Jean-François Kervégan Oxford 2022 TOWARD AN INSTITUTIONAL THEORY OF RIGHTS My extended reading of Hegel’s philosophy of law, which I understand as a form of weak institutionalism, led me to the conclusion that an institutional perspective might offer a promising framework for a conception of rights that tries to escape the alternative between natural law theory and legal positivism. From the viewpoint of natural law, rights derive from the very nature of humanity. “Natural, inalienable and sacred”, as t he French Declaration of 1789 states, they are exempt from the authority of the constituted powers; on the contrary, rights are the norm for assessing their actions, because they define “the purpose of any political institution”. From the legal positivist viewpoint, by contrast, the only real rights are created by positive law: “a right is the son of the law”, as Bentham puts it. Therefore, the idea of rights that are not created by human acts is a nonsense: such rights are quite simply “imaginary”, as Bentham again says. Objections to these two conceptions are well known. Rights derived from a now unclear nature are in danger of becoming ineffective. The assertion of natural rights is an expression of a respectable claim, but, as Bentham says, “reasons for wishing there were such things as rights, are not rights; [hunger is not bread” 1 . Conversely, aren’t rights from solely positive source – whether that source is legislation, customs or case law – vulnerable? The intangible character of the basic rights of the human person seems to be inconsistent with the unstable status of positivity. To put it in Kelsen’s terms: if the existence of basic rights is a pure rational requirement, their “effectiveness” (Wirksamkeit) presupposes an external guarantee that is always insecure; if these rights are purely positive, their “validity” (Geltung) remains relative. Let us now look at institutionalist conceptions of law. Does understanding the law as an institution (or as a system of institutions) overcome the previous alternative? Can conceiving of rights as institutional facts provide a third way between the demonetised view of natural human 1 Bentham, Nonsense upon stilts or Pandora’s Box opened, in Bentham, Rights, Representation and Reform, ed. by P. Schofield, C. Pease-Watkin & C. Blamires, Oxford University Press, Clarendon Press, 2002, p. 330.