Updated: Sep 25
Where do our 'rights' come from? Why is everyone claiming 'rights' right now? How do we differentiate individual demands from fundamental rights? How do we balance the cost that upholding a specific right brings to us?
Main Theories for the Evolvement of Right
'Will' Theory - rights protect my freedom to choose at my will
this means that other's duty is waived. But couldn't law limit some rights waved while still keeping substantive rights?
consider a children (hence, minor), do they have the freedom to choose? Then does this mean that they don't have any rights?
'Interest' Theory - rights protect my specific interest instead of my choice
'X has the right to do R' can evolve into four different things:
Right - "Y is under a duty to allow X to do R"
Privilege - "X is free to do or refrain from doing something" and "Y owes no duty to X"
Power - "X has a power to do R"
Immunity - "X is not subject to Y's power to change X's legal position"
Oppositions of the 'rights':
Claim Right : no-right
Privilege : duty
Power : disability
Immunity : liability
Correlations ('rights' imposed on others):
Claim Right : duty
Privilege : no-right
Power : liability
Immunity : disability
Critics of correlation and corresponding effects of Hohfeld rights:
doing something that is not owed to anyone - e.g., beware of traffic conditions
even if it is owed to someone, the other person may not have the corresponding correlation - e.g., duties to minors but not in reverse
Theories arising ethical philosophy
Difference illustrated through the example - murdering someone
Right Theory - involvement of someone's rights
supporter - Ronald Dworkin
e.g., violated victim's right to life
Duty-based Theory - affecting another involved
e.g., debased the murderer
Goal-based Theory - achieving a broad policy goal
e.g., ensuring safety of community
Evolvement of Right-based theory:
Negative rights - setting limitations on sovereign (e.g., unreasonable search and seizure)
Locke and Hobbes
Positive rights - involvement of sovereign (e.g., right to education)
parts of Constitution
Collective rights - community's right all together (e.g., share of resources)
UN and other Declarations
The difference in level of importance of negative and positive rights can be shown through how UN/collective organizations can intervene a nation's sovereignty in response to the violation of certain rights. Dworkin argued that they can only intervene when there is a barbaric act, for instance mass killing; hence, negative rights.
Is there a criterion for human rights to prevent it from being misused?
"The term 'human right' is nearly criterionless." ~ James Griffin
Are we able to find a "pattern" for human rights then? Is it universal?
Cultural relativist - John Ladd: the culture is so intertwined together that we have to refer to the cultural whole, hence "pattern of culture"
Absolutist - morality is independent from ethics, just like how scientific enterprise is independent from mathematics (criticism - forcefully separating morality from real world)
Universalist - denies the diversity of culture (criticism: ethnocentric)
offenders are being 'brought to justice'
Aristotle: justice treats equals equally and 'unequals' unequally
corrective justice - redress wrongs
distributive justice - giving someone what they deserve
3 elements of justice:
recognizing the importance of individuals
treating individuals consistently and impartially
treating individuals equal
however... it is challenged by social justice (e.g., Bob might not be working hard as others because he needed to take care of his sickening parents.)
utilitarians would say that society should fairly distribute the benefits and burdens of social life
utilitarianist considers the consequences of an action
how to interpret whether a rule is good/bad:
Act utilitarianism - determined through the consequences of an act (good or bad) or the act itself
Rule utilitarianism - determined through the consequences of a rule that is enforced under the circumstance
general consensus: to maximize the extent that people achieve what they want
utilitarianist is making people equal through regarding them as a 'means' of undergoing pleasure
making people regard moral goals as only increase in sum of happiness
my pleasure can be replaced by others' greater pleasure
The economic analysis of law
Is it possible for law to intertwine with economics? How can economics help law in determining 'justice'?
akin to utilitarianism, this analysis also looks at how our daily choices forms the grounds of justice
Argument put forth by Richard Posner: unlike utilitarianism, it seeks to maximize economic welfare rather than preferences
through the identification of consumer surplus
law is not autonomous as it is dependent of social and economic forces and we need to understand law with the help of non-legal disciples
finding the pareto optimum (a situation without making a person think that they are worse off than before)
judges use economic analysis in their decision
Coarse Theorem (effective outcome without transaction cost): help to find the most efficient
However, isn't this a demonstration of capitalist ideals? How can we only use wealth to measure the justice/righteousness of something?
Justice as fairness
Seems to be quite an overused idea huh? Let's see what John Rawls (1921-2002) have to say about it.
proposed by John Rawls in his book The Theory of Justice
Justice can be derived from the principles set down by a country's original contract which is the basic structure of a society
But how should we find the principles then?
If we have a situation where...
people are in their 'original position'
shrouded in a 'veil fo ignorance' (gender, race, identity, etc. are unknown to them; these are their subjective desires)
debating on the principles of justice
they will need to secure their interest if they were found to be lowest in the social hierarchy, so it should guarantee
equal rights to liberty - to attain 'social primary goods' (e.g. self-respect)
to address social and economic inequality...
greatest benefit to the least advantaged with just saving principle (save enough to maintain a just institution)
equal opportunity to offices
Criticism: Why should liberty being prioritized over equality?
Clarifies that his principle is not a universal standard of social justice, but a practical concept for modern constitutional democracies (with competing interest)
with societies that holds the same moral doctrine, community's principle should still precede over state's interest
The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.
P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!