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Theories of Rights

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Title: Theories of Rights


1
Theories of Rights
  • Mian Ali Haider L.L.B., L.L.M (Cum Laude)
  • U.K.

2
INTRODUCTION
  • Modern human rights discourse has done much to
    advance equality, expand liberty and curb the
    excesses of government.
  • As such, rights discourse frames many public
    debates. To raise just one example, far-right
    American conservatives insist that the state must
    have the right to torture terror suspects when in
    pursuit of high security objectives.
  • Liberals object that torture violates victims
    rights to bodily integrity and dignity together
    with the right to be presumed innocent until
    proven guilty.
  • What are the limits of rights and when can we
    abridge them? The answers lie in an analysis of
    differing theories of rights.
  • We shall focus on four school of thoughts likely
    to be familiar to most law students.

3
THEORIES OF RIGHTS
  • The Natural Law School
  • The Utilitarian School
  • The Deliberative
  • The Protest School
  • The Discourse School
  • The Fundamental Legal Conception

4
The Natural Law School
  • A number of times throughout history, tyranny has
    stimulated breakthrough thinking about liberty.
  • This was certainly the case in England with the
    mid-seventeenth-century era of repression,
    rebellion, and civil war.
  • There was a tremendous outpouring of political
    pamphlets and tracts. By far the most influential
    writings emerged from the pen of scholar John
    Locke

5
The Natural Law School
  • He expressed the radical view that government is
    morally obliged to serve people, namely by
    protecting life, liberty, and property.
  • He explained the principle of checks and balances
    to limit government power.
  • He favored representative government and a rule
    of law. He denounced tyranny.
  • He insisted that when government violates
    individual rights, people may legitimately rebel.

6
The Natural Law School
  • These views were most fully developed in Lockes
    famous Second Treatise Concerning Civil
    Government, and they were so radical that he
    never dared sign his name to it.
  • He acknowledged authorship only in his will.
    Lockes writings did much to inspire the
    libertarian ideals of the American Revolution.
  • This, in turn, set an example which inspired
    people throughout Europe, Latin America, and Asia.

7
The Natural Law School
  • Thomas Jefferson ranked Locke, along with Lockes
    compatriot Algernon Sidney, as the most important
    thinkers on liberty.
  • Locke helped inspire Thomas Paines radical ideas
    about revolution. Locke fired up George Mason.
    From Locke, James Madison drew his most
    fundamental principles of liberty and government.
  • Lockes writings were part of Benjamin Franklins
    self-education, and John Adams believed that both
    girls and boys should learn about Locke. The
    French philosopher Voltaire called Locke the man
    of the greatest wisdom. What he has not seen
    clearly, I despair of ever seeing.

8
The Natural Law School
  • Jack Donnelly is labelled as a natural law
    theoretician, but he does not give a
    comprehensive moral foundation to human rights.
    He thinks that it is an impossible, or even
    meaningless task.
  • I therefore suggest that the attempt to provide
    a direct philosophical justification of any
    particular list of human rights is not likely to
    be of great interest except perhaps to those
    who already accept it or value (Donnelly,
    1989 22).

9
The Natural Law School
  • He separates human rights qua moral rights from
    the legal laws, claiming that a purely legal
    understanding of human rights is too narrow.
  • Human rights as moral norms are higher than
    positive laws.
  • When all else is done or has been tried, one
    claims human rights.
  • Human rights are fundamentally moral, according
    to Donnelly.
  • He also argues however that they should be
    implemented in national laws.
  • Human rights entail strong claims to achieve
    change and improvements, and they achieve change
    more efficiently when they are codified as laws.
  • Human rights are practical at one level, but they
    are also the highest moral principles which we
    can invoke

10
The Natural Law School
  • Donnelly refers to human nature, but although
    he sees human rights as derived from this nature,
    he is unwilling to present a theory about human
    nature.
  • Human nature will be integrated in social
    contexts, and it seems difficult or impossible to
    separate what is nature from what is social.
  • Humans are embedded in culture and being a human
    being is by nature to be cultural.
  • This makes the definition of what is nature and
    what is culture very complicated.
  • Human nature is thus a social project as much as
    it is given

11
The Natural Law School
  • Because agreements on this subject are not
    attainable, he abstains from any attempt to give
    a theory of human nature.
  • Human rights are given a universal validity based
    on human dignity and contingent human nature.
    When it is looked at more closely, this dignity
    is relative to context.
  • Donnelly is a universalist, but he grants culture
    or context a decisive role. This is a dialectic
    where the universal is generated by the
    contingent.
  • Human rights are results of special historical
    developments the universal is the result of a
    concrete historical process. All human rights
    are embedded in a social context.
  • This also means that human rights , must be open
    for yet further development and change.

12
The Natural Law School
  • Our list of human rights has evolved and
    expanded, and will continue to do so, in response
    to such factors as changing ideas of human
    dignity, the rise of new political forces
    (Donnelly, 1989 26).
  • The relationship between human nature, human
    rights, and political society is therefore
    dialectical. Human rights shape political
    society, so as to shape human beings, so as to
    realize the possibilities of human nature, which
    provided the basis for these rights in the first
    place (Donnelly, 1989 19).
  • Critique (Relatively Universal , Human
    Dignity)

13
The Utilitarian School
  • In the spring of 1776, in his first substantial
    (though anonymous) publication, A Fragment on
    Government, Jeremy Bentham invoked what he
    described as a
  • fundamental axiom, it is the greatest happiness
    of the greatest number that is the measure of
    right and wrong.

14
The Utilitarian School
  • For the utilitarian, the just action is that
    which, relative to all other possible actions,
    maximises utility or the good (defining the
    good is the subject of philosophical conjecture
    and beyond our scope here).
  • Utilitarianism is exclusively consequentialist
    the justice or injustice of an action or state of
    affairs is determined exclusively by the
    consequences it brings about.
  • If an action maximises utility, it is just. On
    this account, therefore, rights are purely
    instrumental.
  • It is also worth noting that many in the
    utilitarian tradition have expressed hostility to
    the notion of rights of any sort.
  • The utilitarian will honour a right if and only
    if it will lead to the maximisation of utility.

15
The Utilitarian School
  • This statement also indicates the limits of all
    rights. If the exercise of a particular will not
    maximise utility, the utilitarian is obligated to
    violate that persons rights for the sake of
    utility.
  • PRINCIPLE OF UTILITY
  • Nature has placed mankind under the governance of
    two sovereign masters, pain and pleasure.
  • It is for them alone to point out what we ought
    to do, as well as to determine what we shall do.
  • On the one hand the standard of right and wrong,
    on the other the chain of causes and effects, are
    fastened to their throne.
  • They govern us in all we do, in all we say, in
    all we think every effort we can make to throw
    off our subjection, will serve but to demonstrate
    and confirm it . . .

16
The Deliberative School
  • Two of the main proponents of this type of
    political philosophy are Jürgen Habermas and John
    Rawls, both of whom put forward theories rooted
    in political liberalism and influenced by
    Kantianism.
  • Habermas is a German and European and Rawls an
    American writing from the context of USA

17
The Deliberative School
  • According to some, the most influential in the
    human rights discourse.
  • These are political, normative theories,
    influential both as political theories and as
    theories about human rights.
  • These approaches are interested primarily in
    procedure how consensus can be achieved on
    normative matters which concerns society as a
    whole.
  • Dialogues or deliberations play a key role in
    this procedure. The school could also have been
    called consensus, because a main goal of the
    project is to reach agreement on basic normative
    issues.
  • These approaches are not directly concerned with
    human rights, but with an infrastructure which
    gives human rights their foundation and
    legitimation

18
The Deliberative School
  • One of the main reasons why dialogue becomes
    central relates to pluralism in societies.
  • In this school, diversity is a condition which
    requires particular attention, and it is the
    school which most directly engages with the issue
    of diversity.
  • It develops procedures to solve normative matters
    for societies containing wide-ranging or
    conflicting value positions.

19
The Protest School
  • Dembour who coined this label, and she gives the
    following definition of the protest school
  • Human rights represent a perpetual calling, an
    ideal that can never fully be achieved.
  • Human rights are not about entitlements, but
    about claims and aspirations.
  • Protests scholars firmly believe that human
    rights are
  • (a) are moral,
  • (b) must be raised when they are not socially
    recognized,
  • (c) should concern every human being, especially
    those who are forgotten
  • (Dembour, 2006 245).

20
The Protest School
  • Another label might have been the struggle
    school.
  • Many theoreticians understand human rights from a
    perspective of struggle, not at least historians
    and sociologists such as Hunt (2007) and Lauren
    (1998).
  • Human rights are understood to have their origin
    in struggles, and they will also remain in a
    struggle, in a continual fight, because of their
    challenging messages and demands.
  • These claims will be fought for inside and
    outside the traditional human rights forums
  • The struggle for human rights needs to continue
    both within and beyond the legal debates and the
    corridors of international organizations
  • (Ishay, 2004 354).

21
The Discourse School
  • This is probably the most controversial of the
    schools, and some may even see it as a threat to
    human rights.
  • It is on the margins of the overall human rights
    discourse, but there are several spokespersons
    from different fields of knowledge who take these
    theoretical positions.
  • We find them in postcolonial, anthropological,
    Marxist, feminist, critical whiteness and
    postmodern theories. They have different horizons
    and agendas.
  • for the truth is plain, there are no such
    rights, and belief in them is one with belief in
    witches and in unicorns (MacIntyre, 1985
    69).

22
The Discourse School
  • This school is interested in the implications of
    human rights
  • what do human rights do? How to ground them?
  • How to realize them? How human rights are used?
  • What the consequence of human rights are? What do
    they imply?
  • The concept of discourse in this school is
    different from Habermas
  • For Habermas it means the normative dialogue,
    here it is the whole use of human rights that is
    the discourse. Some will call this a postmodern
    way of using the concept

23
The Discourse School
  • One of the issues on which this approach differs
    from the previous schools is in relation to
    foundations of human rights
  • to find a firm foundation for individual rights
    is much more difficult than to claim that we have
    human rights (Arslan, 1999 200)
  • Talal Asad.

24
The Fundamental Legal Conception
  • Wesely Hohfeld explained the theories of right in
    fundamental legal conceptions
  • The Comprehensiveness of Hohdeldian Relations

RIGHT LIBERTY POWER IMMUNITY
DUTY NO-RIGHT LIABILITY DISABILITY
25
RIGHT??DUTY
  • The holder of a right is normatively protected
    (with the backing of the state, if necessary)
    against the interference or uncooperativeness of
    one or more other people.
  • Anyone vis-a-vis whom the right obtains is under
    a duty to comply with its terms, whether the
    terms call for noninterference or for assistance.

26
LIBERTY??NO-RIGHT.
  • The holder of a liberty is free of any duty to
    some other person(s), with regard to the act or
    omission or state of affairs covered by the
    liberty.
  • Everyone vis-à-vis whom the liberty is held has
    no right that would limit the liberty-holder's
    freedom in the area of conduct covered by the
    liberty, though everyone may well have a liberty
    to interfere with the exercise of that freedom.
  • A liberty can be surrounded by a perimeter of
    rights, which serve to protect ones ability to
    exercise the liberty (as Bentham, Hart, and
    Hillel Steiner have recognized).

27
POWERS??LIABILITIES.
  • The holder of a power can change or cancel other
    people's entitlements and his own entitlements.
  • The bearer of a liability is exposed to
    amplifications or shifts or reductions in his or
    her entitlements.

28
IMMUNITIES??DISABILITIES.
  • The holder of an immunity is not exposed to the
    exercise of a power within the domain covered by
    the immunity.
  • In that domain, everyone vis-a-vis whom the
    immunity obtains is disabled from changing the
    immunity holder's entitlements.
  • Most of the entitlements conferred by so-called
    bills of rights are immunities.
  • Immunities must accompany other entitlements to
    prevent them from being meaninglessly hollow.

29
Natural School
Protest School
Human rights are universal, something natural or
given. An individual has human rights in the
capacity of being born as a human being. HR
Orthodoxy
Human rights are potentially universal, claims
and aspirations. Human rights originate from
social struggles. HR Evangelism
LIBERALISM
SOCIALISM
Deliberative School
Discourse School
Human rights only exist through law and are based
on consensus. They provide good grounds for
deliberation, a way of managing the political
sphere. HR Atheism
Human rights only exist because they are talked
about. The reality of language is very strong,
but allows for consumerism of human
rights. HR Nihilism
Dembours Matrix
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