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Law & Society - Lecture 9 - Theories of Rights
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Lecture notes for the Law & Society module linked to Jurisprudence Essentials. Author achieved a first-class grade for the module.
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Lecture 9 – Theories of Rights• Two issues:
– Analysis
– Foundation
• Rights talk in the news
– Anti-trident protests
– Animal rights – are rights exclusively human? Do they arise from a person’s
participation in society.
– Ukraine – are rights simply the opinions of the majority?
• Finnis – a natural law foundation of rights
1. Life
2. Knowledge
3. Play
4. Aesthetic experience
5. Sociability
6. Practical reasonableness
7. Religion
– But what to do with these? There is with natural lawyers generally nothing which sets out to
formulate the relationships between the state and the individual.
• Human Rights – now part of Scots law
– Impact on devolved power to legislate
– Impact on the Scottish Ministers – e.g. issue of temporary sheriffs
– Impact on civil law – interests to be considered. E.g. freeing for adoption
• Early thinking
• The Romans had no place for natural rights – which are incompatible with slavery and
serfdom – a view of common humanity is required
• Classical natural lawyers were concerned with duties and not rights
• The English Civil War
, • Hobbes (again) – who had pessimistic views of the state of nature – life is “solitary, poor,
nasty brutish and short” – law is there to civilise us
– Contractarianism
• Reaction of politics of the time
• Balance between despotism and insecurity/instability
• Sovereignty must be unqualified – we surrender to him
• But a sovereign does have duties to his subjects
– John Locke (1632-1704)
• Held a positive view of the state of nature – with values worth retaining
“4. To understand political power aright, and derive it from its original, we must consider what
estate all men are naturally in, and that is, a state of perfect freedom to order their actions, and
dispose of their possessions and persons as they think fit, within the bounds of the law of Nature,
without asking leave or depending upon the will of any other man. A state also of equality, wherein
all the power and jurisdiction is reciprocal, no one having more than another, there being nothing
more evident than that creatures of the same species and rank, promiscuously born to all the same
advantages of Nature, and the use of the same faculties, should also be equal one amongst another,
without subordination or subjection, unless the lord and master of them all should, by any manifest
declaration of his will, set one above another, and confer on him, by an evident and clear
appointment, an undoubted right to dominion and sovereignty”
• Locke
– A state of liberty is not a state of licence
– “no one oght to harm another in his life, health, liberty or possessions.”
– “the law of nature be observed which willeth the peace and [preservation of all
mankind”
– “two distinct rights … the one of punishing the crime … the other of taking
reparation.”
– “absolute monarchs are but men”
I desire to know what kind of government that is, and how much better it is than the state of Nature,
where one man commanding a multitude has the liberty to be judge in his own case, and may do to
all his subjects whatever he pleases without the least question or control of those who execute his
pleasure? and in whatsoever he doth, whether led by reason, mistake, or passion, must be
submitted to? which men in the state of Nature are not bound to do one to another. And if he that
judges, judges amiss in his own
• Locke
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