Rights Talk

Abortion rights, animal rights, civil rights, fetal rights, grandparents’ rights, gun rights, human rights, immigrants’ rights, parental rights, prisoners’ rights, property rights, shareholder rights, students’ rights, tenant rights, trans rights, voting rights, water rights, the right to sleep outside—rights talk is omnipresent.

I think it’s fair to say that most major controversies today—whether moral or political—“are couched in the language of rights.”

We live in an extraordinarily rights-conscious society. I suspect virtually every parent is left speechless the very first time their child, at a very early age, says, “That’s not right” or “I have a right.” Rights talk may not be embedded in our DNA, but it is instilled early on.

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In my opinion, colleges and universities should do much more to teach about rights through an ethical, historical, philosophical, legal and policy lens.

Let’s not confine the study of rights to separate courses in ethics, history, law and public policy. Given the centrality of rights talk in contemporary American culture, let’s give students the opportunity to learn how rights came to form the basis of political and moral discourse; how rights should be defined, prioritized and defended; and how conflicts between rights should be adjudicated and resolved. I, for one, can’t imagine a better way to develop students’ moral reasoning skills.

Let’s start with a definition. What constitutes a right? It’s a claim, entitlement, freedom, immunity or privilege that rests on law or shared moral principles. Not simply a want or a need, it is a demand that is justified by some larger principle and that others have an obligation to honor or respect.

Rights can be universal or contingent; they can also be positive or negative. The Universal Declaration of Human Rights lists some 30 rights that transcend national boundaries.

These include the right to life, freedom from torture, freedom from enslavement or servitude, protection from imprisonment for debt, freedom from retroactive penal laws, recognition as a person before the law, and freedom of thought, conscience and religion. Other rights vary across political contexts.

Whereas negative rights restrict governmental actions, for example, to protect an individual’s freedom of speech or religion, positive rights require government or other actors to take certain actions to ensure individuals’ well-being, for instance, by establishing a right to education, health care or housing.

Rights take a variety of forms. We speak of:

• Natural rights, the inalienable rights that are each person’s birthright, irrespective of their race, sex, nationality, ethnicity, religion or other attribute.
• Legal rights, the rights spelled out in a statute, a regulation or a court decision or enumerated in the Constitution.
• Civil rights, the rights of citizens to vote, due process and equality before the law.
• Fundamental rights that are beyond the reach of the political process that are essential to human dignity and flourishing.
• Moral rights, the right of an author to attribution, to prevent alteration of their work and to receive royalties.
• Social rights, rights which contribute to the elimination of social inequalities.

There are several broad topics that a class on rights ought to discuss. The first is the social construction of rights—that is, the historical development of rights discourse.

In 1799, the notion that children might be rights holders seemed laughable. In that year, the British moralist Hannah More attempted to reveal the absurdity of the egalitarian and libertarian ideas popularized during the Age of Revolution:

Today, the idea that even infants have rights is taken for granted.

Where, we might ask, did this concept of rights come from and how has it evolved over time? Look online and website after website will tell you that the notion of human rights dates to the distant past: to 539 B.C.E., when Cyrus the Great conquered Babylon and declared that all people had the right to choose their own religion. Or to the Magna Carta of 1215, which supposedly established rule of law. Or the English Bill of Rights of 1689 or the Declaration of the Rights of Man and of the Citizen, adopted in France in 1789. Then, there are the claims that contemporary conceptions of human rights are rooted in the writings of Aquinas, Hobbes, Locke and Rousseau.

Samuel Moyn, a professor of law and history at Yale (and my former Columbia colleague), rejects the claim that the modern language of human rights can be traced centuries into the past. He considers those antecedents “too murky, diffuse and inconsequential to be credited in any meaningful way for the birth of human rights” and argues that those who consider modern human rights thinking a direct outgrowth of earlier religious, philosophical and legal ideas to be “engaged in a ‘fictitious’ and selective teleological reading of history that does violence to the alterity of the past.”

I’d agree, even though I question his claim that the 1948 Universal Declaration of Human Rights “was prefigured and inspired by a defense of the dignity of the human person that first arose in Christian churches and religious thought in the years just prior to the outbreak of” World War II.

Moyn’s argument, advanced in such books as The Last Utopia: Human Rights in History and Christian Human Rights, is that the Protestant and Roman Catholic churches’ prewar embrace of the language of human rights represented a conservative reaction to the Communist emphasis on state power and the secular liberal stress on individual rights.

As Ronald E. Osborn, a professor of ethics and philosophy at La Sierra University, has argued—persuasively, in my view—the modern conception of human rights was driven by campaigns to abolish slavery, expand women’s rights and advance world peace, which were subsequently followed by the rise the first movements to oppose imperialism. It is not an accident that the leaders in these campaigns were deeply religious women and men. As Osborn puts it in his 2017 study Humanism and the Death of God, “the core humanistic concepts of inviolable dignity, rights and equality attaching to each individual—requires an essentially religious vision of personhood.”

However, the U.S. Supreme Court, during the 19th and early 20th centuries, adopted a narrow and truncated interpretation of rights grounded in the primacy of property rights—a perspective that found its most shameful expressions in the notorious 1857 Dred Scot decision, the 1875 civil rights cases and the 1905 Lochner decision.

But there was another way to think about rights, a more expansive conception that regarded rights as a matter of human dignity and empowerment. This view was implicit in the actual text of the 13th, 14th and 15th Amendments, but only became a reality during the so-called rights revolution of the 1950s, 1960s and early 1970s.

Many of the civil liberties that we most prize today were the product of sweeping legislation and judicial decisions that greatly expanded the rights of the disable, of criminal defendants, of non-English-speaking student and victims of sexual discrimination. Students need to understand how and why this revolution took place and the cultural conflicts it provoked.

During this era, the U.S. Supreme Court:

• Ruled that segregated schools were inherently unequal.
• Struck down state laws that prohibited interracial marriages.
• Prohibited Bible reading and organized prayer in public schools.
• Required states to ensure that city dwellers were proportionately represented in state legislatures.
• Gave juveniles the right to due process in schools and the courts.
• Overturned state laws prohibiting the sale and use of contraceptives even by minors.

In addition, the court identified a right to privacy in the penumbras of the Bill of Rights that would prohibit states from barring abortion (a ruling reversed in 2022), punishing flag burning, enforcing sodomy laws and restricting same-sex marriage.

The growth of rights talk was not confined to the United States. As Moyn has shown, the 1970s witnessed a breakthrough in attention to human rights globally, fueled, in part, by the Biafran war of secession, the protests of Soviet and East European dissidents, anti-apartheid protests in Britain and elsewhere, and human rights protests across Latin America. In the wake of decolonization and against the backdrop of the Cold War, human rights became a language and a strategy for advancing various collective interests.

Another major topic that needs to be addressed involves an ongoing academic debate: Is rights talk in contemporary popular, legal and political discourse a good or bad thing. During the 1970s, ’80s and early ’90s, there were staunch defenders of rights talk—including Ronald Dworkin, Julian Franklin, Christine Korsgaard and Patricia Williams—as well as a host of critics.

On the left was the critical legal studies movement, which regarded “rights as empty vessels, as false fronts, as notions we had to move beyond to achieve lasting social change.” In the United States, according to proponents of critical legal studies, an emphasis on individual and commercial rights had become an almost insuperable obstacle to reforms needed to achieve class, gender and racial equality and promote a less violent and more equitable society.

On the right, the most prominent critique of rights talk was advanced by Harvard Law School professor Mary Ann Glendon, who argued that rights discourse contains a host of weaknesses, including “its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity and its silence with respect to personal, civic and collective responsibilities.”

In the words of Claire Andre and Manuel Velasquez of Santa Clara University:

There is yet another topic that should be tackled: the contemporary battles over rights. Many of today’s hottest controversies pit one right against another. I know your concern: if you bring these heated issues into the classroom, “All hell will break loose!” Nevertheless, don’t hesitate to ask your students to analyze the arguments that underlie some of today’s most contentious debates, such as those pitting religious liberty against discrimination or academic freedom against religious rights.

We also need to ask our students whether there are alternatives to rights discourse that might help us evaluate conflicting claims. For example, the Princeton philosopher Peter Singer argues that animals should be included in the scope of humans’ moral concerns not because animals have rights, but because they have preferences and interests that should be respected. In his view, “speciesism is no more morally defensible than racism, sexism or other forms of discrimination.”

Seventy-five years after the UN’s General Assembly adopted the Universal Declaration of Human Rights, violations of people’s rights and freedoms remain widespread—in Afghanistan, Belarus, China, Cuba, El Salvador, Iran, Mali, Pakistan, Russia, Sri Lanka, Sudan and elsewhere (including in Florida, according to Human Rights Watch).

Adopted by the United Nations General Assembly in 1948 in response to the “barbarous acts which … outraged the conscience of mankind” during the Second World War, the declaration has been criticized for its purported Western, secular and liberal bias; its failure to address economic and environmental rights; and its generality, legalism and lack of teeth.

The last half century has revealed that Western countries’ interest in human rights is highly selective, that humanitarian intervention—the use of military force to end human rights abuses—can have many harmful and ironic consequences, and that the recently established international criminal courts do not offer a simple solution to human rights abuses.

As Moyn has argued, even as human rights has become a dominant moral language, it largely failed to challenge the world’s vast socioeconomic inequalities. Indeed, as he points out in an essay on “The End of Human Rights History,” human rights discourse has often been complicit with neoliberal market ideologies that have exacerbated global inequalities.

And yet, it’s also the case that the Universal Declaration of Human Rights provides an indelible set of ideals and aspirations that human rights advocates can invoke to condemn various abuses. International law does give refugees a right to asylum. Even more importantly, rights talk encourages us to focus our attention on those economic and social elements that are essential to human dignity, human empowerment and human flourishing.

To paraphrase Immanuel Kant, rights are not an end in themselves. Nor should they be treated as weapons. They are a means to an end—to an environment in which individuals can find fulfillment (as they define it), thrive and achieve their potential.