0415334403.Routledge.Philosophy.of.Law.An.Introduction.Aug.2005

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end of the spectrum, we find writers such as Norberto Bobbio declaring that
the problems about rights are not philosophical at all, that the real problem
is to find the surest method for guaranteeing rights and preventing their
continuing violation (Bobbio 1990: 12). From this eminently practical point
of view, the existence of rights and meaningfulness of rights-claims is
presupposed. At the sceptical end of the spectrum, we hear Alasdair
MacIntyre comparing belief in rights with belief in witches and unicorns,
claiming that every attempt to give good reasons for believing that there are
such rights has failed (MacIntyre 1981: 67). From this standpoint, there are
no rights to be guaranteed. What we will be examining in this chapter is the
philosophical support for each of these positions.
A more cautious scepticism than the outright denial of rights as such is
expressed by those who regard it as meaningful only to talk of legal rights.
110 The reach of the law
On this view, the background to any right properly so-called must be that of
legal definition and sanction. Without this background, the language of
rights as used to explain moral relations between people is at best
metaphorical, and at worst meaningless. This denial of the intelligibility of
moral rights is of course contested vigorously by those who regard legal
rights as merely the codification of pre-existing human rights, which some
philosophers describe as natural. As we shall see, this dispute is not easily
resolved.
An equally prominent theme here is the most general consequence of
taking a realist view of rights. If there are indeed rights to be recognised, the
bearing this has on the matter of the law s authority is immediate and prob-
lematic. To what extent is the state compelled to accept individual or collective
rights as an effective constraint on the implementation of public policy
through the criminal and civil law? What limiting effects do they have on the
reach of the law? This will be taken up in the next chapter in the specific
context of personal privacy, but the problem here is more general. It is a ques-
tion, philosophically speaking, about how rights stand in relation to utility.
What are we committed to when we accept that there really are rights? Does it
mean merely that they should always be respected in the sense of being taken
into account in every calculation of the common good? Or does it mean more
than this, that rights can on no account be overridden by utility?
This points to the closely related problem of identifying basic rights, those
supposed to be guaranteed as a bare minimum. Are these the ones that should
be defended unconditionally against utility or convenience? If so, which
among the vast numbers of rights claimed today should qualify as basic? Does
being basic mean that they are to be regarded as absolute, in the sense that
there are no imaginable circumstances in which they might reasonably be
suspended or overridden? The problem at the heart of the rights-utility
conflict is that of determining the extent to which legislators have a free hand
in deciding what is to be included, allowing in pragmatic concerns about
resources and practicability; and the sense in which these choices are pressed
upon them by the intrinsic nature of the rights in question.
Overall, the question of how rights and legality are to be understood is
the paramount one. A great deal of the rights analysis in twentieth-century
legal theory has focused exclusively on legal rights, independently of the
question of how they relate to rights in general. The most important single
influence on this development was the analysis initiated by Wesley Hohfeld
(1880 1919), who was inspired by the closely connected aims of legal
realism and analytical jurisprudence. What Hohfeld sought was an analysis
that would clarify the real structure of legal relations between people,
expressed in terms of rights and duties as they actually exist and are oper-
ated in the courts. The twin objectives were conceptual clarity and a faithful
reflection of legal reality. To this purpose, Hohfeld stipulated a deliberately
rigid eight-term structure, consisting of four pairs of conceptual opposites
and correlatives, through which all rights-related legal phenomena should be
Legal and moral rights 111
viewed. This structure has been revised and reworded in various ways by
others, but this was how Hohfeld originally presented it:
Jural Opposites {right privilege power immunity
{no-right duty disability liability
Jural Correlatives {right privilege power immunity
{duty no-right liability disability
Source: Hohfeld (1919: 36)
The main purpose of this method was to dispel the confusion created by
indiscriminate use of the word right when something else (a privilege, a
power, an immunity) was meant. Each word commonly used to designate a
right is given its real meaning in terms of what it is not and what it implies
as a correlative. Thus, a right, as opposed to a no-right , held by X, always
corresponds to a duty in Y, instead of the privilege that would be had if X
had no-right. X s privilege in doing something, as opposed to a duty, implies
that Y merely has no-right against X, rather than the duty that would be
created by X s right. If X has a legal power, as opposed to a disability, Y has
a liability instead of the immunity that would be had if X was legally [ Pobierz całość w formacie PDF ]

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