"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

This article takes a critical look at the classic couplet of theories on the justification of rights, namely, the choice theory and the interest or benefit theory, where the two are understood to be in conflict. The argument is made that this couplet is best replaced with a new one, namely, a sophisticated rendering of the benefit theory coupled with the autonomy theory, such that any conflict is resolved. The latter two theories take different (...) cases in justifying the attribution of rights: The autonomy theory is concerned with justifying the attribution of rights to adult, rational, and competent subjects, arguing that this attribution requires a sufficiently autonomous claim by such subjects, while the benefit theory seeks to justify the attribution of rights to subjects who lack any of these three properties, meaning that they cannot be considered adult, rational, or competent. (shrink)

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self-described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman’s and Arthur Ripstein’s respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the (...) first place. (shrink)

According to the popular-choice theory of secession, the inhabitants of any territory, as a group, should have an internationally recognized right to secede from a sovereign state if their majority chooses by referendum to do so, and if they are capable of sustaining legitimate state institutions. Prior efforts to defend this group right on individualistic grounds—such as the individual right to associate freely or to participate as an equal in democratic decision-making—have failed. As a result, some recent defenders (...) of the choice theory have suggested that the group right the theory implies is “irreducibly collective.” I argue, to the contrary, that this group right can be grounded fully in the fundamental right of each individual to be treated as an equal by the political institutions to which he is subject. The territorial implications of the choice theory are, moreover, consistent with a plausible account of the territorial rights of states. (shrink)

Hart's will theory of rights has been subjected to at least three significant criticisms. First, it is thought unable to account for the full range of legal rights. Second, it is incoherent, for it values freedom while permitting an agent the option of alienating his or her capacity for choice. Third, any attempt to remedy the first two problems renders the theory reducible to the rival benefit theory. My aim is to address these objections. (...) I argue that will theory has been made vulnerable due to misinterpretation. The theory has been characterized as placing great stress on liberty rights (or claim-protected liberties), whereas it is powers that are central, and hence not choice but control. My argument does, however, depend upon appealing to an extra-legal notion — the hypothetical contract — but I argue that this is consistent with the main aim of a theory of rights. (shrink)

This essay critically examines three theories of moral rights, theBenefit, the Interest, and the Choice theories. The Interest andChoice theories attempt to explain how rights can be more robustthan seems possible on the Benefit theory. In particular, moralrights are supposed to be resistant to trade-offs to supportprincipled anti-paternalism, to constitute a distinct dimensionof morality, and to provide right holders with a range ofdiscretionary choice. I argue that these and other featuresare better yet provided by a (...) fourth theory of moral rights, theJurisdiction theory. (shrink)

Conviction Narrative Theory (CNT) is a theory of choice underradical uncertainty– situations where outcomes cannot be enumerated and probabilities cannot be assigned. Whereas most theories of choice assume that people rely on (potentially biased) probabilistic judgments, such theories cannot account for adaptive decision-making when probabilities cannot be assigned. CNT proposes that people usenarratives– structured representations of causal, temporal, analogical, and valence relationships – rather than probabilities, as the currency of thought that unifies our sense-making and decision-making (...) faculties. According to CNT, narratives arise from the interplay between individual cognition and the social environment, with reasoners adopting a narrative that feels “right” to explain the available data; using that narrative to imagine plausible futures; and affectively evaluating those imagined futures to make a choice. Evidence from many areas of the cognitive, behavioral, and social sciences supports this basic model, including lab experiments, interview studies, and econometric analyses. We identify 12 propositions to explain how the mental representations (narratives) interact with four inter-related processes (explanation, simulation, affective evaluation, and communication), examining the theoretical and empirical basis for each. We conclude by discussing how CNT can provide a common vocabulary for researchers studying everyday choices across areas of the decision sciences. (shrink)

The paper first summarizes the author's decision-theoretical model of moral behavior, in order to compare the moral implications of the act-utilitarian and of the rule-utilitarian versions of utilitarian theory. This model is then applied to three voting examples. It is argued that the moral behavior of act-utilitarian individuals will have the nature of a noncooperative game, played in the extensive mode, and involving action-by-action maximization of social utility by each player. In contrast, the moral behavior of rule-utilitarian individuals will (...) have the nature of a cooperative game, played in the normal mode, and involving a firm commitment by each player to a specific moral strategy (viz. to the strategy selected by the rule-utilitarian choice criterion) — even if some individual actions prescribed by this strategy, when considered in isolation, should fail to maximize social utility. The most important advantage that rule utilitarianism as an ethical theory has over act utilitarianism lies in its ability to give full recognition to the moral and social importance of individual rights and personal obligations. It is easy to verify that action-by-action maximization of social utility, as required by act utilitarianism, would destroy these rights and obligations. In contrast, rule utilitarianism can fully recognize the moral validity of these rights and obligations precisely because of its commitment to an overall moral strategy, independent of action-by-action social-utility maximization. The paper ends with a discussion of the voter's paradox problem. The conventional theory of rational behavior cannot avoid the paradoxical conclusion that, in any large electorate, voting is always an irrational activity because one's own individual vote is extremely unlikely to make any difference to the outcome of any election. But it can be shown that, by using the principles of rule-utilitarian theory, this paradox can easily be resolved and that, in actual fact, voting, even in large electorates, may be perfectly rational action. More generally, the example of rule utilitarianism shows what an important role the concept of a rational commitment can play in the analysis of rational behavior. (shrink)

Pathologies of Rational Choice Theory is a valuable survey and critique of research in the rational choice tradition, but one that slights that tradition's past and potential contributions to the study of politics. The authors rightly note limitations of rational choice theory but understate what it has to offer political scientists, for they fail to focus clearly on its essentials; adopt too narrow a basis for evaluating scholarship; and wrongly identify rational choice theory (...) with the shortcomings of some scholarship that makes use of it. (shrink)

The importance of economic freedom for economic development can no longer be denied. What is often denied, however, is respect for individuals’ rights and personal choices. The role of individual choice is often dismissed or set aside by the development community. In this essay, I argue that inherent to economic freedom’s economic success is the promotion and acceptance of individual choice. Development theory should include recognition of and respect for personal choices, a theory I call (...) “Catfish Man of the Woods” theory of development. (shrink)

This article is another unapologetic contribution to ‘the gentle art of rational choice bashing’. The debate over rational choice theory (RCT) may appear to have tired out; yet RCT is as dominant in political sciences as ever. The reason is that critics typically take aim at the symptoms of RCT’s failings, rather than their root cause: RCT’s very ambition of being the ‘science of choice’. In this article I argue that RCT fails twice, first as a (...) science of choice and then as a science of choice. Both failures suggest that political sciences need an epistemologic (re)conversion away from the Platonic ideal of a deductive and universal science of choice toward a more inductive and pluralist paradigm. While advocates of RCT rightly insist that ‘you can’t beat something with nothing’, I take their advice, with a grain of salt: in order for alternatives to appear, the frame of references needs to be modified. I draw a few perspectives for the political sciences. (shrink)

This dissertation proposes a new reading and appraisal of an important theory of distributive justice, Ronald Dworkin's "Equality of Resources" . ER is traditional in holding that choices made by rational, ignorant and purely self-interested beings are relevant to distributive justice. ER is novel both in its use of such choices and in incorporating the idea that one's success is largely one's own responsibility into liberal egalitarianism. ;I argue that the tax-and-redistribution scheme Dworkin proposes to make actual distributions just (...) is flawed because he misconceives the role of choice. He errs in thinking that the conditions for person X to receive compensation depend on the choices of such beings, although he is right, I argue, insofar as the relevant choices include X's hypothetical choices. Dworkin errs in that ER implies that whether X meets these conditions can depend on X's irrational choices, although he is right that whether X meets these conditions can depend on some of X's actual choices. ER becomes flawed, I argue, when Dworkin derives a tax-and-redistribution scheme designed to achieve distributive justice in reality from the auction he proposes for making hypothetical distributions just. ;I then consider whether ER withstands stock objections and how plausible it is relative to rival Theories. Dworkin argues that ER, but not Rawls' Theory, meets the following condition for a Theory to be plausible: the distributions a Theory deems just must be sensitive to choices. I argue that Dworkin's argument is no longer plausible once we realize to which choice sensitivity principle he is himself committed. However, I argue, Seana Shiffrin's objection to ER fails because she misunderstands the role of choice in ER, although she is right insofar as there is a related, though superficial, objection. I also argue that ER is inconsistent and show how to resolve this inconsistency without leaving ER vulnerable to attack by G. A. Cohen's rival Theory. I trace ER's inconsistency and the failure of Dworkin's argument against Rawls' Theory to Dworkin's method of justification. (shrink)

The concept of right or fit is an important element entailed, but not fully articulated, in the concept of action or practice in Aristotle's theory of virtue; which, however, turns to be of the utmost importance in later Western ethics. Right is concerned with both feelings and actions, and is not the same for all individuals. It lies in between the two extremes of the spectrum of practical affairs, yet by no means equidistant from them. This account of the (...) concept of fitness or right is derived from the categories of quantity, relationship, and quality rather than from that of substance. Thus, it seems that virtue is relative to vice or error within a continuous existence. If, however, the right of passion and action is environmental and concrete, is it multiple and not singular? To this question, Aristotle gives his reply on two levels: On the level of concrete practitioners, what is right and fit to one man might not be so to another man, and hence the right of practice is not singular but multiple; whereas on the level concerned with the only right choice compared with the two extremes or errors, the right of practice will always be singular. /// "正确"是隐含于亚里士多德的德性学说中的一个重要而未充分展开的，在 后来的西方伦理学中却变成极为重要的关于行为或实践的概念。"正确"与感情和 行为都相关。"正确"并不是对所有人同样的。它是两端间的那个中间，但井不始 终与两端距离相等。对适度或正确的这种说明基本上是从数量、关系与性质范畴引 出，而不是从实体范畴引出的述说。所以，德性似乎始终是在一种有连续性的存在 中相对于恶或错误而言的。感情与行为的正确如果是环境的、具体的，它是否是多 而不是一?亚里士多德在两个层面上回答这个问题。在相对于具体实践者的层面， 对我而言的适度或正确很可能不同于对你而言的，实践的正确不是一而是多:在相 对于两端或错误唯有一个正确的选择而言，实践的正确始终只是一。. (shrink)

This book is a major contribution to the study of the philosophy of action, moral philosophy, and political philosophy. Its central idea is a radically unorthodox theory of rational action. Most contemporary Anglo-American philosophers believe that action is motivated by desire. Professor Benn rejects the doctrine and replaces it with a reformulation of Kant's ethical and political theory, in which rational action can be determined simply by principles, regardless of consequences. The book analyzes the way in which value (...) conflicts can be rationally resolved, the objectivity of value, the concept of moral personality, the principles of non-interference and respect of persons, the ideals of autonomy and community and various aspects of individual rights - focusing on the rights to freedom, welfare, and privacy. (shrink)

Thomas Hobbes' method of deriving some moral principles from a social contract has inspired some contemporary moral philosophers to combine the contractarian approach with the model of rational behavior familiar to economists, in order to derive substantive principles of right from essentially formal constraints on the choice of principles. They argue that the device of a hypothetical social contract could serve to generate intuitively plausible moral principles even when the contractors are assumed to be self-interested maximizers of expected utility (...) . Since economic rationality, as defined here, is a relatively pliable model of rational deliberation, the hope is that this approach will provide a systematic tool for the derivation and justification of moral principles. ;Given this conception of rationality, a hypothetical social contract may be interpreted as any of several formal models of rational choice, each of which I examine, as exhibited in the work of some contemporary contract theorists: John Rawls' early work represents the view that choosing the social contract involves an individual decision under certainty; in his later work , Rawls presents the social contract as an individual decision made under ignorance; John Harsanyi defends the case for an individual decision under risk; and David Gauthier's recent work treats the social contract as the product of a rational collective bargain. ;I argue that, if the model of economic rationality is taken seriously, none of these conceptions of the social contract produce principles which conform to our considered moral judgments, and most of them will fail to produce a contractual agreement of any sort. Consequently, I conclude that the combination of economic rationality and procedural constraints on the deliberations of such contractors is an inadequate substitute for other-regarding sentiments usually considered necessary for the justification of moral principles. (shrink)

Available from UMI in association with The British Library. Requires signed TDF. ;The thesis is an examination of the concept of rights. Its aims are analytical and descriptive. No attempt is made to justify any particular possession or denial of rights. It is, however, a theory about rights in general, and not just about either legal or moral rights. This reflects the writer's belief that conceptual problems about the nature of rights can be satisfactorily (...) tackled only if a unified approach is adopted. In each of the first three chapters a leading theory of rights is examined, criticised and rejected. These theories are benefit theories, choice theories, theories of overriding. Particular attention is given to the writings of John Austin, HLA Hart and RM Dworkin. In the fourth chapter Hohfeld's claim for the diversity of rights is examined and rejected as unproven. In the fifth chapter an attempt is made to provide a more satisfactory theory of moral rights. This draws a distinction between rights as assessments of that which the right-holder may do and as assessments of that which others must do for the right-holder. Rights of the first type are explained in terms of a strong sense of permission; those of the second type as an instance of welfare principles. In the succeeding chapter this explanation is extended to legal rights. Finally, an attempt is made to provide a theory of the nature of property rights in general, and of ownership in particular. (shrink)

This chapter conceptually analyzes the post-traumatic stress injuries called moral injury, moral fatigue or exhaustion, and broken spirit. It then identifies two puzzles. First, soldiers sometimes sustain moral injury even from doing right actions. Second, they experience moral exhaustion from making decisions even where the morally right choice is so obvious that it shouldn’t be stressful to make it; and even where rightness of decision is so murky that no decision could be morally faulted. The injuries result of mistaken (...) moral self-evaluation. Methods of preventing and treating these injuries are defended, including training in self-forgiveness, moral off-loading of actions and decisions to persons and devices less likely to feel inappropriate guilt, and the use of drugs to prevent such guilt. The foregoing has been about moral injury erroneously resulting from the non-violation of a correct moral code. But the chapter then introduces the concept of moral pseudo-injury—felt moral injury that has in reality resulted from violation of a false moral code, so that no one has really been morally injured. This can be used as a method in warfighting. And since the injuries it produces are illusory, this would be morally superior to physical violence. For it causes less injury to its victims, and should cause less guilt in those who must inflict it. Historical precedents are considered. Finally, our enemies often use moral pseudo-injury against us, in the form of terrorist violence against civilians. Terrorism causes comparatively few harms, yet we mistakenly see it as more morally horrific than conventional combat that causes much worse loss of life among armed forces members. Here we need the nuancing and clarifying power of philosophy to restore a sense of proportion, thence to prevent or therapize the moral pseudo-injury we may experience from these sorts of attacks. (This is a pre-penultimate version of the published version, available from OUP at the external link, which contains minor variances. The paper was earlier known as "PTSD Weaponized: A Theory of Moral Injury"; that now superseded version is archived under "past conferences" on the Center for Ethics and the Rule of Law website.). (shrink)

This article examines the relevance of a theory of the multinational state for the evaluation of claims for self-determination and secession. Considerations of ?ethnocultural justice? imply that the recognition of the multinational character of a state ? or the granting of some of the minority nations' demands ? is a matter of justice. If these requirements are not met, secession could be justified. Indeed, if secession needs a just cause (as it has been argued), a failure to build a (...) truly multinational arrangement can be a valid reason for a minority nation to secede. An approach like the one proposed would also contribute to the resolution of some of the key problems of the three main theories of secession and their appeals to nationalism, choice and remedial rights. (shrink)

The concept of right or fit is an important element entailed, but not fully articulated, in the concept of action or practice in Aristotle’s theory of virtue; which, however, turns to be of the utmost importance in later Western ethics. Right is concerned with both feelings and actions, and is not the same for all individuals. It lies in between the two extremes of the spectrum of practical affairs, yet by no means equidistant from them. This account of the (...) concept of fitness or right is derived from the categories of quantity, relationship, and quality rather than from that of substance. Thus, it seems that virtue is relative to vice or error within a continuous existence. If, however, the right of passion and action is environmental and concrete, is it multiple and not singular? To this question, Aristotle gives his reply on two levels: On the level of concrete practitioners, what is right and fit to one man might not be so to another man, and hence the right of practice is not singular but multiple; whereas on the level concerned with the only right choice compared with the two extremes or errors, the right of practice will always be singular. (shrink)

On some theories of rights, such as the Choice theory, only agents can have moral rights. The realm of right-holders thus excludes several potential candidates, among which are young children, mentally incapacitated persons, and groups since these are thought to lack the required degree of agency. This paper argues that groups can be right-holders. The argument comes in three steps: first, it is argued that full-blown or autonomous agency is not required for the possession of (...) class='Hi'>Choice theory rights, second, that groups can be seen as agents, albeit in a limited sense, and third, that groups can make irreducibly collective choices in spite of their limited agency. The upshot of this argument is that groups can have rights, provided that they are organized around a coherent decision-making procedure; furthermore, this account can be employed to argue that other creatures of limited agency are possible right-holders. (shrink)

Simply put, charter schools have not lived up to their advocates’ promise of equity. Using examples of tangible civil rights gains of the twentieth century and extending feminist theories of invisible labor to include the labor of democracy, the authors argue that the charter movement renders invisible the labor that secured civil protections for historically marginalized groups. The charter movement hangs a quality public education—previously recognized as a universal guarantee—on the education consumer’s ability to navigate a marketplace. The authors (...) conclude that the neoliberal agenda of positioning choice as the best mechanism for securing an education rolls back the rights that were already secured through the labor of democracy. (shrink)

James E. Bruce explores the relationship between morality and God’s free choices in the thought of Francis Turretin. The first book-length treatment of Turretin’s natural law theory, Rights in the Law provides an important theological backdrop to Early Modern moral and political philosophy. Turretin affirms Thomas Aquinas’s approach to the natural law, calling it the common opinion of the Reformed orthodox, but he develops it, too, by introducing a threefold scheme of right —divine, natural, and positive—to explain how (...) change within the law is possible. For example, God can change the specific day for Sabbath observance from Saturday to Sunday—from positive right—without changing the natural law precept that finite creatures ought to rest. Yet even with respect to the natural law God is still free. God can make a world in which there is no such thing as murder: he can choose not to make a world that contains such a thing as man. What God cannot do is make a murderable man. So God’s free choices determine the natural law insofar as the natural law is constituted by the nature of the things that God has chosen to create. (shrink)

Holt argues that Rawls’s first principle of justice requires democratic control of the economy and that property owning democracy fails to satisfy this requirement; only liberal socialism is fully democratic. However, the notion of democratic control is ambiguous, and Holt has to choose between the weaker notion of democratic control that Rawls is committed to and the stronger notion that property owning democracy fails to satisfy. It may be that there is a tension between capitalism and democracy, so that only (...) liberal socialism can be fully democratic, but if so, we should reject, rather than argue from, the theory of democracy we find in justice as fairness. (shrink)

This paper considers the way that disposal of art—that is, removing it from one’s ownership or guardianship—might rightly be pursued. It is also about what appropriate disposal of art may mean for theories of the value of art. Students of art and aesthetics benefit from such tests as they determine which of the various theories of artistic value have lasting merit. Disposing of art is a particularly good test for educating theory choice as it is pragmatic; it is (...) the equivalent of determining the quality of a theory of normative ethics by looking at its practical implications. (shrink)

The often‐posed dichotomy between the interest and choice theory of rights can obfuscate a proper understanding of children's rights. We need a gradualist model in which the grounds for attributing rights to a being change in response to the development of autonomy. Rights for children initially function to protect their interests but, as they develop into full‐fledged autonomous choosers, rights function to ensure that their choices, even those that do not serve their welfare, (...) are respected. (shrink)

In 1970 Amartya Sen exposed an apparent antinomy that has come to be known as the Paradox of the Paretian Libertarian. Sen introduced his paradox by establishing a simple but startling theorem. Roughly put, what he proved was that if a mechanism for selecting social choice functions satisfies two standard adequacy conditions, there are possible situations in which it will violate either the very weak libertarian precept that every individual has at least some rights or the seemingly innocuous (...) Paretian principle that an option should be judged unacceptable if there is an available alternative that everyone prefers to it. Many economists and philosophers have proposed solutions to Sen's problem, but there is no general consensus on what solution is correct. In the present paper I argue that Sen's original theorem fails to establish the existence of any conflict between libertarianism and Paretianism. Furthermore, I contend that Sen has misinterpreted certain other theorems which he has used to defend the existence of a paradoxical conflict between these two doctrines. In general, I try to show that whenever Sen posits a Paretian-libertarian conflict to explain an apparently troubling result in social choice theory, the difficulty can be better dealt with either by claiming that the theorem in question imposes overly strong background constraints on the form of social choice functions or by claiming that it relies on an unacceptable construal of individual rights. (shrink)

This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. It elucidates the traditional understanding of it as a dispute over how best to explain A RIGHT and clarifies the theories’ competing criteria for that concept. The rest of the article then shows why recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of competing (...) explanations of the direction of ‘directed’ duties. This is because the theories’ respective answers to that issue are themselves dependent upon their respective conceptions of A RIGHT – ones that do not even necessitate the identification of different directions for such duties. Second, all of the new would-be alternative or hybrid theories are shown to merely be versions of the Interest theory. Third, recent efforts to cabin off the debate to ‘normative’ theorisation (i.e., to morally or politically evaluative accounts) are misguided. (shrink)

This dissertation originated in a reasoned conviction that character is of crucial importance for moral theory; that its neglect in the modern period is regrettable. Considerations of character can illuminate judgments of the rightness of actions and the goodness of ends. Indeed, good character is one of the greatest goods. Further, the understanding of character and its development provides an essential link between moral theory and social philosophy. ;The particular content of this dissertation is Kant's theory of (...) character. Recent scholars have illuminated his treatment of character and the virtues; although these interpretations are valuable, there remains a need for the systematic articulation of the theory as a whole. ;My procedure has been to establish preliminary criteria for any theory of character, in the form of questions to which any adequate theory must given cogent answers, and then to discover Kant's answers to those questions. After the theory has been articulated, its adequacy is assessed. ;In Chapter One I review recent literature, contrasting act-centered with agent-centered approaches, and propose tentative criteria for theory of character. Chapters Two and Three present the rudiments of Kant's theory, and Chapter Three addresses standard criticisms. Chapter Four presents Kant's view of the development of character in its social context, and Chapter Five the problem which Kant's view of women's character presents for his theory as a whole. The final chapter evaluates its strengths and weaknesses. ;Although Kant's theory is shown to be flawed by his underlying conception of human nature, and by his inconsistent view of female character, I shall argue that it is basically sound. His analysis of character as related to choice, reason, freedom and society is comprehensive, and his emphasis on the importance of the moral agent, rather than on outcomes or general rules, makes him preeminently a philosopher of character. (shrink)

Chapter I: The background to Aristotle's theory is provided by Aristophanes' Clouds in the debate between the traditionalists and Socratics on moral education. Aristotle steers a middle course between the old and new educations, preserving on the one hand, the role of filial ties in the transmission of values, and on the other, the importance of practical reason in providing a critical assessment of attachments. ;Chapter II: Here I argue against a common reading of Aristotle that views moral training (...) as merely a matter of habituation and practice whereby certain skills become second-nature. I propose instead that moral training is a training of "right pleasures and pains", or attachments to certain ends and objects of value. These I argue are transmitted through antecedent attachments to family. ;Chapter III: A theory of the development of character requires an analysis of emotions and desires constitutive of character. Aristotle regards emotions as intentional, where by intentional he means directed at certain objects regarded by an agent selectively, as the result of certain beliefs, perceptions, and phantasia. Thus, emotions have desiderative and cognitive elements, and training is directed at each. ;Chapter IV: Another aspect of moral training is paideia through music and tragedy. Both ensure for the transmission of a common core of cultural values, and thus extend training beyond the family to the city. At the heart of this paideia is the notion of mimesis. In music, mimesis is a process is one of association, whereby the pleasurable quality of music reinforces an attachment to the characters which music expresses. In tragedy, the identification is more complex. Katharsis through pity and fear requires that we identify not merely with characters, but with choice and actions and deliberations which lead to them. ;Chapter V: I conclude by studying Aeschylus' Oresteia as a tragedy which illustrates the notion of identification, as well as Aristotle's general belief that moral training takes place within the family. Through tragedy we see the complexities that develop within philia, and are forced, through pity and fear, to examine our own filial sentiments and obligations. (shrink)

Some important recent articles, including one in this journal, have sought to devise theories of rights that can transcend the longstanding debate between the Interest Theory and the Will Theory. The present essay argues that those efforts fail and that the Interest Theory and the Will Theory withstand the criticisms that have been levelled against them. To be sure, the criticisms have been valuable in that they have prompted the amplification and clarification of the two (...) dominant theories of rights; but their upshot has been to reveal the need for the improvement, rather than the abandonment, of those theories. (shrink)

This book makes two important contributions toward a general and systematic theory of rights-a powerful philosophical analysis of the language of rights and an explanation of the nature of rights. In working out these ideas, Wellman has provided a new and cohesive way of thinking and talking about rights of every sort. Wellman succeeds in bringing all kinds of rights-moral, legal, institutional, etc.-under one unified theory in a way that illuminates their similarities and (...) differences. This enables him to deal in a consistent way with a very broad range of philosophical questions, questions that are too often dealt with in isolation from each other. (shrink)

John Locke's political theory has been the subject of many detailed treatments by philosophers and political scientists. But The Lockean Theory of Rights is the first systematic, full-length study of Locke's theory of rights and of its potential for making genuine contributions to contemporary debates about rights and their place in political philosophy. Given that the rights of persons are the central moral concept at work in Locke's and Lockean political philosophy, such a (...) study is long overdue. (shrink)

Sen’s “The Impossibility of a Paretian Liberal” was meant to crystallize his fundamental criticism against the welfaristic basis of welfare economics in general, and social choice theory in particular. This paper vindicates Sen’s criticism, arguing that its logical relevance is not lost in light of recent criticisms against his method of articulating individual rights in terms of a person’s decisive power in social choice. We show that some recent proposals that Sen’s articulation failed to capture a (...) strong libertarian tradition of free contract and that an appropriate formulation of this tradition wipes off the Sen impossibility cannot be sustained. We then show that the game form articulation of rights casts serious doubts on the Sen articulation of liberty, but the Sen impossibility strenuously comes back in the context of realizing conferred game form rights as well as in the context of initial conferment of game form rights. (shrink)

In this paper, I develop two philosophically suggestive arguments that the late Justice Stevens made in Citizens United against the idea that business corporations have free speech rights. First, (1) while business corporations conceived as real entities are capable of a thin agency conceptually sufficient for moral rights, I argue that they fail to clear important justificatory hurdles imposed by interest or choice theories of rights. Business corporations conceived as real entities lack an interest in their (...) personal security; moreover, they are incapable of exercising innate powers of choice. Second, (2) I argue that the structure and functionally individualized purpose of a business corporation—to increase value for its shareholders—undermines the implicit joint commitment necessary to derive corporate rights of free speech from non-operative shareholder-member rights. Since one cannot transfer innate moral rights such as free speech, any exercise of this right on behalf of another must be limited in scope. (shrink)

This chapter contains section titled: Introduction The Nature of Rights: Logic, Substance, and Strength Rights and Their Role in Moral Theory Conclusion References.

A key question in comparative law is why different legal systems provide different legal solutions for the same problem. To answer this question, we use novel comparative evidence on how the conflict between the dispossessed original owner and the bona fide purchaser of a stolen good is resolved in different countries. This is the most primitive manifestation of a fundamental legal choice: the balance between the protection of the owner’s property rights and the enhancement of the buyer’s reliance (...) on contracts. We test four prominent theories: functional equivalence, legal origins, political economics and cultural economics. We find that a culture of self-reliance is the key determinant of comparative variation in this area of law. (shrink)

This latest addition to the Oxford Readings in Philosophy series covers a topic which is one of the focal points of much of the current work in moral and politicaltheory.

This book develops an account of freedom of expression rooted in a broader understanding of human flourishing. It is intended to highlight reasons for not only political institutions but also noncoercive social institutions—employers, churches, clubs—to value and safeguard expressive freedom. It emphasizes a set of overlapping and mutually reinforcing considerations supportive of this kind of freedom, including property rights, class-analytic and public-choice-theoretic understandings of state and institutional decision-making, the limits on the capacity of expressive activity to injure or (...) cause injury, the independent importance of autonomy, and the various ways in which expressive freedom can foster insight, discovery, and various other aspects of flourishing. It stresses the importance of a social ecosystem as the necessary precondition for many of the benefits yielded by freedom of expression. (shrink)

The discourse about traceability in food chains focused on traceability as means towards the end of managing health risks. This discourse witnessed a call to broaden traceability to accommodate consumer concerns about foods that are not related to health. This call envisions the development of ethical traceability. This paper presents a justification of ethical traceability. The argument is couched in liberal distinctions, since the call for ethical traceability is based on intuitions about consumer rights to informed choice. The (...) paper suggests that two versions of ethical traceability find justification. The first version of ethical traceability entails that governments ensure that all consumers are provided with foods that respect some threshold level of, e.g., animal welfare that is supported by an overlapping consensus. The second version of ethical traceability entails that food producers provide consumers with products, and sufficient information about these products, that are relevant for reasonable, non-superficial values that are not supported by an overlapping consensus. Governments should facilitate this in the sense that consumers are not provided with misinformation about characteristics of foods that are relevant for reasonable, non-superficial values that are not supported by an overlapping consensus. (shrink)

The Kantian theory of private law, as Ernest Weinrib and Arthur Ripstein have developed it over the last two decades, is based on a fundamental normative truth, viz., no person is subordinate or superior to another person. Kantians construe any attempt to understand and justify the distribution of the rights-claims and rights-liberties that constitute private law in terms of aggregate welfare and/or distributive justice, as a deep category mistake. This essay outlines a ‘semi-Kantian’ theory of private (...) law, which is like Kant’s in that it understands private law as a means of instituting and protecting private freedom. Yet, semi-Kantians insist that the choice between different private law programs, which respect private freedom equally well, can at times be justified by considerations of aggregate welfare and distributive justice, as well as other considerations that concern the impact on society as a whole. (shrink)

Republican theorists have paid little attention to the normative problems of secession conflicts. So far, there is no such thing as a democratic republican theory of right of secession ; nor any comprehensive analysis of current TRS has ever been undertaken from a democratic republican point of view. This article tries to fill this second gap as a first step in order to fill that first one. In doing so, it shows how secession conflicts pose threats for two core (...) democratic republican values: freedom and inclusion. The threats are, concretely, those of exclusion, blackmailing minorities, arbitrary permanent majorities, and instability. The article also shows how, due to their respective pro-unionist or pro-secessionist biases, no current TRS seems to be able to handle those threats; and briefly outlines how a democratic republican TRS, based on a non-unilateralist logic, could be developed. (shrink)

The literature on rights in both moral and legal philosophy is voluminous, so voluminous that there may seem to be little justification for one more symposium to swell its ranks. But the discussion of rights has been fairly tightly organized around several narrow topics of debate, among them whether rights should be explained in terms of interests or choices, 1 whether rights are strictly correlative with duties, 2 and the relation between rights and utility. 3 (...) The inspiration for the present symposium is the sense that one topic of central importance has generally been given short shrift: the question of whether rights can conflict. There is, of course, a perfectly good explanation for why this topic has received so little attention; namely that contemporary rights theorists have generally assumed that rights cannot conflict. 4 But this assumption seems to be out of keeping with the way people commonly speak about rights as well as the way in which rights are usually understood in our constitutional tradition. (shrink)

ABSTRACTHow should we conceive of a right to reproduce? And, morally speaking, what might be said to justify such a right? These are just two questions of interest that are raised by the technologies of assisted reproduction. This paper analyses the possible legitimate grounds for a right to reproduce within the two main theories of rights; interest theory and choice theory.