Rules and rights

Tomasz Pietrzykowski

pp. 113-121

in: Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki, Krzysztof Płeszka (eds), Problems of normativity, rules and rule-following, Berlin, Springer, 2015

Abstract

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.