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Two Conceptions of Civil Rights*

  • Richard A. Epstein (a1)

I. WhatVintage ofCivilRights?

In this paper I wish to compare and contrast two separate conceptions of civil rights and to argue that the older, more libertarian conception of the subject is preferable to the more widely accepted version used in the modern civil rights movement. The first conception of civil rights focuses on the question of individual capacity. The antithesis of a person with civil rights is the slave. But even if individuals are declared free, they are nonetheless denied their civil rights if they are unable to own property, to enter into contracts, to make wills, to give evidence, and to sue (and be sued) in courts. With all these civil rights claims, the target of the individual grievance is the state; it has denied large classes of individuals the formal capacities that it recognized and protected in others. The Civil War was fought largely over slavery. In its aftermath, civil rights claims protecting individual capacity received explicit, if imperfect, statutory and constitutional protection. The postbellum protections did not guarantee these rights in absolute fashion – that is, in a way that would not be susceptible to abridgment under any circumstances. Instead, civil rights were protected in what might be called a relative fashion: whatever rights of this sort were enjoyed by white citizens were to be enjoyed by the newly freed black citizens as well.

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Coleman , “Economics and the Law: A Critical Review of the Foundations of the Economic Approach to Law,” Ethics, vol. 94 (1984), p. 649

Epstein , “Unconscionability: A Critical Reappraisal,” Journal of Law and Economics, vol. 18 (1975), pp. 293.

Saul Levmore , “Variety and Uniformity in the Treatment of the Good-Faith Purchaser,” Journal of Legal Studies, vol. 16 (1987), pp. 4365.

Benjamin Klein & Keith Loeffler , “The Role of Market Forces in Assuring Contractual Performance,” Journal of Political Economy, vol. 89 (1981), p. 615

Lester Telser , “A Theory of Self-Enforcing Contracts,” Journal of Business, vol. 53 (1980), p. 27.

Magruder , “Mental and Emotional Disturbance in the Law of Torts,” Harvard Law Review, vol. 49 (1936), p. 1039.

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Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
  • URL: /core/journals/social-philosophy-and-policy
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