1 - Rights theory and rights practice

Summary

When two people compete in a game of chess, they each try to win according to the same set of rules. The means of achieving victory are identical for both of them and known to both players in advance. They may find infinite ways of playing the game within the rules that set permissible moves and victory conditions, but those rules and conditions are prior to the game. Nothing that either player can do would suddenly increase the size of the board, or permit one player to move twice in a row, or let one player declare victory by, say, taking the other player's queen as opposed to the king. The rules of the game are static and defined outside the play of the game itself; playing the game consists in adhering to those rules rather than challenging or trying to reshape them.

Law and politics have their share of games or competitive situations like games. When a legislature or a court is going to decide a controversial issue, advocates for rival outcomes use power, rhetoric, argument, and whatever else they can muster to try to secure a favorable outcome. They compete with one another, trying to out-argue and outmaneuver their opponents, and the competition among them is a kind of game with certain patterns and restrictions that might be thought of as rules.