Theories of rights | AQA A-Level Law

For Specification 7162

AQA A-Level Law | Free Revision Notes

Estimated study time: 45 minutes

Theories of rights A-Level Law revision asks a deeper question than simply identifying individual Human Rights: why should a person possess a Human Right at all? AQA requires the study of theories of rights alongside the distinction between rights and liberties and the scope of fundamental Human Rights. The specification itself does not prescribe named philosophers. However, AQA assessment material develops the topic through ideas including inherent rights, claim-rights, universality, inalienability, human dignity, autonomy and human development. These ideas provide the theoretical foundation for the legal rights studied throughout the Human Rights option.  

Learning Objectives 🎯

By the end of this revision page, you should be able to:

• Explain different theoretical ways of understanding Human Rights.

• Explain Human Rights as rights arising from the quality of being human.

• Explain the ideas of claim-rights, universality and inalienability.

• Analyse dignity, autonomy and human development as possible foundations for Human Rights.

• Apply theories of rights to Human Rights issues such as life, liberty, privacy and freedom of expression.

• Evaluate difficulties in deciding which interests should qualify as fundamental Human Rights.

Revision Notes 📚

What does AQA mean by theories of rights?

AQA lists “theories of rights” as part of the theory of Human Rights. It places this alongside:

• rights contrasted with liberties

• the scope of fundamental Human Rights.

Importantly, the specification does not name particular philosophers whose theories of rights must be learned. You should therefore avoid adding a long list of theorists simply because they appear in wider academic discussions of Human Rights.

AQA's assessment material instead shows the kinds of theoretical ideas students may use. These include:

• Human Rights as arising inherently from being human

• Human Rights as claim-rights

• universality

• inalienability

• Human Rights as fundamental rights

• the protection of human dignity

• protection of human agency or autonomy

• promotion of human development.

These ideas build directly upon the nature of Human Rights law [Lesson 161. The nature of Human Rights law] and prepare you for the more detailed distinction between rights and liberties [Lesson 163. Rights and liberties].

Human Rights as inherent rights

One theoretical approach is that Human Rights arise inherently from the quality of being human.

Under this understanding, a person does not have a Human Right merely because:

• a government decides to grant it

• Parliament passes legislation creating it

• the person has earned it

• the person belongs to a particular social group.

Instead, the right is connected to the person's status as a human being.

This provides a theoretical reason for treating Human Rights differently from many ordinary legal rights.

For example, a contractual right may arise because two people entered into a contract. By contrast, the theoretical claim behind a Human Right is that it belongs to a person because of their humanity.

AQA's 2020 mark scheme expressly identifies this inherent understanding when discussing the meaning and nature of Human Rights.

Why does the idea of inherent rights matter?

If Human Rights arise from being human, several consequences may follow.

The most important are:

• universality, because every human being possesses them

• inalienability, because they are not simply privileges that can be withdrawn at will

• a claim that Human Rights possess a particularly fundamental status.

These concepts are closely connected, but they are not identical.

Universality

Universality is the idea that Human Rights apply to human beings generally rather than only to selected people.

If a right truly arises from being human, it appears logical that it should not depend upon matters such as:

• nationality

• social position

• popularity

• political opinion.

This gives Human Rights their broad character.

The theoretical argument can be expressed as:

Human status → possession of Human Rights → rights applying universally

AQA assessment material identifies universality as a possible implication of understanding Human Rights as inherent rights.

Evaluating universality

The idea is powerful because it provides a reason for protecting every individual rather than allowing governments to decide which groups deserve particular basic protections.

However, AQA also allows critical analysis of whether supposedly universal Human Rights really have a universally accepted foundation.

For example, its 2020 mark scheme raises the question of whether rights-based thinking may itself particularly reflect liberal Western democratic ideas.

This creates an important evaluation:

Argument for universality: If rights result from humanity itself, every person should possess them.

Possible criticism: There may be disagreement between societies about exactly which interests deserve recognition as Human Rights and about how competing rights should be balanced.

💡 This does not mean that Convention rights are therefore legally optional. It is a theoretical debate about the nature and justification of Human Rights.

Inalienability

Inalienability means that Human Rights are understood as possessing a status which prevents them from being treated merely as privileges that can simply be taken away.

This follows from the inherent-rights argument. If a right comes from being human rather than from permission given by the State, the State cannot logically be the ultimate source of that right.

The theoretical sequence is:

1. A person possesses the right because they are human.

2. The right is therefore not simply granted by government.

3. Its existence cannot depend entirely upon whether government wishes to recognise it.

4. The right can therefore be described as inalienable.

AQA specifically identifies inalienability as an issue students may analyse when discussing the nature of Human Rights.

Inalienability does not mean every right is unlimited

⚠️ This is an important distinction.

Calling Human Rights inalienable does not mean that every Human Right can be exercised without restriction in every situation.

The AQA specification expressly requires students to study:

• justified exceptions to Article 2

• justified deprivation of liberty under Article 5

• restrictions affecting Articles 8, 10 and 11.

For example, the theoretical importance of liberty helps explain why Article 5 protects liberty and security of person, but Article 5 also contains circumstances in which deprivation of liberty may be justified.

You will examine those rules in detail through liberty and security [Lesson 173. Article 5: liberty and security].

The better distinction is:

The right itself is regarded as fundamental, but the exercise or protection of the right may still have to accommodate legally recognised competing interests.

Claim-rights

AQA assessment material also describes Human Rights as claim-rights.

A claim-right involves more than saying that somebody is free to do something. It implies a corresponding obligation or duty upon somebody else.

For example:

• if A has a claim-right that B must not do something,

• B has a corresponding duty towards A.

This relationship can be represented simply:

A's claim-right ↔ B's corresponding duty

This is important to Human Rights because recognising a protected Human Right commonly means that obligations are placed on the State or its authorities.

Rights and corresponding duties

Thinking in terms of claim-rights draws attention to two sides of a Human Rights relationship:

Right-holder	Corresponding position
An individual has a protected right	Another party may be placed under a duty in relation to that right
The right creates a claim	The duty constrains what may or must be done
The individual is protected	The protection requires obligations to be recognised

This is why simply saying, “Everyone should be free”, does not completely explain the nature of a legal Human Right.

A legal right may require another person or, particularly in Human Rights law, the State, to respect or protect the interest concerned.

The precise distinction between a claim-right and a liberty is developed next in rights and liberties [Lesson 163. Rights and liberties].

Human dignity as a foundation for rights

AQA's 2020 assessment material identifies human dignity as one possible principle for determining why something should be recognised as a Human Right.

Human dignity concerns the inherent worth of human beings.

Under this approach, an interest may deserve Human Rights protection because it is important to allowing people to live with the basic respect appropriate to human beings.

This can help explain why some interests receive particularly strong legal protection.

For example, protection of:

• life

• liberty

• private life

can be understood as protecting essential aspects of an individual's existence and integrity.

AQA's 2023 mark scheme similarly describes Human Rights as potentially reflecting a fundamental moral vision involving equality, universality and inalienability, with rights such as life, liberty and privacy protecting the integrity of the individual.

Human autonomy or agency

Another possible theoretical foundation is human autonomy, also described in AQA material as human agency.

Autonomy concerns a person's capacity to make choices and exercise control over their own life.

This provides a way of explaining why certain freedoms may be regarded as Human Rights.

A right protecting autonomy allows an individual greater ability to:

• make personal choices

• determine aspects of their own life

• develop as an individual

• participate in society.

For example, privacy may matter partly because control over personal information and personal life contributes to autonomy.

This idea connects naturally with the detailed study of privacy [Lesson 175. Article 8: privacy].

Human development and self-fulfilment

AQA also identifies human development as a possible basis for recognising fundamental Human Rights.

The idea is that certain protections are important because they enable people to develop their abilities, personality and identity.

This is particularly useful when analysing freedom of expression.

AQA's 2020 mark scheme identifies arguments connecting freedom of expression with:

• moral autonomy or moral independence

• self-fulfilment

• self-expression

• personal development.

The reasoning is:

1. Human beings need some freedom to make choices and develop themselves.

2. Expression allows people to communicate ideas, beliefs and identities.

3. It therefore contributes to personal development and self-realisation.

4. This provides a theoretical reason for treating freedom of expression as a Human Right.

You will study the legal rules protecting this interest in freedom of expression [Lesson 176. Article 10: freedom of expression].

Freedom of expression and democracy

Rights theory does not have to focus only upon the individual.

AQA's assessment material also recognises a wider social justification for freedom of expression.

Freedom of expression can contribute to:

• open debate

• discussion

• the search for truth

• access to information

• a functioning democratic society.

This produces two related theoretical justifications:

Individual justification	Social justification
Expression promotes autonomy and self-fulfilment.	Expression contributes to open debate and democracy.
Focuses on the development of the individual.	Focuses on the functioning of society.
Protects personal expression and choice.	Protects discussion, information and political participation.

Neither explanation must completely replace the other. Together, they demonstrate how one Human Right may be justified from several perspectives.

How do we decide which rights are fundamental?

One of the hardest theoretical questions is deciding which interests deserve the special status of Human Rights.

Not every interest a person has automatically becomes a fundamental Human Right.

AQA assessment material identifies a search for principles which could distinguish sufficiently fundamental rights, including whether they promote:

• human dignity

• human autonomy or agency

• human development.

A useful analytical framework is therefore:

1. Identify the interest

What aspect of human life is being protected?

2. Explain its importance

Does protecting it promote dignity, autonomy or development?

3. Consider whether it should apply universally

Is this something every human being should possess?

4. Consider whether the right should be regarded as inalienable

Should its existence depend upon government permission?

5. Consider corresponding duties

Who would be required to respect or protect the right?

6. Consider competing interests

Would recognising the right affect the rights or interests of others?

This prepares you for fundamental Human Rights [Lesson 164. Fundamental Human Rights], where the scope of the idea of a fundamental Human Right becomes the central issue.

Individual Human Rights and wider society

Rights-based reasoning can strongly protect individuals against the power of the State. However, AQA also identifies a possible criticism: placing increasing numbers of issues into a rights framework might encroach upon matters that could otherwise be decided through ordinary democratic political processes.

This creates a significant tension.

Strong rights protection may:

• protect individuals and minorities

• constrain arbitrary power

• protect important aspects of human dignity and autonomy.

However, extensive rights-based decision-making may also raise questions about:

• which interests deserve fundamental status

• how competing rights should be reconciled

• how much decision-making should be governed by rights rather than ordinary political choices.

This is not an argument that Human Rights should or should not exist. It illustrates why the theory of rights involves evaluation as well as description.

Applying theories of rights to AQA Human Rights

The theories can be applied to the Convention rights studied later in the course.

Human Right	Possible theoretical justification
Life	Protects human existence and the integrity and dignity of the individual.
Liberty and security	Protects autonomy, physical integrity and an individual's capacity to participate in society.
Privacy	Protects personal integrity and control over important aspects of individual life.
Expression	Supports autonomy, self-expression, personal development, open debate and democracy.
Assembly and association	Allows individuals to act and participate with others, supporting participation within society.

The point is not to memorise one fixed theory for every Article. Instead, use theoretical concepts to explain why an interest might deserve recognition as a Human Right.

Applying rights theory in an examination

Suppose a question asks whether freedom of expression should properly be regarded as a fundamental Human Right.

A developed answer might proceed as follows:

1. Explain Human Rights as rights connected inherently with being human.

2. Explain their alleged universality and inalienability.

3. Identify autonomy and human development as possible foundations for fundamental status.

4. Apply those ideas to expression, arguing that expressing and receiving ideas assists self-development.

5. Explain the wider democratic argument that open debate contributes to the functioning of society.

6. Consider the competing view that rights are not unlimited and may have to accommodate the rights and interests of others.

7. Reach a reasoned conclusion about why expression merits Human Rights protection.

This moves beyond simply stating that “Article 10 protects expression”. It uses theory to explain and evaluate why the legal protection exists.

Key Words 🔑

Key word	Student-friendly definition	How it may be used in an exam
Claim-right	A right which corresponds with a duty imposed upon another person or body.	Explain how recognising an individual's Human Right may place obligations upon the State.
Universality	The idea that Human Rights belong to all human beings.	Analyse whether Human Rights can genuinely be regarded as applying universally.
Inalienability	The idea that Human Rights are not simply privileges which may be removed at will.	Explain a consequence of regarding Human Rights as arising from being human.
Human dignity	The inherent worth of human beings which may provide a reason for protecting particular interests as Human Rights.	Evaluate why an interest such as life or privacy may deserve fundamental protection.
Autonomy	A person's capacity to make choices and exercise control over their own life.	Explain why liberty, privacy or expression may merit Human Rights protection.

Hints from the Examiner Reports 💡

Examiner hint: Avoid making only broad claims about the importance of Human Rights. In the 2023 examination, stronger responses connected the underlying moral basis of Human Rights to specific rights, such as life, liberty and freedom of expression, rather than referring vaguely to Human Rights in general.

Examiner hint: Theory becomes more effective when it is actually applied. The 2023 report praised responses which explained that Human Rights could stem from a moral vision of human beings as equal and then connected particular rights to the possibility of living a meaningful and fulfilled life.

Examiner hint: In an extended response, keep the theoretical discussion relevant to the right in question. AQA's mark schemes reward analysis and evaluation which use theory to explain the substantive Human Rights rules rather than treating theory as an isolated description.

Common Mistakes ⚠️

Mistake: Learning a list of named philosophers as though AQA specifies them

Why this is incorrect: The specification requires theories of rights, but it does not prescribe named theorists for this topic.

How to improve: Prioritise the concepts supported by AQA assessment material: inherent Human Rights, claim-rights, universality, inalienability, dignity, autonomy and human development.

Mistake: Saying a Human Right exists only because the State grants it

Why this is incorrect: One theoretical understanding identified by AQA is that Human Rights arise inherently from the quality of being human.

How to improve: Distinguish the theoretical foundation of a Human Right from the legal mechanisms through which that right is recognised and enforced.

Mistake: Treating “universal” and “inalienable” as synonyms

Why this is incorrect: Universality concerns who possesses the rights. Inalienability concerns their status as rights which are not merely removable privileges.

How to improve: Remember:

universal = everyone, inalienable = not simply taken away at will.

Mistake: Assuming inalienable rights can never be restricted

Why this is incorrect: The ECHR rights studied by AQA include specified exceptions, justified deprivations or permitted restrictions.

How to improve: Separate the theoretical status of a Human Right from the legal rules governing when interference with it can be justified.

Mistake: Describing theory without applying it

Why this is incorrect: A statement such as “Human Rights protect dignity” remains underdeveloped unless you explain how the concept relates to an actual right.

How to improve: Use a chain such as:

autonomy → ability to make personal choices → importance of private life → theoretical justification for protecting privacy.

Exam-Style Questions ✍️

Question 1

Which term describes the idea that Human Rights belong to human beings generally rather than to selected groups?

A. Autonomy

B. Universality

C. Correspondence

D. Liberty

[1 mark]

Question 2

State two possible implications of understanding Human Rights as rights which arise inherently from being human.

[2 marks]

Question 3

Explain what is meant by describing a Human Right as a claim-right.

[3 marks]

Question 4

Explain the difference between universality and inalienability in the theory of Human Rights.

[5 marks]

Question 5

A student argues:

“Privacy should be regarded as a Human Right because people need control over important aspects of their personal lives in order to make their own choices and develop as individuals.”

Explain which ideas from theories of rights support this argument.

[5 marks]

Question 6

A government argues that freedom of expression should receive no special protection because expression is simply a matter of individual preference.

Using theories of rights, explain two reasons why freedom of expression might nevertheless be regarded as a Human Right.

[5 marks]

Question 7

Explain why regarding Human Rights as inalienable does not necessarily mean that the exercise of every Human Right must be completely unrestricted. [5 marks]

Question 8

Examine the view that Human Rights should be regarded as universal and inalienable. Discuss the extent to which theories of rights help explain why liberty and security of person should receive protection as a Human Right.

[15 marks]

Answers and Mark Scheme

Question 1: [1 mark]

B. Universality.

Question 2: [2 marks]

Award 1 mark for each valid implication, including:

• Human Rights may be regarded as universal.

• Human Rights may be regarded as inalienable.

Question 3: [3 marks]

Indicative content:

• A claim-right gives a person a claim in relation to another.

• The right corresponds with a duty or obligation imposed upon another person or body.

• In Human Rights law, recognising an individual's right may therefore impose obligations upon the State.

Question 4: [5 marks]

Indicative content:

• Universality means that Human Rights are claimed to belong to human beings generally.

• Their possession therefore does not depend simply upon membership of a selected group.

• Inalienability concerns the status of the rights.

• An inalienable Human Right is not treated merely as a privilege which can be removed at will.

• Both ideas can follow from understanding Human Rights as arising inherently from being human.

Question 5: [5 marks]

Indicative content:

• The argument is based particularly upon autonomy or agency.

• Autonomy concerns a person's ability to make choices and exercise control over their own life.

• It also relates to human development.

• Protecting personal life may allow individuals to develop their identity and make personal choices.

• These interests may therefore provide a theoretical reason for regarding privacy as sufficiently fundamental to merit Human Rights protection.

Question 6: [5 marks]

Indicative content may include two developed arguments:

Individual justification:

• Expression promotes autonomy or moral independence.

• It enables self-expression, personal development and self-fulfilment.

Social justification:

• Freedom of expression contributes to open debate and discussion.

• Open communication can assist the search for truth and the functioning of a democratic society.

Credit developed explanation rather than simple identification.

Question 7: [5 marks]

Indicative content:

• Inalienability concerns the fundamental status of Human Rights.

• It suggests that the right is not simply a privilege which the State grants and may remove at will.

• This is different from saying that exercise of the right can never be regulated.

• AQA requires study of justified exceptions or restrictions affecting the Convention rights.

• Therefore, a right may retain its fundamental status even where particular interference with it can be legally justified.

Question 8: [15 marks]

Indicative content:

AO1 knowledge and understanding may include:

• Human Rights as deriving inherently from the quality of being human.

• Human Rights as claim-rights involving corresponding duties.

• Universality.

• Inalienability.

• Human dignity.

• Human autonomy or agency.

• Human development.

• The right to liberty and security of person.

AO3 analysis and evaluation may include:

• The argument that inherent Human Rights logically belong to all humans and are therefore universal.

• The argument that rights which do not depend upon State permission may be regarded as inalienable.

• The difficulty of determining which interests are sufficiently fundamental to qualify as Human Rights.

• The possible criticism that understandings of Human Rights may reflect particular cultural or political traditions.

• Liberty as important to individual autonomy and the ability to make meaningful choices.

• Liberty as protecting the physical integrity and independence of the individual.

• The relationship between claim-rights and corresponding obligations to respect or protect liberty.

• Recognition that fundamental status does not prevent justified legal restrictions.

• A supported conclusion as to whether theories based on dignity, autonomy and human development provide a convincing foundation for treating liberty as a Human Right.

A strong answer should use the theories to analyse why liberty deserves Human Rights status, rather than merely describing the theories and Article 5 separately.