Abstract

Looked at from the perspective of an American constitutionalist, individualrights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority, 1 the phrase has a meaning that is now relatively well understood. In a different sense, however, the phrase might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity), 2 and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit, 3 the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled RightsAgainstRules:TheMoralStructureofAmericanConstitutionalLaw< 4 announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules