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4 - Constituting rights by limitation

Published online by Cambridge University Press:  30 March 2010

Grégoire C. N. Webber
Affiliation:
London School of Economics and Political Science
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Summary

Introduction

How should rights be understood? What conception of rights coheres with a commitment to rights, one that does not invite the frequent justification of rights' infringements? The previous chapters reviewed how the received approach to the limitation of rights sees rights everywhere but leaves rights controlling nowhere. The aim of this chapter is to rehabilitate rights from the position of inconsequence to which the received approach has relegated them. I will argue that once the limitation of a right is conceived as the specification of the right's content and scope, rights will emerge – not as opposed to – but as constitutive components of what is justifiable in a free and democratic society and will, in all cases, be absolute.

The idea that rights should hold a firm place in moral–political reasoning is not new, but it has been obfuscated by the tendency within the received approach to equate rights with ‘interests’, ‘values’ or ‘principles’. Doing so ascribes to rights a status no greater than a premise in practical reasoning. Yet, despite the force of the scholarship and jurisprudence conceiving of rights in this way, there is a long tradition that refuses to equate rights with premises of practical reasoning and no more. For example, Nozick tells us: ‘Individuals have rights, and there are things no person or group may do to them (without violating their rights).’ For Rawls: ‘Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.’

Type
Chapter
Information
The Negotiable Constitution
On the Limitation of Rights
, pp. 116 - 146
Publisher: Cambridge University Press
Print publication year: 2009

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