An Approach to Rights: Studies in the Philosophy of Law and by C.P. Wellman

By C.P. Wellman

An method of Rights comprises fifteen formerly released yet commonly inaccessible papers that jointly express the advance of 1 of the extra very important modern theories of the character, grounds and sensible implications of rights. In a protracted retrospective essay, Carl Wellman explains what he was once attempting to accomplish in every one paper, how some distance he believes that he succeeded and the place he failed. hence the writer presents a serious viewpoint either on his personal idea and on substitute theories from which he borrows, or that he rejects. those essays determine the issues any enough concept of rights needs to resolve, describe the extra believable suggestions and weigh the advantages of every. they are going to be of designated curiosity to any reader inquisitive about criminal idea, ethical philosophy or any department of utilized ethics or social coverage during which appeals to rights are often made yet seldom rationally satisfactory.

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This is implied by the conception of law as a textbased practice that I adopted from Mtmzer and Nickel and is widely accepted by legal positivists. What I add in this article is an explanation of how one should use these sources to define the content of any legal right. Obviously one must interpret the expressions used to describe the right in the various relevant texts. The multiplicity of texts will be useful because each new qualification will increase the precision of one's definition and because the differences between descriptions will point to ambiguities in the definition of the right.

Wade, The Supreme Court declared that abortion is legally permissible, at least during the first two trimesters of pregnancy, by appealing to a fundamental moral right, the pregnant woman's human right to privacy. But is this sort of appeal to moral rights legitimate and helpful in constitutional law? Justice Black and others argue that it leads to arbitrary judicial pronouncements, unresolvable legal controversies and the abuse of judicial power. These objections to the legal appeal to moral rights present a special case of the theoretical problem I discussed in my previous paper: What theory of the grounds of rights, here legal rights, will enable the appeal to moral rights to be both legally valid and helpful in deciding cases involving serious moral controversies?

In spite ofHohfeld's insistence that all eight of his legal conceptions are fundamental, three can be defined in terms of a legal duty and another three in terms of a legal power. This is why I limit my discussion to the grounds of duties and of powers in this paper. The second line of reasoning begins with the observation that moral reasons are only one species of practical reasons. What, then, distinguishes specifically moral reasons from prudential or legal reasons? My hypothesis is that moral reasons are dual-aspect reasons.

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