The Concept of Rights: 73 (Law and Philosophy Library)

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Bentham [] wrote extensively about the analysis of legal rights, but, notoriously, thought that the idea of natural moral rights was conceptual nonsense. The view that the core concept is common to both would appear to be consistent with maintaining that, nevertheless, in terms of justification in practical reasoning, legal rights should be based on moral ones.

Not all philosophers have agreed that rights can be fully analysed. White , for example, argued that the task is impossible because the concept of a right is as basic as any of the others, such as duty, liberty, power, etc or any set of them into which it is usually analysed. He agreed, however, that rights can in part be explained by reference to such concepts. The remaining approaches can be categorised in different ways, but a main division is between those who think that rights are singled out by their great weight as practical reasons, and those who think that rights are not special in this regard, but instead are to be analysed into duties, permissions, powers, etc, or some combination of these, perhaps with the addition of other conditions.

Dworkin , , , , in one formulation of his theory of rights, was a proponent of the first view. According to that, rights enjoy a categorial priority in weight over any other consideration which is not itself right-based. Clearly, it is true of many legal systems that constitutional rights, or some of them, should outweigh any other consideration which is not itself derived from a constitutional right.

But that seems to be primarily because of the constitutional status of the right. Both in law and in morality many rights are of a rather trivial nature. In morality such rights can, arguably, sometimes be justifiably outweighed even by considerations of personal convenience cf. Similarly in law it seems that many prima facie rights can be defeated by what the court regards as considerations of the general interest. But this depends on the contentious claim that the only considerations that courts can justifiably rely upon are pre-existing rights. The objection has also been raised that, as a general theory of the nature of rights, it risks being self-defeating, since any consideration whatsoever can then be argued to be right-based, which leaves rights with no special role in practical reasoning.

Most writers have, instead, favoured the view that rights are to be analysed into other, more basic, notions, principally those of duty, permission and power, with perhaps the addition of other criteria. This means that not all rights will be of great importance. Their importance will vary with the strength of the grounds for the duty, permission or power. Before looking more closely at these accounts, another point should be mentioned. The question is whether the duty, etc, grounds the right, or the right the duty.

Most older writers e. The second view has the implication that the force of a right is not necessarily exhausted by any existing set of duties etc, that follow from it, but may be a ground for creating new duties as circumstances change. This latter view seems to accord better at least with the way that constitutional legal rights work.

Amongst those who think that rights can be analysed, at least in part, into duties, permissions and powers, there is a further main division. Some think that the essence of a right is to have choice or control over the corresponding duty etc. Hart and Wellman are amongst the proponents of the first view, Bentham, Austin, MacCormick and Raz are amongst those maintaining some version of the second. First of all, X may have a bilateral permission to perform some action, i.

Secondly, someone else may have a duty e. Since X has a choice in each case that explains why he is referred to as being a right-holder. One difficulty about this kind of theory is to explain our apparent reference to rights when there is no choice, eg when one is not only entitled to vote in elections, but also obliged by law to do so. Two different versions of the interest theory can be seen, corresponding to the question about the priority of rights mentioned above. One problem about this theory is to explain why the criminal law, although it may in part exist to protect moral rights, is not generally regarded as directly conferring legal rights on individual citizens, despite the fact that they are intended beneficiaries of the corresponding duties.

There may, of course, in many systems be parallel civil law rights, but that is a contingent matter. See more on this point below. A more modern version of this theory was proposed by MacCormick , who argued that a right-holder was the intended beneficiary of a specific share of benefit, rather than just being a generalised beneficiary of the rules. However, even with this amendment, it remains difficult to explain third party rights under contracts.

Suppose X and Y enter into a contract which imposes duties on each of them with the intention that performance of these will benefit Z. According to the theory, Z must conceptually be a legal right-holder. But it is in fact an entirely contingent matter as to whether Z is or not. Some legal systems recognise Z as having rights in such a situation and others do not.

In Britain, for example, Scots Law long recognised such rights under certain conditions, but English Law did not until the position was changed by statute in More recent versions, such as those of Raz a, b , take a different tack altogether. According to them, to say that X is a right-holder is to say that his interests, or an aspect of them, are sufficient reason for imposing duties on others either not to interfere with X in the performance of some action, or to secure him in something. Considerations of the general or common interest may be relevant too.

Whilst discussion has continued on the relative merits of the choice and benefit theories, and ever more sophisticated versions of each have been proposed see, for example, the three-sided debate in Kramer, Simmonds and Steiner , Kramer , Vrousalis , Van Duffel , some writers have attempted to offer different, or combined, approaches.

Kramer and Steiner claim, however, that this is really no more than another version of benefit theory, and not superior to existing ones. Another proposal is made by Sreenivasan , which is intended to apply only to claim-rights and not to other varieties of right.

This, too, is criticised by Kramer and Steiner on the basis that it would include the case in which someone has, on the basis of his own interests, deliberately not been granted any such power at all. Yet this, they claim, would lead to a highly implausible expansion of the class of those who would have to be regarded as right-holders. Firstly, should rights be analysed solely in terms of duties on others together with some other condition , or do we need to bring in also other concepts, such as permission, power and immunity?

Hohfeld thought that, strictly speaking, something was a legal right only if it corresponded to a duty on another, but he argued that legal usage was often confusing because the reference was really to one of the other concepts. Thus, in his view, the law sometimes also said that X had a right if 1 he had a permission to A , 2 he had a legal power to A , 3 Y had no legal power to affect him.

Waldron and Raz argue that it is an important feature of rights that they entitle the right-holder to do not only that which is right, but also within bounds that which is wrong. This they regard as best explained by seeing rights as imposing only duties of non-interference on others, not as granting the right-holder a permission. See also Herstein , An alternative view Campbell is to see some rights as indeed granting permissions, but to point out that in granting a legal permission the law is not saying that there may not be reasons against performing the action, only that within the bounds of the permission the law will act as if there were not.

Powers raise a different issue. By a legal power we mean the ability to bring about changes in legal rules or their application plus some further conditions. Usually, of course, the lawmaker in granting a power also grants a right to exercise it, but occasionally this is not so, for example where the exercising of the right would itself be a crime or a civil wrong. In English Law, for example, until the position was recently changed by statute, a thief had, in certain special circumstances, the legal power to pass good title in the goods he had stolen to a third party, even though by doing so he committed a civil, and possibly also a criminal, wrong.

This seems to indicate that powers should not be thought of as being rights themselves. Powers also illustrate a general problem about the analysis of legal rights, and arguably of rights in general. Namely that of whether an element should be seen as part of the very essence of the concept of a right, or whether it is merely an element in that which is contingently its content, i. Relatedly, of the four fundamental types of rights which Hohfeld claimed to identify, immunities raise problems, though somewhat different ones.

But is an immunity itself a right or is it simply a means of protecting a right, i. As with powers, views have differed about this. There has been much dispute amongst philosophers as what to kinds of entities can be right-holders. Corresponding pretty much to the general dispute about the very nature of rights, some have argued that any entity which would benefit from the performance by others of legal duties can be a right-holder; others that it has to be an entity which has interests; others that it has to be an entity capable of exercising some kind of control over the relevant legal machinery.

And there are variants of all these positions. There has to be a sense in which legal systems can confer rights on such entities as they please.


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This is because it has long been recognised that legal systems can regard as legal persons such entities as they please. Likewise, all modern societies recognise the legal existence as persons of companies or corporations and frequently of such entities as trade unions, government departments, universities, certain types of partnerships and clubs, etc. One of the most contentious areas in recent years has been whether young children, the severely mentally ill, non-human animals, areas of endangered countryside, etc, can properly be regarded as legal right-holders.

Clearly anyone who has locus standi before a court must be a holder of some rights within the system. But it does not seem to follow automatically that an entity which does not, or which is physically or mentally incapable of bringing a legal action, is not thereby a right-holder. For it may be the intention of the system that the interests of that entity should be represented by another person. Given then, that all these entities may be protected by law, and that someone can bring some kind of legal action to ensure that those duties are enforced, when would we say that the entity itself is a right-holder and when not?

The answer will often turn upon whether one embraces an interest- or a choice-theory of rights. Wellman , on the other hand, claims that to assert that very young children or the severely mentally ill can have legal rights is to distort the concept of a right, since they lack the relevant control of the legal machinery. Instead, he argues, the relevant rights should be seen as belonging only to those who can bring the relevant actions on their behalf.

For example, in his view a very young child would not have a right not to be negligently injured by the conduct of another. One difficulty about this position appears to be that it does not easily square with the relevent remedial rights e. The issue here is: Remedial rights are those which arise because of a breach of a primary one. Clearly they arise also outside the law, for example a duty to apologise or make amends even if there is no legal obligation to do so.

But legal remedial duties are generally more precise, and, just by the nature of law, institutionalised. It is one of the main functions of legal systems to provide remedies for breach or sometimes anticipated breach of the primary rights which they confer. So if someone is injured by the negligence of another there will usually arise a remedial right to damages. If he is killed there may arise in members of his family an independent right to compensation, and so on.

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Other types of remedial right can include those for court orders requiring the party at fault to execute, or refrain from, some particular course of action, very often that which they had a duty to do, or to refrain from, under the primary right. Such rights are often very complex in the detail. Likewise, in many systems, some remedies must be granted as a matter of right whilst others are at the discretion of the court. By way of illustration of the remedies in the two British legal systems, reference may be made to Lawson and Walker The details of these further remedial rights vary from system to system.

A related, more controversial, point is as to whether criminal, as opposed to civil, law confers any legal rights on the citizens protected by it. The orthodox view is that it does not, although there may well be a parallel civil right. Take the case of someone who is wrongfully assaulted.

The civil law clearly gives a remedial right, eg. But since, in most jurisdictions, it is mainly and sometimes exclusively the state which decides whether to prosecute for the criminal aspect, the more usual view is that the citizen has no legal right corresponding to the criminal aspect. The issue is often complicated, legally, by the absence of clear indication from the legislature as whether it intended, by a particular statute, to create only a crime or also to confer civil law rights on citizens.

A further complication can be that criminal courts sometimes exercise a quasi-civil function e. This issue is different from that of whether criminal law can act to recognise and protect moral rights. It seems possible to suggest that it can, since moral rights can be protected not only by legal rights, but also by legal duties on others without corresponding legal rights.

For example, a legal system could create a criminal offence of harassment in order to protect a moral right to privacy, without thereby necessarily recognising a legal right to privacy, i. In the case of many legal rights a condition has to be satisfied for their possession or exercise. This, in itself, does not make legal rights different from many moral ones. Just as one has a legal right to damages for assault only if one has been assaulted, one has a moral one to an apology for being insulted only if one has been insulted. But legal rights can give rise to more complicated situations, which rarely arise in morality.

In the above examples we can say that the right-token, as opposed to the right-type, comes into existence only when the condition for its instantiation is triggered. But legal systems sometimes say that that the right-token exists before one of the conditions for the exercise of the right exists. Why should we say this? One proposed answer is that legal systems, unlike morality, have devised sets of rules for transmission of rights even before the triggering condition for the exercise of the right has arrived.

Suppose, for example, that X , under his will, left a sum of money to Y , on condition that Y had attained the age of It may be that the correct way of understanding the provision, under the rules of the legal system, is that only if Y had attained 21 when X died does he have a right to the money. But it may be that the correct way of understanding it as saying that Y , even if he has not attained 21 when X dies, acquires a right to the money, but it is to be paid only when he is Reference should be made to textbooks, primarily on testamentary succession, in the jurisdiction.

Scanlon , defends the position that rights are constraints on the discretion of individuals or institutions to act. Scanlon's analysis is criticized in Gilbert , Wenar a ; Sreenivasan's and Wenar's analyses are critiqued in Kramer and Steiner , May Recently, theorists have attempted to make progress on the question of functionality by scrutinizing the claim-right in particular, and by shifting attention onto the corresponding duty.

The promisor, for example, owes a duty of performance to the promisee. After all, not all duties are directed to specific others: The violation of any duty may be wrong it may be wrong not to give to charity , but the violation of a directed duty is a wronging of the being to whom the duty is owed: And unlike a mere wrong, the wronging of some being calls, ceteris paribus , for apology and compensation. Cruft further argues that the violation of any duty owed to a being is disrespectful of that being.

The question is what could possibly account for the extra significance of the duties that have direction. For instance, in a case of conflicting duties, both duties are directed to A iff A 's authorization or failing that A 's interests determine which duty should be performed.

What Are Rights? Duty & The Law

Intellectual historians have tangled over the origins of rights. Yet insofar as it is really the emergence of the concept of a right that is at issue, the answer lies beyond the competence of the intellectual historian and within the domain of the anthropologist. Even the most primitive social order must include rules specifying that certain individuals or groups have special permission to perform certain actions. Moreover, even the most rudimentary human communities must have rules specifying that some are entitled to tell others what they must do.

Such rules ascribe rights. The genesis of the concept of a right was simultaneous with reflective awareness of such social norms. The more productive characterization of the debate within intellectual history concerns when a word or phrase appeared that has a meaning close to the meaning of our modern word.

The Roman jurist Ulpian, for instance, held that justice means rendering each his right ius. The ancient authors often used words imprecisely, and smeared their meanings across and beyond the Hohfeldian categories. The intellectual historians themselves have occasionally congested the discussion by taking different features of rights as definitive of the modern concept. Moreover, the scholarly debate has sometimes accepted over-optimistic assumptions about the sharpness of conceptual boundaries. Nevertheless, two broad trends in the scholarly discussions are clear.

Donohue now argues that ius is used in a subjective sense throughout the works of the classical Roman jurists in the first century BCE to the third century CE. The second and related trend has been to establish that terms referring to active rights what we would call privilege-rights and power-rights predate terms referring to passive rights what we would call claim-rights and immunity-rights.

It appears that the earliest medieval debates using recognizably modern rights-language, for instance, concerned topics such as whether the pope has a power- right to rule an earthly empire, and whether the poor have a privilege- right to take what they need from the surplus of the rich. Most rights entitle their holders to freedom in some sense; indeed holding a right can entail that one is free in one or more of a variety of senses. In the most general terms, the active incidents—the privilege and the power—entitle their holders to freedom to act in certain ways.

The passive incidents—the claim and the immunity—often entitle their holders to freedom from undesirable actions or states. We can be more specific. A government employee with a security clearance, for instance, has a privilege-right that makes him free to read classified documents. One can be free in this non-forbidden way without having the physical ability to do what one is free to do.

You may be free to join the march, even when both your knees are sprained. The actions you are free to do in this sense may or may not be possible for you, but at least they are not disallowed. Someone who has a pair of privilege rights—no duty to perform the action, no duty not to perform the action—is free in an additional sense of having discretion over whether to perform the action or not.

You you may be free to join the march, or not, as you like. This dual non-forbiddenness again does not imply physical ability. A rightholder may be permitted to perform or not perform some action, but this still does not mean that she is capable of performing the action that she is free to perform. In contrast, the holder of a power-right does have an ability. This is the normative ability to exercise authority in a certain way.

Sumner , 28 This normative ability confers freedom in a different sense. A judge is free to sentence a convicted criminal to prison. The judge is not merely allowed to sentence the prisoner: Her power- right makes her free to sentence in a way that non-judges are not free to sentence. As for the passive rights, many claim-rights entitle their holders to be free from the physical interference or surveillance of others. Other claim-rights entitle their holders to be free from undesirable conditions like hunger or fear.

Immunity-rights parallel claim-rights one level up. Immunity-rights make their holders free from the authority of others, and so entitle their holders to be free from conditions like tyranny or exploitation. A legal system can be seen as a distribution of all of these varieties of freedom.

Any legal system will set out rules specifying who is free to act in which ways, and who should be free from unwanted actions and conditions. A developed legal system will also determine who has the authority and so who is free to interpret and enforce these rules. More generally, any political constitution can be seen as a multi-leveled structure of rights that distributes authority over rules of conduct in a distinctive way.

A democratic constitution, for example, may give voters the power to elect legislators, who have certain powers to enact laws, which the judiciary has certain powers to interpret, and the police have certain powers to enforce, leaving certain courses of conduct open as legal for citizens to pursue. The facts about who should be free to do what within any legal or political system, as well as the facts about who should be free from which actions and conditions, can be represented as a complex, layered structure of rights—exponentially more complex than in the diagram of the property right above.

Though there are disputes over the function of rights and the history of rights language, most agree that rights have special normative force. The reasons that rights provide are particularly powerful or weighty reasons, which override reasons of other sorts. Rights permit their holders to act in certain ways, or give reasons to treat their holders in certain ways or permit their holders to act in certain ways, even if some social aim would be served by doing otherwise.

As Mill wrote of the trumping power of the right to free expression: How rights become imbued with this special normative force is a matter of ongoing scholarly inquiry. As Sreenivasan notes, a Hohfeldian claim-right in itself only entails the existence of a duty with a certain structure, and not a duty with a certain force. A has a claim against B if and only if B has a duty to A: Dworkin's metaphor suggests that rights trump non-right objectives, such as increasing national wealth. What of the priority of one right with respect to another? We can keep to the trumps metaphor while recognizing that some rights have a higher priority than others.

Within the trump suit, a jack still beats a seven or a three. Your right of way at a flashing yellow light has priority over the right of way of the driver facing a flashing red; and the right of way of an ambulance with sirens on trumps you both. This metaphor of trumps leads naturally to the question of whether there is any right that has priority to absolutely all other normative considerations: For such a right to be absolute it would have to trump every other consideration whatsoever: Not all would agree with Gewirth that even this very powerful right overrides every conceivable normative concern.

Some would think it might be justifiable to infringe even this right were this somehow necessary, for example, to prevent the deaths of a great many people. If it is permissible to kill one in order to save a billion, then not even Gewirth's right is absolute. Most theorists would agree that A 's claim-right gives B what Raz , 35—48 calls an exclusionary reason: Dworkin's trumping metaphor makes it tempting to characterize the normative force of rights in the stronger terms of conclusive reasons.

We could indeed attempt to define the Hohfeldian incidents in these terms. Powers and immunities would then determine the ways in which agents were and were not able to alter the patterns of conclusive reasons in the world. If we associate rights with conclusive reasons, then for at least most rights these reasons can only be conclusive with respect to some but not all competing considerations.

This line of thought can be developed by saying that the reasons associated with rights are conclusive within the area covered by the right , but are not conclusive outside of that area. Each right trumps competing considerations in most circumstances, but there are certain circumstances in which another right with higher priority—or a pressing non-right consideration—determines what may or should be done.

From this perspective, the conclusive reasons implied by rights assertions really are conclusive, but only within certain circumstances. Every right is absolute, within a precisely delimited space. Contrast this position with Gewirth's defense of a single, unqualified absolute right. The specificationist holds that each right is defined by an elaborate set of qualifications that specify when it does and when it does not apply: The test of specificationism is how convincingly it can explain what occurs when rights appear to conflict.

Rights do often appear to conflict. Sinnott-Armstrong ; Kamm , For example, on a certain day it may seem that the public's right to protest is conflicting with the government's right to keep order on public property. When confronted with a case like this one, we will judge that one or the other say, the public's right should prevail. However, we do not believe that one of these rights is always stronger than the other.

Given different circumstances, our judgment might favor the other in this case, the government's right. When rights appear to conflict like this, the usefulness of the image of rights as trumps begins to dim. Both of these rights are trump cards, yet it does not appear that one right always trumps the other. A specificationist will attempt to dispel any appearance of conflict of rights. Rather, rights fit together like pieces in a jigsaw puzzle, so that in each circumstance there is only one right which determines what is permitted, forbidden or required.

Every right is absolute within its own area, but the area in which each right prevails is elaborately gerrymandered. Feinberg , —51 and Thomson , 82— object to this specificationist view of rights. First, fully specified rights would be unknowable: Second, rights so understood lose their explanatory force: For instance, consider a case in which your property right in the pie cooling on your window sill conflicts with John's right to do what he must do to keep from starving.


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John's right may prevail in this case: John may have a right to eat your pie. Still, after John rightfully eats your pie he should apologize to you, and compensate you if he can. Thomson alleges that specificationists cannot explain the requirements that John apologizes to and compensates you, since on the specificationist view there is no right of yours that he has violated when he consumes your food. Frederick chases down some specificationist replies to these objections, and concludes that although moral rights are strong moral considerations, they are only pro tanto.

Philosophers have discussed not only how rights can conflict, but how they sometimes support one another. If the enjoyment or realization of a controversial right is an important precondition for the enjoyment of an uncontroversial right, one can defend the controversial right by documenting its strong supporting role.

Nickel , develops a typology of supporting relations between rights see also Gilabert One right strongly supports another when it is logically or practically inconsistent to endorse the implementation of second right without endorsing the simultaneous implementation of the first. For example, the right to bodily security strongly supports the right to freedom of assembly. One right weakly supports another when it is useful but not essential to it. The right to education, for example, weakly supports the right to a fair trial.

Nickel argues that the strength of supporting relations between rights varies with quality of implementation. Poorly implemented rights provide little support to other rights, while ones that are more effectively implemented tend to provide greater support to other rights. The right to due process supports the right to equal treatment for members of different racial and ethnic groups—but the support will be soft if the right to due process is only weakly implemented.

Rights that weakly support each other are interdependent. Rights that strongly support each other are indivisible. Nickel holds that this indivisibility thesis exaggerates the density and strength of supporting relations among human rights. He allows, however, that many supporting relations exist between rights—particularly under high-quality implementation—and endorses the use of linkage arguments when indispensability can be shown. Are there rights to do wrong? Many have thought so. Waldron , 63 gives the example of antiwar protesters organizing a rowdy demonstration near a Remembrance Day service; Wellman , 33 offers the illustration of edging into a checkout line with a full cart, just ahead of a tired woman carrying triplets.

There are two main readings of rights to do wrong. The first reading characterizes most rights as furthering the holder's autonomy. Rights entitle their holders to make choices, and as Waldron says the importance of a person's having choices would be diminished if she were forced to do the right thing. Even though the person has no privilege- right to perform an action that is wrong, it would nevertheless violate an important claim- right of hers for others to compel her not to do that thing.

To take the speech example, we respect the autonomy of speakers when we allow them to speak unmolested—even when they do wrong by expressing themselves in disrespectful ways. For a defense of this reading against objections from Galston and George, see Herstein On the existence and value of legal rights to do legal wrongs, see Herstein The second reading of rights to do wrong sees them as involving a mid-sentence shift in domains of reasons. There is no mystery, after all, in having a legal right to do something morally wrong.

The potential for a legal right to do a moral wrong arises from the fact that the domains of legal and moral reasons are not perfectly overlapped. One has a legal privilege to edge in front of the tired mother in the check-out line, but this is something that one has a moral duty not to do. Similarly, one might have a moral privilege to do what one has no customary privilege to do a moral right to do a customary wrong , and so on.

Each domain of reasons is distinct, and however conclusive are the reasons that any particular rights-assertion implies, these are only reasons within a single domain of reasons moral, or legal, or customary. Moral rights, legal rights, and customary rights all define domains of rights within the realm of rights of conduct: When our reasons within these three different domains conflict, we may have reasons of different kinds to act in different ways. Yet there are also rights entirely beyond the realm of conduct. These are rights to believe , to feel and to want.

For example, the prime minister asserts that he had a right to believe what his advisors told him. The artist says she has a right to feel angry at her critics. The frustrated suburbanite complains he has a right to want more out of life. The realm of rights of rights to believe, to feel and to want are the realms of epistemic , of affective , and of conative rights. Together with the realm of rights of conduct, these are the four realms of rights. Each of these four realms of rights defines a separate conceptual space: What is distinctive about the three realms of rights beyond the rights of conduct is that they seem only to contain only privilege-rights Wenar One may, for example, have a privilege-right to believe what one's eyes tell one, and a privilege-right to feel proud of what one has done.

It is interesting to consider why these epistemic, affective, and conative realms contain no claims, powers, or immunities. Philosophers have long been interested in epistemic rights in particular though there is also skepticism about this category, as in Glick Similarly the deepest questions in Kant's philosophy are framed in terms of rights. In the Critique of Pure Reason the Transcendental Deduction of the Categories aims to prove the validity of the employment of the concepts of pure understanding.

In the Critique of Practical Reason the Deduction of Freedom aims to demonstrate our entitlement to regard ourselves as free. In both Deductions the central question is a quaestio iuris: By what right do we employ the categories; and by what right do we think of ourselves as free? There are two leading philosophical approaches to explaining which fundamental rights of conduct there are, and why these rights should be respected. These two approaches are broadly identifiable as deontological and consequentialist.

Status theories hold that human beings have attributes that make it fitting to ascribe certain rights to them, and make respect for these rights appropriate. Instrumental theories hold that respect for particular rights is a means for bringing about some optimal distribution of advantages. Each approach has characteristic strengths and weaknesses; the long-running contest between them is ongoing. A person is constituted by his body and his mind.

They are parts or aspects of him. For that very reason, it is fitting that he have primary say over what may be done to them—not because such an arrangement best promotes overall human welfare, but because any arrangement that denied him that say would be a grave indignity. In giving him this authority, morality recognizes his existence as an individual with ends of his own—an independent being. Since that is what he is, he deserves this recognition. The recognition that is due to each individual can be accorded to that individual by respecting his fundamental rights. For Mill, as for other instrumental theorists, rights are a tool for producing an optimal distribution of interests across some group.

The two approaches differ sharply over the role of consequences in the justification of ascribing rights. Status theorists hold that rights should be respected because it is fitting to do so, and not because of the good consequences that will flow from so doing. By contrast, within an instrumental theory good consequences are the justification for promulgating and enforcing rights. As Quinn , says about the status approach:. It is not that we think it fitting to ascribe rights because we think it is a good thing that rights be respected. Rather we think respect for rights a good thing precisely because we think people actually have them—and… that they have them because it is fitting that they should.

Within a status approach rights are not means for the promotion of good consequences. They are rather, in Nozick's phrase, side constraints on the pursuit of good consequences Nozick , A status-based justification thus begins with the nature of the rightholder and arrives immediately at the right. The instrumental approach starts with the desired consequences like maximum utility and works backward to see which rights-ascriptions will produce those consequences.

Status theories belong to the tradition of natural rights theories. All natural rights theories fix upon features that humans have by their nature, and which make respect for certain rights appropriate. The theories differ over precisely which attributes of humans give rise to rights, although non-religious theories tend to fix upon the same sorts of attributes described in more or less metaphysical or moralized terms: Natural rights theorists agree that human reason can grasp the fact that it is appropriate to treat beings with such attributes in certain ways, although they disagree on whether such facts are self-evident.

Natural law - Wikipedia

Natural rights theory reached its high point in the early modern era, in the work of Grotius, Hobbes, Pufendorf, and especially Locke. Locke's influence can be seen in the revolutionary American and French political documents of the eighteenth century, and especially in Jefferson's Declaration of Independence The revival of status theory within contemporary philosophy began with Nozick's Anarchy State and Utopia While Nozick does acknowledge a debt to Locke's theory of property, his work belongs within the Kantian tradition of natural rights theorizing.

Nozick centers his explanation of the moral force of individual rights on the Kantian imperative against treating humanity merely as a means to an end. Each person's rights impose side-constraints on others' pursuit of their goals, Nozick says, because each person possesses an inviolability that all others must respect. Many find this approach of grounding of rights in individual dignity appealing. There is a directness and clarity to status explanations of fundamental rights. For example, Kamm , explains the right of free expression as follows:.

The right to speak may simply be the only appropriate way to treat people with minds of their own and the capacity to use means to express it Not recognizing a person's option of speaking is to fail to respect him To say that any given person is not entitled to the strong right to free speech is And this seems to be a mistake.

Moreover, status-based rights are attractively robust. While the justifications of instrumental rights are always contingent on calculations concerning consequences, status-based rights are anchored firmly in individual dignity. This makes it easy to explain why status-based rights are strong, almost unqualified rights, and this is a position which many believe properly expresses the great value of each person.

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However, the strength of status-based rights can also be seen as a weakness of the theory. One does not wish to be carried from the great importance of each individual to the implausible position that all fundamental rights are absolute. Moreover, the simplicity of the status approach to rights can also appear to be a liability. This right includes the right to make damning personal attacks on others. Yet the right is much more permissive about attacking public figures than it is about assailing private citizens.

How could a status approach explain this distinction between public figures and private citizens? Yet we tend to be more tolerant of deceitful speech in political campaigns than we are of deceitful speech in advertising or in the courtroom. It is an open question whether status theory has the conceptual resources to explain why individual rights should be shaped in these specific ways. Status theory also faces the challenge of vindicating its foundations and its scope. The Kantian value of inviolability can look puzzling when presented independently of a metaphysical grounding.

Even so, status theorists must also resolve an internal debate over exactly which rights should be thought to express an individual's inviolability. Instrumental theories describe rights as instruments for achieving an optimal distribution of advantages. The archetypal instrumental theory is some form of two-level consequentialism, such as rule utilitarianism. Within such a theory rights are parts of rules, the general observance of which will lead to an optimal distribution of advantages.

In rule utilitarianism the optimal distribution is the one that contains the greatest aggregate utility. The most common objection to grounding rights in such a theory is that the resulting rights will be too flimsy. If rights are justified only insofar as they generate good consequences, it may seem that the theory will need to prune its rights, perhaps severely, whenever maximum utility lies elsewhere. Why should it not be a rule in a two-level system, for example, that one should frame an innocent man if this would prevent a major riot?

While status-based rights can appear to be too strong, instrumental rights can appear to be too weak. See Pettit for a counter-argument. Weak rights are a problem for utilitarianism because its focus on maximization makes it indifferent to certain facts about how utility is distributed across individuals. However, utilitarianism is not the only kind of instrumental theory.

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For example, a pure egalitarian theory will portray rights as instruments for achieving a more equal distribution of advantages. A prioritarian theory will define an optimal distribution in a manner similar to egalitarianism, except that it will give extra weight to the interests of those worse off. Sumner , Instrumental theories that do not define an optimal distribution in terms of maximization may face less pressure than utilitarianism does from concerns about weak rights.

Instrumental theories differ over how they define what counts as an optimal distribution maximization, equality, etc. They also differ in how they measure individual advantage. For instance, a utilitarian's metric is utility, Sen works with a metric of capabilities, Dworkin with resources, and so on. Whatever metric they use, all instrumental theorists will have to address longstanding questions about the commensurability and interpersonal comparison of interests. Since instrumental theorists work with overall evaluations of how well off individuals would be were certain rights ascribed, they must explain how distinct categories of interests e.

They must also explain why they believe that these interests are similar enough across persons that it makes sense to use the same scales of measurement for different persons. Instrumental theories are vulnerable to the mirror-image objection. An instrumental theorist can appeal to any number of distinct interests, which are at stake for any number of differently-situated individuals, to explain why a certain right should be held only by certain persons or only in certain circumstances.

The danger for such a theorist is that the wealth of normative resources at her command will permit the ascription of whatever rights she favors. Tushnet , Frey Moreover all instrumental justifications rely on empirical predictions concerning which ascriptions of rights would produce which consequences, and there will typically be enough slack in these empirical predictions for instrumental theorists to fudge their derivations in order to reach the desired rights. Both status theories and instrumental theories of rights have held a perennial attraction.


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  4. Because of this, many have been tempted to search for a hybrid approach that would combine what is plausible in each e. Rather, rights define principles that would be chosen by properly situated and motivated agents agreeing to the basic terms of their relations e. The fact that these principles would be agreed to under the specified conditions is their justification. The rights that define fundamental principles within these theories are phrased in terms of what the theories' agents have strong reason to want. Forst , combines critical and contractualist theory into a sophisticated account of rights.

    Beginning with a status-based fundamental right to justification, he shows how suitably idealized demands for justification from individuals subordinated within real relations of power can ground specific rights to relief from and redress for actual injustices. Forst's framework shows the enduring theoretical appeal and practical potential of the Kantian tradition of understanding rights.

    Critiques of rights come in two forms. The first is an attack on the substance of doctrines that give rights a central place. These critiques allege that the content of such doctrines is, in one way or other, malformed or unjustified. The second form of critique attacks the language of rights itself. The objection here is that it is inappropriate or counterproductive to express at least some kinds of normative concerns in terms of rights.

    Marx objected that these alleged rights derive from a false conception of the human individual as unrelated to others, as having interests can be defined without reference to others, and as always potentially in conflict with others. The right of property, Marx asserted, exemplifies the isolating and anti-social character of these alleged rights of man. On the one hand, the right of property is the right to keep others at a distance: On the other hand, the right of property allows an owner to transfer his resources at his own pleasure and for his own gain, without regard even for the desperate need for those resources elsewhere.

    Similarly, Marx held that the much-celebrated individual right to liberty reinforces selfishness. Those who are ascribed the right to do what they wish so long as they do not hurt others will perpetuate a culture of egoistic obsession. As for equality, the achievement of equal rights in a liberal state merely distracts people from noticing that their equality is purely formal: They are simply the defining elements of the rules of the modern mode of production, perfectly suited to fit each individual into the capitalist machine.

    Communitarians Taylor, Walzer, MacIntyre, Sandel sound several of the same themes in their criticisms of contemporary liberal and libertarian theories. Nor should we attempt, as in Rawls's original position, to base an argument for rights on what individuals would choose in abstraction from their particular identities and community attachments. There is no way to establish a substantive political theory on what all rational agents want in the abstract. Rather, theorists should look at the particular social contexts in which real people live their lives, and to the meanings that specific goods carry within different cultures.

    This communitarian critique continues by accusing liberal and libertarian theories of being falsely universalistic, in insisting that all societies should bend themselves to fit within a standard-sized grid of rights. Insofar as we should admit rights into our understanding of the world at all, communitarians say, we should see them as part of ongoing practices of social self-interpretation and negotiation— and so as rules that can vary significantly between cultures.