Academic

Oberdiek on Rights Infringements & Rights Violations

By Lawrence Solum

John Oberdiek (Rutgers University School of Law, Camden) has posted two related papers on SSRN:

What's Wrong with Infringements (Insofar as Infringements are Not Wrong)?: A Reply (Law and Philosophy, Vol. 27, No. 3, 2008):




An earlier article of mine, 'Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights', was devoted to rebutting Judith Jarvis Thomson's arguments in favor of incorporating the distinction between (permissibly) infringing and (impermissibly) violating a right. In 'A Defence of Infringement', Andrew Botterell maintains that my criticisms and attempted rebuttals of Thomson's position fail, and that despite my efforts to show otherwise, the category of right infringements is secure. In this reply, I explain why I demur.

And:

Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights (Law and Philosophy , Vol. 23, No. 4, 2004):


The infringing/violating distinction, first drawn by Judith Jarvis Thomson, is central to much contemporary rights theory. According to Thomson, conduct that is in some sense opposed to a right infringes it, while conduct that is also wrong violates the right. This distinction finds a home what I call, borrowing Robert Nozick's parlance, a "moral space" conception of rights, for the infringing/violating distinction presupposes that, as Nozick puts it, "a line (or hyper-plane) circumscribes an area in moral space around an individual." In this paper, I argue against the moral space conception of rights, and more specifically, against incorporating the infringing/violating distinction into a theory of rights. There are other compelling ways to think about rights and it is my goal to stimulate their exploration.

Both papers are highly recommended!

Full post as published by Legal Theory Blog on May 19, 2009 (boomark / email).