¹ Hohfeld, Wesley N., Fundamental Legal Conceptions, Cook, W. W. (ed.) (New Haven: Yale University Press, 1919).Google Scholar I have discussed Hohfeld's distinctions and defended the claim about Able's discretion in my The Practice of Rights, esp. Ch. 2 (New York and London: Cambridge University Press, 1976).

² This theme is stressed in Scheingold, Stuart, The Politics of Rights (New Haven: Yale University Press, 1974).Google Scholar

³ Macintyre, Alasdair, After Virtue (Notre Dame: University of Notre Dame Press, 1981).Google Scholar

⁴ See Flathman, op. cit., esp. Ch. 9.

⁵ William Blackstone, Commentaries on the Laws of England, Book II, Ch. I, 2nd paragraph.

⁶ In slightly less polemical terms: From a deontological perspective, while rights do much to protect, support or even guarantee the freedom of Ms. Able, they thereby impinge upon, interefere with, or restrict the freedom of Ms. Baker. From an axiological or classical utilitarian perspective, rights may guarantee that Able can act so as to maximize her personal utility as she conceives it, but they thereby put the greatest good or aggregate utility at risk.

⁷ Blackstone, op. cit.

⁸ Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974).Google Scholar

⁹ Hart, H. L. A., “Are there any Natural Rights?”. Philosophical Review, 64 (1955), 175 ffCrossRefGoogle Scholar; Gewirth, Alan, Reason and Morality (Chicago: University of Chicago Press, 1978).Google Scholar

¹⁰ See Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).Google Scholar

¹¹ See Flathman, , op. cit., and my paper “Rights, Utility, and Civil Disobedience,” in Pennock, J. Roland and Chapman, John W., eds., Ethics, Economics and the Law (Nomos XXIV) (New York: New York University Press, 1982).Google Scholar The present paper draws on material from the Nomos essay. I am grateful to the editors and publishers for permission to use it here.

¹² Scanlon, T. M., “Rights, Goals and Fairness,” 93. In Hampshire, Stuart (ed.), Public and Private Morality (London and New York: Cambridge University Press, 1978).Google Scholar

¹³ See Nozick, op. cit.

¹⁴ Cf. Nagel's, Thomas criticisms of Nozick in “Libertarianism Without Foundations,” Yale Law Journal, 85 (1975) 136.CrossRefGoogle Scholar There are other ways in which Nozick's argument might be construed, one of which makes it more closely akin to views of G. E. M. Anscombe that I take up and largely endorse below.

¹⁵ See Hart and Gewirth, op. cit.

¹⁶ In Hart's case rights are dominant only in the realm or dimension of morality that is their home. He allows that there is another realm, the home of concepts such as the common good and the general welfare, the pursuit and service of interests and purposes, that has its own independence and integrity.

¹⁷ The version of the paper to which I am referring was distributed in mimeo to participants in the Human Rights Conference sponsored by the Social Philosophy and Policy Center, Bowling Green State University, October 7–9, 1982. A limited number of copies are available from the author.

¹⁸ Anscombe, G. E. M., “Rules, Rights, and Promises,” Midwest Studies in Philosophy 3, (1978), 318–323.CrossRefGoogle Scholar

¹⁹ Ibid., 320–321.

²⁰ Anscombe employs the notion of modals in analyzing pairs such as “necessary, possible,” “must, need not.”

²¹ Anscombe, op. cit., 321.

²² Ibid., 323.

²³ Ibid., 321.

²⁴ Ibid., 322.

²⁵ Ibid., 322.

²⁶ Ibid., 322.

²⁷ Lyons, David, “Human Rights and the General Welfare,” Philosophy and Public Affairs, 6, (1977) 113–129Google Scholar; “Mill's Theory of Justice,” in Goldman, A. I. and Kim, J. (eds.), Values and Morals (Dordrecht: Reidel Publishing Co., 1978)CrossRefGoogle Scholar; “Utility and Rights,” in J. Roland Pennock and John W. Chapman (eds.), op. cit. My discussion of this last paper is based in part on the original draft version, primarily on the published version. References are to the latter unless otherwise indicated.

²⁸ Lyons, “Utility and Rights,” draft version, 28.

²⁹ Lyons, “Utility and Rights,” 129.

³⁰ Ibid.

³¹ Ibid.

³² Ibid., Ill, italics Lyons'.

³³ Wittgenstein, Ludwig, Philosophical Investigations, I, para. 142 (New York: The Macmillan Company, 1953).Google Scholar

³⁴ I follow Lyons in ignoring complications presented by the fact that his official is considering whether to enforce a right against encroachments by others. My discussion in the text holds without qualification for cases in which the official is considering an action which would itself violate the right. But I leave aside questions about the discretion that police officers, sheriffs, etc., have in deciding whether to enforce a person's rights against encroachment by other private citizens. It is not always the case that failure, or even refusal, to do so is ultra vires.

³⁵ This is the one respect known to me in which rights truly are “trumps” or “side-constraints.” Of course anyone familiar with the processes of interpreting the scope of rights will realize the extent to which this truth is a formalism. (I would not say a mere formalism.)

³⁶ We might think of this aspect of the relationship between authority and right as what Wittgenstein calls a “paradigm” in a language-game. See Wittgenstein, op. cit. I, para. 50, where he is discussing the role of the hermetically sealed metre bar in Paris. But note his further comment; “But this, of course, is not to ascribe any extraordinary property to it [the metre-bar], but only to mark its peculiar role in the language-game of measuring with a metre-rule.” Ibid.

³⁷ Anscombe, op. cit.,. 322, italics Anscombe's.

³⁸ Lyons, “Utility and Rights” (original version), 7.

³⁹ The following summary is taken, with minor modifications, from my The Practice of Political Authority (Chicago: University of Chicago Press, 1980), 121–22.

⁴⁰ Of course there are other modes of thinking – those that appeal to religious considerations would be an example – that entertain and invoke “independent” reasons. Millian utilitarianism is only one of a number of possible bases for civil encroachment.