Loading field map
What are rights? Who holds them, and what content do they have? Why should anyone respect them? These questions have driven rights theory for centuries, and the answers have shifted dramatically. At the heart of the subfield lies a persistent tension: are rights moral truths that exist independently of any legal system, or are they creatures of law, created and defined by social practices and official commands? A second tension runs alongside the first: do rights protect individual choices, or do they safeguard fundamental interests? And a third, more recent set of challenges asks whether rights, however grounded, are genuinely universal or whether they reflect particular cultural, economic, and political arrangements that may entrench inequality even as they promise liberation. The history of rights theory is the story of competing frameworks that have offered different answers to these questions, each framework reacting to, preserving, narrowing, or transforming the ones that came before.
The earliest systematic framework in the timeline, Natural Rights Theory (1600–1800), held that individuals possess rights simply by virtue of being human. These rights were thought to be inherent, inalienable, and discoverable through reason. Thinkers such as John Locke argued that natural rights to life, liberty, and property existed prior to and independently of any government; the purpose of political authority was to protect these pre-existing moral entitlements. Natural rights theory provided a powerful vocabulary for limiting state power and justifying revolution, but it faced a fundamental challenge: if rights are moral truths, how do we know what they are, and who gets to decide when they conflict?
Legal Positivism (1800–1950) offered a starkly different answer. Positivists such as Jeremy Bentham and John Austin argued that rights are not mysterious moral entities but simply creations of law. For Bentham, natural rights were "nonsense upon stilts"—rhetorical fictions that could not be verified or enforced. On the positivist view, a right exists only when a legal system has created it through official commands, statutes, or judicial decisions. This framework replaced the moral grounding of natural rights with a social-fact grounding: rights are whatever the sovereign or the legal order says they are. The positivist challenge did not eliminate natural rights thinking, but it forced natural rights theorists to defend their claims in a new register, one that could not simply appeal to self-evident moral truths.
While the natural rights versus positivism debate raged over the source of rights, a separate analytical debate emerged over their internal structure. Interest Theory (1800–Present) and Will Theory (1800–Present) offered competing accounts of what a right actually does. Interest Theory, associated with Jeremy Bentham and later developed by Joseph Raz, holds that a right protects some interest of the right-holder that is sufficiently important to impose duties on others. On this view, the point of a right is to safeguard a person's well-being. Will Theory, associated with H.L.A. Hart, argues instead that a right gives the right-holder control over another person's duty—the right-holder can waive, enforce, or extinguish the duty. For will theorists, the essence of a right is individual sovereignty, not protected welfare.
These two frameworks have coexisted in live disagreement for more than two centuries. Interest Theory can explain why children and people with severe cognitive disabilities have rights (they have interests even if they cannot exercise control), while Will Theory struggles to account for such cases. Will Theory, by contrast, captures the sense in which having a right empowers the holder to make choices, which Interest Theory treats as merely one interest among others. Neither framework has absorbed the other; they remain competing analytical lenses for understanding what rights are.
Hohfeldian Analysis (1913–Present), developed by the American legal theorist Wesley Newcomb Hohfeld, did not directly take sides in the Interest/Will debate but instead provided a precise vocabulary that restructured the entire analytical field. Hohfeld argued that the word "right" is used loosely to refer to several distinct legal relations: a claim-right (a right that correlates with a duty on someone else), a privilege or liberty (the absence of a duty on oneself), a power (the ability to change legal relations), and an immunity (protection against having one's legal relations changed by others). By breaking rights into these fundamental components, Hohfeldian Analysis revealed that many disputes about rights were really disputes about which kind of legal relation was at stake. This framework did not replace Interest Theory or Will Theory; instead, it gave both camps a shared analytical toolkit. Interest theorists could now ask: which of Hohfeld's relations best protects an interest? Will theorists could ask: which relations give the holder control? Hohfeldian Analysis thus became infrastructure for the entire subfield, clarifying debates that had previously been muddled by ambiguous language.
The atrocities of World War II created a powerful pressure to ground rights in something more robust than the commands of any particular legal system. Two frameworks emerged in response, diverging sharply on the source of rights' validity.
Natural Rights Universalism (1945–Present) revived and transformed the older natural rights tradition. Drawing on the Universal Declaration of Human Rights (1948), this framework holds that all human beings possess a set of fundamental rights simply by virtue of their humanity. These rights are universal, inalienable, and morally prior to any legal system. Natural Rights Universalism differs from its seventeenth-century predecessor in two key ways: it is explicitly international in scope, and it focuses on a catalog of specific rights (to life, freedom from torture, education, etc.) rather than on abstract natural law. The framework asserts that human rights are moral truths that legal systems ought to recognize, whether or not they actually do.
International Legal Positivism (1945–Present) took a different path. Rather than grounding international human rights in morality, this framework locates their authority in the consent of states as expressed through treaties, customary international law, and the practice of international institutions. For International Legal Positivism, a right exists in international law because states have agreed to be bound by it, not because it is morally true. This framework preserves the core positivist insight that rights are social facts, but it extends that insight to the international level. The deep disagreement between Natural Rights Universalism and International Legal Positivism is about the ultimate source of rights' validity: moral truth versus state consent. Both frameworks remain active today, and they often coexist uneasily in human rights practice, where advocates appeal to moral universality while diplomats negotiate treaty language.
Rights as Trumps (1970–Present), developed by Ronald Dworkin, offered a distinctive way of thinking about the force of rights within a legal system. Dworkin argued that rights are "trumps" that override ordinary policy considerations. When a person has a right, the government cannot infringe it simply because doing so would produce better overall consequences. This framework drew on natural rights reasoning in its insistence that rights have moral weight independent of legislative majorities, but it departed from natural rights by locating rights within a legal system's own principles of justice rather than in a transcendent moral order. Rights as Trumps also rejected positivism: Dworkin argued that legal systems contain not only rules but also principles, and that rights are best understood as principles that judges must enforce even when no explicit rule exists. The framework thus transformed the debate by insisting that rights are not just social facts or moral truths but are part of the fabric of legal reasoning itself.
The Political Conception of Human Rights (1990–Present), associated with John Rawls and later developed by Charles Beitz and others, offered yet another approach. This framework preserves from Natural Rights Universalism the idea that human rights are a special category of rights that matter for international concern, but it borrows from positivism the insistence that human rights are defined by their role in international political practice rather than by a prior moral theory. On the political conception, human rights are those rights whose violation justifies international intervention, including diplomatic pressure, economic sanctions, or even military action. The framework does not ask whether human rights are "really" moral truths; it asks what work the concept does in the actual practice of states and international organizations. The Political Conception thus preserves the universal scope of Natural Rights Universalism while adopting the practice-based methodology of positivism, creating a hybrid that has become influential in international legal and political theory.
The Capabilities Approach (1980–Present), developed by Amartya Sen and Martha Nussbaum, shifted the focus from what rights people formally have to what they are actually able to do and be. This framework argues that rights are empty if people lack the capabilities to exercise them. A right to education means little if there are no schools; a right to political participation means little if poverty or discrimination prevents voting. The Capabilities Approach departs from Interest Theory by insisting that what matters is not just that a person has an interest in something, but that the person has the actual capacity to realize that interest. It also departs from Will Theory by emphasizing that capabilities, not choices, are the proper measure of well-being. The framework has been particularly influential in development economics and human rights advocacy, where it provides a way to assess whether rights are genuinely enjoyed rather than merely declared.
Beginning in the 1970s, a wave of critical frameworks challenged the assumptions underlying nearly all earlier rights theories. Critical Legal Studies (1970–Present) argued that rights are indeterminate—they can be interpreted to support almost any outcome—and that the language of rights masks the role of power and ideology in legal decisions. For CLS, the liberal rights framework is not a neutral tool for justice but a way of making contingent political arrangements seem natural and inevitable. This indeterminacy thesis undermines both natural rights and positivist foundations: if rights have no determinate content, then neither moral truth nor social facts can fix their meaning. CLS did not reject rights entirely, but it insisted that rights talk is a form of politics that should be evaluated by its consequences, not by its internal logic.
Critical Race Theory (1980–Present) shares CLS's skepticism about liberal rights but focuses specifically on how rights have functioned in the context of racial oppression. CRT scholars such as Derrick Bell argued that rights have been both essential and inadequate for racial justice. The civil rights movement won formal legal rights, but those rights have not eliminated racial inequality; in some cases, they have legitimated ongoing subordination by creating the appearance of fairness. CRT thus challenges the universalism of Natural Rights Universalism and the formalism of positivism by showing that rights operate differently for different groups. Unlike CLS, which tends to see rights as simply indeterminate, CRT sees rights as deeply shaped by race and as tools that can both resist and reinforce racial hierarchy.
Feminist Human Rights Theory (1980–Present) brought a parallel critique from the perspective of gender. Feminist theorists such as Catharine MacKinnon argued that traditional human rights frameworks were built around male experiences and failed to address harms that disproportionately affect women, such as domestic violence, reproductive coercion, and sexual exploitation. Feminist Human Rights Theory challenges the public/private distinction that underlies much of liberal rights theory: by treating the family and the home as private spheres beyond the reach of rights, traditional frameworks have left women vulnerable to abuse. This framework does not reject rights but insists that they must be reconceived to address the full range of human experience. It differs from CRT in its focus on gender rather than race, but both frameworks share a commitment to showing how universalist rights talk can mask particular forms of domination.
Two further frameworks challenged the individualist and Western-centric assumptions of mainstream rights theory. The Communitarian Critique of Human Rights (1980–Present), associated with thinkers such as Michael Sandel and Charles Taylor, argues that liberal rights theory overemphasizes individual autonomy at the expense of community, tradition, and social bonds. Communitarians contend that rights cannot be understood apart from the communities in which people live and that universal human rights frameworks often impose Western individualist values on societies with different cultural traditions. This critique does not reject rights entirely but insists that rights must be balanced against communal goods and that the content of rights should be sensitive to local contexts. The Communitarian Critique stands in direct tension with Natural Rights Universalism, which insists on the universality of rights regardless of cultural context.
Third World Approaches to International Law (TWAIL) (1990–Present) goes further, arguing that international human rights law is a product of colonialism and continues to serve the interests of powerful Western states. TWAIL scholars such as Makau Mutua and Antony Anghie contend that the universal human rights framework was developed by Western powers and imposed on the rest of the world, often as a justification for intervention and domination. TWAIL challenges the assumption that human rights are neutral or benevolent, arguing that they are part of a global legal order that perpetuates inequality between the Global North and the Global South. This framework differs from the Communitarian Critique in its focus on colonialism and global power structures rather than on local community values. TWAIL does not reject human rights but calls for a fundamental rethinking of their origins, content, and application.
Today, no single framework dominates rights theory. The field is marked by pluralism and ongoing debate. Most contemporary theorists agree on at least two points: that rights are important tools for protecting individuals and groups from harm, and that purely formal accounts of rights—whether natural or positivist—are insufficient without attention to how rights actually function in practice. Beyond these minimal agreements, deep disagreements persist.
The most active debates today center on three questions. First, the Interest Theory versus Will Theory debate remains unresolved, with each camp continuing to refine its arguments and to challenge the other's account of what rights fundamentally are. Second, the tension between universalism and particularism—between Natural Rights Universalism and its critical and communitarian critics—remains a central fault line in human rights theory. Third, the relationship between rights and power, raised by CLS, CRT, Feminist Human Rights Theory, and TWAIL, has become a permanent feature of the field: no serious rights theorist today can ignore the question of whose interests rights serve and how they interact with structures of domination. The Capabilities Approach and the Political Conception of Human Rights represent attempts to bridge some of these divides, but they have not displaced the older frameworks. Rights theory today is a field of live disagreements, with each framework offering a partial but powerful lens on what rights are, who holds them, and why they matter.