The twentieth century saw a vigorous debate over the nature of rights. Will theorists argued that the function of rights is to allocate domains of freedom. Interest theorists portrayed rights as defenders of well-being. Each side declared its conceptual analysis to be closer to an ordinary understanding of what rights there are, and to an ordinary understand- ing of what rights do for rightholders. Neither side could win a decisive victory, and the debate ended in a standoff.

James E. Penner ponders with much insight both the notion of property and its place in the legal system, and his musings prove fascinating.

How do we judge whether an action is morally right or wrong? If an action is wrong, what reason does that give us not to do it? Why should we give such reasons priority over our other concerns and values? In this book, T. M. Scanlon offers new answers to these questions, as they apply to the central part of morality that concerns what we owe to each other. According to his contractualist view, thinking about right and wrong is thinking (...) about what we do in terms that could be justified to others and that they could not reasonably reject. He shows how the special authority of conclusions about right and wrong arises from the value of being related to others in this way, and he shows how familiar moral ideas such as fairness and responsibility can be understood through their role in this process of mutual justification and criticism. Scanlon bases his contractualism on a broader account of reasons, value, and individual well-being that challenges standard views about these crucial notions. He argues that desires do not provide us with reasons, that states of affairs are not the primary bearers of value, and that well-being is not as important for rational decision-making as it is commonly held to be. Scanlon is a pluralist about both moral and non-moral values. He argues that, taking this plurality of values into account, contractualism allows for most of the variability in moral requirements that relativists have claimed, while still accounting for the full force of our judgments of right and wrong. (shrink)

I thank the members of the Law and Philosophy Discussion Group in Los Angeles and those who attended a talk sponsored by the philosophy department at New York University, where I presented earlier versions of this paper. I would also like to thank G. A. Cohen, Stephen Munzer, Seana Shiffrin, Peter Vallentyne, Andrew Williams, and the editors of Philosophy & Public Affairs, who read and provided written commentary on earlier drafts.

Leif Wenar examines the impact on takings scholarship of the redefinition of "property" early in the twentieth century. He argues that the Hohfeldian characterization of property as rights (instead of as tangible things) forced major scholars such as Michelman, Sax, and Epstein into extreme interpretations of the Takings Clause. This extremism is unnecessary, however, since the original objections to the idea that "property is things" are mistaken.