Classification of Rights

Jon Roland
1996 March 17

Much political and legal debate arises from differences in the classification and labeling of "rights". People use different language in such debates, and it is inappropriate to insist that everyone else use the language of rights in the same way. However, it is useful for each discussant to define how he uses the terms, and how they should be understood when he uses them.

First, however, we need to examine what a "right" is. The simplest definition is that it is a legitimate legal claim. That establishes the context that the term has meaning only within a legal system. Although we can discuss "natural rights" that arise from a "state of nature", in such a state they are only demands, which only become "rights" when there is someone else who can authoritatively recognize them. But it also begs the question by shifting the definitional problem to the term "legitimate". Therefore I offer the definition that something is "legitimate" if it is authorized under a supreme law constituted by consent of the people subject to it.

Republican political theorists recognize two phases in the development of a polity or state, which may be defined as a body of people in effective and exclusive dominion over a defined territory:

1. The constitution of the society, under an arrangement called the social contract or social compact, which historically can result from a previously unassociated assemblage of numerous adults, but which has usually resulted from a single marital pair and their offspring, and grown by the admission of new members. The default, usually unwritten, "constitution" of a society is a convention of its members or representatives thereof, called by public notice, to deliberate on an issue announced in the public notice, and which decides according to rules of procedure adopted by majority vote of the attendees.

2. The constitution of the government of the society. After the society is formed, if their political needs cannot all be met by conventions of the membership, they may in convention adopt a supreme law under which officers are selected, powers and duties delegated, structure and procedures established, and rights against the actions of government, or immunities, protected.

Here is my classification scheme for rights, or more properly, immunities, and some of the major subcategories:

1. Natural — Arising out of the state of nature:
Life — Immunity from being killed, except by due process.
Limb — Immunity from being injured, except by due process.
Liberty — Immunity from being confined or restricted in one's actions, except by due process.
2. Civil or social — Arising out of the social compact. Includes all of the above plus:
Property — Title as distinct from mere possession, which has meaning only in social context.
Due process — Established procedure by which conflicting rights can be reconciled and perhaps disabled.
3. Constitutional or political — Arising out of the governmental constitution, which has meaning only for a state with a government. Includes all of the above plus:
Denizenship — Immunity from exile.
Citizenship — Immunity from being denied a vote or from holding office.

Part of the confusion in debate arises from the inclusion under each main category of all the immunities of the previous category in some contexts and not in others. This leads to argument about whether, if a right is recognized by a constitution, it is created by that constitution. The above classification scheme should indicate that some rights pre-exist each of the above phases, and some are created with each phase, but in common parlance are considered to include pre-existing rights under the category for each phase of development.