DRAFT

Reasons to Justify Rights

Juan A. Cruz Parcero 1

juan.cruzparcero@law.ox.ac.uk

This presentation aims to give a general picture of the role of rights in practical reasoning.
I begin by reviewing some of Joseph Raz's central ideas: that rights are intermediate
conclusions in practical reasoning; that they are grounds of duties; and that some rights
justify other rights. I then propose an analysis of the reasons that justify rights and the
relations between them. I will consider two main kinds of reasons discussed by Raz:
individual self interest and general or common interest. This is an introductory (and
unfinished) work that identifies central issues but also points to remaining challenges in
the understanding of rights.

1. Introduction

Of the many questions concerning practical reasoning, the one that concerns us
here is the role of rights in reasoning. Legal and moral reasoning are especially
involved in the use of rights as reasons, but it is not at all clear what the role (or
roles) rights play, even when there are some important contributions to clarify
these problems. I will start my approach to the issue by considering the distinction
between a) problems concerning the use of rights in reasoning (for example, to
impose duties, or problems concerning the notion of rights as reasons for action),
and b) problems related to the reason or reasons that justify or establish a right.
Both kind of questions are related because we need in both cases to have a
previous idea of what rights are. In the first case we assume that there are at least
some rights, and that there are some reasons to think so; whereas in the second
case we try to establish which reasons these are. We try to establish which reasons
these are in order to have a more accurate idea of these rights and in order to
justify them. The role of rights as reasons in the first case allows us to arrive at
other conclusions: sometimes to arrive at another right, other times to contribute to
guide some actions, and often to justify or support the imposition of duties upon
others. The second kind of problem concerns the way in which we try to justify the
idea that some rights exist; we use the idea of rights as a certain kind of conclusion
to be justified. In this sense the idea of rights is susceptible to attract some kind of
reasons that make the right worthy of acceptance.
1
Academic Visitor and researcher at Philosophical Research Institute, UNAM-Mexico.

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 Consider some examples or some questions concerning each type of problem.
1) Problems concerning reasoning with rights:
a) Rights seem to be used as premises in some kinds of argument. For
example, to establish a derivative or concrete right we use another
broad or core right; but what kind of reasoning is involved? Is it
deductive or inductive? Or could the reasoning be of a different
type?
b) How does the distinction between abstract rights and concrete rights
work?
c) We consider that rights are a kind of reasons, but we usually do not
use them as reasons to act; so what kind of reasons are rights?
When do we use them as reasons to act? When we use them as
reasons to act, are they could be second order reasons to act?
d) Some people think that rights justify some kinds of wrongdoing, but
what actions are justified by rights exactly?
e) How are we to explain their function as reasons to hold others under
a duty?
f) What does it mean to say that rights have a special weight in
reasoning?
g) Rights conflicts with other rights and with other reasons; but what
does it mean to say that there is a conflict in such cases? How are
we supposed to solve these conflicts?
h) We relate the idea of balancing with the way in which some
conflicts of rights are solved; but this idea has many problems;
what exactly are we doing when we balance two rights?
i) What is the difference between practical (moral) and legal
reasoning concerning rights? How do we use the idea of rights in
each context?

2) Problems concerning reasoning to justify rights:

a) What kind of reasons do we use to justify a right?
b) Is there a difference between reasons in favor of rights, and what
rights are?

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 c) How are the reasons concerning individual well-being or interests
connected with rights?
d) What kind of interest or aspects of the well-being of an individual
serves to justify rights?
e) What other reasons are involved in the justification of rights?
f) How are individual and social interests connected in order to justify
a right?
g) How can we understand the idea that rights are a kind of
conclusion? What kind of conclusion are they?
h) Is it possible to justify some rights by appealing to the idea of there
being duties?
i) How are interest and values related?
j) What is the value of rights?
k) Is it possible to establish the steps involved in the justification of
rights?

I want to make clear that the distinction made between two kinds of
problems has merely an heuristic purpose. It is not a closed list of questions, and it
is not intended as a distinction concerning the nature of the problems involved. The
only criteria I use to make the distinction is what appears to be the direction of the
reasons: reasoning from rights and reasoning to rights. But this distinction could be
misguided in many ways (we will see some of them later) , and I propose to take it
just as a starting point of our inquiry.

2. The Razian model

Instead of considering previous problems concerning the nature of rights, their
definitions, and so on, I shall begin my inquiry with a general view of rights in
reasoning. I want to support my account on the basis of Joseph Raz’s well known
theory of rights. This theory has many advantages for our purposes. One of them is
that Raz gives us a picture of rights in reasoning, and some of his ideas are an
important point to start our search.
I do not want to explain his whole theory, but it will be necessary to present
some of his ideas in order to clarify our point of departure and some problems that
will come into consideration.

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 As many know, Raz thinks that rights are conceptually connected with
reasons. He defines rights as follows:

Definition: “X has a right” if and only if X can have rights, and other things
being equal, an aspect of X´s well-being (his interest) is a sufficient reason
for holding some other person(s) to be under a duty.
Capacity for possessing rights: An individual is capable of having rights if
and only if either his well-being is of ultimate value or he is an “artificial
person” (e.g. a corporation). (Raz, 1988:166)

The following scheme is an intent to illustrate his general account of rights as

“intermediate conclusions in practical reasoning”, i.e., to summarize his view of
the place that rights occupy in practical reasoning:

2nd order reasons?

action

Individual’s, Derivative
rights
or group’s
individual
interests
Duties Action
Rights

Other
other (plus)
considerations: other (plus)
Public interest or considerations Peremptory
Common good reasons

Let me make four remarks to clarify the scheme. First, Raz says that to assert
that an individual has a right is to indicate a ground for a requirement for action of a
certain kind, i.e., that an aspect of his well-being is a ground for a duty on another
person. The specific role of rights in practical thinking is the grounding of duties in the
interest of other beings (1988:180). The interests are part of the justification of the
rights which are part of the justification of the duties. Assertions of rights are typically
intermediate conclusions in arguments from ultimate values to duties. They are points

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in the argument where many considerations intersect and where the results of their
conflict are summarized, to be used with additional premises when need be. Such
intermediate conclusions are used and referred to, as if they were themselves complete
reasons. (1988: 181).
I am interested in the ideas that rights are “grounds for requirements of actions”,
that interests are “part of the justification of rights”, that rights are “intermediate
conclusions”, and in the issue that in some sense there is a argumentative relation that
moves from ultimate values to duties.
Second, individual interests, or more specific interest of the right-holder, are only
part of the justification of rights; there are two kinds of arguments that are related with
that interest. On the one hand, we have the interests of other persons; on the other hand,
we have general interests or common good considerations. In the first case the other
person’s interest is served by serving the right-holder’s interest. For example, the right
of the parent to a payment or a tax reduction in order to benefit his child (child benefit)
(Raz, 1995: 50). In this type of cases the interest of other persons matters in order to
justify the right. The weight of the right depends on the conjunction of both interests,
because there is what Raz calls an “harmonious dependent relation” (1995: 51). But this
kind of case is not the central one. The second case is the most important and common
type. Most rights are based on the general interest 2 as well as on the interest of the
right-holder (1995: 52), in his own words:
The protection of many of the most cherished civil and political rights in
liberal democracies is justified by the fact they serve the common or
general good. Their importance to the common good, rather than the
contribution to the well-being of the right-holder, justifies the high regard
in which such rights are held and the fact that their defence may involve
considerable cost to the welfare of many people. When people are called
upon to make substantial sacrifices in the name of one of the fundamental
civil and political rights of an individual, this is not because in some
matters the interest of the individual or the respect due to the individual
prevails over the interest of the collectivity or of the majority. It is because
by protecting the right of the individual one protects the common good
and thus serving the interest of the majority (1995: 52-3).

2
Raz uses the expressions “the general interest”, “interest of the collectivity”, “common”
or “general good”, and “interest of the majority”, interchangeably. But he clarifies that he
does not use this terms to refer to the sum of the good of individuals, but to those goods
which serve the interest of people generally in a conflict free, non-exclusive, and non-
excludable way (1995: 52).

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 We can add that this case is the central one because even in the cases where
the interests of other persons are involved, their importance depends on their
contribution to the general interest too.
Raz’s account is essential because it helps us to explains one of the main
issues involved in the special importance (that is, the force or the weight) we use to
attach to rights in most liberal theories, in democratic systems, and in international
law. This point is usually overlooked by individualist accounts of rights, and by the
critical theories of rights, which give a distorted view of the importance of rights,
overestimating the force of the individual interest (see Raz 1995b: 31-40). The
misunderstanding also moves many judges and officers to see a false dilemma
between individual rights and the general interest, distorting the argumentation
involved in justifying one of them.
Perhaps the scheme can be presented in other way to clarify the relation
between the interest of the right-holder (and other persons’ interest), and the
general interest:

Right-
General holder’s or
interest other Rights
person’s
interests

Third, rights are grounds of duties and duties are reasons for action. Rights
ground duties: not just one, sometimes many. 3 Rights are grounds of “waves of
duties”, to use an expression of J. Waldron (1993: 212). Rights in Raz´s view are

3
To accept this does not imply the idea that this is the only way to ground duties. Some
scholars think so, but there is no strong reason to agree with them. Some duties can be
grounded in moral considerations which do not involve rights, and sometimes we can
arrive at similar duties to those grounded by rights, from different considerations. What
rights add to the justification of duties in all cases is the interest of the right holder and his
connection with other interests and with the general good. When we use the idea of rights,
we bring into consideration the value of the individual interests. Perhaps many duties are
justified only from the point of view of rights, but not all. Other duties finds a robust or
strong ground on rights, but there are alternative ways to ground them without appeal to
rights. This is so because even in the justification of rights there are many considerations
of different sorts. Rights, as Raz says, are points in the argument where many
considerations intersect and where the results of their conflicts are summarized
(1988:181), in this sense some of these considerations can be directed to ground duties in
alternative justifications.

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not correlative with duties, so it is wrong to translate statements of rights into
statements of “the corresponding” duties. A right in one person is not a duty on
another. This is so because rights are viewed as reasons and not as legal relations
between two agents, as is common in many theories or accounts of rights such as
the kelsenian theory or the hohfeldian account. There is no closed list of duties
which correspond to the right. A change in circumstances may lead to the creation
of new duties based on the old right. This is what Raz call the dynamic aspect of
rights, their ability to create new duties. We can then understand why rights are not
the only kind of considerations that justifies holding another person to have duties.
There are many kinds of circumstances that can count at the same time.
Raz´s definition of rights intentionally preserves an ambiguity between
saying that rights are reasons for judging a person to have a duty, and saying that
they are reasons for imposing duties on him. But the first is the main role of rights
because, as reasons, rights are just a part of the justification for imposing duties
(1988: 172).
Fourth, rights can also be seen as reasons for action and many times as
reasons or grounds for other rights, which Raz calls, derivative rights. Rights can
be taken as ordinary reasons for action, but normally not by the right-holder but by
other persons who use them to judge or criticize, to refrain or to do something.
This person may be subject to duties related to the right (in that case his actions are
related indirectly with the right through the duties). But sometimes the person is
not subject to duties, but acts using rights as reasons to claim for rights of others, to
criticize some persons, to act in order to secure, promote or realize the content of
some rights, etc. 4
Rights also serve as grounds for other rights which can be called derivative
rights. According to Nickel, there are three ways in which one right can imply or
justify another:
1) When one right is general or abstract and this implies that there are some
other specific rights. “The scope of the former includes the scope of the latter”
(1987: 101). For example, the right to health implies the right of children to
vaccines, the right to receive medical care, etc. But some remarks are important
here, because as Raz has noticed that relation is not necessarily from abstract or

4
If rights are second order reason or are first order reasons is an issue that I will discuses
in other time.

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general rights to concrete rights; rather, it is a relation between what he calls
“core” rights and “derivative” rights. The relation is one of justification, not merely
of scope. Raz says that for example that the general right to freedom of expression
is a derivative one, even when many times we refer to it as an abstract or general
right that implies other rights and freedoms of political speech, commercial speech,
freedom of artistic expression, scientific and academic communication, etc. For
him the freedom of expression is a mere generalization from the existence of
several independent core rights. We can conclude with him that a general right
statement does not entail those statements of particular rights which are instances
of it (1988, 168-170). We can have, for example, the right to free speech without
have the right to deny the holocaust.
2) When a right (R1) serves to make violations against to another right (R2)
less likely, even if the two rights operate in different spheres. For example, if the
right to freedom of the press is regularly used to expose official misconduct, it will
help to deter officials from violating the right to due process in criminal trials
(1987: 101). Here, in some sense, R2 serves to justify R1.
3) When the effective implementation of a right (R1) requires the
implementation of another right (R2), even if R2 is not normally thought to be
included in the scope of R1. For example, the implementation of the right to
freedom of assembly may require the implementation of a right to security against
violence (1987: 101). R1 justify R2.
Some further remarks are needed to start our inquiry with a general picture
of the problems of practical reasoning concerning rights: a) The scheme provides
us with an idea of some of the steps or stages involved in reasoning, but it is
merely an approximation, because it seems that not all the relevant steps are
considered. So we have to complete this model, and develop each one of the stages
to look for the kind of reasons implicated and the relevant relations with other
considerations. b) One problem with our initial distinction between reasoning with
rights and reasoning to justify rights is that although rights are part of the
justification of duties, in order to justify rights we have to consider some facts and
circumstances to allow us to hold others to be subject to duties on others. That is,
we have to consider the possibility and feasibility (practicability) of imposing
duties on others or, at least, improve conditions or create institutions to doing so.
These general facts count in favour of asserting that a right exists. This is the

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reason to consider that rights, even the more abstract ones, are related to duties,
and sometimes this idea takes us to the misleading thought that a right always has a
correlative duty. But what I want to remark here is that considerations in favour of
imposing duties on others are relevant as well as to justify rights. For example, to
affirm that a (moral) right to education exists, implies that together, with other
considerations, it is possible to claim education before the state, parents, or other
people, and that some of the resulting burdens are tolerable, that is, they are not
beyond the limits or capacities of humans beings or their institutions. Many
proposed rights fails to fulfil this requisite, as for example, the claim that we have
a right to be happy. This is a stage to be considered in our account. c) There is an
argumentative route from ultimate values to duties in Raz’s view that we have not
considered yet, but I do not want to advance anything about this problem, because
if we take the idea that values are, roughly speaking, an expression of a practical
conclusion from some properties that we consider good or valuable (Scanlon,
1998: 97), the possibility that values could be a distinct stage could be misleading,
so I prefer to be cautious about it.

3. Right-holder’s interests as reasons to justify rights

There is a conceptual connection between rights and the interests of the right-
holder, because the concept of a right is explained as a kind of thing which protects
some interests carried or entailed by the right-holder. These interests can be seen as
his/her interests even when he/she is not the direct beneficiary, as we have seen
before. All rights relate considerations concerning general interests with individual
(or collective) interests, and make them dependent on the right-holder, not in the
sense that the right holder has to claim it, but in the conceptual sense that anything
that implies the protection (or securing) of the right-holder’s interest presupposes –
at least prima facie- a protection of the general interest served by the right-holder’s
interest. This doesn’t mean of course that all actions performed by the right-holder,
and which can be seen as the exercise of her right, in fact do contribute to the

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common interest; quite the opposite. Sometimes the right holder can exert her
rights against the common interest. 5
For example, as Raz says, freedom of speech is based on a) the speakers’
interest, b) the audience’s interest, and c) third parties’ interests, and only the first
is the interest of the right holder, the interest of a person in being able to
communicate with others. The second (the interest of other persons in hearing
them) and the third (the interest of people in living in a society in which
communication is free) are interests of other people (1988: 179). But the important
point is that the change of some kind of reasons into rights depends necessarily on
some individuated interest, or in other terms, in order to take some considerations
as part of the reasons that justifies a right, must links or connects with individual
interests or group’s interest.
What kind of right-holder’s interests count to justify a right? Well, the
obvious answer in the light of the former considerations is that no individual
interest by itself can count as a sufficient reason, but we could think that some
types of individual interests are may be necessary. So we can reformulate the
question and ask: what kind of right-holder’s interests are necessary to justify a
right? To answer this question we need to see first what is an individual interest.
If we look into the razian view, the concept of individual interest is
explained in terms of the notion of individual well-being. It is not easy to
summarize his view on this issue, but we can say that personal well-being depends,
on the one hand, on the satisfaction of some goals or aims which a person chooses,
drifts into, or grows with. On the other hand, well-being depends on the
satisfaction of certain biologically determined needs which constitute his/her
interest. Self interest (or individual interest) is connected with these biological
needs. But this distinction is not clear enough because there are no pure
biologically determined needs, or at least many of them depend or are connected
with goals and desires not boilogically determined. We need food and water to
survive but these needs are related to many aspects of the social, cultural and
economic relations of our societies (an organization of production, a market,

5
The idea of abuse of rights entails that some actions, covered prima facie by the content
of the right, contradicts the reasons that justify that right. A different case is when the
action performed by the rights holder is morally wrong, in this case it could be so because
contradicts the general or common interests, but not all actions that contradicts the general
interest are morally wrong.

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potable water supply, culinary traditions, etc.), and with other aims or goals of the
individual. We also need to breath, and in many cases we satisfy this need just by
breathing, but in some cases we say that we need to breath clean air when the air is
polluted, and to do it some people travel to mountains or the beach and others buy
a chalet in the countryside; some ill persons need to be connected to oxygen, and
others needs to stop smoking, etc.
One of the differences between the two notions is that self interest in many
cases is indifferent to a person’s success or failure in the pursuit of her goals and
desires. But the satisfaction of well-being depends at large in the success of the
goals that the person has.
Self-interest –Raz conclude- is what remains after substracting from
the wider notion of well-being success in the projects whose value is
their contribution to the well-being of others (corroborate, 1988:
297).

It seems that the conceptual connection between rights and interests consists
in the connection between a right-holder and his/her interests. Right-holders are
creatures who have interests as Raz asserts. (1988: 176).
But is important not to confuse the idea that rights holders have individual (or
collective) interests with what is required to be capable of having rights, i.e., with
what is required to be considered a rights holder. For Raz, what counts for having
rights is the value of well-being and not the value of the interests of the individual
or creature. There are reasons to suppose, Raz says, that “only those whose well-
being is of ultimate value can have rights so only interests which are considered of
ultimate value can be the basis of rights” (1988: 178). 6 This idea introduces some
confusions by mixing up the two issues, but he notices that there are many counter-
examples demonstrating that some rights protect interests which are considered as
of merely instrumental value. All the rights of corporations are justified by the
need to protect the interest of these corporations but these are merely of
instrumental value. This moves Raz to conclude that “(apart from artificial
persons) those whose well-being is intrinsically valuable can have rights; but that

6
Being of ultimate value -in Raz terms- is being intrinsically valuable and its value does
not derive from its contribution to something else, but not everything which is intrinsically
valuable is also of ultimate value (1988: 177), because his value derive of his contribution
to other things. For instance, Raz says that is possible to consider that a dog has intrinsic
value for its contribution to a relationship with persons, and in this sense it is his
contribution for the well-being of these person which is of ultimate value (1988: 178).

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rights can be based on the instrumental value of the interest of such people” (1988:
180).
Therefore, what counts for having a capacity to have rights is that the well-
being of the individual or creature has to be of intrinsic value. While the value of
the interests of these individuals or creatures could be either of ultimate, intrinsic
or instrumental value. It is important to make the difference clear, because it is
one thing to justify the capacity of some individuals or creatures to have rights (a
question that often appears as a discussion about the concept of person or
personhood), and it is another thing to justify the claim that such individuals or
creatures have certain rights. So, we can say, that a necessary step in the
justification of a right is to affirm the capacity of the right-holder to have rights.
Many times this reason is implicit in central cases that concern rational adult
human beings, but with other creatures or certain human beings (animals, or
certain human beings such as babies, the comatose, the mental ill, etc.) it is often
necessary to justify this premise too. 7
In this light we have to take account of two argumentative stages, one that
establishes the intrinsic value of the well-being of the individual (creature or
group), and another stage that establishes the individual interest (self interest), or
the group interest. We can see clearly how each of this two stages works if look to
the case of collective rights, used by Raz in “National Self determination” (1995a).
In this work, in order to justify the right of some groups to self-determination, Raz
has to justify first the intrinsic value of some groups (the comprehensive ones), and
then justify the collective interest in self determination.8 James Griffin (2001) in
order to justify human rights has to justify the standing of human beings. The idea
of personhood serves him in this purpose, but as he says the same idea imposes

7
Besides, in relation to some rights special capacities or special features of the
right holder are needed (e.g. status as an adult, a citizen, a worker, an owner, a
woman, etc).
8
If we consider individual right-holders then there is a necessary connection with
self-interests, but if we take collective right-holders (groups, corporations, etc.),
then the connection with self-interest is not obvious, or at least is not a direct one.
Raz has asserted that collective rights are the cumulative interest of many
individuals, but this idea seems to me a controversial one; may be collective
interests are not the sum of individual interest, or may be, at least, we have to
explain the sense of this aggregative idea. Nevertheless, it is not necessary to solve
this problem here, because in some sense collective interests have to be connected
with the individual interests of the members of the group.

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some constraints on the kind of rights that can be justified. This remark is
important because it shows that the two stages are related, in the sense that the way
in which we justify the capacity to have rights imposes some conditions on the
relevant interests that we can attach to the right-holder. If the value of human
beings rests, in Griffin´s terms, in their autonomy and liberty, then the rights that
can be justified are those that connect to these ideas, and he rejects, for example,
ideals of a happy, perfect or flourishing human life (2001: 312).

References
James Griffin (2001), “First Steps in an Account of Human Rights”, European
Journal of Philosophy, 9, 3, Blackwell, pp. 306-327.
James W. Nickel (1988), Making Sense of Human Rights, University of
California Press, Berkeley.
Joseph Raz (1988), The Morality of Freedom, Clarendon Press, Oxford,
Paperback edition.
Joseph Raz (1995a), Ethics in the Public Domain. Essays in the Morality of
Law and Politics, Clarendon Press, Oxford, Paperback edition.
Joseph Raz (1995b), “Rights and Politics”, Indiana Law Journal, Vol. 71,
1995-1996, pp. 27-44.
Joseph Raz (2004), “The Role of Well-Being”, philosophical Perspectives, 18,
Ethics, pp. 269-294.
Joseph Raz (2001), “The Central Conflict: Morality and Self-Interest”, in
Roger Crisp and Brad Hooker, Well-Being and Morality. Essays in Honour of
James Griffin, Clarendon Press, Oxford, pp. 209-238.
Thomas Scanlon (1998), What We Owe to Each Other, Harvard University
Press, Harvard.
Jeremy Waldron (1993), Liberal Rights, Cambridge University Press,
Cambridge.

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