Garrett Barden and Tim Murphy

in Law and Justice in Community

Published in print August 2010 | ISBN: 9780199592685
Published online January 2011 | e-ISBN: 9780191595653 | DOI:

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This chapter grounds an account of rights in the Roman definition of justice. It argues that rights, whether they are classed as ‘natural’, ‘individual’, ‘subjective’, ‘fundamental’, or ‘human’, are a function of justice understood as the giving to each what is due. In other words, rights are entitlements that are discoverable objects of justice; what is discovered to be ‘due’ to a party in instances of disagreement is established as a right. What is discovered to be ‘due’ to a type of person in a type of situation is established as a right and forms part of the context in which particular cases are investigated. What in a particular jurisdiction is not so established may be a claim. Within a particular jurisdiction, there can be a conflict of claims but not a coherent and enduring conflict of rights. This chapter also makes some observations on the historical development of rights discourse.

Keywords: natural rights; individual rights; subjective rights; fundamental rights; human rights; rights and justice; entitlements; discoverable objects; historiography of rights

Chapter.  7990 words. 

Subjects: Jurisprudence and Philosophy of Law

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