Cmpgroup2rightsnotes

"Rights"
Emily Best

Summary:

  • Throughout the essay “Rights”, the author discusses the classification, composition, function, and history of rights. It begins with a definition of a right: an entitlement to perform certain actions or be in a certain state, or an entitlement that others perform certain actions or be in a certain state. Rights are often broken down into categories based on their common attributes. They can be grouped according to who has the right, what actions the right pertains to, why the person has the right, or how the right can be affected by the person’s actions. There are also many sub-categories within these groupings.
  • The analysis of the rights is also important. A description of the internal structure and a description of what rights do for the right holders helps us analyze them. When examining rights, there are four main components: the privilege, claim, power, and immunity. These four components are known as “the Hohfeldian incidents”. The first, privilege-rights, describe what the person has no duty not to do. The second: claim-rights, on the other hand, mark out what the person has a duty to do. These two are both called primary rules, requiring people to perform or refrain from actions. The secondary rules, or rules that specify how people can introduce, change, and annul primary rules, are the powers and immunities. Powers are the ability within a set of rules to alter a person’s own or another’s incidents. Finally, an immunity is described as the absence of a power in some other person to alter the right holder’s situation. Not only are rights broken down into these four categories, but they are also separated into active or passive and negative or positive.
  • When speaking about the function of rights, there are two main theories discussed. The will theory and the interest theory each aim to explain what rights do for those who hold them. The will theory states that the function of a right is to grant its holder power over another person’s duty, but the interest theory maintains that the function is to further the right holder’s interests. This essay also examines the fact that most rights entitle their holders to freedom in some way or another, whether it is directly or indirectly, and that the legal system is the distributor of these various types of freedom.
  • There are four main realms of rights as well. These are conduct, epistemic, affective, and conative rights, each defining a separate space. There are two major approaches, deontological and consequentialist, in justifying the rights that a person has. Another division is status-based versus instrumental rights. While rights are complexly divided, there are also some critiques that come along with them. Some people allege that the content of the doctrines that give rights are malformed or unjustified, while others argue against the language of the right itself.

Connection to themes in class:

  • In relation to the themes in class, this essay discusses Mill’s definition of a right in accordance with his position as a utilitarianist. He describes a right as something that is valuable enough that it is worthwhile to institute societal sanctions to protect it. This relates to utilitarianism in the idea that it will be a right if it produces enough benefit for society as a whole to enforce it.
  • The point made in the piece that rights often appear to conflict also relates to what we have discussed in class. Ross’s theory that duties can come into conflict is similar to this point in the essay. In class, we talked about how Ross’s intuitionism theory provides for flexibility, and that certain duties are more important in certain situations than others. The same is talked about in this writing with rights. The author states that rights appear to conflict, but that one right is not always stronger than the other. Under different circumstances, our judgment (or intuition) may favor different rights.
  • As stated before, this essay discusses two approaches for the justification of rights: deontological and consequenialist, both of which we have covered in class. Status theorists believe that rights should be respected simply because it is the right thing to do, not because of the good consequences that will come from it. This is the deontological approach. In class we have talked about deontology and how it focuses on the principles that guide the actions, not the consequences. On the other hand, instrumental theorists believe that good consequences are the justification for enforcing rights. This is the consequentialist side of things. Again, we have talked about consequentialist theories in class as well. These theorists are more concerned with the outcome than the principles behind it.

Questions:
1. Has the varying of rights from person to person caused a problem in our society by further segregating certain individuals?
2. Should certain categories of rights be taken more seriously than others?
3. Should the rights that we have change with time and maturation?

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