Foundations of Rights

Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk of punishment grounds rights to an (...) institutionalized system of punishment. Second, to complement and extend the first ground, I more controversially propose a right to provision of the robust good of security. People have a right to others' protecting for avoiding wrongfully harming them: when I take an action that is reasonably expected to threaten the protected interests of others, I must take appropriate care to avoid setting back those interests. Inflicting punishment on someone--intentionally harming them in response to a violation--is prima facie wrongful, so I can only count as taking appropriate care in punishing when I follow familiar procedures that reliably and redundantly test whether they are liable to such punishment, i.e. whether they have forfeited their right against punishment through a culpable act. (shrink)

Americans today are far less likely to trust their institutions, and each other, than in decades past. This collapse in social and political trust arguably fuels our increasingly ferocious ideological conflicts and hardened partisanship. Many believe that our previously high levels of trust and bipartisanship were a pleasant anomaly and that we now live under the historic norm. Seen this way, politics itself is nothing more than a power struggle between groups with irreconcilable aims: contemporary American politics is war because (...) political life as such is war. -/- Must Politics Be War? argues that our shared liberal democratic institutions have the unique capacity to sustain social and political trust between diverse persons. In succinct, convincing prose, Kevin Vallier argues that constitutional rights and democratic governance prevent any one ideology or faith from dominating all others, thereby protecting each person's freedom to live according to her values and principles. Illiberal arrangements, where one group's ideology or faith reigns, turn those who disagree into unwilling subversives, persons with little reason to trust their regime or to be trustworthy in obeying it. Liberal arrangements, in contrast, incentivize trust and trustworthiness because they allow people with diverse and divergent ends to act with conviction. Those with opposing viewpoints become trustworthy because they can obey the rules of their society without acting against their ideals. Therefore, as Vallier illuminates, a liberal society is one at moral peace with a politics that is not war. (shrink)

Performative accounts of personhood argue that group agents are persons, fit to be held responsible within the social sphere. Nonetheless, these accounts want to retain a moral distinction between group and individual persons. That: Group-persons can be responsible for their actions qua persons, but that group-persons might nonetheless not have rights equivalent to those of human persons. I present an argument which makes sense of this disanalogy, without recourse to normative claims or additional ontological commitments. I instead ground rights in (...) the different relations in which performative persons stand in relation to one another. (shrink)

Critiquer la Déclaration universelle des droits de l’homme du 10 décembre 1948 paraît relever de la provocation ou de l’inconscience. Ses contempteurs, qu’il s’agisse des marxistes ou des conservateurs, se sont déconsidérés. Nonobstant, c’est avec force courage que Hayek s’est attelé dès 1966 à une critique en règle de cette déclaration “constructiviste” dont l’objectif impossible était de fusionner les droits de la tradition libérale avec ceux de la conception marxiste. Le Prix Nobel démontre que les nouveaux droits ainsi proclamés ne (...) peuvent être traduits dans des lois contraignantes sans détruire incontinent l’ordre de liberté auquel tendent les droits “traditionnels” : la Déclaration constitue l’un de ces instruments qui oeuvrent à la dévalorisation du Droit et partant à la destruction de la Liberté. C’est par son prestige et par l’ignorance de ceux qui l’ont exploité que ce texte a pu prospérer. Son seul mérite est de mériter l’oubli.It might seem provocative or inconsistent to criticize the Universal Declaration of Human Rights of December 10, 1948. Its detractors, whether they be Marxists or Conservatives have fallen into discredit. Notwithstanding, Hayek has courageously tried to criticize this “constructivist” piece whose impossible goal was to unite rights in the liberal tradition with those pertaining to the Marxist conception. Hayek shows that the new rights which are proclaimed in this fashion cannot be translated into juridical constraints without destroying forthwith the liberal order cherished by “traditional” rights: the Universal Declaration of Human Rights is one of the tools which enhances the depreciation of Law and, by the way, the annihilation of Freedom. This text has flourished thanks to its prestige and to the ignorance of those who have employed it. Its unique merit is to deserve oblivion. (shrink)

I argue that individuals may be as problematic political agents as groups are. In doing so, I draw on theory from economics, philosophy, and computer science and evidence from psychology, neuroscience, and biology. If successful, this argument undermines agency-based justifications for embracing strong notions of individual rights while rejecting the possibility of similar rights for groups. For concreteness, I critique these mistaken views by rebutting arguments given by Chandran Kukathas in his article `Are There Any Cultural Rights?' that groups lack (...) the temporal coherence, political independence, and indivisibility of individuals. I also show how formal critiques of group agency from social science can be applied as reasonably to individuals as groups. Because these symmetries between groups and individuals undermine common implicit assumptions in political philosophy, I argue that they may have broader implications for liberal political theory, as they emphasize the importance of intrapersonal justice. (shrink)

To understand the Muslim world it is essential to see it in a transnational context that is informed by its heterogeneity, power contestations, and continuous change. To understand human rights' foundations and origins it is essential to grapple with its legal, political, normative, and institutional groundings, and bear in mind its ongoing reconfigurations and global impacts. Each of these tasks is illustrated by how movements for the rights of women and sexual minorities have come to impact on the transnational Muslim (...) world and international human rights. This article explores each element within these complementary themes as a way of framing how and why the international human rights regime increasingly intersects with the Muslim world in a way that underpins challenges to authoritarian politics and the monolithic constructs of politics and society on which authoritarianism thrives. (shrink)

With the positively ending Elektra, Sophocles wanted to show the audience how political and moral independence, judgment and the courage to act are necessary - to a sometimes extreme extent - for the good of the family and the state. Even in the old democracy, virtue - which for Hegel was a principle of democracy - was not enough on its own. The downfall of democracy was probably due to a lack of individuality rather than the emergence of that individuality. (...) We find the negative result of Hegel's general assessment of the contribution of an individual to democracy not only in relation to ancient democracy. In a similar sense he expresses himself about contemporary conditions. In the Reform Bill article he describes how a French voter makes up a ninety-millionth part of the legislative power and will therefore pay little attention to his contribution to the general public. Although the Athenian democracy was smaller and different from the French one, its citizens probably needed proof of the need for individual participation in it too. Sophocles' Electra served this purpose. How Elektra and Orestes re-paved the way for an essential institution of democracy, the court of justice, will not have escaped the onlookers' attention. In this play it was shown that individuality could have negative as well as positive consequences. After all, it was only through the appearance of Electra and Orestes that justice could be saved and become a public matter again. (shrink)

In “The Meaning of Rights,” Norman Wilde offers an original account of rights, still of interest. Rights, he contends, are possessed by an individual by virtue of the social function she fulfills. It is because individuals belong to a common social order, in which each has her part to play, that they are “entitled to the conditions necessary for playing it” [288]. This approach allows for a nuanced view, according to which rights are neither absolutely inherent to the individual nor (...) entirely dependent on social conventions. But is such a function-based justification of rights plausible? (shrink)

The aim of the dissertation is to determine the basis of, and thus to justify, children's rights to education. ;The dissertation surveys and exposes the failings of a variety of arguments purporting to justify children's rights. Several of these arguments fail for a common reason. They conceive a threshold of personhood, a developmental boundary signifying the acquisition of a special moral standing. On this view, the purpose of education is to bring children across the threshold, to form them into persons. (...) But if individuals acquire rights in virtue of crossing the threshold, and children start out below the threshold, then how can we explain how children have rights to be brought across it? The problem arises because this standard conception naively assumes that being a person is an all-or-nothing matter. ;The dissertation denies this assumption and reconceives the problem. It argues that: personhood is an achievement, but it is achieved incrementally; the concept of personhood as normally employed refers to a large array of capacities, each of which has moral significance; although normal adults tend to have all of these capacities, children do not; but children might have some; thus, the question to ask is not, "Are children persons?" but rather, "Do children have any characteristics that can serve as the basis of educational rights?" ;The answer presented involves the following claims: Young children have current rights in virtue of their sentience. As child-rearers respect these rights and care for children, children unavoidably develop capacities that entitle individuals to personhood rights. If they will have such capacities, then they will have personhood rights. And children can have rights in advance to have those future rights protected. ;The dissertation concludes by outlining constraints on how child-rearers may restrict children's freedom. (shrink)

A comprehensive account of justice grounded on salient Afro-communitarian values, the article attempts to unify views about the distribution of economic resources, the protection of human rights and the provision of social recognition as ultimately being about proper ways to value loving relationships.

In this paper the concept of a?human right? is analysed and clarified. Some justifications for human rights? such as natural rights theory, contractarianism, utilitarianism and rights as vital interests? are explored with respect to their emphasis on rights as protected choices or protected interests. Finally, a vital interests view is defended in which the rights to subsistence, security, and liberty of movement and political participation form the set of our basic rights without which we cannot enjoy our other rights.

This book is the first in-depth attempt to provide a moral assessment of the heart of the modern human rights enterprise: the system of international legal human rights.

The title of the following essay echoes one of Bobbio’s most famous books, and emphasizes one of its main issues: that of providing a “foundation” for the idea of rights. This essay summarizes what Bobbio means by “the age of rights” and presents his principal criticisms of any supposedly “absolute foundation” for rights. In exploring the notion of an age of rights without foundations Bobbio raised a number of crucial issues that effectively anticipated the contemporary debate around problems concerning the (...) historical transformation of rights and the origin of these rights in specific social processes, the deontological status of rights and the connection between rights and duties, the contrast between universalism and relativism, the relationship between different “generations of rights” and social rights, and the international protection of rights in relation to the idea of “institutional pacificism.” To pursue further reflection and enquiry along these lines would be a way of remaining faithful to the spirit of Bobbio’s teaching. But in order to do so it would also be necessary to question some of the methodological assumptions of Bobbio’s work: normativism in the area of jurisprudence, neopositivism in the field of epistemology, and the analytical approach in the history of ideas. (shrink)

This paper offers a critical analysis of two central issues in Luigi Ferrajoli’s Principia iuris , and more generally of his theory of rights. One is the way in which ‘expectations’ play a crucial role in his deontic theory by establishing the logical basis for his guarantee-based conception of law and rights. The axiomatic way in which Ferrajoli arrives at his conception of fundamental rights is questioned, for it fails to give a full account of the nature of subjective rights. (...) The other issues discussed here is Ferrajoli’s own defence of the universality of fundamental rights, and how this is made to depend on a ‘normative technique’ that one can associate with legal discourse and modern law in Western societies. This, however, poses the problem of how this formal universalism can be reconciled with the intercultural dialogue that Ferrajoli also advocates. (shrink)

Social Networking Services provide services in return for rights to commercialize users’ personal data. We argue that what makes this transaction permissible is not users’ autonomous consent but the provision of sufficiently valuable opportunities to exchange data for services. We argue that the value of these opportunities should be assessed for both (a) a range of users with different decision-making abilities and (b) third parties. We conclude that regulation should shift from aiming to ensure autonomous consent towards ensuring that users (...) face options that they will use to advance individual and common interests. (shrink)

International human rights law allows states to derogate some of their human rights obligations in times of public emergency. This essay attempts a normative assessment of the practice of derogation. We discuss,specifically, whether derogation is compatible with the logics and morality of rights. We notice that a major inconsistency between rights and derogation derives from the unilateral character of derogation: derogating parties are assigned a power-right to annul their own rights-based obligations. This contrasts with the idea,central to rights, that rights-based (...) obligations are owed to the right-holder. Only through consent of right-holders, we argue, can duties owed to them be modified or annulled. But whether the current practice of derogation is interpretable as a form of consent to rights infringement is highly disputable. (shrink)

If consent is valid, then in every case it is either valid or invalid. This is because of the notion that consent eliminates a right and a person either has or lacks a right against another. A parallel problem to the paradox of symmetrical attackers applies to consent. That is, there is a case in which two people neither consent nor do not consent to one another. As a practical matter, attorneys, judges, legislators, physicians, and sex partners should not treat (...) consent as morally significant, except perhaps as defeasible evidence of what makes another person’s life go better. They might still want to follow the law because there is likely a duty to follow law even when its purported justification is mistaken. (shrink)

The most prominent theories of rights, the Will Theory and the Interest Theory, notoriously fail to accommodate all and only rights-attributions that make sense to ordinary speakers. The Kind-Desire Theory, Leif Wenar’s recent contribution to the field, appears to fare better in this respect than any of its predecessors. The theory states that we attribute a right to an individual if she has a kind-based desire that a certain enforceable duty be fulfilled. A kind-based desire is a reason to want (...) something which one has simply in virtue of being a member of a certain kind. Rowan Cruft objects that this theory creates a puzzle about the relation between rights and respect. In particular, if rights are not grounded in aspects of the particular individuals whose rights they are, how can we sustain the intuitive notion that to violate a right is to disrespect the right-holder? I present a contractualist account of respect which reconciles the Kind-Desire Theory with the intuition that rights-violations are disrespectful. On this account, respect for a person is a matter of acknowledging her legitimate authority to make demands on the will and conduct of others. And I argue that kind-based desires authorize a person to make demands even if they do not correspond to that person’s well-being or other non-relational features. (shrink)

This book fills the void, making a substantial contribution not only to work on Rawls's thought but to contemporary debates in ethics and justice as well.

This paper explores the space of possibilities for public justification in morally diverse communities. Moral diversity is far more consequential than is typically appreciated, and as a result, we need to think more carefully about how our standard tools function in such environments. I argue that because of this diversity, public justification can be divorced from any claim of determinateness. Instead, we should focus our attention on procedures—in particular, what Rawls called cases of pure procedural justice. I use a modified (...) form of the procedure “I cut, you choose” to demonstrate how perspectival diversity can make what looks like a simple procedure quite complex in practice. I use this to reframe disputes between classical liberal and contemporary liberal approaches to questions of public morality, arguing that classically liberal procedures, such as a reliance on the harm principle, can generate rather illiberal-looking outcomes when used in a morally diverse community. A seemingly less-principled approach, which simply balances burdens, appears to generate outcomes that look closer to what we would expect from classical liberalism. However, since both approaches are based on pure procedures that we can justify without reference to outcomes, it remains indeterminate which we ought to choose. (shrink)

In “World Poverty and Individual Freedom”, I argue that the global order—because it is coercive—is obligated to do what it can to ensure that its subjects are capable of autonomously agreeing to its rule. This requires helping them meet their basic needs. In “World Poverty and Not Respecting Individual Freedom Enough,” Jorn Sonderholm asserts that this argument is invalid and unsound, in part, because it is too demanding. This article explains why Sonderholm’s critique is mistaken and misses the main point (...) of WPIF’s argument. It also explains why WPIF is important—it can address some of those most resistant to significant obligations of global justice—libertarians, actual consent theorists, and statists. (shrink)

The title of this special topic in RMM is borrowed from a 1978 paper of Hillel Steiner in which he argues against Robert Nozick's invisible hand conception of the emergence of the state. Steiner believes that central institutions of social order such as money and government need some form of conscious endorsement by individuals to emerge and to persist over time. -/- Tony de Jasay's critique (in Philosophy 85, 2010) of Bob Sugden's plea for a Humean version of contractarianism (see (...) RMM, Vol 0) motivated us, to take this old – but still central – theme of the debate on the origin of social order as one starting point in a new attempt to evaluate the idea of a social contract). -/- Within the 35 years since the publication of Hillel Steiner's paper different advances have been made in economics and philosophy that may well shed some new light on some of the fundamental issues in the debate about a contractarian conception of social order. These make us confident that a new attempt to explore the contractarian idea is well worthwhile. -/- Those who first motivated this project, Hillel Steiner, Anthony de Jasay, and Robert Sugden, as well as a number of other renowned scholars confirmed to contribute. The special topic will actually start with a previously unpublished paper by Hillel Steiner, originally written in 1986, in which he extends and elaborates on his argument about money from the 1978 paper, and with an original article by Anthony de Jasay, in which he further clarifies his worries. A response by Robert Sugden will follow. Further contributions will discuss the matter by reference to the roots of the debate in seventeenth and eighteenth century philosophy or to recent advancements in economics, the behavioral sciences or in social philosophy. Some of the contributions confirmed are already in a very elaborated stage and ready to be published soon. They are announced here right from the start and – for the time being – marked as 'to appear'. -/- As always, the special topic is an open ended project and further contributions will be considered; please send your submission to [email protected] (see 'How to Submit' for details). Also, readers are invited to submit shorter comments for the discussion section, which may be published after an abridged refereeing process. (shrink)

The paper is a part of the project of retrieving C.B. Macpherson’s thesis of possessive individualism and his contribution to investigations about democratic theory and the “Western political ontology” valuable especially in today’s context of expansion, crisis and – arguably – subsequent, experienced today, revival of the project of “neoliberal democracy”. The aim of my paper is to present theory of possessive individualism as the missing center of critical theory of democracy. The task is conducted through a brief reconstruction of (...) Macpherson’s investigations into the history of liberal doctrine and argumentation about the continuing validity and firmness of this approach despite its alleged “definitive refutation” in contemporary historiography of modern social and political thought. (shrink)

In this article, I argued that in contexts in which tipping is customary, there is a moral duty to tip or to explicitly tell the server that you will not be tipping. The evidence for this rests on anecdotes about people's mental states, and customers and server's intuitions about duties that would arise were a customer unable to tip his server. The promise is a speech act that is implicit in ordering food. The speech act must be matched by the (...) server's uptake, which is implicit in her taking the order. The promise argument rests on an actual promise and not a merely hypothetical promise. If there is such a duty, then in the absence of an explicit content, its content is likely set by convention. The convention is that customers tip 15–20%. Thus, customers have a duty to tip servers 15–20%. Other purported moral considerations do not ground this duty. These include custom, desirable incentives, role‐relative obligation, and gratitude. (shrink)

This paper is my last word, in the present journal, in the debate I have been having with Walter Block on the subject of evictionism as an alleged libertarian “third way,” capable of transcending the familiar “pro-life” and “pro-choice” dichotomy. In this debate, I myself defended what might be regarded as a qualified “pro-life” position, while Block consistently argued that the mother is morally allowed to expel the fetus from her womb provided that no non-lethal methods of its eviction are (...) available. While my position articulated in this paper contains an element of what Block might consider a concession on my part—i.e., an explicit declaration that abstaining from lethal evictions of fetuses conceived as a result of rape is a libertarian duty, but only an imperfect one—I continue to regard the unqualified support of evictionism as indefensible on libertarian grounds. (shrink)

The twin ideas at the heart of the social contract tradition are that persons are naturally free and equal, and that genuine political obligations must in some way be based on the consent of those obligated. The Lockean tradition has held that consent must be in the form of explicit choice; Kantian contractualism has insisted on consent as rational endorsement. In this paper I seek to bring the Kantian and Lockean contract traditions together. Kantian rational justification and actual choice are (...) complementary devices through which our freedom and equality can be reconciled with moral and political authority. We should not think that there is simply one way by which relations of moral and political authority can be reconciled with our status as free and equal. I defend three distinct devices through which freedom and authority may be reconciled: justification to others, social choice and promise. All three are aspects of the ?consent tradition? broadly construed. (shrink)

In this essay I discuss a powerful challenge to high-liberalism: the challenge presented by neoclassical liberals that the high-liberal assumptions and values imply that the full range of economic liberties are basic rights. If the claim is true, then the high-liberal road from ideals of democracy and democratic citizenship to left-liberal institutions is blocked. Indeed, in that case the high-liberal is committed to an institutional scheme more along the lines of laissez-faire capitalism than property-owning democracy. To present and discuss this (...) challenge, I let John Rawls represent the high-liberal argument that only a narrow range of economic liberties are basic rights and John Tomasi represent the neoclassical liberal argument that the full range of economic liberties are basic rights. I show that Rawls’s argument is inadequate, but also that Tomasi’s argument fails. I thus conclude that high-liberalism is in a precarious situation, but is not yet undone by the neoclassical liberal challenge. (shrink)

Epicurean contractarianism is an attempt to reconcile individualistic hedonism with a robust account of justice. The pursuit of pleasure and the requirements of justice, however, have seemed to be incompatible to many commentators, both ancient and modern. It is not clear how it is possible to reconcile hedonism with the demands of justice. Furthermore, it is not clear why, even if Epicurean contractarianism is possible, it would be necessary for Epicureans to endorse a social contract. I argue here that Epicurean (...) contractarianism is both possible and necessary once we understand Epicurean practical rationality in a new way. We are left with an appealing version of teleological, individualistic contractarianism that is significantly different from Hobbesian contractarianism. (shrink)

Is there an approach to human rights that justifies rights-allocating moral-political principles as principles that are equally acceptable by everyone to whom they apply, while grounding them in categorical, reasonably non-rejectable foundations? The paper examines Rainer Forst’s constructivist attempt to provide such an approach. I argue that his view, far from providing an alternative to “ethical” approaches, depends for its own reasonableness on a reasonably contestable conception of the good, namely, the good of constitutive discursive standing. This suggests a way (...) in which constructivism about human rights might be able to coherently and plausibly negotiate the tension between the scope, the depth and the strength of discursive inclusion: the justification of rights-allocating moral-political principles needs to be premised on an “ethical”, perfectionist defense of the good of constitutive discursive standing. (shrink)

Gauthier's version of the Lockean proviso (in Morals by Agreement) is inappropriate as the foundation for moral rights he takes it to be. This is so for a number of reasons. It lacks any proportionality test thus allowing arbitrarily severe harms to others to prevent trivial harms to oneself. It allows one to inflict any harm on another provided that if one did not do so, someone else would. And, by interpreting the notion of bettering or worsening one's position in (...) terms of subjective expected utility, it allows immoral manipulation of others and imposes unwarranted restrictions based on preferences that should carry no moral weight. (shrink)

Alan Wertheimer’s book, Consent to Sexual Relations, is an important investigation of consent to sex. The book contains many interesting and insightful arguments and does a nice job of distinguishing the considerations that are relevant to moral and legal consent. The book is both broad and narrow. It is broad in that it discusses a broad array of interesting issues, including the psychology of rapists, the types of psychological harm that rape victims suffer, the moral status and nature of consent, (...) and the conditions that make consent invalid. The book is also narrow in that it focuses on issues surrounding consent to sexual relations, rather than the broader issue of rape and other sex crimes. Wertheimer’s analysis has some defects. The first defect relates to his claim that sex to which the participants have validly consented is not immune to moral evaluation. The second defect involves Wertheimer’s model of morally valid consent. Wertheimer adopts an interest model of morally valid consent to sex whereby valid consent is the conclusion of moral argumentation about whether it’s in someone’s interest to hold that she (or the relevant class of persons) has validly consented in that type of situation. (shrink)

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal (...) responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being. (shrink)