I am grateful to the Institute for Humane Studies at George Mason University for support in the preparation of this work. I am indebted to Carl Wellman, Stanley Paulson, Larry May, Randy Barnett, Stuart Silvers, and especially Richard Bronaugh, for comments and suggestions on earlier drafts.

1. Maine, H., Early Law and Custom (London: John Murray, 1891) at 366.Google Scholar

2. Bowring, J.ed., The Works of Jeremy Bentham (New York: Russell & Russell, 1962) v.2 at 523.Google Scholar Cf., ibid, at 501-02.

3. See ibid, at 523 (“point of conduct” is Bentham’s term); Hart, H.L.A. “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L.R., 593 at 599, 605-06Google Scholar, (clarifying position of Bentham and Austin; discussing criticisms of positivistic legal theory by Salmond and Hagerstrom who claimed that the imperative theory fails because the distinction between existence and merit is incompatible with the existence of legal rights).

4. Wellman, C. ed., A Theory of Rights (Totowa N.J.: Rowman & Allanheld, 1985) at 118.Google Scholar

5. Ibid, at 169, 179. Marking the distinction introduced in the text quite precisely, Wellman speaks of “morality rights” and “moral rights.” See ibid, at 81, 115-18, 184. Within his overall topology of rights, morality rights are a species of conventional rights, the latter being one of the “two distinct and coordinate” genera (organizational rights and conventional rights) comprised by the family of institutional rights. Like all institutional rights, morality rights “are defined and conferred by institutional norms.” More particularly, they are defined and conferred by the norms of the conventional or positive morality of a society. Legal rights, which are a species of the other genus of the family of institutional rights, are defined and conferred by legal norms. Wellman argues that, unlike morality rights and legal rights, some rights are defined and conferred by “a body of norms of conduct and character that are noninstitutional, objectively valid and specifically moral.” Ibid. at 121. In his topology such rights constitute a distinct family of rights, the family of moral rights.

6. See Hart, H.L.A. “Are There Any Natural Rights?”, in Lyons, D., ed., Rights (Belmont, Calif.: Wadsworth, 1979) 14 at 25 Google ScholarPubMed et passim. Hart calls such rights “special rights to distinguish them from those moral rights which are thought of as rights against (i.e., as imposing obligations upon) everyone.. . .” supra, 14 at 20. I call such rights institutional rights.

7. Ibid. 14 at 14. This right is precisely the sort of right Bentham inveighs against in his “Anarchical Fallacies,” for it is “’absolute’, ‘indefeasible’, or ‘imprescriptible’.” Ibid., 14 at 15.

8. Cf., Bentham, J. A Fragment on Government, ed. by Burns, J.H. & Hart, H.L.A. (Cambridge: Cambridge University Press, 1989)Google Scholar c.5 para.6 note b, c.5 para.7 note c; supra, note 6 at 20-22, n. 10 and text at that point.

9. Supra, note 6, 14 at 22. See Murphy, J. & Coleman, J., The Philosophy of Law: An Introduction to Jurisprudence (Totowa, N.J.: Rowman & Allanheld, 1984) at 20–21 Google Scholar (suggesting that there are “foundations for moral obligation other than morality of content” and pointing to promises to illustrate the point: “My moral obligation to keep my promise is generated by the act of promising, not by the content of what 1 promise. My helping you paint your fence is morally trivial and, by itself, generates no moral requirement for me. If I promise to help you paint the fence, however, then my doing it takes on the character of a moral requirement.”).

10. See supra, note 4, c. 5. Here we confront what Ronald Dworkin calls a right in the strong sense. See Dworkin, R. Taking Rights Seriously, (London: Duckworth, 1977) at 188.Google ScholarPubMed The point that one may have a right to something that is wrong receives some attention in Fuller, L., “The Case of the Speluncean Explorers” (1949 62 Harv. L.R. 616 at 627 Google Scholar (Justice Tatting inveighing against what he takes to be his brother Foster’s suggestion, namely, that “when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain.”) Cf., Fuller, supra at 621-22 (Justice Foster arguing that the defendants were guiltless, for their actions were undertaken “in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself”). Moreover and somewhat closer to home, it seems clear that the point comes into play when it is said that, in virtue of an agreement with a prosecutor, a criminal who has fulfilled his part of the bargain by providing information or testifying, has a right not to be prosecuted or punished for the offenses that, as it were, brought him into the clutches of the prosecutor. Indeed, looking to the arena of police work, it would not be unreasonable to assert that the point frequently comes into play.

11. Supra, note 6, 14 at 20.

12. As Joseph Raz points out, this approach is not universal. It is, nevertheless, quite common. See Raz, “Legal Rights” (1984) 4 Oxford Journal of Legal Studies 1. Raz, himself, is outside the mainstream on this score. He regards moral rather than legal rights as the model for a general explanation of the concept of a right. See Raz, “On the Nature of Rights” (1984) 93 Mind 194.

13. Austin, J. The Province of Jurisprudence Determined ed. Hart, H.L.A. (New York: The Humanities Press, 1965) at 185–87.Google Scholar

14. Cairns, H., Legal Philosophy From Plato to Hegel (Baltimore: Johns Hopkins Press, 1949) at 169.Google Scholar Cf., T. Aquinas, Summa Theologica v.28, la2ae, q. 90 art. 1, q. 95.; Cicero, De Legibus II. v.11–13.

15. Marking a distinction between rights in a strong sense and a weak sense, Dworkin rejects the thesis that there is a conceptual link between rights in the strong sense — his concern — and right conduct. As Dworkin points out, one may have a right (in the strong sense) to do what is wrong (e.g., gamble). Those who embrace the thesis in question confuse the two senses of a right — or so Dworkin would have us believe. See R. Dworkin, supra, note 10 at 188–89. Cf., Fried, C., Contract as Promise: A Theory of Contractual Obligation (Cambridge: Harvard University Press, 1981) at 98n.Google Scholar (’If I have a right, then I do no wrong when I exercise it, and you do me wrong if you violate that right… . To say a person has no right to do something… in ordinary speech… has the strong sense that to do that thing is itself wrong.’). For a discussion of Dworkin’s notion of the strength of rights see supra, note 4 at 186f.

16. See supra, note 6, at 21. Hart uses the term “special rights” for rights arising from voluntary transactions or special relationships between individuals. (I call them institutional rights.) It is clear that the point in the text is apposite to the former. Substituting ‘interaction’ for ‘action’ in the statement of the point and noticing that, with the latter, one’s attention is directed to the role responsibilities of persons who have interlocking social roles (e.g., lawyer and client, doctor and patient, parent and child), one can see that the point is apposite to the latter as well as the former. Special rights are not natural rights, they are artificial — qua rights they are artifacts. Cf., text supra, note 5.

17. See Melden, A.I., Rights and Right Conduct (Oxford: Basil Blackwell, 1959) at 16–17.Google Scholar

18. See Barnett, R., “Contract Scholarship and the Reemergence of Legal Philosophy” (1984 97 Harv. L.R., 1223 at 1240 Google Scholar (directing attention to the basic issue raised in the text: “Under a bargain theory, the mere fact that an exchange is bargained for provides a sufficient basis for contractual enforcement, and a court may not inquire into the substance of the exchange... . It is always possible, however, to identify instances in which, although a bargain existed, intuitions (and case law) suggest that the resulting agreement should not be enforced. A contract for the performance of an illegal act is one example. A contract for indentured servitude is [another]”); Barnett, R., “A Consent Theory of Contract” (1986 86 Columbia L.R. 269 at 290–91Google Scholar (pointing out that “certain procedurally immaculate agreements” may be deprived of the normative force they ordinarily possess and that the difficulty here is confronted not only by process–based theories, but party-based theories (will and reliance) and the efficiency version of a standards–based theory as well.).

19. Cf., Barnett (1986), supra note 18, 269 at 292–93 (arguing that an explanation of the bindingness of contractual commitments “is derived from more fundamental notions of entitlements and how they are acquired and transferred,” and suggesting that the distinction between alienable and inalienable rights is key, for, among other things, whether an agreement to transfer rights is valid may turn on whether the rights in question are alienable); Barnett (1986), supra, 269 at 293 n.99; Barnett (1984), supra, note 18, 1223 at 1244 (illustrating the point respecting alienability); Supra note 4, at 171 (arguing that “moral rights are known, not by intuition, but by discursive reasoning from specifically moral reasons to their implications.”)

20. Bowring, J. ed., The Works of Jeremy Bentham (New York: Russell & Russell, 1962) v.3 at 181.Google Scholar

21. Lyons, D., “Rights, Claimants, and Beneficiaries” supra, note 6, 58 at 60.Google Scholar

22. Supra, note 2 at 501.

23. See Hart, H.L.A., “Utilitarianism and Natural Rights” in Hart, H.L.A., Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983 181 at 185–87.CrossRefGoogle Scholar

24. Bentham, J., An Introduction to the Principles of Morals and Legislation, in Burns, J.H. & Hart, H.L.A., eds, The Collected Works of Jeremy Bentham (London: Athlone, 1977 at 225n., 296n., 232n.Google Scholar Also, see Hart, H.L.A., “Bentham on Legal Rights” supra, note 6, 125 at 130.Google Scholar

25. Bowring, supra, note 20 at 181, 221. Cf., Hart, supra, note 24.

26. Lyons, supra, note 21, 58 at 62.

27. Ibid., 58 at 61.

28. Ibid.

29. Hart, supra note 23, 181 at 185.

30. Ibid.

31. J. Bentham, supra, note 25 at 181. See text, supra, note 15.

32. It is the law that…’, would work just as well, provided it is granted that statements to the effect that one is not under an obligation to forbear from øing are statements respecting the state of the law, i.e., what the law is with respect to øing.

33. Supra note 21, 58 at 61.

34. Ibid., 58 at 62.

35. According to Bentham, the criterion for the identification of laws must be content-independent for, among other things, the alternative flies in the face of the distinction between the law as it is and the law as it ought to be and thereby renders the law uncertain. Legal certainty promotes social order (some would say that it is a necessary condition of social order), facilitates private planning, and helps to ensure that similarly situated persons are treated similarly. Its value can scarcely be doubted. Certainty respecting rights, in particular, rights born of voluntary human interaction, is valuable for the same reasons. Cf., Barnett (1986), supra, note 18, 269 at 290–91. Moreover, in the arena of voluntary transactions, especially those falling within the ambit of contract, it is arguable that the protection of contractual freedom requires as formal a criterion as possible, See Barnett (1986), supra, note 18, 269 at 278–81, 284–85 (discussing the difficulties of extreme indeterminacy that plague standards–based theories). Cf., Barnett, (1984), supra, note 18, 1223 at 1239 (suggesting that with a formal criterion (e.g., consideration) the surreptitious substitution of the judge’s terms for those of the parties is more difficult). These considerations support the claim that content–independence is a desideratum of the criteria for the identification of legal norms and institutional rights.

36. Such is the prescription of H.L.A. Hart. Actually, Hart’s prescription goes further. Bentham’s reductionism has to go too. I will not pursue this matter here, however. See Hart, supra note 24. Hart’s position respecting reductionism is well known from his 1961 book, The Concept of Law (Oxford: Oxford University Press, 1961).Google ScholarPubMed Cf., C. Wellman, supra note 4 at 202, 207, et passim (arguing that “rights are not reducible to or definable entirely in terms of duties”).

37. See Raz, J., “Promises and Obligations” Hacker, P.M.S. & Raz, J. eds, Law, Morality, and Society (Oxford: Clarendon, 1977) at 211–19Google Scholar(examining and contrasting the intention conception of a promise — a promise is — an expression of a firm intention to act — and the obligation conception of a promise — a promise is an expression of an intention to undertake an obligation). Cf., P. Ardal, “And That’s a Promise”, 18 Philosophical Quarterly 225 (1968) (defending the intention conception); American Law Institute, Restatement (Second) of Contracts (St. Paul: Am. Law Institute Pub., 1979) s. 2 at 8 (defining a promise as “a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.”). Raz embraces and defends the obligation conception. See Raz, supra, at 219–28. Cf., Barnett (1986), supra, note 18, 269 at 299 n.121, 300, 304 (“The phrase “the manifestation of an intention to be legally bound” neatly captures what a court should seek to find before holding that a contractual obligation has been created.”); Barnett (1986), supra, note 18 at 305 (an individual “incurs a contractual obligation to perform only when she manifests to a promisee her intention to be legally bound… . The basis of contract is [then] consent.”).

38. See supra, note 4 at 169 (pointing out that (i) in “the law and in the normative language of other institutions, ‘a right’ has directive meaning,” for here, a right is defined and conferred by institutional directives and (ii) in the hands of those who speak about “the law or other institutions [e.g., social scientists or lawyers], ‘a right’ has descriptive meaning.” Wellman adds, by way of contrast, that in “morals, ‘a right’ has critical meaning, for all moral positions are defined in terms of moral obligations, and the meaning of ‘ought morally’ involves rational criticism”). Supra, at 112–19 (discussing, inter alia, “the promisee’s morality right that the promisor keep his or her promise”).

39. The connection between rights and benefits, in particular the question whether being a beneficiary is necessary and sufficient for having a right, has received a good deal of attention in the literature. See supra, note 6, 14 at 17–19 (pointing to the case of the “third-party beneficiary” to show that being a beneficiary is neither necessary nor sufficient for having a right); Lyons, supra note 21, 58 at 69–77 (arguing that one of “the conditions of a valid and binding promise, and thus a condition of a right accruing to the promisee, is that he really wants what is promised.”); Hart supra note 24, 125 at 142–44 (arguing against Lyons’s claim quoted above); Feinberg, “Duties, Rights, and Claims” (1966) 3 American Philosophical Quarterly 137 at 138 (arguing that “it always follows from the fact that a person is a promisee that he has a right to what is promised.”). The two cases in the text are proffered as counterexamples to the qualified — and, a fortiori, to the unqualified — beneficiary theory of rights (i.e., the theories of Lyons and Bentham respectively.)

40. See Hamer v. Sidway, [1891] 124 N.Y. 538, 27 N.E. 256.

41. The examples presented here are not original to me. I have drawn on Raz, supra, note 37 and the case cited supra, note 40.

42. Supra, note 17 at 7.

43. See supra, note 16 and text at that point.

44. Supra, note 17 at 16.

45. Ibid. Cf., supra note 4 at 118 (speaking of a right as something that provides “justification for siding with one party against an adversary”), 114–17 (discussing the “analogy between taking legal action in a court of law and appealing to one or more bystanders [i.e., occupants of the “office of morality judge”] for a judgement of how morality [i.e., a society’s mores or positive morality] bears on one’s confrontation”), 161, 205f., 210f., 214–19 (speaking of the “normative protection” that “institutional and moral rights… give to their possessors”); Wasserstrom, R. “Rights, Human Rights, and Racial Discrimination” supra, note 6, 46 at 48 Google Scholar (it is proper for a rightholder to cite his or her “right as the justification for having acted in accordance with or in the exercise of that right”).

46. For an illuminating discussion of legal validity, legal errata, and the institutional presumption of justification associated with an official’s exercise of a legal power see Paulson, S. “Material and Formal Authorisation in Kelsen’s Pure Theory” (1980) 39 Cambridge L.J. 172 at 191 (discussing formal authorisation as the basis for a presumption pf material authorisation).Google Scholar The notion of a presumption of material authorisation is developed under the rubric of “presumptive legal validity” in Paulson, “Neue Grundlagen für einen Begriff der Rechtsgeltung”, (1979) 65 Archives for Philosophy of Law and Social Philosophy 1. Cf., Wueste, D. “On the Tacit Constitutions of Legal Processes,” (1987) 10 Harv. J.L. & Pub. Pol’y 349 at 351–52Google Scholar (suggesting that Aquinas, in effect, sets a presumption in favor of the derivability of a challenged statutory provision — one that allegedly departs from right reason, for example — from the Eternal Law).

47. Hart, supra, note 6, 14 at 22. Cf., supra, 14 at 18 (“It is important for the whole logic of rights that, … the person who has a right (to whom performance is owed or due) is discovered by examining the transaction or antecedent situation or relations of the parties out of which the ‘duty’ arises.”).

48. Hart, supra note 6, 14 at 20 (my emphasis).

49. It is worth remarking that the “process product ambiguity” in the account of promising provided here is also found in the law of contract. Corbin tells us that there are three common views of contract. On one view, a contract is the series of operative acts of the parties expressing their assent (a process); on another view, a contract is a physical document executed by the parties as an operative fact in itself (a product which functions as evidence); and finally, it is often held that a contract is the legal relations resulting from the operative acts of the parties, always including a relation described by use of the terms ‘right’ and ‘duty’, i.e., minimally, the contract is a right–duty relation between assignable individuals. This last view is “process product ambiguous”. It corresponds mutatis mutandis to the view offered in the text regarding promises. See Corbin, A.L. Corbin on Contracts: One Volume Edition (St. Paul: West, 1953) at 4. Cf., supra, note 38.Google Scholar

50. See Riggs v. Palmer, [1889] 115 N.Y. 506, 22 N.E. 188; infra, note 60.

51. See text, supra, note 18.

52. Cook, W.W. “Introduction” to Hohfeld, W.N., Fundamental Legal Conceptions ed. by Cook, W.W. (New Haven: Yale University Press, 1919) at 19.Google Scholar Cook uses the term ’illusory’ in talking about rights “in conflict with paramount equitable relations.” It is clear from his discussion that it is their validity which is illusory. In view of his concern with conflicts of law, the alternative interpretation, viz., that the rights are illusory, is not sensible. Cf., Barnett, (1986), supra, note 18, 269 at 296 n. 111 (marking a distinction between “a positive legal obligation, which a particular system will enforce (whether or not it should) and a valid legal obligation, which is an obligation that it is morally appropriate to enforce.”); Barnett, (1986), supra, 269 at 304–05 n.145 (using ’valid’ as an attributive adjective — a logical predicate — with ’rights’).

53. Fuller, L. & Braucher, R. Basic Contract Law (St. Paul: West, 1964) at 376.Google Scholar

54. Paton, G.W., A Textbook of Jurisprudence, 4th ed. by Paton, G.W. & Derharn, D.P. (Oxford: Clarendon Press, 1972) at 602 n.10.Google Scholar

55. The same point can be made respecting the notion of prima facie rights. See, e.g., supra, note 4 at 186 (discussing the notion of strength respecting rights —“the ability to exist undefeated by the reasons why one ought not to act on [them]” — and arguing against the conception of a right, in particular a liberty-right, “as the absence of any contrary prima facie obligations.” This conception will not do, “for in almost every situation of consequence there is some wrongmaking feature imposing a [contrary] prima facie obligation”).

56. Cf., Barnett, (1986), supra, note 18, 269 at 309–20 (discussing the presumptive dimension of the consent theory of contract).

57. In developing this conception of the validity of rights I have drawn on the work of many writers, but especially on points made by Hart, supra note 6, 14 at 20, and Wasserstrom, supra, note 45, 46 at 48.

58. I take it that among the sorts of things that may rebut the presumption are (1) a showing that the object of the right is not right on appropriate criteria, (2) a statute of limitations which, if the maxim of equity, that equity aids not those who slumber on their rights, is taken seriously, may be seen as having a moral analog, (3) the existence of a clear and present danger that can be mitigated only through the abrogation or abridgement of a right, and (4) the necessity of abrogation to protect the fundamental rights of others.

This list is not exhaustive. There are other possibilities, e.g., social utility. But as the list gets longer, controversy is more likely. Indeed, some of the items on my list may be controversial, in particular the last two. I will not argue for any of these items, I present the list only to indicate that there are various sorts of things that may serve to rebut the presumption. Precisely what they are is another topic of considerable importance and complexity.

59. See, e.g., Riggs v. Palmer, [1889] 115 N.Y. 506, at 511, 22 N.E. 188, at 190. Cf., Dworkin, supra, note 10 at 23ff. (using Riggs as an illustrative case in an attack on the legal positivist’s model of rules); Coleman, J. Book Review of Taking Rights Seriously by Dworkin, Ronald M. (1978) 66 California L.R. 885 at 890 Google Scholar (“The controlling standard in [Riggs] was the moral principle that a person ought not profit from his own wrongdoing — itself an element of an even more general moral prohibition against unjust enrichment.”).

60. See, e.g., supra, note 4 at 116 (discussing the analogy between taking legal action in a court of law and appealing to “morality judges”); supra, note 4 at 210 (pointing out that while the norms that are appealed to when rights claims are made or contested may be “unjust laws or social conventions arising from superstition,” still, the norms in question “are presumably shared by the parties to the confrontation [as well as the morality judge or judges], and each party attempts to gain ascendancy by reasoning from these norms”).

61. See Raz, J. The Authority of Law (Oxford: Clarendon Press, 1979) at 16–17, 22, 23;Google Scholar Raz, J. “Reasons for Action, Decisions and Norms” in Raz, J. ed. Practical Reasoning (London: Hutchinson, 1975) at 132–33, 140–41 et passim Raz, supra, note 37 at 222f.Google Scholar A right is a second order reason because it is not a reason for the action but a reason that justifies the action. Ordinarily, the reason for doing A is not that one has a right to do A, but that one wants to do A, or in some sense should do A. For example, if I demand repayment of a loan, it is not because I have a right to it; it is because I need these funds or fear that if I do not get them now, I never will, perhaps because the individual to whom I made the loan is about to declare bankruptcy.

62. Supra, note 4 at 106; cf., supra, note 4 at 96 (explaining that by virtue of this dominion the right-holder prevails “in any confrontation to which the right is relevant”), 102, 198, 217.

63. The reason for speaking of potential decisiveness here is that an individual legal norm that gives rise to a right may conflict with another legal norm. In such a case of norm conflict, it cannot be that both norms (or rights, if both norms give rise to rights) are decisive. The same is true of the individual cards in the suit designated as trump at the close of a bridge auction. Suppose that Diamonds are so designated. In that case it would not be incorrect to say that the cards in this suit are decisive. Yet, if we were to speak precisely, we would say that within a particular context (viz., the next thirteen tricks) they are potentially decisive. After all, more than one trump may be played in a given trick and only one card can be decisive in that trick.

64. See supra, note 35.

65. Many important questions fostered by the account suggested here remain to be considered, for example, questions respecting the legitimate criteria for judgements of tightness, the scope of a right’s exclusionary dimension, and the forum in which disputations are heard and resolved. As complex as they are important, I may, perhaps, be excused for not undertaking the task of answering them here. I should be pleased if the sketch presented above suggests to others that, so far as rights theory is concerned, these are important questions.

66. Scoti v. McNeal, [1894] 154 U.S. 34, 14 S. Ct. 1108, 38 L. Ed. 896. For a discussion of the deep roots of the presumption of innocence in English jurisprudence see Fellman, D. The Defendant’s Rights Today (Madison: The University of Wisconsin Press, 1976) at 102–11Google Scholar. Also see Fellman, D. The Defendant’s Rights Under English Law (Madison: The University Of Wisconsin Press, 1966) at 103–10.Google Scholar

67. See Thayer, J.B. Evidence at the Common Law (South Hackensack N.J.: Rothman Reprints, 1969) 566 et. seq. (1898) (arguing that the presumption of innocence is natural to any litigating system).Google Scholar

68. Presentation of the argument for this claim is beyond the scope of the project I have undertaken here. Close kin to theses of Lon L. Fuller, in particular, to his theses respecting the internal moralities of law–creation and law application, I have touched on the matter elsewhere. See Wueste, D. “Fuller’s Processual Philosophy of Law” (1986) 71 Cornell L.R. 1205; ibid. “Morality and the Legal Enterprise - A Reply to Professor Summers,” at 1252.Google Scholar