Classification of Rights
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
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.