Primary Rights

Abstract

The ideas of moral peace, a system of trust, and public justification explain the need for a legal system that corrects and stabilizes moral rules that form the basis for social trust. Legal rules gain authority when they improve upon the system of moral rules. But some of society’s moral commitments merit protection over and above the law by constitutional rules that govern the ratification, reform, and repeal of laws. This chapter develops an account of the most fundamental constraints on justifiable constitutional rules—primary rights. Primary rights are rights that anyone with a rational plan of life would want for herself to pursue her conception of the good and justice, and ones she is willing to extend to others on reciprocal terms. These rights merit moral, legal, and constitutional protection, and begin the process of constitutional choice.