• Home

The difficulties of interest rate theory have often been noted in Raz`s version, which is perhaps the most important. In Raz`s report, “X has a right if X can have rights, and if all other things are equal, an aspect of X`s well-being (his interest) is reason enough to keep another person under duty” (Raz 1986, 166). An overview of Hart`s theory (1973) can be given as an illustration of the first point of view. According to Hart, someone (call him “X”) can be a legitimate rights holder, mainly in two ways. First, X may have bilateral authorization to perform an act, i.e. X is authorized to both A and non-A (with certain prohibitions for others to interfere). Second, someone else may have an obligation (e.g. to pay £10) over which X has control, mainly by waiver or performance. Since X has a choice in all cases, this explains why he is called the rights holder. One of the difficulties with this type of theory is to explain our apparent reference to rights when there is no choice, for example when one not only has the right to vote, but is also legally required to do so. Philosophers have long been particularly interested in epistemic rights (Altschul 2010 (Other Internet Resources), Graham and Pedersen 2012), although there is also skepticism about this category (Glick 2010). William James, for example, calls The Will to Believe, “an essay on the justification of faith, a defense of our right to take a believing position in religious matters, despite the fact that our purely logical intellect may not have been forced.” James` “radical” conclusion in the essay is that “we have the right, at our peril, to believe any hypothesis alive enough to tempt our will” (James 1897, 2, 29).

Similarly, the deepest questions of Kant`s philosophy are formulated in relation to rights. In the Critique of Pure Reason, the transcendental deduction of categories aims to prove the validity of the use of the concepts of pure understanding. In the critique of practical reason, the deduction of freedom seeks to show our right to consider ourselves free. In both deductions, the central question is a quaestio iuris: “By what right?” Kant`s questions are: By what right do we use categories? And by what right do we consider ourselves free? More recent versions, such as those by Raz (1984a, 1984b), take a completely different approach. In their view, the assertion that X is the holder of rights means that its interests or any aspect thereof constitute sufficient grounds for imposing obligations on others, either not to interfere with X in the performance of an act or to secure it in something. Among other things, this circumvents the problem of third party rights, because the explanation is simply that it is all a question of whether the system recognizes Z`s interests as part of the reason for X and Y`s obligations or whether they are only the interests of X and Y. Raz (1997) pointed out that this does not mean that only the interests of the rightholder are relevant to determining whether any This needs to be acknowledged. as a right. General considerations or considerations of common interest may also be relevant. In addition, state-based rights are attractively strong. While justifications for instrumental rights always depend on impact calculations, status-based rights are firmly rooted in individual dignity. This makes it easy to explain why status-based rights are strong, almost unlimited rights, and it is a position that many believe correctly expresses the great value of each person.

As discussion of the relative merits of choice and utility theories has continued and increasingly sophisticated versions of the two have been proposed (see, for example, the tripartite debate in Kramer, Simmonds and Steiner 1998, Kramer 2010, Vrousalis 2010, Van Duffel 2012), some authors have attempted to propose different or combined approaches. Wenar (2005) defends what he calls a theory of “multiple functions”. Accordingly, any “Hohfeld incident” (or a combination thereof) that grants an exception, discretion or authorization, or that authorizes the owner to protect, provide or perform, is a right. However, Kramer and Steiner (2007) argue that this is really nothing more than another version of utility theory and is not superior to existing versions. Another suggestion comes from Sreenivasan (2005), which should apply only to claimed rights and not to other types of rights. The essence of this is that Y is entitled to claim that X performs an action if, and only if, Y`s level of control over X`s duty (intends) corresponds to the level of control that furthers Y`s interests as a whole. Kramer and Steiner (2007) also criticize this situation on the grounds that it would include the case where someone deliberately did not obtain such power on the basis of their own interests. However, this would lead to a very implausible widening of the circle of those who should be considered right holders.

Another pernicious consequence of the legal discussion that Glendon highlights is its tendency to shift moral attention to individuals as rights holders, rather than to individuals as holders of responsibilities. This critique is developed by O`Neill (1996, 127-53; 2002, 27-34). The focus on rights holders directs moral reasoning to the recipient`s perspective, rather than to the traditional active ethical questions of what to do and how to live. Talking about rights also leads those who use them to neglect important virtues such as courage and charity, which are duties that do not correspond to rights. Finally, the use of legal language encourages people to make unworkable claims, because one can assert a right without regard to the desirability or even the possibility of imposing the corresponding obligations on others. The distinction between active and passive rights (Lyons 1970) fits well with the Hohfeld incidents. Privilege and power are “active” rights that affect the actions of their holders. Law and immunity are “passive” rights that govern the actions of others. Active rights are identified by statements such as “A has the right to φ”; while passive rights are indicated by statements of the form “A has a right that B φ” (in both formulas, “φ” is an active verb). Marx attacked the substance of eighteenth-century American and French revolutionary political documents, which proclaimed the “fundamental rights of man”: liberty, equality, security, property, and the free exercise of religion.

Marx objected that these supposed rights stem from a false conception of the human individual as having no connection to others, that interests can be defined without reference to others and, as always, are potentially in conflict with others. The individual rights holder is an “isolated monad. folded behind his private interests and whims and separated from the community” (Marx 1844, 146). In French law, the distinction is made by distinguishing between objective law (the name with a capital letter after some writers, but not all) and subjective rights. (For a general discussion, see, for example, Cornu, 2014.) At the same time, however, French law seems to limit the notion of “subjective rights” to a subcategory of legal rights, namely rights that are primarily those of individuals, such as the drafting of wills or contracts. The term does not appear to extend to rights such as those of a government agency that owns property or a minister adopting a legal system under delegated authority. This is a different question from whether the criminal law can act to recognize and protect moral rights. It seems possible to claim this, since moral rights can be protected not only by legal rights, but also by legal obligations towards others (without corresponding legal rights). For example, a legal system could create a criminal offence of harassment to protect a moral right to privacy without necessarily recognizing a legal right to privacy, that is, something that would serve as a positive reason for privacy in the interpretation of ambiguous rules or in the development of the law. The test of specificationism is how convincingly it can explain what happens when rights seem to conflict.

Rights often seem to conflict. (Sinnott-Armstrong, 1996; Kamm 2007, 262-301) For example, on any given day, it may appear that the public`s right to protest conflicts with the government`s right to maintain order on public property. In a case like this, we will judge that one or the other (say, the right of the public) should take precedence. However, we do not believe that one of these rights is always stronger than the other. In other circumstances, our judgment may favour the other (in this case, government law). When rights appear to conflict in this way, the usefulness of the image of rights as an asset begins to fade. Both rights are assets, but it does not appear that one right always trumps the other. Feinberg (1980, 221-51) and Thomson (1990, 82-104) disagree with this specific view of rights. First, fully specified rights would not be perceptible: no one could define all the conditions that define even the simplest right. Second, the rights thus understood lose their explanatory power: for specific rights can only be the conclusions, not the premises of arguments about the party that should prevail in a dispute.