Raz on Rights: Human Rights, Fundamental Rights, and Balancing

• DOI: http://doi.org/10.1111/raju.12156
• Author: Aleardo Zanghellini
• Published date: 01 March 2017
• Date: 01 March 2017

Raz on Rights: Human Rights,

Fundamental Rights, and Balancing

ALEARDO ZANGHELLINI*

Abstract. After clarifying the outlines of Raz’s interest theory of rights and its rela-

tionship to aspects of the principles theory of rights, I consider how his recent obser-

vations on human rights manage to fit (or fail to fit) into the interest theory. I then

address two questions. First, I elaborate on Raz’s definition of morally fundamental

rights, arguing that he is right in claiming that there are no such rights. I then show

that the interest theory accommodates the notion that rights may take qualitative

precedence over conflicting considerations—a question that has become increasingly

relevant in light of recent writing on rights.

1. Introduction

This article has the twofold aim of showing that the explanatory power of Raz’s

interest theory of rights (ITR) is undiminished, but that some aspects of the theory

call for clarification and elaboration. I begin by sketching the outlines of the theory

and show how it relates to and illuminates some aspects of the principles theory of

constitutional rights. Although the ITR applies to all rights, debates about rights

tend to foreground our important rights. Since it is often assumed that these largely

coincide with those listed in human rights documents, I will review some of the

points Raz makes on human rights. I will show that Raz’s aims and methodology

in developing a theory of human rights practice diverge from those that informed

his formulation of the ITR. I shall then discuss those rights that have a stronger

claim to being considered our most important rights: morally fundamental rights.

Raz’s definition of morally fundamental rights as self-grounding rights is conceptu-

ally unexceptionable. However, I will try to substantiate Raz’s recent claim that

there are probably no such rights. I will then turn to work that emphasises

“qualitative” rather than “quantitative” methods of resolving conflicts involving

rights. I will argue that Raz’s ITR accommodates, both logically and terminologi-

cally, the idea that sometimes rights take qualitative precedence over conflicting

considerations.

* Professor of Lawand Social Theory, University of Reading. Many thanks to Denise Meyerson

for her comments on an earlydraft, to Stuart Lakin for our discussions on balancing, and to the

anonymousreferees for their helpful feedback.

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2. The ITR and the Principles Theory

Raz’s ITR is offered as a philosophical definition of rights, or an analysis of the con-

cept of right as used in “legal, political, and moral writing and discourse” (Raz

1986, 165). It aims to apply to all rights—whether important or not, and whether

moral or legal (Raz 1984a).

According to Raz, individual interests are grounds for rights, and rights are

grounds for duties, duties being peremptory reasons for action. A right exists only

if an interest of the right-holder—i.e., an aspect of her well-being—is of sufficient

importance to hold others to be under a duty (Raz 1984b, 195–6). Thus, although

rights are not the only grounds of duties, to each right corresponds at least one

duty. Frequently, however, to a right correspond several duties and the duties are

lesser than the duty to secure the object of the right (ibid., 199). For example, my

right to be a parent may ground a duty in third parties not to stop me from repro-

ducing, but it does not require that I be secured a child.

In order for an individual interest to successfully ground a right, the reasons for

action prompted by the importance of that interest must not be nullified by counter-

considerations. Raz puts it in terms of a judgement about the importance of that

individual interest relative to the importance of any relevant counter-consideration:

Where the conflicting considerations altogether outweigh the interest of the would-be right-

holder [...], then there is no right. Where the conflicting considerations override those on

which the right is based on some but not all occasions, the general coreright exists but the con-

flicting considerations may show thatsome of its possible derivations do not.(Raz 1984b, 211)

This passage also points to an important element in the structure of rights—the fact

that one can think of individual interests as grounding core rights from which further,

more specific rights can be derived (ibid., 197–9). Although Raz does not spe ll this

out, derivative rights can be stated at different levels of specificity. Thus, the core

right to be a parent grounds a more specific right to apply for adoption. This right—

call it an “intermediate right”—may in turn ground a right to a change in policies

which unjustifiably prevent certain classes of peo ple from applying for ado ption.

One question is to what extent the distinction between core rights and derivative

rights maps onto the differentiation between prima facie and definitive rights

developed by Alexy (2002), whose principles theory of constitutional rights has

become increasingly influential. For Alexy rights can take either the form of princi-

ples (ibid., 60), that is, “norms which require that something be realised to the

greatest extent possible, given the legal and factual possibilities” (ibid., 47) or rules,

that is, “decisions about what is to happen within the realm of the legally and fac-

tually possible” (ibid., 57). Generally (but not invariably) rights as declared in con-

stitutions take the form of principles. Principles can and do conflict; and they are

general, in the sense that “they have not been related to the possibilities of the fac-

tual and normative world” (ibid., 60). As such, for adjudicators a principle is a rea-

son for declaring no more than a prima facie right in the person who invokes it.

Conflicts between principles and between the concrete prima facie “ought” state-

ments that they justify (including prima facie rights)

1

are definitively resolved only

1

Not all prima facie “ought” statements justified by principles are reducible to individual

rights.

26 Aleardo Zanghellini

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