be paid £10 by Y, then this is explained by saying that Y has a duty, the performance of which (handing over the £10) is intended to benefit X. One problem about this theory is to explain why the criminal law, although it may in part exist to protect moral rights, is not generally regarded as directly conferring legal rights on individual citizens, despite the fact that they are intended beneficiaries of the corresponding duties. (There may, of course, in many systems be parallel civil law rights, but that is a contingent matter. See more on this point below.)

A more modern version of this theory was proposed by MacCormick (1977), who argued that a right-holder was the intended beneficiary of a specific share of benefit, rather than just being a generalised beneficiary of the rules. However, even with this amendment, it remains difficult to explain third party rights under contracts. Suppose X and Y enter into a contract which imposes duties on each of them with the intention that performance of these will benefit Z. According to the theory, Z must (conceptually) be a legal right-holder. But it is in fact an entirely contingent matter as to whether Z is or not. Some legal systems recognise Z as having rights in such a situation and others do not. In Britain, for example, Scots Law long recognised such rights under certain conditions, but English Law did not until the position was changed by statute in 1999.

More recent versions, such as those of Raz (1984a, 1984b), take a different tack altogether. According to them, to say that X is a right-holder is to say that his interests, or an aspect of them, are sufficient reason for imposing duties on others either not to interfere with X in the performance of some action, or to secure him in something. This, inter alia, gets round the third-party rights’ problem, because the explanation is simply that it is all a question of whether the system recognises the interests of Z as part of the reason for X and Y’s duties, or whether it is only the interests of X and Y. Raz (1997) has emphasised that this does not mean that only the right-holder’s interests are relevant to the question of whether something should be recognised as a right. Considerations of the general or common interest may be relevant too.

Whilst discussion has continued on the relative merits of the choice and benefit theories, and ever more sophisticated versions of each have been proposed (see, for example, the three-sided debate in Kramer, Simmonds and Steiner 1998, Kramer 2010, Vrousalis 2010, Van Duffel 2012), some writers have attempted to offer different, or combined, approaches. Wenar (2005) argues for what he calls a ‘several functions’ theory. According to this, any ‘Hohfeldian incident’ (or combination of them) which grants exemption, discretion or authorisation, or entitles the holder to protection, provision or performance is a right. Kramer and Steiner (2007) claim, however, that this is really no more than another version of benefit theory, and not superior to existing ones. Another proposal is made by Sreenivasan (2005), which is intended to apply only to claim-rights and not to other varieties of right. The essence of it is that Y has a claim-right that X perform an action if and only if Y’s measure of control over X’s duty matches (by design) the measure of control that advances Y’s interests on balance. This, too, is criticised by Kramer and Steiner (2007) on the basis that it would include the case in which someone has, on the basis of his own interests, deliberately not been granted any such power at all. Yet this, they claim, would lead to a highly implausible expansion of the class of those who would have to be regarded as right-holders.

A number of subsidiary questions can be raised.

Firstly, should rights be analysed solely in terms of duties on others (together with some other condition), or do we need to bring in also other concepts, such as permission, power and immunity? Hohfeld thought that, strictly speaking, something was a legal right only if it corresponded to a duty on another, but he argued that legal usage was often confusing because the reference was really to one of the other concepts. Thus, in his view, the law sometimes also said that X had a right if (1) he had a permission to A, (2) he had a legal power to A, (3) Y had no legal power to affect him.

While some (e.g., d’Almeida 2016), have maintained that Hohfeld was correct to assert that liberty-rights involve only permissions, others (e.g., Waldron 1981 and Raz 1984a, 1984b) have been exponents of the view that rights should be seen as giving rise only to duties. Hart (1973), following Bentham, had argued that a liberty-right should be seen as a bilateral permission to A together with duties on others not to interfere with X’s A-ing. Waldron and Raz argue that it is an important feature of rights that they entitle the right-holder to do not only that which is right, but also (within bounds) that which is wrong. This they regard as best explained by seeing rights as imposing only duties of non-interference on others, not as granting the right-holder a permission. (See also Herstein 2012, 2014.) An alternative view (Campbell 1997) is to see some rights as indeed granting permissions, but to point out that in granting a legal permission the law is not saying that there may not be reasons against performing the action, only that (within the bounds of the permission) the law will act as if there were not.

Powers raise a different issue. Many writers (e.g., Hohfeld 1919, Hart 1973) have considered them as being a type of right. By a legal power we mean the ability to bring about changes in legal rules or their application (plus some further conditions). Usually, of course, the lawmaker in granting a power also grants a right to exercise it, but occasionally this is not so, for example where the exercising of the right would itself be a crime or a civil wrong. In English Law, for example, until the position was recently changed by statute, a thief had, in certain special circumstances, the legal power to pass good title in the goods he had stolen to a third party, even though by doing so he committed a civil, and possibly also a criminal, wrong. This seems to indicate that powers should not be thought of as being rights themselves.

Powers also illustrate a general problem about the analysis of legal rights, and arguably of rights in general. Namely that of whether an element should be seen as part of the very essence of the concept of a right, or whether it is merely an element in that which is (contingently) its content, i.e., that which there is a right to do or have.

Relatedly, of the four fundamental types of rights which Hohfeld claimed to identify, immunities raise problems, though somewhat different ones. An immunity arises when Y has no power to change X’s legal position. But is an immunity itself a right or is it simply a means of protecting a right, i.e., by making it immune from removal or alteration? As with powers, views have differed about this.