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Rights Notes

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Are all rights grounded in human interests?
In this essay, I will argue that not all rights are grounded in human interests. I will argue, in particular, that the interest theory of rights fails to provide a clear-cut ways of dealing with conflicts in interest. The definition of the word 'rights' is a topic of much discussion. One of the most generally accepted features is that they "constrain or limit the pursuit of social goals"1. This is to say that there are certain things we do which ought to be protected, even at the expense of something considered to have a better overall outcome. Rights refer to actions. We have a right that to do or to have done. I will now draw an important distinction between two kinds of rights - "claim-rights" and "liberty-rights". Firstly, we may talk about our right to have something delivered or returned to us, called a claim-right. Suppose I lend you an apple so that your fruit bowl won't be empty for when your mother visits. We might say that it is immoral for you to then eat that apple, as the understanding that you entered into when borrowing it was such that you would give it back uneaten. In this sense, we can call it your duty to return the apple uneaten. There are 3 distinct elements to this right. There is first the subject: them whose right it is. In this case, it is me. Next there is the object: them whose duty it is to respect the right. In this case, it is you. Then there is the content: the duty itself. In this case, it is the act of returning my apple uneaten. The subject of a right can be any being that can make a claim the object of a right must be capable of having duties, else it is not fair to expect them to be fulfilled. There are other kinds of rights than claim-rights, however, one of which are known as liberty-rights. If I own a hat then we might say that I also have the right to use that hat, as and when I choose to. The subject of this right is the same as before, but the content is now my action rather than someone else's. The content is my action of using or not using the hat. In this sense, it is not a claim that I am to have done, but rather a liberty that I am to do/not do as I choose. There appears, therefore, to be no duty attached to a libertyright. However, Hart refers to a 'protective perimeter' of liberty rights, the idea being that it is everyone's duty to not ill-treat the property of others. My liberty right to wear my hat, or not wear it, also includes my ability to get rid of that right and also to exercise my power to enforce/waive the right. Suppose X breaches Y's rights. Before it happens, Y can waive the duty and therefore extinguish/suspend her own rights. Once the unwaivered duty has been breached, Y can decide whether or not X should be dealt with legally (let's say). After the judgment has been passed, provided the verdict is in Y's favour, Y can decide whether or not to implement the punishment 2. The intricacies of rights, therefore, can be complex. 1 2

Sumner, L. W. - 'Rights' in The Blackwell Guide to Ethical Theory (Blackwell Publishing Ltd, 2000) Kramer, Simmonds, Steiner - A Debate Over Rights (Oxford: Oxford University Press, 1998)

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