Abstract
This chapter offers a functionalist explanation of what is wrong with unenforceable (yet valid) legal rights. Such cases are ‘imperfect’ because they lack the means for securing officials’ binding determinations of their existence, content, and/or scope. Hence, right-holders—and correlative duty-bearers—lack (the grounds for obtaining) sufficient information and guidance about what their respective legal positions mean and entail.
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Notes
- 1.
- 2.
E.g., Martin (1993: 60, 83–4).
- 3.
- 4.
Raz (1996: 256–7). For discussions of hypothetical systems with legally unenforceable rights, see Reiff (2005: 47–9).
- 5.
There are different senses of ‘imperfect rights’ and ‘imperfect duties’ in the philosophy of rights literature beyond that of rights being imperfect for being unenforceable in some way or other. For example, a duty is sometimes deemed to be imperfect: for lacking a correlative right (e.g., Etinson (2013: 465)); because the holder lacks a liberty or claim by which to fulfil it (cf. White (1984: 58)); or because it is unenforceable (e.g., Varden (2011: 280)). Sometimes, a right is also deemed imperfect for altogether lacking a correlative duty. E.g., MacCormick (2007: 123); cf. White (1984: 71). See also Terry (1884: 116, 119).
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This candidate ‘point’ of rights need not be reducible to will vindication or protection per se and need not be framed in terms of a ‘theory’ of rights either.
- 7.
Raz (1996: 256).
- 8.
Martin (1993: 83).
- 9.
To my mind, no jurisprudential account (and not simply in the philosophy of rights literature) has, to date, provided an adequate account of the extent to which a right, rather than just the correlative duty, provides duty-bearers with information to guide them—especially if and when the correlative positions are not deemed to be identical in content. See also Chapter 2 note 87 for some worries about how rights, rather than duties, contrain others.
- 10.
It is not a complete explanation because it does not explain what would be ‘defective’ about lacking waiver powers for primary rights or enforcement powers for tertiary rights. For an argument that could be characterised as showing what would be defective about a legal system lacking tertiary rights (and, I would add, their enforcement), see Hughes (2013: 196).
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- 12.
Co-trustees who (have the right to) seek direction from a court about the content or scope of their duties or powers, via an original summons, need not use their imaginations here.
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- 15.
Furthermore, even if social practices or concepts ought to be interpreted in light of their purpose or function, that does not take us all the way to the Normativists’ (e.g., Ronald Dworkin and John Finnis’) claim that one must engage in moral or political evaluation and justification in order to explain that function. See Dickson (2004: 142–3).
- 16.
What if the legal right in question is not a moral one? A person who finds a given legal RCTD morally repugnant might not comply with its requirements. Irrespective of whether legal duties are exclusionary reasons or merely weighty ones, there may be overriding moral or prudential reasons militating against conformity. This may also be the case even when the duty is a moral(ly acceptable) one.
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Frydrych, D. (2021). Chapter 8 Imperfect Legal Rights. In: The Architecture of Rights. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-76039-7_8
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