Rights are defeasible claims. Nothing more. Nothing less. Sometimes they are justiciable or are the subject of legislation. But they remain defeasible and can't appear by magic. Scarce resources have to be devoted to making them effective by providing remedies for their violation.
In 'the Nature of Rights', Joseph Raz wrote
Philosophical definitions of rights attempt to capture the way the term is used in legal, political and moral writing and discourse.
Why bother? The law clarifies this well enough and legislators know the law. Moreover, different jurisdictions may have different norms and practices in this respect.
As for moral or philosophical writing and discourse- it is too diverse and heterogenous to permit it to have common definitions of anything whatsoever.
Raz says
a philosophical definition may well be based on a particular moral or political theory...(but) should not make that theory the only one which recognizes rights.
Theories are not required for people to recognize things. If it is useful to do a thing, people do it no matter what theories they subscribe to.
To do so is to try to win by verbal legislation.
Win what? Win against whom? Law cases are won and lost. Legislators win when they pass laws they want. They lose when they fail to do so. What victories can Philosophers claim? Their arguments are either self-defeating or wholly vacuous.
Definition: ‘X has a right’ if and only if X can have rights, and, other things being equal, an aspect of X's well‐being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.
I can and do have rights- e.g. voting rights- and also have a right to scratch my arse even though others may think it gross. But this doesn't mean anyone is under a duty to me. Moreover, if someone else scratches my arse, even if they felt this was their duty to me, a court may consider it a violation of my rights.
The definition is of rights simpliciter.
It is simply nonsense. A right is merely a claim regarding a moral or legal entitlement to have or do something. It may conflict with rights considered superior for the purposes of the case. There are no 'Core' rights that always and everywhere trump derived rights. Courts can always find scope for 'balancing' claims on the basis of 'proportionality'. Even if a ratio claims otherwise, its application is limited by the facts of the case. It is a separate matter that the decisions of Courts may be ignored by the public or stayed by Executive action.
Rights may be classified differently for imperative or strategic reasons. In law, if one has a number of claims to a thing, the Court picks the one which best serves your interest. It can happen that a person has a superior derived right (e.g. one derived from a spouse) to a right in their own person.
Raz takes a different view-
Let us assume that I own a whole street
You can't unless the street- i.e. pavement and road- is wholly private. In British law, this is called a private road.
because I bought (in separate transactions) all its houses.
In which case you can't own the street. It was public property. 'Own the street', in this connection, is short for 'all the houses on the street'. It does not include the road or the lampposts or electricity or phone lines on it.
My ownership of a house in the street does not derive from my ownership of the street as a whole, even though the statement that I own a house in the street is entailed by the statement that I own the street.
You could own a private road without owning houses on it. In gated communities, the roads may be owned by a property company though the houses are owner occupied.
For in attempting to provide a normative justification for my rights I have to refer to the individual transactions by which I acquired the houses. Therefore my right in the street derives from my rights in the houses and not the other way round.
Raz is wholly ignorant of the law. Even if you own a road, others may have rights over it. Thus whereas there may be no public access or right of way, residents of the street may have an 'easement' i.e. a private right of way.
Had I inherited the whole street from my grandfather the situation would have been reversed. Without grasping the relation between core and derivative rights one is liable to fall into confusion.
Raz is confused. If you own a private road and the houses on it, your right is the same whether you bought the houses one by one or inherited it or built the whole place with your own two hands. Even then, there may be a 'prescriptive right' (which is like adverse possession) such that if the public has been using it for 20 years, the thing may be declared a public right of way.
My right to walk on my hands is not directly based on an interest served either by my doing so or by others having duties not to stop me. It is based on my interest in being free to do as I wish, on which my general right to personal liberty is directly based.
This right's claim may be defeated by the State's duty to prevent you doing things which harm you. You may be put under Guardianship or you may be confined to a psychiatric hospital if such is the case.
The right to walk on my hands is one instance of the general right to personal liberty. The right to personal liberty is the core right from which the other derives.
Nonsense! There may be no fundamental right to property- e.g. in India.
Similarly my right to make the previous statement is a derivative of the core right of free speech,
Why stop there? Why not say the core right is the right to have the right to have a right? From this is derived the right to the right to free speech. Thus free speech is derivative of a derivative of a right derived from the Core right to have the right to have a right.
and my right to spoil the cigarette I am holding at the moment derives from my ownership in it,
Everybody has the right to 'spoil a cigarette'. It's just that somebody may have a superior right to ensure it isn't spoiled.
The Correlativity of Rights and Duties
You can have rights which cancel any particular duty you owe.
It is sometimes argued that to every duty there is a corresponding right.
No. To gain a remedy under a bond of law for a right's of violation from a court, a specific obligation holder must be identified. But a person may themselves supply the remedy in which they case may have an immunity- e.g killing in self defence.
Philosophers don't understand that the essence of the law is defeasibility. There are no indefeasible rights or duties. You can hire a lawyer to help you minimize your exposure to claims for damages
. R. Brandt's definition can serve as an example of many: ‘X has an absolute right to enjoy,
No one has an absolute right. H.A.L Hart explained this.
have or be secured in Y’ means the same as ‘It is someone's objective overall obligation to secure X in, or in the possession of, or in the enjoyment of Y, if X wishes it.’
No. An absolute right is simply one which is not qualified in any way. An evil rapist has a right to life, just as much as an innocent person. But no one may have any duty towards either- even the Government. Why? They may have absolved themselves of any such duty in a perfectly legal manner- e.g. a Government may ask the population to evacuate a particular area and warn that they will not be responsible for anyone's safety after a certain period of time.
Raz is as foolish as Brandt. He thinks
A right to education grounds a duty to provide educational opportunities to each individual, whether he wishes it or not.
No. The Law may, as in the US, put the onus on parents or, as in India, on the State to see that kids go to school. However, this is a justiciable matter. Courts can provide a immunity from this duty. They may hold that whatever it is that kids get is an 'educational opportunity'- e.g. learning how to beg.
Many rights ground duties which fall short of securing their object, and they may ground many duties not one.
Rights don't 'ground' duties. Only a 'vinculum juris'- a bond of law- can do so. The perspective of the law is that rights and duties are claims or obligations which, if they exist independent of a vinculum juris, are not justiciable. However, Judges can 'read in' such rights or duties thus creating a vinculum juris. Much of Tort & Trust law has developed in this way. Justiciability is about rights getting linked to obligations in a manner which permits legal enforcement.
A right to personal security does not require others to protect a person from all accident or injury. The right is, however, the foundation of several duties, such as the duty not to assault, rape or imprison the right‐holder.
Nonsense! There is a duty to obey the law. Laws relating to assault, rape, false imprisonment vary from jurisdiction to jurisdiction. In India, there was no law preventing my bride assaulting me by pinching my bum before proceeding to imprison and rape me in the honeymoon suite. That is main reason Rahul Baba not getting married. Mind it.
Secondly, and more importantly, Brandt fails to notice that the right is the ground of the duty.
It isn't. The law- specifically a vinculum juris- is what grounds duties in an objective manner. I may say I have a duty to sleep with your wife because she deserves to have multiple orgasms. But this is merely the opinion of a scoundrel. Nobody is obliged to uphold such rights or duties.
It is wrong to translate statements of rights into statements of ‘the corresponding’ duties.
It could be useful. You go to a lawyer and he does that for you. He may advise you sue someone you aren't directly linked to because there is a greater chance of getting damages for a rights' violation. Thus if I am stabbed by a child, there is little point suing the child. I may be advised to sue the School District or the knife manufacturer or some one else who could be convicted of negligence or failing in a duty of care.
A right of one person is not a duty on another. It is the ground of a duty, ground which, if not counteracted by conflicting considerations, justifies holding that other person to have the duty.
What justifies it is actually getting a remedy. If no remedy can be provided by that person, there is little point assigning a duty to her. If I appoint a little baby as my CFO, I will still go to jail for fraud and embezzlement. It is pointless to argue that the baby had a fiduciary duty which it shamelessly neglected.
Thirdly, there is no closed list of duties which correspond to the right. The existence of a right often leads to holding another to have a duty because of the existence of certain facts peculiar to the parties or general to the society in which they live.
The problem is that people can find legal or other methods to escape such duties. Consider the limited liability company. The proprietor's duty to make good any tort suffered by a member of the public is limited to the value of his shares in the company. No doubt, big companies will act prudently so as not to go bankrupt. But they may also lobby legislatures to limit damage awards or to gain immunity in other ways. There is a risk that a particular market disappears or becomes informal or illegal if the regulatory environment becomes stifling, or Court sanctioned duties under contracts become too onerous or contingent liabilities grow too great. In that case, the Government may have to provide the good or it may cease to be available. Consider flood insurance in the US. The Federal Government has stepped in to provide it to communities which sign up for it. But, in return, those communities must agree to regulate residential and commercial development in any floodplains that fall within the municipality’s boundaries. In practice, this means poorer or smaller communities are more likely to be excluded.
A change of circumstances may lead to the creation of new duties based on the old right.
If obligations are not 'incentive compatible'- i.e. the incentive to supply the remedy is lacking- those deemed to have the obligation may evade it- e.g. by conducting business through a limited company which simply declares bankruptcy if obligations become too onerous.
The right to political participation is not new, but only in modern states with their enormously complex bureaucracies does this right justify, as I think it does, a duty on the government to make public its plans and proposals before a decision on them is reached, as well as a duty to publish its reasons for a decision once reached (except in special categories of cases such as those involving defence secrets).
The problem here is that greater 'accountability' may mean greater inefficiency. You can always find a good reason for doing nothing because you have been keeping busy following all the right procedures. The question is whether tax payers will continue to tolerate this. In poorer countries, the bureaucracy may simply be disintermediated- i.e. ignored. In richer countries, voters may elect politicians who promise to 'drain the swamp'- i.e. fire bureaucrats. Look at Elon Musk's Department of Government Efficiency which is sending shivers down bureaucratic spines in America at this moment.
This dynamic aspect of rights, their ability to create new duties, is fundamental to any understanding of their nature and function in practical thought.
Rights have no magical properties. They are merely claims. If you make a loud enough noise, your mouth may be filled with gold so as to secure your silence. But in the medium to long term, people may simply run away from you or plug up their ears or hire someone to shout even louder at you.
Unfortunately, most if not all formulations of the correlativity thesis disregard the dynamic aspect of rights.
They all suffer from magical thinking. Claims and counter claims are economic in the sense that scarce resources are used up making them or satisfying them. Those with greater resources can use them to secure immunities
Often right‐holders have a direct interest in that to which they have derivative rights. But those do not always ground their rights.
Interests motivate people to secure legal claims or immunities. Justice is a service industry.
A right is based on the interest which figures essentially in the justification of the statement that the right exists.
A right is a claim. It exists fully and effectively if it is either self-enforced with impunity of if it is accepted by another party and the person making the claim gets what she asked for.
The interest relates directly to the core right and indirectly to its derivatives. The relation of core and derivative rights is not that of entailment, but of the order of justification.
Only if that justification is given in the ratio of a court judgment. But even there, what is core and what is derivative is determined by the facts of the case which in turn determines which statutory instrument or stare decisis judgment is considered to apply. In a different case where the facts appear different, a different 'order of justification' may be given. It is usual to make a claim for a thing by simultaneously appealing to different rights or laws. The judge picks one and may say he does so because it best serves the interest of the person involved.
The fact that a statement that everyone has a right to freedom of expression appears to entail the statement that everyone has a right to free political expression does not establish that the first is the core right and the second its derivative.
Indeed, they may be wholly separate. Speaking generally, some people have a superior freedom of political expression if they are legislators and are speaking in the Legislature. Moreover, greater latitude may be given to political expression than free speech. Thus if I say 'Trump is a crook', I may be immune to the law of libel because it is obvious that my intention is political, not commercial or dictated by private malice.
It may well be that freedom of political speech is justified by considerations which do not apply to other kinds of speech. If it is also the case that, while separate independent considerations justify freedom of commercial speech, and others still freedom of artistic expression, scientific and academic communications, etc., there are no general considerations which apply to all of the protected areas of speech, then the general right to freedom of expression is a derivative right.
No. All we can conclude is that it is a stand alone right. It can't be the case that a drunken yob derives his right to shout 'fuck the pigs!' from something which pertains to the speech of Senators or Nobel prize winning poets.
Moral rights may become justiciable if moral clauses in contracts or professional or other codes exist. Furthermore, there may be a duty to act in good faith in certain contexts. Public opinion, even without juristic force, can impose sanctions. Flagrant immorality can be a reason for dismissing a person or refusing to do business with him.
The right to political participation is a legal right in English law. But though in contemporary societies this right justifies holding the government to be under a duty to publicize its plans and the reasons for its decisions, there is no such legal duty on the government in English law.
That has changed. But it may change again. Governments may find that publicizing their plans may enable a small group of professional agitators to better coordinate their actions so as to frustrate those plans. There are frequent complaints that the Local Council, or such and such Government Department, while appearing to comply with the rules, did something sneaky so as to nullify the provisions of the law. Judges may conclude, after 'balancing' various claims and counter-claims, that what the Government did was 'proportional' and thus legal. Indeed, the pendulum might swing the other way. If there is a spontaneous demonstration there can be no question of conspiracy. But if Government plans were published in advance, what is claimed to be spontaneous resistance may actually be pre-planned. The offense of conspiracy may carry much more serious penalties than anything done spontaneously and with little or no coordination.
The duty is purely a moral duty. Nevertheless, the existence of a moral right to political participation, i.e. the fact that this right is given legal recognition and is already defended by some legal duties, is a ground for the authorized institutions (Parliament or the courts) to impose such a duty on government officials.
They have that power anyway. In this particular case, Treaty Law- in particular the demand of the European Union that nations implement various laws and that they set up a Supreme Court- had a big effect on such developments in the UK. There was speculation that post-Brexit Britain might get rid of several such things.
If and when they do so, they will be making new law. But they will do so on the ground that this is justified and required by existing law.
They may do. They may not.
By the same token the legal right to political participation is a reason for investing people with a legal right to free information. It cannot be used to establish that they already have such a right.
This is not the case. Foreigners have no right to political participation in the UK but, it appears, they do have the Right to Information under the relevant Act.
There is no right to promise. If I say, 'I can't promise anything', it is not the case that the Law can provide me a remedy such that I suddenly become able to promise things. Speaking generally, promises are not binding though there may be something like 'promissory estoppel' - i.e. where someone who relied on a promise did certain things and would be greatly harmed if the promise was not kept.
The right to promise is based on the promisor's interest to be able to forge special bonds with other people.
There is no such right just as there is no right to fart. It is absurd to mention it.
The right is qualified. Not everyone has it. Small children and some mentally deranged people lack it.
Kids are crazy people are welcome to make promises same as other people. But they are not enforceable. Still, a kid or a lunatic who breaks a promise may be denied a thing or suffer some other penalty.
Furthermore, if it is not permissible to have bonds based on immorality,
It is. It may be immoral for a man to engage in adultery with another consenting adult but it is certainly permissible for him to love and live with that person in Western democracies. True, if the person is the Archbishop of Canterbury, he may be sacked or forced to resign.
one's right to promise does not include the right to promise to perform immoral acts.
You can promise and perform them. If the act is illegal then you may have committed a crime. However, the prosecution would need to prove that you had the capacity and the intention to actually go through with it. I may promise to kill and eat Vladimir Putin. But that dude knows judo and would beat the fuck out of me even if I was able to evade his bodyguards. Mine is an empty promise.
A promise does not create an obligation. It merely conveys a desire of some kind. I say 'I promise to be good'. Mummy knows I will always be naughty but she appreciates that I want to be good and may even try to be good. This is because I love Mummy and want to make her happy.
We make promises when we marry. People understand we won't always live up to those promises but they appreciate that we want to do so.
Those who assign sufficient importance to the interest people have in being able to impose on themselves obligations to other people as a means of creating special bonds with other people believe in a right to promise.
We have affectionate bonds with people who know we are incapable of keeping certain promises. It is enough that we love them and want to be better people for their sake. But there is no 'right to promise' nor is there an obligation to believe promises.
But why is it a right?
It isn't. Nor is the right to fart. It's just something people do. You may find it endearing. You may find it annoying. But it is something people do and if you are too strict in such matters you may find you have no friends.
The interest on which it is based validates the promising principle, namely: If a person communicates an intention to undertake by that very act of communication a certain obligation then he has that obligation.
This could be a verbal contract. For it to be binding, consideration must pass. 'Suppose my boss says to me 'I promise to promote you if you secure such and such account'. I make a special effort, going above and beyond what is expected of me under the terms of my contract, to secure that account. The Boss says 'I lied. I dangled a carrot without any intention of handing over that carrot.' I may have an action in law against my employer. Promissory estoppel may apply. But then again, it may not. The Judge might decide that what I call 'going above and beyond' is actually just doing my job as specified by my contract of employment.
The promising principle establishes that if we promise we are obligated to act as we promised.
If it were reasonable for such an expectation to be created. Suppose Gladstone says to Disraeli 'I promise to eat my hat if you can balance the budget- you innumerate monkey!' No one really expects Gladstone to eat his hat. He was simply employing a common figure of speech.
It also establishes a present obligation to keep our promises, i.e. we are obligated to perform action X, if we promised to perform X. This is a conditional obligation.
It may be a verbal contract if there was consideration- i.e. something was gained by making it. However, if it ought to have been gained anyway, there is no consideration and no contract. There is also the question of coercion or harassment. We may make such a nuisance of ourselves that Mummy promises to take us to Disneyland. But we need to understand that what we did was unconscionable. Mummy is justified in punishing us when she recovers from her migraine.
The condition is an act of the promisor and his obligation is conditional on his action because it is desirable that he should be able to bind himself if he so wishes.
It may be desirable that promises have magical powers and that if I promise to prove the Reimann hypothesis this weekend, then that's what I actually do.
It follows that people's interest in being able to bind themselves is the basis of a power to promise which they possess and of an obligation to keep promises they make. But neither the power nor the obligation point to a right to promise.
Sadly, promises don't bind shit. That's why a 'right to promise' isn't worth having.
The right to make a particular promise (e.g., to visit my aunt next weekend) is a derivative right of the general right to promise.
One such derivative right is the right to make a conditional promise. Two kinds of conditional promises are of interest here: First a promise made conditional on an action by the promisee (e.g., ‘I will give you ten pounds if you give me the book’).
Second (which is in fact a special case of the above), a promise made conditional on a promise to be given by the promisee (e.g., ‘I will give you ten pounds if you promise to give me the book’).
This is a verbal contract if the other party does in fact make that promise. The contract is binding even if one party's interests change- e.g. I buy the book more cheaply or the other party gets a higher offer for the book.
One view regards the promisee's right under any particular promise as a core right based on his interest in the promised act (and the intention of the promisor to be obligated to perform the act).
It can be no such thing because the contract is binding even if his interest changed. However, this is a justiciable matter. A Court may decide that it customary, in the trade, for such promises to be regarded merely as 'opening offers'.
On this view, if there could be binding promises which do not benefit the promisee (and are not intended to do so) then there are promises which do not create rights in the promisee.
This depends on the facts of the case and relevant norms and customs. An expert witness may say, 'there is no contract unless there is a handshake. Such is the immemorial custom of the trade.' In that case there is no contract. Promises by themselves are not binding.
I ... favour a second view (which complements the first) according to which each person has an interest that promises made to him will be kept.
In which case, shake on your verbal contracts or send a memo confirming it if you are not face to face. In business, we want to proceed on the basis of binding contracts. But, in life, we are content if our drunkard of a brother promises to lay off the sauce. We know he will relapse but are touched by his affection for his loved ones and his desire to spare them further pain or anxiety on his account.
Of course, he might lose interest in the specific content of some promises, and keeping some of them may even work against his overall interest. But invariably he has a pro tanto interest that promises given to him be kept. This interest is the very one which is reflected in his right to promise.
Right to contract. This may be restricted by age, mental condition, being an undischarged bankrupt, etc.
Namely, it is the interest to have voluntary special bonds with other people.
In non business contexts, those bonds may be affectional. Here, what matters is intention not execution. 'I promise to buy you a diamond bigger than the Ritz hotel!' may be said by an impecunious young man to his sweetheart. She understands he just means that he thinks she is the nicest girl in the world.
We should remind ourselves that while the promisee may not be the initiator of the bond of which the promise is the whole or a part, he is not entirely passive either. It is always up to him to waive his right under the promise and thus terminate the binding force of the promise.
This is true of a contract. It isn't true of a promise. My ex-wife has no power to prevent me from keeping my promise to love her all my days. She can however get a restraining order or just keep kicking me in the balls till I run the fuck away.
Capacity for Rights
The law determines who can have rights. In India, Courts have held that temple deities, but not God, has rights. Corporations and other Voluntary Associations of various types may also be granted 'legal personality' and the right to make contracts. This is a justiciable matter.
The definition of rights does not itself settle the issue of who is capable of having rights beyond requiring that right‐holders are creatures who have interests.
They may be deemed to have interests whether or not they have any inherent capacity to do so.
What other features qualify a creature to be a potential right‐holder is a question bound up with substantive moral issues.
Legal issues. I suppose a Muslim judge in India would think idolatry is immoral. But he has to uphold settled law re. the legal personality of Hindu temple deities. The same is true of a Christian judge in the US who thinks homosexuality is immoral but who is obliged to find that a particular homosexual act was perfectly legal or else there was an immunity preventing interference with it.
There is a view, which I shall call the reciprocity thesis, that only members of ‘the same moral community’ can have rights.
A legal personality which has rights also has obligations. Thus if the Hindu Deity has the right to have a temple constructed for his worship, contractors who worked on that temple have a right to sue him if they don't get paid. This is one reason why God Almighty can't have legal capacity- though there was a Hindi movie about a guy who sued God. Apparently, a real life Australian lawyer turned fishermen did sue God. He dropped the case but the Judge agreed that 'acts of god' is misleading. Should it give an immunity to insurance companies? I suppose so. Premiums might rise too high otherwise.
A species of animal or plant may be declared 'endangered'. Even mountains and rivers can be granted legal personality so that actions can be brought in their name against polluters or others who damage their pristine beauty and sanctity. This has nothing to do with 'core' or 'derivative' rights. Once a right is gained the right holder is on the same footing as any other right holder. There may be no 'reciprocity'. I can't kill a tiger unless it is trying to eat me. In India, the Courts may intervene to protect man-eating tigers. Six years ago, the Supreme Court finally gave permission to kill a tiger which had slain 13 people. The position of dogs or cats varies according to jurisdiction. Speaking generally their destruction must meet certain protocols and is subject to judicial review.
My proposed principle of capacity for rights entails that those who regard the existence and well‐being of (some) dogs as merely derivatively valuable (even if they believe them to be intrinsically valuable) are committed to the view that dogs can have no rights though we may have duties to protect or promote their well‐being.
I suppose Raz is attacking a crude utilitarian view. The problem is that we don't know if a deontological approach might not have better consequences and thus be more utilitarian than the utilitarian prescription. Equally, religious people may feel that the scientist who proceeds on purely materialistic assumptions better serves God's creatures and that the scientist's work is a superior type of worship.
Raz mentions what may appear an 'instrumental' or 'utilitarian' tradition in the English Common Law. However, it would be more true to say that it was pragmatic. Consider freedom of expression. Even Protestants in Ireland were denied it on the grounds of 'fighting words'. But it would be foolish for non-lawyers to distinguish tendencies in the law of a particular jurisdiction when the lawyers and judges working in that tradition are so much smarter and better informed that we are. More recently, because of Treaty law, we may say a more 'Kantian' approach seems to be gaining salience. However, those with expert knowledge of relevant judgments might deny this is the case. Indeed, even when, in obiter dicta a particular scholar, with a particular ideology, is mentioned, the ratio stands independently of it. My point is, even if lawyers find philosophical jurisprudence useful, what they do remains part of their own independent science of law.
Consider the following
We must conclude that (apart from artificial persons) only (p.180) those whose well‐being is intrinsically valuable can have rights; but that rights can be based on the instrumental value of the interests of such people.
My books are a counterexample. They will have various rights- e.g. not to be published or altered by an unauthorized person- even after I am dead though they are intrinsically shit.
You may say that books have instrumental value. But that is only true of books of a certain sort. Vanity publications have the same rights as worthwhile tomes.
What is the relationship between rights and interests? The answer is that a Court may decide to restrict or expand certain rights by 'reading in' relevant interests or making a judgment deciding what we might safely and reasonably consider them to be. Thus, suppose a person living 50 years from now discovers a way to make my unreadable garbage entertaining and profitable to read, then a judge may say that this is what I would have wanted. My interests would be better served by permitting the abridgment or edited version of my book to be published.
The Importance of Rights
It is important to know one action is linked with a very high probability to a particular outcome. A right is merely a claim to an outcome. If it is legally enforced with high probability- well and good. But, it may be effective even without a legal enforcement mechanism because it is in the interest of the counter-party that people have confidence in them. Rights which are unenforceable, or which in practice don't get enforced, are but empty verbiage or 'mere puffery'. They aren't important at all.
Let us recap. Rights ground duties.
Nonsense! Duties are linked to rewards- e.g. a Christian's duty to attend Divine Service. There is a very very big reward for this. Where there is no reward, the duty will be evaded unless it is done under compulsion. But to say a slave has a duty is merely to say that he is a slave and may be whipped with impunity.
To say this is not to endorse the thesis that all duties derive from rights or that morality is right‐based. It merely highlights the precedence of rights over some duties and the dynamic aspect of rights, their capacity to generate new duties with changing circumstances.
Because rights have magical powers. Kindly tell the Grim Reaper to fuck the fuck off because the Government has legislated the fundamental right not to fucking die. This right has precedence over any duty assigned by God to a skeleton wearing a robe and carrying a scythe.
Notice that because duties can be based on considerations other than someone's rights the statement (1) ‘Children have a right to education’ does not mean the same as statement (2) ‘There is a duty to provide education for children.’
In which case my right to fart means there is a duty for someone to come make me fart by feeding me spicy Mexican dishes.
(1) entails (2) but not the other way round.
You don't have to chase after kids and make them come to skool.
(1) informs us that the duty stated in (2) is based on the interests of the children. This information is not included in (2) itself. The connection between rights and duties establishes that rights are special considerations, since duties are.
Only in the sense that everything is a 'special consideration'- including the fact that I've just farted and so you may not want to come into my room just now.
But just as there are trivial duties so there are trivial rights. And not only derivative rights: core rights can also be of little consequence. The reason is the one remarked on in the first section of this chapter. Duties are special in the role they assume in practical reasoning.
Practical reasoning involves how to get an immunity from onerous duties. If the thing is 'incentive compatible'- i.e. you gain by fulfilling it- you would do it anyway. I think all supermodels have the right to impregnation by me. I practice a lot on my own so as to be fit to carry out this duty. This is not at all a trivial matter for me. Indeed, it takes up most of my working day. Sadly, supermodels have no incentive to form an orderly queue outside my bedroom door.
Are rights ‘trumps’, the expression given wide currency by Dworkin?
Sadly, no. My right to sex with beautiful women trumps shit. Donald Trump's has a trump of a different sort- more especially when it comes to porn stars. This is because he is as rich as fuck.
It all depends on what is meant by ‘trumps’.
It means 'indefeasible'. Sadly, in law, everything is defeasible.
Many centuries ago, Aristotle distinguished between Akribeia (seeking greater precision than the subject matter allows, or insisting on a narrow interpretation of the relevant rules or norms) and Economia which is a suave, discretionary, type of management with which all reasonable people are satisfied.
In seeking a science of law based on indefeasible rights or hermeneutic or other juristic principles, Raz & other such savants, are making the error of Akribeia. Equity demands that judgments of that sort be set aside when the application of a too general principle causes an absurdity or an injustice. But that which is equitable is economic. Justice is merely a service industry. As Hume recognized long ago, it serves a utilitarian purpose. This does not mean it must itself adopt Utilitarianism. It just means it will be disintermediated if it oversteps the mark and fails to maintain a capacious doctrine of political question. Currently, in America we are seeing push-back, from the Administration, against Judicial or other Rights based activism. JD Vance has asked the question 'what happens if the Executive defies the Judiciary? What can Judges do? Can they take up arms and fight in the streets?' The answer is that Courts have no magic power. If they are seen as utile and generally doing sensible things, public opinion may be on their side. After all if the Army refuses the Executives orders to shoot opponents, the Executive too will lose power. Something like that seems to have happened in South Korea and Bangladesh. Fex urbis lex orbis means that the opinion of even 'the dregs of the city' (most of whom would have poor and illiterate in ancient times) gives laws to the world. The Christians in ancient Rome were often of the humblest class. Yet it was their Lord- a carpenter's son from an obscure town in a far off Province- who prevailed over 'Divine' Caesars or lawyer-politicians like Cicero who was very well versed in Greek philosophy.
Whatever the origin of rights in other civilizations, for us in the West, it would be folly, or blind bigotry, to ignore the genealogical relationship, of almost everything we currently enjoy, with what is revealed in the Gospel.
