The nature of rights

This is an essay I right a while ago on the nature of rights. Enjoy.

The term 'rights' in the sense in the legal sense is clearly related to the more common use of the word as an adjective: 'just, required by morality or equity or duty; correct, true.' We mean it as a noun: 'justification, fair claim, being entitled to privilege or immunity; thing one is entitle to,' these definitions all according to my Oxford dictionary. There seems to be three key words here: justification, claim, and entitlement.

To my understanding there are different ways you can categorize different kinds of rights. One way is to say that there are two categories of rights. According to this analysis, first there are rights which are merely recognized constitutionally. They are rights because they are so recognized. Second, there are rights which are understood to be inherent, regardless of constitutional recognition. For example, First Nations people in Canada are widely considered to have an inherent right to self-government historically, by the fact that they were the founding peoples of this land. So, a right is something to which people have a claim either implicitly or by law.

According to my own thinking, I think there are three categories of rights. Rousseau talked of natural rights, the rights with which we are all born. By this, I extrapolate the meaning to be the basic necessities of life : life, food, shelter, clothing. This is, incidently, consistent with Maslow's hierarchy of needs. We also have political rights: these include the basic freedoms, expression, assembly, association, the right to vote, etc. Finally, we have equality rights. These are the rights which are designed to protect minorities. These include equality rights for women, gays, racial minorities, religious minorities, and protection against discrimination because of these.

There are other kinds of rights as well, but I think these are the important ones. How do we prioritize them?

The right to basic social welfare, the meeting of physiological needs and basic safety and security needs, I think, is most important. Our very survival depends on the meeting of these needs.

Beyond that, I think political rights are very important, especially expression, association, assembly, opinion, religion etc. To me, political rights are so important because without them, we have nothing, and we can fight (nonviolently of course) for nothing. This is where civil disobedience must be resorted to. If I had to choose between living in a society where freedom of speech is constitutionally guaranteed, and respected for the most part, but had no respect for minorities (i.e., the US), and living in a society where everyone is supposed to be equal, on paper anyway, but there was no freedom of speech (i.e., China)), I would have to choose the former. In the former scenario, at least changes can be fought for.

Then there are equality rights, which protect minorities.

The protection of minorities is very important. That is why Supreme Court justices must never be elected, so that minorities will not be subjected to the tyranny of the majority. By their very status in society, minorities are often very vulnerable to the majority, and as such a just society must protect them constitutionally.

If a theory of rights is going to be constructed, a calculus should be used to determine how rights are weighed. From time to time, different rights will conflict. Greater weight ought to be given to the one of the two rights which is most basic or fundamental. What also must be considered is the size of the potential violation of the right, if the other right is upheld. Thus, a less important right that faces the greater violation may be the one that ought to be upheld, and vice versa. This is of course, all highly theoretical and abstract, and I'm just throwing a few thoughts out there for consideration.

The upshot of this is that everything ought to be taken on a case by case basis. The Keegstra case is the most famous hate speech case in Canada, and I have absolutely no sympathy for the man or his case. There were some very aggravating circumstances in this case that make me much less disposed to make it a free speech case. He was a grade school teacher who conveyed his anti-Semetic propaganda to captive impressionable minds; he presented his opinion as fact within a school curriculum, while performing the social role of teacher. These elements of the case give me an even lower opinion of the man that I would have had were he spewing his venom in a setting where he was not expected to fulfill a social role.