rights advantageous positions conferred on some possessor by law, morals, rules, or other norms. There is no agreement on the sense in which rights are advantages. Will theories hold that rights favor the will of the possessor over the conflicting will of some other party; interest theories maintain that rights serve to protect or promote the interests of the right-holder. Hohfeld identified four legal advantages: liberties, claims, powers, and immunities.
The concept of a right arose in Roman jurisprudence and was extended to ethics via natural law theory. Just as positive law, the law posited by human lawmakers, confers legal rights, so the natural law confers natural rights. Rights are classified by their specific sources in different sorts of rules. Legal rights are advantageous positions under the law of a society. Other species of institutional rights are conferred by the rules of private organizations, of the moral code of a society, or even of some game. Those who identify natural law with the moral law often identify natural rights with moral rights, but some limit natural rights to our most fundamental rights and contrast them with ordinary moral rights. Others deny that moral rights are natural because they believe that they are conferred by the mores or positive morality of one’s society. One always possesses any specific right by virtue of possessing some status. Thus, rights are also classified by status. Civil rights are those one possesses as a citizen; human rights are possessed by virtue of being human. Presumably women’s rights, children’s rights, patients’ rights, and the rights of blacks as such are analogous. Human rights play very much the same role in ethics once played by natural rights. This is partly because ontological doubts about the existence of God undermine the acceptance of any natural law taken to consist in divine commands, and epistemological doubts about self-evident moral truths lead many to reject any natural law conceived of as the dictates of reason. Although the Thomistic view that natural rights are grounded on the nature of man is often advocated, most moral philosophers reject its teleological conception of human nature defined by essential human purposes. It seems simpler to appeal instead to fundamental rights that must be universal among human beings because they are possessed merely by virtue of one’s status as a human being. Human rights are still thought of as natural in the very broad sense of existing independently of any human action or institution. This explains how they can be used as an independent standard in terms of which to criticize the laws and policies of governments and other organizations. Since human rights are classified by status rather than source, there is another species of human rights that are institutional rather than natural. These are the human rights that have been incorporated into legal systems by international agreements such as the European Convention on Human Rights. It is sometimes said that while natural rights were conceived as purely negative rights, such as the right not to be arbitrarily imprisoned, human rights are conceived more broadly to include positive social and economic rights, such as the right to social security or to an adequate standard of living. But this is surely not true by definition. Traditional natural law theorists such as Grotius and Locke spoke of natural rights as powers and associated them with liberties, rather than with claims against interference. And while modern declarations of human rights typically include social and economic rights, they assume that these are rights in the same sense that traditional political rights are.
Rights are often classified by their formal properties. For example, the right not to be battered is a negative right because it imposes a negative duty not to batter, while the creditor’s right to be repaid is a positive right because it imposes a positive duty to repay. The right to be repaid is also a passive right because its content is properly formulated in the passive voice, while the right to defend oneself is an active right because its content is best stated in the active voice. Again, a right in rem is a right that holds against all second parties; a right in personam is a right that holds against one or a few others. This is not quite Hart’s distinction between general and special rights, rights of everyone against everyone, such as the right to free speech, and rights arising from special relations, such as that between creditor and debtor or husband and wife.
Rights are conceptually contrasted with duties because rights are advantages while duties are disadvantages. Still, many jurists and philosophers have held that rights and duties are logical correlatives. This does seem to be true of claim rights; thus, the creditor’s right to be repaid implies the debtor’s duty to repay and vice versa. But the logical correlative of a liberty right, such as one’s right to park in front of one’s house, is the absence of any duty for one not to do so. This contrast is indicated by D. D. Raphael’s distinction between rights of recipience and rights of action.
Sometimes to say that one has a right to do something is to say merely that it is not wrong for one to act in this way. This has been called the weak sense of ‘a right’. More often to assert that one has a right to do something does not imply that exercising this right is right. Thus, I might have a right to refuse to do a favor for a friend even though it would be wrong for me to do so.
Finally, many philosophers distinguish between absolute and prima facie rights. An absolute right always holds, i.e., disadvantages some second party, within its scope; a prima facie right is one that holds unless the ground of the right is outweighed by some stronger contrary reason. See also DUTY , HOHFELD , NATURAL LAW , PHILOSOPHY OF LAW , POLITICAL PHILOSOPH. C.We.