Rights and Raz

This week concerns Joseph Raz’s account of rights, and its relation to his wider jurisprudence of authority, practical reason, and legal positivism. Raz matters because he refuses two tempting simplifications. First, he rejects the view that rights are merely rhetorical labels attached to strong interests. Secondly, he rejects the Dworkinian view that legal rights necessarily arise from the best moral interpretation of the legal system as a whole. Rights, for Raz, are genuine normative entities: a person has a right when an aspect of that person’s well-being is a sufficient reason for holding another person to be under a duty. Yet the existence and content of legal rights depend, in the first instance, on social sources rather than on moral soundness.

The result is a sophisticated architecture. Raz is a positivist about law, but not a sceptic about morality. He is an interest theorist about rights, but not a simple utilitarian. He is a liberal, but not a neutralist liberal in the Rawlsian sense. He argues that autonomy is valuable only where persons have an adequate range of worthwhile options, and he is prepared to defend perfectionist state action to secure the social conditions of autonomy. These commitments must be held together. The weak essay treats Raz’s theory of rights as a detachable definition. The strong essay asks how that definition is integrated into his theory of reasons and authority.

For Cambridge Part II purposes, three questions are central. First, what is Raz’s account of a right, and how does it compare with the will theory and Hohfeldian analysis? Secondly, how can a positivist acknowledge moral rights while maintaining a sources thesis about law? Thirdly, does Raz’s service conception of authority sit comfortably with rights, especially rights used to resist state power? A Part II essay should avoid treating these as separate topics. Raz’s account of rights is best understood as one part of a general theory of practical reason: reasons may justify duties; rights are grounds of duties; authorities claim to mediate reasons; law claims legitimate authority; legal rights may or may not track moral rights.

The recurrent contrast is with Dworkin. Dworkin treats rights, especially political rights, as trumps against collective goals and treats legal rights as partly constituted by moral interpretation. Raz treats rights as reasons capable of grounding duties, but he denies that their legal existence follows from moral correctness. This difference is not merely semantic. It determines how one understands adjudication, rights under the Human Rights Act 1998, judicial discretion, and constitutional legitimacy. The best answers will show how Raz can explain the importance of rights without collapsing legal validity into moral truth.

Raz’s theory is best placed after three developments in twentieth-century jurisprudence. The first is Hohfeld’s analytic disaggregation of rights. Hohfeld showed that lawyers use the language of rights to denote several distinct normative positions: claim-rights correlative to duties, liberties correlative to no-rights, powers correlative to liabilities, and immunities correlative to disabilities. That analysis remains indispensable, but it is deliberately formal. It tells us what legal relations exist once the content of a system is fixed; it does not tell us why rights matter, what justifies them, or whether the same language can illuminate moral rights.

The second development is Hart’s positivism. Hart rejected Austinian command theory and explained law through rules, especially the rule of recognition. Legal validity depends on social facts: whether a norm satisfies criteria accepted by officials from the internal point of view. Hart’s positivism leaves room for moral criticism of law. A wicked statute can be legally valid; a morally compelling right may fail to be legally recognised. Raz radicalises this positivist inheritance through the sources thesis: the existence and content of law must be capable of being identified by reference to social sources without recourse to moral argument. That thesis does not say that law is morally inert. It says that its legal identity is source-based.

The third development is the rise of rights-based constitutionalism and political morality after the Second World War. The European Convention on Human Rights, the constitutionalisation of rights in many jurisdictions, and later the Human Rights Act 1998 changed the practical background against which analytical jurisprudence was conducted. Rights were no longer merely moral slogans or private-law incidents. They became central to public law, proportionality, constitutional review, and theories of adjudication. Dworkin’s rights thesis must be understood in this setting: judges, he argued, do not merely exercise discretion where rules run out; they identify parties’ legal rights by constructing the best moral interpretation of legal practice.

Raz’s response is distinctive. He accepts that rights are morally serious and legally pervasive, but denies that this licenses interpretivism about the nature of law. He insists on separating three propositions often run together: that people may have moral rights; that legal systems may confer legal rights; and that officials may have moral reasons to give effect to moral rights when interpreting or reforming law. The first proposition is moral philosophy. The second is legal theory. The third is political morality and adjudicative ethics. Their interaction is complex, but they are not identical.

Raz also writes against utilitarian and aggregative conceptions of political justification. Rights, on his account, are not simply high-weight utilities. They mark the way in which one person’s well-being can impose duties on others. This is an anti-reductionist move: rights are structured reasons. At the same time, Raz resists the will-theory idea that rights are primarily protected choices or powers of waiver. Some rights, including children’s rights and certain rights of incapable persons, are difficult to explain if the right-holder’s normative control is made essential. Raz therefore develops an interest theory: rights protect aspects of well-being sufficiently important to ground duties.

In the Cambridge sequence, this week follows naturally from Hart, Finnis, Dworkin, and judicial discretion. Hart supplies the positivist background; Finnis supplies the natural-law insistence that law’s point is practical reason and human good; Dworkin supplies the interpretivist rival; and discretion raises the question whether rights guide judges when rules are indeterminate. Raz’s originality lies in combining a hard-edged positivism about legal sources with a rich moral theory of rights, autonomy, and legitimate authority.

1. Rights are grounds of duties, not merely advantageous outcomes. Raz’s canonical formulation is that X has a right if, and only if, X can have rights and an aspect of X’s well-being is a sufficient reason for holding another person to be under a duty. This is the interest theory. Its force lies in the word ‘sufficient’. Not every interest generates a right. Many interests are too trivial, too diffuse, or too weakly connected to another person’s duty. A right exists where the protected interest has the normative strength to ground duties in others.

This formulation should be used carefully. It does not mean that every duty is grounded in a right. Duties may arise from promises, roles, gratitude, fairness, public office, criminal law, or general moral reasons without being owed to a specific right-holder. Nor does it mean that rights are absolute. The interest grounding a right may be outweighed by competing rights or other powerful reasons. Raz’s point is structural: rights are a distinctive way in which individual well-being figures in practical reasoning.

1. Raz’s account is an interest theory rather than a will theory. The will theory, associated in different forms with Hart, H L A Hart’s essays on rights, and later writers such as Hillel Steiner and, in legal theory, Nigel Simmonds in some contexts, treats rights as protecting the right-holder’s choice or normative control. A right-holder typically has powers to waive, enforce, or demand performance. That model fits many private-law rights, especially contractual and proprietary rights. If A owes B £100, B may release the debt. The right marks B’s control over A’s duty.

Raz’s objection is that the will theory is too narrow. Children, persons lacking capacity, and future persons may have rights though they cannot exercise powers of waiver or enforcement. Animals, if they have rights, would present a still sharper example. More generally, some rights protect interests regardless of whether it is good for the right-holder to control the duty. A child’s right to education is not plausibly constituted by a power to waive education. Raz therefore makes well-being, not choice, foundational.

1. Hohfeld remains necessary but incomplete. Raz’s theory does not displace Hohfeld. It presupposes analytical clarity about the incidents of rights. A ‘right to free speech’ may include a liberty to speak, a claim against state interference, an immunity against certain legislative burdens, and powers to challenge unlawful restrictions. Hohfeld helps identify these incidents. Raz asks a different question: what justifies treating the protected interest as capable of grounding duties? In exam terms, Hohfeld supplies grammar; Raz supplies moral explanation.

The cases below are not ‘Raz cases’ in the narrow sense. They are better understood as doctrinal illustrations of the jurisprudential themes: source-based legality, rights as constraints on power, proportionality, interpretation, and the institutional form of rights protection. In a jurisprudence essay, use cases sparingly and analytically. They should not displace theory.

Entick v Carrington is the classical starting point for legality. State officials broke into Entick’s house under a warrant issued by the Secretary of State. The court held that executive power required legal authority. The case illustrates a rights-protective conception of legality before modern human rights instruments. It is not Razian in origin, but it fits his insistence that legal rights and duties must be identified through sources rather than official assertion.

R v Secretary of State for the Home Department, ex p Simms shows common-law rights reasoning before the Human Rights Act came fully into force. Prisoners challenged a policy restricting oral interviews with journalists. The House of Lords held that fundamental rights cannot be overridden by general or ambiguous words. For Raz, the case illustrates how legal systems may contain source-based interpretive principles that protect rights. It need not show that judges are discovering legal rights solely through moral reasoning; the common law itself supplies the legal principle.

R (Daly) v Secretary of State for the Home Department is central to the transition from Wednesbury review to proportionality. The policy permitting examination of legally privileged correspondence in a prisoner’s absence was unlawful. The case illustrates how rights intensify review. Raz can explain this as law incorporating structured moral and practical reasoning where important interests, such as legal professional privilege and access to courts, ground duties of restraint.

Ghaidan v Godin-Mendoza is the leading section 3 case. The House of Lords interpreted the Rent Act 1977 so that a same-sex partner could succeed to a statutory tenancy as a surviving spouse. It shows how a statutory interpretive duty can require courts to depart from ordinary linguistic meaning while remaining constrained by the legislation’s underlying thrust. Jurisprudentially, it is an excellent example of source-based incorporation of moral rights reasoning.

A v Secretary of State for the Home Department, the Belmarsh case, illustrates rights as constitutional limits on emergency power. Indefinite detention without trial of foreign terrorist suspects was held incompatible with Convention rights. Lord Hoffmann’s speech is often cited for the proposition that abandoning legality may threaten constitutional order more deeply than terrorism itself. Raz would treat the case as showing the moral importance of rights and the legal significance of statutory rights instruments, not as proving that unjust detention powers cannot be law.

Nicklinson concerns assisted dying and the institutional allocation of rights questions. The Supreme Court accepted that Article 8 was engaged, but a majority declined to issue a declaration of incompatibility at that stage. The case is useful because it shows that recognising a rights interest does not settle institutional competence, remedy, or democratic legitimacy. Raz’s theory is sensitive to this: rights ground duties, but the specification of duties and institutional settlement may require further reasoning.

UNISON is a modern constitutional rights case concerning access to justice. Fees for employment tribunal claims were quashed because they effectively prevented access to the courts. Although not a Human Rights Act case in the simple sense, it treats access to justice as inherent in the rule of law. The Razian lesson is that legal institutions may recognise certain rights-like interests as conditions of the legal system’s practical authority. If people cannot use the courts, legal rights become formal rather than effective.

See practice questions section below.

See further reading section below.