David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 1 (3):451 - 480 (1982)
Rights have two properties which prima facie appear to be inconsistent. The first is that they are conditional in the sense that one some occasions it is always justifiable for someone to act in a way which appears to be inconsistent with someone else's rights, such as when the defence of necessity applies. The second is that rights are indefeasible in the sense that they are not subject to being defeated our outweighed by utilitarian or policy considerations. If we view rules and the rights which they establish as being subject to a ceteris paribus clause, the form of which generates out the exceptions, the conditionality of rights becomes reconcilable with their nondefeasibility. Such a view of rules and rights would entail that the goals of the law and their orderings be considered as a part of the law. When so viewed, propositions about goals and their orderings become legitimate premises for legal reasoning, furnishing solutions to hard cases in the law of torts, without resort to balancing of interests or judicial discretion.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
J. C. Smith, Daphne Gelbart, Keith Maccrimmon, Bruce Atherton, John Mcclean, Michelle Shinehoft & Lincoln Quintana (1995). Artificial Intelligence and Legal Discourse: The Flexlaw Legal Text Management System. [REVIEW] Artificial Intelligence and Law 3 (1-2):55-95.
Similar books and articles
Seumas Miller (2000). Collective Rights and Minority Rights. International Journal of Applied Philosophy 14 (2):241-257.
Derrick Darby (2009). Rights, Race, and Recognition. Cambridge University Press.
Chris Miller (2003). Environmental Rights in a Welfare State? A Comment on DeMerieux. Oxford Journal of Legal Studies 23 (1):111-125.
Carlos Santiago Nino (ed.) (1992). Rights. New York University Press.
Gregory Lewkowicz, Human Rights, Citizen Rights: The Presuppositions of the American and European Case Law.
A. I. Melden (1977). Rights and Persons. University of California Press.
W. J. Talbott (2010). Human Rights and Human Well-Being. Oxford University Press.
John Oberdiek (2008). Specifying Rights Out of Necessity. Oxford Journal of Legal Studies 28 (1):19.
Added to index2009-01-28
Total downloads10 ( #312,958 of 1,789,821 )
Recent downloads (6 months)3 ( #262,654 of 1,789,821 )
How can I increase my downloads?