Analyse & Kritik 18 (1):96-117 (1996)

Amartya Sen has demonstrated a possible inconsistency between a right and Pareto optimality. Neither Sen nor the subsequent literature have discussed the origin of the rights that lead to the liberal paradox. In this article I examine one possible origin of rights definitions - a constitutional contract agreed to by all members of the community. Constitutional rights are show to be vulnerable to a similar paradox as with liberal rights, but if the writers of the constitution were correct in their choice of actions to protect, such paradoxes will be unlikely and involve small welfare losses when they do occur. The article demonstrates that both the origin of rights and their potential role in advancing the interests of citizens can be explained using a utilitarian/welfarist methodology
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DOI 10.1515/auk-1996-0107
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