This book traces the early history of the Civil Rights Movement in the United States, showing how brutal police treatment of civil rights demonstrators in Birmingham, Alabama, forced President Kennedy to send a strong civil rights bill to Congress in June of 1963. The various legislative strategies used to get the Civil Rights Act of 1964 through Congress are detailed.

Twice in the _Journal of Business Ethics_, Walter Block provides a libertarian argument that The Civil Rights Act of 1964 is unjust because it is a violation of a business’s property rights and therefore ought to be repealed. No libertarian reply to Block has ever been given, creating the mistaken impression that his argument is the true representation of libertarian theory with regards to civil rights. This paper focuses on Title II and argues that both (...) Block, and this prevailing opinion of libertarian theory, are wrong. There are different types of libertarian theory. Block’s theory of natural rights is one of them, but there is another strain of libertarian thought that embraces the common law, at least as it existed up until the late 1800’s. This paper explicates a libertarian argument, based on the common law, which supports and defends Title II of the 1964 Civil Rights Act. Specifically, the evolution of contracts via assumpsit arguments, found in Blackstone’s _Commentaries,_ endogenously and consistently gives rise to the obligation to serve all. Title II of the 1964 Civil Rights Act is consistent with this common law tradition on public accommodations. Libertarian arguments that accept the common law on contracts ought also to accept common law doctrine on public accommodations and, _perforce_, the justness of Title II. (shrink)

An examination of the historical circumstances surrounding the inclusion of gender in Title VII of the 1964 Civil Rights Act reveals how race, class, and gender operate in complex and contradictory patterns to shape social policy. Two levels of analysis are presented. One focuses on political conflict within the state. The other is a textual analysis of the actual congressional debate on the gender amendment to Title VII.

A persistent paradox apparently infects disability civil rights claims. On the one hand, these rights claims are often understood to apply only to those who are sufficiently impaired in body or in mind to qualify for them because of the disadvantage they endure. On the other hand, asserting significant impairments threatens to undermine the plausibility of these claims as civil rights rather than as welfare for those who are dependent and in need of extra help. (...) Behind this paradox lies a type of categorical understanding of disability civil rights: that disability civil rights are only for those who fall into a category of disability and that this category should be defined in a particular way, in terms of disadvantaging disablement. In this article, I dispel this paradox by deploying a critical analysis of Elizabeth Barnes’s account of physical disability in her recent book, The Minority Body. In her book, Barnes makes the important critical point that disability is not “bad” difference. Instead, she argues that physical disability is a physical condition that the disability rights community is working to promote justice for. I argue that this account fails as a project of ameliorative social metaphysics because it fails to understand the role of impairment in the construction of disability antidiscrimination law. I also argue that her account risks privileging physical disability and is thus problematic as a starting place for examining disability justice. (shrink)

Title VI of the Civil Rights Act of 1964 and its implementing regulations prohibit federally-funded educational institutions and healthcare centers from engaging in disparate impact discrimination “on the ground of race, color, or national origin” in all of their operations.

All of us are entitled to the protections of law against violence, to a high quality education, to decent employment that respects our dignity, and to necessary assistance with our caregiving. Our civil rights are our rights to the protections of ordinary law - not constitutional law, and not only antidiscrimination law - that will ensure that we can participate in civil society, and hence lead flourishing lives. In this innovative work, Robin L. West looks back (...) to nineteenth-century Civil Rights Acts to argue that the point of civil rights law is not only non-discrimination, but also to assure that all of us receive the protection of legal rights that promote human flourishing. Since the 1960s, Supreme Court decisions on civil rights issues have focused on non-discrimination and thus have 'hollowed out' this broader meaning of civil rights law. This book reconceives civil rights as a set of legal guarantees that all will be included in the legal, political, economic and social projects central to civil society. (shrink)

More than two decades after the passage of the Civil Rights Act of 1964, the issues of racial discrimination and affirmative action are still matters of controversy. The fragile national consensus on civil rights policy has been increasingly fragmented by resistance and confusion in recent years, especially under the impact of the Reagan administration's efforts to change its direction dramatically. Similarly, since the mid-1960s, the women's rights movement has worked to end discrimination and bring about (...) greater equality for women in employment and public life. Yet, recent years have witnessed increased national ambivalence about these goals and how they should be achieved, especially on the issue of comparable worth. (shrink)

For all the discussion and debate about civil rights, it is striking how little attention is given initially to the question of what civil rights are. There is no well-understood principle of inclusion or exclusion that defines the category. Nor is there an agreed list of civil rights, except perhaps a very short, avowedly nonexhaustive one, with rather imprecise entries. Yet, if the extension of the category of civil rights is uncertain, its (...) significance is not. All agree that it is a principal task of government to protect civil rights, so much so, indeed, that a failure to protect them usually is regarded as outweighing substantial achievements of other kinds. But a right does not count as a civil right just because it is valuable or valued. Some of the rights most often asserted as civil rights reflect practical interests of their possessors considerably less than other actual or potential rights not so identified. In the United States, familiar legal doctrine provides a shortcut to the specification of civil rights. They are whatever is embraced by the provisions of the federal Civil Rights Acts: the right to vote, fair housing, equal employment opportunity, and so forth. That path, however, is not adequate for the present purpose. For the most part, the statutes refer explicitly or implicitly to federal constitutional rights, and the collective reference to them as civil rights is unexplained. The bases of the constitutional rights are too various to be a reliable guide to an independently designated category of civil rights. (shrink)

The Supreme Court dismissed the Pornography/Civil Rights Ordinance as an unconstitutional restriction of speech. The Court's dismissal itself violates the free speech of the proposers of the Ordinance. It is not possible for both pornographers to perform the speech act of making pornography and feminists to perform the speech act of proposing the Ordinance. I show that the speech act of proposing the Ordinance takes First Amendment precedence over the speech act of making pornography.

The Supreme Court dismissed the Pornography/Civil Rights Ordinance as an unconstitutional restriction of speech. The Court's dismissal itself violates the free speech of the proposers of the Ordinance. It is not possible for both pornographers to perform the speech act of making pornography and feminists to perform the speech act of proposing the Ordinance. I show that the speech act of proposing the Ordinance takes First Amendment precedence over the speech act of making pornography.

Gay Ethics is an anthology that addresses ethical questions involving key moral issues of today--sexual morality, outing, gay and lesbian marriages, military service, anti-discrimination laws, affirmative action policies, the moral significance of sexual orientation research, and the legacy of homophobia in health care. It focuses on these issues within the social context of the lives of gay men and lesbians and makes evident the ways in which ethics can and should be reclaimed to pursue the moral good for gay men (...) and lesbians. Gay Ethics is a timely book that illustrates the inadequacies of various moral arguments used in regard to homosexuality. This book reaches a new awareness for the standing and treatment of gay men and lesbians in society by moving beyond conventional philosophical analyses that focus exclusively on the morality of specific kinds of sexual acts, the nature of perversion, or the cogency of scientific accounts of the origins of homoeroticism. It raises pertinent questions about the meaning of sexuality for private and public life, civics, and science.Some of the issues covered: Sexual Morality Outing Same-Sex Marriage Military Service Anti-Discrimination Laws Affirmative Action Policy The Scientific Study of Sexual Orientation Bias in Psychoanalysis Homophobia in Health Care Gay Ethics presents a wide range of perspectives but remains united in the common purpose of illuminating moral arguments and social policies as they involve homosexuality. The chapters challenge social oppression in the military, civil rights, and the social conventions observed among gay men and lesbians themselves. This book is applicable to a broad range of academics working in gay and lesbian studies and because of its current content, is of interest to an educated lay public. It will be a standard reference point for future discussion of the matters it addresses. (shrink)

The Supreme Court’s construction of the Religious Freedom Restoration Act of 1993 (RFRA) in Hobby Lobby created a great fear among various civil rights groups, especially in the LGBT community, over what the Court might do next regarding rights of same-sex and transgender couples seeking legal protections in employment, housing, and public accommodations. Indeed, if Justice Alito’s majority position is taken for all that its logic implies, then, as Justice Ginsburg’s dissent warns, there is indeed much for (...) the civil rights community to be concerned about. However, as I show in this article, there are good reasons for not treating the Hobby Lobby case as broadly as the majority opinion’s logic might indicate. Hopefully, courts will be inclined to follow this direction. First, Justice Kennedy’s concurring opinion suggests that he joined the majority while also holding a much narrower understanding of the reasoning behind that opinion: namely, that because HHS had established an alternative means for meeting the needs of nonprofit employees where the employer had a religious objection, there was little reason in light of the importance of religious liberty not to extend that same alternative to closely held for-profit organizations. Second, a narrower interpretation of the Court’s opinion seems to better fit with RFRA’s legislative history, notwithstanding the majority’s concern that RLUIPA was passed to imply a broadened expansion of RFRA’s religious protections. It is equally possible and more consistent with RFRA’s adoption that, as the dissent notes, RLUIPA was meant to clarify “that courts should not question the centrality of a particular religious exercise.” Third, a narrow interpretation is more in keeping with the Court’s recognition of health care and equality as compelling concerns of many federal and state laws, alongside the protection of religious freedom. Finally, a narrow reading better resolves the conflict of rights lying in the background between the human right of freedom of conscience and the human right to well-being. It resolves this conflict by ensuring that no one suffers objective harm from either the denial of preventative health care or loss of civil rights protections when a compelling state interest is present, or the harm to conscience is less than substantial. (shrink)

The paper examines the connection between online security and the protection of civil rights from a legal viewpoint, that is, considering the different types of rights and interests that are at stake in national and international law and whether, and to what extent, they concern matters of balancing. Over the past years, the purpose of several laws, and legislative drafts such as ACTA, has been to impose “zero-sum games”. In light of current statutes, such as HADOPI in (...) France, or Digital Economy Act in UK, the paper intends to illustrate how more satisfactory solutions are feasible in the field of online security, such as the new “Police and Criminal Justice Data Protection Directive” that the European Commission presented in January 2012. At least in Western legal systems, it should be clear that either civil rights prevail over security (no balancing), or such balance has to satisfactorily protect individual rights (proportionality). (shrink)

South Carolina State College was founded in 1896. As one of the Black institutions taking advantage of the Second Morrill Act of 1890, a large portion of the college's limited financial resources, its energies, and its programs were devoted to training students in agriculture, home economics, vocational trades, and in the education of teachers. These curriculums were considered appropriate for young Black men and women in the late nineteenth and early twentieth centuries.When the civil rights movement began to (...) challenge segregation in education in South Carolina in the late 1940s and early 1950s, the state's white leaders responded quickly and effectively by creating graduate and law programs at State College. To preserve the racial status quo and segregation in education, Governor James F. Byrnes subsequently raised funds, including one-half million dollars from the Rockefeller sponsored General Education Board, to improve long neglected facilities at State College. A sizable portion of the funds were devoted to the agricultural program.While the defense of “separate but equal” education by Byrnes and others ultimately failed, the changes fostered at State College did dramatically improve the institution in the 1950s and 1960s and brought a shift in its mission away from its traditional focus on rural and agricultural education for Black youngsters. By 1966, the college was nominally integrated. Paradoxically, in 1971 with enrollments declining and fewer students interested in pursuing agriculture as away of life, the agriculture program was discontinued. (shrink)

This study assesses the extent to which job application forms violate the New Zealand Human Rights Act. The sample for the study includes 229 job application forms, collected from a variety of large and small, public- and private-sector organizations that together employ approximately 200,000 workers. Two hundred and four or 88% of the job application forms contain at least one violation of the Act. One hundred and sixty five or 72% contain two or more and 140 or 61% contain (...) three or more violations. The most common violations concern age, gender, nationality, and disability. The least common concern political opinion, ethical belief, religious belief, and sexual orientation. Despite widespread violations, many forms do have non-discriminatory questions that yield the same kind of useful information as discriminatory questions. Employers could incorporate these into their job application forms to bring themselves into compliance with the law. The same lessons also generally apply to North American employers, given the high degree of comparability between American, Canadian, and New Zealand anti-discrimination laws. (shrink)

ABSTRACTOn 4 September 2015 asylum seekers who got stranded in Budapest’s Keleti train station began a march to cross the Austrian border. Their aim was to reach Germany and Sweden where they believed their asylum claims would be better received. In this article, I argue that the march should be characterized as an act of civil disobedience. This claim may seem to contradict common convictions regarding acts of civil disobedience as well as asylum seekers. The most common justifications (...) are given with reference to moral rights of citizens and concerns for enhancing justice or democracy within states. Asylum seekers are not members of the European public. How can they be entitled to break the law? I first show that the march displays features of a paradigm case of civil disobedience. Then, I identify moral reasons for asylum seekers to carry out the march acceptable from both strong and weak cosmopolitan perspectives. After that, I point out its corrective, stabilizing and democracy-enhancing roles in the European political landscape. I conclude by emphasizing that conceptualizing the march as an act of civil disobedience is significant in recognizing asylum seekers as political agents making claims within an evolving framework of refugee protection. (shrink)

This commentary explores the scope and content of the Protection from Harassment Act, recently introduced in the UK, focusing in particular on s.3 which creates a civil cause of action for harassment. The author considers the strategic possibilities for feminists concerned with enhancing remedies for sexual harassment as well as the drawbacks of the Act, particularly its capacity to be deployed in a wide range of contexts not all of which necessarily promote justice or enhance civil and political (...) rights. The author concludes by emphasising the important role of the courts in defining and delineating the scope of the Act as well as exploring the possibility of continued development of the common law principle in Wilkinson v. Downton. (shrink)

PurposeThe purpose of this paper is to study the evolution of Freedom of Information/Right to Information from an international perspective and analyse it as an indispensable tool for good governance through the use of information and communication technologies with special reference to India.Design/methodology/approachThis study examines the worldwide occurrence of Right to Information with reference to International Covenants, the genesis of RTI Act in India and the use of ICT in India as a tool for empowering the citizen's.FindingsThe study demonstrates that (...) RTI has far reaching impact and it clearly contributes to a better and informed citizenry however the use of ICT in India can further facilitate the access of such records.Research limitations/implicationsThe study focuses on the genesis of RTI from an international perspective but the use of ICT for further facilitating the use of RTI is limited to Indian context.Practical implicationsThe paper will outline a detailed analysis on the present usage of ICT and the initiatives taken for facilitating information dissemination and further provide suggestions for the benefit of civil society towards good governance.Originality/valueThe study is the first to address the issue of the implementation of right to information act through the use of ICT and also suggests methodology for its further improvement. Also, the study comprehends the genesis of RTI both from the international as well as Indian perspective. (shrink)

The analysis of approaches to understanding of jural facts is accomplished in the article. The definition of right depriving jural facts in civil law is brought. It’s researched the classical for Roman-Germany legal system reasons for deprivation of right of property and the concrete actions or events that deprive such a right are analyzed. All examined facts of property rights deprivation could be classified and arranged into four basic groups: cessation of the property existance (destruction of property), cessation (...) of the owner existance (death of a natural person, liquidation of the legal entity), transaction on alienation (alienation of the property by the owner, requisition), administrative act (abandonement of the property by the owner, foreclosure on the property for the owner obligations, seizure). Such deprivation of property rights as termination of the right to property, which can not belong to the person, and the compulsory acquisition may occur through jural facts like seizure or administrative act. In the case of requisition termination of right takes place directly at the moment the relevant administrative act comes into force. In other words only destruction of property, death of a natural person or legal entity liquidation can be regarded totally as depriving jural facts. All jural facts of right of property deprivation can be grouped but can not be reduced to basic groups. The law model must determine the circumstances under which the model will lead to the desired legal result, otherwise the legal facts were too extensive and could take place even in undesirable cases. In this context these circumstances are conditions of jural fact o occurence. That is why, for example, "termination of the right to property, which can not belong to the person" is only a general name of right-depriving jural fact or even a specific mechanism of depriving the right itself, and therefore includes in its content as well as the actual jural fact and conditions of its occurence. In conclusion all the right-depriving jural facts are divided into unconditional, those which occurence is not associated with additional conditions established by rule of law (death of natural person, destruction of property) and conditional, the result of which is achieved only under certain circumstances (conditions). (shrink)

This book analyses the general structure of constitutional rights reasoning under the German Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.

Civil liberty and privacy advocates have criticized the USA PATRIOT Act (Act) on numerous grounds since it was passed in the wake of the World Trade Center attacks in 2001. Two of the primary targets of those criticisms are the Act’s sneak-and-peek search provision, which allows law enforcement agents to conduct searches without informing the search’s subjects, and the business records provision, which allows agents to secretly subpoena a variety of information – most notoriously, library borrowing records. Without attending (...) to all of the ways that critics claim the Act burdens privacy, I examine whether those two controversial parts of the Act, the section 213 sneak-and-peak search and the section 215 business records gag-rule provisions, burden privacy as critics charge. I begin by describing the two provisions. Next, I explain why those provisions don’t burden privacy on standard philosophical accounts. Moreover, I argue that they need not conflict with the justifications for people’s claims to privacy, nor do they undermine the value of privacy on the standard accounts. However, rather than simply concluding that the sections don’t burden privacy, I argue that those provisions are problematic on the grounds that they undermine the value of whatever rights to privacy people have. Specifically, I argue that it is important to distinguish rights themselves from the value that those rights have to the rights-holders, and that an essential element of privacy rights having value is that privacy right-holders be able to tell the extent to which they actually have privacy. This element, which is justified by the right-holders’ autonomy interests, is harmed by the two provisions. (shrink)

Acts of civil disobedience are undertaken in defense of a variety of causes ranging from banning GMO crops and prohibiting abortion to fighting inequality and saving the environment. Recently, Brownlee has argued that the merit of a cause is not relevant to the establishment of a moral right to civil disobedience. Instead, it is the fact that a dissenter believes his cause for protest to be morally right that is salient. We may term her and similar such theories (...) belief-relative theories of civil disobedience. In this paper, I first argue that Brownlee’s important argument from conscientious conviction fails in its aim to establish a belief-relative moral right to civil disobedience. I then provide a more general argument that no purely belief-relative theory of civil disobedience grounded in a basic moral value will be tenable. Any moral warrant of civil disobedience that is derived from a value must be limited by the value from which it is derived, as well as by other similarly weighty values. If the moral warrant of civil disobedience is derived from the value of autonomy, then the warrant does not extend to acts of civil disobedience that violate the autonomy of others, or other similarly weighty values. Furthermore, granting a right to disobey in promotion of a grossly unjust view is problematic because civil disobedience ought to serve the role of promoting justice. (shrink)

Acts of civil disobedience are undertaken in defense of a variety of causes ranging from banning GMO crops and prohibiting abortion to fighting inequality and saving the environment. Recently, Brownlee has argued that the merit of a cause is not relevant to the establishment of a moral right to civil disobedience. Instead, it is the fact that a dissenter believes his cause for protest to be morally right that is salient. We may term her and similar such theories (...) belief-relative theories of civil disobedience. In this paper, I first argue that Brownlee’s important argument from conscientious conviction fails in its aim to establish a belief-relative moral right to civil disobedience. I then provide a more general argument that no purely belief-relative theory of civil disobedience grounded in a basic moral value will be tenable. Any moral warrant of civil disobedience that is derived from a value must be limited by the value from which it is derived, as well as by other similarly weighty values. If the moral warrant of civil disobedience is derived from the value of autonomy, then the warrant does not extend to acts of civil disobedience that violate the autonomy of others, or other similarly weighty values. Furthermore, granting a right to disobey in promotion of a grossly unjust view is problematic because civil disobedience ought to serve the role of promoting justice. (shrink)

In his recent work exploring the role of science in democratic societies Kitcher claims that scientists ought to have a prominent role in setting the agenda for and limits to research. Against the backdrop of the claim that the proper limits of scientific inquiry is John Stuart Mill’s Harm Principle , he identifies the limits of inquiry as the point where the outcomes of research could cause harm to already vulnerable populations. Nonetheless, Kitcher argues against explicit limitations on unscrupulous research (...) on the grounds that restrictions would exacerbate underlying social problems. I show that Kitcher’s argument in favor of dissuading inquiry through conventional standards is problematic and falls prey to the same critique he offers in opposition to official bans. I expand the conversation of limiting scientific research by recognizing that the actions that count as ‘science’ are located in the space between ‘thinking’ and ‘doing’. In this space, we often attempt to balance freedom of research, as scientific speech, against the disparate impact citizens might experience in light of such research. I end by exploring if such disparate impact justifies limiting research, within the context of the United States, under Title VII of the Civil Rights Act of 1964 or under international human rights standards more generally. (shrink)

To ensure the protection and promotion of human rights at the African regional level, the African human rights system was established and has been in existence for over three decades. In realisation of its mandates, three supervisory mechanisms have been established to adjudicate human rights cases and issue decisions accordingly. To enhance compliance with these decisions, human rights non-governmental organisations, civil society organisations and the supervisory bodies themselves often act as sources of pressure by exploring (...) different follow-up mechanisms. However, despite their best efforts, the attitude of member states towards compliance with the decisions of the supervisory bodies has been relatively poor. Against this background, this article argues that in improving compliance, civil society—particularly the electorates—in member states can equally be engaged to act as a complementary domestic source of pressure with the aim of raising domestic costs in pressuring member states towards compliance. (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 declaration of equal rights arguably created the modern political community. But this act of empowering individuals caused the disempowering of the political community. Exposing this, Menke opens up a new way of understanding rights that no longer involves the disempowering of the political community.

It is, perhaps, a propitious time to discuss the economic rights of disabled persons. In recent years, the media in the United States have re-ported on such notable events as: students at the nation's only college for the deaf stage a successful protest campaign to have a deaf individual ap-pointed president of their institution; a book by a disabled British physicist on the origins of the universe becomes a best seller; a pitcher with only one arm has a successful (...) rookie season in major league baseball; a motion-picture actor wins an Oscar for his portrayal of a wheelchair-bound person, beating out another nominee playing another wheelchair-bound person; a cancer patient wins an Olympic gold medal in wrestling; a paralyzed mother trains her children to accept discipline by inserting their hands in her mouth to be gently bitten when punishment is due; and a paraplegic rock climber scales the sheer four-thousand-foot wall of Yosemite Valley's El Capitan. Most significantly, in 1990, the United States Congress passed an important bill – the Americans with Disabili-ties Act – extending to disabled people employment and access-related protections afforded to members of other disadvantaged groups by the Civil Rights Act of 1964. (shrink)

We should conceive of illegal covert animal rescue as acts of “subrevolution” rather than as civil disobedience. Subrevolutions are revolutions that aim to overthrow some part of the government rather than the entire government. This framework better captures the relevant values than the opposing suggestion that we treat illegal covert animal rescue as civil disobedience. If animals have rights like the right not to be unjustly imprisoned and mistreated, then it does not make sense that an instance (...) of animal rescue will be justifiable only if it meets criteria for justified civil disobedience, e.g., the requirement that the civil disobedient not rescue more animals than would be necessary to communicate their message. Thus, the framework of subrevolution is a more apt way to analyze animal rescue. (shrink)

It is still an open question whether or not Civil Disobedience (CD) has to be completely nonviolent. According to Rawls, “any interference with the civil liberties of others tend to obscure the civilly disobedient quality of one's act”. From this Rawls concludes that by no means can CD pose a threath to other individuals' rights. In this paper I challenge Rawls' view, arguing that CD can comprise some degree of violence without losing its “civil” value. However, (...) I specify that violence must not be aimed at seriously injuring, or even killing, other individuals. This would contravene the communicative aspect of CD. The main claim is that what really is important is that the civil disobedients be willing to accept the punishment following their law-breaking behaviour. By doing so, they demonstrate the conscientiousness of their civilly disobedient action. This also shows that they are aiming for future cooperation with the State, and are expecting the State to be sensitive to their concern for the principles of justice. (shrink)

This paper asks whether statutory social insurance programs, which provide contributory tax-based income support to people with disabilities, are compatible with the disability rights movement's ideas. Central to the movement that led to the Americans with Disabilities Act is the insight that physical or mental conditions do not disable; barriers created by the environment or by social attitudes keep persons with physical or mental differences from participating in society as equals.The conflict between the civil rights approach and (...) insurance seems apparent. A person takes out insurance to deal with tragedy, such as premature death, or damage, such as accidental harm to an automobile or home. Social insurance, for example, the United States Social Security old-age and disability programs, consists of government-run insurance to cover risks of advanced age and disability for which the private market has not provided affordable coverage. But the civil rights approach to disability posits that disability is not a risk, not tragedy, and not a damage or defect. Instead it is a maladaptation of society to human variation. This paper argues that a justification remains for social insurance under the civil rights approach to disability, and further suggests that expansion of social insurance for disability is both compatible with disability rights principles and supported by wise public policy. (shrink)

Those arguing that conscientious objection in medicine should be declared unethical by professional societies face the following challenge: conscientious objection can function as an important reforming mechanism when it involves health care workers refusing to participate in certain medical interventions deemed standard of care and legally sanctioned but which undermine patients’ rights. In such cases, the argument goes, far from being unethical, conscientious objection may actually be a professional duty. I examine this sort of challenge and ultimately argue that (...) these acts of conscience done in the interest of reforming professional norms or medical regulations are best understood as episodes of civil disobedience rather than episodes of conscientious objection. In contrast to the private, exempting nature of conscientious objection, civil disobedience is a public breach of a norm or law undertaken with the aim of bringing about a change in governmental policies or professional standards. Consequently, clinicians may have a duty to engage in civil disobedience even while professional societies are right to declare limitations on the ethical appropriateness of conscientious objection. (shrink)

The Confucian notion of civility has for thousands of years guided all aspects of socio-ethical life in East Asia. Confucians express their central concern for civility in their notion of li, which is commonly translated ?ritual? and refers to the conventions and courtesies through which we submit to the socio-ethical order, as we do, for example, in performing sacrifices, weddings, and funerals, and various daily acts of deference. Since the rise of China and other East Asian countries as economic powers, (...) it has been suggested that we have in East Asia a ?Confucian? ritual-based culture that is opposed to the law-based culture of the West, a culture of rites opposed to a culture of rights, and that this ritual-based culture can be carried into modernity as another way to secure social harmony. I argue that the values central to Confucian ritual ? deference, repayment, and harmony ? are incompatible with the freedom enacted in modern civility. It is unlikely, therefore, that Confucian ritual can be carried into modernity and, as some suggest, remedy the fragmentation, and indeed lack of civility, characteristic of modern societies. (shrink)

Given the conceptual gap in the global justice debate today (where most of the talk is about the duties of the rich, but little is said about what the poor may do for themselves), in this article I reintroduce the idea of a right of necessity. I first delineate a normative framework for such a right, inspired by these historical accounts. I then offer a contemporary case where the exercise of the right of necessity would be morally legitimate according to (...) that framework – even though illegal and probably condemned by the standard moral norms. The case is that of a small group of Paraguayan campesinos (small farmers) suffering from the effects of a severe drought. In the third part, I introduce the concept of noncivil disobedience: I call an act of noncivil disobedience a conscientious, public, illegal and forcible act whose performance, while not necessarily intended directly as a means to bring about social and/or political change, may help to trigger these changes indirectly. In the fourth part, I suggest that certain instances where the right of necessity is overtly exercised – as in the case of the famine-struck Paraguayan campesinos – may also be interpreted in terms of noncivil disobedience, insofar as they serve a double function: as a means of satisfying immediate need, and as a marker of discontent in a society where the equal rights of individuals are a nominal ideal which remains unfulfilled in practice. I then address two objections that may be raised against resurrecting the idea of a right of necessity and identifying it in certain instances with noncivil disobedience. I conclude by suggesting that, at the point of convergence between the two, a basic right like the right of necessity recovers its value as an active, (rather than passive) entitlement of its holders, while the use of force enters the picture as a legitimate means that – at least under certain circumstances – may be resorted to within the limits of civil society. (shrink)

In Section One the automatic ratification of existing law as immediately self-validating is shown to undermine the very purpose of law - the surpassing of arbitrariness and of Czar-like ukases. In Sections Two and Three there is an attempt to explore the justification or grounding that can be given for the existing laws and civil disobedience, respectively. In both cases, the justification has been given in terms of fundamental human dignity which should never be violated by empirical laws. Only (...) when such a violation does occur can civil disobedience be justified. Therefore, the rationale for, and motivation of, both a legal system and civil disobedience are the same.However, one does not so easily resolve the opposition between the two. For the law itself is proclaimed apodictically, without the reservation that one may with impunity break the law and commit an act of civil disobedience whenever the law violates one's conscience. Otherwise, we do not have a rule of law but instead anarchy. For, as Jesus has said and Abraham Lincoln paraphrased it: “A kingdom divided against itself will not stand.” The law cannot declare that it is legal to break the law without incapacitating itself. The law must punish its violators to be a valid law; without powers of enforcing sanctions against violators the law is no law.However, we must not consider for this reason that those who are responsible for making, interpreting, and enforcing the law and those who are civilly disobedient are working at cross purposes. Both are concerned with justice. The civilly disobedient individual is concerned with improving the existing legal system. He envisions his role as therapeutic rather than destructive. He believes that the ideal of justice is being violated in some way in the existing laws. He therefore makes of himself a martyr, bearing witness to the truth, and hoping thereby to educate and enlighten and to move men of good will - in short, to effect a change in the law.Before an individual who respects the rule of law should be willing to be civilly disobedient he must be convinced of the violation of basic human rights in the law. He also must consider whether civil disobedience is the most effective means of producing the desired change. But beyond the pragmatic consideration of the most effective means to produce the desired end, there is also the question of what is most meaningful and suitable for him personally in living in conformity with the categorical imperative. Discussions of civil disobedience which limit themselves to questions of practical consequences do a great disservice to such actions. For, must we not admire those who resisted Hitler, even though they realized that their actions were futile in terms of changing the law and might even mean their deaths?In a free society, dedicated to the rule of law, all citizens are concerned with justice. Those entrusted with the responsibility of enforcing the law obviously must do just that, so that violators of the law have to be punished. However, when legislators and judges notice that some of the most perspicacious and conscientious individuals are openly violating existing laws in the name of a higher law, they should also make a serious reappraisal of their positions, looking to see whether they may not have become morally insensitive or careless. Indeed, the real value of a free society is its flexibility and tolerance of dissent, even that of civil disobedience, which can serve to dramatize forcefully, deep-seated convictions concerning the injustice of certain laws on the books. It is true that fanatics from time immemorial have been willing to sacrifice much in the name of their cause. But whenever one finds that there is an individual who is willing to sacrifice much without the hope of personal advantage and who is also willing to provide arguments in defense of his position, society would do well to listen to his words and actions.Without the constant delving scrutiny and criticism of existing laws, there cannot be true legal responsibility. Therefore, the civilly disobedient individual, who is willing to put his head on the block in order to abrogate unjust laws, is in fact the legally responsible individual par excellence. (shrink)

In this paper, I compare the extent of Anglo-American judicial engagement in response to civil disobedience with that of the French judiciary. I begin by examining what the civil disobedient can realistically expect to achieve in a court of law. I shall argue that his priority should be to require the judge, acting as a mouthpiece for the law, to respond to his complaints. To do this, the civil disobedient must be able to deny liability for the (...) offence he has allegedly committed by urging a different interpretation of the law on the basis of an alternative -- but plausible -- reading of constitutional or human rights. If the civil disobedient can do this, he can claim a victory of sorts, even if his claims are ultimately unsuccessful. But legal culture can present a further barrier. Judges have different roles in different jurisdictions and therein lie further difficulties for the French civil disobedient. (shrink)

This article is a response to the 1999 article `On the Cunning of Imperialist Reason' by Pierre Bourdieu and Loïc Wacquant, in which US intellectuals such as myself were accused of engaging in `imperialist reason' through scholarly and institutional efforts to impose a US paradigm of racial relations upon Brazilian society and scholarship. This article makes three principal points in relation to Bourdieu and Wacquant's charges. First, their critique relies on presumptions and critical analytical methods which privilege the nation-state and (...) culture as the sole object for comparative analysis, and, second, as a consequence ignore how Afro-Brazilian politics and the US civil rights movement intersect within the political contexts and histories of transnational black politics. The intersecting affiliations of transnational black politics across territorial and nation-state boundaries problematize any characterization of international and inter-state relations as the inevitable interaction of politically discrete, territorially sovereign entities. Bourdieu and Wacquant's self-entrapment within the analytic category of the territorial nation leads them to imprison and caricature US African-American politics and thought within the geographic boundaries of the USA. Their assertions, however, provide an opportunity to consider the so-called US civil rights movement within the larger context of black struggles for racial equality in various parts of the world. Third, Bourdieu and Wacquant's attack is in some ways consistent with Wacquant's demonstrated habit of decontextualizing black cultural production and presenting such decontextualization as a virtue or strength, as evidenced in some of his writings on boxing in the United States. This final linkage is crucial, I believe, in understanding how the indiscriminate use of sociological categories and the refusal to engage the specific peculiarities of the tensions between politics and culture in Brazil are symptomatic of a wider misrecognition of black agency more generally in Wacquant's writings. (shrink)

Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse (...) traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence.This book shows that civil disobedience is generally more defensible than private conscientious objection.Part I explores the morality of conviction and conscience. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument begins with the communicative principle of conscientiousness. According to the CPC, having a conscientious moral conviction means not just acting consistently with our beliefs and judging ourselves and others by a common moral standard. It also means not seeking to evade the consequences of our beliefs and being willing to communicate them to others. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private 'conscientious' objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing.The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience.Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished. (shrink)

This paper defends a legal and political conception of sexual relations grounded in Kant’s Doctrine of Right. First, I argue that only a lack of consent can make a sexual deed wrong in the legal sense. Second, I demonstrate why all other legal constraints on sexual practices in a just society are legal constraints on seemingly unrelated public institutions. I explain the way in which the just state acts as a civil guardian for domestic relations and as a (...) class='Hi'>civil guarantor for private property and contract relations—and thereby enables the existence of legally enforceable claims. Throughout the aim is to demonstrate that Kant’s relational conception of justice entails that legally enforceable claims regarding sexual deeds are fully justifiable only insofar as they are determined and enforced by a public authority that we may refer to as a liberal democratic welfare state. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;Bearing (...) in mind the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)

The devastating toll of gun violence has given rise to hundreds of lawsuits seeking justice on behalf of victims and their families. A significant number of challenges against gun companies, however, are blocked by courts' broad reading of the Protection of Lawful Commerce in Arms Act — a federal statute often interpreted to shield the gun industry from civil liability. This article reexamines PLCAA in light of the Supreme Court's recent federalism caselaw, which counsels courts to narrowly construe federal (...) laws that could otherwise upset the balance of power between states and the federal government. Since PLCAA infringes on traditional areas of state authority, the Supreme Court's federalism jurisprudence requires lower courts to interpret PLCAA narrowly, to not bar states from imposing negligence, nuisance, product liability, or other common law liability on gun companies. Reading PLCAA in line with federalism principles would preserve states' traditional authority over their civil justice laws, and enable gun violence victims, and their families, to hold gun companies responsible for wrongdoing. (shrink)

The article deals with a specific type of contract that an heir is entitled to conclude—the transfer (or sale) of the rights of succession. As a starting point, the author of the article analyses the formation and further development of the transfer of succession as a whole (hereditas) in the Roman law. Two major proceedings used by Roman lawyers for the purposes of the alienation of hereditas are analysed, one being in iure cessio hereditatis and the second taking the (...) form of emptio venditi hereditatis. The interrelations between this kind of transfer and the recognition of the possibility of the assignment of rights (cessio) under the Roman law are pointed out. The author traces the impact of the principles developed by the Roman law on the legal regulation of the contract in question in modern codification by drawing attention to the French Civil Code and the Civil Code of Quebec. The author states that the legal rules on the sale of the rights of succession contained in the new Lithuanian Civil Code adopted in 2000 have been transposed, to a large extent, from the two abovementioned codes. After analysing the object of this contract, the author concludes that it is the sale of a certain incorporeal property (res incorporales) that is meant by the terms ‘succession’ (hereditas) or the ‘rights of succession’. This feature distinguishes the analysed contract from the ordinary contracts that an heir may conclude for the purposes of the alienation of specific objects making part of the succession. (shrink)

Ethics limits the behavior of individuals in social life within the framework of right-wrong, good-bad. In this context, the peace of the whole society must develop behaviors by ethical principles by individuals in social life. There are mechanisms for auditing unethical behaviors before the public and private sector institutions and organizations. In addition to all these mechanisms, there is a civilian area that exists independently of the private sector and the state. As a third sector, non-governmental organizations, which are an (...) element of this civil field, have a structure that includes individuals from all segments of society voluntarily. They aim to contribute to the increase in the quality of life of people in society with their work and to develop respect for ethical factors and Values. Non-governmental organizations, which also have an audit role for the public and private sectors, are in a voice against ethical violations in social life. With the formation of awareness against ethical violations and the dissemination of ethical behaviors throughout the society, individuals culturally internalize ethical behaviors are realized through non-governmental organizations. In this context, the aim of this study is to examine the role of civil society in the formation of ethical culture. In the study, firstly the concept of ethical and ethical culture, then civil society and non-governmental organizations, and finally the role of civil society in the development of ethical culture were discussed through the literature. In the evaluations made, it was seen that the civil society area, which is defined as a third sector independent from the public and private sectors, acts as a barrier against ethical violations that occur in the general society and plays an active role in the creation of an ethical culture. As a result, it can be said that the transformative role of non-governmental organizations on society plays an important role in bringing their ethical behaviors to individuals in social life. (shrink)

Acts of civil disobedience, which imply the open violation of a legal directive, often result in the forceful imposition of a choice upon others (e.g. blockades). This is sometimes justifiable, within a democracy, in cases of ‘democratic deficit’, namely, when fundamental rights of an oppressed minority are at stake. In this article, I claim that the use of physical force, in a democracy, may also be justified by the rights of (at least some of) the very people (...) upon whom force is applied. Focusing on the nature of civil disobedience as a ‘form of address’, I argue: (1) using physical force to address others in the democratic arena does not entail infringing upon their status as autonomous agents; (2) using physical force to address others in the democratic arena may contribute to the fulfilment of a positive duty to promote the autonomy of (at least some of) those very people upon whom force is applied. This is not a defence of paternalism: I claim that using force against others, in the democratic arena, may be constitutive of a behaviour that treats others with the respect due to their status as autonomous agents. (shrink)

The extent to which the legal doctrine addresses manifestations of constitutionalism has been constantly growing. However, the majority of research in constitutionalism focuses on the analysis of the power of the Constitution and the fundamental principles entrenched in it whereas ordinary branches of law, including civil procedure, affected by the constitutional law remains outside the scope of a deeper analysis. The author of the present paper is convinced that certain aspects of the impact of constitutional justice on such branches (...) as, in particular, civil procedure deserve deeper interest. The modest scope of the paper precludes an extensive analysis of the role of the Constitution as a fundamental binding Act and today’s abundant doctrine of Lithuania’s Constitutional Court in civil procedure. Therefore, the present paper is confined to an analysis of individual aspects of direct application of the Constitution and the doctrine of the Constitutional Court. The article analyses the power of the Constitution and its impact on the civil procedure as an Act laying down the fundamental principles binding the legislator in adopting procedural instruments and principles to be followed by courts and as a remedy for violations of rights or a tool to address loopholes and collisions of law. Courts of general jurisdiction perform the control of legitimacy of legal Acts by checking their compliance with the Constitution in individual cases and by applying to the Constitutional Court for repeal of anticonstitutional norms or by applying the Constitution as an Act of direct effect to eliminate loopholes, interpret statutes and deal with collisions of legal norms. The author believes that the fact that the courts of general jurisdiction frequently raise questions of incompliance of legal Acts with the Constitution and decisively apply to the Constitutional Court evidences a high level of legal culture and legal consciousness of the judges. That fact may also serve as a precondition for the growth of confidence in the judiciary as judicial procedures may contain no uncertainties as to the constitutionality of the statutes to be followed in litigation. (shrink)

The Department of Health and Human Services, Office for Civil Rights enforces Section 504 of the 1973 Rehabilitation Act and Title II of the Americans with Disabilities Act. OCR works through complaint investigations and compliance reviews, as well as outreach, technical assistance, and public education to promote voluntary compliance. In the Olmstead decision of June 1999, the Supreme Court held that the ADA’s “integration regulation” requires state and local government to administer services, programs, and activities in the most (...) integrated setting appropriate to the needs of qualified individuals with disabilities. The decision changed the focus from whether a right to more integrated services exists, to under what circumstances and how services will be provided. The New Freedom Initiative announced by President Bush in February 2001 is a broadbased initiative to remove barriers to community living for people with disabilities and promote swift implementation of the Olmstead decision. (shrink)