>>>>Our political lexicon, that is, the language
that we use to talk about law and justice is suffused, it’s filled throughout with the
language of rights. We use rights, we use this language without even thinking about
it. And so it’s especially important to step back and try and define what we mean when
we invoke the language of rights. What are rights? We’ve defined property, and property
is a bundle of rights. So it’s important that we in turn define rights, and then try to
ask what justifies certain kinds of rights and then, in the broadest sense, throughout
the rest of this course ask what is the moral weight of rights? What kind of justice claim
can be founded on rights? And so we can begin simply by saying, what is a right? Well in
English it’s important to distinguish between the word right and a right. Right is an adjective,
means, “an order in which things are in some sense correct, normative, or morally appropriate.”
It’s right that someone does something. That’s slightly different, although there’s obviously
a connection between the meanings. Here we’re talking about the use of right as a noun.
“It’s my right to do x.” You have a right to this or that. And so here we’re talking
about right as a noun and in particular, belonging to an individual subject who has this right.
And one of the great legal analysts of the earliest 20th century named Hohfeld, who is
a professor of law, finished his career at Yale gave a, a vastly influential exploration
of what we mean when we use the language of rights. And he says in fact, that we use right
to mean four different kinds of things. We use it to mean privilege, we use it to mean
a claim, we use it to mean a power, and we use it to mean an immunity. And it’s been
a very powerful exploration of what rights are. So let’s explore what these four things
that rights can be mean in this system of analysis. A right can be a privilege, and
it’s very similar to the right to use something. I have a right to type on my computer. I have
a right to drive my car. In essence that’s my privilege, and a property right is deeply
connected to this kind of privilege of ownership. I can also say that I have a right in the
sense that I have a claim. And so I have a right to receive medical practice, to receive
medical attention when I pay for it. You have a right as a student for me to teach you and
to be here and teaching this class. In fact it’s that’s quite complicated because there’s
a third party. You actually pay the university and the university pays me and so there’s
a series of transactions involved, but its nevertheless a claim. It’s a claim, in fact,
that’s created by a contract and in this sense it’s actually somewhat easy to explain where
this kind of right comes from. Now those are in a sense first order rights. They’re a higher
order of rights that are considered powers and immunities. And so a power is a right
that means I have the ability to command. I have the ability to change a situation.
And so a mother has the right to order her child to eat broccoli. She has that power
and that can come from different places. In our society that’s a parent-child relationship.
There can be other kinds of relationship. A military commander has the right to command
a soldier to march into battle. And so these kinds of rights can have complex origins.
They can even be constitutional powers. So a president has the right to command the army
in times of war because he’s the executive in chief. The fourth kind of way that we use
the language of rights is as an immunity, and think of this like the rights that are
protected. “No matter what, I have the right to free speech”, an American might say. That
means that I have an immunity. I have some claim, some protection on my ability to do
something that you cannot infringe even if you have powers. And so these too, a second
order kinds of rights can be considered constitutional in a sense. The right the right to religious
expression, the right to to freedom of speech, the rights of the press, the right to bear
arms, those are immunities that are protected by the Bill of Rights. That is that there
are limits on state power. So these are the ways in which we use the language of rights,
but as we move throughout the rest of this class we want to ask what justifies certain
kinds of rights? And what is the limit of rights? How much moral weight do they carry?
As we’ll see, the language of rights, the concept of rights, tends to carry tremendous
weight in our way of thinking about justice.