Mechanics of Claims in a Statist Theory of Rights

Abstract Alec Walen develops a novel theory of rights based on the mechanics of claims and defends its preferability over the dominant position, i.e., the infringement model. Pace Walen, I argue that the mechanics of claims should not determine the content of rights by itself; otherwise, rights would be too contextual to constitute a stable sphere of autonomy for the right-holders. I further advance a moderate statism of rights, which integrates Walen’s fundamental insight that rights emerge as outputs based primarily on claims as inputs. Specifically, I contend that while moral rights are constituted by reasonable directives duly issued by a legitimate state, the state should determine the contours of rights by balancing all pertinent claims. Finally, I provide a new justification for the infringement model: It enables the state to accommodate certain weighty welfare claims that arise unexpectedly without compromising a stable and secure system of rights.