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Summary on rights

Topic: Rights
by Stephanie, 2018 Cohort

Note: This entry was created in 2018, when the task was to “summarise a key reading”, and so may not represent a good example to model current primer entries on.

DEFINITION AND FUNCTION

Rights include principles of freedom or entitlement, owed to persons based upon a legal system, social convention or ethical theories. Hohfeldian categorises them into four groups. Privileges, claims immunities and powers. These can be further split into two categories. Privileges and powers are defined as active rights, concerning their holders own actions. On the other hand, Passive rights regulate the actions of others. There are two main theories as to the function of rights. The will theory stipulates, that one should have control over another’s duty for example, a property right. One has the power to waive or annul another’s duty. The interest theory on the other hand, exists to further the right-holders interests. The basic function of rights, is to ensure the fair and just distribution of freedoms and entitlements A legal system in tandem with a constitution distributes the variety of freedoms and entitlements amongst society by laying out rules. Thats pretty simple eh?

THE COMPLEX MODERN SUBJECTIVE RIGHT

In our modern world, the subjective interpretation of freedoms and entitlements across jurisdictions has made for intricate debate and discussion. No one jurisdiction has the same system to distribute rights. In line with cultural and moral dissonance, there are often clashes between the beliefs of a fair and just society. Conflict in rights also create in-house complications for different legal systems, as they must consider competing interests. Are some rights more important than others? Are there fundamental and absolute rights in existence today with which other rights cannot compete? It is at this point where the world of rights becomes a complex place, from which it is easy to shy away. Due to the expansive nature of this area, lets look at a specific example, my home jurisdiction of Ireland.

Under the Irish constitution, our fundamental personal rights are positively recognized and declared. Where there is conflict in a court of law our judiciary has adopted the Oakes test in the case of Heaney v Ireland . The Offences Against the State Act made it an offence to fail to account for ones movement whilst in custody under the act. This was held to violate the true exercise of constitutional rights, as it would hold someone guilty for recognising their right to silence. Costello J adopted the three prong Oakes test , in an attempt to balance the competing interests of potential victims to a crime and suspects. In applying the test of proportionality the court is required to assess the detriment to the right-holder which the restriction on the exercise of the right will impose.

(AN ATTEMPT AT) UNRAVELLING THE COMPLEXITY

Individual rights are political trumps held by the individuals Dworkin . This tempts individuals to categorise the normative force of rights as conclusive. The proportionality test, is a key example of a tool, that can allow us to delve into complex conflicting rights. It can balance and apportion the fair distribution of rights in society, aiding to achieve their ultimate goal.

Explore this topic further#

• Wikipedia page{.link-ext target=”_blank” }
• Stanford Encyclopedia of Philosophy{.link-ext target=”_blank” }
• Meg Good in The Conversation, Should Australia recognise the human right to a healthy environment?{.link-ext target=”_blank” }

Return to Rights in the Primer

Disclaimer#

This content has been contributed by a student as part of a learning activity.
If there are inaccuracies, or opportunities for significant improvement on this topic, feedback is welcome on how to improve the resource.
You can improve articles on this topic as a student in "Unravelling Complexity", or by including the amendments in an email to: Chris.Browne@anu.edu.au

Note: This entry was created in 2018, when the task was to “summarise a key reading”, and so may not represent a good example to model current primer entries on.

DEFINITION AND FUNCTION

Rights include principles of freedom or entitlement, owed to persons based upon a legal system, social convention or ethical theories. Hohfeldian categorises them into four groups. Privileges, claims immunities and powers. These can be further split into two categories. Privileges and powers are defined as active rights, concerning their holders own actions. On the other hand, Passive rights regulate the actions of others. There are two main theories as to the function of rights. The will theory stipulates, that one should have control over another’s duty for example, a property right. One has the power to waive or annul another’s duty. The interest theory on the other hand, exists to further the right-holders interests. The basic function of rights, is to ensure the fair and just distribution of freedoms and entitlements A legal system in tandem with a constitution distributes the variety of freedoms and entitlements amongst society by laying out rules. Thats pretty simple eh?

THE COMPLEX MODERN SUBJECTIVE RIGHT

In our modern world, the subjective interpretation of freedoms and entitlements across jurisdictions has made for intricate debate and discussion. No one jurisdiction has the same system to distribute rights. In line with cultural and moral dissonance, there are often clashes between the beliefs of a fair and just society. Conflict in rights also create in-house complications for different legal systems, as they must consider competing interests. Are some rights more important than others? Are there fundamental and absolute rights in existence today with which other rights cannot compete? It is at this point where the world of rights becomes a complex place, from which it is easy to shy away. Due to the expansive nature of this area, lets look at a specific example, my home jurisdiction of Ireland.

Under the Irish constitution, our fundamental personal rights are positively recognized and declared. Where there is conflict in a court of law our judiciary has adopted the Oakes test in the case of Heaney v Ireland . The Offences Against the State Act made it an offence to fail to account for ones movement whilst in custody under the act. This was held to violate the true exercise of constitutional rights, as it would hold someone guilty for recognising their right to silence. Costello J adopted the three prong Oakes test , in an attempt to balance the competing interests of potential victims to a crime and suspects. In applying the test of proportionality the court is required to assess the detriment to the right-holder which the restriction on the exercise of the right will impose.

(AN ATTEMPT AT) UNRAVELLING THE COMPLEXITY

Individual rights are political trumps held by the individuals Dworkin . This tempts individuals to categorise the normative force of rights as conclusive. The proportionality test, is a key example of a tool, that can allow us to delve into complex conflicting rights. It can balance and apportion the fair distribution of rights in society, aiding to achieve their ultimate goal.