GEORGIA LAW REVIEW - StephanKinsella.com

19791 CORPORATIONS AND RIGHTS 1287
It is against the background of general relationships, then, that
we go about creating our various special relationships. Thus it is
with reference to our general rights and obligations that the justifi-
cation for these special rights and obligations must begin. Since
voluntary associations are somewhat more complicated than forced
associations, let me start with the latter, setting aside the special
case of contractual takings until after I have discussed voluntary
associations. Now as we have seen, each of us has a general right
against being interfered with by others. When the correlative obliga-
tion is not met, however, we do not leave the situation as it is.
Rather, there arises a new, a special obligation resting with the
tortfeasor or criminal to make his victim whole again, correlative to
which is a special right of the victim to the necessary restitution
from the wrongdoer. (Notice that these rights and obligations rest
with and against these special people, not with or against third
parties, as when losses are socialized in order to compensate vic-
tims.) What I want to do, then, is indicate how it is that these
special rights and obligations are justified and hence come into
existence.
There are at least two approaches that will serve to justify this
special relationship. The first involves a straightforward implication
from the obligation to not interfere. What this obligation clearly
entails is that the status quo of holdings not be forcibly disturbed.
But we bring about that result either by not interfering in the first
place, or, failing that, by returning what was taken when we did
interfere. Only so will the status quo be either preserved or restored
and hence the general obligation satisfied. Thus the special rights
and obligations that arise between tortfeasors or criminals and their
victims are simply entailments of the general rights and obligations
of these parties; they have been brought into being by the acts of
rights and obligations. The theory of rights can resolve, with little difficulty, what often pass
for conflicting-rights situations. Consider, for example, a common pro-abortion argument
(and let us assume here that the fetus has rights), that, the expectant mother's right to control
her own body takes precedence over any right of the fetus, In this case, clearly, the question
of precedence of rights should never even arise; for in begetting the child the mother alienated
that right in the relevant respects. Hence, there is no conflict of rights to talk about. (For an
interesting discussion of some of these issues see Swan, Abortion on Maternal Demand:
Paternal Support Liability Implications, 9 VAL. U.L. REV. 243 (1975).) But there will remain
cases in which the theory of rights will sort out conflicts in a principled way only by requiring
what many might think heroic and even dubious means. Thus to require a rape victim to carry
the baby to term, while imposing all costs upon the rapist, is tantamount to allowing the
taking to continue; moreover, this "principled" solution is such only on the view that compen-
sation does in fact satisfy unmet obligations, when of course it is only a practical expedient.