“Should the law recognise rights in all humans and only humans?”
There is no a better way to start this essay than sharing with you the clear definition of “rights” that the Cambridge Dictionary provides: “the fact that a person or animal can expect to be treated in a fair, morally acceptable, or legal way, or to have things that are necessary for life”.1This definition seems to be fair enough, like there is nothing else to be explained or analysed. However, as time goes by, society has differed from this idea in many ways.
Why is it that the rights’ definition has split into so many different perspectives? Well, for some authors, such as Ayn Rand in her book “Capitalism: The Unknown Ideal”, rights aren’t more than a moral concept, “the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationships with others”.2It can be understood from the author’s words is that rights are made, basically, to protect an individual from different sceneries in a social context.
To comprehend what human rights are it’s necessary to read the different perspectives provided by many authors and academics, because of the versatility of the meaning that this term has. A very accurate definition of human rights is definitely James Neckel’s, which suggests the following idea: “Human rights are basic moral guarantees that people in all countries and cultures allegedly have simply because they are people”.3 So, we could analyse this concept by the fact that humans have rights only by existing.
So, if humans have rights only by existing, what happens with the remaining organisms that also exist but aren’t humans? Such as: animals, trees, or vegetation in general? In most countries animals and vegetation have rights; for example: not experimenting with animals or not setting fires in forests, but ultimately, they can’t defend or express themselves so, as humans, we end up “choosing for them”, but how? By getting “permissions” (permissions provided by the law itself) in experimenting with animals or set fire in the forests. So if animals and vegetation were able to complain because their rights were corrupted, the only response we could give to them is that they have rights until someone else decides to take it away from them.
The past example is just one of the many ways that the concept of rights has been taken out of context. People tend to think that because they have rights they are automatically allowed to do many inappropriate things without facing the consequences of their actions. A very controversial example could be feminist activists that we have seen protesting in fashion shows and runways, topless and in insulting everyone in the room because “as women they have the right of not being pretty” or doing some other dumb thing that makes no sense. Yes, as a woman you have rights, but there is no possible way that you have the right to burst in a private event to “share your beliefs” in such a rude way.
It is a fact that when we listen to the word “rights” we can give it nothing but a positive meaning, however, it goes beyond that. Sometimes the rights that you have, specially when it comes to legal rights, do not work as an advantage but as a guarantee of safety, to say it that way. Some of these rights are: the right to remain quiet, the right of not being tortured, etc. But we can not deny that rights give us a guarantee that, as humans, we have a foundation that supports us.
The situation with prisoners and human rights has always been a delicate topic, because laws and morals are so linked that they can lead to injustice. It is true that prisoners should have many of their rights, like seeing their families; having phone calls, be treated with respect, have access to healthcare, education, etc. But there are particular cases where we saw this serial killer, or that rapist, people who have done the most horrible things and we start wondering: should these people have rights after all they’ve done? It makes you question everything. My answer to this question would be affirmative, they should have their rights.
Every prisoner should have rights because, when someone becomes a prisoner, it is because they’ve broken the law or they’ve corrupted someone else’s rights. So, prison should be more than a place to punish people, it should be a place to recreate better citizens, to make them think about what they’ve done, even if the majority will never change, it’s a place show those who don’t fit in the society how they should coexistence and work. The Canadian Federal Prison System for Men, provides a program where prisoners rehabilitate by practicing recreational sports. This program has helped to reduce the indices of violence in prisons all around the country.4
This positive perspective of rights can lead to confusion with some other ideas, such as liberties, which seem to be very similar but, the truth is that they’re quite different. In his studies about Laws and Jurisprudence for the CSEP/School of Law, Iain Brassington gave the following example: “Smith might have the liberty to have sex with Jones, but is it a right?”5 The answer is no. Just because we have the liberty to do something does not mean we have the right, and the same thing happens with rights, just because we have them does not mean we have the benefit of the liberty. For example: we all have the right to have an education but not everyone can have the liberty to have an education.
Another common mistake that people make when defending rights, is thinking that because a right is moral it is also legal. Even when in some cases it is taken into consideration by the law, morality does not have to be applied by obligation. In his book “Central Issues in Jurisprudence”, Nigel E. Simmonds explains there are “many types of rights for many types of rules”6 such as: legal rules, moral rules, and alternative rules. So, this means that legal and moral rights are linked, but they also have some limitations.
These limitations exist because the law is already made taking account the ideas of morality and how “things should be”, but the truth is that morality varies so much that legal rights are more important for the law than moral rights. This happens because what is legal will be legal until someone with the necessary authority says it isn’t legal anymore. On the other hand, what is moral or not is not totally established and it will change according to the perspective of each individual
We can have a better comprehension of the contrast of ideas about the rights by analyzing the “will” and “interest” theories. The main debate between these theories is the disagreement between the analysis and the normative. Simmonds explain that “the rival theories did not simply offer different analyses of the concept of a right: they offered sweeping theories of the nature of law, its role in the political community, and the basis of its legitimacy”.7
Immanuel Kant’s “will theory” claims that humans aren’t completely responsible of their action due to, as humans, we don’t have the complete control of ourselves, but what can control is the will of our actions. “We can will to act according to one law to than another”,8 explains Kant. What we can understand from Kant’s theory is that even a good can be made with the will to ill another person, in this case you are judged by your will over your action.
My personal example of the will theory is the following: If Mary gave Rose a cup of tea made with herbs that she got in her garden and the herbs result to be poisoned and Rose dies, maybe Mary won’t be considered as a killer because she was unaware that herbs were poison so, her will wasn’t to kill Rose. But, how do you know she didn’t know they were? That’s why I disagree with this theory, you will never know the will of an individual unless they tell you.
Kant also holds that, when judging, it can not be taken into consideration the rights of an individual who used its freedom to interfere with another individual’s freedom, and that in this case the jury should act justifiably because consistently with equal freedom.9The thing with equal freedom is that, even when in theory it seems to be fair enough, it’s not the same way when we put it in practice. This is because when someone kills a person, according to the laws of the place where the individual is judged, the sentence could be death penalty, in that scenery equal freedom would be applied, but, if the accused only receives a time sentence, it’s already having rights over the victim. This is what makes equal freedom invalid.
The interest theory, in contrast, claims that “equal freedom” is supported by no foundation and that rights can not be determined by such a thing as the will of an individual. Many of the exponents (as Ihering y Bentham) who support interest theory defend their idea by assuring that what collides between two ore more individuals are their interests and not their wills. When these interests get into conflict it is the law’s job to create a balance or a limit, which doesn’t happen with equal freedom. This theory suggests that human rights function is to protect human interests and it makes perfec sense because, if a public figure, for example, wouldn’t have the interest in having a good reputation, it wouldn’t claim its right of not being defamed.
Simmonds points out that will-theorists and interest-theories have a whole different perspective when it comes to identifying rights. “Will-theorists can identify rights on their analysis simply by examining the content of the legal rules. Some versions of the interest theory, by contrast, can identify legal rights only by entering into an inquiry into the purposes of the rules”. 10
In addition to these theories we have to add another one that provides a different perspective, this is the rights theory. Joseph Raz, philosopher in law, ethics and politics, describes his theory as version of the interest theory. Raz makes emphasis in the difference between a right and a duty. “Rights are representing weighty interests that might justify the imposition or recognition of various duties, liabilities and other juridical consequences. Thus, my right of free speech may be the basis of various duties imposed on others, liberties possessed by me, powers enjoyed or disabilities borne by local authorities or policemen”, explains Raz.11
Now that we have dived deep into the rights world, we can analyse all of the concepts studied by the many academics quoted in this essay and answer the question that brought us here: “Should the law recognise rights in all humans and only humans??” The answer is simple: yes and no. All humans should have rights because as the interest theory explains “as humans, we have interests to protect and that’s why we need the rights” and that will never change because this is a need that exists in every human being. There is no way that the law could stand and not recognizing the rights in all humans when most of those rights are linked to our bare existence.
On the other hand, the law should not recognise rights only in humans, because as humans, we are corrupting many of the rights that belong to earth, such as animals and vegetation. By corrupting their rights we haven’t only broken the law, but also taking advantage of our intellectual superiority over defenseless organism that need rights more than humans ourselves.
One of the main issues societies have when arguing about rights, is that we think we only think about the moral rights but never about the legal ones. It is thought that our morality is the only key that opens the rights door, but it’s not that simple, rules exist because humans are not capable of controlling themselves, which means that the existence of morality is not reason enough to deserve the benefit of rights.
It’s also important for us to comprehend that rights do not allow anyone to commit any inappropriate behavior, like disrespecting a person, an idea or a cause. For example: just because I have the right of free speech does not mean I have the access to a specific platform to insult and degrade somebody.
When it comes to the public authorities, both national and international, it’s also their responsibility to make the rights, because these are linked with many economic, political, and social conditions that can lead a main individual to a minimally good life, for example: the right of having a home, healthcare, and education. Rights are a guarantee of safety, stability and dignity that every human (and none-human) should be allowed to have.
All human beings should have rights; the simple fact of being humans puts us in the need of having rights. But is also important to comprehend that not only humans need these rights, the remaining organisms and systems in the world also need them. Rights are the key to have a balance in coexistence.
To conclude with this essay, I might add to the work these wonderful words emitted by the Universal Declaration of Human Rights from the United Nations: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
1 Cambridge Dictionary.
2 A. Rand, Capitalism: The Unknown Ideal.
3 J. Nickel, Making Sense of Human Rights (2nd edn, 1997).
4 A. Caplan, “The Role of Recreational Sports in the Federal Prison System” (1996).
5 I. Brassington, “LAWS 20101: Jurisprudence – Rights.”
6 N. Simmonds, Central Issues in Jurisprudence (1986).
7 N. Simmonds, Central Issues in Jurisprudence (1986).
8 I. Kant, The Critique of Practical Reason (1788).
9 I. Kant, The Metaphysics of Morals (1797).
10 N. Simmonds, Central Issues in Jurisprudence (1986).
11 J. Raz, Engaging Reason: On The Theory of Value and Action (1999).