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A System of Rights$
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Rex Martin

Print publication date: 1997

Print ISBN-13: 9780198292937

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198292937.001.0001

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Rights as Valid Claims

Rights as Valid Claims

Chapter:
(p.51) 3 Rights as Valid Claims
Source:
A System of Rights
Author(s):

Rex Martin (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/0198292937.003.0004

No real consensus has emerged on whether rights, in order to be rights, require social recognition (and beyond that, social maintenance). In considering this issue one school of thought—embracing both classical natural rights theorists and some contemporary advocates of human rights—has tended to emphasize that individuals can have rights independent of organized society, of social institutions, and hence of social recognition and maintenance in any form. The rather common characterization that rights are essentially claims, can be taken as a way of emphasizing that rights hold irrespective of whether they have been acknowledged, either in the society or, more specifically, by that person against whom the claim is made.

Some have said here simply that rights are claims (B. Mayo), others say they are entitlements (H. J. McCloskey), and yet others (most notably Joel Feinberg) say they are valid claims.

The chapter argues that the fatal flaw in the theory of rights as valid claims (in any of its formulations) is the suggestion that practices of governmental recognition and enforcement in law can be dispensed with in the case of legal rights. Indeed, this is the very point at which both Ronald Dworkin and Joseph Raz, who might otherwise be taken to be sympathizers with some form of the valid claims thesis, desert that thesis for one that emphasizes that legal rights are established practices (that they are institutionally established ways of acting/being treated); otherwise they cannot count as legal rights.

Keywords:   Ronald Dworkin, established practices, Joel Feinberg, legal rights, natural rights, Joseph Raz, rights, social maintenance, social recognition, valid claims

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