What are Rights?

The concept of a “right” is so foundational to law and politics that its precise meaning is often assumed. 

Philosophy provides two rival accounts:

Natural Rights Theory, associated with John Locke and embedded in the American founding documents, holds that rights are inherent, inalienable, and antecedent to government. They are discovered, not invented; they derive from human nature, divine command, or rational moral reasoning. “We hold these truths to be self-evident, that all men are… endowed by their Creator with certain unalienable Rights.” From this view, the purpose of law is to recognize and secure these pre-existing rights. A law that violates a natural right (e.g., a law mandating torture) is not merely bad law; it is not law at all in the moral sense. This is the basis for doctrines of nullification, civil disobedience, and judicial review that can strike down legislation.

Legal Positivism, associated with Jeremy Bentham and H.L.A. Hart, sharply separates law from morality. It argues that a right is solely a creature of law. A right exists only if it is recognized and enforced by a valid legal system. “Rights are the children of law,” Bentham quipped, “from real laws come real rights.” For the positivist, the statement “I have a right to free speech” means “The legal system in my jurisdiction contains rules that protect my speech and provide remedies if it is suppressed.” Whether that legal system is morally good or evil is a separate question. A positivist can acknowledge that a wicked legal system (like Nazi Germany) had validly enacted laws that created legal “rights” for the regime, while simultaneously condemning it as profoundly immoral. The focus is on the social fact of law-its source in social rules and institutions-not its moral content.

The clash has profound implications. The natural rights view provides a powerful moral language for critique and revolution but risks being subjective and dogmatic (whose “nature” or “God” defines the rights?). The Nuremberg Trials, however, leaned on a natural law intuition: that there are “crimes against humanity” so egregious they are punishable even if they were legal under a domestic system. Legal positivism offers clarity and a realistic view of law as a human artifact, but it seems to lack the moral resources to condemn a legal system that is internally consistent but monstrous. Modern constitutional democracies attempt a synthesis. They are positivist in form: rights are written down in a supreme constitutional text, enacted by a founding authority. Yet the substance of those rights and the practice of interpreting them often draw on natural rights reasoning, appealing to evolving standards of decency, human dignity, and fundamental fairness that seem to transcend the written text. 

The question “What is a right?” thus forces us to choose: is law the command of a sovereign, or is it answerable to a higher standard?