There are essentially two schools of thought as to where human rights are derived from.

On the one hand, the ‘natural law’ school believes that human rights are derived from

natural law; they are rights which people enjoy simply by virtue of being human. On

the other, the ‘legal positivist’ school holds that rights are derived from legal systems;

they are conferred by positive laws.

16.2 It is important to appreciate that human rights and civil liberties are extremely closely

related. In some cases, it may be difficult to distinguish one from another, to identify

where one ends and the other begins. The closeness of this relationship is further evidenced by the fact
that the terms are often used interchangeably, implying that they are

synonymous. However, is it possible to distinguish between a ‘right’ and a ‘liberty’?

16.3 There have been many attempts to analyze what we mean by ‘rights’ and ‘liberties’. In

the case of a ‘right’, it is acknowledged that we may distinguish between a right which

is moral and a right which is legal. Moreover, as Dworkin has noted in Taking Rights

Seriously (1977), by asserting that one has a ‘right’ to do something, we are using the

word ‘right’ in a stronger sense than if we were to observe that a particular course of

action was the ‘right’ thing to do. Th e variety of meanings which lawyers may ascribe

to the word ‘right’ have been analysed by Hohfeld. He contends that when we talk of a

378 Freedoms and liberties in the UK

‘right’, we may mean: right or claim; privilege; power; or immunity. For Hohfeld, the

essential characteristic of a ‘right’ or ‘claim’ is that it imposes a duty on another. He

underlines the point with the aid of an example. A person who owns land has a right

to exclude others from entering that land. Th ose who are thereby excluded are under a

corresponding duty not to enter that land. In the Hohfeldian analysis, this is the only

proper use of the word ‘right’.

16.4 The e concepts of ‘power’ or ‘immunity’ need not detain us further. For present purposes, it is
‘privilege’ which is of interest. Th is is because in Hohfeld’s analysis, a
privilege amounts to a freedom to do something, the exercise of which cannot be

prevented by another because they do not have the right to do so. It diff ers from a

right because there is no corresponding duty on another to act or refrain from acting.

In this sense, therefore, it may be argued that Hohfeld’s ‘privilege’ closely resembles

a ‘liberty’.

16.5 In the light of this, it may be possible to distinguish between ‘rights’ and ‘liberties’

on the basis that rights are of a more fundamental nature than liberties. Th ey impose

duties on others rather than merely requiring that they are not interfered with. Th us

when we talk of the ‘right to life’, we are concerned with a fundamental human right

which imposes a duty on others not to take that life away. It may be argued, therefore,

that respect for human rights demands more of the individual and society as a whole

than does respect for civil liberties.

16.6 Th e suggestion made in the previous paragraph is necessarily tentative. It may be possible to
distinguish between human rights and civil liberties, but it is by no means

certain that this is the case. What is clear is that English courts and lawyers have traditionally talked in
terms of liberties and freedoms rather than human rights when faced

with claims that the ‘rights’ of the individual have been infringed. Th is thinking is in

the process of evolution given the enactment of the Human Rights Act 1998.