12 found
Order:
See also
David Frydrych
Monash University
  1.  44
    The Theories of Rights Debate.David Frydrych - 2018 - Jurisprudence 9 (3):566-588.
    This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. It elucidates the traditional understanding of it as a dispute over how best to explain A RIGHT and clarifies the theories’ competing criteria for that concept. The rest of the article then shows why recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of competing explanations (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark   3 citations  
  2.  2
    Rights Correlativity.David Frydrych - 2022 - In Henry Smith, Ted Sichelman & Shyam Balganesh (eds.), Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge University Press. pp. 112-137.
    This chapter explicates and critically assesses RIGHTS CORRELATIVITY. Section II addresses three core issues. The first concerns the conceptual structure of the tethered positions: does correlativity mean that the positions’ features must be symmetrical? Are correlative rights and duties the “mirror images” of one another, or not? A second issue is Existential correlativity: must the positions invariably co-obtain, or can one exist with the other(s)? Can there be a right without a correlative duty, and vice versa? A third issue concerns (...)
    Direct download  
     
    Export citation  
     
    Bookmark   2 citations  
  3.  19
    Hohfeld Vs. The Legal Realists.David Frydrych - 2018 - Legal Theory 24 (4):291-344.
    2018 marked the centenary of Wesley Hohfeld’s untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify “extra-legal” factors as the real drivers of judicial (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark   2 citations  
  4.  34
    What Is the Will Theory of Rights?David Frydrych - 2019 - Ratio Juris 32 (4):455-472.
    This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self-described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman’s and Arthur Ripstein’s respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.
    Direct download  
     
    Export citation  
     
    Bookmark   1 citation  
  5.  27
    Rights Modelling.David Frydrych - 2017 - Canadian Journal of Law and Jurisprudence 30 (1):125-157.
    This paper has four aims. First it distinguishes two kinds of philosophical accounts of the ‘formal’ features of rights: models and theories. Models outline the ‘conceptually basic’ types of rights (if indeed a given model deems there to be more than one), their differences, and their relationships with duties, liabilities, etc. Theories of rights posit a supposed ultimate purpose for all rights and provide criteria for determining what counts as ‘a right’ in the first place. Second, the paper argues that (...)
    Direct download  
     
    Export citation  
     
    Bookmark   2 citations  
  6.  27
    Kramer’s Delimiting Test for Legal Rights.David Frydrych - 2017 - American Journal of Jurisprudence 62 (2):197-207.
    Professor Matthew Kramer offers a delimiting ‘criterion’ or test for his Interest Theory of legal claim-rights. The ‘Minimum Sufficiency’ test is thought necessary because the Interest Theory is charged with being over-inclusive: it purportedly counts certain agents and entities as legal right-holders even though the law itself does not recognize them as such. This paper nonetheless argues that Kramer’s test is inadequate and unnecessary. It proceeds as follows. Section II offers a brief explanation of the Interest and Will Theories of (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark   1 citation  
  7. Down the Methodological Rabbit Hole.David Frydrych - 2017 - Crítica. Revista Hispanoamericana de Filosofía 49 (147):41-73.
    This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...)
     
    Export citation  
     
    Bookmark  
  8. Legal Realism and 'Working' Rules.David Frydrych - 2022 - Canadian Journal of Law and Jurisprudence 35 (2):321-364.
    The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.
    Direct download  
     
    Export citation  
     
    Bookmark  
  9.  29
    The Case Against the Theories of Rights.David Frydrych - 2020 - Oxford Journal of Legal Studies 40 (2):320-346.
    There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that mostly differ from the canonical (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  10. The Case Against the Theory of Rights.David Frydrych - 2020 - Oxford Journal of Legal Studies 40 (2):320-346.
    There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that mostly differ from the canonical (...)
     
    Export citation  
     
    Bookmark  
  11.  17
    The Architecture of Rights: Models and Theories.David Frydrych - 2021 - Palgrave Macmillan.
    What is a right? What, if anything, makes rights different from other features of the normative world, such as duties, standards, rules, or principles? Do all rights serve some ultimate purpose? In addition to raising these questions, philosophers and jurists have long been aware that different senses of ‘a right’ abound. To help make sense of this diversity, and to address the above questions, they developed two types of accounts of rights: models and theories. This book explicates rights modelling and (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  12.  1
    Realism and Positivism.David Frydrych - forthcoming - Jurisprudence.
    Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark