Explaining Natural Rights: Ontological Freedom and the Foundations of Political Discourse

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Abstract

[Extract]
Most people think that humans have rights. This popular view now has a great deal of legal authority to support it. Human rights are enshrined in a plethora of international legal instruments, from the United Nations Universal Declaration of Human Rights to regional conventions such as the European Convention on Human Rights and the African Charter on Human and People’s Rights. In the domestic sphere, an increasing number of jurisdictions are adopting formal bills of rights, either at the constitutional level or in the form of legislation. Judges in many countries are increasingly willing to draw on international human rights conventions to inform their interpretations of domestic law. More generally, political and legal discourse abounds with references to putative human rights, from the right to freedom of speech to the right to government aid in times of hardship.

The idea that human beings have certain fundamental rights simply by virtue of being human beings has a long philosophical tradition behind it. Philosophers often call these rights natural rights. In attempting to make sense of the philosophical debates surrounding this notion, it is useful to distinguish three questions that theorists have sought to answer. Let us call them the explanatory question, the analytical question, and the normative question.

The explanatory question seeks to understand and explain the shared concern people have with the concept of natural rights. The central problem might be posed as follows: how is it or could it be possible that humans have natural rights? In other words, what is it about humans that makes them the type of entities to which natural rights could potentially belong? The analytical question seeks to clarify the logical or analytical structure of rights discourse. It asks what is the clearest or most useful conceptual framework for understanding rights and the role that they play in practical reasoning. Another dimension of this inquiry involves identifying and clarifying the different conceptions of rights that surface in moral and political discourse.
Original languageEnglish
Pages (from-to)70-111
Number of pages42
JournalNYU Journal of Law and Liberty
Volume4
Issue number1
Publication statusPublished - 2009
Externally publishedYes

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