Rights: rhetoric versus reality.

• Author: Hocutt, Max
• Position: Essay

When John Locke conceived the idea of natural because God-given rights, he limited it to a very short list--namely, rights to protections for life, liberty, and property. (1) Not incidentally, he regarded these rights as purely negative. That one had a right to life meant that one had a right not to be killed, not also that one had a right to be provided with a living. That one had a right to liberty meant that one had a right not to be enslaved, not also that one had a right to the services of others. That one had a right to property meant that one had a right not to be robbed or cheated of what one had earned, not also that one had a right to a share of what others had earned.

Since then, talk of rights has gotten completely out of hand. If we may judge from popular speech, there is now a widespread belief that one has a right to whatever one wants, needs, or takes a fancy to. If it is desirable, somebody has proclaimed a right to it. Thus, the Universal Declaration of Human Rights (United Nations 1948) superimposes on Locke's brief list of negative rights a long list of such positive economic goods as paid vacations, self-chosen occupations, free education, publicly supplied medical care, and so forth. (2) Rights lists have become wish lists. (3) In accordance with this usage, pubescent daughters now announce that they have a right to go where they please with whom they please and when they please; people who have destroyed their health and wasted their substance proclaim that they have a "right" to a comfortable retirement and unlimited medical care at the expense of those who have been more prudent; the chiropractor touting his services on TV declares in the spirit of the age, "You have a right to feel good"; and a court in Britain has reportedly awarded a handicapped man the "human right" to be transported to Holland to have intercourse with a prostitute at public expense. "I have a right" has come to mean "I want it; give it to me!"

In workaday speech, this sort of talk is called "wishful thinking," but in the argot of rhetoricians it is prolepsis--anticipatory speech. Whatever it is named, it amounts to claiming rights in order to create them, and it has become so common that few people any longer recognize it as such. On the contrary, most people now regard rights prolepsis as perfectly normal, even paradigmatic, discourse. Demands for what are now deemed "human rights" have become the unchallengeable justification for a metastasis of entitlements and for the government power to provide them.

As an illustration, consider the desire for medical care at public expense. The standard case for it is that because everybody needs it, everybody already has a right to it. Never mind that at present only the elderly and indigent have standing to submit their medical bills to the government with an expectation that the bills will be paid. According to true believers, that fact does nothing to prove the unreality of the desired right; instead, it proves that the law has a moral deficiency. The right exists; it merely wants recognition. Hence, that is what is demanded, as language slides insensibly from "I want x" to "I ought to have x" to "I have a right to x!" to "Let government provide x."

The popularity oft his manner of speech and thought is easy to explain. Claims to rights are demands, which are not so readily ignored as requests. Deny my requests, and you might lose my patronage or my friendship but nothing more. Refuse my demands and you may expect to face my wrath, perhaps also that of my friends and allies as well as that of the courts and police in legal cases. Hence, claiming--that is, demanding-rights is usually more effective than requesting them. Therefore, it has become habitual.

Perhaps, however, it is time to notice that rights prolepsis is as misleading as it is common. Seen from a logical point of view, it conflates the proposition that one ought to have a right as a matter of morality or need with the proposition that one does have it as a matter of actual fact. Against those who see naturalistic fallacy everywhere, it must be acknowledged that there are valid inferential connections between what ought to be and what is, but the two things are not identical: "X ought to have right R" is not the same as "X has right R." Thus, that the people of Communist China ought to have the right to criticize their government does not mean that they do in fact have it; that Muslim men have the right to beat disobedient wives does not mean that they ought to have it. (4)

Grant that to have a right is to have standing to claim it. (5) The fact remains, claiming a right simply because it is needed, wanted, or counted as good will not suffice to create it. That you need my kidney to keep you alive does not mean that you have a right to it, and claiming it will not establish that right. That Sam needs George's wife to make him happy does not mean he has a right to her, and claiming her will not prove that right. That a poor man needs a rich man's money to pay off his debts does not mean he has a right to it, and claiming it will not create that right.

In short, rights are not always possessed where needed, much less where merely wanted and claimed. That is why human nature, the source of our needs, is no reliable guide to rights, nor, for that matter, is human reason, the guide to what will serve our needs.

Apologists for Prolepsis

Despite this plain but frequently obscured truth, rights prolepsis is not peculiar to the vulgar; it has also received the imprimatur of the learned, who should know better.

In Reason and Morality (1978), Chicago political philosopher Alan Gewirth boldly affirms that people have "generic rights" to what would satisfy their "generic needs," presumably meaning such basic needs as food, water, shelter, friendship, sex, respect, esteem, and so forth. Do ali of us need x? Then, according to Gewirth, we have a right to it. Bur notice one thing: although Gewirth uses the present tense, he is not telling us what rights he thinks are already possessed, but what rights he wants instituted. He is speaking proleptically, not literally.

Gewirth at least limits himself to "generic" needs. In Taking Rights Seriously, philosopher of law Ronald Dworkin shows no such restraint. In his view, "[i]ndividual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as Individuals, to have or to do, or not a sufficient justification for imposing some loss or injury on them" (1977, xi). Here Dworkin unblinkingly attributes to Individuals rights to whatever they wish. He allows for an individual's wish to be denied, bur he puts the burden of justifying that denial on the rest of us; we must show that the right in question is not in the collective interest. Later in his book, Dworkin argues that, absent such a showing, the wish in question imposes on judges a moral duty to regard it as binding law, even if that duty has not yet been written into the books. In short, he says that individual wishes should have binding legal force.

Does not this moralizing line cross bridges before getting to them? It does, but Joel Feinberg, another distinguished philosopher of law, views crossing future bridges as not only possible, but unobjectionable. Acknowledging that it is misleading to claim rights you do not yet possess, Feinberg nevertheless endorses what he dubs "manifesto speech." "Still all in all I have a certain sympathy with the manifesto writers, and I am even willing to speak of a special 'manifesto sense' of 'right,' in which a right need not be correlated with another's duty. Natural needs are real claims if only upon hypothetical future beings not yet in existence. I accept the moral principle that to have an unfulfilled need is to have a kind of claim against the world, even if against no one in particular" (1980, 153). In thus equating needs with claims and claims with rights, Feinberg overlooks the fact that a claim on an indeterminate world of hypothetical persons in the future is merely a wish. Forgetting the adage "If wishes were ponies, we could all ride," he presumes that ponies are available for the asking at no cost.

In sum, Franklin D. Roosevelt, the United Nations, Gewirth, Dworkin, and Feinberg have stretched the concept of rights so far that it has lost identifiable shape. Needs and wishes are limitless, and claims are easy to make. So, if every need, wish, or claim constitutes a right, the...