In today’s episode of the Telos Press Podcast, Camelia Raghinaru talks with Christopher Tollefsen about his article “Some Further Thoughts on the Nature, Scope, and Source of Human Rights,” one of a group of essays from Telos 192 (Fall 2020) on the U.S. State Department’s Commission on Unalienable Rights. An excerpt of the article appears below. If your university has an online subscription to Telos, you can read the full article at the Telos Online website. For non-subscribers, learn how your university can begin a subscription to Telos at our library recommendation page. Purchase a print copy of Telos 192 in our online store.
Some Further Thoughts on the Nature, Scope, and Source of Human Rights
Christopher Tollefsen
Our commission was asked to investigate fundamental human rights and to address confusions that have arisen concerning the nature, scope, and source of such rights. On each of these overlapping questions, we made important advances that are reflected in our report;[1] yet further clarification and progress are possible. In what follows I offer some brief further reflections on these three topics.
The Nature of Rights
We sometimes say “I have a right to that” as a way of emphasizing importance, or even as a way of identifying something we have an interest in. But as a conceptual matter, rights are correlatives to duties and signify what is due to someone. This notion of what is due, present in the Latin ius as well as, e.g., the Old English riht points in two directions, indicating the existence of the rights holder and the duty bearer, bound in a relation of justice.
Thus, when something is identified as a right, this entails that someone—perhaps many people—has duties the fulfilment of which satisfies the rights claim. The duty might be to provide some thing, such as assistance, or to refrain from some action, such as coercion.
It is thus premature to claim a right where only an interest or a value is being identified, without any prospect of identifying a duty holder. Rights cannot simply be what are valued, beneficial, important to, or desirable for persons.
Further, true human rights must be genuinely beneficial for the rights holders; but long experience and philosophical argument show that what is merely desired is often not of real benefit. Rights claims should not be made when the subject of the claim is merely what is desired, without further evidence that what is desired is genuinely valuable, good, or of substantive benefit, and that it is possible to identify duty holders as well. For similar reasons, a rights claim is not supported merely by showing that what is claimed as a right is a matter of autonomous choice, for such choices too can lead to what is not truly fulfilling.
These conceptual and philosophical claims suggest the following implications:
First, the most fundamental relationship of rights to responsibilities is that of correlativity: when one person has a right, another, or others, must have duties in relation to that person and her right.
There is, however, an additional possible relationship of rights to duties. Some rights are justified by the presence of a duty on the part of the right holder. The founders recognized this: the right to religious exercise was, Madison argued, grounded in the duties that human persons have toward their Creator. Similarly, parental rights are partly justified as necessary to the fulfillment of parental responsibilities, and rights to free inquiry and speech are justified, in part, by duties to seek the truth.
Moreover, some rights are defeasible in light of failure to meet one’s responsibilities. Thus, one’s rights as a parent or as a citizen may be limited if one has not met one’s obligations as a parent or a citizen.
But crucially, not all rights are like this. Many do not depend in any way upon one’s meeting any responsibilities, and some are not lost even when one is guilty of the most egregious moral failures. So when our report says
Rights, whether unalienable or positive, do not exist in a vacuum. They imply responsibilities, beginning with the responsibility to respect the rights of others.[2]
it is not wrong, as such, but it potentially misleads. Rights do not begin with the responsibilities of the right holder; indeed, children have rights—fundamental and unalienable rights—long before they are mature enough to bear responsibilities.[3] And rights are not all lost with a failure to meet responsibilities; no amount of wrongdoing, for example, can justify torture, enslavement, or violations of bodily integrity.
Second, rights, to be politically effective, must be specified by identifying not simply the content of a right but also the bearer of the responsibility that is correlative to the right. This means that many of the rights identified in manifestos such as the Universal Declaration of Human Rights are in need of further specification of the sort that it is the work of the positive law to accomplish.
Here, it is important to interpret our report in a limited manner when we say: “The most fundamental distinction is between unalienable rights—sometimes referred to as natural rights in the founding era and today commonly called human rights—and positive rights.”[4] There is indeed an important distinction between human or natural rights and positive rights, but it is essential to see that the distinction establishes a necessary and reciprocal relationship between the two. Natural or human rights provide a standard by which positive rights are to be understood and corrected; but positive rights are the means by which natural rights are to be realized in a polity. For positive rights do the work of identifying with clarity the content of an otherwise too vague natural right such as the right to life; the obligations that are incumbent upon persons other than the right holder(s) to protect that right; and the identity of those with such obligations, inter alia.
Thus, a great part of realizing natural rights in a polity is to be achieved by legislators, drafting laws that, by securing rights in a contentful and fully specified manner, also serve the common good of the polity. A fuller understanding of the relationship between rights and legislation, such as is put forth in the recent book Legislated Rights: Securing Human Rights through Legislation, is a helpful corrective to the overly judicialized conception of rights that currently operates both in the United States and especially internationally.[5]
Third, understanding the correlativity between right and obligation is conceptually helpful for smoothing the transition between negative rights, which imply an obligation on the part of another to, e.g., refrain from interference, and positive rights (in a different sense from that already mentioned) to some provision of a good or service. Our document grapples with the differences and tensions between unalienable rights, civil rights, and social economic rights, and does so helpfully and effectively.[6] But while the circumstances in which it makes sense to claim a right to not be enslaved or a right to political representation might be different from (and prior to) those in which one can claim a right to healthcare, nevertheless, the right claims themselves are equally intelligible. They mean that (and are justified if) someone has a responsibility: to not enslave (a universal and non-derogable responsibility that all persons have); to provide political representation to the governed (arguably a duty in and of all but the most rudimentary polities); or to provide or ensure the provision of widespread and equitably distributed healthcare services (a responsibility that comes into existence at the political level only after a reasonable amount of economic and technological development).
Thus, clarity concerning the nature of rights casts light on the unity of all rights, human and positive, unalienable and social and economic—a point I reiterate in the next section.
Continue reading this article at the Telos Online website (online subscription required). If your library does not yet subscribe to Telos, visit our library recommendation page to let them know how.
1. Commission on Unalienable Rights, Draft Report of the Commission on Unalienable Rights, July 16, 2020 (Washington, DC: U.S. Department of State, 2020).
2. Ibid., p. 12.
3. As Locke asserts, children have a “right of being nourished and maintained by their parents, which God and nature has given.” John Locke, First Treatise, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge Univ. Press, 1960), § 90.
4. Commission on Unalienable Rights, Draft Report, p. 12.
5. Gregoire Webber et al., Legislated Rights: Securing Human Rights through Legislation (Cambridge: Cambridge Univ. Press, 2018).
6. As a guide to the articulation of these rights in the Universal Declaration of Human Rights, chapter 10 of A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), by our commission’s chair, Mary Ann Glendon, cannot be improved upon.
