The adventures of a middle aged law student

Thursday, September 30, 2010

rights

A duty is what I must do
A privilege is what I may do
A power is what I can do
A right is what some other person must do for me

Per Corbin as quoted in The Bramble Bush

Llewellyn says that there are (were) two camps on rights.  The idealists and the cynics, or realists.  The idealist sees rights as things.  Primary rights are something such as my right to have you perform on your contract with me.  They are not real in themselves, but are the substance of the law.  Enforceability of that right is another, separate thing, and is not the primary thing.  The right is, but the inability of the law to fully enforce it is not a problem.  Remedies inadequate-these are not a conflict, because you still have your rights.  The cynic, on the other hand, sees rights as that which is enforceable, for which there is real remedy.  If no remedy, no right.  As he puts it "defect of remedy is defect of right."  The law can really only be seen as it has effect, as it leaves its mark.

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