The nature and justification of rights: QCE Philosophy and Reason
“Analyse the nature and justification of rights, including natural, legal and human rights, and the will and interest theories”
Rights divide into legal rights (recognised by a legal system) and moral rights (held independently of law); natural rights are pre-political moral rights such as Locke's life, liberty and property, and human rights are their universal modern form. Negative rights demand non-interference; positive rights demand provision. Hohfeld shows "a right" can mean a claim, liberty, power or immunity. The will theory (Hart) says rights give holders control over others' duties; the interest theory (Raz) says rights protect important interests. Critics like Bentham deny natural rights as "nonsense upon stilts", so rights-claims need justification rather than mere assertion.
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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.
Following Hohfeld, a claim-right means another has a duty to you; a liberty means you have no duty not to act; a power means you can alter legal relations; an immunity means you are protected from another altering your legal position. Saying "I have a right" is ambiguous until you specify which of these is meant.
Take the slogan "I have a right to free speech" and parse it using the distinctions above.
Step 1: Classify it as legal or moral, natural or human
Decide the kind of right being asserted. If grounded in human dignity prior to any statute, it is a moral or human right; if grounded in a specific law, it is a legal right. Note that the two can come apart (a regime may legally deny a moral right).
Step 2: Decide whether it is negative or positive
Ask what duty it imposes on others. Free speech is primarily a negative right: it requires others (especially the state) to refrain from censoring, not to provide a platform. This already narrows what is being claimed.
Step 3: Locate the Hohfeldian relation
Determine which relation is meant. Usually it is a claim (the state has a duty not to interfere) combined with a liberty (you have no duty to stay silent). It is not a power or an immunity, so saying simply "a right" was ambiguous until parsed.
Step 4: State the justification owed
Identify what would ground it: an interest theory points to the interest in expression and autonomy; a will theory points to the holder's control over the corresponding duty. Naming the justification turns a slogan into an arguable claim.
- Treating all rights as the same
- Legal and moral, natural and human, negative and positive, and the four Hohfeldian relations are distinct. Precision about which is meant is exactly what is assessed.
- Assuming human rights are uncontroversial
- Bentham and other critics deny pre-legal natural rights; a strong answer engages the "nonsense upon stilts" challenge.
- Confusing negative and positive rights
- Negative rights demand non-interference; positive rights demand provision. They impose different duties on others.
- Ignoring the will/interest debate
- A good evaluation explains both theories and tests each against hard cases such as the rights of infants.
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.
Exam-style questions
Questions in the style of QCAA exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.
Practice7 marksEvaluate the claim that there are natural (pre-legal) human rights, with reference to at least one objection.Show worked answer →
A 7 mark response explains natural rights, their appeal, and a sceptical objection.
The claim. Natural rights are moral rights held by people in virtue of their nature or reason, prior to and independent of any government (Locke's life, liberty and property). Human rights are their universal modern form (the 1948 Universal Declaration).
Strengths. They explain the gap between law and morality that reformers exploit (an unjust law can violate a right one still has), and they ground universal protections against atrocity.
Objection. Bentham dismissed imprescriptible natural rights as "nonsense upon stilts": only rights actually enacted in law are real, and moral questions should be settled by utility. Without a clear source or method of verification, natural-rights claims risk being mere assertions.
Verdict. Natural-rights talk captures something important about pre-legal moral status, but it owes an account of where such rights come from; a defensible position grounds them in interests or rational agency rather than bare assertion, answering Bentham's challenge.
Markers reward an accurate account of natural and human rights, genuine strengths, the Bentham objection, and a justified conclusion.
Practice5 marksCompare the will theory and the interest theory of rights, and assess each against the case of the rights of young children.Show worked answer →
A 5 mark response states both theories and tests them on a hard case.
Will theory (Hart). To have a right is to have control over another's duty: the holder can waive or enforce it, a "small-scale sovereign". Test: young children cannot exercise such choice, so the will theory struggles to say they have rights, which seems wrong.
Interest theory (Raz). A right exists where an aspect of a person's well-being (an interest) is important enough to ground duties in others. Test: children clearly have interests (in care, safety, education), so the interest theory readily attributes rights to them.
Assessment. The children case favours the interest theory, which explains the rights of those who cannot choose. But the interest theory is criticised for being too broad and for not capturing waivable rights, which the will theory handles well. Each captures part of the truth.
Markers reward an accurate statement of both theories and the children test result, ideally noting the trade-off.