After reading this article you will learn about the classification of rights.
There are three principles, or procedural rules, which regulate the distribution of rights among the members of an organized community: the principle of Liberty, the principle of Equality, and the principle of Fraternity or Co-operation.
They preside together, and in common, over the whole of the distribution of rights; but we may none the less regard each of the three as having a particular connexion with a particular set or cluster of rights, and as regulating particularly the distribution of rights in that set or cluster.
We may accordingly seek to classify rights under the three heads of Liberty, Equality, and Co-operation. In doing so we shall not only be concerned with the full legal rights which are already recognized and guaranteed by law: we shall also extend our view to include the nascent rights which are being convassed in the process of social thought, and which, as they become a part of the common conviction of the political community, and come to be formally endorsed by the organs of that community, are ultimately turned into legal rights in the full sense of the term.
The reason for this extension of view is that it is necessary to an understanding of that growth of the functions of government which is a feature of our times. It is the growing- pains of rights which cause the growing labours of government.
We may begin our classification under the head of Fraternity or Co-operation, reserving to the end the rights which come under the head of Liberty. The French jurist Duguit, using the term ‘solidarity’ or ‘mutuality’ in lieu of the older term, enumerates three particular rights with which the principle of fraternity is particularly connected— the right of education, the right of public assistance, and the right of employment—and that on this basis he would impose corresponding duties on ‘governing persons’ to provide these rights.
The view of Duguit is suggestive, but it is also extreme. It is too narrowly economic—and too closely connected, at that, with a particular brand of economics—to offer any safe guidance. We shall do better to interpret fraternity in the sense of a general co-operation, which is not merely economic, but as wide as the general life of society; and on this basis we may proceed to argue, that there are two main rights which fall under this head, and two corresponding functions of government.
The essence of both of the rights is that men need, and ought to enjoy, a common or public equipment of services and resources, which goes beyond the equipment that individual effort and the effort of voluntary groups are able to provide, and which can be provided only by the common co-operation of all.
We may regard this equipment as twofold, or as being both material and mental; and this is why we may hold that it issues in two different rights. The one is the right of persons to enjoy collectively a common or public equipment of material necessities unattainable except by the co-operation of all, and ranging from means of public transport and methods of public sanitation to schemes of national insurance and plans for the national development of national economic resources.
The other right is a similar, right of persons to enjoy collectively a common or public equipment of what may be called mental necessities, ranging from schools and places of learning to galleries, museums, libraries, and the like, and thus including not only the facilities needed for public education but also those that are needed for the general national enjoyment of the accumulated treasures of culture.
Under the head of Equality the jurists and thinkers of France, basing themselves on the Declarations of 1789 and afterwards, have enumerated four rights—the right to be treated equally with others, and on the same footing as others, in the eye of the law and in all legislative acts; the right to be treated equally with others in matters of justice and in courts of law; the right to be treated equally with others in matters of taxation, so that each man pays the same proportion of his means as is paid by others; and, finally, the right to be treated as equally admissible with others to public honours and offices of employment.
These four rights are all rights of the citizen in respect of the exercise of governing authority: they are claims, acknowledged and recognized by law or general custom, that governing authority should deal equally with all, alike in its legislation and its jurisdiction, its imposition of taxes and its distribution of honours and offices. But the progress of social thought has given a wider sweep to the notion of equality and to the nature of the rights which it involves.
We have learned to think not only of what may be called political equality, in relation to the action of governing authority, but also of economic and cultural equality, in relation to the general life of the whole of the organized community; and we have accordingly come to believe that there are further rights which ought to be added to the rights of political equality.
These further rights are still, as it were, in process of construction: they are emerging from social thought, and beginning to pass into the common conviction of the political community; but the proper nature of their form, and the exact extent of their dimension, have still to be determined by the continuing process of social thought and by the method of tentative experiment.
They are rights which men are beginning to claim, not in relation to governing authority and the distribution of its incidence, but in relation to one another: they are rights to a greater measure of general equality between man and man, partly in economic status and the distribution of economic possessions, and partly in educational opportunity and enjoyment of the general treasures of culture.
These new and nascent rights of equality are obviously linked with the similar rights under the head of co-operation. The greater the provision of material and mental necessities in the form of a common or public equipment in which all alike can share, the greater will be the achievement of equality on both the material and the mental plane.
But in addition to common and equal sharing in the stock of common or public equipment there is also needed a greater measure of equality in the enjoyment of individual status, in the possession of individual equipment (or ‘private property’), and in the opportunity of individual access to the benefits of education and general cultural development.
The rights which came under the head of Liberty are all the greater, and the more numerous, because Liberty is a multiple principle. Within the State, and apart from the area of Society (which has also a social liberty of its own), there are, it has been suggested, three divisions or regions of liberty. These three divisions are the political, the civil, and the economic. We may accordingly classify the rights which come under the head of Liberty according to these three divisions.
The rights of political liberty generally include the right of the citizen to participate in the election of the legislature, and thereby, indirectly, to share in the choice of the government. When the jury system exists, along with a system of unpaid magistrates drawn in large numbers from the general public, the rights of political liberty also include the right of the citizen to participate in the administration of justice and to form, in a sense, a part of the judicature.
The right to form political parties, and the right of such parties, when formed, to play a part in the election of the legislature and thereby in the choice of the government, is a sort of border-land right, essentially connected with political liberty but formally a part of civil liberty and a product of the civil rights of freedom of the expression of opinion and freedom of association and meeting.
The rights of civil liberty have been divided by French thinkers into two different groups, distinguished from one another by the historical fact that the one group is earlier than the other. The first and earlier of these groups, already evident in the Declaration of 1789, includes the three rights of personal freedom, personal security, and personal or private property.
The second group, gradually developed in the thought and expressed in the legislation of the century which followed the Revolution, includes some half-dozen rights; liberty in the choice and conditions of employment, and in the conduct of trade and industry; liberty of the press; liberty of assembly; liberty of association; liberty of teaching; and liberty of conscience and worship.
This historical division of the rights of civil liberty into two different groups may square with the facts of French history, but it does not suit the history of England, where no such distinction can be traced, and it cannot be generally applied. Abandoning, therefore, any chronological scheme of division, we may suggest a logical classification of the rights of civil liberty into three different groups, based on the nature and character of the activity concerned.
The first group will consist of the rights which come under the head of freedom of physical activity; it will include rights such as personal security (whether from arbitrary arrest and detention, or from torture and inhuman punishment, or from arbitrary interference with the privacy of home and domicile), and such, again, as freedom of movement and residence inside a country, along with the right to seek and enjoy an asylum in other countries.
The second group will consist of rights which come under the head of freedom of the activity of the mind: this will include rights such as the right to freedom of conscience and religion, the right to freedom of opinion and its expression, and the right to freedom of meeting and association.
The third group will consist of rights which come under the head of freedom of practical activity, or, freedom for the exercise of will and choice in the general field of contractual action; this group will include the right to the acquisition and disposal of property, the right to marry and found a family on the basis of full and free consent, and similar rights of that order.
It may also be made to include a number of rights connected with the choice and conditions of employment and the conduct of trade and industry; but rights of this order, are best treated as belonging to a separate class, and are most properly classified under the head of the rights of economic liberty.
The rights of economic liberty were already expressed in some detail in the part of the German Constitution of 1919 which dealt with ‘Economic Life’, and they have recently found their place in the Universal Declaration of Human Rights. If we seek to formulate them broadly, in terms of contemporary life and the growing demands of social thought, we may suggest that they fall into three main groups.
We may regard them as extensions and expansions, into the economic sphere, of the old three rights of civil liberty already declared by Blackstone in England and by the revolutionary thinkers of France in the latter half of the eighteenth century—the right of personal freedom, the right of personal security, and the right of personal property.
They are extensions and expansions entailed by the flood of economic development (often termed the ‘industrial revolution’, though the term is hardly adequate) which began to flow about 1750, and is still flowing swift and deep.
The group of rights which is an extension of the old civil right of personal security includes the rights of workers under Factory Acts (the first of the fights of economic liberty to be formally acknowledged), their rights under Workmen’s Compensation Acts, and their rights, under various acts, to insurance against the risks of sickness and unemployment and age.
The group of rights which may be regarded as an extension of the old civil right of personal freedom includes already the right of workers freely to form trade unions and to bargain freely through such unions about the conditions and remuneration of their work: it may also come to include the further right, now beginning to be claimed, to the enjoyment of the status of free partners in the general control and conduct of industry.
Finally, the group of rights which may be regarded as an extension of the old civil right of personal property may be held to include the right of workers to some share in the capital of the particular industry in which they are engaged.
This means their right to acquire, by virtue of the rendering of permanent service, some permanent property in the undertaking for which they work, over and above their weekly remuneration: it means, again, the right to participate in a diffusion of ownership which makes personal property as general in its scope as personal freedom or personal security.
This attempt at a classification of rights may seem to be little more than an academic exercise. But it is, something more than that. It is the necessary preliminary to any study of the functions of government, which are services owed to rights and can only be understood in the light of the rights they serve.
On the other hand, classification is also the creation of compartments; and the creation of compartments, if it may be a help to clear thinking, can also be a danger to the breadth and sweep of thought which not only apprehends but can also comprehend. For one thing we have to remember that the movement of human life does not proceed in compartments.
The same general problem recurs, if in different forms, under the different heads of our classification. The future of industry and the development of a fair system of economic rights is at one and the same time a matter of the rights which come under the head of liberty, of those which come under the head of equality, and of those which come under the head of fraternity or co-operation.
We cannot think of the problem properly in the limits of one compartment; and we are driven back, in the issue, on that general and comprehensive idea of justice which seeks to reconcile the principle of liberty with that of equality, and both with the principle of co-operation, and which thus controls and co-ordinates the rights belonging to each.
There is another thing also to be remembered; or rather there is another aspect of the same general truth. No right is absolute and inviolable, or entrenched by itself in its own inexpugnable iron compartment. The right of personal property is indeed a right; but it is a right which has to make terms, and to enter into combination, with a variety of other rights.
Not only has my right to acquire property, as a condition of the development of the capacities of my personality, to be reconciled with the right of others to acquire it, as a condition of the development of the capacities of their personality: the right of each person to such acquisition has also to be reconciled with other rights in other spheres, such as the right of workers to enjoy the status of free partners in the general conduct and control of industry, a right which cannot be simply defeated or abrogated by the right of the owner of property to the free use and disposal of his acquisitions. Once more we are driven back on the general idea of justice by which one sort of right is ‘mortised and adjoined’ to another.