THE GENERALITY OF RIGHTS

Abstract

Looked at from the perspective of an American constitutionalist, individual rights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority,See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY 184–205 (1977). the phrase “individual rights” has a meaning that is now relatively well understood. In a different sense, however, the phrase “individual rights” might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity),See, e.g., Wesley Newcomb Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1964); Arthur Corbin, Legal Analysis and Terminology, 29 YALE L.J. 165 (1919); Roscoe Pound, Legal Rights, 26 INT’L J. ETHICS 92 (1916); Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1149 (1938). and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit,See John Chipman Gray, THE NATURE AND SOURCES OF LAW (R. Gray ed., 2d ed. 1921); Oliver Wendell Holmes, THE COMMON LAW (1881); William Twining, KARL LLEWELLYN AND THE REALIST MOVEMENT 381 (1973); Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897). The theme is also prominent in the work of the Scandinavian Realists. See, e.g., Axel Hägerström, INQUIRIES INTO THE NATURE OF LAW AND MORALS (1953); A. Villem Lundstedt, LEGAL THINKING REVISED (1956); Karl Olivecrona, LAW AS FACT (2d ed. 1971); Alf Ross, DIRECTIVES AND NORMS (1968); Alf Ross, ON LAW AND JUSTICE (1958); Karl Olivecrona, Legal Language and Reality, in ESSAYS IN HONOR OF ROSCOE POUND 151 (F. Newman ed., 1962); Alf Ross, Tû-tû, 70 HARV. L. REV. 812 (1957). the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled Rights Against Rules: The Moral Structure of American Constitutional Law<Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules.