Legal Rights and the Institutional Imagination

This book presents a contemporary perspective on legal rights centred on the longstanding will theory-interest theory debate. Starting with classical rights literature, central aspects of the debate in its modern idiom are contextualised within a social theory setting developed from the writings of Max Weber. The book explores the idea that the institutional and coercive character of legal enforcement necessitates viewing legal rights as a locus of social power residing within the 'institutional imagination': that is, in the decision-making of key institutional actors such as judges, prosecutors, police, governmental authorities - and ultimately supreme court judges - who routinely mobilise coercive mechanisms towards the enforcement of legal rights and powers. This marks a departure from the trend of rights literature to view legal rights largely from the standpoint of the right-holder. The book also touches on whether the emerging perspective points towards a 'third way' beyond the traditional two theoretical approaches. A major task of the study is the construction of an archetypal supreme court judge - personifying the 'institutional imagination' - fashioned, via Weberian sociology, from a critique of Ronald Dworkin's 'Herculean' judge and measured against doctrinal exegesis that draws on sources which include UK higher appellate court judgments.