Deciding Between Contradicting Norms: Rights-Based Law vs. Duty-Based Law and Their Social Ramifications

• Autores: Benjamin Porat
• Localización: American journal of comparative law, ISSN 0002-919X, Nº. 2, 2022, págs. 399-423
• Idioma: inglés
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• Resumen

  • The concept of rights stands at the very center of our legal universe. An imaginary alternative legal universe might have similar legal norms to ours, except that they are centered on the concept of duty. Is there any significant difference between these two legal universes? The Hohfeldian assumption of complete correlativity between rights and duties might imply that the difference between these two universes is merely a matter of rhetoric. This Article, however, argues that a rights-based legal world would presumably be significantly different from a legal world based upon duties. For this purpose, the Article examines the way in which contradictory norms are resolved. A rights-based system decides cases of contradictory norms according to a process that is different from that used by a duty-based system. The Article is devoted to examining the roots of this difference, its significance and its social implications. Alongside the discussion of the classical and modern legal sources from the Western legal tradition, the Article contains a comparative discussion of Jewish law sources, which demonstrates a typical example of a duty-based legal system.