A Philosophy of Civil Rights and Liberties

Abstract

Any adequate normative theoretical account, or philosophy, of civil rights and liberties must accommodate, among other norms, those set out in the French Declaration of the Rights of Man and the Citizen (1789), the US Bill of Rights (1791), and the first 21 Articles of the Universal Declaration on Human Rights (1948). Paradigm cases include rights to life, physical integrity, security, privacy, property, and a fair trial; and freedoms of religion, expression, movement, contract, and association or assembly.

Our catalogue of these rights has expanded over time. In the nineteenth century United States, civil rights included roughly those listed above, and they were enjoyed by aliens and (unmarried free) women and as well as men. So-called political rights – to vote, hold office, and serve on juries – were limited to adult male citizens. An unmarried woman in Boston, a Frenchman on vacation in New York, could speak and worship freely, form contracts, acquire property, and file lawsuits. But only adult male citizens could approach the ballot box or sit in the jury box, in Congress, or in the Oval Office.

As this way of drawing the civil-political line was radically unjust, some theorists would erase it entirely, identifying civil rights with ‘the general category of basic rights necessary for free and equal citizenship’. But beyond such summary statements, what defines civil rights – as opposed to moral or human or legal rights – has received little philosophical attention.

And the summary just stated is questionable. It implies that it’s simply confused to speak of a non-citizen’s civil rights being violated. Yet US law, for example, guarantees due process of law for persons, citizens or not, which seems coherent as well as just. On the other hand, it does deny non-citizens suffrage, and no one thinks this a civil-rights violation.

Maybe, then, our category tracks what Ronald Dworkin called political rights: individuals’ ‘trumps’ against their political communities’ pursuit of collective interests. Yet civil rights govern not just relations between government and private parties, but also (sometimes) among private ones. They’re infringed not just when government curbs your right to contract on account of your race, but when a hotelier is free to deny you a room for the same reason – something banned in the United States by the Civil Rights Act of 1964.

Then again, it is equally arbitrary, but not obviously a civil rights violation, for the hotelier to turn you away because, say, he envies your good looks. So maybe the special link in some jurisdictions between civil rights and racial (and/or sex-based, or…) prejudice is based on their history of state-perpetrated racial (or other forms of) injustice. Maybe protections against invidious private discrimination count as civil rights protections when they’re meant to reverse the social effects of the state’s denial of more traditional civil rights.

In the end, we suspect, any convincing analysis of civil rights and liberties will deploy the Aristotelian idea of focal and more marginal cases. Suppose rights in general are normative claims possessed by someone, against someone else, with respect to some subject matter: actions, resources, etc. Then at a first pass, we might identify the focal case of a civil right as one possessed (i) against government, (ii) by those in its jurisdiction, (iii) whose main subject matter is governmental treatment (e.g., rights against censorship or summary execution) or its institutional resources (e.g., rights to contract or a fair trial).

And then there will be non-focal (one might say ‘analogous’) cases – rights that share just some of these features. Some involve the same subject matter (governmental) and addressee (government) but aren’t automatically owed to everyone in the jurisdiction. An example might be rights to participate in the government’s legislative, executive, and judicial functions by voting, holding office, and sitting on juries. We’ve already seen another set of analogous cases: protections against certain forms of invidious private discrimination. Still another might be what some call ‘second-generation’ civil rights, but some historical sources treat under the separate headings of economic, social, or cultural rights: guarantees of a minimum share of essentially non-governmental resources.

We will return to the conceptual analysis of civil rights and liberties after discussing their justifications, for methodological reasons that will emerge. For now, even this tentative grip allows us to address important issues: Whatever might distinguish civil rights and liberties, what is their basic structure as rights? And what justifies or grounds them?

Reviewing important treatments of both questions, we will see that they bleed into each other – that the boundary between the nature and grounds of civil rights is porous. Our own view of both will invite two other longstanding questions, about strength (or what is sometimes called “stringency”) and scope: Are any civil rights absolute? And do our civil liberties include, within certain domains, a right to do a moral wrong?