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Switch to: References
Citations of:
A debate over rights: philosophical enquiries
New York: Clarendon Press. Edited by N. E. Simmonds & Hillel Steiner (1998)
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Intellectual property typically involves claims of ownership of types, rather than particulars. In this article I argue that this difference in ontology makes an important moral difference. In particular I argue that there cannot be an intrinsic moral right to own intellectual property. I begin by establishing a necessary condition for the justification of intrinsic moral rights claims, which I call the Rights Justification Principle. Briefly, this holds that if we want to claim that there is an intrinsic moral right (...) |
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This paper recasts an old objection to the will theory in the light of recent attempts to defend that theory, notably by Nigel Simmonds and Hillel Steiner. It enlists the idea of duties of care—effectively restrictions over legal officials’ discretionary exercise of powers—to form a dilemma for such theorists: either legal officials’ discretion over powers is restricted by duties of care for the unempowerable, or it is not. If their discretion is unrestricted, then the will theory is insensitive to the (...) |
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Non-consequentialist libertarianism usually revolves around the claim that there are only “negative,” not “positive,” rights. Libertarian nega- tive-rights theories are so patently problematic, though, that it seems that there is a more fundamental notion at work. Some libertarians think this basic idea is freedom or liberty; others, that it is self-ownership. Neither approach is satis- factory. |
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Nicholas Vrousalis has aimed to recast an old objection to the will theory of rights by focusing on Hillel Steiner’s version of that theory. He has argued that Will Theory must either be insensitive to the (values of the) lives of the unempowerable, or be incomplete, because it has no argumentative resources within its conceptual apparatus to ascribe or justify restrictions on the amount of discretion exercised by legal officials. I show that both charges are problematic. They rely on some (...) |
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Since certain temporal aspects of the relation between duties, rights, and the interests that rights protect have not been fully theorized, a puzzle arises when we come to consider whether and how entities such as members of future generations, fetuses, deceased persons, and unconscious persons are able to possess rights. This paper evolves a unified structure for attributing the ability to possess rights to such entities. It demonstrates that while, under any cogent theory of rights-attributions, rights and duties must be (...) |
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Moral rights feature prominently and are relied on substantially in debates in bioethics. Conceptually, however, duties can perform the logical work of rights, but not vice versa, and reference to rights is therefore inessential. Normatively, rights, like duties, depend on more basic moral values or principles, and attempts to establish the logical priority of rights over duties or the reverse are misguided. In practical decision making, however, an analysis in terms of duties is more fruitful than one based on rights. (...) |
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In recent years, there has been increasing recognition of both the philosophical questions engendered by the idea of a human right to health and the potential of philosophical analysis to help in the formulation of better policy. In this article, I attempt to locate recent work on the moral right to health in a number of historically established conceptions, with the aim of providing a map of the conceptual landscape as to the claims expressed by such a right. |
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This paper argues that a putative conflict between negative rights and positive rights is not a genuine conflict. The thought that they might conflict presupposes, I argue, that the two rights are valid. This is the first assumption of my argument. The second is that general rights impose duties on everyone, not just the party who faces a conflict of correlative duties. These two assumptions yield the conclusion that positive rights impose enforceable duties on the holder of the negative right; (...) |
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Directed duties are duties that an agent owes to some party – a party who would be wronged if the duty were violated. A ‘direction problem’ asks what it is about a duty in virtue of which it is directed towards one party, if any, rather than another. I discuss three theories of moral direction: control, demand and interest theories. Although none of these theories can be rejected out of hand, all three face serious difficulties. |
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The ‘deontic orientation’ thesis—that is, the claim that ancient Indian legal theory is orientated or focussed towards duty to the exclusion of other jural operators—features prominently in the discourse of ancient Indian law. In contrast, contemporary legal systems tend to employ a variety of other jural operators also, including right, liberty, power, and so forth. Theorists like Wesley Hohfeld even assert that these operators are elemental, and hence not reducible to other operators. This disparity may be addressed from various evaluational (...) |
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This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legal philosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and the identification of (...) |
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During the past few decades, Michael Moore has written incisively on an array of matters concerning the relationships between law and morality. While reflecting on those relationships, he has plumbed the nature of morality itself in impressive depth. Among the topics which he has addressed, the problem of torture has been prominent and controversial. It is a problem, moreover, that has led to some of his most searching enquiries into the character of moral obligations. In the present essay I take (...) |
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The principle of fairness holds that individuals (beneficiaries) who benefit from a cooperative scheme of others (cooperators) have an obligation to do their share in return for their benefit. The original proponent of this principle, H. L. A. Hart suggests ‘mutuality of restrictions’ as a moral basis because it is fair to mutually restrict the freedom of both beneficiaries and cooperators; so called the fairness obligation. This paper explores ‘mutuality of restrictions’, which is interpreted as a right-based and an equality-based (...) |
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This article calls for a paradigm shift in the language, theory and practice of human rights: it calls for human rights to be reconceptualized as sentient rights. It argues that human rights are not qualitatively distinct from the basic entitlements of other sentient creatures, and that attempts to differentiate human rights by appealing to something distinctive about humanity, their unique political function or their universality ultimately fail. Finally, the article claims that moving to sentient rights will not lead to intractable (...) |
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Hohfeldian normative system are normative systems that can be described by means of the analytical framework expounded by Hohfeld in his two famous papers on the fundamental legal conceptions. In this article I analyze some features of this particular kind of normative systems. Hohfeld’s original idea was to design a universal tool capable of describing, at the most basic level, the web of normative relationships between persons created by a system of rules. My claim is, instead, that if we take (...) |
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Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways (...) |
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The paper argues that promise rights presuppose independently existing (if not pre-existing) claims. The argument relies on the Bifurcation Thesis, according to which all claims, and all rights, can be exhaustively divided into two categories: capacity based and exercise based. |
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In this paper I defend the view that persons have a claim to deserved treatment, including many forms of punishment, against an objection resting on the principle that it is not possible to have a claim to harmful treatment. I do not challenge this principle, but argue, rather, that the harms wrongdoers typically deserve either (a) are not genuine harms at all (for reasons relevant to their being deserved) or (b) are not relevant to the content of these wrongdoers' claims. |
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The relationship between libertarianism and state is a contested one. Despite pressing full and strict ownership of one’s person and any justly acquired goods, many libertarians have suggested ways in which a state, albeit limited, can be regarded as just. Peter Vallentyne has proposed that all plausible versions of libertarianism are compatible with what he calls ‘private-law states’. His proposal is underpinned by a particular conception of rights, which brings Interest Theory of rights and Will Theory of rights together. If (...) |
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Domesticated animals need to be treated as fellow citizens: only if we conceive of domesticated animals as full members of our political communities can we do justice to their moral standing—or so Sue Donaldson and Will Kymlicka argue in their widely discussed book Zoopolis. In this contribution, we pursue two objectives. Firstly, we reject Donaldson and Kymlicka’s appeal for animal citizenship. We do so by submitting that instead of paying due heed to their moral status, regarding animals as citizens misinterprets (...) |
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