The right,the good and the jurisprude

Legal philosophy must be based on a set of substantive political values about such fundamental matters as the nature of the political community and the meaning of human freedom. This general thesis is illustrated by the analysis of moral discourse about the justification and limits of liberty-rights and equality-rights.The most effective way of arguing about the liberal conception of individual liberties (consistent with the Millian Harm Principle) is by recourse to the priority of the right over the good. But this conception is little more than a restatement of the Harm Principle itself hence, a more fundamental justification for it is required. This can be provided by a substantive conception of equality of individuals as moral agents who are capable of choosing, pursuing and changing their own conceptions of the good, within the parameters of avoiding harm to others.In turn, the basic moral problem about equality-rights concerns the test of the discriminatory character of legal classifications. The insistence that immutable personal characteristics, such as race and sex, are prima facie discriminatory, can only be explained by an appeal to a notion of positive freedom: individuals should not be adversely affected by those characteristics over which they have no control.There is a significant parallelism in the discourse about liberty-rights and equality-rights: one is a mirror image of the other. This indicates that jurisprudence is incomplete without those more fundamental conceptions, such as equality of moral agents and positive freedom, and that a proper discourse about human rights is derivative from the ideal of a just society.I am grateful to Martin Krygier, Grant Lamond and David Mason for their helpful comments.