The Problem of Rights Creation

Jan G. Laitos

in The Right of Nonuse

Published in print May 2012 | ISBN: 9780195386066
Published online September 2012 | e-ISBN: 9780199949656 | DOI:
The Problem of Rights Creation

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This chapter explores the parameters of the natural resources that might be provisioned with a legal right, the justifications for such a right, and the limits that would follow if such a right were created. Section A takes up the idea of environmental ethics, and applies its teaching to the idea that natural resources are capable of being protected by right of nonuse. It reviews the reasons rights creation has historically been human-centric, and then summarizes the countervailing argument advanced by environmental ethics, which is that there is intrinsic value in nonhuman natural entities. These objects morally and ethically also deserve legal recognition and protection. Section A then answers the questions: Can rights be granted to anyone other than humans? Which entities of nature can have rights? Should the focus be on the obligations of humans to nature, or on the original rights of nature? Section B considers the larger issue of how the law might create a right of nonuse, held by natural resources, consistent with established theories of political and legal morality.

Keywords: legal rights; environmental ethics; nonuse; legal institutions; political morality; legal morality

Chapter.  6039 words. 

Subjects: Environment and Energy Law

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