[UPDATE: I should have credited Alexander Wendt with the concepts of natural kinds and social kinds I discuss in this post.  See Social Theory of International Relations, Part I: Social Theory. My apologies, professor.  I hope I at least added a bit of analysis with my discussion of whether rights are social or natural kinds.]

Americans talk a lot about rights (defined as a just claim or title, whether legal, prescriptive, or moral).  Some we have written down as specific limits on the power of government, such as prohibitions against infringement on a “right to keep and bear arms.”  Others remain less clearly defined yet just as vigorously claimed, like the right to freedom of movement or the “pursuit of happiness.”  We talk about “active rights” to assert our agency in certain realms (e.g., speech, assembly), and “passive rights,” which create duties for others to give or permit something.  We also distinguish between positive rights (to a good or service) and negative rights (to non-interference).  However we lay our claims to them, rights help define proper action and just institutions.

For some, the force of our rights claims and the definitions of justice we use them to reach depend in no small part on their sources.  If a creator endowed humans with specific rights, or if the nature of humanity confers them, individuals have more powerful claims against others, and the rights framework creates an a priori assumption of justice.  Rights that depend on human concepts of right and wrong developed through discourse, on the other hand, provide more limited protection for individuals and a definition of justice more subject to change.

In this post I will argue that rights are a social construct of inter-subjective understandings shared by humans, and do not arise from nature, whether or not metaphysical.  I will do this by first making a case that rights are social, not natural kinds, and then outlining their changing nature.  In a later post I plan to discuss gun rights in this context, since proponents link them to a foundational right to life.
Natural kinds have intrinsic properties that make them members of the relevant kind and give them particular functions, behaviors, or agency in determinate ways (that is, these characteristics make up causal structures which determine the nature of the kind, however we refer to them).  These properties must be open to scientific examination, and subject to predictions about how they will work, behave, or give agency to the kind.  So after some study we can, for example, outline the causal structures that differentiate gold from lead, or dogs from cats, or humans from apes, and predict how these structures cause variation in function and behavior across environments and circumstances. Moreover, the methods or language we use to refer to natural kinds–our names for them–make no difference.  Gold and lead differ not because we give them different names, but because their intrinsic properties determine their differences.

Social kinds use the properties of natural kinds as a foundation for human construction of social order, but they depend on the shared beliefs, concepts, and theories held by actors.  Social kinds are inherently relational, and constituted by social interactions among actors.  This means we cannot study social kinds in a scientific manner since we cannot reduce them to their component parts, which have no meaning independent of the extrinsic relations each has with other social kinds.  We can investigate the nature of gold, for example, without regard to the properties of lead, but it makes no sense to study professors independent of their relationship with students–without one, the other cannot exist.  Unlike natural kinds, variation among social kinds depends on how we think about and refer to them.
For rights to be natural kinds, therefore, they must depend on intrinsic properties of human beings which differentiate humans from other natural kinds and are open to scientific examination independent of social relations.  Such rights must exist for individual humans however we refer to them, and without regard to our definition of “human,” or whether or not other individual human beings even exist.  But rights have no meaning except as moral justice claims against other people. A “right to survive” for a human being alone in the state of nature therefore has no meaning, and cannot be studied: the forces of nature–storms and tigers–will not respond to such a rights claim.  Since we cannot examine the causal structures which make rights intrinsic to humans without referral to other humans or interactions among them, rights must be social kinds, dependent on social relations and justice claims made against each other.  How we define and refer to them matters.

The fact that our concepts of rights and their meaning–indeed, of the value of the individual human itself—do not remain static supports this view.  Natural rights intrinsic to humans could not change through human intervention (e.g, defining “human”) any more than alchemists could alter the intrinsic properties of lead to make gold.  Yet our definitions of what constitutes a just claim–or right–as well as our understanding of which human beings qualify to assert justice claims, have shifted steadily over the course of human history.
Until the development of a more powerful human understanding of the individual around the 11th Century, few people would have claimed individual rights.  Plato believed in the inalterable social nature of man, and did not think individuals could be self-sufficient.  Aristotle wrote that citizenship depended on the social structure, so the state is in some sense prior to the individual, who had no rights claims against it.  And early Christians (especially St. Paul) discussed the church in terms of a shared Body of Christ and Spirit, with each member a limb of the body or a stone in the temple.  None of these ancient thinkers thought of the individual human separately from the societies they inhabited, and did not discuss individuals in terms of rights to resist the claims made by society.

For a variety of reasons, concepts of individualism and humanism expanded after about 1000 ACE.  Hobbes, Hume, and Locke, among others, began to discuss humans as individuals, and how they could construct societies without relinquishing their claims to justice.  Though these writers often referred to these claims as “natural,” accruing to humans by virtue of existence, none make a case for or describes the intrinsic inalterable characteristics of natural rights beyond suggesting that God endows them, or simply asserting them.  Indeed, none of the classic discussions of man in the state of nature explain how rights exist prior to human interaction without placing them in that context.
After a time, the American Founders explicitly encoded a list of justice claims individuals could make against the State, though the definition of who could make these claims remained unsettled.  Indeed, the assertion that individual human beings have a natural right to make justice claims against society or the state depends on a universal definition of “human” or “individual” which escapes us to this day.   Even many Americans, for example, who claim the inalienable rights encoded in the Constitution, would not agree that non-citizens may claim them–aliens have no “rights,” natural or otherwise, under our founding document.

Individual justice claims–rights–depend not on the nature of human beings, or accrual to individuals by virtue of existence, but on our shared understanding of concepts like “right,” “wrong,” and “justice,” which do not exist outside the context of human interaction.  Rights, that is, do not exist for a lone human in the state of nature.  They come to being only through interaction between individuals, and cannot be studied apart from human social relations and the concepts humans share because they do not exist apart from concepts.  No such claim, for example, has any meaning without a natural, universally accepted definition of “human” with respect to who may make it.

This makes rights a social kind, dependent on human social relations, and meaningful only in that context.  They have no natural basis, and do not accrue to humans by virtue of existence without regard to interaction with others.  Indeed, the very assertion of a claim to a right requires another person to make the claim against.  Since the claim of a right requires a respondent, such claims arise from man’s responses, not his nature.