Full Description
This book presents a contemporary perspective on legal rights centred on the longstanding will theory-interest theory debate. Starting with classical rights literature, central aspects of the debate in its modern idiom are contextualised within a social theory setting developed from the writings of Max Weber.
The book explores the idea that the institutional and coercive character of legal enforcement necessitates viewing legal rights as a locus of social power residing within the 'institutional imagination': that is, in the decision-making of key institutional actors such as judges, prosecutors, police, governmental authorities - and ultimately supreme court judges - who routinely mobilise coercive mechanisms towards the enforcement of legal rights and powers. This marks a departure from the trend of rights literature to view legal rights largely from the standpoint of the right-holder.
The book also touches on whether the emerging perspective points towards a 'third way' beyond the traditional two theoretical approaches.
A major task of the study is the construction of an archetypal supreme court judge - personifying the 'institutional imagination' - fashioned, via Weberian sociology, from a critique of Ronald Dworkin's 'Herculean' judge and measured against doctrinal exegesis that draws on sources which include UK higher appellate court judgments.
Contents
1. Legal Rights and Contemporary Scholarship - the Antinomy of Interest Theory and Will Theory
2. Theories of Rights and Theories of Law
3. The Legal Right Constructed in the Judicial Consciousness
4. Hans Kelsen and the Gravitational Pull of Social Theory
5. HLA Hart and the Gravitational Pull of Social Theory
6. Towards a Defence of Hartian Will Theory
7. Ronald Dworkin's 'Herculean' Approach to the Judicial Role
8. Constructing Iudex as an Ideal Type
9. Ontological Questions Around Legal Rights
