Benson, Ophelia The BBC devoted an episode of its television discussion programme The Big Questions in January to asking, 'Should human rights always outweigh religious rights?'.

Most of us have certain intuitions about moral rights, at least partially captured by the ideas that: (A) rights carry special weight in moral argument; (B) persons retain their rights even when they are legitimately infringed; although (C) rights undoubtedly do conflict with one another, and are sometimes overridden as well by nonrights considerations. I show that Dworkin's remarks about rights allow us to affirm (A), (B), and (C), yet those remarks are extremely vague. I (...) then argue that Feinberg's more comprehensive and precise theory, designed to do justice to all three theses, cannot assure us of (A), that rights are not merely one consideration to be weighed in the balance with heterogeneous others. I show how Feinberg accepts (C) despite being drawn toward an alternative absolutist theory of rights and commits himself to (B) through his rejection of prima facie rights. But his promising distinction between recognition and enforcement of a right, which helps give some sense to (B) despite its tension with (C), undermines the force of rights in moral argument apparently intended by (A). We thus learn that Feinberg's and Dworkin's accounts of rights are incompatible, though each is correct in important ways. Contrasting their views allows us to clarify the implications and consistency of alternative theses about rights, one step toward meeting the challenge of developing a theory which shows more adequately how respect for rights is to be combined with other intuitions about rights and their relation to other values. (shrink)

You and I are neighbors, with our houses situated closely together. You lead a group of rock musicians who can practice only in the evenings in your backyard; while I, on the other hand, enjoy nothing more than quiet evenings spent on my porch accompanied by the sounds of frogs and crickets. Presumably, you have a right to pursue your musical career, and I have a right quietly to enjoy my property. If we do indeed have these rights, however, (...) then they seem to conflict with each other, in that your exercising your right is incompatible with my exercising mine. (shrink)

There is a distinction between two different ways in which people’s interests might figure as inputs into the reasoning that determines verdicts of moral permissibility and impermissibility. Their interests may receive a certain priority in that reasoning, as for example the interests of the people whose lives are at stake in the famous Bystander example should. Or they may not, as for example the interests in spectacle that people watching on the sidelines might have should not. A theory of (...) class='Hi'>rights needs to make sense of this distinction. One of the chief attractions of Alec Walen’s theory of rights in The Mechanics of Claims and Permissible Killing in War is that it promises to do so, thanks to the concept of a claim that it introduces and the structural role this concept plays in the theory. However, I argue here that the substantive content of the mechanics of claims – in particular, a principle Walen calls the ‘welfare principle’ – privileges welfare interests to a degree that threatens to undermine the theory’s advantages. I consider and reject some ways of modifying the welfare principle so as to avoid this implication, suggesting that their failure raises much deeper questions of moral theory that must be confronted if the mechanics of claims is to make good on its promise. (shrink)

Continuing tensions exist between mainstream bioethics and advocates of the disability rights movement. This paper explores some of the grounds for those tensions as exemplified in From Chance to Choice: Genetics and Justice by Allen Buchanan and coauthors, a book by four prominent bioethicists that is critical of the disability rights movement. One set of factors involves the nature of disability and impairment. A second set involves presumptions regarding social values, including the importance of intelligence in relation to (...) other human characteristics, competition as the basis of social organization, and the nature of the parent–child relationship. The authors’ disapproval of certain aspects of the disability rights movement can be seen to be associated with particular positions regarding these factors. Although the authors intend to use a method of ‘broad reflective equilibrium,’ we argue that their idiosyncratic commitment to particular concepts of disability and particular social values produces a narrowing of the moral significance of their conclusions regarding disability 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)

Mental health professionals who care for asylum seekers in Western European countries increasingly encounter problems for which standard diagnostic and therapeutic protocols and institutional healthcare policies offer no ready answers. In the following case vignettes some of these problems can be identified.

Many public debates become polarized, degenerating into a pattern of mutual suspicion and name-calling that preclude communication or compromise. The debate over animal research has typically followed this path. To understand how polarization might be avoided, we examine the factors that helped prevent it in one local controversy: Cambridge, Massachusetts in the late 1980s. These factors include the personal style of the leader of the main animal protection group, the financing for the group, the group's ability to win a symbolic (...) victory in the form of a relatively toothless city ordinance, and, especially, the relative avoidance by both sides of rigid ideological posturing in favor of "casuistic" argumentation about specific cases and policies. (shrink)

Advances in assisted reproductive technologies can give rise to several ethical challenges. One of these challenges occurs when the reproductive desires of two individuals become incompatible and conflict. To address such conflicts, it is important to unbundle different aspects of (non)parenthood and to recognize the corresponding reproductive rights. This article starts on the premise that the six reproductive rights—the right (not) to be a gestational, genetic, and social parent—are negative rights that do not entail a right (...) to assistance. Since terminating or continuing a pregnancy is a form of assistance, the right (not) to be a gestational parent should enjoy primacy in conflicts. However, while refusing assistance may hinder the reproductive project of another person, “prior assistance” does not entitle someone to violate a reproductive right. Therefore, our analysis provides reasons to argue that someone has a right to unilaterally use cryopreserved embryos or continue the development of an entity in an extracorporeal gestative environment (i.e., ectogestation). Although this could lead to a violation of the right not to be a genetic parent, it does not necessarily entail a violation of the right not to be a social parent. (shrink)

The fact that welfare rights – rights to food, shelter and medical care – will conflict with one another is often taken to be good reason to exclude welfare rights from the catalogue of genuine rights. Rather than respond to this objection by pointing out that all rights conflict, welfare rights proponents need to take the conflicts objection seriously. The existence of potentially conflicting and more weighty normative considerations counts against a claim’s status (...) as a genuine right. To think otherwise would be to threaten the peremptory force – and hence the analytical integrity – of rights. The conflicts objection is made more pressing once we have conceded that welfare rights give people entitlements to what are potentially scarce goods. I argue that welfare rights can survive the conflicts objection if, and only if, we take scarcity into account in the framing of a given welfare right. (shrink)

In this paper I would like to make a contribution to the debate on rights-talk and duties-talk relationship and priority by addressing the problem from a peculiar angle: that of moral conflicts and dilemma. My working hypothesis is that it should be possible to identify some basic and relevant normative features of rights-talk and duties-talk by observing how they modify the description of moral conflicts. I will try to show that both rights and duties posses (...) original and irreducible normative features, and that these latter can be employed in a general assessment of their pro and con. I will first show the conceptual relationship between rights and duties, analyzing in the process a deflationary argument for rights. Second, I will define the general features of moral conflict and dilemma. I will then analyze the different readings that can be given, taking rights or duties as standpoints, of two kinds of moral conflicts: «asymmetric» and «symmetric» conflicts. (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)

Individual rights to healthcare (RTHCs) are increasingly common in law. Yet even plausible theoretical defences thereof raise a classic problem in the philosophy of rights: How do individual rights relate to ‘collective’ rights within the same domain? Collective rights are common in international law and in the domestic laws of states that recognize RTHCs. These collective rights often include health‐related components. There are at least prima facie plausible reasons to think that such collective ‘health (...) rights’ should exist. A complete account of health rights should thus explain how individual and collective health rights claims relate to one another and what one should do in cases where the claims conflict. This work contributes to our understanding of health rights by analysing the relationship between individual RTHCs and a plausible candidate collective health right, namely a sub‐state national right to control healthcare law and policy. It argues that concerns about rights conflicts in this context make sense, but genuine conflicts between individual health rights and national control over healthcare are rare. The strongest cases for sub‐state national ‘self‐determination’ rights do not implicate healthcare, or tend not to provide reasons to override any individual RTHCs. Conflicts are possible in rare cases and may even favour fulfilling the collective rights claims. Yet individual RTHCs remain important even in those cases. Individual rights remain useful measures for evaluating the exercise of collective rights: exercises that violate (or even fail to fulfil) individual health rights are worse for so doing. (shrink)

In order to understand the animal rights movement as it exists today in American society, it is necessary to explore the ways in which the beliefs of those who support the movement differ from the beliefs of their adversaries. Societal views generally determine the perceived differences and similarities between people and animals, and the issues surrounding these differences are fundamental to the animal rights controversy.

In this paper I look at attempts to develop forms of consequentialism which do not have a feature considered problematic in Direct Consequentialist theories (that is, those consequentialist theories that apply the criterion of rightness directly in the evaluation of any set of options). The problematic feature in question (which I refer to as ‘evaluative conflict’) is the possibility that, for example, a right motive might lead an agent to perform a wrong act. Theories aiming to avoid this phenomenon must (...) argue that causal relationship entails motives and acts (for example) having the same moral status. I argue that attempts to ensure such ‘evaluative consistency’ are themselves deeply problematic, and that we must therefore accept evaluative conflict. (shrink)

In his new book Animals and African Ethics, Kai Horsthemke examines whether an African morality can be extended to include animal rights. He argues that the African ethical systems of ubuntu and ukama, because they are anthropocentric at heart, do not adequately make space for animal rights. In his defense of animal rights, Horsthemke responds to arguments claiming that there is a difference between racism and speciesism, and that the latter is morally justifiable even though the former (...) is not. I examine this discussion and agree with Horsthemke that the arguments in favor of speciesism are weak. I defend the claim that—like racism—speciesism is morally unjustifiable. (shrink)

Journal of Philosophy of Education, EarlyView.

The body of the deceased is not an object but still a person. It deserves to be treated respectfully, and often this respect is expressed through religious rites. However, problems arise when the family of the deceased follow different faiths and disagree over the burial rite. Such a scenario is examined in this study where the immediate family of the deceased professed different faiths and could not agree on the burial rites to be performed. This research is intended to examine (...) the issue of burial rights as a reason for interfaith conflict. Who has the right to prepare the body of the deceased for the burial? Which rites should be followed? Using the theological and legal approaches, we found that the conflict was caused by (1) belief in an afterlife and (2) law, culture and religion give the right to decide the burial or disposal of the body to living parties. The legitimate way to determine how to treat the body of the deceased and according to which religious rite the burial is to be performed is by confirming the religious identity of the deceased as stated in the legal document. In other words, the burial rites to be followed by the family of the deceased depend on the proven religious identity of the deceased, whether Christian or Muslim. Contribution: This article attempts to justify the right of the deceased to be buried according to their personal faith, which may not be identical with the faith practised and professed by their family. In cases of religious conversion, both parties claim their right to bury the deceased according to their own religious rites, and it is often difficult for both sides to reach an agreement. Nevertheless, this conflict can be resolved peacefully if the rights of the deceased are respected by the bereaved. (shrink)

Suppose a woman chooses to carry a pregnancy to term. What duties should she be understood to have with respect to the fetus? If she is informed that a vaginal delivery will pose significant risks to its life or health, for example, is she obligated to submit to a caesarean section procedure on its behalf?

This paper argues that a putative conflict between negative rights and positive rights is not a genuine conflict. The thought that they might conflict presupposes, I argue, that the two rights are valid. This is the first assumption of my argument. The second is that general rights impose duties on everyone, not just the party who faces a conflict of correlative duties. These two assumptions yield the conclusion that positive rights impose enforceable duties on the (...) holder of the negative right; no right is thus infringed if this duty is enforced so no conflict occurs. If this is correct, it means that we can include welfare or socio-economic rights in a set of general rights without generating conflicts with negative rights to non-interference; this might clear some space for arguments that favour egalitarian redistribution although it does not show that general positive rights do exist. (shrink)

The notion that the application of basic rights requires “balancing” is widely and increasingly accepted. Balancing judgments are ever more frequently used in judicial decisions, particularly in constitutional courts and especially in contemporary supra-national human-rights courts. Many jurists deem that balancing is the only possible method to arrive to a rational decision in cases of conflict between basic rights. I assert that this kind of conflict between principles has the same structure of moral conflicts. And, as (...) is the case with moral conflicts, the way conflicts are solved will depend on the underlying concept of practical reasoning. I describe the two basic patterns that practical reasoning may follow in situations of conflict between moral principles in general and argue against the idea that balancing is the most appropriate procedure to cope with the conflict, either in general terms or in juridical argumentation in particular. (shrink)

Landscapes are public environments in which different communities and individuals dwell and which matter to them in ways which are not always consistent. As such they are open to strong conflicts about what the future of landscapes ought to be and who has an entitlement to involvement in a decision about that future. How should such conflicts be resolved? One influential approach is that embodied in the practice of cost-benefit analysis: the strength of preferences for different landscapes is (...) measured by individuals' willingness to pay and the potential Pareto improvement efficiency criterion is employed as a rule of choice. This paper contends that this approach is flawed. It examines an economic valuation study of landscapes in the Yorkshire Dales. Drawing on interviews with farmers in the Dales and on in-depth discussion groups with respondents to other economic valuation studies, it argues that landscape conflicts involve issues of identity that cannot be captured in terms of preference satisfaction and conflicts of perceived rights which could not in principle be resolved by cost-benefit analysis. (shrink)

In speaking of a right in relation to identity formation, I have avoided many important questions, including questions about how properly to understand identity formation itself. Evoking such a right does draw from existing trends, but it remains speculative. Nonetheless, it captures one valuable insight in criticisms of human rights as a Western imposition, namely the insight that an important kind of oppression figures in the imposition of identities. By affirming a human right in relation to identity formation, we (...) can not only confront this kind of oppression but see that it has specific weight in contemporary globalizing politics, economics, and culture. Moreover, we see that human rights can offer a critical relation to that kind of identity assertion and cultural imperialism that has itself employed the language of universal principles. One reason to emphasize this possibility of human rights discourse is to explore how this discourse offers more generally a significant normative perspective for challenging various kinds of oppression and domination today. Emphasizing such possibilities is a way of exploring the respects in which any viable notion of democracy must provide an important place for human rights. (shrink)

Varied forms of mobility are rapidly transforming communities across the world. In Africa’s cities and urban peripheries, the results of human movements include ever more diverse sets of new arrivals living alongside longer-term residents as they seek protection, profit, and passage elsewhere. Some move on and others return home, while still others shift within in search of new opportunities or security. In the absence of muscular state institutions or dominant cultural norms, these areas have become estuarial zones in which varied (...) communities of convenience are taking shape. Unlike well-documented urban gateways or ghettos, these communities range from radical forms of exclusion to remarkable modes of accommodation that enable people to extract usufruct rights: to live in but not become fully part of the cities they occupy. Using examples from Maputo, Johannesburg, and Nairobi, this article explores the nature of these estuaries in ways that challenge the conceptual foundations typically informing debates over migrant rights, integration, and the boundaries of belonging. This means eroding clear distinctions between hosts and guests along with a call to reevaluate the relative importance of state institutions and policies. Most fundamentally, it questions new residents’ interests in localized political and social recognition and participation. The article concludes by suggesting the need to reconsider the forms and scale of community through which the newly urbanized claim rights and the nature of the rights they desire. (shrink)

What does it mean to respect life and health in an innocent fellow-human being? Separating conjoined twins where one twin will die as a result need not involve the intention to kill or harm. Arguably, however, not all side-effects are “mere” side-effects which could, in principle, be outweighed by sufficiently good intended effects. Rather, foreseen serious harm for an innocent person we non-therapeutically affect can be morally conclusive when linked to the intention to affect the person’s body or invade the (...) space it fills. In the case of infant conjoined twins, such as the Maltese twins Jodie and Mary, the twin who dies from separation has no unjust, or any, intentions as regards the twin saved. She thus has the moral immunity of any innocent person from lethal bodily invasions and other serious bodily harm. Neither the final act which killed Mary nor previous acts of cutting into Mary, including parts shared with her twin Jodie, were therefore morally permissible. (shrink)

Many of the demands being voiced for a "humanizing" of health care center on the public's concern that they have some say In determining what happens to the individual in health care institutions. The essays in this volume address fundamental questions of conflicts of rights and autonomy as they affect four selected, controversial areas in health care ethics: the Limits of Professional Autonomy, Refusing! Withdrawing from Treatment, Electing "Heroic" Measures, and Advancing Reproductive Technology. Each of the topics is (...) addressed in such a way that it includes an examination of the locus of responsibility for ethical decision making. The topics are not intended to exhaustively review those areas of health care provision where conflicts of rights might be said to be an issue. Rather they constitute an examination of the difficulties so often encountered in these specific contexts that we hope will illuminate similar conflicts in other problem areas by raising the level of the reader's moral awareness. Many books in bioethics appeal only to a limited audience in spite of the fact that their subject matter is of deep personal concern to everyone. In part, this is true because they are frequently written from the perspective of a single discipline or a single profession. As a result, one is often left with the impression that such a book views the philosophical, historical, and! or theological problems as essentially indifferent to clinical, legal, and! or policy-making problems. (shrink)

In spite of its dominance, there are well-known problems with Rawls’s method of reflective equilibrium (MRE), as a method of justification in meta-ethics. One issue in particular has preoccupied commentators, namely, the capacity of this method to provide a convincing account of the objectivity of our moral beliefs. Call this the Lack-of-Objectivity Charge. One aim of this article is to examine the charge within the context of Rawls’s later philosophy, and I claim that the lack-of-objectivity charge remains unanswered. A second (...) aim of this article is to examine the extent to which, despite Rawls’s express intention to avoid reliance on Kant’s moral philosophy, supplementing Rawls’s political constructivism with some Kantian elements, in particular Kant’s idea of a universal principle of right, not only addresses some of the issues raised by the lack-of-objectivity charge, but also does so without compromising the ability of the Rawlsian account to accommodate the pluralism of conceptions of the good, which he takes to be a fact of modern democracies. I argue for a revised justificatory methodology, which combines Rawls’s MRE and Kant’s Critical Method. (shrink)

The job of being a sports team physician is difficult, regardless of the level, from high school to the National Football League. When a sports league receives the intensity of attention leveled at the NFL, though, a difficult occupation becomes even more challenging. Even for the NFL players themselves, players’ best interests regarding health issues are often unclear. Football players are, as a lot, highly competitive individuals. They want to win, and they want to help the team win. It's a (...) warrior culture, and respect is earned by playing hurt. Should the team physician respect a player's autonomy when this means allowing him to make choices that might lead to further personal harm, especially if the player's choices align with the preference of the coach and management? Or should the doctor set limits and balance the player's choices with a paternalistic set of constraints, perhaps in opposition to both the player's and the team's desires? Simplification of this web of conflicts of interest is the goal of the model proposed by Glenn Cohen, Holly Lynch, and Christopher Deubert. In my view, their proposal is very clever. As an idea, it meets the expectations its authors set, namely, to minimize the problem of conflict of interest in the delivery of health care services to NFL football players. The ethics of the proposal align well with certain moral goals, like treating the player's interests more fairly and treating the player's health as an end instead of as the means to an end. But will such a proposal ever make headway in the pressurized environment of the NFL? (shrink)

The role of religious commitments in John Rawls’s version of political liberalism has drawn frequent criticism. Some of the critics have complained that it fails to respect those with deep religious commitments by excluding explicitly religious reasons from debate about fundamental issues of justice. Others criticize the exclusion of religious reasons on the ground that it is unnecessary. Political liberalism, they argue, can accommodate appeals to religious reasons. For critics of both stripes, Jürgen Habermas and Thomas Scanlon should seem a (...) welcome alternative. They offer ways of justifying claims of justice and of legitimating political arrangements that do not appear to exclude religious reasons at the outset but still yield liberal polities. In this paper, I argue that Habermas’s and Scanlon’s theoretical frameworks are not only open to religious reasons, they require the inclusion of religious reasons in deliberations about the just ordering of public life. I then explain why such an arrangement is desirable. I close with a look at the limits of Habermas’s and Scanlon’s ability to accommodate religiousreasons in public deliberation, suggesting that their improvements on Rawls are smaller than they at first appear. (shrink)

The role of religious commitments in John Rawls’s version of political liberalism has drawn frequent criticism. Some of the critics have complained that it fails to respect those with deep religious commitments by excluding explicitly religious reasons from debate about fundamental issues of justice. Others criticize the exclusion of religious reasons on the ground that it is unnecessary. Political liberalism, they argue, can accommodate appeals to religious reasons. For critics of both stripes, Jürgen Habermas and Thomas Scanlon should seem a (...) welcome alternative. They offer ways of justifying claims of justice and of legitimating political arrangements that do not appear to exclude religious reasons at the outset but still yield liberal polities. In this paper, I argue that Habermas’s and Scanlon’s theoretical frameworks are not only open to religious reasons, they require the inclusion of religious reasons in deliberations about the just ordering of public life. I then explain why such an arrangement is desirable. I close with a look at the limits of Habermas’s and Scanlon’s ability to accommodate religiousreasons in public deliberation, suggesting that their improvements on Rawls are smaller than they at first appear. (shrink)