On the Nature of Legal Rights

Cambridge Law Journal

Volumn 59, Issue 3, 2000, Pages 473-508

  Kramer, Matthew H ^a  

^a CHURCHILL COLLEGE   (United Kingdom)

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Indexed keywords

EID: 84937330045     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197300000210     Document Type: Article

References (9)

1. Matthew H. Kramer, “Rights Without Trimmings,” in Matthew H. Kramer, N.E. Simmonds, and Hillel Steiner, A Debate Over Rights (Oxford: Oxford University Press, 1998), 7, 60–101. Hereinafter, my earlier essay will he cited as “RWT.” I should note at the outset two points of terminology. First, throughout the present essay I use the terms “obligation” and “duty” interchangeably. Second, I likewise use “person” and “human being” interchangeably; I do not confine “person” to human beings who are capable of exercising moral agency. That is, I use “person” as the singular of “people” rather than as the singular of “persons.”
2. For a more detailed exposition of legal powers, overlapping to a very limited degree with my present exposition, see “RWT,” 20–21, 102–106.
3. N.E. Simmonds, “Rights at the Cutting Edge,” in Matthew H. Kramer, N.E. Simmonds & Hillel Steiner, A Debate Oyer Rights (Oxford: Oxford University Press), 113, 225 [hereinafter cited as “RCE”].
4. See, e.g., Neil MacCormick, “Children's Rights: A Test-Case for Theories of Right,” in Legal Right and Social Democracy (Oxford: Clarendon Press, 1982), 154, 164–166.
5. I especially have in mind here the English case of Re F, (Mental Patient: Sterilisation) [1990] 2 A.C. 1. Therein the House of Lords held that doctors could lawfully sterilise a mentally retarded woman (who had begun to engage in sexual relations with another mental-hospital patient), so long as the doctors had reasonably determined that such a procedure would be in the best interests of the woman. Anyone who supports the Lords' decision-as I do-should nonetheless feel some unease over the fact that the woman herself was mentally unable to give or withhold consent to the sterilisation.
6. My example here is loosely based on Reffell v. Surrey County Council [1964] 1 All E.R. 743 although in Reffell the plaintiff prevailed.
7. The ostensible counter-example is loosely based on the facts of R. v Brown [1993] 2 All ER 75.
8. My own view of their substantive claims would he largely the same as that in H.L.A. Hart, Law, Liberty, and Morality (Oxford: Oxford University Press, 1963), 30–34.
9. See “RWT,” 17 n. 6. I have even more strongly emphasised this point elsewhere. See my In the Realm of Legal and Moral Philosophy (Basingstoke: Macmillan, 1999), 133–134 n. 9.