Civil rights

Civil rights are the protections and privileges of personal liberty given to all citizens by law. Civil rights are distinguished from "human rights" or "natural rights"; civil rights are rights that persons do have, while natural or human rights are rights that many scholars think that people should have. For example, the philosopher John Locke (1632-1704) argued that the natural rights of life, liberty, and property should be converted into civil rights and protected by the state as an aspect of the social contract. Others have argued that people acquire rights as an inalieanble rights gift from God or at a time of nature before governments were formed.

Theoretical background: The concept of right

Wesley Newcomb Hohfeld (1879-1918) maintained that analysis of legal issues is frequently muddled and inconsistent because the legal concepts are improperly understood. The first question, therefore, is to understand what the rights are in "civil rights". There are two major schools of thought:

Related Topics:
Wesley Newcomb Hohfeld - Analysis

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• Hohfeld proposed a structured system of interrelated concepts
• Nozick and Rawls approached the concept of rights from the perspectives of libertarian and political theory.

Hohfeld's concept of right

Hohfeld distinguished right from liberty, and power from immunity ? concepts that are often used interchangeably in non-technical discourse, but are philosophically different. By examining the relationships between these concepts, he hoped to explain the legal interests that have evolved in the real world of civil society and to answer the question whether citizens of a state have any right to access any of the possible forms of social security.

Related Topics:
Liberty - Power - Immunity - Social security

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• Right and duty are corelative concepts, i.e. one must always be matched by the other. If A claims a right against B, this is meaningless unless B has a duty to honour A's right. If B has no duty, that means that B has liberty, i.e. B can do whatever he or she pleases because B has no duty to refrain from doing it, and A has no right to prohibit B from doing so. An individual would be considered to have perfect liberty if no one has a right to prevent the given act.
• Power means the capacity to create legal relationships and to create rights and liabilities. The corelative of power is liability. If A has power over B, B must have liability towards A. For example, properly constituted courts have the power to pass judgements that impose liabilities but, if the defendants are outside the courts' jurisdiction, the judgements are unenforceable. Similarly, a legislature has power to make laws, but those laws that attempt to restrict a fundamental right may be unconstitutional. If the laws are valid, they create a disability; the legal opposite of disability is power. So, children or people suffering from a mental disability should be protected from liability and their power to make a binding contract is removed. A person loses the right to sue another to recover a debt if the period of limitation has expired.
• The legal opposite of liability is immunity. In some countries, government departments exercising sovereign powers cannot be sued in tort and the President or the Prime Minister cannot be personally liable in respect of any contract made or assurance given for the purposes of the state. These are examples of immunities.

Although the word right is often used to describe liberty, power, or immunity, Hohfeld clearly distinguished them. Indeed, Hohfeld described liberty as an a priori condition of the rule of law, coming into existence long before any Bill of Rights and offering an individual power to the extent that it is not restricted by any law. Essentially, Hohfeld believed that anyone who tries to encroach on the liberty of a citizen must be required to demonstrate their clear right to do so. After more than eighty years of consideration, some doubt whether this set of conceptual relationships is philosophically sustainable. But, the core juxtaposition of right, duty and liberty remains a seductive argument.

Related Topics:
Bill of Rights - Individual - Philosophically - Juxtaposition

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Libertarian and political theory: Nozick and Rawls

Minimal state

Robert Nozick (1938-2003) offered a model of a "minimal state", described as libertarianism. Nozick argued that no state is ever justified in offering anything more than the most minimal of state functions, and further, that whatever might exist by way of rights exists only in the negative sense of those actions not yet prohibited. He denied the possibility that any citizen can have rights that require others to offer him or her services at the state's expense, and tested whether exchanges between individuals were legitimate by an entitlement theory:

Related Topics:
Robert Nozick - "minimal state" - Libertarianism

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• The "transfer principle" holds that goods or services "freely acquired from others who acquired them in a just way are justly acquired"
• The "acquisition principle" states that people are entitled to retain all holdings acquired in a just way
• The "rectification principle" requires that any violation of the first two principles be repaired by returning holdings to their rightful owners as a "one time" redistribution (a reference to the Rawlsian Difference Principle).

Nozick, therefore, believed that there are no positive civil rights, only rights to property and the right of autonomy. For him, a just society does as much as possible to protect everyone's independence and freedom to take any action for the benefit of one's self. This is an important teleological protection: the Jeffersonian right to the pursuit of happiness is the freedom to engage in any actions so long as they do not infringe upon that same right exercised by others.

Related Topics:
Positive - Autonomy - Teleological - Jeffersonian

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Critics of the minimal state-model argue that a state which provides no services to citizens is inadequate.

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Just society

John Rawls (1921-2002) developed a model of a different form of just society which relied on:

Related Topics:
John Rawls - Model

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• The "liberty principle" which holds that citizens require minimal civil and legal rights to protect themselves
• The "difference principle" which states that every citizen would want to live in a society where improving the condition of the poorest becomes the first priority.

For Rawls, a right is an "entitlement or justified claim on others" which comprises both negative and positive obligations, i.e. both that others must not harm anyone (negative obligation), and surrender a proportion of their earnings through taxation for the benefit of low-income earners (positive). This blurs the relationship between rights and duties as proposed by Hohfeld. For example if a citizen had the right to free medical care, then others (through the agency of the government) would be obligated to provide that service.

Related Topics:
Negative - Positive - Obligations - Earning - Medical care

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Critics of Rawl's approach doubt whether the difference principle is congruous with a state consistently applying the capitalist model. Rawl's ideas however have influenced the implementation of social market economies within a capitalist system in European countries like Germany.

Related Topics:
Critic - Congruous - Capitalist - Implementation - Social market economies

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The difference between Rawls and Nozick is that Rawls thought that a state should always provide the basic fundamentals of physical existence, whereas Nozick gave no guarantee save that an individual always had the freedom to pursue his or her own ends.

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Concepts applied: an example

The rights that evolve through history will be the product of the culture in the given state and they will exist independently of the legal system. The extent to which the state decides to give any of these rights some legal enforcement will be determined by the balance struck between the competing interests within the society. As an example, let us take a proposal to make it illegal to treat people differently on the basis of race. This fits into the context of a general freedom of association and has relevance to freedom of thought. So, one view would be that employment is a personal contract and, because employer and employee must work together well if the business is to prosper, the employer should be free to employ whoever he or she wishes. Similarly, so long as a person keeps his thoughts to him or herself, no change should be necessary. What philosophical justifications would there be for imposing duties and liabilities to modify behaviour and correct thought?

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• In Nozick's model, there would be no justification. Every citizen is free to offer employment and/or to offer their labour, and any interference with these freedoms would diminish autonomy. In capitalist countries, this philosophy resonates powerfully with citizens who oppose any restriction on their right to use their justly acquired wealth for their own benefit.
• For Rawls, the Liberty Principle means that no one person should be any less "equal" than any other. Therefore, it would be appropriate to restrict liberty and impose duties to promote social justice. This model works best in countries where the principle of wealth distribution is accepted by the majority. Hence, particular notions of what may constitute fairness or justice will always drive public calls for coercive anti-discrimination laws to fill in the gap where the naming and shaming of "offenders" is not an effective deterrent.
• Hohfeld's analysis would be apolitical. Unlike Nozick and Rawls, the method does not depend on particular political assumptions, but applies rigor to identify the issues of principle. Hence, Hohfeld would begin with an unregulated society in which the employer has a power but no duty to offer employment to all citizens. This is enshrined in the fundamental principle, freedom of contract, which requires that every contract be a consensual bargain. If the codified practice of employers is not to offer employment to a class of citizens, this denial of opportunity is the equivalent of a disability and, as such, a state could act to remove the de facto immunity protecting the employers from appropriate legal redress. What form would this redress take? It cannot be the grant of an absolute right to employment in every citizen of the affected class. There may be many employers in the society but not every one of them may require additional employees. So the earliest time that a corelative duty to offer employment could attach to an employer is when a vacancy arises. But this is only one vacancy and there may be many seeking it. Which among those offering their labour has the best right to the one job? In the reality of this theoretical society, this has to be a decision made by the employer since only the employer has the power to create the contract (i.e. to define the terms and conditions of the work to be done and the wage or salary to be paid). So the only right that the state can give members of the affected class is the right to be judged fairly as against other job applicants and, if successful, to be offered the same terms and conditions applied to those already employed. Anything more than that would be to give job seekers rights and powers that no other part of the law of contract allows ? a clearly unjustified outcome since this would be encroaching on the standard package of rights and liberties enjoyed by all citizens in all the other areas of commercial activity within the state. So, a balance is struck. The need for general certainty in the operation of the law outweighs the benefit from introducing a limited exception for the benefit of one group. Yet, a way is found within the law as it stands, for some relief to be given to a disadvantaged class. It is a compromise struck in expediency, but which achieves the desired outcome.