The notion of rights Rights range widely: to go to the cinema, not to be killed, to teach students at Heythrop College, to be paid, to have children –Moral, legal, contractual –Who has them, what are they rights to An entitlement to perform, or refrain from, certain actions and/or an entitlement that other people perform, or refrain from, certain actions
Hohfeld’s analysis Privilege/liberty: I have a privilege or liberty to do x if I have no duty not to do x. Claim: I have a claim right that someone else does x in certain cases in which they have a duty to me to do x. –Negative: don’t interfere (non- interference) –Positive: provide some benefit (provision)
Rights and duties Every claim right entails a duty, but not every duty entails a claim right. –E.g. charity Some duties are based on rights, but some are not. –Further: I can have a right (liberty) to do something wrong
Complexity of rights My right to my books: –the liberty to use them –a claim that no one else uses them –the power to waive that claim (lend my book to them) or transfer it (sell my book to them) –the immunity from anyone else waiving or transferring my right to my books. Not absolute, but limited
Natural rights rights people have simply in virtue of their nature, e.g. rationality, autonomy, or certain needs. moral rights, and do not depend on being recognised by law. laws that violate people’s natural rights can be condemned for that reason. universal, not relative to a particular society or set of laws.
‘Positive’ rights Recognised and established in a system of rules (usually the law) –only exist when recognised A right imposes duties, which must be recognised and enforced. –Rights appeal for authoritative recognition and legal enforcement. –‘Natural’ rights therefore do not make sense.
‘Positive’ rights A law can violate someone’s rights because it contradicts another law Laws can be criticised for failing to recognise what ought to be (but is not yet) a right. –But people don’t have the right until the law recognises it.
What are rights for? To protect freedom and choice Hart: ‘A right belongs to that branch of morality which is specifically concerned to determine when one person's freedom may be limited by another's and so to determine what action may appropriately be made the subject of coercive legal rules.’
What are rights for? Rights relate to freedom (a core human attribute) and the protection they appeal for is legal. So beings who can’t make choices don’t have rights? Are there inalienable rights, e.g. to life or freedom? Rights protect other important interests as well
What are rights for? Freeden: ‘a human right... assigns priority to certain human or social attributes regarded as essential to the adequate functioning of a human being; … is intended to serve as a protective capsule for those attributes; and … appeals for deliberate action to ensure such protection.’
What are rights for? rights are closely to connected to what we think human beings are, what it takes to live an adequate human life rights seek to protect that attribute against other concerns or considerations that might conflict with it, e.g. free speech rights appeal for action on behalf of the right; every right bestows a duty on someone
What justifies rights? Recognising individuals for what they are –Locke: natural rights bestowed by God –Contract theory: to have rights is to be part of a community that agrees to live by rules –Kant: individuals are ‘ends-in-themselves’ – everything else has value because of individuals’ choices
What justifies rights? Even fundamental rights are shaped by many conditions that relate not to ourselves, but to other people and social goods –‘Fire!’ –Property rights
What justifies rights? They help achieve some moral or political good Certain interests should be protected as rights Which interests depends on utility
Deriving rights from utility ‘I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being’ Singling out these interests for protection will contribute most to utility. Freedom of thought and speech will help us to discover and understand the truth; and ‘the free development of individuality is one of the leading essentials of well-being’.
Two objections if it proved that freedom of thought etc. did not contribute to utility, then we would no longer have this right if the ground of rights is utility, this protection seems shaky. But a right that can be overridden (easily) is no right at all.