Constitutive Rights

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Prevailing accounts of the relationship between rights and identity impose a false choice between conceptions of rights as the instrument of self-invention or the foil to collective virtue. This article proposes an alternative conception of rights as constitutive of social relations and aspects of individual identity. To do so, it draws on H.L.A. Hart's famous distinction between special and general rights, and it describes the exclusionary and inclusionary conditions under which these forms of right constitute social groups and self-meaning. Further, it specifies a pure form of "constitutive right," overlooked in Hart's typology, but extant in modern liberal, pluralistic societies, that inherently differentiates among persons and so directly constitutes aspects of human identity.


Originally published by the Oxford Journal of Legal Studies in 2000.

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