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16 Law & Phil. 1 (1997)

handle is hein.journals/lwphil16 and id is 1 raw text is: ANDREI MARMOR*

According to conventional philosophical wisdom, there are two main
questions pertaining to rights discourse. There is the analytical ques-
tion of what it means to have a right, and there is the moral/political
issue concerning the question of what rights we should have. Few
philosophers, however, doubt that these two issues, the analytical
and the political, are closely related and the answers to them inter-
dependent. In this essay I wish to make a modest contribution to the
discussion of the relations between the analysis and politics of rights
My aims, however, are very limited. I will only concentrate on
one analytical conception of rights, namely, The Interest Theory of
Rights, which I find most plausible, and I will try to show that there
are two interesting conclusions which follow from it concerning the
appropriate limits of rights: Namely, that rights, properly conceived,
are both inherently limited and inherently controversial. Though
these two conclusions seem to pull in different directions, I will
try to show that they teach us the same political lesson, namely, that
there is something both misleading and unattainable in the aspiration
to political neutrality, so prevalent in current liberal thinking.
The discussion will follow traditional paths. In the first section,
I will provide a very brief outline of the interest theory of rights,
emphasizing those of its features which make it, to my mind, the
most plausible and attractive analysis of the concept of rights. The
second section deals with a very pervasive conception of the limits
of rights, that I call the Newtonian conception, arguing why it cannot
be maintained. This conception basically holds that rights can only
be limited in order to secure some other right (or the same right for
somebody else). I call this conception Newtonian because it depicts
the force of rights in a way similar to the Newtonian law of inertia:
* I am indebted to Meir Dan-Cohen, John Gardner, Ruth Gavison, Joseph Raz,
Noya Rimalt, and Ariel Porat for their helpful comments on a draft of this article.
Law and Philosophy 16: 1-18, 1997.
© 1997 Kluwer Academic Publishers. Printed in the Netherlands.

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