Miscellaneous Rights

In an increasingly inward-looking world governed by populist governments, existing theories of rights are struggling to protect and expand individual rights. This failure can be attributed both to the present conception of rights as well as the absence of a unifying theme to address the existence and conflict of rights. In the present paper I argue that this unifying theme, which is necessary for protection and expansion of individual rights, is provided by “meaning” in an existential and linguistic sense. I (...) assert that the greatest challenge faced by individual rights is in form of a faceless populist doctrine called “public interest.” As long as the issue of conflict of rights will be addressed in a numerical manner, individual rights will stand defeated. We need to come up with a new model for resolution of conflict of rights, which does not examine right holders as integers but as human beings. This paper, which is a continuation of my previous effort on the subject, elaborates upon the existential role of rights and seeks to construct an inviolable nucleus of rights by examining the essence and core meaning of rights. The paper’s final contribution lies in developing a semantical framework for resolution of conflict of rights. (shrink)

Do territorial rights include the right to exclude? This claim is often assumed to be true in territorial rights theory. And if this claim is justified, a state may have a prima facie right to unil...

There is widespread agreement that the most serious and debilitating contemporary social problem in the developed capitalist world is the problem of enforced or involuntary unemployment. The growth in mass unemployment in the 1970s and 80s has produced a renewal of the demand by the labour and trade union movement1 for the implementation of a ‘right to work’; presumably in the belief that the official recognition and legal enforcement of such a right would lead to the increased availability of jobs. (...) This campaigning slogan has sometimes emanated from the most unlikely sources. In his introduction to a published account of the 1971 Upper Clyde Shipbuilders occupation and work-in, entitledThe Right to Work, Mr Harold Wilson (then, significantly, in opposition) declared that ‘what the men of the Clyde proclaimed, and what I went to Clydeside to assert, was “the right to work”. And that principle cannot, and must not, be denied.’. (shrink)

In the emerging literature on judgment aggregation over logically connected proposi- tions, expert rights or liberal rights have not been investigated yet. A group making collective judgments may assign individual members or subgroups with expert know- ledge on, or particularly affected by, certain propositions the right to determine the collective judgment on those propositions. We identify a problem that generalizes Sen's 'liberal paradox'. Under plausible conditions, the assignment of rights to two or more individuals or subgroups is inconsistent with the (...) unanimity principle, whereby unanimously accepted propositions are collectively accepted. The inconsistency can be avoided if individual judgments or rights satisfy special conditions. (shrink)

The paper argues that the liberal approach to social rights is contradictory and provides an alternative account that draws on solidarism, a strand of nineteenth-century French Republican thought. Solidarism links together a normative theory of social obligation and a descriptive account of social value, debt and unearned increment. The theory of social property provides a distinctive foundation for social rights.

One core question in contemporary political economy is whether economic liberties should be constitutionally protected as basic rights. In this article I do not provide a positive argument for the view that economic liberties are basic rights. Rather, I seek to provide a reason for not embracing the opposing view, i.e. that economic liberties should not be constitutionally protected as basic rights. Based on Hayek’s theory of price as signal, I argue that price control, a view usually associated with high (...) liberals, and sometimes endorsed by moderate welfarists, is environmentally sub-optimal. (shrink)

This essay attempts to elaborate a political theory of capital’s violence. Recent analyses have adopted Karl Marx’s notion of the “primitive accumulation of capital” for investigating the forcible methods by which the conditions of capital accumulation are reproduced in the present. I argue that the current scholarship is limited by a certain functionalism in its theorization of ongoing primitive accumulation. The analytic function accorded to primitive accumulation, I contend, can be better performed by the concepts of “capital-positing violence” and “capital-preserving (...) violence.” In coining these new concepts, I first refine the conceptual core of primitive accumulation as the coercive capitalization of social relations of reproduction, which falls into sharpest relief in the violent history of colonial capitalism. I then elucidate this conceptual core with reference to Carl Schmitt’s account of European colonial expansion and Walter Benjamin’s reflections on law-making and law-preserving violence. The resultant concepts of capital-positing and capital-preserving violence, I conclude, can illuminate both the historical and the quotidian operations of the politico-juridical force that has been constitutive of capitalism down to our present moment. (shrink)

Despite being neighbouring countries, Bolivia and Argentina appear to be a world apart in terms of economics, international relations, and women’s rights. Historically, women’s rights have been fairly similar in both countries, but while one country seemingly made “progress,” the other country appeared to be stagnating. By exploring violence against women, and the current state of contraception and abortion laws it becomes apparent that “progress” does not necessarily bring about social change.

What, if anything, is problematic about gentrification? This article addresses this question from the perspective of normative political theory. We argue that gentrification is problematic insofar as it involves a violation of city-dwellers’ occupancy rights. We distinguish these rights from other forms of territorial rights and discuss the different implications of the argument for urban governance. If we agree on the ultimate importance of being able to pursue one’s located life plans, the argument goes, we must also agree on limiting (...) the impact of gentrification on peoples’ lives. Limiting gentrification’s impact, however, does not entail halting processes of gentrification once and for all. (shrink)

The democratic boundary problem raises the question of who has democratic participation rights in a given polity and why. One possible solution to this problem is the all-affected principle, according to which a polity ought to enfranchise all persons whose interests are affected by the polity’s decisions in a morally significant way. While AAP offers a plausible principle of democratic enfranchisement, its supporters have so far not paid sufficient attention to economic participation rights. I argue that if one commits oneself (...) to AAP, one must also commit oneself to the view that political participation rights are not necessarily the only, and not necessarily the best, way to protect morally weighty interests. I also argue that economic participation rights raise important worries about democratic accountability, which is why their exercise must be constrained by a number of moral duties. (shrink)

AIDS and the Politician’s Right to Privacy.

Alan Patten’s Equal Recognition offers a new and powerful argument to support the ‘strong cultural rights thesis’. Unlike other culturalist arguments, his argument is not based on a problematic and essentialist conception of culture but on a particular understanding of liberal neutrality as fair treatment and equal recognition. What justifies the existence of such rights is not culture itself but what culture means for people and the negative consequences it can have for them when they form a cultural minority. Patten’s (...) argument, however, faces another challenge: I argue that culture and neutrality cannot be fully reconciled, and that, ultimately, the concept of culture might not be playing any significant role in his argument for minority rights. (shrink)

This piece discusses the account of contested territories and of corrective justice Moore offers in A Political Theory of Territory. In Chapter 6, Moore offers an occupancy account of boundary-drawing. My discussion focuses on the status of Moore's occupancy account compared to the statist and nationalist accounts it aims to replace. Specifically, I consider whether these other accounts are as unsuccessful as Moore suggests, and whether Moore's account is as distinct from these accounts as she suggests. In Chapter 7, Moore (...) offers a distinction between three different types of rights violations involved in the unjust taking of territory, and considers potential remedies for each. My discussion focuses on the arguments Moore offers to justify the presence or absence of certain remedies, in particular the right of return and the redistribution of land. I conclude that the territorial claims of historically wronged groups are too quickly dismissed, and I suggest that this is problematic from the point of view of Moore's own account. (shrink)

The publication in 1869 of Mill’s Subjection of Women gave rise to philosophical and political responses beyond Western Europe on the relationship between Westernization and women’s rights in developing, colonial, and post-colonial countries. Through the first comparative study of the Subjection of Women alongside the forewords to six of its earliest non–Western European editions, we explore how this book provoked local intellectuals in Russia, Chile, and India to engage its liberal utilitarian, imperial, Orientalist, and feminist ideas. By showing how Mill’s (...) Western European biases and instrumental reasoning establish problematic rhetorical models for women’s rights arguments, we are able to explore the ethical dimensions of women’s rights issues in the context of cultural and political imperialism. Most importantly, this reception history illustrates how cross-cultural and culturally sensitive dialogue on women’s rights can push us beyond Western bias and imperialism in advocating for the end of women’s subjection around the globe. (shrink)

At the end of the most violent century in human history, it is good to take stock of our commitments to human and other life forms, as well as to examine the rights and the duties that might flow from their biological makeup. Professor Thomasma and Professor Loewy have held a long-standing dialogue on whether there are moral differences between animals and humans. This dialogue was occasioned by a presentation Thomasma made some years ago at Loewy's invitation at the University (...) of Illinois, Peoria, Medical Center. During that presentation, Thomasma argued that human beings are sufficiently distinct from other animals genetically and otherwise to justify a moral difference in rights and obligations. In effect, he argued that there are species-specific rights. This essay will pick up the threads of that dialogue. (shrink)

Despite recommendations from the Cartwright Report ethical review by health ethics committees has continued in New Zealand without health practitioners ever having to acknowledge their dual roles as health practitioners researching their own patients. On the other hand, universities explicitly identify doctor/research-patient relations as potentially raising conflict of role issues. This stems from the acknowledgement within the university sector itself that lecturer/research-student relations are fraught with such conflicts. Although similar unequal relationships are seen to exist between health researchers and their (...) patients, the patient/subjects are not afforded the levels of protection that are afforded student/subjects. In this paper we argue that the difference between universities and health research is a result of the failure of the Operational Standard Code for Ethics Committees to explicitly acknowledge the vulnerability of the patient and conflict of interests in the dual roles of health practitioner/researcher. We end the paper recommending the Ministry of Health consider the rewriting of the Operational Standard Code for Ethics Committees, in particular in the rewriting of section 26 of the Operational Standard Code for Ethics Committees. We also identify the value of comparative ethical review and suggest the New Zealand's Health Research Council's trilateral relationship with Australia's NHMRC (National Health and Medical Research Council) and Canada's CIHR (Canadian Institute of Health Research) as a useful starting point for such a process. (shrink)

Although justification and implementation of human rights are typically dealt with as separate issues, the lines between them become particularly opaque when dealing with contested rights claims, particularly those made by immigrant groups. The relevant lessons from Europe seem to indicate that in these sorts of cases, questions of justification can become embedded in deliberative practices that lead to their greater institutional entrenchment. The heterogeneity of deliberative practices out of diverse Member State administrative contexts can be turned into an epistemic (...) virtue when including additional perspectives that increase the likelihood of avoiding error and alleviating bias. With a focus on immigrant rights in the EU, I first give a stylized rendition of the shortcomings of three views—post-national rights theorists, liberal nationalists, and cosmopolitans. In contrast, experimentalists highlight the democratic potential of realizing rights on a pragmatic model of the Open Method of Coordination that better responds to regional problems not necessarily tied to a single site of sovereignty. Since immigrants in the EU are party to multiple overlapping political communities, the democratic justification of rights in contested cases can be directly tied to this novel institutional implementation, forging a modified social imaginary in the process for all affected actors. (shrink)

The Endangered Species Act of 1973 (ESA) is America's strongest environmental law. Its citizen-suit provision—permitting “any person” whomsoever to sue on behalf of a threatened or endangered species—awards implicit intrinsic value, de facto standing, and operational legal rights (sensu Christopher D. Stone) to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 (Palila v. Hawaii Dept. of Land & Natural Resources) and 2004 (Cetacean Community v. Bush), when the (...) Ninth Circuit Court of Appeals ruled that animals could not sue in their own name. Because the Supreme Court has interpreted its habitat destruction as the “taking” of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a “regulatory taking” of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases (culminating with Bennett v. Spear) reconciles the ESA's citizen-suit provision with the particularized and concrete “injury-in-fact” standing requirements devolved from Article III. (shrink)

The principal object of Ihis essay is to elucidate some of the story of how a theory that was so entrenched in the minds of intellectuals, namely, natural rights theory, fell so out of favor. This is the story of how the terror, fear, and destruction that became part of the French Revolution was laid at the feet of natural rights theory by three powerful figures: Burke, Bentham, and Hegel. It was these three figures, more than any others, who were (...) responsible for the demise of natural rights theory in the nineteenth century; and their respective criticisms of natural rights theory were made under the omnipresent shadow of, and in response to, the French Revolulion. (shrink)

A reciprocity framework is presented as an analysis of morality, and to explain and justify the attribution of moral rights and duties. To say an entity has rights makes sense only if that entity can fulfill reciprocal duties, i.e., can act as a moral agent. To be a moral agent an entity must (1) be self-conscious, (2) understand general principles, (3) have free will, (4) understand the given principles, (5) be physicallycapable of acting, and (6) intend to act according to (...) or against the given principles. This framework is foundational both to empirical and supernatural positions which distinguish a human milieu, which is moral, from a nonhuman milieu, which is not. It also provides a basis for evaluating four standard arguments for the rights ofnonhuman animals and nature-the ecological, the prudential, the sentimental, and the contractual. If reciprocity is taken as being central to the general concepts of rights and duties, then few animals, and no natural objects or natural systems, have rights and duties in an intrinsic or primary sense, although they may be assigned them in an extrinsic or secondary sense as a convenience in connection with human interests. Nevertheless, there are some animals besides humans - e.g., especially chimpanzees, gorillas, dolphins, and dogs - which, in accordance with good behavioral evidence, are moral entities, and sometimes moral agents. On the grounds of reciprocity, they merit, at aminimum, intrinsic or primary rights to life and to relief from unnecessary suffering. (shrink)

The simple principle of individual liberty evidently does identify particular rights as rights which ought to be recognised and enforced by the laws and customs of every civil society, namely, the rights of self-regarding liberty and individuality. If sex between consenting adults is purely self-regarding conduct under some conditions, for instance, then adults should have a right to spontaneously engage in sex under those conditions if they wish.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Animal Part: Human and Other Animals in the Poetic ImaginationNancy WormanMark Payne. The Animal Part: Human and Other Animals in the Poetic Imagination. Chicago: The University of Chicago Press, 2010. ix + 164 pp. Cloth, $35.Mark Payne’s elegant and unusual book addresses an elusive topic: human perceptions of animal consciousness. Focusing largely on literary artists’ senses of other animals, Payne initially approaches the conundrum of how these (...) artists devise ways to bridge this gap from a broad but distinctly personal perspective. He takes the reader with him out into a natural setting, complete with details such as the beers he drank in the evening and the driftwood on which he hung his clothes to swim, and puzzles over how we as humans make meaning from and with animals. Payne’s personally imbedded starting point grounds his insistence from the outset that we share certain aspects of our behaviors with animals and that we may even through particular experience countenance something of what might be called the animal perspective. To put it this way, however, somehow reduces the attentive grace with which Payne navigates such profound topics; while his concerns are essentially existential he is also after the delicate distinctions among phenomena that open out onto animal being, the diversities of which certain types of literary expression seek to capture.The book is divided into two sections of two chapters each, running from tropes and inhabitations of the “beast in pain” to articulations of human-animal experiences (embraced as “becoming something else”). Payne begins his exploration of how poets take account of animal lives by addressing their use of bestial otherness to capture abject and aggressive outsider experiences. As Payne demonstrates, the archaic poet Archilochus flashes his brilliant and disturbing poetic control of animal subjectivity as a means of antagonistic warning to his enemies and other iambic targets. Hipponax in contrast appears to offer up more fully inhabited images of the dog when he is down—that is, the scapegoat, the quintessential figure of abjection, the human reduced to animal status and rejected by the community of men. Hipponax is also the inventor of the iambic meter that famously “limped,” a deformity of rhythm that interested the modern American poet William Carlos Williams. In a wonderfully rich and responsive discussion, Payne shows how in his long (and last) poem, Patterson, Williams shapes his subjectivity as a “dog poet” by means of a similar inhabitation of the deformed or lowly animal, whose perspective is then celebrated as more attuned to the songs close to the ground: the sounds of the river’s run, the very local details attended [End Page 696] to by bug or snail. Here Payne claims that Williams’ “biopoetics” “keeps an ear open for the lameness of Hipponax’s choliamb in its efforts to communicate the experience of physical impediment by formal means” (48). He reveals the details of this formal engagement by tracking Williams’ use of triadic structures to capture human-animal incapacities and the vulnerabilities of imaginative work.The second discussion in this section takes on violent rejections of the continuities of human-animal experiences, which Payne likens to the myth of Satan because of the narcissistic hatred of other life forms that is central to its dynamics. This “destructivism” (a term Payne borrows from the American poet Susan Howe) originates in a sense of homelessness in the world and results in a groundless need to kill other animals, as well as in the fetishization of the artificial and inorganic. Payne’s poetic sources run from Milton to Flaubert, in whose descriptions of these lost killers he locates metonymies of this turn to artificiality. While there is something mildly disturbing in the apparently uncritical ways in which Payne represents this murderous perspective—so that, for instance, Symbolist aesthetics become consonant with its “biocide”—he captures effectively the dark fascination of this rejection of so much that is living. Against the human tendency to mass decimation of other life forms Payne sets the imagination’s attention to the “thisness” of individual things and beings. Gerard Manley Hopkins and, perhaps more surprisingly, Ezra Pound provide for Payne examples of modern poets who unfold... (shrink)

The hermeneutic anthropology of human rights is a possible anthropology before human rights. It does not aim at a deductive demonstration of the validity of human rights, but it delivers a hermeneutic justification of them by taking into account the a priori link of self-understanding with living body. Three aspects are most relevant in this case: a) The human person not only exists, but also has a value which is recognized within the shared world of persons. The embodied presence of (...) persons is affirmed beyond pure facticity through the meta-grammatical terms " I ", "you" and "we". This mutual affirmation as an act of freedom indicates the primordial value of dignity, b) The human person has to arrange its uncertainty as a living being. It has to prevail over nature, in order to create an order of life. This consciousness of being able to act is the source of power. Nevertheless, power is produced as a kind of surplus through social interaction. The tension between power and recognition is always renewed and remains an open question for society, c) Human rights introduce moral demands on power. They define the political order of the society in such a way that the citizens can carry out their plan of life. Furthermore, they preserve the awareness of the limits, since human dignity indicates that the embodied presence of the human person and its world-character should not be defined apart from freedom and recognition. (shrink)

Bastiat claims that the individual rights to life, liberty, and property are natural rights. Further, he claims that these natural rights are a matter of natural law and are not mere conventions. However, he never offers a detailed account of the connection between natural law and natural rights. By outlining a neo-Aristotelian theory of natural law that consists of two poles—an individualized vision of human flourishing and a conception of individual rights as metanormative principles—it is argued that Bastiat’s core insight (...) is correct. Individual rights are the proper political expression of a natural law approach to ethics. They determine the ultimate purpose of human law.Bastiat affirme que les droits individuels à la vie, à la liberté et à la propriété sont des droits naturels. De plus, il envisage ces droits naturels comme relevant du Droit Naturel plutôt qu’étant de simples conventions. Cependant, il n’offre nulle part une explication détaillée des liens entre le Droit Naturel et les droits naturels. En mettant en avant une théorie néo-aristotélicienne du Droit Naturel composée de deux pôles — une version individualisée de l’épanouissement humain et une conception des droits individuels en tant que principes métanormatifs — cet article soutient que l’idée centrale de Bastiat est juste. Les droits individuels sont l’expression politique adéquate d’une approche de l’éthique en termes de Droit Naturel. Ils déterminent la finalité ultime de la loi humaine. (shrink)

Recent theories of territorial rights could be characterized by their growing attention to environmental concerns and resource rights (understood as the rights of jurisdiction and/or ownership over natural resources). Here I examine two: Avery Kolers’s theory of ethnogeographical plenitude, and Cara Nine’s theory of legitimate political authority over people and resources. While Kolers is a pioneer in demanding ecological sustainability as a minimum requirement for any viable theory of territorial rights – building a bridge between environmental and political philosophy – (...) Nine highlights a crucial distinction when looking at territorial rights from a global justice perspective, namely that between jurisdictional powers and ownership rights over resources. Daring and innovative at first glance, I claim that both theories present, however, deep ambiguities and retreat from their radical implications which, if taken seriously, would lead to a massive redrawing of current territorial borders. (shrink)