The Dual Lives of Rights: The Rhetoric and Practice of Rights in America

18 Jul 2010 09:27am J. Harvie Wilkinson III 

 

The nature of rights—whether moral, legal, natural, or otherwise—has a way of leaving everyone confused. On one thing, however, people seem to agree: rights have a unitary nature. If a right is an ideal, a statement of what ought to be, then the way in which it is actually implemented is irrelevant to its definition. If, on the other hand, a right is understood in more positivist terms as ―nothing but a prediction of how certain institutions will react if a particular person acts in a particular way,1 then the manner in which we talk about a right is only relevant to the extent that our words correlate with our deeds. 

The reason there is so much confusion over rights is because everyone seems to misunderstand their fundamental composition. Just as human beings have two essential aspects, a physical body and an incorporeal soul, rights exist in two dimensions simultaneously, not one. The way we talk about a right and the way we put it into actual practice are flip sides of the same coin. It is these twin elements of rhetoric and practice that define a right, and neither one is ancillary to or derivative of the other.

  |   VIEW PDF

META


The California Law Review is the preeminent legal publication at the UC Berkeley School of Law.
Founded in 1912, CLR publishes six times per year on a variety of engaging topics in legal scholarship.
The law review is edited and published entirely by students at Berkeley Law.