What is a Right?

In my last post, I described the rights-based theory of (economic) justice, and its defense of lassie faire capitalism, as resting on the following two premises:

(1) Justice exists so long as no individual’s rights are violated; and

(2) In a market system free of coercion and fraud, no individual’s rights are violated.

In order to evaluate these premises - to see if they are true - we need to know what a "right" is. One of the first things any philosophy student learns is that we often deploy familiar concepts that we think we understand, but which we have no real understanding of at all. The concept of a "right" is a very good example. We often know what rights we have, but we don’t know what a right is.

That changes right now!

The best definition of a right that I have encountered was developed by the Philosopher Lawrence Becker, who proposed:

"A right is the state of affairs that exists when one 'entity' (the right(s) holder) has a claim on an act or a forbearance from another entity (the right(s) regarder) in the sense that, should the claim be exercised and the act or the forbearance be withheld, it would be justifiable, other things being equal, to use coercive measures to extract either the performance owed, or compensation in lieu of the performance."

Consider the classic example of a criminal defendant’s "right to counsel." In this example, the suspect is the right(s) holder and the state is the right(s) regarder. Under our federal constitution, any criminal defendant (i.e., anyone charged with a crime that could result in her loss of liberty) has a claim against the state to allow her access to legal counsel. Not only that, but in cases where the defendant cannot afford private counsel, she has a claim against the state to provide her with legal counsel at the state’s expense. If the state fails or refuses, the defendant has a remedy against the state - she cannot be criminally convicted. That is the "coercive measure" used to enforce the defendant’s right to counsel.

This is just one example, but it illustrates the basic elements of a rights claim. An entity, be it a person, organization or governmental entity, has a "right" only if it has a legitimate (i.e., morally defensible) claim against another entity. To be a right, the claim must create a duty either that the right(s) regarding entity do something for the right(s) holder or refrain from doing something to the right(s) holder. The claim must also be important enough that we deem it legitimate to resort to coercion against the right(s) regarder in the event that it fails or refuses to perform its duty.

Now that we have a working definition of a "right," the next step is determining how to evaluate rights claims. After all, many people claim to have rights that they don’t really have. On the libertarian argument, individuals have two rights - the right to be free from coercion and the right not to be defrauded. That is the essence of the explicit premise stated in proposition (2). What is not explicitly stated, but is of crucial importance, is the implied premise that individuals have no other rights pertaining to economic transactions. That is the unstated (but presupposed) presmise in proposition (2).

In my next two posts I will outline Professor Becker’s criteria for evaluating the legitimacy of rights claims and, then, apply that criteria to the libertarian premises.

See you soon.

Joe Huster