ABSTRACT
Rights, in our modern democratic societies, are increasingly enshrined in law. Their ultimate basis is therefore to be found in the political norms or principles of right that underpin our systems of law and government. Traditionally, these norms or principles were grounded in some transcendent or transcendental conception of nature. Some contemporary theorists continue to ground rights in particular rights-bearing features of human nature. 1 This implies an a-historical conception of rights according to which it makes no sense to say that new rights have come into existence or that old ones have disappeared: if a particular right exists for a given class of rights bearers then it has always existed. 2 Changes may occur in the beliefs of people about rights and rights bearers but there is no possibility of change in what rights there are. Others argue that this appeal to nature is no longer possible for us and that nature has given way to society as the only plausible basis of right (Ewald 1988: 37, 44). 3 The recent history of particular rights supports the idea that rights are inescapably social in character and a product of the relations of power, beliefs, attitudes and practices, including the legal practices, of the relevant communities in which they exist (Ivison 2008: 17–36). This calls for a naturalistic and historical conception of rights that grounds them in existing forms of political normativity and legal practice. By a naturalistic conception of rights, I mean one that does not depend on any transcendent conception of the moral basis of rights, or of the human nature in which they are grounded, and in which rights are an important part of the social world in which we live. On this view, what rights there are changes over time: old rights disappear and new ones come into existence.
