Abstract
Professor White’s paper starts with claims and then moves on to rights. Let mine follow the reverse order and start with rights.1 My question is whether there are, as Professor White implies, any common features shared by all that we call ‘rights’. My answer is: several.
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The argument in this section is based on positions put more extensively in other papers of mine. See `Children’s Rights: A Test-Case for Theories of Right’, Archiv für Rechts-und Sozialphilosophie 62 (1976): 305–317; `Rights in Legislation’, in Law, Morality and Society,edited by P. M. S. Hacker and J. Raz (Oxford: Clarendon Press, 1977), pp. 189–209; `Dworkin as Pre-Benthamite’, Philosophical Review 87 (1978): 585–607; `The Obligation of Reparation’, Proceedings of the Aristotelian Society 78 (1977/8): 175–93.
See D. N. MacCormick, `Law as Institutional Fact’, Law Quarterly Review 90 (1974): 102–129.
Professor White refers, in his concluding section, to `a right… to assume so and so or to expect such and such’.
See, e.g., F. H. Lawson, Remedies of English Law, 2nd edition (London: Butterworth, 1980 ), Chapter 16; D. M. Walker, The Law of Civil Remedies in Scotland ( Edinburgh: Green, 1974 ), Chapter 8.
See Pyx Granite Ltd. v. Ministry of Housing [1960] AC 260; [1959] 3 All E.R. 1.
See Cox v. Green [1966] 1 All E.R. 268.
See D. N. MacCormick and J. Raz, Symposium on ‘Voluntary Obligations and Normative Powers’, Proceedings of the Aristotelian Society,Suppl. 46 (1972): 59–402; J. Raz, Practical Reason and Norms (London: Hutchinson, 1975), pp. 98–106, on the concept of `normative power’.
See McEldowney v. Forde [1969] 2 All E.R. 1039; [1971] AC 632; Hotel and Catering Industry Training Board v. Automobile Pty. Ltd. [1969] 2 All E.R. 582: both discussed in D. N. MacCormick, `Delegated Legislation and Civil Liberty’, Law Quarterly Review 86 (1970): 171–80.
Quoted from Gatty v. Maclaine 1920 SC 441 at 442.
Gatty v. Maclaine 1921 SC (H.L.) 1 at pp. 10, 11 respectively.
A not dissimilar point is made by my colleagues Z. K. Bankowski and D. Nelken in their `Discretion as a Social Problem’, in Discretion and Welfareedited by M. Adler and S. Asquith (London: Heinemann 1981) pp. 247268.
It does not necessarily follow that this infringement is legally actionable as a civil wrong; it is however apt to be punishable as a breach of the peace.
See, e.g., Francis Hutcheson, An Inquiry Concerning Moral Good and Evil VII.vi, in British Moralists 1650–1800, edited by D. D. Raphael, Volume 1 ( Oxford: Clarendon Press, 1969 ), p. 298.
Rights in Legislation’ (Footnote 1 above).
See A. M. Honoré, `Rights of Exclusion and Immunities against Divesting’, Tulane Law Review 34 (1959/60): 453–68.
See J. Raz, Practical Reason and Norms,pp. 85–97, on `permissions’.
See W. N. Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1919). Notice how Hohfeld remarks at p. 38: `Recognizing, as we must, the very broad and indiscriminate use of the term “right,” what clue do we find, in ordinary legal discourse, toward limiting the word in question to a definite and appropriate meaning?’ Similar remarks occur throughout the text. Hohfeld conceives himself to be improving on ordinary legal dis-course, not merely analysing it. Is this necessarily a misconceived activity? For a useful discussion and résumé of attempts further to refine Hohfeld’s proposals, see W. J. Kamba, `Legal Theory and Hohfeld’s Analysis of a Legal Right’, Juridical Review (1974): 249–62. Among philosophers criticised by White, at least D. D. Raphael has in several cases made clear that he is stipulating a special meaning for `claim’ etc. See, e.g., `Justice and Liberty’, Proceedings of the Aristotelian Society 51 (1950/51): 167–196,esp. at p. 172 in relation to `claims’.
Hohfeld, op. cit.,numerous passages. See, e.g., pp. 38-40.
Op. cit.,pp. 71–4.
See my `Law as Institutional Fact’ and `Rights in Legislation’ (Footnotes 1 and 2 above).
A. M. Honoré, `Ownership’, in Oxford Essays in Jurisprudence, edited by A. G. Guest ( Oxford: Clarendon Press, 1961 ), pp. 107–47.
See, e.g., Piddington v. Bates [1960] 3 All E.R. 660, Broome v. D.P.P. [1974] AC 587, discussed by Professor White in the final section of his paper.
See D. N. MacCormick, ‘Privacy: A Problem of Definition?’, British Journal of Law and Society 1 (1974): 75–8.
See J. Raz, Practical Reason and Norms,pp. 154f., 170–7, on `normative statements’.
See J. L. Austin, How to do Things with Words, 2nd edition (Oxford: Clarendon Press, 1975 ), Lecture IV.
Austin, op. cit.,Lectures II and III.
See, e.g., W. B. Odgers, Principles of Pleading and Practice in Civil Actions in the High Court of Justice,21st edition, edited by D. B. Casson and I. H. Dennis (London: Stevens, 1975), Chapter 12 and Appendix 2 (for precedents of Statements of Claim).
In Scotland, it is common practice to make a formal claim of one’s opponent, and to aver its rejection, in pleading an action. In France, it is a technical requirement (sometimes rendered more or less fictitious) to have made such a claim, as the basis on which a civil action may be raised. As it happens, the Scottish form of pleading does not use the performative `claim’ as does the English. But claims are certainly made in our pleadings.
Vinit Haksar, `The Nature of Rights’, Archiv für Rechts-and Sozialphilosophie 64 (1978): 183–204, at p. 183. Compare also his remark (ibid.) that `talk of rights is linked with demands, or claims, or complaints, that can validly be made by the person who has the right, or by those who speak on his behalf’.
See Lawson, op. cit.,pp. 235–8; and contrast Walker, loc. cit.
See R. H. S. Tur, ‘The Leaves on the Trees’, Juridical Review (1976): 139–55, and `The Notion of a Legal Right: A Test Case for Legal Science’, Juridical Review (1976): 177–88.
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MacCormick, N. (1982). Rights, Claims and Remedies. In: Stewart, M.A. (eds) Law, Morality and Rights. Synthese Library, vol 162. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-2049-6_8
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