Taking Rights Spherically: Formal and Collective Aspects of Legal Rights
Contemporary debates over rights proceed from the common assumption that rights are purely or predominantly individualistic constructs. In this essay, the author reveals an important sense in which that common assumption is false. While rights are grounded in the interests of individuals, they also possess, under law and formal justice, critical and inherent collective aspects. By virtue of their generality, rights in legislation and adjudication necessarily relate individuals one to another: They engender collective spheres of membership. This improved understanding of the nature of legal rights demonstrates as well the powerful effect rights can have on the development of shared aspects of our individual identities. Further, it suggests a theoretical framework in which group difference may be taken into account even in the liberal public sphere.
Eric J. Mitnick, Taking Rights Spherically: Formal and Collective Aspects of Legal Rights, 34 Wake Forest L. Rev. 409 (1999).