The concept of recognition has been pivotal in critical theory in recent years. This paper discusses how two goals of a critical theory of recognition – to explain and to morally evaluate social change – are interrelated. In doing so, this paper draws the limits of the concept of struggles for recognition. It is argued that if a social movement can be deemed illegitimate, this movement can no longer be understood as struggling for recognition. This implies that the two goals (...) of a critical theory of recognition cannot be fulfilled simultaneously: a moral standard that distinguishes between legitimate and illegitimate social struggles cannot distinguish between different types of struggles for recognition, but only between struggles for recognition and other types of social struggles. Drawing the limits of the concept of struggles for recognition in this way helps to better distinguish between different types of social struggle and contributes to a more precise understanding of what struggles for recognition entail. (shrink)

This chapter explores Rainer Forst’s justification-centric view of nondomination toleration. This view places an idea of equal respect and a corresponding requirement of reciprocal and general justification at the core of non-domination toleration. After reconstructing this view, this chapter addresses two issues. First, even if this idea of equal respect requires the limits of non-domination toleration to be drawn in a manner that is equally justifiable to all affected people, equal justifiability should not be understood in terms of Forst’s requirement (...) of reciprocal and general acceptability. Second, for the equal justifiability of relevant constraints to ensure non-domination outcomes, discursive equality must be understood in substantive, purchase-sensitive terms. This means that a justification-centric view of non-domination toleration stands or falls with the participation value of what it regards as the standards of justification. This places reasonably contested matters of value at the heart of such views. (shrink)

It is widely acknowledged that human rights law and international criminal law share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts and tribunals adjudicating those norms. With a view to bring the (...) debate forward, I then turn to the practices of HRL and international criminal law to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law, namely the state, to legitimately govern its own subjects constructed as free and equal moral agents. (shrink)

Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the predominant approach to constructing the link is substantive. This overlap is normatively justified in similar terms by reference to a subset of moral human rights. In this paper, I offer an alternative to the substantive approach. After identifying (...) two flaws in the substantive approach (the problem of threshold and the problem of ethical neutrality), I defend what I call a structural account by focusing on duty‐holders. I start by reconstructing two structural characteristics common to IHRL and ICL qua international legal regimes: who has the authority to address violations of IHRL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common structural core of IHRL and ICL. I rely on the extraterritorial application of IHRL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IHRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects. (shrink)

In this paper, I offer an analytical and normative framework to re-visit the question of whether state parties should derogate from the European Convention on Human Rights (ECHR) in order to combat the COVID-19 pandemic via harsh ‘lockdown’ measures. It is three-pronged. First, I show that the predominant debate on the (non-)derogation question is informed by a textual approach to adjudication, which severely limits the analytical and evaluative horizon for addressing the issue. Most importantly, it cannot address one salient fact (...) about the effects of lockdown measures, namely their highly disproportionate effects on vulnerable groups and minorities. Second, I argue that proportionality assessment should be the basis for determining whether state parties ought to derogate or not. This is because proportionality’s very purpose is in part to track the effects of state interferences on minorities and vulnerable groups by measuring the disproportionate burden imposed on them. It is also because proportionality assessment has very different requirements between limitation clauses built into the relevant Convention articles (e.g. Article 5, Articles 8–11) and the derogation clause (Article 15) under the ECHR. Surprisingly, while the emerging literature almost always mentions proportionality as an important component of the analysis, it does not investigate the extent to which each regime (derogation or limitation) better performs it, and why. Third, I draw from the philosophical literature on the ‘right to justification’ to clarify the egalitarian and justificatory function of proportionality. Unlike derogation, limitation clauses have a much higher and systematic requirement of justification, which makes the case for non-derogation clearer and stronger. (shrink)

Assuming similarities between the domestic and global spheres of justice, I consider how lessons from the debate over women's rights and multiculturalism can be applied to global justice. In doing so, I focus on one strain of thinking on global justice, current moderations and modifications to cosmopolitanism. Discussions of global justice tend to approach the question of gender equity in one of two distinct ways: through articulations a cosmopolitanism ethic, advancing women's rights with the discourse of universal human rights or (...) through the lens of Care Ethics. The former approach emphasizes a universal core shared by all human beings, the latter the specific relationships we each are situated within. Recently, the discourse of global justice has moved away from this universal/particular dichotomy, with a range of theories, call them rooted cosmopolitanisms. My goal in this paper is to consider how these rooted versions of cosmopolitanism might respond to issues of gender equity and women's rights. (1) In pursuit of this aim, I first outline the parameters that define rooted cosmopolitanism. (2) I then assume, for the sake of argument, a continuity between domestic and global domains of justice, a continuity which allows for a translation of insights gained in domestic debates over multiculturalism into the global domain. (3) Finally, offering an answer to my leading question, I claim that rooted cosmopolitanism might assist in the struggle to protect the well-being of women as it endeavors to advance global justice. (shrink)

The paper addresses the nature of duties grounded in human rights. Rather than being protections against harm, per se, I contend that human rights largely shield against risk impositions to protected interests. “Risk imposition” is a normative idea requiring explication, but understanding dutiful action in its terms enables human rights to provide prospective policy guidance, hold institutions accountable, operate in non-ideal circumstances, embody impartiality among persons, and define the moral status of agencies in international relations. Slightly differently, I indicate a (...) general understanding of dutiful action that permits human rights to see to the tasks of an institutional morality. (shrink)

The paper addresses the question of what standard of conduct is supplied by human rights morality. Since the protection of dignity-interests operates on a continuum, we require a sense, if human rights are to be practically meaningful, of where on that continuum we can say that human rights have been sufficiently seen to by prevailing institutions. I argue that human rights require relevant institutions to secure a social context where it is not rationally permissible for subjects to despair. This is (...) a matter of providing security against risks to basic interests adequate to objectively warrant an agential stance. Aside from providing a principled threshold of protection, the proffered understanding supports a distinction between human rights and justice, helps illuminate the substance of certain human rights concerned with securing the conditions for rational judgment, and enables an account of the trumping or preemptive force of human rights. (shrink)

Journal of Political Philosophy, EarlyView.

In recent developments in political and legal philosophy, there is a tendency to endorse minimalist lists of human rights which do not include a right to political participation. Against such tendencies, I shall argue that the right to political participation, understood as distinct from a right to democracy, should have a place even on minimalist lists. In addition, I shall defend the need to extend the right to political participation to include participation not just in national, but also in international (...) and global governance processes. The argument will be based on a cosmopolitan conception of political legitimacy and on a political conception of human rights that is normatively anchored in legitimacy. The central claim of my paper is that a right to political participation is necessary – but not sufficient – for political legitimacy in the global realm. (shrink)

In this paper I discuss critically Mathias Risse's paper “Responsibility and Global Justice.” First, I argue that for Risse's pluralist account of the grounds of justice to hold together, there is need to presuppose a monist standpoint which ultimately contributes to grounding principles of justice. Second, I point out that Risse's understanding of obligations of accountability and justification is rather narrow in that it functions as an addendum to obligations of justice. Conversely, I will suggest that the obligation of accountability (...) plays a deeper role: The conditions that ground it feature at the same time among the grounds of obligations of justice. Accordingly, the kind of relation that gives rise to a duty among agents to account for their actions must be in place when obligations of justice obtain. Following on from these remarks I will adumbrate an alternative account of the relation which grounds obligations of justice. (shrink)

In the works of Kant and Rawls, we find an acute sensibility to the pre-eminent importance of freedom of speech. Both authors defend free speech in democratic societies as a private and as a public entitlement, but their conceptions markedly differ when applied to non-liberal and non-democratic societies. The difference is that freedom of speech, for Kant, is a universal claim that can serve as a test of legitimacy of all legal orders, while for Rawls, some legal orders are owed (...) full recognition even if they do not in principle guarantee freedom of speech. I explain Kant’s account of free political speech and argue that the defence of individual rights should be seen as its core feature, both in republican and in autocratic states. I then argue that a much-overlooked shift in Rawls’s development toPolitical Liberalismlikewise ties his account of free speech in democratic societies to issues concerning rights and justice. In a next step, I discuss Rawls’s perspective on some non-democratic regimes in hisLaw of Peoples, regimes that he understands as well-ordered but which do not guarantee freedom of speech. I criticize Rawls’s account from Kant’s perspective and suggest to introduce a ‘module’ from Kant’s pre-republican thought into Rawls’s conception, aiming to secure a core area of rights- and justice-related speech. My claim is that under Kant’s view of autocratic legitimacy, an important extension of speech rights is called for even in non-liberal, non-democratic states, and that a Rawlsian account should and can adopt it. (shrink)

The idea of empowerment has gained a significant role in the discourse of poverty. I outline a restricted conception of empowerment inspired by Kant’s idea of rightful honour. According to this conception, empowerment consists in enabling individuals to assert their own human rights (juridical empowerment). I apply this conception to impoverished persons and argue that it is crucial to their self-respect, their so-called ‘power-[from-]within,’ and their political agency, and has a teleological primacy regarding our efforts to reduce poverty. I also (...) defend the idea that there is a moral right to this form of empowerment and a corresponding duty to empower the impoverished as rights-asserters. Juridical empowerment will be compatible with a pluralism of substantive accounts of the moral wrongs of poverty and with broader conceptions of empowerment. (shrink)

When the brothers Hakob, 13, and Hasmik, 14, had lived in Sweden for 5 years, their applications for residence were rejected, and they were to be deported to Armenia (Dagens Nyheter March 8, 2007,...

Institutional suggestions for how to rethink democracy in response to changing state responsibilities and capabilities have been numerous and often mutually incompatible. This suggests that conceptual unclarity still reigns concerning how the normative ideal of democracy as collective self-determination, i.e. ?rule by the people?, might best be brought to bear in a transnational and global context. The aim in this paper is twofold. First, it analyses some consequences of the tendency to smudge the distinction between democratic theory and moral theories (...) of legitimacy and justice. Second, it develops a conceptual framework that distinguishes between necessary conditions, aspects and aims of democracy. On this basis it specifies three objectives of democracy, some of which may also hold for multilevel governance. It is argued that there are in principle at least three reasons to value democratic institutions: they are intrinsically justified to the extent that they distribute fair shares of political influence over decision-making; they are instrumentally justified to the extent that they secure several of our other best interests, one of which is our interest in non-domination; and finally, they are also instrumentally justified insofar as they secure the just distribution of other goods. The aim of this framework is not to develop a specific theory of multilevel governance but to point at important distinctions to be made and normative criteria to be specified. The intention is to take the debate forward by noting some of the issues that any satisfactory account must address. The framework lays out the grounds for analysing the institutional challenges facing legitimate multilevel governance through what is speculatively called ?multiple citizenship?, understood in explorative terms, opening the door for the manifold roles that citizens could and ought to play in multilevel governance, not only as democratic agents, but also as agents of democracy and agents of justice. (shrink)

Against the well-established critical rejection of rights a growing literature in the tradition of agonistic democracy asserts their emancipatory role in the struggles for social change. However, agonistic theorists, invested as they are in the idea of democratic innovation as a process of gradual ‘augmentation’ of existing rules, institutions and practices, fail to account for the ruptural capacity, and hence for the full radical potential, of rights. Using the performative approach, I develop a conception of rights claiming as a defiant (...) practice to express the ruptural dimension of certain forms of rights politics. I demonstrate how defiant rights claiming articulates immanent critique by declaring the incapacity of putative duty-bearer institutions and governments to uphold the claimed right due to structural constraints, thereby generating inevitable contradictions within the extant order and creating the necessity for an alternative one. Moreover, in order to fully capture the emancipatory potential and creative capacity of rights, this article argues for understanding certain forms of rights politics both as augmentation and rupture, taking the two to be different dimensions of the same radical democratic practice. I present the creative use of rights discourse by the Landless Workers’ Movement in Brazil and the transnational network of agrarian movements, La Via Campesina, as precisely such a combination of the practice of augmentation and defiant claims, which has led to the transformation of the right to food and land into the right to food sovereignty, demonstration of the structural embeddedness of rights violations in the existing global regime of food production and distribution, and authorisation of an alternative vision of the future. (shrink)

According to David Miller, immigration is not a human right. Conversely, Kieran Oberman makes a case for immigration as a human right. We agree with the latter view, but we show that its starting point is mistaken. Indeed, both Miller and Oberman discuss the right to immigration within the liberal paradigm: it is a right or not depending on the correct balance between the interests of the citizens of a given national state and the interests of the immigrants. Instead, we (...) claim that public justification can underpin immigration as a human right. That said, the public justification of the right to immigration has several counterarguments to rebut. Before we deal with that issue, relying on Jürgen Habermas’s social theory, we examine the legal structures that could support the right to immigration in practice. To be sure, this does not provide the normative justification needed, instead it shows the framework that allows the institutional realization of this right. Then, through a combination of civic and cosmopolitan forms of solidarity, the article discusses the formation of a public sphere, which could provide the justification of the right to immigration. (shrink)

For many liberal democrats toleration has become a sort of pet-concept, to which appeal is made in the face of a myriad issues related to the treatment of minorities. Against the inflationary use of toleration, whether understood positively as recognition or negatively as forbearance, I argue that toleration may not provide the conceptual and normative tools to understand and address the claims for accommodation raised by at least one kind of significant minority: democratic dissenting minorities. These are individuals, or aggregates (...) of them, who oppose, on principled grounds, the outcomes of the majoritarian decision-making process. I argue that democratic dissenting minorities' claims are better understood as calls for respect for a person's capacity for self-legislation. I view respect as the cornerstone of justice in a liberal democracy: all norms resulting in a constraint on a person's conduct should be appropriately justified to her. I argue that the reconciliation of democratic dissenting minorities' claims requires an enhancement of the justificatory strategies of democratic decisions by enhancing in turn citizens' rights to political participation. This should be done both during decision making and after a provision is enacted by also securing space for contestation through such forms of illegal protest as civil disobedience and conscientious objection. (shrink)

David Schmidtz's reconstruction of morality advances Hart-type recognition rules for a “personal” and an “interpersonal” strand of morality. I argue that his view does not succeed for reasons owed both to the way in which Schmidtz construes of the task of reconstructing morality and the content of the moral recognition rules that he proposes. For Schmidtz, this task must be approached from a Hart-type “internal” perspective, but this leaves his reconstruction with an unresolved problem of parochiality. He reconstructs morality as (...) a pursuit of the aim of the flourishing of individuals as reflectively rational agents. However, while it is plausible to see reflective rationality as a good, it does not seem to be a morally fundamental good. Ways to instantiate or pursue it depend for their moral value on other, more fundamental moral values that are beyond the normative space mapped by Schmidtz's moral recognition rules. (shrink)

The paper challenges the view that public justification sits well with emancipatory and egalitarian intuitions. I distinguish between the depth, scope and the purchase of the discursive standing that such justification allocates, and situate within this matrix Rawls’s view of public justification. A standard objection to this view is that public justification should be more inclusive in scope. This is both plausible and problematic in emancipatory and egalitarian terms. If inclusive public justification allocates discursive standing that is rich in purchase, (...) as seems desirable in emancipatory terms, it may be unable to allocate equal standing to all relevant people. And if it is to allocate equal standing, then the equality of that standing should be construed in terms that allow for unequal discursive purchase. (shrink)

Conceptions of acceptability-based moral or political justification take it that authoritative acceptability constitutes, or contributes to, validity, or justification. There is no agreement as to what bar for authoritativeness such justification may employ. The paper engages the issue in relation to (i) the level of idealization that a bar for authoritativeness, ψ, imparts to a standard of acceptability-based justification, S, and (ii) the degree of discursive purchase of the discursive standing that S accords to people when it builds ψ. I (...) argue that (i) and (ii) are interdependent: high idealization values entail low discursive purchase, while high degrees of purchase require low idealization values. I then distinguish between alethic conceptions of justification that prioritize ends that commit to high idealization values, and recognitive conceptions that favour high discursive purchase. On this basis, I argue for a moderately recognitivist constraint on idealization. To render the recognitive discursive minimum available to relevant people at the site of justification, S should set ψ low enough so that it is a genuine option for actual people to reject relevant views in ways that S recognizes as authoritative. (shrink)

This paper explores the idea of robust discursive equality on which respect-based conceptions of justificatory reciprocity often draw. I distinguish between formal and substantive discursive equality and argue that if justificatory reciprocity requires that people be accorded formally equal discursive standing, robust discursive equality should not be construed as requiring standing that is equal substantively, or in terms of its discursive purchase. Still, robust discursive equality is purchase sensitive: it does not obtain when discursive standing is impermissibly unequal in purchase. (...) I then showcase different candidate conceptions of purchase justice, and draw conclusions about the substantive commitments of justificatory reciprocity. (shrink)

Rainer Forst’s constructivism argues that a right to justification provides a reasonably non-rejectable foundation of justice. With an exemplary focus on his attempt to ground human rights, I argue that this right cannot provide such a foundation. To accord to others such a right is to include them in the scope of discursive respect. But it is reasonably contested whether we should accord to others equal discursive respect. It follows that Forst’s constructivism cannot ground human rights, or justice, categorically. At (...) best, it can ground them hypothetically. This opens the door wide for ethical foundations of human rights. (shrink)

According to Rainer Forst, (i) moral and political claims must meet a requirement of reciprocal and general acceptability (RGA) while (ii) we are under a duty in engaged discursive practice to justify such claims to others, or be able to do so, on grounds that meet RGA. The paper critically engages this view. I argue that Forst builds a key component of RGA, i.e., reciprocity of reasons, on an idea of the reasonable that undermines both (i) and (ii): if RGA (...) builds on this idea, RGA is viciously regressive and a duty of justification to meet RGA fails to be agent transparent. This negative result opens the door for alternative conceptions of reciprocity and generality. I then suggest that a more promising conception of reciprocity and generality needs to build on an idea of the reasonable that helps to reconcile the emancipatory or protective aspirations of reciprocal and general justification with its egalitarian commitments. But this requires to downgrade RGA in the order of justification and to determine on prior, substantive grounds what level of discursive influence in reciprocal and general justification relevant agents ought to have. (shrink)

Scholars disagree about the proper justification of human rights and which rights qualify as human rights. While some argue for a very limited set of human rights, others defend more comprehensive accounts. In this paper I suggest that a defence of a comprehensive set of human rights can be strengthened by combining constructivist deontological and well-being based teleological justifications. To this end, I discuss two prominent proponents of constructivism and the well-being approach: Rainer Forst and Simon Caney. Forst criticises teleological (...) justifications for grounding human rights in non-universalizable conceptions of the good, such as autonomy, that can reasonably be rejected by others. Constructivism, in contrast, does not rest on any particular idea of the good life and thus allows for greater ethical plurality. I reject this specific criticism, arguing that Caney’s approach ultimately allows for the same plurality. I also highlight that constructivism on its own cannot justify rights of people who are not (yet) able to reason. The well-being approach provides substantive arguments for the rights of these individuals. However, these arguments are made with the framework provided by constructivism. I hold, contra Caney, that Forst’s right to justification is primary in that it is the unavoidable basis from which justice issues can be dealt with in a reasonable way and that the main function of human rights is to protect the equal moral status of persons. I conclude that Forst’s constructivist and Caney’s well-being approach are complementary rather than rivalrous: when combined they provide a more robust justification for a comprehensive set of human rights than considered separately. (shrink)

Most philosophical accounts of human rights accept that all persons have human rights. Typically, ‘personhood’ is understood as unitary and binary. It is unitary because there is generally supposed to be a single threshold property required for personhood. It is binary because it is all-or-nothing: you are either a person or you are not. A difficulty with binary views is that there will typically be subjects, like children and those with dementia, who do not meet the threshold, and so who (...) are not persons with human rights, on these accounts. It is consequently unclear how we ought to treat these subjects. This is the problem of marginal cases. I argue that we cannot resolve the problem of marginal cases if we accept a unitary, binary view of personhood. Instead, I develop a new non-binary personhood account of human rights, and defend two main claims. First, there are many, scalar properties, the having of which are conducive to personhood. Second, different subjects have different human rights depending on which of these properties they have, and what threats apply to them. On my view, and contra most existing accounts, most marginal cases have some degree of personhood and are entitled to some human rights. (shrink)

Michelle’s thesis explores the extent to which a researcher could contribute to change by engaging leaders in conversations that might intensify commitment to or the direction of their actions around socio-environmental decline in Bermuda as a country historically organised in the tradition of an entrepreneurial for-profit enterprise. The framing of a space to reflect on highlighted the significance of time that led to the bricolage design of a heuristic device called a moon gate. Time, the keystone of the moon gate, (...) created a prism lighting up the twists and turns of kaleidoscopic images of the chaos of the markets and the creative diversity of human and nonhuman participants. She undertook a philosophical approach with her study of the contested space of time around sensitivity to maintaining a fulcrum point based on the wellbeing of people and planet. (shrink)

Is democracy a human right? There is a growing consensus within international legal and political practice that the answer is “Yes.” However, some philosophers doubt that we should see democracy as a human right. In this paper I respond to the most systematic challenge presented so far, which was recently offered by Joshua Cohen. His challenge is directed to the view that democracy is a human right, not to the view that democracy is part of what justice demands. It is (...) instructive because it forces us to consider important questions about the nature and justification of human rights, including the putative human right to democracy. There is a tendency to see every claim of justice as a human right, and Cohen presses us to face the risk that this slip may occur in the case of democracy. Thus my aim is not simply to refute Cohen’s arguments but to engage the questions he forcefully and helpfully puts on the table. I start in section 2 by analyzing Cohen’s account of human rights. In section 3 I defend the human right to democracy against his challenge. I conclude in section 4 by articulating some reasons for the claim that democracy is a human right that mobilize and elaborate on some of Cohen’s own key premises. (shrink)

The United Nation’s mandate to engineer international peacecraft is correlated with the promotion of universal human rights. Universal human rights are held to apply consistently to everyone everywhere without conceivable exception. There is some debate as to whether universal human rights possibly exist. This debate centers around two difficulties: 1) the task of identifying a single trait or capability that all human beings necessarily share, and 2) the task of relating human rights to this trait or capability. Conventional epistemic justifications (...) defending the existence of universal human rights attempt to address both difficulties. However, they have become the focus of numerous criticisms. By conducting systematizing and critically reviewing text analyses, I will conclude that conventional epistemic justifications are unable to refute standard criticisms satisfactorily. In their place, I will introduce an epistemic justification from the philosophy of mind. I will attempt to demonstrate that this justification is capable of 1) identifying a single trait that all human beings necessarily share, 2) relating human rights to this trait, and 3) satisfactorily refuting the standard criticisms raised against conventional epistemic theories. I have produced this paper in the hope of further legitimizing the UN’s mandate to engineer international peacecraft by providing a more philosophically optimal justification of claims affirming the existence of universal human rights. (shrink)