2However, it need not be. See Hohfeld, W. Fundamental Legal Conceptions. Yale University Press, New Haven, 1919, 71, in which the author distinguishes between four types of legal rights: claim rights, privileges, powers and immunities.
3Locke. J. Two Treatises of Government. Rev. ed., Cambridge University Press, New York, 1963, 301-311.
4Thus Locke's theory of deontological rights is "right-based" whereas Kant's is "duty-based". The distinction lies in the emphasis of the former school of thought on persons' moral entitlement to exercise their rights, and the latter's emphasis on the moral obligation of others to respect those rights (see Waldron, J. "Introduction" in Waldron, J. (ed). Theories of Rights. Oxford University Press, Oxford, 1984, 12-14). No distinction need be drawn between these theories for the purposes of this paper.
5Dworkin argues that the expressed preferences of voters in a democracy include "external" preferences as to distributions to others, which are not entitled to any weight if "everyone [is] to be treated with equal concern and respect" (Dworkin, R. Taking Rights Seriously. Duckworth, London, 1977, 275). The concept of a right is therefore
a response to the philosophical defects of a utilitarianism that counts external preferences and the practical impossibility of a utilitarianism that does not. It allows us to enjoy the institutions of political democracy ... [but prohibit] decisions that seem, antecedently, likely to have been reached by virtue of the external components of the preferences democracy reveals.(Ibid. 277).
6Dworkin, R. "Is There a Right to Pornography?" (1981) 1 Oxford J Leg Stud 177, 210-11.
7There are several other names for essentially the same
concept which I have chosen to avoid. The terms "absolute" or "categorical"
rights suggest that autonomy rights can never be overriden. Many authors
believe that this goes too far (see Gewirth, A. "Are there Any Absolute
Rights?" (1981) 31 Philosophical Quarterly 1). Even Nozick has conceded that
it may be necessary to override rights "to avoid catastrophic moral horror"
(Nozick, R. Anarchy, State and Utopia. Basic Books, New York, 1974,
30). The terms "anti-utilitarian" and "trump" rights are avoided to prevent
confusion with the rights which Dworkin has posited (see note
above).
8
9See Dan-Cohen, M. Op. cit. (1986) 78-82.
10See Dworkin, R. (1977) Op. cit. 231-38; Rawls, J. A Theory of Justice. Belknap Press of Harvard University Press, Cambridge, 1971, 27.
11Such as HLA Hart's "equal right of all men to be free" (Hart, H. "Are There Any Natural Rights?" (1955) 64 Philosophical Review 175.)
12Such as Dworkin's fundamental right to "equal concern and respect" (see Dworkin, R. (1977) Op. cit.)
13See Raz, J. The Morality of Freedom. Clarendon Press, Oxford, 1986, 220.
14In Rawlsian terms, rights are a "primary good" which all persons are bound to have regardless of their conception of the good (Rawls, J. Op. cit. 93).
15One modern author who believes that it is (metaphorically speaking) is Alan Gewirth. His thesis is that
just as, in acting, [every agent] necessarily applies to himself and claims as rights for himself the generic features of action ... so he ought to apply these same generic features to all the recipients of his actions by allowing them also to have freedom and basic well-being and hence by refraining from coercing them or inflicting basic harm on them.(Gewirth, A. "The Is-Ought Problem Resolved" (1974) 47 Am Phil Assoc Proc and Addr 34, 57.) However this simply replaces one intuition - that human beings have rights to the protection of their autonomy - with another - that human beings ought to recognise in others the same autonomy which they necessarily claim for themselves.
16Kant, I. Op. cit. 95.
17Regan, T. Op. cit.
18Stone, G. "Should Trees Have Standing? - Towards Legal Rights for Natural Objects" (1972) 54 South Calif L Rev 450.
19French, P. Collective and Corporate Responsibility. Columbia University Press, New York, 1984; Fisse, B. and Braithwaite, J. Op. cit. 24-31.
20McDonald, M. "The Personless Paradigm" (1987) 37 Uni Toronto LJ 212, 219-20.
21Weinreb, L. "Natural Law and Rights" in George, R. (ed). Natural Law Theory: Contemporary Essays. Clarendon Press, Oxford, 1992, 278, 286.
22Regan, T. "An Examination and Defence of One Argument Concerning Animal Rights" (1979) 22 Inquiry 189. For a criticism of this argument see Liddell, G. "The Consistency-From-Marginal-Cases Argument for Animal Rights: A Critical Examination" (1985) 15 Vict U of Wellington L Rev 147.
23Some proponents of animal rights recognise this risk. Thus Galvin asks:
What rights should we reasonably expect to be in the best interests of animals? This question, of course, begs the more fundamental issue of whether we may be presumptuous enough or wise enough to believe that we know what is in their best interests.(Galvin, W. "What Rights for Animals? A Modest Proposal" (1985) 2 Pace Env L Rev 243).
24Stone, op. cit., agrees with this argument for according rights to natural objects, but describes it at p.476 as "sad" and "homocentrist", preferring the "less egoistic and more emphatic" justification of recognising those objects' own moral rights to preservation.
25In which case the rights would be derivative autonomy rights or utility rights, respectively.
26Rand, A. Op. cit. 102. Emphasis in original.
27Hessen, R. In Defense of the Corporation. Hoover Institution Press, Stanford, 1979, 115.
28Pilon, R. "Corporations and Rights: On Treating Corporate People Justly" (1979) 13 Georgia L Rev 1245, 1318.
29Dan-Cohen, M. Op. cit. (1986) 64-69.
30I do not assume that these rights may only be justified on autonomy grounds; utilitarian justifications for the same rights may also apply.
31It may be that some of the economic, social and cultural rights in the Declaration make less tenable autonomy rights than its civil and political rights do. One right which has been criticised in this regard is that to "holidays with pay" in article 24 (see Cranston, M. What are Human Rights? London, Bodley Head, 1973, 67). However I need not enter this debate here, since the only economic, social and cultural right with even arguable application to corporations is the right to private property in article 17, and this has been considered an autonomy right ever since Locke.
32Cf. Rawls, J. Op. cit. with Nozick, R. Op. cit.
33These include both Rawls and Nozick.
34Compare the American Declaration of Independence, which having set out rights to "Life, Liberty and the pursuit of Happiness", continues: "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...".