What are rights, where do they come from, and how can claims to rights be justified?
analyse the nature and justification of rights, including natural, legal and human rights, and the will and interest theories
A focused QCE Unit 4 answer on rights. Covers the distinction between legal and moral rights, natural and human rights, negative and positive rights, the Hohfeldian analysis of claims, liberties, powers and immunities, and the will and interest theories of what rights are for.
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What this dot point is asking
QCAA wants you to analyse what rights actually are, distinguish the main kinds, and assess how rights-claims can be justified. You need the legal/moral and natural/human distinctions, the negative/positive contrast, the Hohfeldian breakdown of rights, and the two leading theories of the function of rights (will theory and interest theory). This supports IA2 and IA3 essays in social and political philosophy and appears in the external exam.
The answer
Legal and moral rights
A legal right is a right recognised and enforceable under a legal system (for example a statutory right to vote). A moral right is a right a person is held to have independently of whether any law recognises it. The two can diverge: a person may have a moral right (to be free from slavery) that an unjust legal system denies, which is exactly the gap reformers appeal to.
Natural rights and human rights
Natural rights are moral rights thought to belong to people by nature or reason, prior to and independent of any government. Locke's rights to life, liberty and property are the classic example. Human rights are the modern successor: rights held simply in virtue of being human, universal and inalienable, expressed in documents such as the Universal Declaration of Human Rights (1948).
Not everyone accepts natural rights. Jeremy Bentham, the utilitarian, dismissed talk of imprescriptible natural rights as "nonsense upon stilts", arguing only legally enacted rights are real and that moral questions should be settled by utility, not by invoking pre-legal rights.
Negative and positive rights
- A negative right is a right that others refrain from acting (a right not to be interfered with), for example the right not to be assaulted or censored. It imposes duties of non-interference.
- A positive right is a right to be provided with something (a right to be acted for), for example a right to education or healthcare. It imposes duties of provision.
Libertarians such as Nozick accept mainly negative rights, holding that positive rights impose burdensome duties on others. Egalitarians defend positive rights as necessary for a decent life. The distinction is contested, since even negative rights need costly institutions (courts, police) to protect them.
The Hohfeldian analysis
The jurist Wesley Hohfeld showed that "a right" covers several distinct relations. He distinguished four:
- a claim (someone else has a duty toward you, the strict sense of a right);
- a liberty or privilege (you have no duty not to act, so you are free to act);
- a power (you can change legal relations, such as making a contract);
- an immunity (you are protected from another changing your legal position).
Clear argument requires saying which Hohfeldian relation is meant; many disputes dissolve once a "right" is parsed precisely.
Will theory and interest theory
Two theories explain what rights are for:
- The will theory (or choice theory), associated with H.L.A. Hart, holds that a right gives its holder control over another's duty: to have a right is to be a "small-scale sovereign" who can waive or enforce it. A drawback: it struggles to explain the rights of those who cannot exercise choice, such as infants or the comatose.
- The interest theory, associated with Joseph Raz, holds that a right exists where an aspect of a person's well-being (an interest) is important enough to impose duties on others. It explains the rights of those who cannot choose, but is criticised for being too broad and for not capturing waivable rights.
Try this
Q1. Distinguish legal rights from moral rights and give an example where they conflict. [3 marks]
- Cue. Legal rights are enforceable in law; moral rights hold independently; an unjust law may deny a moral right such as freedom from slavery.
Q2. Explain the difference between negative and positive rights. [3 marks]
- Cue. Negative rights require others to refrain (non-interference); positive rights require others to provide (a good or service).
Q3. Compare the will theory and interest theory of rights. [4 marks]
- Cue. Will theory: rights give control over another's duty (Hart); interest theory: rights protect important interests (Raz); will theory struggles with infants, interest theory risks being too broad.
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