What is here
I am including citations for the articles I mentioned in the Raz lecture as well as some other material relevant to Raz’s article.
I enjoy making connections among the positions taken by different philosophers. I also think that, in some cases, the articles or books I am recommending are simply great: they can be read with pleasure and profit by those who do not share my professional interest in these matters.
However, it is not necessarily the case that reading all (or, in some cases, any) of this stuff now is the best way of learning about rights. You can overload yourself by trying to take in too much and the material that we are going over is quite difficult on its own. I have been teaching much of it for years and learn new things each time out, so I think that just about everything we are reading can stand re-reading and considerable thought.
You can always read the other things after the quarter is over. Or read them now: you’ve been warned, but who am I to use the web to stand in the way of intellectual enthusiasm? That’s what lectures are for.
The article by Hart that I referred to at the beginning of the lecture is about Jeremy Bentham’s theory of rights (Bentham is widely credited as having one of the earliest and clearest versions of the Benefit theory). Hart develops his Choice theory in the course of discussing Bentham’s views. He introduces the qualifications that I mentioned at the end of the article (pp. 188-93).
There are two different full citations for this article (the second is a reprint of the first: the content is the same).
- H.L.A. Hart, “Bentham on Legal Rights” in Oxford Essays in Jurisprudence, Second series, ed. A.W.B. Simpson (Oxford, 1973).
- Hart, H. L. A. “Legal Rights.” In Essays on Bentham: studies in jurisprudence and political theory, 162-93. Oxford, New York: Oxford University Press, 1982.
The easiest way to get it is through the Regenstein reserve system: an electronic copy is available in the section for this course under the title “Legal Rights”.
Those interested in Raz may want to read the criticisms in Margaret Holmgren, “Raz on Rights” Mind 94 (Oct., 1985): 591-5 [JSTOR].
Going farther afield, I think there are some similarities between Raz's distinction between general and particular rights and some moves that Ronald Dworkin makes in: “Taking Rights Seriously.” In Taking Rights Seriously, 184-205. Cambridge, MA: Harvard University Press, 1977.
I don’t have the time to explain that here, and probably shouldn’t bother mentioning it at all. Roughly, Dworkin argues that courts take rights seriously only if they employ a particular way of comparing the interests protected by rights with competing interests (see section 3, pp. 197f). Since courts are trying to decide whether an established right like the right to free speech applies in a particular case, it seems as though Dworkin is or should be employing a distinction similar to Raz’s distinction between general and particular rights.
Finally, on the more general issue of conflicting rights, this article by Jeremy Waldron does a lot of good work in setting out the issue and explaining why it arises on the Benefit Theory (the first citation is the original publication, the second to a reprinted version).
- Waldron, Jeremy. “Rights in Conflict.” Ethics 99, no. 3 (1989): 503-19. [JSTOR]
- Waldron, Jeremy. “Rights in Conflict.” In Liberal Rights, 203-24. Cambridge: Cambridge University Press, 1993.
To foreshadow a bit, I will make some of the same points about the relationship between rights and duties that Waldron makes when we discuss Shue.