Frederick Schauer (University of Virginia School of Law) has posted Rights, Constitutions, and the Perils of Panglossianism (Oxford Journal of Legal Studies, Volume 38 (2018, Forthcoming)) on SSRN. Here is the abstract:
The HLA Hart Memorial Lecture, delivered at Oxford on 9 May 2017, addresses the related questions of conflicts between rights and interests, between rights and other rights, and between or among interests. Using the metaphor of Voltaire’s (in Candide) eternally optimistic Dr. Pangloss, the lecture and ensuing article identify a common Panglossian tendency of officials and commentators to understand (or distort) the facts about the empirical world so as to avoid conflicts with constraining rights, and to understand (and distort) the shape and definition of those constraining rights so as to avoid conflicts with interests. Such efforts may be understandable attempts by the commentators and officials to avoid cognitive dissonance and achieve cognitive consistency, but may nevertheless produce a warped understanding of the empirical world and of the contours of the rights that appropriately limit even the wise policies that officials may otherwise pursue.