Chapter 6

Kinds of rights

Now then, to classify rights, obviously we have as many different kinds of rights as there are kinds of aspects of ourselves, either innate or acquired, which give us the power to act: as many as there are kinds of titles. I do not intend here to give an exhaustive survey of all of them, but merely to mention some, and then to discuss a few of the major human rights.

But first, any right is either alienable or inalienable (or, if you prefer to use Jefferson's term, "unalienable"); that is, it can either be taken away from you under certain conditions or it can't.

A right is absolutely inalienable if the possessor may not morally give it up. No one, of course, may take it away, either.

A right is relatively inalienable if the possessor may morally give it up if he wishes, but no one, not even civil society, may morally force him to give it up.

A right is alienable if the possessor may morally give it up and under certain circumstances, it can be morally taken away from him.

An example of an absolutely inalienable right is the right to life. Since it is immoral to choose to kill yourself (because, as we saw in Chapter 3 of Section 2 of the fifth part 5.2.3, it is inconsistent with your reality as a living being), then you can't kill yourself by proxy by asking someone else to kill you and giving up your right to life, because that would be to choose your own death, which is immoral. By the same token, even if someone asked you to kill him, you could not do so, because under no circumstances may you choose another's death; the only thing that justifies killing another person is the Principle of the Double Effect, which precisely keeps, as we saw, the death out of the choice.

An example of a relatively inalienable right is a person's right to get married. You may freely enter an organization such as a Religious order which forbids your ever marrying or engaging in sexual activity; but you may not morally be forced to do so. Since we cannot choose not to belong to civil society, as we will see, then government could not pass a law forbidding marriage, because this would force a person to give up a relatively inalienable right.

An example of an alienable right would be your right to have another person fulfill his part of a contract you entered into with him. You may, if you choose, release him from his obligation (thus giving up your right against him), and you may be forced to do so if he goes bankrupt, even if he is physically capable of fulfilling the contract. In the case of bankruptcy, it has been determined that his fulfilling of all his contractual obligations would cause so much hardship to him as to be significantly dehumanizing; and so your insistence on your right under these conditions would now be a violation of his right.

There is, of course, a sense in which all rights are at least relatively inalienable, or they wouldn't be rights: that you can't be forced against your will to give them up. How could you have a right to do something when you could be prevented from doing it? But of course, as we said in Conclusion 4, any right is limited by the rights of others, and you can't exercise it in such a way that it violates any right of anyone else--except, we can now add, when the Double Effect would allow you to keep the other's violation out of your choice. This applies to absolutely inalienable rights as well as to alienable ones.

The difference between relatively inalienable rights and alienable ones is that relatively inalienable rights are the ones that government can't deny by law. The fact that the State of Ohio could (and did) pass a law that said that people of high-school age could not receive driver's licenses unless they were in school shows that the right to drive a car is alienable. Since the State confers the right to drive (under the conditions it imposes), it can also take away that right (under the conditions it sets up for revoking it).

The major kinds of rights, then, are the following:

First, human rights have as their title the fact that the possessor is a human being, with the genetic potential of a human being. All these rights are at least relatively inalienable. Those actions which a human being must do because not to do them is to violate the moral obligation (i.e. is equivalently to do himself damage) carry with them rights that are absolutely inalienable, while those which a person may refrain from without doing himself damage are relatively inalienable.

We will see shortly a brief rundown of human rights, as I said.

Secondly, civil rights are those we have because of our title of citizenship in a nation. These are the rights that depend on the constitution of the society and the later laws passed according to the constitution. Thus, the right to vote is a civil right I would have possessed if I had lived in the United States of 1790, but my son would not; because I am a property owner, and (at the time I originally wrote this) he was not, and the right was granted originally only to property owners. The law, however, was changed, and now we both have this right. My wife, on the other hand, has no right to vote even now, because she is Argentine, though a permanent resident here, and is not a citizen; hence, she doesn't have the title to any civil rights of the United States. She only has her human rights, and any sharing in what we have a right to do as citizens is extended to her as a privilege.

A privilege is the granting of some power as if the person had the right to perform the act in question, when in fact he does not have title to that right.

When you do something by privilege, then, you are precisely not entitled to do it, and are simply allowed to do it by the graciousness of the one ceding the privilege. We cannot, obviously, claim privileges, the way we can claim rights; and that is the basic difference.

Note that civil rights are alienable. If they depend on the constitution or laws of the society, the society can remove them by changing the constitution or laws, or can add new ones by passing new laws. The so-called "civil rights movement" of the Blacks in the middle of the last century should not be allowed to cause confusion here, as if civil rights were inalienable. That movement was only in part a civil rights movement; it was much more a human rights movement in that legislation was preventing Blacks from doing things they had a human right to do. There were also civil rights questions involved, of course, in that, though they were supposed to be citizens, there were restrictions in law that effectively prevented them from being able to vote, or do other things that "real" citizens had a right to do, such as use public libraries.

Of course, every human right must be made also a civil right, because the government cannot force human beings to act as if they weren't human beings, which is what not "granting" them civil rights would be tantamount to. It goes without saying that that was one part of the thrust of the civil rights movement. The other was that rights granted to citizens as citizens must be conceded to every citizen. This is obvious, because the title to a civil right is citizenship; otherwise, it is some kind of civil privilege, or a contractual right between the government and some individual, not a civil right at all.

Note that the United States Supreme Court, in its infamous Roe v. Wade decision, in which it refused to decide the question of whether the fetus was a person, was precisely shirking its moral obligation in this respect; because if the fetus is a human being, then he has human rights, as the Declaration of Independence, by which we exist as a separate nation, spelled out; and these rights, as human, are not granted by government, nor can they be taken away by government, but must be acknowledged and protected by government, and must be made civil rights also. The Court had simply no authority to refuse to consider whether fetuses were actually possessors of these rights or not. Such actions of a government's refusing to recognize a human right are grounds for revolution and forming a new society, as we ourselves proved in 1776. Hence, the Supreme Court's action on that deadly day in January was a repudiation of the very basis on which we exist as a separate nation, whether the right to life of the fetus was explicitly in the Constitution or not. The same thing, of course, happened with respect to the human right to liberty in the Dred Scott decision about a half century later.

Thirdly, acquired rights are those rights you have because you did something to get them, such as the right to drive a car, which is granted to you for passing a test, or the right to own a house, which is acquired by buying it, and so on.

Fourthly, contractual rights are those rights which are acquired from a promise that a person makes to you. Here it is enough that the person made the promise; but since the title to the right has to be something that can be demonstrated to others, then to be binding for legal purposes the promise either has to have been made before witnesses who can testify to it, or in writing, so that the document can be produced to show that it was in fact made. Of course, any promise made is known by God, and so the right against the person who made it really exists even if it hasn't been "put in writing" or made before witnesses; and that is why I said that the promise is binding for legal purposes under these conditions; because judges in this world can't be expected to be omniscient, and need evidence that an act really took place. That is, the person who breaks an unwitnessed oral promise is guilty of that act and takes the eternal consequences of violating your right; it is just that you can't protect your right against him by going to court, say, unless you can prove that he made the promise in the first place. So get it in writing.

Finally, for our purposes, implied rights are those that deal with acts that are necessary for the performance of something else that a person has a right to do. I had a discussion one time with the president of our college, who claimed at an assembly of faculty that parking was a privilege. I raised my hand and told him that I had a contract to teach there, and therefore I had a right to teach there; that there was no way in practice I could get there unless I drove, and parked my car; and therefore, I had to be able to park if I was to teach. So I had a right to park, not a privilege. He actually yielded the point.(1)

Obviously any obligation we have carries with it the implied right to what is necessary to carry it out. For instance, since we have the obligation not to kill ourselves or not to make ourselves unhealthy, we have the implied right to food that will keep us alive and in minimal health--and this would be a human right, because the obligation we have not to damage our health is the moral obligation that comes from our nature as human.

Implied rights are what is violated by what is called the "catch-22," where a person is given a right, but is denied the conditions necessary for exercising it. The classic example is from the novel of that name, where a pilot in the Second World War was allowed to leave the service if he was insane; but if he applied to leave, that showed that he was sane (since no one in his right mind would want to stay); and therefore, he couldn't get the discharge. But Thor Heyerdahl in The Ra Expeditions mentions a real case of this when he was trying to get African papyrus boat-builders to leave their country and help him build his replica of an ancient Egyptian boat. They were allowed to leave if they could get a doctor's certificate; but all the doctors who could give it were outside the country.



1. Actually, his point was that we were not to violate the conditions under which we could park (the approved spaces and so on); and the College had the right to determine these conditions, provided it did give the faculty the practical ability to find parking on campus.