Constitution, Society, and Leadership Week 7 Unit 4 Concepts of Rights: Rights in General Christopher Dreisbach, Ph.D. Johns Hopkins University

 Three views concerning rights in general  Joel Feinberg: A claim worthy of consideration  Jules Coleman & Jody Kraus: critique of two theories of legal rights ▪ Economic ▪ Classical Liberal  H. L. A. Hart: There is the natural right to be free 2

 Point: a right is a claim against someone  Based on a set of governing rules or moral principles  To have a claim is to have a case worthy of consideration  A community with legal duties, but no rights is missing this sort of claim 3

 Critique of two popular theories of legal rights  Economic  Classical Liberal  The Economic Theory of Legal Rights  Based on protection of property  The Classical Liberal Theory of Rights  Based on a “sacred domain of autonomy” 4

 C& K:  Rights need not entail liberties ▪ E.g., The right not to be abused is not a liberty in the usual sense of the word ▪ I can’t choose not to exercise that right ▪ So the Classical Liberal Theory does not always apply  Rights need not entail property ▪ E.g., the right to vote ▪ So the Economic Theory does not always apply  So, need for a foundational theory to cover both 5

 C & K’s Thesis  An [institutional] right is a “conceptual marker” that ▪ Designates certain legitimate interests or liberties ▪ Warrants a privileged status  “Privileged status” implies that “rights entail legitimate claims”  The content of such claims is stated in property and liability rules 6

 “Claims that property and liability rules generate specify conditions of legitimate transfer”  “The choice of which rules to apply depends on the foundational theory” ▪ “What general purpose do we want institutional rights to serve?”  “Besides providing the basis for determining the content of rights, the foundational theory specifies the appropriate institutions for enforcing claims” 7

 Point: there is the natural right to be free  All people have it if they are capable of choice  Not conferred or created by voluntary action ▪ Although other moral rights are  Right=“a moral justification for limiting the freedom of another person” 8

 Special Rights v. General Rights  Special: Some individual has it, but others do not ▪ E.g., to be paid from you for my services  General: All have it ▪ E.g., the right to worship as one pleases 9

 “Unless it is recognized that interference with another’s freedom requires a moral justification, the notion of right could have no place in morals”  “For to assert a right is to assert that there is such a justification” 10

Week 7 Unit 4 Concepts of Rights: Rights in General