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5 Denning L.J. 1 (1990)

handle is hein.journals/denlj5 and id is 1 raw text is: What's Right About Rights? James Allan* The end of the Second World War, with its massive violations and obscenities, together with the new-found influence of the United States and its 200 year old constitution, has heralded or spawned a new era for rights - more particularly the discussing of politics and morals in terms of the concept of rights. Although first conceptualized by the ancient Greeks, rights had their theoretical heyday in the 17th century; they had their revolutionary heyday in the 18th century; and then they were eclipsed by 19th century movements, either utilitarian or idealist, which could not or would not accommodate them. Today they are again the major, perhaps the sole, currency of moral and political debate throughout the world. This paper will attempt critically to assess the validity of such a tendency. What then are rights? Rights are not things. One may not find them floating in the atmosphere, either visible or invisible. Nor are they sensations in the mind. To answer this question one must realize that the primary job of most legal words, ' for example, 'liability', 'onus', 'right', 'duty', or 'negligence', is not to stand for or describe anything in the material or psychological world. Rather it is to describe a function. Accordingly, one ought not to abstract any such legal word from the sentence in which its full function can be seen. To elucidate a legal word best, look at the whole statment in which it has its characteristic use. Thus asking 'When is it accurate to say that one has a right to do or to refrain from something?' is a much more apt formulation than asking What are rights? or simply discussing 'rights'. The former question does not presuppose that rights are things and therefore * Lecturer in Law, City Polytechnic of Hong Kong. The author wishes to acknowledge the influence, generally, of Jeremy Bentham, David Hume and H.L.A. Hart on what follows. 1. See H.L.A. Hart's Definition and Theory in Jurisprudence (1953) Inaugural Lecture, Oxford, at 70L. Q.R. (1954) orEssays in Jurisprudence andPhilosophy (1983, Clarendon Press), pp. 21-48. In this article Hart asserts that the common mode of definition largely fails with respect to the law as legal words do not have the straightforward connection with counterparts in the world of fact which ordinary words have (e.g., 'trees', 'cancer', 'soccer'). Most words are defined by placing them in a larger category and then differentiating them from other things in that category (genus et differentia). Such a mode of definition breaks down in the legal realm, indeed in the whole non-material realm, because nothing 'corresponds' to legal words.

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