Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights

Law and Philosophy -     

Specifying Rights Out of Necessity

It is the purpose of this article to make the positive casefor an under-appreciated conception of rights: specified rights.In contrast to rights conceived generally, a specified rightcan stand against different behaviour in different circumstances,so that what conflicts with a right in one context may not conflictwith it in another. The specified conception of rights thuscombines into a single inquiry the two questions that must beanswered in invoking the general conception of rights, identifyingthe content of a right in light of what is justifiable to dounder the circumstances. I present the case for specificationismin four sections, focusing on property rights. First, I arguethat rights are based upon more fundamental reasons, and thatthis instrumentalism is compatible only with specificationism—afact necessity cases illuminate. Next, I explain how specificationismembodies a fully moralized understanding of rights, and pointto a dilemma that one faces in denying this. Third, I arguethat the gap in property rights exposed in necessity cases entailsthat there is no right-based duty to compensate in such cases.Finally, I offer an error theory to explain the (false) attractionof the general conception of property rights.