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Once More about Rights: Problems of the Conception of Rights, their Relation to Law and their Nature

Summary/Abstract: This article, while disclosing the conception of rights, their relation to law and their nature, presents the constructive criticism and motivated support of legal personalism, i. e. the original theory presented by prof. A. Vaišvila. This article presents the criticism of terms “positive law” and “natural law”. It emphasizes that the term “natural rights,” while historically very important and common, is rarely used of late. The primary reason for its fall from favor seems to be that it was used in too many different ways and therefore ceased to be useful. So, the author, while defending the indispensable relation between law and morals, offers the term “good morals” instead of “natural law” and also offers to refuse the usage of terms “positive law” and “natural law”. This article represents the view that morality is the source of law. The author accepts a position asserting that the terms “human rights”, “natural rights” and “fundamental moral rights” are synonymous. However, some institutional rights (for example, social rights) flow from statutes, but not morals. Rights, which are abilities of human beings, are only the reflection of law. There are no legal rights and no law without society and beyond society. Equally, there are no moral rights and no morality (and justice) without society and beyond society. Although this article discusses some models of rights (claim-right or right stricto sensu, liberty or privilege, power and immunity), i.e. technical expression of rights, it still presents the conclusion that A’s right, even in the form of liberty, cannot be regarded independently of the duty(ies) on B that coexist with that right. The author analyses will (choice) and interest (benefit) theories interpreting the core of rights. Defenders of choice theories (H. L. A. Hart and the others) argue that a person has a right when others have duties which protect one of that person’s choices. A central problem for choice theories is the rights of beings that cannot choose (e. g., animals and human babies). If rights necessarily protect an individual’s choices then individuals who cannot choose cannot have rights. So the author rejects this theory. However, the author, as do other Lithuanian scientists, defends the interest (benefit) theory. Defenders of interest theories (J. Bentham and the others) argue that a person has a right when others have duties which protect one of that person’s interests. Perhaps the central objection to interest theories is that there seem to be rights which are not in the interest of the right-holder. One might inherit some property which is literally more trouble than it is worth. So the author emphasizes that the interest (benefit) theory may be applied only with some reservations.

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