ABSTRACTAccording to interest theorists of rights, rights function to protect the right-holder's interests. True. But this leaves a lot unsaid. Most saliently here, it is certainly not the case that every agent who stands to benefit from performance of a duty gets to be a right-holder. For a theory to allow this to be the case—to allow for an explosion of right-holders—would be tantamount to a reductio thereof. So the challenge for interest theorists is to (...) respect the core of the interest theory while delimiting the set of right-holders in a principled manner. The foremost explicit attempt to do this has invoked Bentham's test. Predictably, invocation of this test has come under attack, with the ultimate aim of challenging the interest theory itself. My purpose in this paper is to render Bentham's test as clearly and accurately as possible. Doing so will raise issues of modality—ultimately in rendering Bentham's test's logical form. Ultimately a core attack on Bentham's test falls away, and, to that extent, the interest theory remains standing as a promising theory of rights. (shrink)

This essay critically examines three theories of moral rights, theBenefit, the Interest, and the Choice theories. The Interest andChoice theories attempt to explain how rights can be more robustthan seems possible on the Benefit theory. In particular, moralrights are supposed to be resistant to trade-offs to supportprincipled anti-paternalism, to constitute a distinct dimensionof morality, and to provide right holders with a range ofdiscretionary choice. I argue that these and other featuresare better yet provided by a (...) fourth theory of moral rights, theJurisdiction theory. (shrink)

This article provides an explanatory account of a central class of moral rights; their normative grounding, the conditions for their possession and forfeiture, and their moral stringency. It argues that interpersonal rights against harm and rights to assistance are best understood as arising from reciprocity relations between moral agents. The account has significant advantages compared with rivals such as the interest theory of rights. By explaining the differential enforceability of rights against harm and (...) rights to assistance, the reciprocity theory helps to refute an argument made by Cecile Fabre that the poor may have a justification for engaging in war against the affluent to compel them to fulfil their duties of assistance to the poor. (shrink)

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self-described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman’s and Arthur Ripstein’s respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the (...) first place. (shrink)

This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. It elucidates the traditional understanding of it as a dispute over how best to explain A RIGHT and clarifies the theories’ competing criteria for that concept. The rest of the article then shows why recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of (...) competing explanations of the direction of ‘directed’ duties. This is because the theories’ respective answers to that issue are themselves dependent upon their respective conceptions of A RIGHT – ones that do not even necessitate the identification of different directions for such duties. Second, all of the new would-be alternative or hybrid theories are shown to merely be versions of the Interest theory. Third, recent efforts to cabin off the debate to ‘normative’ theorisation (i.e., to morally or politically evaluative accounts) are misguided. (shrink)

This article introduces a new formulation of the interest theory of rights. The focus is on ‘Bentham’s test’, which was devised by Matthew Kramer to limit the expansiveness of the interest theory. According to the test, a party holds a right correlative to a duty only if that party stands to undergo a development that is typically detrimental if the duty is breached. The article shows how the entire interest theory can be reformulated (...) in terms of the test. The article then focuses on a further strength of the interest theory, brought to the fore by the new formulation. In any Western legal system, the tortious maltreatment of a child or a mentally disabled individual results in a compensatory duty. The interest theory can account for such duties in a simple and elegant way. The will theory, on the other hand, struggles to explain such compensatory duties unless it abandons some of its main tenets. (shrink)

The paper engages the conceptual question of the nature of rights. First, moral methodology for developing criteria to judge the adequacy of theories for the concept of rights is discussed. Standard methodologies for conceptual theory, such as analysis of language practices, appealing to intuitions to test and correct hypotheses, and mixtures of these with appeals to substantive moral values, are shown to fail in important ways to give us reasons to adopt one or another view of the (...) concept. An alternative methodology is proposed which appeals to the distinct role of concepts in our value scheme (the added value of being able to employ such concepts in our moral judgments). This is then used to develop criteria for a successful theory of rights. Two existing theories are shown, as a matter of illustration, to fail to satisfy the criteria, and finally an alternative theory of rights which does satisfy these criteria is proposed and defended. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

The received view in Thomas Hobbes scholarship is that theindividual rights described by Hobbes in his political writings andspecifically in Leviathan are simple freedoms or libertyrights, that is, rights that are not correlated with duties orobligations on the part of others. In other words, it is usually arguedthat there are no claim rights for individuals in Hobbes''s politicaltheory. This paper argues, against that view, that Hobbes does describeclaim rights, that they come into being when individuals conform (...) to thesecond law of nature and that they are genuine moral claim rights, thatis, rights that are the ground of the obligations of others to forebearfrom interfering with their exercise. This argument is defended againstboth Jean Hampton''s and Howard Warrender''s interpretations of rights inHobbes''s theory. The paper concludes that the theory of rightsunderlying Hobbes''s writing is not taken from Natural Law but isprobably closer to a modern interest theory of rights. (shrink)

What system of morals should rational people select as the best for society? Using a contemporary psychological theory of action and of motivation, Richard Brandt's Oxford lectures argue that the purpose of living should be to strive for the greatest good for the largest number of people. Brandt's discussions range from the concept of welfare to conflict between utilitarian moral codes and the dictates of self-interest.

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 (...) class='Hi'>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)

Some important recent articles, including one in this journal, have sought to devise theories of rights that can transcend the longstanding debate between the Interest Theory and the Will Theory. The present essay argues that those efforts fail and that the Interest Theory and the Will Theory withstand the criticisms that have been levelled against them. To be sure, the criticisms have been valuable in that they have prompted the amplification and clarification of (...) the two dominant theories of rights; but their upshot has been to reveal the need for the improvement, rather than the abandonment, of those theories. (shrink)

There is probably no conceptualization of rights more famous than Ronald Dworkin’s claim that they are “trumps.” This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s (...) class='Hi'>theory of rights which does away with the misleading label of rights as “trumps” and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality. (shrink)

Care ethics is often criticized for being incapable of outlining what responsibilities we have to persons beyond our personal relations, especially toward distant others. This criticism centres on care theorists’ claim that the concerns of morality emerge between people, generated through our relations of interdependent care: it is difficult to see how moral duties can be applied to those with whom we do not forge a relationship. In this article, I respond to this criticism by outlining a care ethical justification (...) for an interest theory of human rights. This theory will argue that the demands of global justice include various positive actions that aim toward ensuring the conditions for good caring relations to flourish, which in turn protect and promote the vital interests of all persons. In doing so, I aim to concurrently advance the sparse work on human rights within the care literature, systematizing the ideas of care theorists such as Daniel Engster, Virginia Held, and Fiona Robinson. (shrink)

There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that (...) mostly differ from the canonical criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists’ own commitments to different kinds of accounts (i.e., models) of rights and theories of law (e.g., legal positivism) show why any theory of this sort is unnecessary for understanding rights. (shrink)

Liberal political theorists often argue that justice requires limits on policy outcomes, limits delineated by substantive rights. Distinct from this project is a body of literature dedicated to elaborating on the meaning of democracy in procedural terms. In this article, I offer an alternative to the traditional divide between procedural theories of democracy and substantive theories of justice; I call this the ‘value theory of democracy’. I argue that the democratic ideal is fundamentally about a core set of (...) values (political autonomy, equality of interests, and reciprocity) with both procedural and substantive implications. Further, I contend that limits on policy outcomes can be newly understood as part of the democratic ideal. Key Words: democracy • rights • substantive • procedural • Habermas. (shrink)

This article takes a critical look at the classic couplet of theories on the justification of rights, namely, the choice theory and the interest or benefit theory, where the two are understood to be in conflict. The argument is made that this couplet is best replaced with a new one, namely, a sophisticated rendering of the benefit theory coupled with the autonomy theory, such that any conflict is resolved. The latter two theories take different (...) cases in justifying the attribution of rights: The autonomy theory is concerned with justifying the attribution of rights to adult, rational, and competent subjects, arguing that this attribution requires a sufficiently autonomous claim by such subjects, while the benefit theory seeks to justify the attribution of rights to subjects who lack any of these three properties, meaning that they cannot be considered adult, rational, or competent. (shrink)

A theory of right action is implicit in Hume's delineation of the virtues. It gives qualified priority to 'rules of justice' as Hume's remarks on 'that species of utility which attends this virtue' require. It is a useful actual-rule, not an ideal possible-rule, purely utilitarian theory that discounts rules of justice in 'extraordinary cases', has a problem when rules conflict and invites the question 'Why not hark directly to the supreme law of utility in every case?'. It does (...) not reflect contractarian considerations of mutuality of interests evident in Hume's texts, which while sometimes relevant to what is reasonable, are in his view never also relevant to what is moral.(publisher). (shrink)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these (...) rights of self-defense are both justified and constrained by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

John Locke's political theory has been the subject of many detailed treatments by philosophers and political scientists. But The Lockean Theory of Rights is the first systematic, full-length study of Locke's theory of rights and of its potential for making genuine contributions to contemporary debates about rights and their place in political philosophy. Given that the rights of persons are the central moral concept at work in Locke's and Lockean political philosophy, such a (...) study is long overdue. (shrink)

awls’ theory of justice is the subject of numerous criticisms due to the impossibility of adequately including people with mental disabilities, either as legislators or as beneficiaries of the principle of justice. Martha Nussbaum’s criticism is directed at the question of the legislative group and the possibility of including the interests of persons who, due to the criteria of rationality and reasonableness, are excluded from the process of forming fundamental principles of justice. In this paper, I recognize the problems (...) that Rawls’s theory faces in light of the above criticisms, and as a solution, I propose a constructive and positive interpretation of his theory of justice. Such an interpretation will allow us to expand the group of legislators through the inclusion of those individuals with mental impairments who, according to Nussbaum, are capable of participating in the selection of principles of justice. Furthermore, the offered interpretation will include people with the most severe forms of mental disorders within the scope of justice, through an extended list of reasons relevant to the justification of fundamental rights and principles of justice. (shrink)

Brandt's purpose is to clarify and help resolve the fundamental issues of moral philosophy by using "non-traditional types of evidence and non-traditional argument." Observing the deficiencies of common approaches to morality that build on alleged linguistic or moral "intuitions", he proposes instead to build on the findings of "contemporary psychology." Despite the promised novelty of Brandt's approach, however, his ultimate substantive findings differ relatively little from those of other contemporary Anglo-American writers on moral philosophy such as Rawls, and his method (...) of arguing for them suffers from some of the same defects that characterize more overtly intuitionistic approaches. (shrink)

James Tully and others have argued recently that the theory of property Locke defends in the Second Treatise was designed to justify European settlement on the lands of North American Natives. If this view becomes generally accepted, and Tuck suggests it will be, doubts may arise about the impartiality of Lockean property theories. Locke, as is well established and documented again by Tully, had huge vested interests in the European settlement of North America and possibly in the enslavement of (...) Native Peoples. Doubts about Locke may reflect on all rights theories of property and thus bring into question ‘one of the major political philosophies of the modem world’. Raising these doubts is part of Tully's declared intention. His article tries to show that the Native systems of property and government which Locke defines away as illegitimate are in fact interesting and potentially beneficial alternatives to Lockean individual rights theories. (shrink)

My goal in this paper is to advance a long-standing debate about the nature of moral rights. The debate focuses on the questions: In virtue of what do persons possess moral rights? What could explain the fact that they possess moral rights? The predominant sides in this debate are the status theory and the instrumental theory. I aim to develop and defend a new instrumental theory. I take as my point of departure the influential (...) view of Joseph Raz, which for all its virtues is unable to meet the challenge to the instrumentalist that I will address: the problem of justifying the enforcement of rights. I then offer a new instrumental theory in which duties are grounded on individuals’ interests, and individuals rights exist in virtue of the duties owed to them. I argue that my theory enables the instrumentalist to give the right sort of justification for enforcing rights. (shrink)

Surveys the contributions that economic theory has made to the often contentious debate over the government's use of its power of eminent domain, as prescribed by the Fifth Amendment. It addresses such questions as: when should the government be allowed to take private property without the owner's consent? Does it depend on how the land will be used? Also, what amount of compensation is the landowner entitled to receive? The recent case of Kelo v. New London revitalized the debate, (...) but it was only the latest skirmish in the ongoing struggle between advocates of strong governmental powers to acquire private property in the public interest and private property rights advocates. Written for a general audience, the book advances a coherent theory that views eminent domain within the context of the government's proper role in an economic system whose primary objective is to achieve efficient land use. (shrink)

This book represents the most comprehensive account to date of an important but widely contested approach to ethics--intuitionism, the view that there is a plurality of moral principles, each of which we can know directly. Robert Audi casts intuitionism in a form that provides a major alternative to the more familiar ethical perspectives. He introduces intuitionism in its historical context and clarifies--and improves and defends--W. D. Ross's influential formulation. Bringing Ross out from under the shadow of G. E. Moore, he (...) puts a reconstructed version of Rossian intuitionism on the map as a full-scale, plausible contemporary theory. A major contribution of the book is its integration of Rossian intuitionism with Kantian ethics; this yields a view with advantages over other intuitionist theories and over Kantian ethics taken alone. Audi proceeds to anchor Kantian intuitionism in a pluralistic theory of value, leading to an account of the perennially debated relation between the right and the good. Finally, he sets out the standards of conduct the theory affirms and shows how the theory can help guide concrete moral judgment. The Good in the Right is a self-contained original contribution, but readers interested in ethics or its history will find numerous connections with classical and contemporary literature. Written with clarity and concreteness, and with examples for every major point, it provides an ethical theory that is both intellectually cogent and plausible in application to moral problems. (shrink)

Could global government be the answer to global poverty and starvation? Cosmopolitan thinkers challenge the widely held belief that we owe more to our co-citizens than to those in other countries. This book offers a moral argument for world government, claiming that not only do we have strong obligations to people elsewhere, but that accountable integration among nation-states will help ensure that all persons can lead a decent life. Cabrera considers both the views of those political philosophers who say we (...) have much stronger obligations to help our co-citizens than foreigners and those cosmopolitans who say our duties are equally strong to each but resist restructuring. He then outlines his own position, using the European Union as a partial model for the integrated alternative and advocating instituting EU-style supranational government, development aid, and free movement of persons in the Americas and other regions. Over time, Cabrera argues that the transformation of the global system into a cohesive network of democratic institutions would help ensure that anyone born anywhere could lead a decent life. This book will appeal to all those interested in political philosophy and the processes and potential of globalization. (shrink)

The connection of value-experience with activity has led to the widespread modern tendency to interpret value in terms of interest. To value a thing is certainly to take an interest in it, and there can be no doubt that the value any object has for us tends to vary with the interest we take in it. The suggestion readily arises, therefore, that the value of any object simply is the interest we take in it. The difficulty (...) with views of this type is that interest is a distinctly subjective category while value is persistently spoken of as if it were somehow objective. Indeed, the term “value” would lose the most essential element of its meaning if it could not be applied to objects of common knowledge in such a way that two people could significantly discuss the question as to whether the object A is not more valuable than the object B and each, on the basis of his own interest and experience, defend a different view. I do not think the subjectivity of value can be as easily disposed of as does Laird1 in discussing the argument, “Beauty is not in the aurora. Therefore it is in the beholder's mind.” This, he says, leads to the absurdity, “Therefore the beholder's mind is beautiful.” The apparent absurdity is due to the ambiguity of the term “beautiful.” It is applied either to an experience or to the object of that experience. (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)

Human rights theory and practice have long been stuck in a rut. Although disagreement is the norm in philosophy and social-political practice, the sheer depth and breadth of disagreement about human rights is truly unusual. Human rights theorists and practitioners disagree – wildly in many cases – over just about every issue: what human rights are, what they are for, how many of them there are, how they are justified, what human interests or capacities they (...) are supposed to protect, what they require of persons and institutions, etc. Disagreement about human rights is so profound, in fact, that several prominent theorists have remarked that the very concept of a “human right” appears nearly criterionless. In my 2012 article, “Reconceptualizing Human Rights”, I diagnosed the root cause of these problems. Theorists and practitioners have falsely supposed that the concept of “human right” picks out a single, unified class of moral entitlements. However, the concept actually refers to two fundamentally different types of moral entitlements: (A) international human rights, which are universal human moral entitlements to coercive international protections, and (B) domestic human rights, which are universal human moral entitlements to coercive domestic protections. Accordingly, I argue, an adequate “theory of human rights” must be a dual theory. The present paper provides the first such theory. First, I show that almost every justificatory ground given for “human rights” in the literature – such as the notion of a “minimally decent human life”, “urgent human interests”, and “human needs” – faces at least one of two fatal problems. Second, I show that after some revisions, James Griffin’s conception of “personhood” provides a compelling justificatory ground for international human rights. Third, I show that the account entails that there are very few international human rights – far fewer than existing human rights theories and practices suggest. Fourth, I show that there are reasons to find my very short list of international human rights compelling: “human rights justifications” for coercive international and foreign policy actions over the past several decades have consistently overstepped what can be morally justified, and my account reveals precisely how existing human rights theories and practices have failed to adequately grapple with these moral hazards. Finally, I outline an account of domestic human rights which fits well with many existing human rights beliefs and practices, vindicating those beliefs and practices, but only at a domestic level. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Theory of International Bioethics: The Negotiable and the Non-NegotiableRobert Baker (bio)AbstractThe preceding article in this issue of the Kennedy Institute of Ethics Journal presents the argument that “moral fundamentalism,” the position that international bioethics rests on “basic” or “fundamental” moral principles that are universally accepted in all eras and cultures, collapses under a variety of multicultural and postmodern critiques. The present article looks to the contractarian tradition (...) of Hobbes and Locke—as reinterpreted by David Gauthier, Robert Nozick, and John Rawls—for an alternative justification for international bioethics. Drawing on the central themes of this tradition, it is argued that international bioethics can be rationally reconstructed as a negotiated moral order that respects culturally and individually defined areas of nonnegotiability. Further, the theory of a negotiated moral order is consistent with traditional ideals about human rights, is flexible enough to absorb the genuine insights of multiculturalism and postmodernism, and yet is strong enough to justify transcultural and transtemporal moral judgments, including the condemnation of the Nazi doctors at Nuremberg. This theory also is consistent with the history of the ethics of human subjects experimentation and offers insights into current controversies such as the controversy over changing the consent rule for experiments in emergency medicine and the controversy over exempting certain clinical trials of inexpensive treatments for preventing the perinatal transmission of AIDS from the ethical standards of the sponsoring country.The Preamble to the Council of Europe’s (1997) Convention on Human Rights and Biomedicine, the most recently ratified code of international bioethics, is noteworthy because it never mentions “principles,” the concept most frequently cited by the fundamentalists as basic to international bioethics. Instead it stresses rights, a concept that has been utterly ignored by the fundamentalist theorists of international bioethics. The Preamble exemplifies a conception of international [End Page 233] bioethics as an ethics of covenants and conventions grounded in human rights. In the full text of the Preamble, the term “rights” appears eight times and the expressions “convention” and “covenant” are used six times; the term “principle” does not appear at all. In this essay, I develop a theoretical framework for international bioethics based on conventions, covenants, and areas of “nonnegotiability”—a concept that serves as a functional analogue to the traditional notion of “human rights.” I also shall argue that, unlike the theory of basic principles central to moral fundamentalism, the theory of negotiated morality appears immune to the multicultural and postmodern critiques of international bioethics that were analyzed in the preceding article in this issue of the Kennedy Institute of Ethics Journal (Baker 1998).Negotiated Moral Order: A Model for International BioethicsReconsidering ContractarianismThe linkage of “conventions” and “covenants” with human rights that is evident in the Council of Europe’s Convention on Human Rights and Biomedicine traces back directly to the moral and political theories of Thomas Hobbes and John Locke. Such philosophers as David Gauthier (1986), Robert Nozick (1974), and John Rawls (1971, 1993) recently have reinvigorated this classic contractarian line of analysis. In this section, I shall reconsider classical contractarian theory from a perspective informed by these more recent analyses.The most riveting feature of all forms of contractarian theory is the metaphor of the contract itself, particularly the legitimating role it accords to assent. Because contractarians look to the assent of those who would be bound by a moral norm as ultimately the sole source of a norm’s legitimacy, the most important corollary of contractarian moral theory is that moral norms are illegitimate insofar as agents either in principle could not, hypothetically would not, or actually will not rationally assent to be bound by them. Contractarians also argue that because legal norms are legitimated by acceptance of the authority of those who promulgate them, the authority of such norms is bounded by the actual or hypothetical assent of the governed. These features of contractarian analysis generate the correlative concepts of human rights and civil rights.Less often remarked, but nonetheless integral to the metaphor of the social contract, is the contractarian recognition that the interests of the [End Page 234] parties who contract to form civil society are naturally in conflict (or, as Hobbes put... (shrink)

Francis Hutcheson's An Inquiry Into the Original of Our Ideas of Beauty and Virtue, published in 1725, arguably contains the first broadly utilitarian theory of rights ever formulated. In this essay, I argue that, despite its subtlety, there are crucial lacunae in Hutcheson's theory. One of the most important, which Mill seeks to repair, is that his theory of rights lacks a conceptually necessary companion, namely, a corollary account of obligation. Hutcheson has no theory (...) of fully deontic obligations, much less an account of the relational obligations that, as Hohfeld famously argued, are the conceptually necessary correlates of claim rights of the kind Hutcheson wishes to theorise. Like Hume, Hutcheson subversively redefines ‘obligation’ as a motive of self-interest or the approval of morally good motives by moral sense. This leaves Hutcheson without any account of the obligations that are the necessary correlates of claim rights. Mill does significantly better on this score but ends up giving a pragmatic ‘reason of the wrong kind’ for rights and obligations. Hutcheson thus begins a line of thought shown by him to have been powerless to ground rights without independent deontic premises from the start. (shrink)

Many philosophers have criticized John Rawls’s Law of Peoples. However, often these criticisms take it for granted that the moral conclusions drawn in A Theory of Justice are superior to those in the former book. In my view, however, Rawls comes to many of his 'conclusions' without too many actual inferences. More precisely, my argument here is that if one takes Rawls’s premises and the assumptions made about the original position(s) seriously and does in fact think them through to (...) their logical conclusions, both 'A Theory of Justice' and 'The Law of Peoples' have abysmally counterintuitive and immoral implications. To wit, if the members in the original position think, as Rawls suggests,that their society is closed and they will have no interaction with outsiders, and if, furthermore, they are self-interested and concerned with the basic structure of their own society, than there is absolutely no reason for them to use the terms “persons” or “least advantaged” in the formulation of the two principles. Rather, they will use the terms “citizens of our society” and “least advantaged of our society” instead. But thus revised, the principles of justice imply that the genocide or the enslavement of outsiders is unobjectionable. I will consider attempts to block this conclusion and demonstrate that they all fail. The Law of Peoples, moreover, faces similar problems. (shrink)

L’oeuvre d’Adam Smith a pour objectif d’analyser l’aspect institutionnel des phénomènes sociaux. D’un côté, la Théorie des sentiments moraux trouve sa juste place dans la pensée de l’économiste écossais ; son rôle est d’expliquer comment se forment les jugements moraux individuels et comment ces jugements débouchent de façon évolutionniste sur l’émergence d’ institutions sociales.De l’autre côté, la véritable cause de la Richesse des nations est à chercher dans des institutions qui font respecter la liberté naturelle des individus. Une relecture du (...) troisième devoir du souverain aboutit également à des conclusions fort intéressantes: la mise en place de nouvels arrangements institutionnels dans la production des ouvrages “publick” devaient permettre l’extension du marché et non son remplacement par l’Etat.The aim of the Adam Smith’s work is to analyze the institutional aspect of the social phenomena. On the one hand, the Theory of Moral Sentiments finds its right place in the thought of the scottish economist; its role is to explain how form the individual moral judgements and how the social institutions emerge out of these judgements in an evolutionist way.On the other hand, the real cause of the Wealth of Nations is to be found in the institutions which enforce the respect of the natural liberty of the individuals. A re-reading of the thirth duty of the sovereign turns out a much interesting conclusions: the carrying out of new institutional arrangements in the production of “publick” works had to allow the extension of the market and not its replacement by the State. (shrink)

It is common for philosophers and legal theorists to bemoan the proliferation of the language of rights in popular discourse.1 In a wide range of contemporary public political and ethical debates, disputants are quick to appeal to the existence of rights that support their position – the ‘human rights’ of innocent victims of war, animals’ noninterference rights, individuals’ and businesses’ rights to economic freedom. It is often maintained, with some plausibility, that these public disputes involve (...) hasty and undefended reliance on assumptions that certain specific rights exist, and that such profligacy with the language of rights does little to clarify and enhance public debate. By contrast, the two prominent theoretical analyses of the concept ‘a right’ – the Will Theory and the Interest Theory – are both revisionary theories which, if widely adopted, would require people to revise their usage of the term ‘a right’. The Will Theory is an explicitly revisionary theory, according to which rights can be held only by beings capable of waiving their rights (and hence rights cannot be held by animals or young children).2 I shall argue that traditional versions of the Interest Theory would also require revisions of popular usage of the term ‘a right’ (by implying that certain property rights and promissory rights cannot genuinely qualify as rights). Such revisionary analyses of the concept ‘a right’ might be applauded for aiming to enhance the conceptual clarity of public debate. However, my stance in this paper is avowedly non-revisionary. My aims are to seek an analysis of the concept ‘a right’ that accords with the multifarious ways in which this term is used in everyday ethical and political debates, and to argue that philosophers and legal theorists would benefit from adopting such a non-revisionary approach. (shrink)

The recent debate over the nature of rights has been dominated by two rival theories of rights. Proponents of the Will Theory of rights hold that individual freedom, autonomy, control, or sovereignty are somehow to be fundamental to the concept of a right, while proponents of the Interest Theory argue that rights rather protect people's welfare. Participants in this debate commonly assume the existence of a single ‘concept’ of which both theories provide competing (...) descriptions. The aim of this article is to show that both accounts are better understood as providing characterizations of different ‘kinds’ of rights. (shrink)

In this paper I hope to show that a conception of human rights requires a view of the social ideal and the good life, and requires a view of the nature of human community. But what I say in favor of these points hardly amounts to a demonstration. Instead I try to exhibit how we think and talk about rights in general, and what the presuppositions of such thought and talk are. Throughout, I emphasize the pragmatic side of (...) rights-discourse and I try to establish some of the contexts in which such discourse can be significantly employed. Much of what I say is motivated by the consideration that an historically important factor in the generation of various rights, their acknowledgement and implementation, and their extension to increasingly larger segments of the population, has been the claims put forward and the demands made by individuals and groups against individuals and groups. This factor constitutes a suggestive clue for the development of a theory of rights. The treatment here, however, is largely programmatic and fragmentary. The space allotted does not permit more. Moreover, I lead up to—but do not go into—the social ideal and the human community. The title of this essay indicates its limited scope. The above points are, of course, hardly novel; many older writers laid great stress upon them. But of late they have not received the attention that they in my view deserve. What does it mean for someone to maintain a conception of human rights? How is this conception given any concrete content? The answers to these questions, I believe, ultimately lead to a consideration of social ideals and the human community. What follows is meant to stimulate new thinking on these old-fashioned topics. (shrink)

In this paper I defend a theory of welfare rights for nonhuman animals. I do this by demonstrating that a well-established framework for protecting the interests of farm animals, the ‘Five Freedoms of Animal Welfare’, is already functioning just as a set of rights. To support this claim I adopt a common approach to detecting evidence for deontological reasoning and look at the structural features of rights. I first consider Hohfeld’s system of legal rights and (...) consider whether the Five Freedoms may be understood as liberties or claim rights, before making a more successful comparison with side constraints and an interest theory of rights as understood by Nozick and Raz. I also respond to a likely objection that it is not possible to have some welfare rights without a right to freedom from exploitation. The argument therefore contributes to breaking down the stubborn division between ‘animal welfare’ and ‘animal rights’. (shrink)

The debate between the 'Will Theory' and the 'Interest Theory' of rights is actually a debate over stipulative definitions. I argue how this could have happened, and suggest how we might proceed building a theory of rights.