Rights, Constitutions, and the Perils of Panglossianism

Oxford Journal of Legal Studies, Volume 38 (2018, Forthcoming)

28 Pages Posted: 28 Dec 2017

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Date Written: December 22, 2017

Abstract

The HLA Hart Memorial Lecture, delivered at Oxford on 9 May 2017, addresses the related questions of conflicts between rights and interests, between rights and other rights, and between or among interests. Using the metaphor of Voltaire’s (in Candide) eternally optimistic Dr. Pangloss, the lecture and ensuing article identify a common Panglossian tendency of officials and commentators to understand (or distort) the facts about the empirical world so as to avoid conflicts with constraining rights, and to understand (and distort) the shape and definition of those constraining rights so as to avoid conflicts with interests. Such efforts may be understandable attempts by the commentators and officials to avoid cognitive dissonance and achieve cognitive consistency, but may nevertheless produce a warped understanding of the empirical world and of the contours of the rights that appropriately limit even the wise policies that officials may otherwise pursue.

Keywords: rights, constitutionalism, side constraints, cognitive dissonance, cognitive consistency

Suggested Citation

Schauer, Frederick, Rights, Constitutions, and the Perils of Panglossianism (December 22, 2017). Oxford Journal of Legal Studies, Volume 38 (2018, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3092336

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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