Rethinking the theory of legal rights
This chapter examines the classical liberal theory of rights, which holds that rights protect or secure a domain of autonomy. To have a right is to have control or liberty over that to which one is entitled. Guido Calabresi and others working within an economic framework have argued that rights can be secured either by property rules or by liability rules. Property rules secure rights by entitling people who hold rights both to exclude others from making use of protected property and to transfer protected property on terms agreeable to them. Liability rules secure rights by giving non-entitled parties the freedom to take what right owners possess provided they compensate ex post. There is an apparent conflict, then, between liability rules and the classical liberal conception of rights. The chapter offers a way of thinking about legal rights in which both prima facie plausible claims must be abandoned.
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