Operative' natural rights

There is general disagreement today about the philosophical basis of human rights. The disagreement has its origin in the post-Enlightenment critiques of natural rights, notably Jeremy Bentham’s dismissal of natural rights as “nonsense on stilts,” which led many to regard rights as grounded solely in law or social recognition. The Nazi genocide, carried out under laws they enacted, challenged this view and prompted appeals to a kind of moral law at Nuremberg, and later the UN’s Universal Declaration of Human Rights (1948). Yet a return to Enlightenment religiously grounded natural rights was unacceptable, leaving “human rights” universal and inalienable in aspiration but philosophically underdetermined. A contemporary debate reflecting this tension is between Joel Feinberg and Rex Martin. Feinberg argues that valid human rights are natural (moral) rights derived from correct moral principles and inalienable; Martin, in a Benthamite vein, argues that human rights exist only insofar as they are socially recognised. This article examines their positions and proposes: when a right derived from correct moral principle is not socially recognised, it still exists but only in an “inoperative” (thus alienated) state; when recognised, it becomes “operative,” but not inalienable, since recognition can be withdrawn. Thus, “operative” natural rights ground recognised human rights derived from correct moral principles, while “inoperative” but existent natural rights ground unrecognised human rights derived from such principles.

Feinberg argues that it is coherent to say a right is wrongfully withheld by legislators or constitutional designers (e.g., Nuremberg), which implies that such a right does not depend on social recognition but has an independent source (Feinberg 1992). He characterises moral/natural rights as rights validated by objective and universal moral principles, existing independently of social practice, and likens them to property that cannot be truly taken away (Feinberg 1973, 1992). He uses “moral right” to avoid conflating natural rights with biologically conferred attributes and rejects a “ghostly realm” of legal-like rules, while maintaining that natural rights are discoverable by reason. He holds that a moral right is one validated by correct moral principles (derivable from true premises, at least one moral), without specifying the substantive principles (leading Griffin to call the view largely structural). Martin, by contrast, contends that rights are socially established ways of acting or being treated, requiring an institutional setting; social recognition is thus constitutive (Martin 1997). He critiques Feinberg’s “rights as valid claims” thesis (though Feinberg later clarified it applied only to claim-rights), arguing that validity of a claim does not ground a legal right—only recognition does. Using court decisions, he maintains that rights are not in effect without authoritative recognition; hence recognition is a characteristic feature of legal rights. Extending to human rights, Martin challenges the idea that they are essentially morally valid claims: (1) without widespread acknowledgment, a valid claim won’t function as an effective right; (2) without conformity by duty holders, a right is merely nominal; (3) it is desirable for “rights” to have the same sense across human and legal rights. He defines “full-bodied human rights” as ways of acting/being treated with sound normative justification, authoritative recognition/endorsement, and maintenance through conforming conduct and enforcement. The article notes that points (1) and (2) are factual observations compatible with Feinberg, while (3) is evaluative and under-argued, and questions why legal primacy should trump moral validity. It suggests calling morally invalid legal rights “defective,” rather than labelling unrecognised moral rights as defective. It observes that Martin allows non-recognition by sovereigns to nullify a right, effectively making might equal “right,” while non-recognition by individuals only renders a right nominal—an inconsistency grounded in sovereignty, not justification. Lyons argues that appeals to moral rights typically invoke values reasonably accessible within a community, challenging dismissal on recognition grounds, though his focus is intra-societal rather than cross-societal (Lyons 2006). The review concludes: Feinberg grounds existence of rights in correct moral principles independently of recognition; Martin requires both sound normative justification and social recognition, seeing rights as emerging when human-made elements (including sovereign power) are added to morally valid claims.

- Proposes a reconciliation of Feinberg and Martin by distinguishing the existence of natural rights (grounded in correct moral principles) from their operativeness (a function of social recognition and enforcement). - Introduces the taxonomy: recognised and respected morally valid claims are “fully operative” natural rights; recognised but unrespected morally valid claims are “partially operative/nominal” natural rights; unrecognised but morally valid claims are “fully inoperative” yet still existent natural rights. - Recognised rights not derived from correct moral principles are “defective legal rights,” not natural rights. - Recognition can be withdrawn; therefore, operative natural rights are not inalienable in Feinberg’s sense, qualifying his view while preserving the moral grounding of rights’ existence. - Clarifies the sense of “I have a right”: true if it means a right inheres (even latently) in the person; false, in unrecognised contexts, if taken to mean full possession (at the disposal of one’s will). - Frames lack of recognition and respect as forms of alienation from natural rights affecting both right-holders and non-recognisers who fail to apprehend correct moral principles.

The paper addresses the foundational dispute—whether human rights exist independently of recognition (Feinberg) or only through social recognition (Martin)—by separating ontological status from practical effect. It maintains that correct moral principles establish natural rights that inhere in persons irrespective of recognition (rescuing the concept from Benthamite deflation), while acknowledging Martin’s important insight that rights do not function as rights without social uptake, conformity, and enforcement. This resolves the apparent contradiction: unrecognised rights can exist yet be inoperative. The framework reinterprets debates about “valid claims” and recognition: validity supplies existence conditions; recognition and adherence supply operativeness conditions. It rebuts the slide from sovereignty to normativity in Martin’s view (that sovereign non-recognition negates rights) and preserves a critical standpoint against immoral laws (e.g., Nuremberg). Conceptually, distinguishing operativeness from existence preserves a univocal sense of rights grounded in moral validity while explaining legal variability through differing degrees of recognition/enforcement. The analysis also sharpens the semantics of “having” a right and situates the social failure to recognise rights as a mode of alienation, with normative implications: agents bear an onus to recognise others’ rights to bring them into full operation.

The article advances a qualified natural-rights account: correct moral principles establish natural rights that inhere in persons even without recognition, but such rights are then fully inoperative. With recognition, they become operative to the degree recognition (and enforcement) is extended; with legal enforcement, they become fully operative. Recognised claims not grounded in correct moral principles are defective legal rights, not natural rights. This qualifies Feinberg—rejecting strict inalienability tied to possession—while retaining his independent moral grounding, and challenges Martin—denying that lack of recognition entails non-existence. The concluding analysis reframes “I have a right” to mark inherence rather than possession and characterises non-recognition and non-respect as forms of alienation from our inherent moral rights. The work implies a normative burden on persons and institutions to recognise and respect rights so they can operate fully.