The concepts of right action and virtuous motivation are clearly connected, in that we expect people with virtuous motives to at least often act rightly. Two well-known views explain this connection by defining one of the concepts in terms of the other. Instrumentalists about virtue identify virtuous motives as those that lead to right acts; virtue-ethicists identify right acts as those that are or would be done from virtuous motives. This paper outlines a rival explanation, based on (...) the “higher-level” account of virtue defended in the author’s Virtue, Vice, and Value and by earlier philosophers such as Rashdall, Moore, and Ross. On this account rightness and virtue go together because each is defined by a (different) relation to some other, more basic moral concept. Their frequent coincidence is therefore like a correlation between A and B based not on either’s causing the other but on their being joint effects of a single common cause C. (shrink)

Abstract: The concepts of virtue and right action are closely connected, in that we expect people with virtuous motives to at least often act rightly. Two well-known views explain this connection by defining one of the concepts in terms of the other. Instrumentalists about virtue identify virtuous motives as those that lead to right acts; virtue-ethicists identify right acts as those that are or would be done from virtuous motives. This essay outlines a rival explanation, based on (...) the "higher-level" account of virtue defended in the author's Virtue, Vice, and Value . On this account rightness and virtue go together because each is defined by a (different) relation to some other, more basic moral concept. Their frequent coincidence is therefore like a correlation between A and B based not on either's causing the other but on their being joint effects of a single common cause. (shrink)

This chapter contains sections titled: The Higher‐Level Account: Consequentialist Virtues The Higher‐Level Account: Deontological Virtues References.

Background:Since the adoption of the Universal Declaration of Human Rights by the United Nations in 1948, human rights as set out in government documents have gradually changed, with more and more power being transferred to individual.Objectives:The aim of this article is to analyze how the position of the patient in need of care is constructed in Norway’s renamed and revised Patients’ and Service Users’ Rights Act (originally Patients’ Rights Act, 1999) and published comments which accompanying this legislation from the Norwegian (...) Ministry of Health and Care Service.Research design:A constructivist design was used, and Fairclough’s critical discourse approach was adopted to analyze the text of the Patients’ and Service Users’ Rights Act and comments.Findings:The analysis identified three discourses: (a) political discourse, containing ethical discourses about priority and economy, in which patients are constructed as powerless individuals; (b) expert discourse, containing a theme about patients’ trust in the healthcare team and its knowledge, in which patients are constructed as helpless individuals lacking knowledge; and (c) patient participation and patient autonomy discourse, containing ethical discourses about decision-making, in which patients are constructed not only as individuals with needs and rights but also as “troublesome.”Conclusion:Dominant paternalistic discourses in the legal text validate the power of medicine, the healthcare system, and heath personnel over the needs, rights, participation, and autonomy of the patient. (shrink)

In this article we consider some of the implications of the UK Human Rights Act 1998 for nurses in practice. The Act has implications for all aspects of social life in Britain, particularly for health care. We provide an introduction to the discourse of rights in health care and discuss some aspects of four articles from the Act. The reciprocal relationship between rights and obligations prompted us to consider also the relationship between guidelines in the United Kingdom Central Council’s Code (...) of professional conduct and the requirements of the Human Rights Act 1998. We conclude with the recommendation that the new legislation should be welcomed for its potential to support good practice and to urge critical and reflective practice rather than as yet another burdensome bureaucratic imposition. (shrink)

Analyzes the impact that the Voting Rights Act has had on the electoral participation of blacks and on the access of minorities to elective office since the act was passed in 1965.

In this article we consider some of the implications of the UK Human Rights Act 1998 for nurses in practice. The Act has implications for all aspects of social life in Britain, particularly for health care. We provide an introduction to the discourse of rights in health care and discuss some aspects of four articles from the Act. The reciprocal relationship between rights and obligations prompted us to consider also the relationship between guidelines in the United Kingdom Central Council’s Code (...) of professional conduct and the requirements of the Human Rights Act 1998. We conclude with the recommendation that the new legislation should be welcomed for its potential to support good practice and to urge critical and reflective practice rather than as yet another burdensome bureaucratic imposition. (shrink)

This essay gives more detailed content to the widespread view that the Human Rights Act 1998 (HRA) has changed the traditional role of parliamentary intention in statutory interpretation. It begins by outlining the various ways in which legislative intent has featured in traditional (pre-HRA) statutory interpretation. This is followed by an examination of the interpretive principles developed by the senior judiciary under the HRA case-law, focusing on the extent to which they seem to depart from traditional principles. It is argued (...) that although the traditional role of parliamentary intention is partly preserved post-HRA, the interpretive obligation under s 3(1) HRA nonetheless shifts the interpretive focus away from what Parliament originally intended in enacting the legislation under HRA scrutiny, towards fulfilling the overriding goal of achieving compatibility with Convention rights. The final sections of the essay attempt to provide an account of what is involved in this shift. (shrink)

In recent case-law under the Human Rights Act 1998, the senior judiciary have reiterated the view that their task under section 3(1) of the Act is one of ‘interpretation rather than legislation’. This article has two main aims. The first is to provide a general, theoretical analysis of the extent to which it is possible (if at all) to distinguish between interpretation and legislation. The second is to examine the judicial understanding of this distinction, as revealed through judgments in the (...) HRA case-law. (shrink)

An examination of the historical circumstances surrounding the inclusion of gender in Title VII of the 1964 Civil Rights Act reveals how race, class, and gender operate in complex and contradictory patterns to shape social policy. Two levels of analysis are presented. One focuses on political conflict within the state. The other is a textual analysis of the actual congressional debate on the gender amendment to Title VII.

Under the Human Rights Act, British courts are for the first time empowered to review primary legislation for compliance with a codified set of fundamental rights. In this book, Aileen Kavanagh argues that the HRA gives judges strong powers of constitutional review, similar to those exercised by the courts under an entrenched Bill of Rights. The aim of the book is to subject the leading case-law under the HRA to critical scrutiny, whilst remaining sensitive to the deeper constitutional, political and (...) theoretical questions which underpin it. Such questions include the idea of judicial deference, the constitutional status of the HRA, the principle of parliamentary sovereignty and the constitutional division of labour between Parliament and the courts. The book closes with a sustained defence of the legitimacy of constitutional review in a democracy, thus providing a powerful rejoinder to those who are sceptical about judicial power under the HRA. (shrink)

This paper considers feministperspectives on the Human Rights Act. Itdiscusses the reasons why many feminists aresceptical regarding the impact the Act willhave on women''s lives, including theimplications for anti-discrimination law,problems with the framework of rights in theEuropean Convention and deeper difficulties facingfeminism in negotiating rights discourse. Whileacknowledging these problems, it is argued thatthere are grounds for a more positiveinterpretation of incorporation. Questions arethen raised about the nature and scope of rightsand the role of the state in challenging genderinequality.

Questions of patient autonomy have formed an important part of ethical debate in medicine from at least the post-war period onwards. Although initially important as a counterweight to widespread medical paternalism, recent years have seen a reaction against a widely perceived ‘triumph of autonomy’. In particular, competent patients' refusal of life-saving or clearly beneficial treatment presents complex dilemmas for both healthcare professionals and ethicists. Discussion of the mechanism provided by the Israel Patient's Rights Act of 1996 for ethics committees to (...) override refusal of treatment by such patients has provided several examples in which it seems an obligation to benefit the patient can outweigh concerns regarding respect for their autonomy. However, such analyses as have been undertaken so far may be seen to omit important elements of the moral decision-making process that takes place even when the latter appears to ‘win out’. In addition to helping better prepare clinicians to meet such challenges in the future, a fuller appreciation of those elements that are present in justified cases of coercive treatment may enable them to arrive at a better understanding of what autonomy itself can mean in a medical context. (shrink)

This book traces the early history of the Civil Rights Movement in the United States, showing how brutal police treatment of civil rights demonstrators in Birmingham, Alabama, forced President Kennedy to send a strong civil rights bill to Congress in June of 1963. The various legislative strategies used to get the Civil Rights Act of 1964 through Congress are detailed.

This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’, in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records. Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system, the (...) authors argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates. They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial. They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant. (shrink)

Twice in the _Journal of Business Ethics_, Walter Block provides a libertarian argument that The Civil Rights Act of 1964 is unjust because it is a violation of a business’s property rights and therefore ought to be repealed. No libertarian reply to Block has ever been given, creating the mistaken impression that his argument is the true representation of libertarian theory with regards to civil rights. This paper focuses on Title II and argues that both Block, and this prevailing opinion (...) of libertarian theory, are wrong. There are different types of libertarian theory. Block’s theory of natural rights is one of them, but there is another strain of libertarian thought that embraces the common law, at least as it existed up until the late 1800’s. This paper explicates a libertarian argument, based on the common law, which supports and defends Title II of the 1964 Civil Rights Act. Specifically, the evolution of contracts via assumpsit arguments, found in Blackstone’s _Commentaries,_ endogenously and consistently gives rise to the obligation to serve all. Title II of the 1964 Civil Rights Act is consistent with this common law tradition on public accommodations. Libertarian arguments that accept the common law on contracts ought also to accept common law doctrine on public accommodations and, _perforce_, the justness of Title II. (shrink)

This paper explores the impact of the Human Rights Act 1998 on decision making in adult social care in England and Wales. It focuses on a review of the Act by the government in June 2006 and subsequent new guidance on implementation addressed to policy makers, managers and practitioners. The meaning of ?rights? in contemporary legal and social theory is considered and the potential of human rights law to improve the experiences of service users is evaluated in the light of (...) recent research findings and proposed policy changes. (shrink)

Competent patients who refuse life saving medical treatment present a dilemma for healthcare professionals. On one hand, respect for autonomy and liberty demand that physicians respect a patient’s decision to refuse treatment. However, it is often apparent that such patients are not fully competent. They may not adequately comprehend the benefits of medical care, be overly anxious about pain, or discount the value of their future state of health. Although most bioethicists are convinced that partial autonomy or marginal competence of (...) this kind demands the same respect as full autonomy, Israeli legislators created a mechanism to allow ethics committees to override patients’ informed refusal and treat them against their will. To do so, three conditions must be satisfied: physicians must make every effort to ensure the patient understands the risks of non-treatment, the treatment physicians propose must offer a realistic chance of significant improvement, and there are reasonable expectations that the patient will consent retroactively. Although not all of these conditions are equally cogent, they offer a way forward to assure care for certain classes of competent patients without abandoning the principle of autonomy altogether. These concerns reach past Israel and should engage healthcare professionals wary that respect for autonomy may sometimes cause avoidable harm. (shrink)

Objectivists about obligation hold that obligations are determined by all of the normatively relevant facts. Perspectivalists, on the other hand, hold that only facts within one’s perspective can determine what we are obligated to do. This chapter argues for a perspectivalist view. It argues that what you are obligated to do is determined by the normative reasons you possess. This view is anchored in the thought that our obligations have to be action-guiding in a certain sense—we have to be able (...) to act for the reasons that obligate us. The chapter argues that we have this ability—the ability to act for the right reasons—only if we possess those reasons. Thus, objectivism is false. The second half of the chapter argues that problems having to do with new information do not plague the particular perspectival view presented. (shrink)

Objectivists about obligation hold that obligations are determined by all of the normatively relevant facts. Perspectivalists, on the other hand, hold that only facts within one's perspective can determine what we are obligated to do. In this paper I argue for a perspectivalist view. On my view, what you are obligated to do is determined by the normative reasons you possess. My argument for my view is anchored in the thought that our obligations have to be action-guiding in a certain (...) sense--we have to be able to act for the reasons that obligate us. I argue that we have this ability--the ability to act for the right reasons--only if we possess those reasons. Thus, objectivism is false. In the second half of the paper I argue that problems having to do with new information do not plague my particular perspectival view. (shrink)

This essay examines the thought that our right actions have moral worth only if we perform them for the right reasons. It argues against the view, often ascribed to Kant, that morally worthy actions must be performed because they are right and argues that Kantians and others ought instead to accept the view that morally worthy actions are those performed for the reasons why they are right. In other words, morally worthy actions are those for which (...) the reasons why they were performed (the reasons motivating them) and the reasons why they morally ought to have been performed (the reasons morally justifying them) coincide. The essay calls this the Coincident Reasons Thesis and argues that it provides plausible necessary and sufficient conditions for morally worthy action, defending the claim against proposed counterexamples. It ends by showing that the plausibility of the thesis, which it argues is largely independent of any particular ethical standpoint, gives us some reason to doubt a class of ethical theories that includes utilitarianism. (shrink)

Genetic testing has familial implications. Counsellors find themselves in (moral) conflict between medical confidentiality (towards the patient) and a potential right or even duty to warn at-risk relatives. Legal regulations vary between countries. English literature about German law is scarce. We reviewed the literature of relevant legal cases, focussing on German law, according to the Preferred Reporting Items for Systematic Reviews and Meta-Analyses guidelines. This article aims to familiarise counsellors with their responsibilities, compare the situation between countries and point (...) out legally unresolved areas.According to the German Genetic Diagnostics Act (Gendiagnostikgesetz) in case of an ‘avoidable or treatable’ genetic disorder, geneticists ought to confine themselves to the obligated advice to the patient. Whether a breach of the duty of confidentiality can be justified in exceptional cases by ‘necessity as justification’ for actively informing relatives at risk remains legally unclear. In case of a ‘neither avoidable nor treatable’ genetic disease, geneticists should also refrain from actively informing relatives as the justifiable state of emergency does not permit to break the duty of confidentiality. (shrink)

Ratio, Volume 34, Issue 1, Page 56-67, March 2021.

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

Fichte’s ambitious project in the Foundations of Natural Right is to provide an a priori deduction of the concept of right independently from morality. So far, interpretations of Fichte’s deduction of the concept of right have persistently fallen into one of two rough categories: either they (re)interpret the normative necessity of right in terms of moral or quasi-moral normativity or they interpret right’s normative necessity in terms of hypothetical imperatives. However, each of these interpretations faces (...) significant exegetical difficulties. By contrast, I argue that we can understand the normative necessity of right in terms of conceptual necessity. On this view, right does not tell us what ought to be done, but instead tells us what we are doing and have done. Not only does this provide for a promising philosophical account of the non-moral normativity of right, but also provides a compelling reading of Fichte’s text in both the deduction of the concept of right in the Foundations of Natural Right as well as his discussion of the application of the concept of right and coercion. (shrink)

This article studies the response of the US disability community to the prevalent assumption that disabled people do not have a future, in the form of the disability rights movement. It provides an exploratory discussion of the key role played by utopianism in the response. In doing so, the article adds to critical theorizing on the importance of utopia to the oppression of non-dominant groups and to transcending that oppression. I use utopian studies scholarship to interpret the activities leading up (...) to the passing of the Americans with Disabilities Act in 1990 as a minor utopia, characterized by an ambiguous, grounded, and provisional effort to imagine alternative ways of being. I articulate the central role played by a positive vision of disability and disabled people for this inversion of the historically negative relationship between utopia and disability. The article turns to disability activists to show that the movement countered exclusionary utopian approaches by acting as if it had a right to envision and enact a different, better future for all from the perspective of disability and disabled people. (shrink)

This paper is not so much concerned with the question under which circumstances self-defense is justified, but rather with other normative features of self-defense as well as with the source of the self-defense justification. I will argue that the aggressor’s rights-forfeiture alone – and hence the liberty-right of the defender to defend himself – cannot explain the intuitively obvious fact that a prohibition on self-defense would wrong victims of attack. This can only be explained by conceiving of self-defense also (...) as a claim-right. However, I will also argue that a claim-right cannot ground the self-defense justification either. Rather, what grounds the self-defense justification and its particular strength and scope is the fact that self-defense is an act-specific agent-relative prerogative: a defender is allowed to give particularly grave weight to his interest in engaging in self-defense, which distinguishes self-defense from most other acts. This is not the same as saying that he has a right or a liberty to engage in self-defense. Thus, self-defense, understood as a normative concept, is a claim-right, a liberty-right, and an act-specific agent-relative prerogative. (shrink)

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These (...) delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties. (shrink)

In August 2001, the Israeli Ministry of Health issued its Limitation of Smoking in Public Places Order, categorically forbidding smoking in hospitals. This forced the mental health system to cope with the issue of smoking inside psychiatric hospitals. The main problem was smoking by compulsorily hospitalized psychiatric patients in closed wards. An attempt by a psychiatric hospital to implement the tobacco smoking restraint instruction by banning the sale of cigarettes inside the hospital led to the development of a black market (...) and cases of patient exploitation in return for cigarettes. This article surveys the literature dealing with smoking among psychiatric patients, the role of smoking in patients and the moral dilemmas of taking steps to prevent smoking in psychiatric hospitals. It addresses the need for public discussion on professional caregivers’ dilemmas between their commitment to uphold the law and their duty to act as advocates for their patients’ rights and welfare. (shrink)

PurposeThe purpose of this paper is to study the evolution of Freedom of Information/Right to Information from an international perspective and analyse it as an indispensable tool for good governance through the use of information and communication technologies with special reference to India.Design/methodology/approachThis study examines the worldwide occurrence of Right to Information with reference to International Covenants, the genesis of RTI Act in India and the use of ICT in India as a tool for empowering the citizen's.FindingsThe study (...) demonstrates that RTI has far reaching impact and it clearly contributes to a better and informed citizenry however the use of ICT in India can further facilitate the access of such records.Research limitations/implicationsThe study focuses on the genesis of RTI from an international perspective but the use of ICT for further facilitating the use of RTI is limited to Indian context.Practical implicationsThe paper will outline a detailed analysis on the present usage of ICT and the initiatives taken for facilitating information dissemination and further provide suggestions for the benefit of civil society towards good governance.Originality/valueThe study is the first to address the issue of the implementation of right to information act through the use of ICT and also suggests methodology for its further improvement. Also, the study comprehends the genesis of RTI both from the international as well as Indian perspective. (shrink)

In Filartiga v. Pena-Irala (1980), the Second Circuit Court of Appeals ruled that victims of human rights violations could sue their oppressors civilly in US courts under an eighteenth century law now called the Alien Tort Claims Act (ATCA). Controversy raged over the Filartiga decision and the proper interpretation of the ATCA for 24 years. Then in Sosa v. Alvarez-Machain (2004), the Supreme Court issued its first ATCA decision. This essay analyzes the effect of the Sosa decision on the development (...) of human rights law in US courts. I find that while the federal judiciary is responding to some of the Supreme Court’s directives, lower courts still retain a great deal of discretion in handling ATCA cases. (shrink)

90% of human beings are right-handed. Naturally, the human world is dexterocentric, or designed for encounter with the right hand. Moments of this right hand bias are widely recognized, and, through devices such as left-handed scissors, coffee mugs, and wooden spoons, non-right-handers fi nd accommodation. From the perspective of one-off accommodations, however, the extent of right hand bias is unclear. This paper offers a unifying framework for understanding right hand bias. It focuses not on (...) which hand is used, but on how the hands are used in space. This is a novel approach to laterality studies. I first argue that differences in how left and right-handers inhabit space entail dissimilar left and right-handed body comportments. I next argue that the norms governing spatiality conform to the right-handed comportment, yet apply to all. I conclude that right hand biased norms are pervasive. We can next ask if they are oppressive. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together leading experts to discuss and debate (...) the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

Over the past year the debate over physician-assisted death has been waged in several courts and legislatures, and before at least one electorate as well. Measure 16, the Oregon Death With Dignity initiative that would permit physician-assisted suicide in some circumstances, was approved by the electorate; but it remains on hold while a permanent injunction issued against it by a Federal judge is reviewed by the United States Court of Appeals. Another Federal court judge's decision that the Washington statute criminalizing (...) physician-assisted suicide was unconstitutional when applied to the case of a competent terminally ill patient in intractable pain, was reversed by a three judge panel of that same United States Court of Appeals. (shrink)