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RULES, RIGHTS, OPTIONS, AND TIME

Published online by Cambridge University Press:  01 May 2001

Larry Alexander
Larry Alexander
Affiliation:
University of San Diego
Rights & Permissions [Opens in a new window]

Abstract

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I. INTRODUCTION

Do we have constitutional rights that certain states of affairs exist (for example, that I burn an American flag and am not punished); or do we instead have constitutional rights that certain rules not exist (for example, that there be no rule forbidding the burning of American flags on pain of punishment)? I believe that as a positive account of at least most of our constitutional law, our constitutional rights are best conceived as rights against rules. However, the question remains, Why should the Constitution concern itself with rules rather than with states of affairs, with rule-differentiated act-types rather than rule-independent act-tokens? Must not its concern for the former be based on its concern for the latter?

Information

Type
Research Article
Information
Legal Theory , Volume 6 , Issue 4 , December 2000, pp. 391 - 404
Copyright
© 1999 Cambridge University Press