Abstract

The dissertation consists of two parts. The first part deals with some conceptual issues which need to be clarified prior to taking on the task of grounding rights. The second part, following an examination of arguments from human nature and the utilitarian justification for rights, attempts to ground rights on a contractarian model in the scheme of Hohfeldian rights, and to elucidate the binding force of the rights thereby established. ;The question of how people come to have rights necessarily postulate the situation in which they have no rights at all, or the state in which they are at liberty to do as they wish, which I call the state of nature. After criticizing arguments from human nature and utiliterian justification for rights, I propose a contractarian model in which people in the state of nature would make an agreement on rules prescribing fundamental rights, such as a right to life, person, property, minimum level of living, and the like. As far as fundamental freedoms are concerned, they may be possessed even by people in the state of nature. They turn into rights, however, through the social contract and these rights are addressed in most cases against the government. ;Fundamental rights and fundamental freedoms alike are Hohfeldian immunity-rights in the sense that the government has no power to make a law to extinguish them. The contract theory provides a straightforward explanation of such immunity-rights. ;It has been argued against the contract theory in general that the social contract is a hypothetical agreement and has no binding force. I argue that the charge brought against the Rawlsian social contract as regards its binding force should not be directed to our version of the social contract. The lack of the binding force of the Rawlsian social contract can be attributed mainly to the assumption of the veil of ignorance placed upon the parties in the original position. But our version of the social contract does not postulate such artificial constraints of ignorance. I argue that an agreement which would be made in the hypothetical situation which is necessarily postulated can be just as binding as an actual agreement