Two Conceptions of Rights

Abstract

Rights play an important role in moral, political, and legal debate, as illustrated by conceptions of them as constraints and trumps. But we can and do think of rights in two quite different ways, without always fully recognizing and attending to the difference. On one conception, rights are important inputs to debate that often, but not always, determine the outcome of that debate. These are contributory rights. They are presumptively decisive, but nonetheless defeasible, pro tanto reasons for the resolution of a practical question. Another conception represents rights as the outcome of debate about the entitlements of parties to the debate. These are resultant rights, which are verdictive and indefeasible. Both conceptions of rights have their uses. The important point is not to confuse them. Some adjudicative contexts employ the resultant conception of rights. However, many other contexts employ the contributory conception. First, moderate deontology presupposes a contributory conception of rights. Second, the existence of conflicts of rights presupposes the contributory conception, and this implies that shortlists of basic (e.g. human) rights involve contributory and defeasible rights. Third, the conception of individual rights ingredient in Equal Protection and Substantive Due Process analysis requires the contributory and defeasible conception of rights. Moreover, when existing contributory rights are inadequate to resolve normative conflicts, we may be led to recognize new contributory rights, as illustrated in the constitutional recognition of rights to association and privacy. Finally, the appeal to rights as a justification of adjudicative outcomes presupposes the contributory conception of rights, inasmuch as the resultant conception would render such appeals circular. In fact, we should view resultant rights as the proper weighing and outcome of potentially conflicting contributory rights.