What's Right About Rights?
James Allan*

The end of the Second World War, with its massive violations and obscenities,
together with the new-found influence of the United States and its 200 year old
constitution, has heralded or spawned a new era for rights - more particularly the
discussing of politics and morals in terms of the concept of rights. Although first
conceptualized by the ancient Greeks, rights had their theoretical heyday in the
17th century; they had their revolutionary heyday in the 18th century; and then
they were eclipsed by 19th century movements, either utilitarian or idealist, which
could not or would not accommodate them. Today they are again the major,
perhaps the sole, currency of moral and political debate throughout the world.
This paper will attempt critically to assess the validity of such a tendency.

What then are rights? Rights are not things. One may not find them floating in
the atmosphere, either visible or invisible. Nor are they sensations in the mind. To
answer this question one must realize that the primary job of most legal words, l for
example, 'liability', 'onus', 'right', 'duty', or 'negligence', is not to stand for or
describe anything in the material or psychological world. Rather it is to describe a
function. Accordingly, one ought not to abstract any such legal word from the
sentence in which its full function can be seen. To elucidate a legal word best, look
at the whole statment in which it has its characteristic use. Thus asking" 'When is
it accurate to say that one has a right to do or to refrain from something?' " is a much
more apt formulation than asking "What are rights?" or simply discussing 'rights'.
The former question does not presuppose that rights are things and therefore

• Lecturer in Law, City Polytechnic of Hong Kong. The author wishes to acknowledge the influence,
generally, of Jeremy Bentham, David Hume and H.L.A. Hart on what follows.

I. See H.L.A. Hart's "Definition and Theory in Jurisprudence" (1953) Inaugural Lecture, Oxford, at
70L. Q .R. (1954) or Essays inJurisprudence and Philosophy (1983, Clarendon Press), pp. 2 1-48. In this
article Hart asserts that the common mode of definition largely fails with respect to the law as legal
words do not have the straightforward connection with counterparts in the world of fact which
ordinary words have (e.g. , 'trees', 'cancer', 'soccer'). Most words are defined by placing them in a larger
category and then differentiating them from other things in that category (genus el dIfferentia). Such a
mode of definition breaks down in the legal realm, indeed in the whole non-material realm, because
nothing 'corresponds' to legal words.



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avoids obfuscation.2 By more precisely posing a question one may eliminate some
of the vagueness surrounding rights.

Yet if rights are not to be defined in the same way as things are, how shall they be
understood? Hohfeld3 and Bentham4 understood that legal relationships are
correlative. There cannot be rights in a vacuum. Firstly there must be rules. Rules
lay down obligations or duties which are linked or correlated to rights. How can
anyone have a right where no person or body has a corresponding duty? Hollow
and empty would any such right be. Thus Hohfeld reduces all legal relationships
into a limited number of terms. A duty becomes "I must". A right becomes
"others must". A power becomes "I can". An immunity becomes "others
cannot". And a privilege becomes "I may".5 Each relates to and depends on the
others. A right, therefore, is to be understood in terms of whether the
corresponding duty shall be performed or not. It may be thought of as an
expectation guaranteed by legal rules.

This foray into linguistics is to warn against treating abstract concepts as real
things; they are not. 'Fictitious entities' (e.g. 'inflation' or 'gravity') are man-made
mental constructions used to help us categorize, label and understand a vast and
nearly ungovernable experiential world.6 Their 'existence' depends on the active
powers of the mind operating through language. Indeed the limits of language
sometimes force us to resort to fictitious entities. Such fictions7 in language are
perfectly permissible if necessary and if speakers realize fictions are human
creations without an independent existence. Legitimate fictions make discussion
possible; illegitimate fictions mystify and reify.

Language also has the power to command through the emotive connotations of
many words.8 Frequently words are non-neutral and carry suggestions of
emotional attitudes. Thus, to characterize another's opinions as 'reactionary',
'socialist', 'liberal', or 'Marxist' is to use a word which carries the extra baggage of
'good' or 'bad'. It closes off debate, relying on the passions rather than reason.
Likewise, depending on the point of view favoured, alternatives such as
'assassinated-summarily executed', 'eloquent-bombastic', 'courageous-reckless'

2. As Bentham and Hart were aware, "though theory is to be welcomed, the growth of theory on the
back of definition is not": ibid., pAl. That is to say, one ought to avoid the need for theorizing simply
because of the way words are defined and used. Only in trying to answer "What is a right?" rather than
explaining it does one need theory. Other examples of this at a practical, though trite, level are given by
Robert Thouless in Straight and Crooked Thinking 7th ed. (1963, Pan Books Ltd.), Ch. 5.
3. See W. N. Hohfeld's,Fundamental Legal Conceptions as Applied in Judicial Reasoning (1946).
4. See Jeremy Bentham's, Works (Bowring edition, 1838-1843) especially hisFragmenr on Government
therein.
5. In working with Hohfeldian simplifications one must be alert that, like all insightful simplifications,
a degree of common sense is needed to avoid distortion and misapplication.
6. In a sense language is paradoxical- its labels and categories are unduly confining and distorting and
yet without language how could we think at all?
7. Bentham first articulated a theory of fictions, in inchoate form, in his early workAn Introduction to
rhePrinciplesof Morals and Legislation: see,e.g., Bums and Hart's edition, pp.53 (footnote), 97,101-2,
114-5, 125 inter alia.
8. See Thouless, supra n.2, Ch.1.

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WHAT'S RIGHT ABOUT RIGHTS

or 'generous-extravagant' can be used to describe the same factual reality.
In discussing rights, therefore, both the above linguistic dangers are to be

avoided. Firstly, we must understand rights functionally - linked as they are to
duties and pre-supposing some sort of rules. Secondly, we must not allow emotive
language to sway us, in and of itself. There is a tendency today to 'demand one's
rights'. This may be in part because the word 'right' carries a non-neutral
meaning; it has the notion of 'good' appended to it. To give someone his or her
rights must be good; to refuse bad. One potential danger inherent in succumbing
uncritically to such an appeal is that the ensuing proliferation of rights-claims may
debase the whole currency of rights. Tacitly all rights are then brought down to the
level of the least valid claim. So let us proceed to consider the validity and
desirability of political and moral debate being discussed in the language of rights
while keeping in mind that clear thinking requires an awareness of the deficiencies
and the power of language.

Throughout his life Jeremy Bentham made the point that talk of natural rights is
simple nonsense; talk of natural and imprescriptible rights, rhetorical nonsense -
"nonsense upon stilts".9 What did he mean? By simple nonsense Bentham was
making the purely logical point that rules and systems precede rights. Rights are
something man adds to the world, not something he finds in it - some sort of gift of
nature. Rights must follow rather than precede the establishment of systems (i. e.
government) and rules. No rights, therefore, can exist anterior to civil society.

As early communities formed and grew more complex 'rules', or more
accurately 'modes of resolving and preventing disputes', 10 sprang up to allow for
the smoother operating and greater security of the group. These rules grew up
slowly by custom and habit. I I With the rules were attached obligations and duties
on specific members and groups in the body politic. In turn, with the duties on
some came corresponding rights to others.

Of course many people do not share this view of the evolution or origin of rights.
Some hold to the view that there are indeed non-legal rights,12or rather natural
rights which attach to all human beings - presumably by reason of their being
humans. Such a view, generally speaking, sees 'rights' not as human artefacts, not
as dependent on social conventions or social recognition for their existence, but as

9. See Bentham's Anarchical Fallacies and The Ratianale of Judicial Evidence, both in the Bowring
edition (1838-1843) of his Works.
10. Karl Llewellyn's 'Law-Jobs Theory' was that there are certain needs that must be met for a human
group to survive as a group and to achieve the purposes for which it exists. Conflict and the divisive side
of human nature threatens group survival. Thus conflict-prevention and conflict-resolution (the
"law-jobs") are a necessary pre-condition of group survival and effectiveness: see Llewellyn, "The
Normative, the Legal and the Law Jobs", 49 YaleL.J. (1940) 1355as well as The Cheyenne Way (with
Hoebel and recently re-printed by the University of Oklahoma Press).
11. See David Hume who throughout his writings (e.g., A Treatise of Human Nature, Essays)
emphasized the influence and impact of habit and custom on human reason and human affairs. On this
and other matters Bentham owed a debt to Hume (see, inter alia, Halevy, The Growth of Philosophic
Radicalism 2nd ed. (1952).
12. See, e.g. , Ronald Dworkin, Taking Rights Seriously (Duckworth, N. Y., 1978). On the question of
'moml' rights, as opposed to 'natural' or 'human' rights, see infra.

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reflective of certain features of human nature. Thus this theory makes rights
objective and assigns them on the basis of 'natural' criteria. It must select some set
of basic rights most congruent with natural facts. To the query, "Which natural
facts?", the response must involve some set of the facts of human nature. Of course
this reasoning, strictly speaking, limits the range of rights to humans and only
humans.13 It also makes whatever set of rights is ultimately chosen as being
congruent with human nature one that is eternal; homo erectus, the Greek slave, the
serf of the Middle Ages and the ante-bel/urn black slave, all being humans, have and
did have the same rights as any citizen of New York, London or Tokyo (albeit the
former may not have been aware of their rights nor have had those rights as well
protected). Context is irrelevant to this analysis. Choose those aspects of
'humanness' that give rise to certain rights and everything else must follow; now,
in the past, and in the future, regardless of any other factors. And which specific
aspects of human nature give rise to these rights? Is it our God-given soul? This
presumes much, lacks a scientific foundation, and raises more questions than it
answers. Is it our ability to reason? Presumably then, somewhere along the course
of evolution, once a creature has the ability to reason it suddenly acquires a full
complement of eternal rights (or at least rights lasting until the species loses the
ability to reason). And this is true"even if that creature is unaware of its rights; even
if the whole world is unaware of its rights; even if the creature is not human.

Such natural rights theories seem to fly in the face of experience. This is the
more noteworthy as most adherents of the position put it forward as a descriptive,
not merely prescriptive, theory. Yet only in the most abstract of senses, if at all, can
it be said that all humans possess the same rights, even in today's world. Most
people presently existing are not able to claim these many rights supposedly due to
them 'as humans'. How can one possibly assert that Roman slaves did have the
right to free speech or that Persian captives did have the right not to be sold as
slaves by their Greek captors or that many of today's Cambodians, Vietnamese or
even Aborigines do have the right to liberty, to happiness, to free speech or even to
life? Such talk is meaningless, simple nonsense. Bentham was right because he saw
that this sort of parlance in terms of rights is criterion less, a mere expression of
faith.

There are others who defend non-legal rights on a different ground altogether,
on the basis of a social contract. What rules and rights for social living .would
people accept, or might they have accepted, if they set aside subjective biases and

13. It is submitted that one of the practical limitations of 'rights discourse' is here exemplified with
reference to animal welfare concerns. Forcing those concerned with the plight of animals to conduct
their dialogue in terms of natural rights, or human rights, not only clouds the essential point that
animals should never be made to suffer more than we, as humans, have determined to be absolutely
necessary - which, in itself, leaves open the question why humans should have this power. It also
suggests that animals, as non-human species, perhaps lack certain of mankind's 'inherent' rights; the
unspoken, indeed ineffable, conclusion being that their unnecessary suffering may be justifiable.
Conversely talk in terms of'animal rights' forces proponents to the verge of saying that all living beings
have rights by virtue of being alive. Experience, not to mention most dinner plates, shows that such
claims are nowhere respected. Is talk in such terms helpful or useful?

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WHAT'S RIGHT ABOUT RIGHTS

formed a detached judgement on the question? One is asked to imaginel4 a
fictitious negotiation, a priori, in which humans, not knowing what their future
position or status in the society will be, reach a unanimous agreement on what
rights and distributions all of them will enjoy. We are told they can reach this
agreement based on principled self-interest and reason. Given certain premises
that all reasonable beings would surely accept (e.g., that with one's future place in
the hierarchy uncertain, everyone would choose the fullest degree of liberty
applicable to all as well as the greatest possible distribution of wealth which did not
unduly hamper productivity),15 one can move deductively to a set of rules - and
therefore rights - to govern society. But how can it be said that a priori, or even in
the light of experience, there are any premises on which every self-interested
person would agree? Does this mesh with our experience of the diversity of human
nature? Does this presume rationality and if so why? And, moreover, why is it in
fact irrational to take chances on one's future, particularly if one has calculated the
odds and they appear favourable? Are liberty and self-respect really, a priori, to be
preferred over wealth and material comforts? Surely there are no universally
agreed premises from which anything further can be deduced. Thus if social
contract theory is defensible at all it ought really to be couched in terms of
majorities, with all the attendant difficulties that brings with it.16

Even if, somehow, unanimity could be achieved in some big meeting taking
place before time itself, why should the rules and rights formulated by the
forefathers bind forever the progeny? This type of justification for non-legal rights
throws responsibility for today's binding 'agreements' back onto those who came.
before today, rather than making those actually in the society responsible for how
it is set up. It lays the foundation for these rights by invoking the notion of'justice',
based on some unreal negotiation, when it is far from clear or uncontroversial what
justice is or how it can usefully be employed.

"To invoke justice is the same thing as banging on the table: an emotional
expression which turns one's demand into an absolute postulate. That is no
proper way to mutual understanding. It is impossible to have a rational
discussion with a man who mobilises 'justice', because he says nothing that
can be argued for or against. His words are persuasion, not argument. The
ideology of justice leads to implacability and conflict ... it precludes all
rational argument and discussion of a settlement."I?

14. See John Rawls, A Theory of Justice (Oxford University Press, 1973) for the most recent
formulation of this approach where purportedly neutral people, unaware of the empirical world and
their future place in it, strike a deal behind a so-called 'veil of ignorance'. The seminal works on social
contract theory belong to Locke and Rousseau.
15. Because, it is said, rational, self-interested people behind a veil of ignorance would not take chances
with their future lot.
16. Unscientific talk and speculation of majority preferences tend to wreak of the personal preferences
of the speaker.
17. AIf Ross, On Law and Justice (1958), pp.274-75.

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Lastly, and perhaps most tellingly, social contract theory is suspect because no
such negotiation about rights and distributions ever took place! Thus a fiction has
been introduced by the adherents of this theory. But why is a fiction needed? Rules
and rights grew up gradually, by custom, habit, trial and error, as humans slowly
organized into ever larger and more complex social systems to capitalize on the
benefits for security, production, and defence that communal living brings. Why
resort to a fiction, in this instance a prevarication, when the facts do not require it?
Fictions are properly used to help categorize and conceptualize experience, not to
fly in its face.

So if the warrant for the existence of non-legal rights, either in the form of
natural rights theories or social contract theories, seems unconvincing then where
is one left? Moreover, is it possible that an ideology, such as that surrounding
natural rights, might be illogical or indefensible on strictly rational grounds and
yet productive of much good? Do 'natural rights' and 'social contract' theories sow
doubts which may reap a subsequent harvest of the outright rejection of all
rights-based claims?

The notion of rights this paper propounds conceives of a right as a man-made
concept, a human artefact, which may be used to promote chosen ends, for
example to create greater societal harmony or fairness. This is a welfare linked,
consequentialist view of rights. Admittedly many people view rights and utility as
antithetical, combatants filled with mutual anathema, on the ground that pursuing
the general welfare inevitably means doing so at the expense of individuals. Yet if it
could be shown that enforcing certain prescribed rights is desirable and promotes
selected goals of general welfare better than permitting the unchecked pursuit of
goals or policies, 18 there would be no conflict. All conceptions of rights, either legal
or non-legal, have in common the notion that rights act as constraints on the
pursuit of goals. Thus it is, for example, that the right to free speech may
occasionally clash with governmental policies aimed at greater social and racial
harmony. How then can it be said that the existence of rights could better promote
certain general welfare goals? The answer is paradoxical. The goals and policies of
human beings and their institutions are sometimes, perhaps often, mistaken or
flawed. Knowing this to be true it is quite justifiable to curb a government's
unqualified pursuit of ends or goals. It is a recognition of mankind's, or reason's,
limitations. Were we omniscient and infallible it would be rational never to
obstruct, in any way, the pursuit of goals leading to greater general welfare. But we
recognize our limitations, leading to a rational irrationality of sorts. Experience of
our species' failings leads to the awareness that recognizing certain rights - or
constraints on the pursuit of general goals - will produce more welfare than if those
rights were not recognized. Their recognition will, on the whole, sufficiently limit
errors and produce security and fairness to outweigh the possible success of
well-intentioned policies. On this view, we should talk in terms of and adopt
18. That this is possible depends on the perception of human nature as neither inherently bad nor
inherently good as well as a recognition that irrationality has some role in affairs human.

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WHAT'S RIGHT ABOUT RIGHTS

certain rights because they enhance the functioning of society or red~ce the risk of
it going awry. We adopt a rights approach even though we know these specified
rights will sometimes over-rule policies designed for, and potentially productive
of, the general welfare. Nevertheless, our received wisdom has taught us that our
society is better off by providing for certain rights. 19 Such rights may be illogical,
in that they block policies which are intended for society's benefit. However,
knowing what we do of tyranny, ineptitude, fallibility, and even good intentions,
we choose to construct certain roadblocks all the same.

This welfare based view of rights is not divorced from experience; it does not
create eternal, objective rights; it does not link rights to some intangible,
mysterious quality emanating from human beings; it does not rely on fictitious
agreements between fictitious people which bind real people in real circumstances;
it may deliberately tie the hands of some of its officials in their pursuit of efficiency
but it does this when experience shows that a particular society is better off in the
long haul with certain officials having one hand tied behind their backs; it does not
indulge in 'cultural imperialism' by imposing, under the guise of universal
abstractions, the standards of one society on a differently developed society; it
allows one, at least partially, to taste the overpowering draught of a belief in rights
without waking up with a hangover!

This prescriptive view of how we should envisage and utilize rights and rights-
terminology meshes well with our historical and empirical understanding. It
recognizes that rules develop first with communal living. Such rules in some way
provide for obligations and concomitant rights. As a particular social group
evolves so too do the rules that keep it together and thus the attendant obligations
and rights. Such a view of rights need not say there are only legal rights. It simply
denies that there are the criterionless, so-called 'natural' or 'human' rights. The
question of whether 'moral rights' might exist is left open. All that is demanded is
that somehow moral rules be established first. If the view is taken that there are
valid moral rules, either to which all could possibly agree20or which flow from
some moral principle,21 then Bentham's logical point - that rights pre-suppose
rules and obligations - would be met.

19. This conception of rights is closely analogous to the view of democracy, not as the best possible
system of government, but as the least bad; i. e., human nature being what it is, and power having a
seemingly magnetic hold on rulers, democracy in this view is better than other forms of government
because it allows the governed a regular opportunity to pass judgement on, even to throw out, an
existing government - with all the concomitant advantages such a threat carries with it (cf The
Economist, April 23-29, 1988, special article by Karl Popper.) Such a view avoids mawkishness and
undue adulation while recognizing the inefficiencies, compromises, slow reactions and short-term
thinking that comes with democracy.
20. E.g. , that all promises should be kept or that killing is never justified.
21. E.g., utility. However there are serious problems with basing rights conceptions on utilitarian
grounds as is explored and elucidated by H.L.A. Hart in Essays on Bentham (Clarendon Press, 1982),
Ch.IV, particularly pp. 84-87. 'Utilitarian entitlements' differ from what is thought of as non-legal
rights because they: a) fluctuate with changing circumstances; b) signify 'ought' rather than 'must'; and
c) do not create coercive sanctions.

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To turn back now to discuss Bentham's other barb - "nonsense upon stilts".22
This refers to claims that certain rights, even be they legal rights, not only exist but
are absolute, imprescriptible and boast an unending, unchangeable right to exist.
But how can this be? At most there could only ever be one absolute right because
when two allegedly absolute rights were to clash, one would have to give way.
Moreover, so called 'absolute rights' may conflict with one another, or, the same
absolute right may conflict with itself in two or more different people - meaning
that one party who was owed this 'absolute right' would not be able to have it
enforced. On the other hand, if all rights are man-made then no-one could
prescribe imprescriptibility. We may want to set high hurdles to the removing or
foregoing of specific rights but to purport to forbid future legislators from ever
tampering with them under any circumstances is ludicrous, "nonsense upon
stilts". A theory of rights which admits that a very high degree of consensus indeed
may be required to dispense with society's most valued rights is different in kind
from one which purports to shout "never". The doctrine of omnipresent,
inalienable rights has no place in the real world of day-to-day social living.

In his Anarchical Fallacies Bentham also asserted that appeals to natural rights
are sometimes "mischievous nonsense". The "mischievous nonsense" epitaph
refers to the tendency that proclamations of universal rights have in exciting the
dissocial passions by providing the purported justific:ations for disobedience to
any government or measure an individual happens not to like. By conflating 'law as
it is' and 'law as it ought to be'23 declarations of universal rights confuse law and a
particular version of morality, allowing 'ought' and 'ought not' to take the place of
'is' and 'is not' in respect of the binding force and effect of laws. The anarchist is
thus enabled to say, "This ought not to be the law, therefore it is not, so I am free
not merely to censure but to disregard it." Obversely, the reactionary is enabled to
say, "This is the law, therefore it is what it ought to be and no criticism is valid. "24

In conclusion, it is suggested that prescribed rights, when understood
functionally and not cloaked in emotive language, do have a significant role to play
in our society. What is really at stake is preventing government from abusing its
powers. The question of whether talk of natural rights is illogical and yet has been
productive of good in human affairs - and what such an admission would signify-
is left for some future time. In any event, today's tendency to conduct all moral and
political discourse in the lIngua franca of rights is misplaced. As Bentham said:
"Reasons for wishing there were such things as rights are not rights: a reason for
wishing that a certain right were established is not that right - want is not supply-
hunger is not bread. "25

22. Supra, p.3.
23. See Hart, Essays in Jurisprudence and Philosophy, supra n.2, Essay 2, "Positivism and the
Separation of Law and Morals", for an excellem defence of the distinction.
24. Ibid, p.53 cf. Introduction to the Principles of Morals and Legislation, Concluding Note, paragraphs
26 and 27.
25. Works II, 501.

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WHAT'S RIGHT ABOUT RIGHTS

Doubtless the current predominance of rights will ebb in the course of time.
What the cause of that decline will be one would not hazard to predict. Perhaps
America, that great moralizing nation and most enthusiastic embracer of the
language of rights, will lose its foremost world position to countries with a more
Asian, less individ·ualistic perspective. Perhaps a new Utopian ideology or
collectivism or community-ism will attract sufficient adherents. Marx himself
rejected rights because he saw that they pre-supposed a conflict between the
individual and the collective - an unacceptable presupposition in any Utopian
world view - and because he believed that abstract equality at the level of 'rights'
merely concealed the real economic power structure. Again, perhaps Liberalism
will continue its retreat. Classic liberalism and the debate of political and moral
questions in terms of rights are closely interwoven. Both are founded on
presumptions of rationality, individualism and progress (i. e., the U.S. world-view
writ large). Today these three presumptions are under attack on all sides. Finally,
perhaps a cynicism will come to the fore and it will be asked what 'rights' have
given the vast majority born into subjection and poverty, not freedom of any real
kind.

If there be an eventual lessening in the importance of rights terminology, one
hopes that a clear understanding of the logic and functioning of rights will preserve
their benefits so that only the excesses are lost. In the meantime, it must be
admitted that in most Western societies today it is power-conferring to be able to
claim a right. Indeed, in the West it is still the ideal language in which ethnic
minorities and women can express their claims. All the same, though, it is
counter-productive to speak solely in terms of rights. Far too many people today
speak and act, even think, as though rights were things; as though rights could
exist before and without corresponding rules and duties; as though all rights were
absolute and imprescriptible; as though rights were given mankind, with his soul,
by God; as though it were never misleading to inject rights terminology into every
debate; and as though all these misconceptions could not possibly infect an
otherwise healthy and useful tool.

9