What are the main conditions that any theory of human rights should satisfy to guide action? If agents must take action for a fairer world as human rights discourse suggests, this is a crucial question to reflect upon. In this paper, I make a proposal. I argue that any theory of (moral) human rights that guides action on the basis of correlative duties must satisfy three key conditions. The first condition is focused on the specification of act-types, the second concerns (...) the distribution of correlative duties, and the third is focused on the resolution of (resolvable) conflicts of human rights. I show that this proposal has substantive implications because it implies to reject, challenge and, in some cases, resist ideas that are commonly accepted in the literature on human rights. (shrink)

In this paper, we raise two points. First, any rights‐based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced against each other to define (...) which right should prevail, but without considering non‐rights‐interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously. (shrink)

According to contemporary nonpositivist theories, legal obligations are a subset of our genuine moral obligations. Debates within nonpositivism then turn on how we delimit the legal “domain” of morality. Recently, nonpositivist theories have come under criticism on two grounds. First, that they are underinclusive, because they cannot explain why paradigmatically “legal” obligations are such. Second, that they are overinclusive, because they count as “legal” certain moral obligations that are plainly nonlegal. This paper undertakes both a ground-clearing exercise for and a (...) defense of nonpositivism. It argues, in particular, that Dworkin's claims about the legal domain of morality in his later work are often mischaracterized by critics, because these critics fail to read these claims in light of his earlier theory of “Law as Integrity.” A nonpositivist theory that unifies Dworkin's earlier and later work, I argue, deals with the criticisms leveled at nonpositivist theories better than other nonpositivist competitors. (shrink)

This article examines the idea of disjunctive rights—an idea first suggested by Joel Feinberg and more recently advocated by Richard Arneson. Using a hypothetical scenario to bring forward a conflict between two rights that cannot be simultaneously fulfilled, the suggestion that the conflict can be solved by describing the right-holders as holding disjunctive rights—rights that involve, in a significant way, a disjunction—is scrutinized. Several interpretations of the idea of disjunctive rights are examined from the perspectives of the interest theory and (...) will theory of rights. Ultimately, the idea of disjunctive rights fails to provide an acceptable solution to the problem at hand, as each interpretation has unacceptable implications. This conclusion challenges the compossibilist thesis, according to which moral rights do not, ultimately, conflict. Alternatively, if one wishes to keep the possibility of compossibility and disjunctive rights, the mainstream theories of rights must be revised or rejected. (shrink)

The relationship between libertarianism and state is a contested one. Despite pressing full and strict ownership of one’s person and any justly acquired goods, many libertarians have suggested ways in which a state, albeit limited, can be regarded as just. Peter Vallentyne has proposed that all plausible versions of libertarianism are compatible with what he calls ‘private-law states’. His proposal is underpinned by a particular conception of rights, which brings Interest Theory of rights and Will Theory of rights together. If (...) convincing, Vallentyne’s theory of rights enables libertarians to accommodate a limited but nevertheless coercive state that can act without the full consent of the affected citizen. In this paper, it is argued that Vallentyne’s hybrid theory of rights is implausible from a libertarian perspective as well as fails to align itself with common and deeply held moral intuitions. Hence the conflict between mainstream libertarianism and the state is not solved by Vallentyne’s proposal. (shrink)

What is the connection between moral rights and the good? While familiar normative theories give justificatory precedence to one notion over the other, this paper explores a neglected alternative: when properly specified, the notion of moral rights and of the good conceptually depend on each other.1.

How should we think about apparent conflicts of moral rights? I defend a non-balancing and holistic specification model: non-balancing because moral rights have absolute deontic stringency regardless of any balance of independent values; holistic because the content of moral rights is limited only by that of other moral rights. Holistic Specification, as I call the model, offers a principled, non-consequentialist explanation of exceptions to moral rights. Moreover, Holistic Specification explains why moral rights matter to practical thought while rendering remedial duties (...) less mysterious. (shrink)

There is a recent interest in the ethics of high-skilled worker emigration through which the limitations of the right to exit are discussed. Insightful arguments have been made in favour of the emigration restrictions on skilled workers in order to tackle the deprivations in developing countries. However, there is still a need for clarification on how we can understand, discuss and implement limitations of a right from a normative perspective. Significantly, how we understand the limitation of a right might determine (...) how we approach such limitations – both in terms of the process of assessing the limitations and in terms of their implications. In this paper, I identify two distinct ways to understand limitations of the right to exit with respect to losses associated with health worker emigration, while also pointing to their implications for restrictive policies: as a matter of scope, and as a matter of weight or emergency, which requires a compensatory scheme for the individual right holders. While the emergency restrictions seem to be a point of convergence in the literature, what defines an emergency and the nature of the compensation still warrant exploration. To that end, I also discuss from a normative perspective what might constitute a public emergency that would give states a prima facie prerogative to regulate temporary limitations on the exercise of the right to exit. In addition, I briefly introduce the implications of emergency restrictions, with a particular focus on compensatory schemes for individual right holders. (shrink)

The separation-of-powers literature has entertained the possibility of differentiating governmental functions at a conceptual, pre-institutional level, as a way of defining the separation of powers. However, it can be objected that attempts at differentiating functions at this level cannot escape a problem of arbitrariness. In this article, I develop an account of the separation of powers which addresses this problem. On my account, the legislative function is defined by the creation of validity claims, understood as claims making it a matter (...) of normative common-knowledge that such and such normative attitudes hold for the interaction between agents. The executive-judicial function is defined by the specification of rights and other jural positions out of the validity claims. This account of the separation of powers has the double advantage that it works at a conceptual, pre-institutional level, and that it is able to distinguish between the functions in a non-arbitrary manner. In developing this account, I also consider its practical implications. I argue that the conceptual distinction between the legislative and the executive-judicial functions is expressive of rule-of-law values, and that this might render it a sufficient but not necessary condition for the institutional separation of powers. (shrink)

Over the past decade, police departments in many countries have experimented with and increasingly adopted the use of police body-worn cameras. This article aims to examine the moral issues raised by the use of PBWCs, and to provide an overall assessment of the conditions under which the use of PBWCs is morally permissible. It first reviews the current evidence for the effects of using PBWCs. On the basis of this review the article sets out a teleological argument for the use (...) of PBWCs. The final two sections of the article review two deontological objections to the use of PBWCs: the idea that use of PBWCs is based on or expresses disrespectful mistrust, and the idea that the use of PBWCs violates a right to privacy. The article argues that neither of these objections is persuasive, and concludes that we should conditionally accept and support the use of PBWCs. (shrink)

Criminalisation of prostitution, and minority rights for disabled persons, are important contemporary political issues. The article examines their intersection by analysing the conditions and arguments for making a legal exception for disabled persons to a general prohibition against purchasing sexual services. It explores the badness of prostitution, focusing on and discussing the argument that prostitution harms prostitutes, considers forms of regulation and the arguments for and against with emphasis on a liberty-based objection to prohibition, and finally presents and analyses three (...) arguments for a legal exception, based on sexual rights, beneficence, and luck egalitarianism, respectively. It concludes that although the general case for and against criminalisation is complicated there is a good case for a legal exception. (shrink)

This paper reconsiders the contemporary moral reading of women’s oppression, and revises our understanding of the practical reasons for action a victim of mistreatment acquires through her unjust circumstances. The paper surveys various ways of theorising victims’ moral duties to resist their own oppression, and considers objections to prior academic work arguing for the existence of an imperfect Kantian duty of resistance to oppression grounded in self-respect. These objections suggest that such a duty is victim blaming; that it distorts the (...) normative direction of self-regarding duties; and that consequentialist reasons are inapt for justifying self-regarding ethical responsibilities. The paper then argues that the need for normative coherence in our very concept of a moral duty is of paramount importance, and especially so in the fight against patriarchal oppression. Accordingly, we should acknowledge the salient differences between pro tanto or defeasible moral reasons and fully fledged moral duties identifying agent-relative obligatory action. The paper concludes that we better respect and defend women’s rights when first we understand them as having, at best, defeasible moral reasons to oppose their oppression; and second, ensure that we make adequate allowance for a woman’s interpretative right to choose how to respond to her oppressive circumstances. (shrink)

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization . By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an (...) individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law. (shrink)

What are the main conditions that any theory of human rights should satisfy to guide action? If agents must take action for a fairer world as human rights discourse suggests, this is a crucial question to reflect upon. In this paper, I make a proposal. I argue that any theory of (moral) human rights that guides action on the basis of correlative duties must satisfy three key conditions. The first condition is focused on the specification of act-types, the second concerns (...) the distribution of correlative duties, and the third is focused on the resolution of (resolvable) conflicts of human rights. I show that this proposal has substantive implications because it implies to reject, challenge and, in some cases, resist ideas that are commonly accepted in the literature on human rights. (shrink)

An important contribution of Alan Patten’s Equal Recognition is the conception of neutrality that grounds his defence of minority cultural rights. Built in to his conception of neutrality of treatment is a notion of ‘fairness’ whose effect is to provide an upfront, across the board limitation on the demands cultural minorities may legitimately make on the rest of society. There must be limits on the duty to accommodate, but it obscures more than it illuminates to build this into the content (...) of the right to equal recognition itself. We see more clearly what is at stake in these conflicts by articulating the value of self-determination independently and taking account of necessary limits to its satisfaction as part of a second-stage analysis of what duties may be claimed and against whom. Familiar principles of discrimination law exemplify this alternative model. This presents the interest in self-determination more robustly, while acknowledging that the claims of duty arising out of it are defeasible. The result is a more flexible and nuanced exploration of the complex moral issues involved when fundamental interests clash. (shrink)

The paper proposes a revised logic of rights in order to accommodate moral conflict. There are often said to be two rival philosophical accounts of rights with respect to moral conflict. Specificationists about rights insist that rights cannot conflict, since they reflect overall deontic conclusions. Generalists instead argue that rights reflect pro tanto constraints on behaviour. After offering an overview of the debate between generalists and specificationists with respect to rights, I outline the challenge of developing a logic of rights-reasoning (...) that is compatible with generalism. I then proceed to offer a new logical framework, which utilizes a simple non-monotonic logic of practical reasoning. Both generalist and specificationist interpretations of the logic are explored. The revised logic shows that traditional characterizations of the debate between specificationists and generalists obscure other relevant philosophical positions. (shrink)

_ Source: _Page Count 18 There are two ways to transfer a bodily right. One might transfer a bodily right in a detaching way – that is, without transferring jurisdiction over one’s future bodily choices. Alternately, one might transfer a bodily right in an attaching way – that is, in a way that transfers such jurisdiction. For instance, A might sell his kidney to B for money paid at the time of the transplant. Alternately, A might accept money now, agreeing (...) to give up his kidney some time down the road. In the latter case and not the former, B acquires normative jurisdiction over A’s future bodily choices. In this paper I will argue that the distinction between attaching and detaching transfers of bodily rights has implications regarding whether certain contracts and agreements should be legally enforced – and whether problems arise when the moral and legal transferability of these rights comes apart. (shrink)

Considerations of autonomy and independence, properly understood, support strictly egalitarian provision of necessary medical treatment. If the financially better-off can purchase access to necessary medical treatments that the financially less well-off cannot purchase without help, then their discretionary power to give or to withhold monetary gifts indirectly gives them the power to make life-and-death or sickness-and-health decisions for others. To prevent private citizens from having this objectionable form of power, government must ensure that citizens’ finances do not affect their access (...) to medical treatments that significantly prolong life, relieve suffering, or cure or mitigate disabilities. Government should ensure this even if doing so involves leveling down and even if it is unclear whether egalitarian provision of necessary treatment would provide better care to the poor than a less egalitarian health care system would. (shrink)

Rights dominate most modern understandings of what actions are proper and which institutions are just. Rights structure the forms of our governments, the contents of our laws, and the shape of morality as we perceive it. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.

This manuscript examines two accounts that discuss rights disputes. On the one hand, Russ Shafer-Landau argues for specificationism (or what is referred to here as SA), which deems rights as having innate limitations. One the other, Judith Jarvis Thomson defends infringement theory (or what is referred to here as IVA), which views rights to be competing factors. Shafer-Landau in “Specifying Absolute Rights” endeavored to discredit Thomson’s IVA and promote his favored theory. This material responds to and criticizes the claims Shafer-Landau (...) pressed in his article. First part of the thesis addresses his concerns and finds them unconvincing. Using tools of logic, it is demonstrated that Shafer-Landau’s demands on compensation are without warrant. More than this, his demands on the tripartite are misguided. Second part tackles some shortcomings of SA. One of which is the finding that two of the three arguments Shafer-Landau posited for SA’s superiority run counter to each other. Should Shafer-Landau save one, it would remain untenable for the foundations therein rest on a mistake. Finally, his position of SA being sufficiently explanatory is in itself wanting. Though this material does not go as far as proving which theory is practically better, the project is not bereft of purpose. By the end, IVA would already have been relieved of the criticisms whereas SA would be confronted with multiple challenges. (shrink)