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Since the seventeenth century, when the concept of rights first came into vogue, philosophers and social theorists have struggled to articulate an acceptable theory of individual rights, but their efforts remain largely unsatisfactory. Without exception, each effort falters when it attempts to describe the contours of the rights that are entitled to protection or to explain the ways in which competing claims of right should interact. This is true whether a theorist seeks to define a right through reference to its substantive content or through reference to the procedures by which the right can be recognized. Given the collective stature of rights theorists, however, it is unlikely that their efforts have failed due to any lack of intelligence or creativity. Rather, the persistent failure of rights theory suggests that we have done just about all that can be done from within the analytical paradigm that has governed rational discourse to date.

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71 Minn. L. Rev. 669 (1986-1987)