Max Scheler
Gesellschaft

Repository | Series | Buch | Kapitel

213498

Rules and rights

Tomasz Pietrzykowski

pp. 113-121

Abstrakt

The relation between rights and rules has always been one of the basic conceptual problems of legal and moral philosophy. Since Bentham's "nonsense upon stilts' the traditional idea of "natural" rights has been an object of devastating critique. In particular, all positivist accounts of law regard rights to necessarily derive from rules. This paper defends a redefined priority of rights. I assume that when rights are conceived as a content of specific mental states in which something is represented as due to someone, they may precede any fully fledged social rules effectuating them. Moreover, in many cases, such right-feelings cause the development of instrumental rules created to protect and enforce such rights. In this sense, the priority of rights thesis is fully reconcilable with the contemporary approaches to naturalizing explanations of legal phenomena. Since my argument claims that the development of rules may depend on more primitive mental representations of rights or proto-rights rather than seeks any objective justification of any "natural" or "inherent" rights, it has very little (if anything) in common with the natural law tradition.

Publication details

Published in:

Araszkiewicz Michał, Banaś Paweł, Gizbert-Studnicki Tomasz, Płeszka Krzysztof (2015) Problems of normativity, rules and rule-following. Dordrecht, Springer.

Seiten: 113-121

DOI: 10.1007/978-3-319-09375-8_9

Referenz:

Pietrzykowski Tomasz (2015) „Rules and rights“, In: M. Araszkiewicz, P. Banaś, T. Gizbert-Studnicki & K. Płeszka (eds.), Problems of normativity, rules and rule-following, Dordrecht, Springer, 113–121.