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9 Res Publica 1 (2003)

handle is hein.journals/respub9 and id is 1 raw text is: DERRICK DARBY GROUNDING RIGHTS IN SOCIAL PRACTICES: A DEFENCE ABSTRACT. This paper defends a social practice conception of moral rights posses- sion against what many of its critics take to be a decisive objection, namely that such a conception prevents us from using moral rights for critical purposes. KEY WORDS: Dworkin, Hart, moral rights, moral rights positivism, rights Many rights theorists would contend that if we have learned nothing else from the legacy of modern Western moral and political thought since John Locke, we should have learned that there exists a class of rights commonly referred to as 'natural rights', 'human rights', or '(pre- conventional) moral rights' which are possessed by persons regardless of whether these rights have been recognized by society, law or even by the individuals themselves. Anyone familiar with this venerated tradi- tion should know, moreover, that what makes such rights so well-suited to protect individuals from society, from law and, at times, even from themselves, is precisely that they do possess these rights independently of whether or not they are socially recognized, maintained and enforced. Fortunately for us, so the view concludes, we possess moral rights whether or not they have been recognized in societal customs, laws or even in the hearts of men and women; and these rights define the scope and limits of political authority and individual freedom. A recent development in the theory of rights, however, has been the promotion of a social practice conception of moral rights possession.1 Because this approach provides us with what is, to my mind, a much more viable alternative to the orthodoxy, I shall come to its defence. Some philosophers who have followed the orthodoxy have concep- tualized moral rights possession in terms of a subject's having a claim validated by moral principles.2 From this vantage-point the moral justi- 1 L.W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987); Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993); and Derrick Darby, 'Two Conceptions of Rights Possession', Social Theory and Practice 27 (2001), 387-417. 2 Joel Feinberg, 'The Nature and Value of Rights', The Journal of Value Inquiry 4 (1970), 243-60. A slightly modified approach holds that possessing a moral right is a matter of possessing not just any kind of moral claim, but a moral claim that trumps other moral claims, in particular those grounded by utilitarian considerations. See for example LA Res Publica 9: 1-18, 2003. O © 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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