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All you need to know about Rights!

• Locke: all human beings have rights, regardless of their nationality, creed, class,
fender or age.

• These natural rights are pre-society and are an addition to any legal rights that a
society may grant us.

• Paine: ‘natural law and right reason… are accessible to all rations persons’.

• So, with our God-given reason, we can divine the purpose and law governing each
living thing.

• This reveals that humans are sovereign by nature and possess freedom and integrity.

• Therefore these qualities must be respected by universal rights.

• Burke: (conservatism) favoured gradual evolution of society with an ‘insuperable

reluctance to any established system of government, upon theory’.

• Generalisations about theoretical rights are meaningless.

• Liberty may be a good or bad thing depending on context. ‘Am I to congratulate the
highwayman and a murderer, who has broken prison, upon the recovery of his natural

• Natural rights cannot trump good government.

• Experience over the generations about which freedoms are valuable should have
precedence over abstract theories of liberty.

• We should test rights empirically and pay direct attention to the lessons of history.

• We can have too much freedom. Too much faith in individuals and too idealistic plans
for Utopia.

• The rights we grant each other should only be inherited rights.

What are rights?

• They give special justifications for interfering with another’s freedom. E.g. Right to
prohibit trespassers on your land.

• They provide a justification to resist interference or coercion. E.g. the right to resist
and arranged marriage.

• They offer control and autonomy over our lives and limit the power of others.

• Hohfield- Four legal advantages of having rights:

o Liberties: which mean I do not have to refrain from an action.

o Claims on others to perform duties.

o Powers, which permit me to alter other people’s liberties and duties.

o Immunities, which limit the power of others to interfere with my beliefs and

The distinction between natural and positive rights

• The utilitarian argument denies natural rights.

• However, moral rights should guide legislation.

Natural rights

• A natural right is:

1. God given/ constitutive of what it is to be a human.

2. Pre-social

3. Universal and possessed by all human beings.

4. Absolute and trumps other (moral) considerations.

5. Inalienable- cannot be taken away.

• They are independent of any law and any country.

• They can ground the law and are used as a measure of whether a law is just or not.

• They provide a justification for challenging the law.

• Locke: This was a reason for rebellion against tyrannous government.

• Locke’s classical exposition of natural rights is a state of perfect freedom to dispose

of their possessions and persons as they think fit. It is a state of equality… without
subordination or subjection.

• His supporting arguments are:

1. Because we are ‘God’s workmanship’, no-one should harm another in his life,
health liberty or possessions. (Even without religious reference, it can still be
argued that human beings are valuable in themselves, ‘a kingdom of ends’

2. This gives us a right to punish ‘evil’ as ‘reason and conscience dictates.’ As

we can reason this allows us to punish our fellow countrymen and foreigners
who behave irrationally and immorally.

3. Rational morality implies a form of universalisation, that all people are born
equal and bound by moral law. ‘Unjust violence and slaughter’ is a ‘war
against all mankind’.

4. Free and equal persons can expect a balance in the scales of justice.

• Therefore we have natural rights to life, health, liberty, possessions, justice, and
equality and to punish, all founded on moral and religious premises.

Human Rights

• Rights independent of religious beliefs are called human rights.

• These rights protect what is fundamental and integral to being a human.

• These qualities include autonomy and may also refer to:

o Self-awareness and a sense of identity

o A sense of past and future interests

o Self-control

o The need and ability to form relationships

o Communication skill and a developed language

o Rationality

• Rights are awarded to those that conceive of themselves as distinct entities.

• Law must contain at least a minimum of moral law.


• Natural or human rights protect individuals all over the world from tyranny and abuse.

• Even though many rights are legal rights, human rights can provide a framework for
regulating behaviour between countries.

• Natural laws face atheistic criticism.

• There are many different versions of human nature, or there may not even be a human

• Even if we did agree on human essence there is a logical gap between fact and value.

• Just because humans desire happiness and can reason, it does not mean happiness is
desirable or that we should act rationally.

Criticism of Locke

• If everything is God’s workmanship then we would not be able to kill even small
insects or bacteria.

• To treat human beings as unique or special is to assign a value to a species.

• Satre mocks this view: ‘only a dog or a horse would be in a position to pronounce a
general judgement upon man.’

• Hobbes: Reason only the faculty of calculating: ‘reason is reckoning’. It cannot

discern universal, moral absolutes.

• People are not born equal in any factual sense.

• Rights are not possessed but conferred and granted by others.

• Rights must be a product of society rather than pre-social.

• Thus different rights have evolved in different cultures.

Marxist criticism of rights

• Rights are a product of socio-economic conditions, so ideological.

• Rights to property are justified by Locke on the grounds that if one man works the
land, one deserves to own it and ‘exclude the common right of other men.’

• There is no logical connection between working the land and excluding others.

• Marx would point out that that the land could be under communal ownership.

• With ‘the concentration of private property,’ the working class ‘never achieved an
independent development.’

• Political rights are only ever in theory.

• The poor can rarely exercise rights because of a lack of economic freedom.

• The cost of court means poor people cannot access the right to equal justice.

• (However Locke does argue that there should be no wastage and that everybody has
an equal opportunity to acquire land.)

• Marx argues that rights leave problems about the divisions of labour, private property
and class intact.

• E.g. the right to the minimum wage does not deal with the conditions which cause the

• Rights overemphasise individuality at the expense of unity and solidarity.

• Rights cause people to see each other as a threat rather than promote comradeship.
• Hart: If human beings enter a moral relationship than at least one natural right is
granted, the equal right to be free.

• The notion of human solidarity involves moral relationships, and endorses the right to
equal freedom.

• Therefore it is questionable whether Marx can escape the value of rights.

Rights and utilitarianism

• Bentham: natural rights are ‘nonsense of stilts’

• Rights are granted by society and cannot be based on metaphysical or fictitious social

• Rights are granted by society as a product of debate and legislation.

• There are moral rights, however, which were determined by the principle of utility
and the law ought to protect them.

• Mill: dismisses the notion of ‘an abstract right as a thing independent of utility.’

• Rights to a utilitarian are concerned with rights-based interests, which maximise well-

• Humans have interests which need to be protected.

• E.g. Protection from harm.

• My rights are those important interests, which if socially protected, maximise utility.

• It is utility which constrains others from acting against my rights.

• Utilitarian right to freedom of speech is:

o In the interests of the individual, as self-expression develops originality and

appreciation of the truth.

o Recognising individual rights leads to social progress.

• Issue for utilitarian’s: could people’s rights be removed if it created greater social
Rights and social utility

• Goal of utilitarian’s: the wellbeing of the majority.

• Individual rights are often sacrificed for the greater good.

Evaluation of utilitarian rights

• Even the though utilitarian rights uphold the happiness for the greatest number of
people, it is the judging of rights on their consequences which is at fault.

• Rights are deontological (utilitarian rights = teleological) and are based on principles
surrounding the value and respect according to each human.

• This means that all people should have the right to be equal and free, even if social
utility is not obtained.

• Two key problem utilitarian rights:

o Rights based on utility are not inalienable.

o Rights are deontologically valid and do not depend on consequences or utility.

• Mill defends utilitarian rights on the grounds that they are essential to progressive
human beings.

Positive rights

• Positive rights, here, refer to legal positivism.

• Rights are therefore simply created by laws which are an expression of the will of the
sovereign power.
• Just because there are legal rights, it does not make them moral.

• E.g. A man could legally rape his own wife until 1992.

Rights, morality and law

• The relationship between rights, morality and law is argued:

o Either legal rights must conform to higher, natural law, or

o Legal rights must respect human rights, which are determined by utility and/or
moral rights, or

o There are only rights created by law, which may be considered just/unjust

• It is difficult to establish any natural law or moral basis for unquestionable rights.
(Unless we accept all men have an equal right to freedom.)

• There is no automatic link between rights and utility.