If one were to presume that we already understand what a right is, what is it that makes us rights holders? Are the things that people rights holder to do with our species membership and do they apply to all members of our species or could we extend this thinking to non humans. In order to understand this one must question the very nature of what makes our rights enforceable by exploring the works of MacCormick, Hart, Kant and Hohfeld. Hillel Steiner said “A right exists when the necessary and sufficient condition of imposing or relaxing the constraint on some person’s conduct is another person’s choice to that effect” H.L.A. Hart’s choice theory coincides with this view and dictates that it is through desire and the choices we make that our rights derive. Hart claimed that the most basic right of all is freedom which is a moral right. Essentially any other right is a specific protected freedom whether the right is moral or legal. Limiting anyone’s freedom always requires the authorization of others’ rights; and the subjects of rights remain free to “claim” them or not. One of the great problems that this theory raises is its applicability to animals. Under will theory animals cannot have rights. Without a concept of basic freedom and an understanding or the idea of limiting of rights it is difficult to believe they could comprehend the idea of having rights. It can be said that animals have desires as humans do in the most primitive form. However even if animals could understand rights they would not be able to communicate this to the wider world and therefore the basic underpinning of will theory would fall down as they would not have the power to accept or waive rights and thus would have none at all. If this line of thinking was applied to humans it would be arguable that those unable to communicate such as individuals in a vegetative state such as Bland in Airedale v Bland would not be able to claim or waive their rights and therefore have none.

Written by

I'm Colleen!

Would you like to get a custom essay? How about receiving a customized one?

Check it out