In order to address the question properly this essay is going to consist of five differnet parts. First we are going to look at the philosophy of rights, then we are going to consider the way rights have been developed in the last century and the ever growing problem of confliction between different rights.This will be followed by a discussion about the theory of special rights. In conclusion we are going to look at some case studies citing the need for greater protection for certain groups of people.
Philosophy of Rights
The Concise Oxford Dictionary defines a right as including “a thing one may legally or morally claim; the state of being entitled to a privilege or immunity or authority to act.”1 This definition recognises the fundamental distinction between legal and moral rights; a legal right will arises when there is a legal rule prescribing a certain mode of beahavior, that restriction could be either positive or negative. Positive in the sense that it imposes, a legal duty on another party to fulfil an entitlement or negative in the sense, that it disallows certain kind of beahavior. Moral rights need not be enforceable at law, and hence their existence is much harder to prove.
Moral rights can be further divided into deontological and teleological variants, Deontological liberals believe that human beings are born with “natural” moral rights. Natural rights derive their name from John Locke’s intuition that certain rights vest in human beings simply by virtue of their having been born into a free state of nature.2 Immanuel Kant further elaborated this notion by looking at it from a social perspective, his theory was that human beings automatically deserve to be treated with equal dignity, and that this justifies the imposition on others a duty to respect that dignity.3
Similar justifications to those of Locke and Kant have become the basis of almost all subsequent deontological theories of rights. However few other jurists have proposed alternative bases for natural rights ,out of them Ronald Dworkin’s is perhaps the most notable.4 However Dworkin himself acknowledges that his is not a complete theory of moral rights, merely one which is necessary to preserve the practical coherency of utilitarianism.5 Thus to this day, there is no generally accepted basis for natural rights more concrete than the intuition that human beings ought to possess them.
Natural rights have met with a change of nomenclature since the time of Locke and Kant, with the rise of secular legal realism it has become untenable to justify moral decisions by appeal to the pre-moral natural order. To accept the realist view, as most jurists do, entails the recognition that natural rights are only as natural as the moral attitudes implicit in liberalism. For this reason the term “autonomy rights”6 instead of “natural rights”, has been commonly adapted by most jurists because doing so acknowledges a common formulation for the basis of such rights – the individual’s moral interest in leading an autonomous life.
There is school of thought (Teological Liberals) that does not believe in either natural or autonomy rights, they bealive that the develpoment of rights is an instrumental process. Moral rights will arise whenever the operation of a posited moral principle justifies the protection of recognised interests. The most common such principle, of course, is utilitarianism, and so these rights are conveniently refered to as “utility rights”. An example is the right to private property, which has been justified because it encourages effecient investment decisions.
A question which has not yet been addressed is, what exactly is this notion of autonomy which rights are designed to protect? Formulations differ; some authors couch it in the language of liberty,8 and others in the language of equality. The preferable view seems to be that these are merely differences of form.9 Autonomy is a way a measure of liberty in the sense that it is prerequisite to one’s ability to pursue one’s own conception of the good life.10 However it is also a fundamental liberal principle that the opportunity to seek one’s own good can be accorded equally to every human being, and in this sense the protection of individual autonomy promotes formal equality.
Development of rights
In the last few centuries we have seen an explosion of rights. “Human rights” seem to have multiplied endlessly. Each individual is asserted to have a right to welfare, a right to self-esteem, a right to health care, creating a new breed of “positive” rights to be provided with things. Unfortunately, these rights often conflict with the older human rights that classical liberals like John Staurt Mills had fought for: the rights to life, liberty, and property (or the “pursuit of happiness”). Such classical liberal “negative” rights do not conflict with each other, whereas “positive” rights do. If my “right to health care” conflicts with a doctor’s “right to periodic holiday,” which one wins out? Will the doctor be forced to do some thing that denies him his right?
As rights have increased and, increasingly, clashed with one another, traditional rights theory has been robbed of its very essence. The traditional liberal notion of rights run parallel to each other and therefore can never clash. The point of rights is to guide each indiviual as to which actions are permissible in order to avoid conflicts among individuals or groups and to allow each person his freedom to exist without unde influence from another.
This recent development means that the word “right” has become a mere synonym for interest or benefit: whenever something is in my interest (say, receiving job seekers allowance or maternity leave), then I can claim a “right” to it. But as interests can conflict, rights-as-synonyms-for-interests can conflict as well11.
The question now arises, by what standards do we decide which right to sanction and which to prohibit? Conflicting claims are only settled when one party will yield to persuasion or force. This is a fundamental choice in human relationships–voluntary cooperation or forced cooperation.
An extreme example of forced cooperation: Nazi Germany claims that Jews are to be kept in concentration camps. German officers forced Jews at gunpoint onto trains destined for prison camps. Individual Jews had two options–comply with the Germans or resist and be shot.
A common example of forced cooperation: A Robber decides taking money from the local newsagent is easier than getting a job there. He could walk inside and try to persuade the Clerk to turn over the money in the cash register, but the Robber is smart. He brings a gun. Likewise, the Clerk can try to persuade Robber that he lacks a right to the store’s money. But Collin is smart. He has a gun under the counter.
In situations like these one party must yield, or both parties must collide. But given a situation, and given a choice, who should we support? Who has a right to what? It is crucial to know why we would support a particular side in these situations. Only then can we say who actually has a right to their claim. Only then can we decide in situations where it is less clear who we should support. We must make a decision on the principles that will determine why in some cases we sanction claims that people assert and call those claims rights. We must also determine specifically why in other cases we don’t sanction claims that people assert and call those claims crimes.
When people claim rights, the basic issue at stake is contained in the following principle: Every man has a property in his own person. Coming from the political philosophy of John Locke12, this principle is an important starting point. Who owns you? Locke’s answer to that basic question is that you own you. Again we have a conflict if every one has a right in himself then what is to stop a drug addict from using drugs or a prostitute from selling her body. The best answer to this dilemma is presented by Joseph Raz ” X has a right” if and only if X can have rights, and, other things being equal, an aspect of X’s well being is a sufficient reason for holding some other person(s) under a duty.
Now that we have looked at the origin and development of rights let us look at the second part of the question. In order to ensure the full protection of human rights for everyone, it can be necessary to focus activities and action on specific groups or around specific circumstances. Persons belonging to certain particularly vulnerable groups call for special attention. In most cases these special groups are minorites, we acknoledge the rights of minorities in order to protect some of their more urgent intrests, in doing so we often go against ligitimate intrests of the majority, so in a way ethinic, cultural, reilgous,racial or sexual minorities end up with rights which are rights against a majority13.
When we talk about minority rights, wehter in morality or in law, we may have in mind one of two things. The first being that rights that we have even when when we are in minority. The rights of liberals to organise politicaly , or of lesbain women to sexual liberty, are of this sort. The fact that these groups have the right to enjoy their chosen way of life does not neceserally derive from membership in a social group, it drives from a urgent, but indiviuated interest. The freedom of political association or sexual liberty are valuable in parts because they form an important part of social interaction, but they are indivituated interests in as much as the indiviual’s stake is init self a sufficient enough reason to hold others duty bound. These intrests command respect without reinforcement of numbers14.
In contrast, the second sort of rights is one that people only because they are members of a certain minority group. The rights of indians to have self governed reservations is one example; the value of being member of a group is part of the ground of the right. Such rights exist because some of our most urgent interests lie not merely in indiviuated goods such as personal liberty and exclusive property but also in collective goods. These include things, such as clean air and national defence,that are public good in the ecomomists sense: they are inexcusable and non-rival in consumption. If they are available for some, then there is no excuse to prevent others from having it, the quantity consumed by one person does not perceptibily limit the amount available to others15.