Civil and Political Rights

Within the small body of philosophical work on strikes, to participate in a strike is commonly seen as to refuse to do the job while retaining one’s claim upon it. What is the relationship, though, between liberalism and the right to strike? This is our main question.

This book advances a novel justification for the idea of "public reason": citizens within diverse societies can realize the ideal of shared political autonomy, despite their adherence to different religious and philosophical views, by deciding fundamental political questions with "public reasons." Public reasons draw upon or are derived from ecumenical political ideas, such as toleration and equal citizenship, and mutually acceptable forms of reasoning, like those of the sciences. This book explains that if citizens share equal political autonomy—and thereby constitute (...) "a civic people"—they will not suffer from alienation or domination and can enjoy relations of civic friendship. Moreover, it contends that the ideal of shared political autonomy cannot be realized by alternative accounts of public justification that eschew any necessary role for public reasons. In addition to explaining how the ideal of political autonomy justifies the idea of public reason, this book presents a new analysis of the relation between public reason and "ideal theory": by engaging in "public reasoning," citizens help create a just society that can secure the free compliance of all. It also explores the distinctive policy implications of the ideal of political autonomy for gender equality, families, children, and education. (shrink)

Law-enforcement agencies are increasingly able to leverage crime statistics to make risk predictions for particular individuals, employing a form of inference some condemn as violating the right to be "treated as an individual". I suggest that the right encodes agents' entitlement to fair distribution of the burdens and benefits of the rule of law. Rather than precluding statistical prediction, it requires that citizens be able to anticipate which variables will be used as predictors, and act intentionally to avoid them. Furthermore, (...) it condemns reliance on various indexes of distributive injustice, or unchosen properties, as evidence of law-breaking. (shrink)

Economic disparities often translate into disparities in political influence, rendering political liberties less worthy to poor citizens than to wealthier ones. Concerned with this, Rawls advocated that a guarantee of the fair value of political liberties be included in the first principle of justice as fairness, with significant regulatory and distributive implications. He nonetheless supplied little examination of the content and grounding of such guarantee, which we here offer. After examining three uncompelling arguments in its favor, we complete a more (...) promising yet less explored argument that builds on the value of self-respect. We first inspect the conditions and duties that securing self-respect entails. We then look into how uneven allocations of the value of political liberties bear, expressively and due to the power imbalances they yield, on such conditions and duties. (shrink)

There is now an awakening to and recognition of the emotionally complex lives of some non-human animals. While their forms of consciousness may vary, some are indeed conscious and deserve political consideration. What that political consideration ought to be is the central topic of this article. First, I argue that interspecies justice must be understood in terms of the relationships that foster individual flourishing of all concerned. The obstacles to such flourishing are the five faces of oppression famously identified by (...) Iris Marion Young: exploitation, marginalization, powerlessness, cultural imperialism, and violence. By extending Young’s concept of the social group to intra- and interspecies groups, we become more attuned to differences between and among species. Theorizing the existence of interspecies groups brings forward new avenues to explore oppression and simultaneously theorize its opposite – interspecies justice. Second, I argue that a positive theory of interspecies flourishing can be developed on the basis of Marx’s materialist philosophy and reclamation of species-being. Though Marx uses humanist language throughout the Economic and Philosophic Manuscripts of 1844, attention to his methodological commitments reveals that some non-human animals can no longer be excluded from the capability of flourishing and species-being. Some non-human animals are conscious, act purposefully, and labor creatively and must be included in our circle of moral and political concern. (shrink)

Suggests that there is an integral relationship between support for civil rights and support for a cluster of practices that might be characterized under the heading off "economic democracy." These include participatory workplace governance schemes and basic income schemes as alternatives to conventional income support programs.

examine the dominant conversations on cultural appropriation. The first part of the essay will examine the ideological configuration of what constitutes cultural appropriation (hereafter as CA) first, as the politics of the diaspora and second, within a normative understanding of culture and its diachronic contradictions. This will be followed by a critical reevaluation of our subject theme as primarily a discourse of power with multiple implications. Framed as a discourse of power, CA is equally exposed to ideological distortions, and its (...) critics becoming afflicted with the same virus they set out to cure in the first place. I am interested in the aspect of culture as a constant location of tensions and rupture, yet constitutive of core credential in the making of modern identity. I argue that the failure of dominant criticisms of cultural appropriation is precisely because they do not leave epistemic space for prior commitments: the internal variation of culture. If as critics have argued that CA enables cultural violence, we need to understand the epistemic space where cultural violence occurs in order to make a meaningful proposal for identity discourse and conversation. I will make a case for what may be termed multiple humanity (ies) as a way of transcending the homogenous claims imposed upon cultural memories. (shrink)

The principle of equality before the law is often characterized as procedural or formal in nature. Recent scholarship has offered a more nuanced representation of this critique, maintaining that the principle is procedural in nature but emphasizing its instrumental value. This paper challenges that characterization, arguing that equality before the law is best interpreted as a foundational constitutional principle which manifests substantive restrictions on the content of legal rules. Equality before the law, as an independent constitutional principle, should not be (...) confused with the broader value of equality, nor with the rule of law: it incorporates aspects of both, mandating that legal subjects, including legal officials, be treated as prima facie equals in the creation, interpretation, and application of the law. As such, it in an integral normative foundation for the common law constitutional order. Any analysis of the common law constitution must adequately account for and give proper recognition to this foundational constitutional principle. (shrink)

This article deals explicitly with the dimension of access in the concept of citizenship and is discussed from the point of view of migration. Access is analyzed in the context of the reform of German citizenship laws in 1999. The state of Hesse is singled out to be used as an example of parliamentary debate on the concepts of citizenship and integration. The point is to explicate the interrelations of the federal legislative reform and the conceptual implications thereof, using Hesse (...) as a state-level example. (shrink)

This chapter surveys attempts to provide liberal justification for specific rights available to Indigenous citizens of democratic societies. The most important of these, by Will Kymlicka, relied on the equal right of all citizens to the good of cultural membership to argue for specific rights to protect minority cultures. After noting that Rawls’s political liberalism offers other resources to argue for specific constitutional or legal rights for colonised Indigenous citizens, the chapter turns to consider James Tully’s argument for an inter-cultural (...) constitutionalism based on the principles of recognition, consent and continuity. Finally, the chapter refers to the work of Robert A. Williams Jr in order to suggest that the conditions of a just and fair colonial constitution are similar to the conditions of a just and stable political society in which there are incommensurable comprehensive moral views. (shrink)

This article examines whether the voting age should be lowered to 16. The dominant view in the literature is that 16-year-olds in the United Kingdom are not politically mature enough to vote since they lack political knowledge, political interest and stable political preferences. I reject this conclusion and instead argue that the voting age should be lowered to 16. First, I look at Chan and Clayton’s empirical claims and show that these features of 16- and 17-year-olds are in fact created (...) by exclusionary social practices and therefore that these features cannot be used to justify their exclusion from the vote. Second, I evaluate preliminary evidence from Austria which suggests that 16- and 17-year-olds, when actually given the vote, are politically mature. Third, I show that, on a balance of harms, considering that some 16- and 17-year-olds are mature, we still should lower the voting age even if some 16- and 17-year-olds are not politically mature. I conclude that the voting age should be lowered to 16. (shrink)

The number of people without rights of residence or work in the territory of Western Europe's nation states is growing. In official representations of political life this group is commonly 'symbolically eliminated' or taken up by an increasingly hostile discourse on 'illegal immigrants' and 'international terrorism'. This article explores what a rereading of the work of Hannah Arendt can contribute to the analytical task of giving an alternative meaning to the presence of this group. Arendt opens up new ways of (...) thinking and acting in view of the present situation. She shows us the rightless migrant as subject to a very specific form of domination - total domination. With Arendt we can see the migrant also as an emblematic philosophical figure, whose status exposes the contradiction of state-centred citizenship and the discourse of human rights. Lastly, the migrant comes into view as a potential political actor; protests by sans papiers become visible as sites of active citizenship. (shrink)

While the European integration project is facing new challenges, abandonments and criticism, it is often forgotten that there are powerful legal instruments that allow citizens to protect and extend their rights. These instruments and the actions taken to activate them are often overlooked and deliberately ignored in the mainstream debates. -/- This book presents a selection of cases in which legal institutions, social movements, avant-gardes and minorities have tried, and often succeeded, to enhance the current state of human rights through (...) traditional as well as innovative actions. The chapters of this book investigate some of the cases in which the gap between the conventionally recognized rights and those advocated is becoming wider and where traditionally disadvantaged groups raise new problems or new issues are emerging concerning individual freedom, transparency and accountability, which are not yet properly addressed in the current political and legal landscape. Can political institutions and courts without coercive power of last resort actually foster more progressive rights? This book suggests that the expansion of human rights might be a viable strategy to generate a proper European citizenship. (shrink)

ABSTRACTReceived wisdom in most democracies is that voting should be seen as a political freedom that citizens have a right to exercise at their discretion. But I propose that we have a duty to vote, albeit a duty to vote well: with knowledge and a sense of impartiality. Fulfillment of this obligation would contribute to the epistemic advantages of democracy, and would thereby instantiate the duty to promote and support just institutions.

This paper adds a new perspective to recent debates about the political nature of rights through attention to their distinctive role within social movement practices of moral critique and social struggle. The paper proceeds through a critical examination of the Political Constitutionalist theories of rights politics proposed by Jeremy Waldron and Richard Bellamy. While political constitutionalists are correct to argue that rights are ‘contestable’ and require democratic justification, they construe political activity almost exclusively with reference to voting, parties and parliamentary (...) law-making, neglecting the vital role rights play in political struggle outside and against the official institutions of democratic citizenship. In contrast to the political constitutionalist stress on the patient and reciprocal negotiation of rights within formal electoral processes, this paper locates the political nature of rights in their conflictual logic as ‘claims’ in multiple spheres that function to mobilise oppos... (shrink)

Human rights are high priority norms that empower right holders to demand the benefits protected by their rights. This is no less true of socioeconomic human rights than civil and political human rights. I argue that realizing human socioeconomic rights requires that they be enacted into state law in such a way that individual right holders have the power to bring legal action in defense of their rights. Contrary to Thomas Pogge, it is not enough for states simply to provide (...) the benefits required by human rights. Unfortunately, limited resources mean that successful litigation by right holders threatens to disempower other right holders by distorting a fair distribution of limited resources, since those with the resources to litigate can command a disproportionate and unjust share of limited resources. Using the human right to health as an example, I argue that an important part of the solution requires specifying different aspects of the content of the right to health and adopting appropriately strong standards of judicial review. (shrink)

Principled discussions of civil rights became inherently less likely as a direct result of the observation by Earl Warren, in Brown v. Board of Education, that, respecting freedmen, “Education of Negroes was almost non-existent, and practically all of the race were illiterate,” and in proportion as that observation increasingly became the foundation of common opinion on the subject. Warren's observation was not true in any meaningful or non-trivial sense. Nevertheless, it served to perpetuate the myth of a backward people needing (...) help to catch up instead of the truth of a people being held back. That is the perspective – the disadvantaged group perspective – that ultimately infected all discussion of civil rights, even after the designation of so-called “disadvantaged groups” had been extended beyond American blacks. To define civil rights, we may well begin with what all mankind would likely recognize. Thus the dictionary definition of “civil rights” stands: “the rights that belong to all individuals in a nation or community touching property, marriage, and the like.” In that definition the term “rights” may be further expanded to mean “legitimate claims,” following the definition of right as law – as “a claim or title or interest in anything whatever that is enforceable by law.” This definition applies with minimal distinction of regimes intruding and, therefore, without the host of recent complications in the United States that create the impression that civil rights have something to do with pluralism. Previously, the generic definition was thought to exhaust the meaning of the term in the United States. (shrink)

The aim of this study is to characterize the weak discussion about the Human Rights in Franco's time, not in general, but by testing Vallet de Goytisolo's works. This author is deeply influenced by the lectures of M. Villey, Parisinian philosopher well-known by his denial of Human Rights. A comparative study of these authors will be done focusing on two – faced aspects : the strength and fragility of their doctrines.Both authors are defined as supporters of the Methodical Realism, although (...) their arguments and sources are very similar, their purposes and conclusions are different. Juan Vallet does not reject the Human Rights, but he prefers the denomination of ethical-legal principles, that is, moral categories that must guide the legislative and judicial praxis. The root of these ethical-legal principles is the ethical-natural principles extracted at natural order, and the duty of all authority is to adequate his rules to the nature of things, exactly as in Saint Thomas.In Vallet's works, the theoretical reason for this rejection is that the notion of fundamental right is scientifically unsatisfactory to understand the complexity of the social reality. The practical reason defends that the Civil right should not be confused with the power or faculty of the individual, errors of nominalism, but the origin of these powers is to be found in the context of a particular legal relationship.However, in the end, this catalogue of rights will be not feasible for the citizen, since these rights are at the mercy of the legislator or the judge. They are liable to obey these principles, only morally. (shrink)

This essay analyzes the coherency and reasonableness of legal restrictions against same-sex marriage. The population of focus is transgender individuals and their partners. Focusing on trans-marriage makes clear that the restriction of marriage to one man and one woman is misguided in that the law rests on the assumption that the categories of sex and gender comprise two disjoint, exhaustive, and unambiguous groupings. The primary argument here is not that the restrictions of same-sex marriage are harmful to certain transpersons who (...) participate in legal marriage, although they certainly are, but rather that this legal restriction fails to meet the minimum requirements of any reasonable law. This analysis compares the current marriage restriction and its reliance on the above mentioned false belief with judgments of the Race Classification Appeal Board of Apartheid era South Africa. I employ two actual cases and the legal philosophy of Lon L. Fuller in my argument. (shrink)

In this article I assert that deliberative democratic theory, as articulated by Jürgen Habermas and Seyla Benhabib, explicitly fails to live up the demands of its discourse-ethical foundation when we examine undocumented immigrants who live in any given nation. In the case of undocumented immigrants, there is a gap which exists between a moral imperative to include those affected by a norm in discourse, and legal structures which actualize this imperative. I offer the following account in an effort to show (...) how one might bridge this gap. First, virtual representation of undocumented interests by the citizens of a bounded community is not sufficient to correct the dilemma of deliberative democracy. Second, I will claim that the rhetorical power of personal testimony from marginalized individuals is required for a responsible judgment in discourse. Finally I will discuss practical forums for this participation which can potentially solve the dilemma of deliberative democracy. Through direct confrontation with those who are unjustly marginalized, we can cross the divide that exists between a moral imperative to respect the undocumented and a legally-recognized right to participate in discourse. (shrink)

The Universal Declaration of Human Rights lists what have come to be called “first” and “second” generation rights. First generation rights are civil and political; second generation rights are social, economic, and cultural. Western and Asian nations are in disagreement about whether each of these rights is universal. While Western nations strongly believe that first generation rights should be universal, many “Confucian” nations insist that second generation rights precede first generation rights. After analyzing the Confucian values in detail, I conclude (...) that Confucianism supports both generations of rights. (shrink)

The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in (...) different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today. (shrink)

. Although the courts have ruled that companies are legal persons, they have not yet made clear the extent to which political free speech for corporations is limited by the strictures legitimately placed upon corporate commercial speech. I explore the question of whether or not companies can properly be said to have the right to civil free speech or whether corporate speech is always de facto commercial speech not subject to the same sorts of legal protections as is the right (...) to civil free speech. In the absence of clearly defined legal precedent, I emphasize moral reasons for determining the appropriate limits of corporate civil free speech. Appealing to arguments typically used to justify individual rights to civil free speech, I examine the extent to which this sort of justification may or may not be legitimately extended to corporations. I conclude that corporate rights to civil free speech must be restricted because granting rights of free speech to institutions may, in practice, undermine the moral rationale and practical feasibility of guaranteeing rights of civil free speech to individuals. Furthermore, I argue that granting corporations full rights to civil free speech will undercut attempts to develop good moral character in corporate institutions by undermining the efforts of watchdog organizations. (shrink)

Magna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011, Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document: ᠅ that the power of the state is not absolute ᠅ that whoever governs the state must obey the law ᠅ and that whoever governs the state must take account of the views of those who are governed. (...) These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies. It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power. This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims. The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries. (shrink)

This article shows that associative freedom is not what we tend to think it is. Contrary to standard liberal thinking, it is neither a general moral permission to choose the society most acceptable to us nor a content-insensitive claim-right akin to the other personal freedoms with which it is usually lumped such as freedom of expression and freedom of religion. It is at most a highly restricted moral permission to associate subject to constraints of consent, necessity and burdensomeness; a conditional (...) moral permission not to associate provided our associative contributions are not required; and a highly constrained, content-sensitive moral claim-right that protects only those wrongful associations that honour other legitimate concerns such as consent, need, harm and respect. This article also shows that associative freedom is not as valuable as we tend to think it is. It is secondary to positive associative claim-rights that protect our fundamental social needs and are pre-conditions for any associative control worth the name. (shrink)

This study examines the notion of universal human rights in the context of the importance of social and economic rights for the agency and dignity of human beings. It argues that the recognition of basic rights to what is necessary for physical well-being is essential to any adequate theory of human rights, and that rights of the civil and political variety depend on the recognition of social and economic rights if they are to be exercised. Therefore the secondary status which (...) is usually accorded to social andeconomic rights results in an imbalanced ideal of human rights both in theory and in practice. This study is an attempt to place second generation rights in their proper context and to argue for them as human rights of equal status and importance. It focuses on the derivation of human rights in general, and shows that second generation rights may be accommodated within this structure. It further supports this pos~ion by showing that the categorical differences which are asserted to exist between first and second generation rights are based on a mistaken conception of positive and negative rights and duties, as well as an inadequate conception of liberty. The thesis shows that all rights generate a variety of duties, both positive and negative, and that an adequate theory of rights has to be able to accommodate the inevitability of conflicts of right$ at the level of their enforcement. Consequently, this study argues there is no reason to give either class of right primary importance, as both first and second generation human rights are essential to the agency and dignity of a human being, and they are thus interdependent. Furthermore, the thesis shows that human rights can be balanced at the level of the obligations which they generate without compromising the deontological nature of such rights. This thesis argues that a theory of rights which is rooted in the liberal democratic notion of rights, such as that characterised by the choice theory of rights, is inadequate. It therefore argues that a benefit theory of rights must be adopted in order to accommodate conflicts of rights when they arise. The thesis argues that as such conflicts of rights are" most common in cases involving the assertion of social and economic rights, this balancing of rights is of special significance for the enforcement of second generation rights. Furthermore, this thesis argues for a theory of minimal interdependence of first and second generation rights, in order to accommodate the notion of first and second generation rights of equal status and importance, as well as to prevenf an~inflation of rights claims which would compromise the balancing of rights. It is argued that a reordering of values is necessary to take account of material well-being, as well as civil freedom, as both of these generate fundamental rights of equal status and importance. (shrink)

The right to education can be defended as a right to teaching dependent essential education. Theoretical difficulties faced by attempts to argue for this right include the normative classification of needs. An independent basis for an obligation to educate is identified as a special case of the obligation to render aid. I explain a concept of "essential knowledge," the sense in which education is a need, and the basis of the obligation to educate. ;Finally, it is argued that compulsory essential (...) knowledge education for children and adults can be defended. But the notion that they may be compulsorily educated for the sake of ornamentation, or to protect the conservative interests of the state, or to facilitate socio-economic goals is rejected. The reconciliation of children's rights and the compulsory education of children requires that weighty, and relevant paternalistic or other moral reasons be adduced for the justification of compulsion. ;Philosophers who inquire about the rights of human children are often led to conclude that small children do not have moral rights. In many ways this conclusion is a natural outcome of posing the question of the rights of children from a point of view which in effect "fragments" their lives. I claim that this particular fragmentation is artificial; that given the known historical and psychological continuity of human beings as adults and as children we may non-arbitrarily pose the question about their rights from a "whole" individual perspective instead. The resultant unified view of the rights of human beings as children and as adults is theoretically attractive and can be defended against several important objections. Without assuming the so-called "potentiality principle", the unified view defended assigns "adult" rights to children and "children's" rights to adults. Interference with the liberties of children becomes justifiable only where paternalistic or other morally weighty reasons can be given. More extensive "parental paternalism" is unjustifiable. ;I maintain that the theory of rights figures importantly in defensible moral theories. The notion that all rights are justified by appeal to ideals of freedom or distributive justice is rejected. It is urged that rights to well-being also be recognized as rights in their own right. I sketch a consequentialist moral theory which takes rights to well-being, along with rights of liberty and special rights, to be ultimately justifiable by appeal to the general and moral requirement to promote the well-being of moral patients. All rights, I claim, are analyzable as moral entitlements whose practical meaning can be explained by reference to the prima facie obligations they imply. ;This dissertation centers around three related questions. Do children have moral rights? If so, is a right to education one of them? May their education by compulsory? The answers offered to these questions are held together by a certain theoretical understanding of rights, and a certain philosophical view about how to pose questions of children's rights. (shrink)