New York University Journal of Law and Liberty, Vol. 4, No. 1, pp. 70-111, 2009
43 Pages Posted: 2 Oct 2009
Date Written: October 2, 2009
The concept of natural rights plays a prominent role in legal and political discourse. Philosophical debates surrounding the concept have focused on three distinct questions. The explanatory question asks how it is or could be possible that people hold natural rights. The analytical question asks what is the clearest or most useful conceptual framework for analysing rights claims. Finally, the normative question seeks the most morally desirable understanding of natural rights for legal and political purposes. This article examines each of these questions and outlines a possible response.
The article begins by considering the explanatory question. I argue that the concept of natural rights can usefully be explained by reference to the role in human social experience of ontological freedom; that is, the sense of simultaneous freedom and responsibility that accompanies ethically significant choices. The analytical question is then explored in terms of three possible conceptions of rights: absolute rights, pro tanto rights and prima facie rights. I argue that the most useful framework for analysing rights is one that includes both absolute rights and prima facie rights, but omits pro tanto rights. I also consider the conceptual distinction between negative and positive forms of political freedom, arguing that it is best understood in terms of the different varieties of rights invoked by the two conceptions.
The article then uses the explanatory and analytical frameworks already outlined as the basis for a response to the normative question. I contend that an examination of the human experience of moral choice, as invoked in the explanatory notion of ontological freedom, yields a picture of political discourse as balancing a strong prima facie right to non-interference on the part of each individual against a range of narrower, but potentially more weighty prima facie rights to positive assistance in the performance of particular actions. The resulting theory provides an illuminating, although by no means exclusive, normative framework for evaluating some of the most significant rights claims that figure in legal and political contexts.
Keywords: Rights, freedom, liberty, Berlin, Hohfeld, Nozick, Sartre
Suggested Citation: Suggested Citation
Crowe, Jonathan, Explaining Natural Rights: Ontological Freedom and the Foundations of Political Discourse (October 2, 2009). New York University Journal of Law and Liberty, Vol. 4, No. 1, pp. 70-111, 2009; University of Queensland TC Beirne School of Law Research Paper No. 09-24. Available at SSRN: https://ssrn.com/abstract=1481573