Specifying Rights Out of Necessity

Posted: 25 Jun 2008  

John Oberdiek

Rutgers Law School; Rutgers, The State University of New Jersey - School of Law - Camden

Date Written: Spring 2008

Abstract

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

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

John Oberdiek (Contact Author)

Rutgers Law School ( email )

217 North 5th Street
Camden, NJ 08102
United States
856-225-6513 (Phone)

Rutgers, The State University of New Jersey - School of Law - Camden ( email )

217 North 5th Street
Camden, NJ 08102
United States
856-225-6513 (Phone)

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