It is widely accepted that rights – moral, and, typically, legal – may be overridden in particular circumstances by other rights or by especially strong considerations of non-rights-based goods. Susceptibility to override is not a necessary property of rights – there can be absolute rights. But overrideable rights are still rights. And because this is so, there is, it is said, a ‘moral residue’ when rights are overridden, such that the person whose rights are overridden, even justifiably so, is still entitled to something, and the agent who justifiably restricts the rights of another may still have a duty of redress. But what does a moral residue amount to, what are the entitlements of the person whose rights have been rightfully infringed, and what are the duties of those who rightfully infringe the rights of others? We might think that those whose rights are infringed are nonetheless entitled to compensation or other forms of redress, but, curiously, and with the obvious exception of governmental takings of land by eminent domain, compensation, whether monetary or otherwise, is rarely available to those whose rights are rightfully infringed. This paper examines this phenomenon, and suggests that the widespread practice of non-redress for the rightful deprivations of rights reveals a quite different picture of what rights are and of how right operate.
Schauer, Frederick, Rightful Deprivations of Rights (July 27, 2018). Virginia Public Law and Legal Theory Research Paper No 2018-43.