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Rights, Goals, and Hard Cases

S. C. Coval and J. C. Smith
Law and Philosophy
Vol. 1, No. 3, Values in the Law of Tort: Part I (Dec., 1982), pp. 451-480
Published by: Springer
Stable URL: http://www.jstor.org/stable/3504738
Page Count: 30
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Rights, Goals, and Hard Cases
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Abstract

Rights have two properties which prima facie appear to be inconsistent. The first is that they are conditional in the sense that on some occasions it is always justifiable for someone to act in a way which appears to be inconsistent with someone else's rights, such as when the defence of necessity applies. The second is that rights are indefeasible in the sense that they are not subject to being defeated or outweighed by utilitarian or policy considerations. If we view rules and the rights which they establish as being subject to a ceteris paribus clause, the form of which generates out the exceptions, the conditionality of rights becomes reconcilable with their nondefeasibility. Such a view of rules and rights would entail that the goals of the law and their orderings be considered as a part of the law. When so viewed, propositions about goals and their orderings become legitimate premises for legal reasoning, furnishing solutions to hard cases in the law of torts, without resort to balancing of interests or judicial discretion.

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