Rights-based struggles

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Rights-based struggles have proved counterproductive in contexts of sexuality. The importance of rights, and more specifically, civil liberties, can be seen as the legal and political expression of our society. Philosophical notions of autonomy, self-fulfilment, and self expression, in terms of sexuality, have made privacy interests relevant to freedom of action and lifestyle, not merely to freedom from interference.[1] This essay focuses on rights and notions of ’liberty,’ in their most general sense, that being, non-interference by others with one’s freedom of choice and action. These notions are linked to autonomy and dignity, but as with sexuality, these notions are not determinative of a person’s entitlement to self respect.[2] In order for clashes to be resolved, one’s liberty must be policed by law and social regulation. In this way, one’s physical and moral integrity will be protected. Here, we talk of civil liberties, in the context of sexuality, which defines the relationship between the State and its citizens; freedom against discriminatory treatment. As Feldman maintains, this ’marks a step beyond simple liberties, which are essentially rights not to be interfered with … Civil liberties impose positive obligations on the State to assist people in protecting or exercising liberties.’[3] Human Rights guarantee certain rights to all who find themselves within their jurisdiction, they are the qualities people have intrinsically as human beings.[4] This essay discusses sexual freedom and, in light of various examples, which are non-exhaustive of this wide area of discussion, examines the perception of disapproved acts and the discrimination against people of particular sexual orientation. The discussion of rights, from a jurisprudential perspective, can be divided into the normative and the analytical. Within the normative jurisprudential standpoint comes theories of justice, expounded by the libertarian view and the liberal view. The libertarian view, such as Nozick’s, is that man’s rights are inviolable.[5] The liberal view espoused by Dworkin starts from the premise of equal concern and respect for individuals, as a fundamental right.[6] Conversely, the value of the analytical approach to rights refers to the clarification of words used in legal relations so that the solutions to legal problems are easier and more certain. Hohfeld saw that the word ’right’ can encompass the concept of right, of privilege, of power, and of immunity.[7] Within the analytical jurisprudence of rights is also the ‘will theory,‘ suggested by Hart, versus the ‘interest theory,‘ suggested by MacCormick.[8] For Hart, rights are legally protected choices and for MacCormick rights protect certain interests. Although, all are significant when discussing rights in the context of sexuality, for the purposes of limitations in word count, the normative jurisprudence approach to rights will form the subject matter of the ensuing debate. The question presupposes the existence of rights and implies the desirability of the protection of rights. It is necessary to consider whether this belief is unchallenged. More specifically, it is necessary to establish in what circumstances, if any, rights can be justifiably overridden. Although there is much disagreement between liberals, all agree fundamentally, that society should provide a framework within which the individual can exercise his or her moral capacity.

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