David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Oxford University Press (2008)
How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this 'legal positivist' school of jurisprudence, the law endorses rights by some official act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.
|Keywords||Law Philosophy Law Methodology Jurisprudence|
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|Call number||K230.E48.A35 2008|
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Pavlos Eleftheriadis (2010). Pluralism and Integrity. Ratio Juris 23 (3):365-389.
Alexios Arvanitis & Antonis Karampatzos (2013). Negotiation as an Intersubjective Process: Creating and Validating Claim-Rights. Philosophical Psychology 26 (1):89-108.
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