Transcript Rights - Routledge

Rights
Michael Lacewing
[email protected]
© Michael Lacewing
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 (noninterference)
– 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.