Note: This essay is a slightly revised version of a lecture originally prepared for a high school history class.

I gather you are here today to learn something about rights. At least, your teacher has assured me that is the reason you are here. But based on my own classroom experiences I suspect that at least some of you are here because you were afraid you’d get some kind of black mark if you failed to show up. I understand that perfectly, and so I’ll try not to bore you too much.

Most of you will acknowledge that “rights” is a very important concept. It pops up repeatedly in conversations about government and law, and even in daily conversation: “You had every right to do that,” “Your right to swing your fist ends where my nose begins,” “Women have the right to control their own bodies,” and so on. Our Constitution, which is presumed to be the Supreme Law of the Land, includes a Bill of Rights. The charter of the UN endorses a Universal Declaration of Human Rights.

Yet, for all the ubiquity and presumed importance of this concept, there is great disagreement, and confusion, about just what rights are. That in turn leads to confusion about what rights we can be said to have. Most people will agree that everyone has a right to life. Most will agree also that everyone has a right to, say, freedom of speech, and the right to a fair trial if they are accused of a crime. But some will also claim that everyone has a right to food, housing, health care, and to a decent job. These latter are among the rights proclaimed in the UN Declaration just mentioned.

But there is disagreement about every one of these alleged rights. Even when there is general agreement that a right exists, such as the right to life, there may disagreement about how extensive it is, about which people have it, about whether and how and by whom it may be taken away. Do unborn fetuses have a right to life? Convicted murderers? And for many of the rights some people assert, there will be others who insist that no such right exists at all.

So how can an idea, a concept, which seems to be so important, also be so vague, so uncertain, so poorly understood? Rights is one of those ideas for which people go to war, overthrow their governments, and risk their lives in other ways. Violations of rights can land you in jail, and recognition of them can keep you out. So it seems we are prepared to run great risks, and make great sacrifices, for something we really don’t know very much about.

We’ll try to clear up some of that confusion today.

First we need to distinguish between two broad classes or categories of rights. These are legal rights and natural rights. (Yes, you should begin taking notes now). Most of the vagueness and uncertainty I mentioned surround the latter, not the former. Legal rights are actually quite well-defined and it is fairly easy, in most cases, to decide whether a claimed legal right exists or not. We do that simply by examining the laws and perhaps some court decisions. The late Supreme Court Justice Oliver Wendell Holmes once declared that a legal right is nothing but a prediction about what a court will do in certain circumstances. For example, if there is a law which states that anyone accused of a crime has a right to be represented by an attorney, and you are accused of a crime, then you have the (legal) right to representation, and the court will see that you get it.

Now, some will argue that legal rights are the only kinds of rights there are. Those who hold this position are known as legal positivists. They would tell you that the other kind of rights I mentioned, natural rights, are simply fictions, products of someone’s over-stimulated imagination, like unicorns or UFOs. Or they would say they are relics of our pre-scientific, pre-enlightened past, like gods and demons and the evil humors that cause disease.

The positivists are plainly wrong, however. Or at least, if they are right, then the mystery is even deeper. Many of the rights people claim today clearly are not legal rights, since there is no law defining or enacting them. Most of the rights listed in the UN Declaration, for example, are not written into law in many countries, including ours. So these alleged “rights” must be nothing but meaningless words. Also, many of the rights presently written down in laws and enforced in courts were only enacted in the first place because people demanded that they be enacted, that laws be passed to recognize and enforce those rights. Hence they must have existed, in some fashion, and been understood prior to their enactment into law. Slavery, for example, was outlawed in this country and in most of the world only because thousands of outraged people insisted that everyone had a natural right to liberty. Many, indeed, died in the attempt to secure that right by law.

So I shall dismiss the positivist’s claim without further ado. There are indeed such things as natural rights. We just need to know what they are exactly. So let’s try to find out.

I am a philosopher, and if you know anything about philosophers, you may know they often try to formalize things. That is, they try to re-state some common notion in some standard terms or symbols whose meanings are less vague, which are more precisely defined, than the terms in which they are usually expressed. Philosophers have that propensity in common with mathematicians and scientists. So I’m going to indulge in a wee bit of algebra here, without, I hope, becoming too obscure or driving any of you out of the room.

Let’s suppose claims that a right exists always have the form,

P has a right to x,

where “P” is always a person and “x” is always something except a person (we’ll assume dogmatically that persons cannot have rights to other persons).

Now at first glance we may think this statement is asserting something similar to that which is asserted by such statements as,

George has a bald head,

George has a fever,

George has a bad temper.

These three latter statements attribute properties to persons. Saying that someone has a right is somewhat similar to saying that a person has a bald head, or a fever, or a bad temper. But only somewhat. For we’ll notice that our rights statement has an extra term. George may have a right, but the right is always to something. There is something else implied in the statement besides George and the right, some third thing, while the other three statements involve only two things — George and his bald head, for example.

But let’s consider the simpler properties first. The properties which persons — and other things also — may be said to have can be sorted into several categories (and in several ways). We’ll just note two of these — local properties and non-local properties. A local property is one we can verify by examining the person. That is the way we would verify that George has a bald head, for example — we’ll glance discreetly at George and see whether he is bald. Sometimes the examination will be a bit more complicated, such as determining whether George has type A blood. But we still decide by examining George in one way or another.

Non-local properties, though, can’t be verified by that method. They can be verified, but we can’t verify them simply by observing or examining the thing alleged to have them. Usually we must examine something else besides the subject. Consider, for example,

George is an Irishman,

George has a degree in philosophy,

George has two brothers.

To verify these, we must look for some facts beyond George’s body. To ascertain whether George is an Irishman, we must determine where he was born, or where his parents were born. That might require us to examine some public records. To ascertain whether he has a degree in philosophy, we may have to examine some school records.

So these kinds of properties do not “attach to” George in quite the way the first three do. There are other ways to classify properties, and there are other terms one might use to mark the two kinds of properties we’ve distinguished. But those complexities aren’t necessary to understand rights. What is important about these two kinds of properties is just the difference in the means we use to ascertain whether they apply to, or are true of, George. We can ascertain the truth of the first group by observing George, their subject, while we must look beyond George to verify those in the second group.

Now let’s return to the other difference between having a right and, say, having a bald head. That was, that having a right implies some third thing, namely, whatever the right is to.

When we have three things, rather than two, we can sometimes better understand the situation by picturing it as a certain relation between two things, rather than as a property of one thing. So if a right were a simple property, like having a bald head, we might formalize it in our algebra as,

R(p), meaning “p has the property R.” These kinds of statements are “subject-predicate statements.”

Relations, however, we would write as,

pRx, meaning “p stands in the relation R to x.” These are “relational statements.”

We can abbreviate most relations between two things in this way, but we need to spell out just what relation R represents in each case. R could indicate “to the right of,” for example. Or even, “is the uncle of.”

We can now see that our original formula was a relational statement, rather than a simple subject-predicate statement:

P has a right to x

means that there is some kind of relation between P and x. And as was the case with non-local properties, we cannot verify the existence of that relation by examining the P, the person, alone. Neither can we verify it by examining the other relatant, the x, alone. Instead, we must determine whether x is related to P in the way asserted.

Confusion between these two methods of verification contributed to the confusion over the basis of natural rights claims. The philosopher Jeremy Bentham, for example, dismissed natural rights as “nonsense on stilts.” He assumed natural rights were to be understood as local properties, like a bald head or blue eyes, rather than relations. Not finding any such properties by examining persons, he concluded they did not exist. But of course, he was looking in the wrong place.

But what is this relation R? What do we look for in the world to determine whether P is related to x in the way claimed?

Now we need to detour into some history. The term “right,” as we are using it here, evolved in common law — that is the traditional system of law developed in England and now used by all English-speaking countries — and it indicated, as do modern legal rights, which claims the courts could be expected to honor, which of the parties to a dispute would be deemed to be “in the right.” Those courts, however, unlike modern ones, did not have a vast compendium of statutes spelling out what rights people had. They relied, instead, on ancient understandings of such matters. What were those understandings?

All cultures, ancient and modern, tribal or urban, have some conception of property — some principle for determining what belongs to whom. Wherever there are a number of people inhabiting a common territory, they’ll need some acknowledged rule for determining which spear is Alfie’s, which pig is Bruno’s, which tipi is Chauncey’s. Obviously, without such a rule, social life would be impossible. One hundred people cannot eat the same apple or sleep in the same tipi. Without some principle for deciding what properly belongs to whom (and note the connection here between “proper” and “property”), everything is always up for grabs. No one can count on keeping anything one acquires for long enough to make use of it, and social life dissolves into a state of war, as Hobbes — another philosopher— observed.

By far the most common customary principle for assigning property to persons is the first possession rule — a given good is yours, it is your property, if you were the first possessor of it. Usually, you become the first possessor of a good in one of two ways: by creating it or discovering it. If you make a spear, you become its owner, by virtue of the fact that you made it. If you gather some berries from some bushes you discovered in the woods, they are your berries, by virtue of your discovery and picking of them.

Of course, if something is your property, then you may do with it as you wish, but others must keep hands off. You may eat the berries or give them to your girlfriend. You may hunt with the spear or trade it to someone for a blanket. If you give it or trade it away, it then becomes the property of the recipient. But as long as it is yours, you may deny others use of it, or set conditions for its use.

That was the ancient understanding of the origins and basis of property — that each person has a property in those things he or she has first possessed, usually by being either the creator or discoverer of those things. One also has property in anything others have given one, or traded to one.

“Rights,” then, was the name given to claims of the kind common law courts would honor, and they would honor those claims to things which rested on first possession. In general, to carry the day in court, in any dispute about property — who owns this blanket or that shiny stone or that apple tree — one would only have to show first possession: that you wove the blanket, found the glittering stone, planted the tree. Or you could show that the title you claim can be traced back, through a series of gifts, bequests, or trades, to the first possessor. That principle remains all but universal today for settling property disputes. When you finally escape these walls and decide to buy a house, the bank financing it will insist on a “title search” — they will have a title company trace the title on the house all the way back to the person who settled and filed the first claim to the land — the first possessor. They want to make sure the person offering to sell it to you has the right to sell it.

Meanwhile, as the notion of rights was evolving in the common law courts, a new kind of right was “discovered” by some philosophers. Some of the things of which one is the first possessor are neither created nor discovered (at least by the owner); instead, you bring them with you into the world. Some of these things are, your life, your body, and various natural abilities and powers possessed, to one degree or another, by most if not all persons, such as the power to speak, to move about in the world, and to create and discover things. Those natural attributes and powers are your property also — they are your natural property, the property with which you were endowed at birth. Your rights to those things are, of course, your natural rights.

Sometimes it is useful to distinguish between natural rights — the rights you have to those things you brought with you into the world — and “common rights,” the rights you acquire to things after you arrive in the world, by being their creator or discover. But often these are lumped together under “natural rights,” so that they can be distinguished as a group from legal rights — those rights created by an act of a lawgiver. I shall use the term “natural rights” hereafter to refer to both natural and common rights. Both, as we’ve seen, rest on first possession.

So we now have a criterion, what philosophers call a “truth condition,” for natural rights claims. We know what we must look for to determine whether a claimed right actually exists, and thus whether the claim is true or false.

P has a right to x

is true if, and only if, P is the first possessor of x, or P acquired x via a “chain of consent” from the first possessor. P is related to x in the way asserted by the rights claim if she is, as a matter of fact, the first possessor of x (or she acquired it from the first possessor via a chain of consent).

Now there is another very important aspect of rights to which we have so far only barely alluded. That is the belief that they are, well, very important, morally speaking. Rights are the kinds of things, as I mentioned, for which people risk their lives and launch revolutions. In the Declaration of Independence Thomas Jefferson declared that “governments are instituted among men to secure their rights.” Now obviously if governments are created to secure rights, there must be some rights to secure before any government is created. Those are, of course, the natural rights.

But why should that be? Why should the fact that a thing has been first possessed by a particular person make it seem so morally important not to deprive him of it? Why should that fact suffice to make it his property, which he may use as he pleases, and which he may withhold from others? Why should we erect governments to protect rights so defined?

Natural rights are important, morally speaking, because those things to which people have rights — the things they have first possessed, or acquired via a chain of consent from the first possessor — are things they have acquired without injuring anyone else. That is by no means the only way people may acquire things, as we all know. They may also acquire things by stealing them, either by force or by stealth. When that happens, one person gains something only by imposing a loss on someone else. But when one creates something or discovers something not previously known to exist, or brings it with her into the world, no one else is injured, since no one previously benefited from that thing. Indeed, others may well be made better off by the discovery or the invention, should the discoverer elect to give it away or trade it.

Rights are morally important, then, because they designate those things people have acquired innocently, without injuring anyone. And that is sufficient to endow one’s claims to such things with moral significance, and render them worthy of respect.

So you now know what natural rights are, and how to recognize them. You should now be in a position to evaluate any rights claims you may encounter and determine whether they are true or false.

I’d like to leave you with one suggestion —- “for further study,” as the textbooks say. While respecting others’ rights is an essential principle for living in a peaceful and prosperous social setting with others, a few other principles are necessary as well. You may wish to reflect on what some of those might be.