Introduction to Political Theory

meaning that the fulfilment of the right cannot require impossible actions. To

use a slightly silly example, if you have a 100 people, and 50 oranges, then you

cannot give each person a right to an orange, or, at least, a whole orange. The

ECHR strives for compossibility and actionability.

Rights – some conceptual issues

We have approached the concept of human rights by looking at actual documents
rather than justifications for human rights. The rest of this chapter will be devoted
to the question of justification, but as a preliminary it is important to make some
conceptual distinctions regarding rights – that is, rights in general, rather than
specifically human rights. We focus on three aspects of the concept of rights: types
of rights; the nature of the right-holder; conflicts between rights.

• Types of rightsA generic definition of a right is an ‘entitlement’, but legal theorist
  Wesley Hohfeld argued that there are, in fact, four distinct types of right – claims,
  privileges (or liberties), powers and immunities (Hohfeld, 1923: 12). A right is
  a relationship of correlation: correlating to a claim is a duty; to a privilege a
  ‘no-claim’; to a power a liability; and to an immunity a disability. So if you have
  a claim someone else (one person or a group) has a duty. Drawing on Hohfeld
  we can make two points: (a) rights carry ‘costs’ for others; (b) what is called a
  right in the UDHR or ECHR is often a ‘bundle’ of Hohfeldian rights with an
  internally complex structure – for example, the ‘right to marry’ involves exercising
  powers and through those powers generating claims, and insofar as the right to
  marry is constitutionally protected the state is disabled from interfering, meaning
  you have an immunityagainst the state.


• The nature of the right-holderCan very young children – conceptually – have
  rights? Can non-human animals have rights? Those who reject children’s rights
  or animal rights argue that only a being capable of exercising choice (more
  technically: exercising a power) can have rights. It does not follow that there are
  no duties towards children and animals, but simply that those duties do not
  ‘correlate’ to rights. Such a theory of rights is called the will theory (it is also
  known as the choice theory). Theorists who argue that children and animals can
  
  
  • conceptually – have rights argue to have a right is to be the beneficiary of the
    performance of a duty. A child need not be capable of ‘exercising’ a right in
    order to have rights. Benefit theory (or interest theory; recipience theory) takes
    a much wider viewer of who can have rights, although at the expense of
    weakening the distinctiveness of rights. This argument is important not so much
    in justifying human rights as in explaining what can count as a human right.
  
  
  
  


• Conflicts between rightsWe have suggested that a scheme of rights must be
  compossible and that the ECHR, as a legal document, pays much more attention
  to this than the UDHR. It is important to make a distinction between the violation
  of a right and the overridingof a right. Violation is simply the arbitrary setting
  aside of a right. If a right is overridden then this entails providing reasons for
  setting that right aside. Such a reason will make appeal to weights between
  different considerations, such as individual freedom as against collective security.
  Importantly, human rights need not be absolute: it is a mistake to confuse

Chapter 18 Human rights 409