Akademik

Legal rights exist in virtue of positive law ; moral rights are sufficiently independent of it to give a platform from which legal arrangements may be criticized. The basis for analysis is usually a fourfold distinction due to Wesley Hohfeld (1879–1918). A person A has a claim-right to x, and against person B, if B has a duty to refrain from interfering with A having or doing x, or even has a duty to assist A in obtaining x . A has a privilege (or liberty-right ) to x, and against B, if B has no claim-right that A not do or obtain x . A has a power-right to x with regard to B, if A may render B liable to some status connected with x (a policeman obtains a power-right to enter my home, when he gets a warrant). A has an immunity-right to x against B, if A is free from B's power-right with regard to x . Questions arising include the relations between these families, and the nature of the ground in virtue of which any of these rights obtain.

Rights are frequently held to ‘trump’ other practical considerations, which requires seeing them as not themselves simply grounded in the interests of the right-holder, but perhaps existing in virtue of more central considerations of the duties we owe to each other. For Kant, the fundamental moral right is to be treated as an end in oneself, and reason alone justifies and grounds this right. The basic lists that have been drawn up of human rights to be respected by any legitimate constitution are surprisingly similar, suggesting a common conception of the conditions necessary for societies that accord human beings their full dignity. This common core may be thought of as ‘natural rights’, although the term only makes good sense in a metaphysical or theological context in which nature is conceived of as capable of creating moral imperatives. Bentham is notorious for having opposed this, claiming that ‘ natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts’ (Anarchical Fallacies, Art. ii). Nature, according to Bentham, provides a background against which we may wish that there were such things as rights, but they do not exist until law creates them. However, the term remains firmly at the centre of moral, political, and legal thought, since rights are more attractive possessions than duties.