UNIT IX: DEBATES ON RIGHTS

a) Moral vs Legal Conceptions

Introduction
 Rights are claims, social claims necessary for the development of human personality.
 They are not entitlements a person is possessed with. In ancient and medieval times,
some people were entitled to enjoy privileges. But to these privileges nobody could
give the name of rights. Rights are not privileges because they are not entitlements.
 There is a difference between rights and privileges; rights are our claims on others as
are others’ claims on us; Entitlements on the other hand are privileges granted to
some and denied to others.
 Rights are universal in the sense that they are assured to all; privileges are not
universal because they are possessed by few.
 Rights are given to all without any discrimination; privileges are given to some, the
selected few. Rights are obtained as a matter of right; privileges as a matter of
patronage.
 Rights emanate in democratic societies; privileges are features of undemocratic
systems.
 Jefferson’s declaration that men are endowed by their creator with certain inalienable
rights was one which indicated the naturalness of rights, i.e., men have rights because
they are, by nature, human beings.
 The relationship between the individual and the state has been an important question
of political theory; one that has baffled, if not confused, political philosophers since
ages.
 Political philosophers have debated as to who, whether the state or the individual is
more important and who owes what to whom.
 There are philosophers, Plato for example, who believe that the state alone can give
justice and that the job of the individual is to do his duties to the best of his/her
abilities and capacities.
 These philosophers are called the Idealists.
 There are others, John Locke for example, who hold the view that the state as a means
exists for an end, and the end is the individual, meaning thereby that individual rights
are sacrosanct and inviolable.
 That individuals have rights is a phenomenon of modern age as it began in the 15th-
16th centuries’ Europe.
 That these rights are guarantees against state absolutism and, therefore, they have
their origin in society are things that became known in the modern age alone.
 Rights belong to individuals, and therefore, they are not of the state.
 Rights are individuals’ rights, and, therefore, they are conditions necessary for their
development.
  Rights are the product of our social nature, and as such, the result of our membership
of society
 law and morality are not the same.
 For one, the law is binary, which means that an action is either legal or illegal. But,
morality is full of gray areas.
 For example, stealing bread is unlawful regardless of motivations, but most people
are more sympathetic if it was done to feed starving orphans than as a random act of
robbery.
 Additionally, the law is enforced by government actors like the police and the courts,
and there are set punishments for offenders
 Morality is not formally regulated, though there certainly could be social
consequences for immoral actions.
 Finally, the law is the same for all citizens, but morality depends on who you are
asking because everyone has a different perspective and set of experiences.
 We must, of course, distinguish between moral rights and legal rights.
 Slaveholders in the antebellum South had legal property rights in their slaves: legally,
their slaves were their property.
 But it does not follow that they had any moral property rights in their slaves: morally,
their slaves were not property, but rather free and equal beings.
 Perhaps less obviously, we must also distinguish between rights that are recognized
or enforced and those that are not.
 Slaves in the antebellum South had moral rights to liberty and equality that were
neither recognized nor enforced, either by the law or by the conventional morality of
the antebellum South.

Natural Rights

 The theory of natural rights has been advocated mainly by Thomas Hobbes (Leviathan,
1651), John Locke (Two Treatises on Government, 1690) and J.J. Rousseau (The Social
Contract, 1762).

 These contractualists, after having provided the social contract theory, hold the view that
there were natural rights possessed by men in the state of nature and that these rights
were attributed to individuals as if they were the essential properties of men as men.

 The contractualists, therefore, declared that the rights are inalienable, imprescriptable and
indefeasible.

Critique

 The theory of natural rights is criticised on many grounds.

  Rights cannot be natural simply because they were the possessions of men in the state of
nature.

 There can never be rights before the emergence of society: the notion of pre-society
rights is a contradiction in terms.

 If at all there was anything in the state of nature, they were mere physical energies, and
not rights.

 Rights presuppose the existence of some authority to protect them.

 In the state of nature where no state existed, how could one imagine rights in the absence
of a state: who would defend people’s rights in the state of nature

 To say that natural rights existed in the state of nature is to make them absolute or beyond
the control of society.

 For Bentham, the doctrine of natural rights was ‘a rhetorical non-sense upon stilts.’

 Laski also rejects the whole idea of natural rights.

 Rights, as natural rights, are based on the false assumption that we can have rights and
duties independently of society.

 Burke had pointed out, rather eloquently, when he said that we cannot enjoy the rights of
civil and uncivil state at the same time: the more perfect the natural rights are in the
abstract, the more difficult it is to recognise them in practice.

 Rights are natural, in the sense that they are the conditions which human beings need to
realise themselves.

 Laski realises the significance of rights when he says that rights ‘are not natural in the
sense that a permanent and unchanging catalogue of them can be compiled, rather they
are natural in the sense that under the limitations of a civilised life, facts demand their
recognition.’

Theory of Moral Rights

 Moral rights are rights that are accorded according to the universal ethics or moral code.
Moreover, their nature is similar to that of human rights; universal, concrete, and timeless
and are not formulated by people according to the national or social desires.

 Hence, the origination of human rights is the emergence of laws and statues, etc.
Moreover, there is a strong link between religious and ethical code and moral rights
as morality is defined by the religious and moral teachings of mankind, which create the
system of ethics in human societies.
 In brief, moral rights are those that are recognized as morally correct or acceptable for the
common good of mankind.

 Therefore, they are not formulated by any state or any authority of a country, and they do
not vary from country to country and person to person either.

 Likewise, moral rights stand as the fundamentals for the identification of rights to
humans as well as animals. Similarly, there is no follow up penalties or punishments for
the violation of moral rights.

 However, when a moral right/human right is identified as a legal right, violation of that
right is followed by punishment as a legal right

Theory of Legal Rights

 The theory of legal rights or the legal theory of rights connotes the same sense.

 The idealist theory of rights which seeks to place rights as the product of the state can be,
more or less, seen as another name of the theory of legal rights.

 Among the advocates of such theories, the names of Laski, Bentham, Hegel and Austin
can be mentioned. According to them, rights are granted by the state.

 The theory regards rights as a claim which the force of the state grants to the people.

 The law is a system of rules that a state enforces to regulate behaviour through penalties.

 Legal principles are based on the rights of the citizens and the state expressed in the rules.

 An action is permissible if it does not violate any of the written rules.

 Legal rights refer to a set of rights formulated by the legal system of a government.

 They are given as privileges to the citizens of that particular state.

 Thus, they are those liberties or protections of individuals that are originated through
the laws.

 Hence, they are bestowed onto a person by given legislation of a country. Similarly, they
can be modified, repealed, and restrained by the same laws.

 In brief, legal rights are the privileges given to citizens by their governments.

 Hence, these liberties/right are created and enforced by the legal system of governments,
which also means that they can also be redefined or altered by the same parties.
 Similarly, these are not universal, but they vary from state to state and country to country,
person to person, even from time to time as well.

 Thus, one of the most significant features of legal rights is that they are formulated by the
state or government according to the majority’s desire for the common good of its
citizens.

 Therefore, they are not universal or timeless like human rights and moral rights.

 However, they affect every citizen in that particular state, whether or not the citizens
publicly know the existence of such. They come in acts, constitutions, statutes, laws, etc.

 They are liable to change accordingly as well.

 For instance, the legal rights of a person having dual citizenship may vary from someone
having single citizenship.

 Moreover, in some countries the legal right to vote varies in age, i.e., in the US, the legal
right to vote is from the age 18 and above

 Morality is a body of principles that attempt to define what is good and bad conduct.

 Moral principles can be based on culture, religion, experiences, and personal values.

 An action is considered moral if it fits within those standards, though everyone has
different standards

 Legal rights refer to the rights a particular person is entitled to enjoy legally as enforced
by the state/government whereas moral rights emphasize the universal ethical rights
/guidelines the people can follow.

 The essential features of these theories, then, are:

(i) the state defines and lays down the bill of rights: rights are neither prior nor anterior to
the state because it is the state which is the source of rights;

(ii) the state lays down a legal framework which guarantees rights and that it is the state
which enforces the enjoyment of rights;

(iii) as the law creates and sustains rights, so when the content of law changes, the
substance of rights also changes

 Laski’s views on the nature of rights run as follows:

(i) they are social conditions, given to the individual as a member of society
 (ii) they help promote individual personality, his best-self: ‘those social conditions
without which no man can seek to be his best self’

(iii) they are social because they are never against social welfare; they were not there
before the emergence of society

iv) the state only recognises and protects rights by maintaining them;

(v) rights are never absolute; absolute rights are a contradiction in terms

(vi) they are dynamic in nature in so far as their contents change according to place, time
and conditions

(vii) they go along with duties; in fact, duties are prior to rights; the exercise of rights
implies the exercise of duties

 If Laski were to give rights to the individual, he would give them in this order: right to
work, right to be paid adequate wages, right to reasonable hours of labour, right to
education, right to choose one’s governors, followed by other rights.

 Laski’s argument is that without granting economic rights first, an individual cannot
enjoy his political rights: political liberty is meaningless without economic equality:
‘where there are great inequalities, the relationship between men is that of the master and
the slave’.

 Equally important, but lower in order is the right to education: education alone helps an
individual exercise all the other rights properly.

 With the economic and social (education rights) at one’s disposal, there is a greater
likelihood of the individual exercising his political rights in right earnestness

Critique

 Critiques opine that the state, indeed, defends and protects our rights; but it does not
create them as the advocates of these theories make us believe.

 If one admit that rights are the creation of the state, we will have to accept the view that
if the state can give us rights, it can take them away as well.

 Such an opinion would make the state absolute

Similarities

 Legal rights and moral rights pertain to the rights an individual can enjoy which helps
him to enjoy a free, just and fair life.
  Moreover, the law ensures that legal rights as well as moral rights are protected, leading
to quality lives of humans.

 Besides, moral rights stand as the basis for legal rights.

 moral rights and legal rights are significant to understand the nature and the application
of human rights

b) Choice and Interest Theories

Will/Choice Theory

 The will theory of rights asserts that the single function of a right is to give the
rightholder discretion over the duty of another.

 A land owner has a right, for instance, because he has the power to waive or not to waive
the duties that others have not to enter his land.

 A promisee has a right because she has the power to demand performance of the
promisor’s duty, or to waive performance, as she likes.

 As Hart describes the central thesis of the will theory, “The individual who has the right
is a small scale sovereign to whom the duty is owed

 The attraction of the will theory is that it reserves for rights the special role of securing
dominion over significant spheres of action.

 Many important rights do endow rightholders with this kind of discretion, and so serve
the freedom of those who hold them.

 The connection between rights and freedom, so powerful in modern politics, is for will
theorists a matter of definition

Critique

 The will theorist recognizes as potential rightholders only those beings that have certain
capacities: the capacities to exercise powers to alter the duties of others.

 These constraints render the will theory implausibly narrow.

 This narrowness is evident, first, in the range of rights that the theory recognizes.

 Many important rights, such as the complex bodily right include a paired power to alter a
claim.

 But many do not.

  For example, you have no legal power to waive or annul your claim against being
enslaved, or your claim against being tortured to death.

 The will theory therefore does not recognize that you have a legal right against being
enslaved, or against being tortured to death.

 Yet most would regard these unwaivable claims as rights, indeed as among the more
important rights that individuals have

Interest Theories

 The will theory faces serious problems in explaining many rights that most believe there
are.

 Yet where the will theory falters, the interest theory flourishes.

 The interest theory holds that the single function of

 rights is to further their holders’ interests.

 More specifically, rights are those incidents whose purpose is to promote the well-being
of the rightholder.

 As MacCormick puts it, “The essential feature of rules which confer rights is that they
have as a specific aim the protection or advancement of individual interests or goods.”

 The interest theory is not committed to the implausible thesis that each right is always in
the interest of the rightholder.

 Some inheritances, for example, are more trouble than they are worth.

 Rather, the interest theory holds that the function of rights is to promote rightholders’
interests in the general case: “To ascribe to all members of a class C a right to treatment T
is to presuppose that T is, in all normal circumstances, a good for every member of C

 Since the interest theory turns on the rightholder’s interests instead of her choices, it can
recognize as rights unwaivable claims such as the claims against enslavement and torture.

 The interest theory also has no trouble viewing children and incompetent adults as
rightholders, since children and incompetent adults have interests that rights can protect

 Finally, the interest theory can acknowledge that individuals may be better off having the
power to make choices, and so can embrace many of the rights central to the will theory.

 The appeal of the interest theory emanates from the wide range of rights that it can
endorse, and from the evident fact that having rights can make a life go better
Critique

 Yet the interest theory is also inadequate to our ordinary understanding of rights.

 There are many rights the purpose of which is not to further the well-being of the
rightholder, even in the general case.

 This is clearest with rights that define occupational roles.

 A judge has a (power) right to sentence criminals, but this right is not designed to benefit
the judge

 Rather, judges are ascribed this right as part of a system of justice that protects the
members of the community.

 A traffic warden has a (power) right to issue parking tickets; but the point of this right is
to improve the lives of motorists, not the life of the warden.

 Similarly, an army captain may have the (power) right to order units, including his own,
into battle; yet the specific aim of the rule that confers this right is not to further the
captain’s well-being.

 In each of these cases the right is ascribed in order to benefit parties beside the
rightholder.

 The existence of such role defining rights establishes that the interest theory is
implausibly narrow.

c) Conflicts between Rights

 The literature on rights includes three prominent views: the specification approach, the
prima facie theory,
i. Specificationist View

 Specificationists insist that rights are absolute, deny they are universally general, and
therefore resolve the conflict by denying the existence of the second right.

 Often a specificationist conceives of a right as being a single advantage that holds

absolutely over all second parties except in cases enumerated in the right's disjunctive list
of exceptive clauses.

 The Prima facie theorists claim that rights are universal in generality but lack
absoluteness.

 This approach entails that a right has universal applicability but is liable to being
overridden in certain circumstances.
 According to specificationist views, there ultimately is no conflict of rights.

 What initially appear to be conflicting rights of Ben and Jerry, say, are actually cases in
which at most one has the relevant right and the other does not.

 The reason no actual conflict occurs where general rights seem to overlap is because
these rights actually involve implicit "unless" clauses that specify exceptions to their
general claims.

 "The right to life," for instance, refers neither to an exceptionless and absolute right nor to
an exceptionless non-absolute right, but to a right which holds absolutely just in case
none of its exceptive clause

 For example, specificationism stipulates that my right to life involves an absolute right
not to be killed unless I am threatening someone else's life, or unless I commit a capital
offense

 The salient point is that, if a right is understood as an advantage against another, the
relative position of the two parties is what is crucial.

 To see the problem of apparent rights conflicts, consider the now standard example
described by Joel Feinberg. He writes:

 Suppose that you are on a backpacking trip in the high mountain country when an
unanticipated blizzard strikes the area with such ferocity that your life is imperiled.
Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the
winter, clearly property. You smash in a window, enter, and huddle in a corner for three
days until the storm abates. During this period you help yourself to your unknown
benefactor's food supply and burn his wooden furniture in the fireplace to keep warm.
Surely you are justified in doing all these things, and yet you have infringed the clear
rights of another person.

 Although it might seem at first blush to be a conflict between the right of the hiker and
that of the cabin owner, further consideration shows that this cannot be so.

 Since the cabin owner has a property right regarding her cabin, and since a right must, by
definition, be both general and absolute, it follows that the hiker may not permissibly
enter the cabin and thus has no right to do so."

 For instance, Feinberg would analyze the cabin example in the following manner.

 The fact that the cabin owner bought, traded for, or was given the cabin provides reasons
for her moral dominion over the cabin.
 We cannot know if her claim constitutes a right, however, until it is weighed against
competing claims.

 Only if the reasons supporting the cabin owner's claim outweigh the reasons supporting
conflicting claims is the cabin owner's claim a valid claim and her position a right against
the competing claims.

 Consider the ideas of tallness and height advantage.

 At seven feet and four inches tall, Ralph Sampson is extremely tall and has a height
advantage over almost everyone.

 However, we cannot say, absolutely and generally, that Sampson has a height advantage
over all others without first assessing everyone else's height.

 Manute Bol, for instance, is a seven foot and six-inch-tall man over whom Sampson has
no height advantage.

 Rather than claim that Sampson has a prima facie height advantage over all others (and
then stipulate that this prima facie advantage is overridden - yet continues to exist - by
Bol's height), we specify that Sampson has a height advantage against some but not
others.

Critique

 Rights are commonly understood as general and absolute, but this pre-theoretic
conception leads directly to the contradiction of rights conflict; if they are general then
they must conflict, and if they conflict, they cannot be absolute.
 The most popular reason for dispreferring specificationist views is their lack of
explanatory power.
 Judith Jarvis Thomson, for instance, has complained that the specificationist approach
explains neither the deontic status of actions nor the need for compensation when rights
are putatively infringed but not violated
ii. Prima facie

 The prima facie theory alleges that a right is an advantage that exists "on the face of
things" but may be outweighed by competing concerns.

 The striking feature of this view is that it posits the continued existence of a right despite
permissible infringements thereof

 In Feinberg's cabin scenario, for instance, the prima facie theorist would allege that the
cabin owner has a right that the hiker not enter the cabin despite the permissibility of the
hiker doing so; the entry's permissibility simply signals that the right has been
outweighed or overridden in this particular situation.
 The prima facie view itself cannot establish the deontic status of a particular action.

 This is because a prima facie right does not conclusively show that an action is morally
impermissible since the non-absoluteness of this right allows it to be overridden by other
moral reasons.

 Again in terms of the cabin example, A's prima facie property right does not establish the
overall impermissibility of B entering the cabin since that prima facie right may be
overridden.

iii. Feinberg’s view

 For instance, Feinberg would analyze the cabin example in the following manner.

 The fact that the cabin owner bought, traded for, or was given the cabin provides reasons
for her moral dominion over the cabin.

 We cannot know if her claim constitutes a right, however, until it is weighed against
competing claims.

 Only if the reasons supporting the cabin owner's claim outweigh the reasons supporting
conflicting claims is the cabin owner's claim a valid claim and her position a right against
the competing claims.

d) Rights as Trumps
 Ronald Dworkin develops his idea of rights as trumps.
 His main idea is that there are some moral rights against Government.
 According to him, not all Constitutional rights represent such moral rights, “but those
Constitutional rights that we call fundamental like the right of free speech, are supposed
to represent rights against the Government in the strong sense; that is the point of the
boast that our legal system respects the fundamental rights of the citizen
 This means that governments would do wrong to repeal such fundamental rights, even if
they were persuaded that the majority would be better off that way
 Certain interests of individuals are so important that it would be wrong for the
community “to sacrifice those interests just to secure an overall benefit”
 Some rights, which can be called political or fundamental rights, “mark off and protect”
these important individual interests.
 Such a right “is a trump over the kind of trade-off argument that normally justifies
political action
 The moral intuition behind this view seems to be that some individual liberties are so
important that they cannot simply be disregarded on consequentialist grounds, even if the
majority agrees to do so.
 In one sense, therefore, we are talking about a form of the “priority of the right over the
good
 In Justice for Hedgehogs, the last book by Dworkin published in his lifetime, he
maintains his core ideas saying that “policy is normally justified, for instance, if it would
make the community safer by reducing violent crime: that is a good all-things considered
justification for increasing taxes to pay for more police”
 The point of having trumps, on Dworkin’s account, is precisely that they are not subject
to being weighed.
 If the relevance of fundamental rights can be weighed at every new upcoming factual
scenario and like any other social interest, then balancing “is a confusion that threatens to
destroy the concept of individual rights”
 For him, balancing is a confusion because it allegedly involves the competing rights of
the individual and demands of society which means it ultimately relies on an error
 Trumps are rights in a strong sense and that can only be said of certain fundamental and
individual rights against Government, not of social and collective interests.
 In other words, once a certain priority in favour of a right is established and the
Government defines it as fundamental, society should bear the collective costs that arise
from it
 On this view,“[i]t cannot be an argument for curtailing a right, once granted, simply that
society would pay a further price for extending it
 There must be something special about the cost that generates the restriction or limitation
of a fundamental right, “or there must be some other feature of the case, that makes it
sensible to say that although great social cost is warranted to protect the original right,
this particular cost is not necessary”
 The question that appears to emerge is what exceptions does trumping admit? In other
words, what possible justifications, if any, may warrant the restriction or limitation of a
trump?

Excepting Trumps

 Although a fundamental right trumps most welfare and consequentialist considerations, it

does not mean, according to Dworkin himself, “that the State is never justified in
overriding that right”

 Someone might say the Government may override the right to free speech, for example,
“when necessary to protect the rights of others, or to prevent a catastrophe, or even to
obtain a clear and major public benefit (though if he acknowledged this last as a possible
justification he would be treating the right in question as not among the most important or
fundamental).

 What he cannot do is say that the Government is justified in overriding a right on the
minimal grounds that would be sufficient if no such right existed
 In Taking Rights Seriously, Dworkin mentions “the only three sorts of grounds that can
consistently be used to limit the definition of a particular right.” Government might show,
for instance, that

(1) the values encompassed by the original right are not really at stake, or that they are at
stake in some attenuated form

 It could also point out that

(2) “if the right were so defined, then the cost to society would not be simply
incremental, but would be of a degree far beyond the cost paid to grant the original right,
a degree great enough to justify whatever assault on dignity or equality might be involved