The Generality of Rights

Abstract

A long tradition, exemplified by both the American and Scandinavian Realists, has viewed rights in particularistic terms, seeing rights not only as the labels attached to results reached on other grounds, but also seeing legal rights as emerging from particular decisions in particular cases. Yet despite the distinguished provenance of the view that rights are necessarily particular, the view is mistaken. Rights, properly understood, have an essentially rule-like character, and are thus necessarily general encompassing actors and events other than the ones who prevail in particular cases. And once we see that rights are necessarily general, we can appreciate that the generality of rights serves to bind together the otherwise disparate holders of the same right. In this way, rights, precisely because of their generality, often serve culturally important affinity- and community-creating functions.