Details
- Offers an original contribution to two central questions in the philosophy of law - what is the proper approach for jurisprudence? And what is the nature of a legal right?
- Examines a wide range of rights theories and problems - from the right to property in economic analysis to the role of rights in political liberalism
- Rehabilitates Rawls' idea of 'Public Reason' and indicates its potential impact for fundamental questions in the philosophy of law
How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this 'legal positivist' school of jurisprudence, the law endorses rights by some official act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.
Readership: Scholars and research students of legal theory and moral and political philosophy, scholars of human rights.
- Contents:
- 1. History and Theory
- 2. Descriptions and Constructions
- 3. The Parctical Argument
- 4. Rights in law
- 5. Obligation and Permission
- 6. Legal Relations
- 7. The Right to Property
- 8. Freedom through Law
- 9. Rights in legal Deliberation;
Pavlos Eleftheriadis, Fellow and Tutor in Law, Mansfield College, Oxford
"Legal Rights contains a valuable survey of, and makes a distinct contribution to ongoing debates on the nature of law and legal rights and the role of legal theory. The author regards law as an interpretative system of practical reasoning. He explains legal rights primarily in terms of their social role as public reasons that justify complex legal relations including "clusters" of claims, liberties, powers and immunities. Property rights then are explained as fundamentally social...complex normative relations...among persons in their possession and use of things. Finally the author argues for a Kantian "will theory" of rights, moral and legal, that regards rights as conditions for individuals' freedom and responsible agency. Legal Rights makes important contributions to both legal and political philosophy."
"In Legal Rights, Pavlos Eleftheriadis provides a novel and powerful argument for the relevance of normative political philosophy to the understanding of legal concepts. Eleftheriadis develops an account of the way rights figure as premises in legal argument, which both accounts for the priority attached to them and the ways in which they are subject to mutual adjustment in light of other rights. In so doing he overcomes the standard division between "interest" and "will" theories, and shows that conceptual debates about the concept of a right presuppose normative arguments about each citizen's most basic entitlement to freedom." - Arthur Ripstein, Prof of Law and Philosophy, University of Toronto
"...an exciting, erudite and original book with a grand, sweeping argument...It is exhilarating to read a sharp, synthesising author at work on such a broad, sustained argument" - Rowan Cruft, Law and Philosophy Journal
