Journal Article

Constitutive Rights

ERIC J MITNICK

in Oxford Journal of Legal Studies

Volume 20, issue 2, pages 185-204
Published in print January 2000 | ISSN: 0143-6503
Published online January 2000 | e-ISSN: 1464-3820 | DOI: http://dx.doi.org/10.1093/ojls/20.2.185
Constitutive Rights

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Prevailing accounts of the relationship between rights and identity impose a false choice between conceptions of rights as the instrument of self-invention or the foil to collective virtue. This article proposes an alternative conception of rights as constitutive of social relations and aspects of individual identity. To do so, it draws on H. L. A. Hart's famous distinction between special and general rights, and it describes the exclusionary and inclusionary conditions under which these forms of right constitute social groups and self-meaning. Further, it specifies a pure form of «constitutive right», overlooked in Hart's typology, but extant in modern liberal, pluralistic societies, that inherently differentiates among persons and so directly constitutes aspects of human identity.

Journal Article.  0 words. 

Subjects: Law

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