Human rights are rights which all persons equally have simply insofar as they are human. But are there any such rights? How, if at all, do we know that there are? It is with this question of knowledge, and the related question of existence, that I want to deal in this paper. 1. CONCEPTUAL QUESTIONS The attempt to answer each of these questions, however, at once raises further, more directly conceptual questions. In what sense may human rights be said to (...) exist? What does it mean to say that there are such rights or that persons have them? This question, in turn, raises a question about the nature of human rights. What is the meaning of the expression “human rights”? Within the limits of the present paper I cannot hope to deal adequately with the controversial issues raised by these conceptual questions. But we may make at least a relevant beginning by noting that, in terms of Hohfeld's famous classification of four different kinds of rights, the human rights are primarily claim-rights, in that they entail correlative duties of other persons or groups to act or to refrain from acting in ways required for the right-holders' having that to which they have rights. It will help our understanding of this and other aspects of human rights if we note that the full structure of a claim-right is given by the following formula: A has a right to X against B by virtue of Y. There are five main elements here: first, the Subject of the right, the person or persons who have the right; second, the Nature of the right; third, the Object of the right, what it is a right to; fourth, the Respondent of the right, the person or persons who have the correlative duty; fifth, the Justifying Basis or Ground of the right. (shrink)

The purpose of this paper is to explore the possibility of a new form of right that is both antidisciplinarian and liberated from ‘sovereignty’, the term Michel Foucault uses for what he claims to be the traditional theme of modern political philosophy. Some attempts to derive a theory of right from Foucault’s critique have been made. However, by their own admission they do not yield a coherent and adequate theory, and other work has demonstrated the major problems inherent in Foucault’s (...) critique that render such a project problematic. This paper takes a different approach by revising the philosophical foundations of modern democracy with the goal of developing a new theory of right that addresses the problems that Foucault identified. To provide a theoretical context for this exploration, Foucault’s key concepts of disciplinary technologies, power, the construction and maintenance of human subjects, and the role of the human body in human subjection are briefly reviewed. The main analysis will focus on the ideas of three political theorists whose respective works represent the core of ‘sovereignty’, and who are indisputably basic to any student of Western political theory, namely Hobbes, Locke and Rousseau. The aim of this analysis is not to provide another critique of their virtues and shortcomings. Instead, the work of these thinkers is used in a pragmatic way, to elicit a new form of right that could serve as a counter to disciplinary power. Key Words: civil right • Enlightenment • Foucault • natural right • political philosophy • political theory • postmodern critique • social justice. (shrink)