Posted: 25 Jun 2008
Date Written: Spring 2008
It is the purpose of this article to make the positive case for an under-appreciated conception of rights: specified rights. In contrast to rights conceived generally, a specified right can stand against different behaviour in different circumstances, so that what conflicts with a right in one context may not conflict with it in another. The specified conception of rights thus combines into a single inquiry the two questions that must be answered in invoking the general conception of rights, identifying the content of a right in light of what is justifiable to do under the circumstances. I present the case for specificationism in four sections, focusing on property rights. First, I argue that rights are based upon more fundamental reasons, and that this instrumentalism is compatible only with specificationism a fact necessity cases illuminate. Next, I explain how specificationism embodies a fully moralized understanding of rights, and point to a dilemma that one faces in denying this. Third, I argue that the gap in property rights exposed in necessity cases entails that there is no right-based duty to compensate in such cases. Finally, I offer an error theory to explain the (false) attraction of the general conception of property rights.
Suggested Citation: Suggested Citation
Oberdiek, John, Specifying Rights Out of Necessity (Spring 2008). Oxford Journal of Legal Studies, Vol. 28, Issue 1, pp. 127-146, 2008. Available at SSRN: https://ssrn.com/abstract=1151108 or http://dx.doi.org/gqm028