Exploring the peculiar nature of future generations and concluding that types of future people is the most promising object on which to project our concern for future generations the article poses two main questions: “Can future people have rights?” and, if so, “Do they in fact have any rights?” The article first explains why the non-existence of future people raises doubts whether future generations can have rights. Within the philosophical literature, the leading approach explaining how future people (...) can, nevertheless, have rights argues that they have rights as tokens of types of people. After presenting this account of the rights of future people and couching it in a jurisprudential context, this Article points out a possible deficiency in the approach’s metaphysical underpinnings. Assuming that future people can have rights the article goes on to explain that there is reason to doubt whether any such rights actually exist, which derive from the doubt whether future people will be harmed by most actions and choices in their prenatal past. According to what has come to be known as the “nonidentity argument,” actions and choices that are necessary parts of the causal chain leading up to the existence of a person cannot harm that person - had the act or choice not occurred that person would have never existed, and one is better off existing than not. Under the two prevalent theories of rights, the Will Theory and the Interest Theory, the nonidentity argument seemingly entails that future people have no rights. After exploring how this is the case, the conception of harm underlying the nonidentity argument is analyzed. Two types of interests future people may have in prenatal identity-determinative events (constitutive interests and threshold interests) are explored as possible sources of certain rights future people may have - the nonidentity argument notwithstanding. The article then elaborates and assesses the merits of these approaches. (shrink)

How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this 'legal positivist' school of jurisprudence, the law endorses rights by some official (...) act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.

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The article critically analyzes the conservative conception of passive or static human dignity in accordance with which human’s value is seen as value coming from the exterior (from God or from a biological human’s nature), or value seen as existing per se. In opposition to this conception, a conception of active or created dignity is being developed, which aims at treating human’s dignity not like a social relationship, but rather like a person’s individual ability to live properly in the society (...) (participate in barter relations on the ground of equivalence) and using this propriety to create own individual social value (dignity), as a personal contribution towards maintenance of concord and collaboration in the society. (shrink)

Many believe the existence of a moral right to some good should lead to recognition of a corresponding legal right to that good. If, for instance, there is a moral right to healthcare, it is natural to believe countries should recognize a legal right to healthcare. This article demonstrates that justifying legal rights to healthcare is more difficult than many assume. The existence of a moral right is insufficient to justify recognition of a corresponding justiciable (...) constitutional right. Further conditions on when it is appropriate to recognize constitutional rights are rarely satisfied in the healthcare case. And focusing on aspirational or statutory rights presents costs for those seeking to justify legal rights on the basis of corresponding moral ones while maintaining empirical challenges for justifying constitutional rights. This suggests movement from a moral right to a corresponding legal one is far from straightforward and justifies examining alternative means of realizing moral socio‐economic rights such as the proposed moral right to healthcare. (shrink)

This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental (...) class='Hi'>legal rights and the nature of conflicts among them. -/- Theories of rights are necessarily abstract, aiming at providing the best possible answers to pressing social problems. Yet such theories must also respond to the real and changing dilemmas of the day.Taking up the problem of conflicting rights, Zucca seeks a theory of rights that can guide us to a richer, more responsive approach to rights discourse. -/- The idea of constitutional rights is one of the most powerful tools to advance justice in the Western tradition. But as this book demonstrates, even the most ambitious theory of rights cannot satisfactorily address questions of conflicting rights. How, for instance, can we fully secure privacy when it clashes with free speech? To what extent can our societies assist people in dying without compromising the protection of life? Exploring the limitations of the rights discourse in these areas, Zucca questions the role of law in settling ethical dilemmas helping to clarify thinking about the limitations of rights discourse. (shrink)

The aim of the paper is to examine the nature of moral and legal norms in a broader context: first, taking into account logical and methodological assumptions, second, in the perspective of psychology of emotions and legal policy. The basic subject of the research carried out by Leon Petrażycki was represented by law. Originally, it had a psychological character, not an objective, eternal, and unchanging one. To fully understand the genesis and nature of morality and law, Petrażycki addressed (...) the study of mental phenomena, especially emotional experiences. First, however, he developed appropriate rules of logic and scientific methodology. Then he developed a new classification of mental phenomena, among which the fundamental role is played by bilateral emotions. At some stage, emotions begin to cooperate with cognitive processes, first of all with imaginations. Imaginations of acts, such as theft, betrayal, murder, can cause repulsive emotions, and type imaginations, such as truthfulness, charity, justice can evoke apulsive emotions. On the basis of such associations, judgments are created over time, the content of which becomes a basis for fundamental rules of conduct, that is, for norms. There are two fundamentally different types of norms: moral norms and legal norms. The norms of the first type are imperative and represent the nature of validity, while the norms of the second type are imperative-attributive and they also always entitle someone to something, i.e. they give someone a right. This division determines a fundamental difference between morality and law. (shrink)

In the wake of the advent of genome editing technology CRISPR-Cas9 (clustered regularly interspaced palindromic repeat (CRISPR)-associated protein 9), there has been a global debate around the implications of manipulating the human genome. While CRISPR-based germline gene editing is new, the debate about the ethics of gene editing is not – for several decades now, scholars have debated the ethics of making heritable changes to the human genome. The arguments that have been raised both for and against the use of (...) genetic technologies in human reproduction reiterate much of the arguments made in the pre-CRISPR debate. As such, it is instructive for South Africa to reflect on these arguments now, in considering our position on the regulation of the use of this novel biotechnology. There are two dominant schools of thought in this area, bioliberalism and bioconservatism. Bioconservatives raise concerns about the risks of genetic manipulation, and argue that it ought to be limited or prohibited to avert these risks to human health and human nature. Bioliberal scholars are more open to the prospect of genetic manipulation, because of its potential utility. In this article, I conclude that in liberal democracies such as our own, bioliberal arguments ought to be seriously considered when formulating policy on human genome editing because of the extent to which they resonate with our Constitutional values and human rights. I further suggest that there is a need for an enquiry into the relevance of African perspectives on the ethical questions that arise concerning germline genome editing. (shrink)

As Next Generation Sequencing technologies are increasingly implemented in biomedical research and care, the number of study participants and patients who ask for release of their genomic raw data is set to increase. This raises the question whether research participants and patients have a legal and moral right to receive their genomic raw data and, if so, how this right should be implemented into practice. In a first step we clarify some central concepts such as “raw data”; in a (...) second step we sketch the international legal framework. The third step provides an extensive ethical analysis which comprehends two parts: an evaluation of whether there is a prima facie moral right to receive one’s raw data, and a contextualization and discussion of the right in light of potentially conflicting interests and rights of the data subject herself and third parties; in a last fourth step we emphasize the main practical consequences of the ethical analyses and propose recommendations for the release of raw data. In several legislations like the new European General Data Protection Regulation, patients do in principle have the right to receive their raw data. However, the procedural implementation of this right and whether it involves genetic counselling is at the discretion of the Member States. Even more questions remain with respect to the research context. The ethical analysis suggests that patients and research subjects have a moral right to receive their genomic raw data and addresses aspects which are also of relevance for the legal discussion such as the costs of release of raw data and its impact on academic freedom. Taking into account the specific nature and implications of genomic raw data and the contexts of research and health care, several concerns and potentially conflicting interests of the data subjects themselves and involved researchers, physicians, biomedical institutions and relatives arise. Instead of using them to argue in favor of restrictions of the data subjects’ legal and moral right to genomic raw data, the concerns should be addressed through provision of information and other measures. To this end, we propose relevant recommendations. (shrink)

This article attempts to explain why Uruguayan judges have lagged behind judges in Chile and Argentina in the prosecution of the military for human rights violations committed during the dictatorship period in the 1970s and 1980s. By tracing judicial human rights activity in Uruguay from the transition to democratic rule in 1985 until the end of 2002, I argue that Uruguayan judges have been actively restricted by an aggressive anti-human rights policy expressed through a national amnesty law (...) and explicit executive interference in judicial matters. Structural changes to the judiciary might have aided Uruguayan judges to overcome these barriers. Instead, failure to reform the judiciary has prolonged its conservative nature and made judges slow in responding to international legal development in the human rights field. (shrink)

This chapter contains section titled: Continental and Noncontinental Perspectives The English Perspective: The Rejection of Natural Law and Natural Rights The Continental Perspective: Kant on Natural Law and Natural Right The Continental Perspective: The Critique of Natural Right and Natural Law The Revival of Natural Law: The Thomistic Perspective The Transformation of Natural Law: Stammler's Doctrine of the Social Ideal Natural Law as a Worldview: Radbruch's Theory of Law and Justice (...) Conclusion References Further Reading. (shrink)

This essay maintains that the question in its title is really three sets of questions: a conceptual inquiry, a moral/political inquiry, and an empirical inquiry. After devoting some attention to the relevant conceptual issues, the essay ponders in detail the moral/political issues. It suggests some answers to the germane moral/political questions, and it takes pains to distinguish those questions from other lines of inquiry with which they might be confused. Although only animals and dead people are mentioned in the title, (...) the essay also considers whether infants, comatose people, lunatics, future generations, groups, trees, and natural phenomena such as rivers should be classified as potential holders of legal rights. (shrink)

Human Rights as Human Independence offers a comprehensive, systematic, and complete account of the nature, content, and scope of human rights to be used to interpret international documents and make informed decisions about how human rights practice must continue in the years to come.

In Religion within the Bounds of Bare Reason Kant speaks of an ethical state of nature and of an ethico-civil condition, with explicit reference to the juridical state of nature and the juridico-civil condition he discusses at length in his legal-political writings. Given that the Religion is the only work where Kant introduces a parallel between these concepts, one might think that this is only a loose analogy, serving a merely illustrative function. The paper provides a first outline of (...) the similarities and the differences between the state of nature and the civil condition in Right and in ethics. The comparison points to a deeper, structural relation between the two pairs of concepts. By doing so, it makes room for developing a unitary conception of the state of nature and of the civil condition, which would underlie both the ethical and the juridical version. (shrink)

That nature, including insentient entities such as trees, rivers, or ecosystems, should be recognized as right-holders is an enticing thought that would have substantial practical repercussions. But the position finds little support from moral conceptions of rights and moral distinctions that have judicial relevance in the sense of providing normative reasons for legislation and assessing existing laws. An alternative to viewing rights of nature as proper rights resting on valid moral claims that ought to be legally recognized (...) is to regard them as ‘manifesto’ rights. Such rights are based on political demands and hold even if there is no one with a corresponding duty to fulfill them. I investigate whether rights of nature can be considered manifesto rights. Some objections to regarding rights of nature as manifesto rights will be considered, such as difficulties of delimiting the borders of an environmental entity and making successful analogies with existing (human) rights based on interests and needs. It will be suggested that while some of those challenges can be mitigated by custodianship, it is not clear what needs of insentient entities in nature would justify such claims. It is found that rights of nature depend substantially on legitimate custodians both for delineation of the entity in question and for establishing interest-like characteristics. But rights of nature are not manifesto rights when there is a legitimate custodian having the possibility of evoking duties in others. However, the need for a legitimate custodian in delimitation and establishing normatively relevant characteristics of specific environmental entities defeats universal appeals to rights of nature. (shrink)

Focusing on contemporary Bolivia, this article examines promises and pitfalls of political and legal initiatives that have turned Pachamama into a subject of rights. The conferral of rights on the indigenous earth being had the potential to unsettle the Western ontological distinction between active human subjects who engage in politics and passive natural resources. This essay, however, highlights some paradoxical effects of the rights of nature in Bolivia, where Evo Morales’ model of development relies on (...) the intensification of the export-oriented extractive economy. Through the analysis of a range of texts, including paintings, legal documents, political speeches and activist interventions, I consider the equivocation between the normatively gendered Mother Earth that the state recognises as the subject of rights, and the figure of Pachamama evoked by feminist and indigenous activists. Pachamama, I suggest, has been incorporated into the Bolivian state as a being whose generative capacities have been translated into a rigid gender binary. As a gendered subject of rights, Pachamama/mother Earth is exposed to governmental strategies that ultimately increase its subordination to state power. The concluding remarks foreground the import of feminist perspectives in yielding insights concerning political ontological conflicts. (shrink)

This paper offers a brief account of Finnis' Natural Law Legal Theory (NLLT), primarily as it is presented in Natural Law and Natural Rights, and then defends Finnis' NLLT against the recent legal positivist criticism made by Matthew H. Kramer.

Dissertation outline: I begin my dissertation by charting and assessing two competing approaches to theorise about the nature of knowledge – modalism and explanationism. According to the former, knowledge equates with a belief which is true in a relevant set of possible worlds; according to the latter, knowledge is a matter of believing the truth on the basis of the right explanation. When it comes to the competition between modalism and explanationism in traditional epistemology, I reject explanationism and I endorse (...) modalism: I move novel objections against the most recent explanationist account of knowledge and I develop a novel version of modalism. This new version of modalism consists of a different safety condition which is informed by the etiological theory of functions made popular in the philosophy of biology. I argue that it does better than both extant versions of modalism and extant versions of explanationism. I then move on to the contrast between modalism and explanationism in the context of applied legal epistemology. By emphasising a few structural connections between knowledge and legal proof, epistemologists have moved quite freely from a modalist account of knowledge to a modalist account of legal proof. A case in point is Duncan Pritchard, who proposes a modal condition for knowledge and then extends it to legal standards of proof. On this second issue, I see things differently: in legal epistemology, I endorse explanationism and I reject modalism. Accordingly, I object to influential modal accounts of legal proof and I offer an alternative explanationist account. I develop an account of legal proof as an inference to the best contrastive explanation: by drawing on up-to-date literature on abductive reasoning in the philosophy of science, I bring into focus hitherto unappreciated connections between the nature of legal proof and the structure of scientific explanation. The final upshot is a well-informed account of legal proof which does away with modal conditions and better captures the nature of juridical proof. My dissertation advances two closely related debates by emphasising a neat separation between modalism and explanationism: while the former is the right approach to theorise about the nature of knowledge, only the latter can provide a satisfactory account of legal proof. Such separation offers a new picture of the relationship between knowledge and legal proof, and it provides new insights into several debates at the intersection of traditional and applied legal epistemology. (shrink)

This chapter contains sections titled: Introduction On Law and Morality Legal Rights and Legal Principles Law and Legal Systems Deontic Logic and Legal Philosophy Philosophical Doctrines in Latin America Conclusion References.

"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.

A defining feature of democracy is the inclusion of members of the political association. However, the corresponding right to exclusion has attracted undeservedly scant attention in recent debates. In this paper, the nature of the right to exclusion is explored. On the assumption that inclusion requires the allocation of legal power-rights to the people entitled to participate in the making of collective decisions, two conceptions of the right to exclusion are identified: the liberty-right to exclude and the claim-right (...) to exclude. The choice between them depends on the nature of the interests that justifies the power-rights of people included. The position is defended that if rights to democratic participation are power-rights, we must also accept that the people included have claim-rights to the exclusion of non-members. (shrink)

This book gives an account of a full spectrum of property rights and their relationship to individual liberty. It shows that a purely deontological approach to justice can deal with the most complex questions regarding the property system. Moreover, the author considers the economic, ecological, and technological complexities of our real-world property systems. The result is a more conceptually sound account of natural rights and the property system they demand. If we think that liberty should be at (...) the centre of justice, what does that mean for the property system? Economists and lawyers widely agree that a property system must be composed of many different types of property: the kind of private ownership one has over one's person and immediate possessions, as well as the kinds of common ownership we each have in our local streets, as well as many more. However, theories of property and justice have not given anything approaching an adequate account of the relationship between liberty and any other form of property other than private ownership. It is often thought that a basic commitment to liberty cannot really tell us how to arrange the major complexities of the property system, which diverge from simple private ownership. Property and Justice demonstrates how philosophical rigour coupled with interdisciplinary engagement enables us to think clearly about how to deal with real-world problems. It will be of interest to political philosophers, political theorists, and legal theorists working on property rights and justice. (shrink)

Now available Open Access! See the Bloomsburycollections URL below. -/- Correct bibliographical information is as follows: Gottfried Achenwall, _Natural Law: A Translation of the Textbook for Kant's Lectures on Legal and Political Philosophy_, edited by Pauline Kleingeld, translated by Corinna Vermeulen, with an Introduction by Paul Guyer. London: Bloomsbury, 2020. -/- As the first translation into any modern language of Achenwall’s Ius naturae, from the 1763 edition used by Immanuel Kant, this is an essential work for anyone interested in (...) Kant, the natural law tradition or the history of legal and political theory. For over twenty years, Kant used this book as the basis for his lectures on natural law. It influenced his legal and political philosophy as well as his ethics, and it is indispensable for understanding Kant’s Feyerabend Lectures on Natural Law and his Metaphysics of Morals. -/- Articulating his theory of natural law with clear definitions and precise distinctions, Achenwall offers a lucid account that includes instructive comparisons with the work of Grotius, Hobbes, Pufendorf, Wolff and others. The volume also contains an Introduction by the eminent Kant scholar Paul Guyer, comparing Achenwall’s theory to the legal and political philosophy of Kant’s Doctrine of Right, and a concordance correlating Achenwall’s Natural Law to Kant’s Feyerabend Lectures on Natural Law. (shrink)

In a study published in late April in Nature Communications, the authors were able to sustain 105- to 115-day-old premature lamb fetuses—whose level of development was comparable to that of a twenty-three-week-old human fetus—for four weeks in an artificial womb, enabling the lambs to develop in a way that paralleled age-matched controls. The oldest lamb of the set, more than a year old at the time the paper came out, appeared completely normal. This kind of research brings us one step (...) closer to providing excellent quality of life for premature newborns, but it also portends major legal and ethical questions, especially for abortion rights in America. (shrink)

This essay focuses on the interrelationship of regulation and private life in human rights. It argues three main points. Article 8 connects the question of protection of private lives and privacies with the question of their management. Thus, Article 8 orients regulatory practices to private lives and privacies. Article 8’s holders are autonomous to the extent that laws respect their private lives and privacies. They are not autonomous in a ‘pre-political’ sense, where we might expect legal rules to (...) protect an already autonomous private life or privacy. Article 8 does not simply prohibit or permit acts. In certain cases, it also ‘enables’ acts. Then, this essay introduces the idea of oikopolitics. This idea allows us to capture these three points in a useful manner. By this idea, this essay means the context where the interpretation of privacy reaches out to broader social practices and norms and where the status of rights-holders living their private lives makes them objects of attention. (shrink)

Ambiguous interpretation of the concept of gender equality has caused problems in understanding and legal support of the concept of gender. This and the global democratic process contribute to the relevance of the issue and generate the need for its thorough study. The article aims to define the essence of the concept “gender,” analyze the legal support of gender policy, and develop proposals for its improvement in Ukraine. In the study, we applied theoretical (analysis, synthesis, generalization, systematization) and (...) empirical (observation) methods. The article also uses methods of statistical and comparative analysis, extrapolation, dialectical method, etc. We analyzed the content of gender policy and its consequences and identified the features of its legal support and impact on society. To replace the concepts of gender, gender equality, and its derivatives with “equality of rights of men and women” proved expedient. Proposals for improving the legal support of gender policy in Ukraine were developed. The article has a multidisciplinary nature and will appeal to a broad readership from lawyers to psychologists to raise awareness and competence in this area. (shrink)

The article defines the nature of the Russian war against Ukraine in the context of social and state transformations of the 20th — 21st centuries. It is emphasized that this is a war of different worlds, mentalities, worldviews, ways of life, values, etc., which has been going on for many centuries in various forms (direct and mediated, open and veiled, hot and cold). The role of the religious-legal factor in the Russian war against Ukraine at various stages of Ukrainian (...) state formation (periods of the Ukrainian People’s Republic, Soviet, modern) is revealed. It is emphasized that it was during the time of the Ukrainian People’s Republic that the legal basis for the organization of the Ukrainian Local Orthodox Church, confessional differentiation and the establishment of freedom of conscience and interconfessional tolerance in Ukrainian society was created. Emphasized attention is paid to the fact that in the Soviet period, the Russian war against Ukraine continued in a new, veiled, hidden, invisible (at first glance) form with the active use of the religious factor. The results of this period have been determined, namely: rampant militant/ scientific atheism, radical extermination, Russification of Ukrainian Orthodoxy, liquidation of the Ukrainian Autocephalous Orthodox Church and the Ukrainian Greek Catholic Church, etc. Special attention is paid to the Soviet secular/political religion (Marxism-Leninism) as a key basis for the implementation of an aggressive policy regarding the historical memory and cultural identity of the Ukrainian people and a manipulative tool for the destruction of Ukrainian history, culture, worldview, nation, state and law in the information, hybrid, total, full-scale and other Russia’s wars against Ukraine. The article substantiates that improved legislation with an effective legal mechanism for its implementation, a strong civil society with developed institutions, including the institution of religion (church), adequate guarantees of religious rights and freedoms are important factors in ensuring state, national, religious security and victory of Ukraine (at the current stage) in the war waged against it by the Russian Federation. (shrink)

The article reveals the nature and manifestations of Ukrainian religious pluralism. Despite the constant interest in the topic - the plurality of religious life in Ukraine, science has not yet clarified the causes and roots of this phenomenon. The author analyzes the historical, psychological, socio-political factors that caused the religious diversity of Ukraine. The presence of many religious traditions within one ethnic and state territory promotes tolerant relations between bearers of different religious beliefs. Ukraine's religious plurality distinguishes Ukrainians from other (...) nations. This gives grounds to consider Ukraine a unique religious phenomenon of the European level. Religious plurality is a condition for the establishment of the principles of freedom of religion, freedom of choice. The author derives worldview plurality and polydenominationalism in Ukraine from the history of the Ukrainian people, looking for their origins in the pre-Christian and later early Christian era. The presence of heresy in Ukraine as a generalized form of coexistence of different worldviews explains the current richness of religious traditions, their syncretization. The article makes an intermediate conclusion that the history itself, living conditions, national character of the people formed Ukraine denominationally plural. Based on such a historical foundation, since gaining state independence in 1991, Ukraine has been self-determined in its priorities regarding the country's spiritual / religious development. The Law “On Freedom of Conscience and Religious Organizations” adopted by the Verkhovna Rada of Ukraine created a legal basis for the equal existence and development of different religions in Ukraine. The plurality of Ukrainian society is enshrined in law. The basic principles of the plurality of religious life are confirmed by specific digital data that illustrate the richness of religious traditions in Ukraine quantitatively and qualitatively. The author provides statistics on all religions and denominations that exist in Ukraine, giving the number of communities, monasteries, schools, priests, publications and more. Detailed information seeks to form a holistic picture of the religious life of Ukraine. The analyzed data give grounds to single out the factors that determine the religious plurality of Ukraine. According to the author, at the beginning of the XXI century the denominational network of Ukraine has largely already formed. The mass emergence of new religious movements is unlikely. Nevertheless, Ukraine has not yet exhausted all the possibilities of religious pluralism. It can grow not only due to the emergence of some exotic, technological, syncretic religions, but also because of intra-confessional division or unity of communities. In Ukraine, there are structures that cultivate interreligious tolerance, which will ensure a high level of religious freedom. However, religious pluralism in Ukraine is periodically threatened by various circumstances - internal and external, general and local, collective and personal. In conclusion, religious pluralism is determined as a guarantor of religious freedom, the right of everyone to profess his chosen system of spiritual values. (shrink)

The book comprises contemporary legal theory pertaining to Democratic States based on the Rule of Law from the perspective of general principles of law. It explains in detail, theoretically and based on the specific case law, the phenomenon of general principles of law - as a source of law and directly applicable legal norms. It is a work of legal theory, legal philosophy, and legal method, but it will also assist scholars and practitioners in the (...) transitional justice field as it shows how this theory of general principles of law has assisted Latvia to move away from the socialist legal tradition. (shrink)

This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it (...) might stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in. (shrink)

The relationship between legal pluralism and international human rights law is a complex and multi-faceted one. To fully appreciate the nature of this relationship, one has to desegregate the various forms of legal pluralism and analyse whether in their existence or operation they are compatible with international human rights law. This article undertakes such an exercise drawing on the jurisprudence of global and regional human rights bodies. In doing so, it goes beyond a mechanical audit (...) of legal pluralism in the light of specific human rights and explores more foundational issues such as the nature and extent of a State’s human rights obligations when legal pluralism exists within its borders, the possibility of waiving human rights and questions of cultural relativism which hover over any discussion of legal pluralism. What emerges from this analysis is that a tentative conceptual framework exists to regulate the relationship between legal pluralism and international human rights law. It is one that not only requires the State to render legal pluralism compatible with human rights but also stipulates the process by which this should be done. Effectively implemented, it can achieve this objective and harness the pull of religious and customary law to ensure the more effective protection of human rights. (shrink)

Some philosophers defend legal punishment by appealing to a natural right to punish wrongdoers, a right people would have in a state of nature. Many of these philosophers argue that legal punishment can be justified by transferring this right to the state. I’ll argue that such a right may not be transferrable to the state because such a right may not survive the transition out of anarchy. A compelling reason for the natural right claim – that (...) in a state of nature there are few if any viable non-punitive enforcement options – isn’t obviously true in state contexts. (shrink)

This essay has two purposes. The first is to argue that our moral duties towards human embryos should be assessed in light of the Golden Rule by asking the normative question, “how would I want to be treated if I were an embryo?” Some reject the proposition “I was an embryo” on the basis that embryos should not be recognized as persons. This essay replies to five common arguments denying the personhood of human embryos: (1) that early human embryos lack (...) ontological individuation; (2) that they are members of the species Homo sapiens but not yet human persons; (3) that the argument for personhood commits the “heap argument” fallacy; (4) that since human procreation in nature is inefficient, human embryos cannot be persons; and (5) the “burning building” scenario proves that all arguments for personhood are irrational or inconsistent. The second purpose is to set forth and criticize in light of the normative judgement defended in part one the present legal situation of cryo-preserved embryos in the U.S. The essay ends by proposing legislative reforms to protect ex utero human embryos. (shrink)

The rights granted to individuals by the legal system are examined with a fundamental distinction as regards their economic value as "property rights" and "personal rights". Property rights, which differ from personal rights in terms of their economic value, are characterized as ‘absolute’ if they can be asserted against everyone and as ‘relative’ if they can only be claimed against the convict on behalf of the debtor. If absolute property rights are based on (...) a tangible (physical) subject, they are referred to as real rights. Real rights and rights of claim that have relative characteristics and can therefore only be used through the act of a specific person constitute two important components of a property. Although various attempts have been made to bring these two types of rights closer together in the historical process, these rights have continued to be considered different in terms of both nature and legal implications. The aforementioned difference arises from the form of dominance over the subject of the right, whether it is direct or indirect, the impact of these rights on the ownership of the property, whether the right is absolute or relative, whether it is continuous or not, and priority/superiority, which will be discussed in detail in the article. The conceptual framework and terms belonging to the Continental European legal system are also found in Islamic legal doctrine in similar or equivalent forms. In this context, the term "milk" has been used in the fiqh literature to encompass all property rights, and terms such as "milk al-ayn," "milk al-manfaa," "milk al-dayn," and "milk al-habs wal-yad" have been developed depending on the nature of the property subject to the right. Real rights and personal rights constitute two important parts of the asset. In some cases where legal interests between people are confronted, it may be necessary to choose between these two types of rights. In such cases, considering the authorities it contains, a kind of priority has been given to real rights over personal rights. One of the cases where this priority is most clearly seen is when a leased property is transferred to third parties while the current lease agreement is in effect. In Islamic law, the authorities granted to the person by the lease contract differ from the Continental European legal system. At this point, the powers granted by the lease contract in Islamic law differ from those in the Continental European legal system. This article argues that the right of the tenant in this regard is considered as real right in Islamic law, unlike in the Continental European legal system. To justify this, the authorities granted to the tenant in Islamic law have been examined in cases where the leased property is transferred to third parties through means that can be interpreted as unlawful acts such as sale, lease, or usurpation during the lease period. In addition, the unique approach of Islamic law on this issue has been expressed by considering both classical and modern fiqh works, and by making comparisons with Turkish law. (shrink)

The chapter's concern is meta‐theoretical and pertains to the nature of human rights theory. Interestingly, most human rights theorists do not spend much time stating what their theory is a theory of, and hence what kind of theory it should be. The chapter argues in favour of taking the legal dimension of human rights more seriously and, more specifically, for a legal theory of human rights. Making human rights law the object of human (...) rights theory has two advantages: one substantive and the other methodological. First of all, it makes for a deeper understanding of the nature of human rights as a practice, and hence of many questions in human rights theory. A second benefit lies in the resources of legal theorizing, and in particular the latter's experience in explaining and evaluating normative practises. A related contribution of the proposed legal human rights theory is that it can bridge the gap that has grown within existing human rights theories between human rights practice and human rights standards, and so‐doing reconcile so‐called “political” and “ethical” human rights theories out of their sterile opposition. (shrink)

The Endangered Species Act of 1973 (ESA) is America's strongest environmental law. Its citizen-suit provisionany personawards implicit intrinsic value, de facto standing, and operational legal rights (sensu Christopher D. Stone) to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 (Palila v. Hawaii Dept. of Land & Natural Resources) and 2004 (Cetacean Community v. Bush), when the Ninth Circuit Court of Appeals ruled that animals could (...) not sue in their own name. Because the Supreme Court has interpreted its habitat destruction as the of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases (culminating with Bennett v. Spear) reconciles the ESA's citizen-suit provision with the particularized and concrete standing requirements devolved from Article III. (shrink)

From the end of the twelfth century until the middle of the eighteenth century, the concept of a right of necessity –i.e. the moral prerogative of an agent, given certain conditions, to use or take someone else’s property in order to get out of his plight– was common among moral and political philosophers, who took it to be a valid exception to the standard moral and legal rules. In this essay, I analyze Samuel Pufendorf’s account of such a right, (...) founded on the basic instinct of self-preservation and on the notion that, in civil society, we have certain minimal duties of humanity towards each other. I review Pufendorf’s secularized account of natural law, his conception of the civil state, and the function of private property. I then turn to his criticism of Grotius’s understanding of the right of necessity as a retreat to the pre-civil right of common use, and defend his account against some recent criticisms. Finally, I examine the conditions deemed necessary and jointly sufficient for this right to be claimable, and conclude by pointing to the main strengths of this account. Keywords: Samuel Pufendorf, Hugo Grotius, right of necessity, duty of humanity, private property. (shrink)

The origin and justification of human rights, whether anchored in biological theory, natural law theory, or interests theory, as well as their cultural specificity and actual value as international legal instruments are subject to ongoing lively debates. As theoretical and rhetorical discourses challenge and enrich current understanding of the value of human rights and their relevance to democratic governance, they have found their way into public health in recent decades and play today an increasing role in (...) the shaping of health policies, programs and practice. Human rights define the obligations of states to their people and towards each other, create grounds for governmental accountability and inspire recognition of, and action on, factors influencing people’s attainment of the highest possible standard of health. This article highlights the evolution that has brought health and human rights together in mutually reinforcing ways. It draws from the experience gained in the global response to HIV/AIDS, summarizes key dimensions of public health and of human rights and suggests a manner in which these dimensions intersect in a framework for analysis and action. (shrink)

Recent legal opinions and scholarly works invoke the political philosophy of John Locke, and his claim that there is a natural right of self-defense, to support the view that the 2nd Amendment’s right to bear arms is so fundamental that no state may disarm the people. I challenge this use of Locke. For Locke, we have a right of self-defense in a state of nature. But once we join society we no longer may take whatever measures that seem (...) reasonable to us to defend ourselves: we are bound to the law duly enacted according to the original Constitution to which we consented. For Locke, how best to avoid dissolution of government and preserve individual liberty is for the people to judge collectively, unconstrained by natural proscriptions on gun regulations, limited only by the demands that government not be arbitrary and that it serve the public good. (shrink)

This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen. It provides a single, dedicated space for a range of established European scholars to engage with the influential work of this Austrian jurist, legal philosopher, and political philosopher. The introduction provides a thematization of the Kelsenian notion of law as a legal science. Divided into six parts, the chapter contributions feature distinct levels of analysis. Overall, the structure of the (...) book provides a sustained reflection upon central aspects of Kelsenian legal science and the nature of law. Parts one and two examine the validity of the project of Kelsenian legal science with particular reference to the social fact thesis, the notion of a science of positive law and the specifically Kelsenian concept of the basic norm. The next three parts engage in a critical analysis of the relationship of Kelsenian legal science to constitutionalism, practical reason, and human rights. The last part involves an examination of the continued pertinence of Kelsenian legal science as a theory of the nature of law with a particular focus upon contemporary non-positivist theories of law. The conclusion discusses the increasing distance of contemporary theories of legal positivism from a Kelsenian notion of legal science in its consideration of the nature of law. (shrink)

BackgroundIn 2019, the Constitutional Court of South Korea ruled that the anti-abortion provisions in the Criminal Act, which criminalize abortion, do not conform to the Constitution. This decision will lead to a total reversal of doctors’ legal duty from the obligation to refuse abortion services to their requirement to provide them, given the Medical Service Act that states that a doctor may not refuse a request for treatment or assistance in childbirth. I argue, confined to abortion services in Korea (...) that will take place in the near future, that doctors should be granted the legal right to exercise conscientious objection to abortion.Main textConsidering that doctors in Korea have been ethically and legally obligated to refrain from abortions for many years, imposing a universal legal duty to provide abortions that does not allow exception may endanger the moral integrity of individual doctors who chose a career when abortion was illegal. The universal imposition of such a duty may result in repudiation of doctors as moral agents and damage trust in doctors that forms the basis of medical professionalism. Even if conscientious objection to abortion is granted as a legal right, most patients would experience no impediment to receiving abortion services because the healthcare environment of Korea provides options in which patients can choose their doctors based on prior information, there are many doctors who would be willing to provide an abortion, and Korea is a relatively small country. Finally, the responsibility to effectively balance and guarantee the respective rights of the two agents involved in abortion, the doctor and the patient, should be imposed on the government rather than individual doctors. This assertion is based on the government’s past behaviours, the nature of its relationship with doctors, and the capacity it has to satisfy both doctors’ right to conscientious objection and patients’ right to legal medical services.ConclusionWith regard to abortion services that will be sought in the near future, doctors should be granted the legal right to exercise conscientious objection based on the importance of doctor’s moral integrity, lack of impediment to patients, and government responsibility. (shrink)

The law confers rights on non-human entities, namely nature, machines (AI), and animals. While doing so, the law is either viewed as progressive or sometimes as abstract and ambiguous. Despite the critique, it is undeniable that many of the rights of non-humans have come to solidify in statutory and constitutional rules of different systems. In the context of these developments, the article sheds light on the core justifications for advancing the rights of non-human entities. In addition, it (...) discusses the conditions for the emergence of these rights and the non-binding normative statements adopted by different stakeholders for advocacy. These include the Charter on the Law of the Living (2021), the Toulon Declaration (2019), and the Vienna Manifesto on Digital Humanism (2019), etc. The paper also discusses the relevant theoretical frames, namely post-humanism, digital humanism, and multi-species justice, followed by selective critical views on the subject. (shrink)

The article is focused on studying the philosophical and legal nature of fundamental human rights and freedoms, which are interpreted as natural and inherent in a person from birth. It is shown that the “naturalness” of rights and freedoms is a legal fiction. In reality, natural rights and freedoms have a sociocultural, that is, “artificial” character. They strengthen the achieved level of guarantees of individual freedom and humanity in public relations.

The volume brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: Legal positivism and the nature of law, practical reason, authority, the value of equality, incommensurability, harm, group rights, and multiculturalism. James Griffin and Yael Tamir raise questions concerning Raz's notion of group rights and its application to claims of cultural and political autonomy, while Will Kymlicka and Bernhard Peters examine Raz's theory of multicultural society. (...) Lukas Meyer investigates the applicability of the notion of harm in the intergenerational context. Other papers are devoted to fundamental theoretical tenets of Raz's work. Hillel Steiner and Andrei Marmor examine Raz's account of value pluralism and incommensurability in light of what these authors consider to be goods whose equal distribution must be valued for its own sake. Robert Alexy and Timothy Endicott discuss traditional issues of jurisprudence and legal philosphy with special attention to Raz's contribution. Rüdiger Bittner, Bruno Celano, and J. E. Penner discuss and criticize aspects of Raz's theory of practical reason. Jeremy Waldron presents a critique of Raz's interpretation of authority.This volume concludes with a chapter by Joseph Raz in which he responds to arguments in the foregoing essays. (shrink)