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16 Law & Phil. 1 (1997)

handle is hein.journals/lwphil16 and id is 1 raw text is: ANDREI MARMOR* ON THE LIMITS OF RIGHTS 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 discourse. 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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