On rights in game forms

Marc Fleurbaey

Martin Van Hees

pp. 295-326

in: Synthese 123 (3), 2000.

Abstract

This paper makes a contribution to the further development of thegame-theoretic analysis of rights. The model presented here differs inseveral respects from the existing models. First of all, a distinction ismade between outcome-oriented and action-oriented rights, adistinction which is closely related to the distinction between active andpassive rights. Second, the legal-theoretic notions of negative andpositive rights are formally defined. Third, we not only discuss thedefinition of rights, but also the way rights can be violated.Using the distinction between negative and positive rights on the one hand,and between active and passive rights on the other, four different types ofbasic rights are distinguished. For each of these rights, the situations inwhich they can be said to be respected are examined. We thereby distinguishtwo possible sources of obstruction: by (groups of) individuals, and by law.Finally, the question of the possible realization of rights is examined.Depending on how the problem of the possible mutual incompatibility ofrights is addressed, two distinct approaches are examined. It turns out thatin both approaches the possible realization of rights crucially depends oncharacteristics of the `state of nature'.