Rights

A woman's right to know the contents of her own body, and to make a choice about whether to continue her pregnancy or not, should be defended against laws trying to stop prenatal sex selection, either in the developing world or in the developed world. Restrictions on women's reproductive freedom harm the interests of women and girls, and ignore myriad social policy solutions, such as education and income incentives to have girls and universal old age pensions, that provide better answers (...) to the strains of unbalanced sex ratios. The opponents of sex selection trumpet all accounts of increased discrimination against women resulting from unequal sex ratios while ignoring growing evidence of positive cultural change and women's empowerment fromwomen's enhanced marriage prospects. Opponents of sex selection reify a conservative heteronormative model of sexuality, gender roles and family structure, while arguing that unmarried men are social time bombs who can only be controlled by a wife. Eventually the social policy dilemma around sex selection will presumably be made moot since would-be parents will be able to use pre-conceptive technology to determine a conceptus's gender without abortion or in-vitro fertilization. But until the sex selection argument unravels before technological innovation, women's rights to control their bodies must be defended against laws banning - or requiring - prenatal ultrasound and abortion. (shrink)

Sometimes it is not one's place to blame or forgive. This phenomenon is captured under the philosophical notion of standing. However, there is an asymmetry to be explained here. One can successfully blame, even if one lacks the standing to do so. Yet, one cannot successfully forgive if one lacks the standing to do so. In this paper we explain this asymmetry. We argue that a complete explanation depends upon not only a difference in the natures of the standing to (...) blame and forgive, but also a difference in the nature of blame and forgiveness themselves. (shrink)

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

Detendo-se na questão "Como nasceu o Estado?", segundo a perspectiva historicista de Aristóteles e o conceito de "animal político", o Prof. Luiz Carlos Mariano Da Rosa estabelece uma relação envolvendo o racionalismo de Hobbes, que aborda o problema "Por que existe o Estado?" e identifica o ser humano como naturalmente antissocial, mostrando que se o bem comum determina a visão platônico-aristotélica, a leitura hobbesiana instaura uma lógica baseada na tendência natural da autopreservação como fundamento da ação, convergindo para a transição (...) da ordem mecânica da matéria à ordem final da vontade. Dessa forma, o Prof. Luiz Carlos Mariano Da Rosa assinala que, sobrepondo-se ao ideal que circunscreve a ação política à busca do bem comum, Maquiavel recorre às exemplificações da historialidade para a descoberta de leis que possibilitem a fundação de um Estado, a obtenção do poder e a sua conservação, impondo à relação que envolve ética e política uma distinção entre a moral privada e a moral pública, o que implica uma correspondência com Weber, que identifica a política como uma relação de dominação e o exercício de duas éticas: a “ética da convicção” e a “ética da responsabilidade”. (shrink)

Trust is essential for our democracy. We trust our political leaders and institutions to put the public interest before their personal or partisan advantage. We trust each other to work and live together. No system is perfect and there is rarely one right answer to the big challenges faced, but we expect leaders to be honest, competent and compassionate – and punish any breaches harshly in the polls or the ballot box. But not any longer. Now is a time of (...) political crisis that’s fuelled by a lack of trust in government and the mainstream. This carries significant and damaging consequences for the future of our democracy fragmenting and polarising our communities. While election results from Brexit to Trump shocked political pundits on both sides of the Atlantic, the roots of an alienated and divided public who increasingly do not trust public figures to put the public interest first have root causes that run deep. The absence of trust creates a political shift akin to a new kind of revolution putting at risk our democracy’s future health. Awareness and action have never been needed more urgently. For over two decades, Thom Brooks has been a leading voice in exposing this crisis in trust and challenging its foundations. This provocative collection of new and recent reflections brings together his work as a freelance columnist and essayist covering Brexit, British values, citizenship and immigration, Scotland’s independence referendum, tackling the Covid-19 pandemic, education policy and legal reform. These essays highlight his substantial contributions to some of the leading political issues of our day. How deep is our current crisis – and what can we do about it to rebuild trust in our politicians, public institutions and each other? Brooks provides clear insights into these issues and more with his ‘realistic optimism’ for the future and why we can be the solution to our political crisis. (shrink)

Climate change confronts us with our most pressing challenges today. The global consensus is clear that human activity is mostly to blame for its harmful effects, but there is disagreement about what should be done. While no shortage of proposals from ecological footprints and the polluter pays principle to adaptation technology and economic reforms, each offers a solution – but is climate change a problem we can solve? In this provocative new book, these popular proposals for ending or overcoming the (...) threat of climate change are shown to offer no easy escape and each rest on an important mistake. Thom Brooks argues that a future environmental catastrophe is an event we can only delay or endure, but not avoid. This raises new ethical questions about how we should think about climate change. How should we reconceive sustainability without a status quo? Why is action more urgent and necessary than previously thought? What can we do to motivate and inspire hope? Many have misunderstood the kind of problem that climate change presents – as well as the daunting challenges we must face and overcome. Climate Change Ethics for an Endangered World is a critical guide on how we can better understand the fragile world around us before it is too late. This innovative book will be of great interest to students and scholars of climate change, climate justice, environmental policy and environmental ethics. "This book offers a rare combination of tough-mindedness, analytic rigor, and passion as it tackles the greatest challenge of our time―climate change. For Brooks, it’s past time to acknowledge that climate change cannot be solved though the careful selection of good polices. Climate change is an unavoidable tragedy that we must endure but may be able to survive. Offering a program that emphasizes flexibility and adaptation, Brooks brings original insights to a debate that too long has been bogged down in wishful thinking and empty scholasticism." Professor Eric Posner, Kirkland & Ellis Distinguished Service Professor of Law at the University of Chicago's Law School. (shrink)

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment (2nd edition) is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine all leading contemporary theories (...) of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology. "Lucid, fair-minded, and well-informed, Thom Brooks’ Punishment offers a superb introduction to a complex and contentious subject. Many a perplexed student will find illumination in his patient discussion of each of the leading theories. The way Brooks shows their interconnectedness and application in practice – to capital punishment, juvenile offenders, domestic violence, and the like – will interest not only students but scholars as well." ―Stuart P. Green, Distinguished Professor of Law and Nathan L. Jacobs Scholar, Rutgers School of Law "As a topic in moral and political philosophy, punishment has been jolted back to life. In the last quarter century, retribution has returned with a vengeance, both in the theoretical literature and (with a very different emphasis) in public policy. The rise of the victim as a player in the criminal justice system has also fuelled a counter-trend, placing an emphasis on redress. Human rights, privatization, globalization, the rise of the therapist, the lobbyist, the terrorist: all have affected our ways of punishing and of thinking about punishment. A new survey of the terrain is overdue. And who better to conduct it than Thom Brooks, whose grasp of the literature and feel for the issues is second to none? From the noble ideals of ‘communicative’ theory to the grim realities of children in prison: in Punishment Brooks covers it all with insight, rigour, and energy." ―John Gardner, Professor of Jurisprudence, University of Oxford "Thom Brooks has produced a valuable introduction to, and critical survey of, current theoretical approaches to punishment together with an analysis of their implications for practice. In addition, he has provided a spirited defence of a new, unified theory inspired by the British Idealists and encompassing retributive, consequentialist, and restorative elements. Written in a lucid and engaging style, the book will interest a wide range of readers – students, theorists of punishment, as well as those engaged in criminal justice policy." ―Alan Brudner, Albert Abel Professor Emeritus, Faculty of Law, University of Toronto. (shrink)

The topic of this paper is the foundation for individual rights proposed by David Gauthier in his seminal 1986 book Morals by Agreement, and particularly the role of conception of rationality in this foundation. The foundation of rights is a part of Gauthier’s broader enterprise: to ground morals in rationality – more specifically, in the economic conception of rationality. Because of the importance of this conception for the whole of Gauthier’s project, we reconstruct first the conception of rationality which can (...) be found in decision theory and game theory, presenting simultaneously in a relatively non-technical way some basic concepts of the aforementioned disciplines. We proceed then to reconstruction of the foundation of rights itself – it turns on Gauthier’s interpretation of the so-called “Lockean proviso.” Lastly, we turn to the connection between rationality and foundation of rights. It is to be found in the narrow compliance – the disposition to enter only into cooperation which satisfies conditions of fairness set out in part by the Lockean proviso. (shrink)

This chapter considers the relationship between rights of nature and ecological restoration, by sketching a rights-based approach to restoration. It begins with a discussion of ecological restoration and some of the debates involved in this practice. Next, it develops an account of the right to restoration, including the structure, basis, and duties involved in this right. Finally, it examines the ethical implications of a rights-based approach to restoration, and argues that this approach has the potential to fulfil our obligations regarding (...) the protection of nature. (shrink)

Detendo-se na transição do estado de natureza para a sociedade civil, o artigo contrapõe o caráter contingente e voluntário do contrato hobbesiano e a necessidade que implica o processo de constituição do social que determina o pacto rousseauniano, convergindo para a antinomia da relação envolvendo liberdade e autoridade. Essa, de acordo com a perspectiva de Hobbes demanda a renúncia dos direitos ilimitados dos sujeitos em função da soberania estatal e acarreta a instituição do soberano como representante, detentor de todo o (...) poder coletivo e única fonte da lei. Segundo a leitura de Rousseau requer a “alienação verdadeira” dos indivíduos em face da soberania popular e resulta na constituição do povo soberano, única fonte legítima do poder e seu único detentor, e na instituição da Vontade Geral como condição para o seu exercício. (shrink)

Investigando a desigualdade da societé civile da sua época, Rousseau, se lhe contrapondo através do Discurso sobre a origem e os fundamentos da desigualdade entre os homens, não identifica a sua emergência senão em um pacto iníquo (ilegítimo), que se impõe em função da propriedade privada e da divisão do trabalho e instaura uma organização que converge para a alienação, caracterizando-se o Contrato Social como um pacto legítimo que guarda capacidade de assegurar a constituição de uma sociedade igualitária e uma (...) ordem política baseada no interesse comum, tendo em vista a perspectiva da liberdade como condição sine qua non do homem que, se no Estado de Natureza usufrui uma independência que possibilita a autodeterminação, no âmbito civil a sua existência social demanda o desafio da construção da autonomia, o que implica na inter-relação que, envolvendo liberdade e igualdade, consiste no direito de ser homem e perfaz a verdadeira democracia -/- . (shrink)

I develop a contractualist theory of just intelligence collection based on the collective moral responsibility to deliver security to a community and use the theory to justify certain kinds of signals interception. I also consider the rights of various intelligence targets like intelligence officers, service personnel, government employees, militants, and family members of all of these groups in order to consider how targets' waivers or forfeitures might create the moral space for just surveillance. Even people who are not doing anything (...) prejudicial to other states' security can be modeled as ceding rights against diagnostic collection--light touch collection limited to ascertaining if someone is likely an intelligence threat--as part of their duty to support just foreign institutions. Foreign intelligence officers could not perform the same job potential targets can reasonably demand their intelligence agencies perform on their behalf without this ceding of rights. More invasive forms of collection can only be justified if officers can reasonably model their citizens consenting to being the target of the same sort of collection by adversary states. (shrink)

While fetal surgery—and pregnancy termination as a possible therapeutic alternative—have been examined in a number of studies, very few have addressed the issues and tensions that arise when prenat...

This paper examines the ways that feminists have built on and transformed Mary Wollstonecraft’s Enlightenment idea that women’s rights are human rights. It argues that Wollstonecraft’s marginal attention to the issue of sexual violence reflects the mind-body dualism of her era where reason divorced from the body established our dignity as persons. Today’s feminists reject this dualism. They have adopted and retooled Wollstonecraft’s idea that women’s rights are human rights to create solidarity among women of different places, races, classes, religions (...) etc., break the silence surrounding the experience and meaning of rape, and create grassroots, national and international forums that expose the fact that sexual violence is one of the crucial anchors of patriarchy. Wollstonecraft believed that human rights were guaranteed by reason and God. We find that these rights are embodied and fragile. They depend on us to make them real. Addressing this responsibility, the paper ends with a question: Are we up to the task? (shrink)

Deontologists are united in asserting that there are side-constraints on permissible action, prohibiting acts of murder, theft, infidelity, etc., even in cases where performing such acts would make things better overall from an impartial standpoint. These constraints are enshrined in the vocabulary of rights apply even when violating those constraints would lead to fewer constraint-violations overall: I am prohibited from killing an innocent even when doing so is the only way to prevent you from killing five. However, deontologists are divided (...) over whether we have a duty to violate a smaller number of rights when this is necessary to prevent ourselves from later violating a larger number of rights that are at least as stringent. I argue that individuals do have such a duty, a duty which follows from widely accepted consistency constraints on choice. (shrink)

There have been growing calls within Australia and beyond to defer medical interventions for children born with variations in their sex characteristics. These calls are increasingly grounded in the claim that such interventions when performed on infants and young children are a violation of their human rights. This paper examines the basis for this claim. It also examines the differences between the principles-based approach to medical ethics which has tended to dominant decisions regarding the treatment of children born with variations (...) in their sex characteristics, relative to the adoption of a rights-based approach. It identifies the points of complementarity between these two discourses but suggests that a rights-based approach offers some unique and differing insights into several issues concerning children born with variations in their sex characteristics. (shrink)

The administration or recognition of religious courts is a form of religious accommodation present in many constitutional states today commonly analysed in legal pluralism terms. This article contributes to the further analysis of the relationship between legal pluralism and rights in religiously diverse societies by examining the status of state religious courts and their interaction with state non-religious courts. In particular, I examine what Cover calls “jurisdictional redundancies” between the courts and conceptualize the allocation of power between religious and non-religious (...) courts as a potentially productive site of interlegality. In doing so, I support concurrent jurisdictional allocations, arguing that exclusive jurisdiction could result in what I call an interlegal gap, whereby instead of inter-penetration of norms and production of reconciliatory principles, there is a justice gap whereby litigants may find themselves unable to obtain appropriate legal recourse including when neither court is willing to assume jurisdiction over the matter. This requires us to see the relationship between religious courts and non-religious courts through the more mundane but more practical lens of jurisdictional overlaps and competition, rather than through the more abstract framing of normative or even civilizational clashes. Accordingly, I argue that concurrent jurisdiction and interlegality have greater potential to strike a balance between individual and group rights and could be more protective of religious diversity. In other words, I argue for a closer, rather than a more separate, relationship between religious and non-religious courts, while denying that a hierarchical relationship where religious courts are subordinated to non-religious courts is the only way to protect rights. (shrink)

The article presents a novel normative model of shared responsibility for remedying unjust labor conditions and protecting workers’ rights in global supply chains. While existing literature on labor governance in the globalized economy tends to focus on empirical and conceptual investigations, the article contributes to the emerging scholarship by proposing moral justifications for labor governance schemes that go beyond voluntary private regulations and include public enforcement mechanisms. Drawing on normative theories of justice and on empirical-legal research, our Labor Model of (...) Shared Responsibility introduces three main claims: First, that responsibility for protecting and promoting labor standards in global supply chains should be shared by all private and institutional actors involved in the production and distribution processes. Second, we offer a normative model for allocating responsibility among the various actors, based on five principles: connectedness, contribution, benefit, capacity, and power. Last, we demonstrate how the normative model could be implemented through various national and international institutional mechanisms. (shrink)

A goal of modern war ought to be the minimization of innocent death and injury, while at the same time maximizing the potential to decisively defeat the enemy as quickly and efficiently as is possible. As the techniques for warfighting have evolved, a growing trend of reliance on sophisticated technology has followed. Likely, autonomous systems will increasingly play a role¾lethal and non-lethal—in future wars. Much of the current debate surrounding such autonomous systems—autonomous weapons systems (AWS) to be exact— is “pre-implementational” (...) and potentially lags the political and military realities in the. Nations and non-nation state groups are actively pursuing the possibility of deploying such systems on the battlefield. The “pre-implementational” nature of these discussions risks making any one of them irrelevant as these nations continue to move ahead with development. As such, philosophers, military tacticians, political leaders, and other researchers in the field of artificial intelligence ethics must “get ahead of the curve” and examine what the battlefield and the laws of armed conflict ought to look like when—not if— such systems are deployed. Supporting this move from “pre-implementation” to “post-implementation” this paper makes a normative claim about the nature of the relationship between innocents on the battlefield and combatants, given certain pre-conditions are met. I argue that, if and only if autonomous weapon systems reach a point in their development where they are capable of being both more discriminating in their target selection and more proportionate in their response to threats, then innocents on the battlefield1 (as a social kind) have a claim-right to not be unjustly harmed against both sets of combatants, claiming that AWS be used in place of human soldiers. (shrink)

Building upon her work in Livestock, Erin McKenna's Living with Animals delivers eight chapters about animals with which human beings share their lives: chimpanzees and other primates, horses and cattle, pigs and poultry, whales and fishes, pests, and cats and canines. This new work is carefully and beautifully constructed, consistent with her long effort of developing pragmatic ecofeminism. McKenna raises our attention to the use of pragmatism to name and address compelling problems of community—which, from this perspective, is construed in (...) its broadest sense to include non-human animals. The focus in this text is on animals with which humans have evolved and upon whose welfare we continue to depend for our... (shrink)

Ancorada na teoria de Rousseau, uma pesquisa assinala que, consistindo na condição sine qua non para o exercício da soberania popular em uma construção que converge para as fronteiras que encerram a Constituição e o Estado, a Vontade Geral envolve uma possibili-dade de articulação da totalidade dos homens enquanto desejamos em sua concreticidade histórico-cultural e econômico-social, o que implica uma universalidade concreta, que advém do conjunto de vontades e fato econômico que caracterizam uma sociedade e dinâmica das relações intersubjetivas. Dessa (...) forma, fundamentalado em uma pesquisa bibliográfica, o ar-tigo dialoga com a perspectiva da teoria institucional de Castoriadis, Lapassade e Lourau, defendendo que, caracterizando-se como um processo ético-jurídico de deliberação coleti-va que implica a objetivação dos valores , necessidade e fins do povo como corpo coletivo e moral por intermédio de um movimento econômico-político que envolve os momentos que encerram o instituído, o instituinte e a institucionalização, a Vontade Geral converte o conteúdo político-social em poder de direito. Portanto, convergindo para a superação da universalidade de um Direito que encerra um "dever-ser" e uma exterioridade coercitiva que se impõe em nome do bem comum da totalidade político-jurídica e econômico-social do Estado, a pesquisa mostra que a Vontade Geral se sobrepõe à ruptura que, envolvendo uma ordem jurídica e a ordem social, caracteriza a instituição estatal sob a égide do liberalismo, possibilitando a instauração da democracia participativa. (shrink)

In my view, the moral case for giving animals legal protection is strong. This is so whether or not we think of animals as having moral rights, such as a right to be cared for, or at least a right not to be harmed, because even if animals do not have moral rights, humans have moral duties toward animals, such as a general duty not to harm animals, say, by performing experiments on them, or raising them for food, or having (...) them perform tricks to amuse tourists. The question I wish to consider in this article, however, is not what moral rights animals have, or even what our moral duties to animals are, but whether we have reason to think of animal law not only as imposing legal duties on humans, but also as conferring legal rights on animals. This is not a moral question, but a question about how to conceptualize legal positions, and the arguments in favor of or against competing conceptualizations should be of a theoretical nature. Although the focus of legal scholars is only rarely on conceptual questions, such questions are nevertheless important. For having a reasonably thought-out view of the structure, content, and applicability of relevant legal concepts will be conducive to clear legal thinking, and clear legal thinking in turn is conducive not only to correct legal thinking, but also to efficiency. I shall argue that while there are good moral reasons to impose legal duties on humans regarding the treatment of animals, there are good theoretical reasons not to think of animals as legal right-holders, because doing so would either be pointless, on the interest-theory analysis, or else incoherent, on the will-theory analysis. On route to this conclusion, I shall also argue that in the field of law, the method of explication is in many cases, including the elucidation of the concept of a legal right, preferable to conceptual analysis, strictly conceived; that we should think of legal rights as complexes of Hohfeld-elements and distinguish accordingly between claim-rights, liberty-rights, power-rights, and immunity-rights; that when discussing animal rights we should focus on claim-rights; and, finally, that an explication of the concept of a legal right along the lines of the will-theory of legal rights is preferable to an explication along the lines of the interest-theory. (shrink)

As a member of the New York State Task Force on Life and the Law and the author of Rights Come to Mind: Brain Injury, Ethics and the Struggle for Consciousness, the author draws upon his work as a clinical ethicist during the COVID-19 Spring surge in New York to analyze the impact of ventilator allocation guidelines proposed by the Task Force on people with disorders of consciousness. While a non-discriminatory methodology was intended by the Task Force, the author concludes (...) that the guidelines would have discriminated against people with disorders of consciousness had they been promulgated. This was due to errors in exclusion criteria, the utilization of the Sequential Organ Failure Assessment score, and the Glasgow Coma Scale which assesses motor output and not consciousness. While allocation and triage decisions may be neccessary during a pandemic, the ethical integrity of these determinations depend upon proper metrics. (shrink)

Legal animal rights may, in the short term, offer an efficient means to improve the living conditions of animals and how they are treated by human societies. This article argues that this shift to adopt an animal rights framing of the human-animal interaction might also risk producing certain counterproductive effects. It suggests that there is a need for a broader reassessment of the relationships between the human and animal worlds. This article posits that the adoption of legal animal rights as (...) a workable legal solution for the better protection of animals has been increasingly accepted because rights frameworks rely upon a core premise of Western jurisprudence, namely legal subjectivism and the epistemological and axiological assumptions it conveys. The article argues that such an individualistic and dualist approach to legal animal rights will ultimately reveal itself to be insufficient and unable to capture animals as members of concrete social and environmental entanglements. Rather, a true legal revolution is required, which would evoke an ecological understanding of law itself. (shrink)

Policymakers need to start considering the impact smart connected toys have on children. Equipped with sensors, data processing capacities, and connectivity, SCTs targeting children increasingly penetrate pervasively personal environments. The network of SCTs forms the Internet of Toys and often increases children's engagement and playtime experience. Unfortunately, this young part of the population and, most of the time, their parents are often unaware of SCTs’ far-reaching capacities and limitations. The capabilities and constraints of SCTs create severe side effects at the (...) technical, individual, and societal level. These side effects are often unforeseeable and unexpected. They arise from the technology's use and the interconnected nature of the IoToys, without necessarily involving malevolence from their creators. Although existing regulations and new ethical guidelines for artificial intelligence provide remedies to address some of the side effects, policymakers did not develop these redress mechanisms having children and SCTs in mind. This article provides an analysis of the arising side effects of SCTs and contrasts them with current regulatory redress mechanisms. We thereby highlight misfits and needs for further policymaking efforts. (shrink)