Abstract

Bentham’s famous remark was a response to the assertation of natural rights that did not depend on law or some other foundation for their normative force.1 Whatever we make of that claim, it flags a problem for making and evaluating rights-based arguments in medical ethics. He wasn’t trying to say that rights are all meaningless, nor that we can readily do without them. Rather, it’s an objection to a particular way of asserting rights where they are taken to express free standing claims that don’t require further defence or justification. Whether or not the rise of human rights in medical law has enriched the ability of the courts to deal with complex issues in a nuanced way is debatable, but there’s no doubting their prominence and unavoidability.2 For medical ethics, rights analysis requires paying heed to the kind of rights in play when arguing about ethics, as well as what’s distinctive about rights analysis. For many, rights operate as strong moral assertions intended to override other, less weighty, considerations and Ronald Dworkin claimed that we should view rights as a way of expressing particularly important claims that should constrain the state in its actions.3 Rights imply duties and focussing on a right's correlative duty can …