In an attempt to control the 'ballooning' of (discourse about) human rights James Griffin proposes a theory of them grounded in their presumed aim of protecting what he calls 'normative agency'. This paper criticizes the resulting theory's restriction of those thereby deemed to possess human rights only to functioning human agents, and does so in part through special attention to cases of human beings trapped in non-functioning bodies. The need for a less stringent account of the conditions necessary for possession (...) of human rights is suggested, and is defended against the claim that adoption of such an account would continue to favour debasement of the language of human rights. (shrink)

The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of “critical legality,” a concept coined to parallel Hart's “critical morality,” and an expanded understanding of the “external” and (...) “internal” perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of “lawless” regimes and “law's imperialism.”. (shrink)

Instead of being embarrassed and uneasy about the implications of the separation thesis, positivists should welcome the fact that they cannot account for the obligatoriness of law. The rule of recognition is only a social rule and introduces no grounds for obligation.